United States: Five On Friday – Five Recent Developments That We've Been Watching Closely

It's Friday and time for another overview of developments in the field of business and human rights that we've been monitoring.

This week's post includes: the U.S. Government's amicus brief in Jesner v. Arab Bank; a Declaration from the Leaders of the G20; and a commitment to renew the Accord on Fire and Building Safety in Bangladesh.

• On June 27, the U.S. Government, through the Office of the Solicitor General, filed an amicus brief with the Supreme Court in  Jesner v. Arab Bank, No. 16-499. The Supreme Court has granted a writ of certiorari in the case in order to determine "[w]hether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability." In its amicus brief, the U.S. Government argues that the Second Circuit "erred in holding that a corporation can never be subject to a 'civil action' for a 'tort in violation of the law of nations'," and that "nothing in international law discountenances civil claims against corporations." The U.S. Government does suggest, however, that dismissal of the case may have been warranted on the basis of extraterritoriality concerns, citing the Supreme Court's decision in  Kiobel v. Royal Dutch Petroleum  (2013).

• On June 29, apparel brands and two global trade unions, IndustriALL Global Union and UNI Global Union, announced a new Accord on Fire and Building Safety in Bangladesh. The three-year agreement will go into effect in May 2018 when the current Accord expires. The original Accord was signed in May 2013, after the April 2013 Rana Plaza collapse. The new agreement extends provisions regarding independent building safety inspections at all covered factories and includes enhanced commitments regarding freedom of association. It also includes expanded protections for workers impacted by factory closures or relocations resulting from the agreement. Corporate signatories to the Accord include Abercrombie & Fitch, American Eagle, Fruit of the Loom, and PVH.

• On June 30, in an event held during the OECD Global Forum on Responsible Business Conduct, civil society organizations sought to highlight the Transparency Pledge, a new initiative by which advocates are seeking to have apparel companies commit to greater transparency with regard to the specific sites where their merchandise is manufactured. The Transparency Pledge was originally announced in April 2017, along with launch of a report published by Human Rights Watch called  Follow the Thread: The Need for Supply Chain Transparency in the Garment and Footwear Industry. To date, seventeen companies — including Adidas, Esprit, H&M, and Levi Strauss — have agreed to align their disclosures with the pledge.

• On July 8, the Leaders of the G20 released a Declaration stating that they "commit to fostering the implementation of labour, social and environmental standards and human rights in line with internationally recognised frameworks, such as the UN Guiding Principles on Business and Human Rights'" and that they will "work towards establishing adequate policy frameworks in our countries such as national action plans on business and human rights and underline the responsibility of businesses to exercise due diligence." The Declaration also stated that they "will take immediate and effective measures to eliminate child labour by 2025, forced labour, human trafficking and all forms of modern slavery." The Leaders' Declaration comes shortly after the Ministerial Declaration issued by the Labour and Employment Ministers of the G20 in mid-May, which also included commitments to take "immediate and effective measures" to eradicate modern slavery, forced labor, and human trafficking in global supply chains.

• On July 13, the U.S. Senate Finance Committee announced that it was postponing the confirmation hearing of the acting Customs and Border Protection ("CBP") Commissioner, Kevin McAleenan, in order to provide the Committee with more time to review the nomination. The nomination has been closely watched by those concerned with how CBP may approach enforcement with regard to the prohibition on the importation of goods made in whole, or in part, with forced labor. On July 12, the International Corporate Accountability Roundtable ("ICAR") released an open letter to the Committee urging it to "clarify Mr. McAleenan's position on and strategy for enforcing Section 307 of the Tariff Act (the forced labor provision)."

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