The Dutch NAP contains a section on access to remedy.
3.5 Scope for Remedy [32-38]
“The consultations showed that the government has a major role to play in creating scope for remedy to implement the 3rd pillar of the Ruggie Framework, and providing information on the matter. Suggestions varied from providing more information on existing access to remedy through the embassies, to promoting complaint mechanisms at company level and encouraging dialogue between companies and communities under the leadership of an impartial mediator or facilitator. The ACCESS Facility was mentioned as an initiative that could receive support as part of the action plan.
In his commentary on the 3rd Pillar of the Principles, Professor Ruggie points out that grievance mechanisms may take various forms, but their aim will always be to counteract or make good any abuses. Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions, as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition. The term grievance mechanism is used to indicate any routinised, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought.
The ACCESS Facility was set up in December 2012 with a view to knowledge building and improving access to effective dispute settlement between companies and communities either in or out of court. ACCESS supports and facilitates local dispute settlement mechanisms, since it is convinced that local solutions are the most effective and sustainable, and that companies and other interested parties will only use dialogue and mediation if they have confidence in both the design and function of the relevant mechanisms. Since the government believes that the ACCESS Facility clearly provides added value, it has awarded start-up funding under the Human Rights Fund.
“On the basis of Dutch civil law, victims of abuses that have taken place in the Netherlands can claim compensation in the civil law courts. Where an unlawful act has been committed, the court may order the company not only to cease the abuse but also to compensate for the damage caused to the victim (article 6:162, Civil Code). Dutch criminal law provides limited scope for payment of compensation.
In 2009, Professor Alex Geert Castermans and Dr Jeroen van der Weide of Leiden University conducted research into the legal responsibility of Dutch parent companies for the involvement of their subsidiaries in human rights abuses. In practice, companies often make use of a group structure. In these cases, the Dutch parent company is at the head of a group of subsidiaries, which may be located in various countries. Within a group too, each independent legal person is responsible for its own acts. Each legal person is therefore liable for any harm that may be caused by its actions.
Under the rules of private international law, a dispute about harm is judged on the basis of the law of the country in which it has occurred. If it is the result of the actions of a foreign subsidiary of a Dutch parent company, any liability on the part of the parent company will also be judged under the law of the country where it has occurred. Should the subsidiary in question be located in another country, the liability of the Dutch parent company will be judged according to the law of that country. A Dutch civil court may declare itself competent if there is a sufficiently close relationship with a Dutch legal person.
In the consultations, a number of the people interviewed suggested providing more opportunities to gain an understanding of the legal and organisational structures of groups and the relations of control, and to promote transparency regarding the impact of their operations on human rights. The Minister of Security and Justice will inform the House of Representatives separately on the obligations of companies to provide information.”
Legal aid fund
“During the consultations, it was suggested that more financial support should be provided for alleged victims, enabling them to institute proceedings. A fund was proposed to contribute to the costs, including those incurred in collecting evidence and carrying out investigations. Alleged victims usually have fewer resources at their disposal to take a case to court than a company.
In the government’s opinion, a fund is unnecessary, because the regular legal aid scheme provides scope for support in paying legal costs. In the event of claims for compensation from parent companies in the Netherlands, non-Dutch nationals are also entitled to legal aid.
Access to the courts is not as easy in every country. The Netherlands is therefore committed to strengthening countries’ business climate and, in particular, national legal infrastructure, and providing victims in every country with adequate access to remedy mechanisms. It supports capacity development and enters into strategic partnerships with organisations such as the International Development Law Organisation (IDLO).”
4. Action Points
Scope for remedy [page 42]
“In 2014, the Netherlands will organise a conference on judicial and non-judicial grievance mechanisms, together with the ACCESS Facility.”