NL – Extraterritorial

Pillar III

Access to Effective Remedy

“The UNGPs stipulate that a state’s obligation to protect against human rights abuses by companies includes the duty to take appropriate judicial, administrative, legislative or other steps to ensure that when such abuses occur within their territory or jurisdiction those affected have access to effective remedy. Remedy can include offering apologies, rehabilitation, compensation or sanctions as well guarantees of non-repetition of the abuse.

Among states’ obligations is an obligation to publicise information about existing mechanisms, including information on how they work and the support available to access them. The UNGPs state that a mechanism is a routinised, state-based or non-state-based, judicial or non-judicial process through which a grievance or complaint concerning business-related human rights abuse can be raised and remedy can be sought. The UNGPs distinguish between state-based mechanisms (judicial or non-judicial) and non-state-based mechanisms.

The National Baseline Assessment (NBA) concluded that several improvements are possible in terms of access to remedy. Aside from commissioning a study into the calibre of Dutch law in the light of the UNGPs, the previous NAP did not specifically deal with the right to effective remedy. The action points below therefore largely reflect the analysis (the NBA) carried out by the Netherlands Institute for Human Rights. Earlier policy evaluations were also taken into account and information was gathered during consultations about the options available for improving access to remedy in the Netherlands. Improved and more effective access to remedy requires an ecosystem of remedy, meaning that affected parties must have access to a variety of channels for various forms of remedy. The instruments should run in tandem, as not all violations require the same remedy. For example, legal recourse is probably the best way to deal with serious human rights violations, whereas a complaints mechanism may provide quicker and better remedy for less severe violations of labour rights. The proposed due diligence legislation will strengthen this ecosystem, creating a stronger legal basis on which to call European businesses to account regarding any violations. The due diligence legislation will also require businesses to comply with step 6: setting up a complaints mechanism. These efforts to strengthen both state-based and non-state-based mechanisms will lead to the creation of an ecosystem for remedy for affected parties.” p. 62.

Improving the provision of information to affected parties

“Ideally, human rights abuses, including violations of labour rights, should be addressed where they take place and effective remedy is offered locally. Yet in some circumstances a mechanism in the Netherlands may be the best recourse, for example if there is no effective local mechanism or if a Dutch enterprise is involved in the violation. However, victims and their representatives may not always have a clear picture of the possibilities for remedy in the Netherlands. Consultations with civil society organisations on the revision of the NAP made it clear, for example, that affected parties were not always aware of the possibility of accessing regular legal aid in cases of international liability.

The government will produce an accessible digital guide describing the judicial and non-judicial remedies available to parties abroad who have been affected by Dutch companies (through their international supply chains). This guide will clearly describe the possibilities for initiating a judicial or non-judicial process and what support, such as legal aid, is available. The guide can follow Germany’s example. In response to consultations, the guide will where possible take account of the additional hurdles faced by marginalised groups and unequal power relationships. This will include a gender perspective.” p. 63.

ACTION POINTS PILLAR 3	Aim	Responsible party	Timeline
Improving information provision to affected parties
Develop and actively disseminate an accessible digital guide for rightsholders, in several languages	Improve information on the options for access to remedy in the Netherlands.	BZ	2022-2023

p.64

Legal Aid

“Access to the Dutch legal system depends partly on the costs to the affected parties of starting civil proceedings. Discussions with human rights lawyers and NGOs representing victims have made it clear that they know little or nothing about existing legal aid opportunities. Regular legal aid can help with legal costs. Non-Dutch victims can also have recourse to it when claiming damages against parent companies in the Netherlands.

The government will pursue efforts to increase knowledge of and access to current legal aid options, and will monitor how often requests for legal aid in international liability cases are rejected and on what grounds. An evaluation in 2025 will thus be able to state whether the current legal aid options form an obstacle for rightsholders.” p. 73.

Improving access to judicial mechanisms

Applicable law: Rome II

“If a court considers itself competent to rule on a case of international civil law, the question arises which law is to be applied. The Rome II Regulation states that the applicable law is determined on the basis of where the damage has occurred. In cases of human rights violations abroad the applicable law is thus the law of the country concerned. The NBA expressed concern that if foreign law applies in a dispute, victims may have recourse to fewer remedies than under Dutch law. The European Parliament has also called for Rome II to be amended to address this problem. A study commissioned by the European Commission into experiences, problems and the application of the Rome II Regulation was published in October 2021. It is up to the European Commission to review the Regulation. The government would support a broad review of Rome II, which should include discussions on the applicable law in cases of human rights violations in international value chains.” p. 74.

Grounds for jurisdiction of Dutch courts

“The law of international jurisdiction often takes as its point of reference the jurisdiction of the court in the defendant’s country of domicile. This is also the case for Dutch and European rules on international jurisdiction. Another point of reference for Dutch and European rules on international jurisdiction is the place where the human rights violation took place or where the immediate damage occurred. Therefore, if a company established in the Netherlands is named in a case pertaining to a human rights violation the Dutch courts are competent to hear the claim. This is also the case if the violation took place outside of the Netherlands. The Dutch court is not necessarily competent to hear the complaint if the violation concerns a company established outside the Netherlands and if the violation took place and damage occurred outside the Netherlands. Some countries, however, do not have an accessible or adequately functioning legal system and victims thus risk being deprived of legal remedy. The government is actively pursuing this concern in international bodies such as the Hague Conference on Private International Law.

The NBA also notes that in cross-border civil proceedings that have thus far been pursued in the Netherlands, the defendants included Dutch partners as well as subsidiaries based in other countries. As far as is known no legal proceedings have as yet been conducted in the Netherlands involving damage caused by partners in the value chain of Dutch companies other than foreign subsidiaries, that is, non-group company liability. In this connection the Council of Europe has made recommendations about the grounds for jurisdiction of national courts, and these have been enshrined in Dutch law. The fact that no proceedings have taken place may indicate that the rules surrounding this are unclear and that claimants do not consider such cases to be winnable. In line with the NBA, the government is planning to review how these grounds of jurisdiction are applied and whether it would be appropriate to tighten them up in instructions, for example.” pp 74 and 75.

Amending the law of evidence

“The NBA also notes that the high costs associated with complex international cases may form an obstacle to starting proceedings.” p. 75.