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The Case for an ILO Convention on Supply Chain Responsibility
The Case for an ILO Convention on Supply Chain Responsibility
The Case for an ILO Convention on Supply Chain Responsibility
The Case for an ILO Convention on Supply Chain Responsibility
Common Law Backdrop (1) No Duty to Rescue
Common Law Backdrop (1) No Duty to Rescue
Common Law Backdrop (2) Boundaries of Firm & Employment
Common Law Backdrop (2) Boundaries of Firm & Employment
It is the fact of direction with is the essence of the legal concept
It is the fact of direction with is the essence of the legal concept
The Case for an ILO Convention on Supply Chain Responsibility
The Case for an ILO Convention on Supply Chain Responsibility
Wal-Marts Supply Chain Management
Wal-Marts Supply Chain Management
Summary
Summary
The Emergence of Supply Chain Responsibility
The Emergence of Supply Chain Responsibility
The Emergence of Supply Chain Responsibility
The Emergence of Supply Chain Responsibility
Civil Society Practice
Civil Society Practice
Wintek worker Jia Jingchan, injured by use of n-hexane to clean iPhone
Wintek worker Jia Jingchan, injured by use of n-hexane to clean iPhone
SACOM Report, May 2011 (Following Chengdu explosion)
SACOM Report, May 2011 (Following Chengdu explosion)
2012 Dhaka Fire & 2013 Rana Plaza Collapse
2012 Dhaka Fire & 2013 Rana Plaza Collapse
Import of this Norm
Import of this Norm
Key provisions: (a) Brands commit to source from compliant factories
Key provisions: (a) Brands commit to source from compliant factories
Unpacking the Norm
Unpacking the Norm
Norm of SCR in Intl Legal Instruments
Norm of SCR in Intl Legal Instruments
Recent Proliferation of State Laws Reflecting SCR
Recent Proliferation of State Laws Reflecting SCR
State Laws Reflecting SCR
State Laws Reflecting SCR
Toward Supply Chain Liability in Tort Law
Toward Supply Chain Liability in Tort Law
Substantive Impediments/Possibilities Under U.S. Tort Law
Substantive Impediments/Possibilities Under U.S. Tort Law
Key Cases
Key Cases
Procedural Impediments to Supply Chain Liability Under U.S. Tort Law
Procedural Impediments to Supply Chain Liability Under U.S. Tort Law
The Case for ILO Standard-Setting
The Case for ILO Standard-Setting
Why the ILO
Why the ILO
Precedents at ILO
Precedents at ILO
Key Elements (I)
Key Elements (I)
Key Elements (II)
Key Elements (II)

: The Case for an ILO Convention on Supply Chain Responsibility. : Sandra. : The Case for an ILO Convention on Supply Chain Responsibility.ppt. zip-: 2985 .

The Case for an ILO Convention on Supply Chain Responsibility

The Case for an ILO Convention on Supply Chain Responsibility.ppt
1 The Case for an ILO Convention on Supply Chain Responsibility

The Case for an ILO Convention on Supply Chain Responsibility

Brishen Rogers Temple University Beasley School of Law July 10, 2015 Presentation at RDW 2015 Conference

2 The Case for an ILO Convention on Supply Chain Responsibility
3 Common Law Backdrop (1) No Duty to Rescue

Common Law Backdrop (1) No Duty to Rescue

In U.S. & many other nations tort law, A usually has no duty to protect B against harms that A has not caused Classic example: if A sees B drowning in a public space, A need not help even if doing so would cost A nothing. In fact, A may sit and smoke his cigar while B drowns. (Some exceptions)

4 Common Law Backdrop (2) Boundaries of Firm & Employment

Common Law Backdrop (2) Boundaries of Firm & Employment

Firms are Islands of conscious power in this ocean of unconscious co-operation like lumps of butter coagulating in a pail of buttermilk. (Coase 1937) Optimal scope of a firm is determined by transaction costs of utilizing market sourcing rather than command structures

5 It is the fact of direction with is the essence of the legal concept

It is the fact of direction with is the essence of the legal concept

of employer and employee just as it was in the economic concept [of the firm] (Coase 1937) Generally no employment law duties toward non-employees, which creates incentives to purchase goods rather than produce in house. Partial solution in US: joint employer doctrine (in FLSA) can occasionally reach user firms (like farms) but not food chains or retailers

6 The Case for an ILO Convention on Supply Chain Responsibility
7 Wal-Marts Supply Chain Management

Wal-Marts Supply Chain Management

http://courses.ischool.berkeley.edu/i290-4/s02/readings/line56supplychain.gif

8 Summary

Summary

In contemporary global supply chains, MNCs have power wo responsibilities Regulations based on employment relationship within one state cant ensure decent work But norms of supply chain responsibility now well-developed in civil society, and are beginning to take root in positive law Tort law as promising site for development of supply chain liability Possibilities/impediments to this now especially jurisdictional questions Potential for ILO to help process along

9 The Emergence of Supply Chain Responsibility

The Emergence of Supply Chain Responsibility

10 The Emergence of Supply Chain Responsibility

The Emergence of Supply Chain Responsibility

Civil society practice (MNCs and NGOs) Private lawmaking (Bangladesh Accord) International legal regimes (Ruggie etc.) Public lawmaking (various examples)

11 Civil Society Practice

Civil Society Practice

NGOs and consumers very often call on brands to exert their market power to ensure decent work in their supply chains. Basically all MNCs now have CSR policies. Many commit brands to ensuring decent working conditions at suppliers.

12 Wintek worker Jia Jingchan, injured by use of n-hexane to clean iPhone

Wintek worker Jia Jingchan, injured by use of n-hexane to clean iPhone

We hope Apple will heed to its corporate social responsibility

13 SACOM Report, May 2011 (Following Chengdu explosion)

SACOM Report, May 2011 (Following Chengdu explosion)

Foxconn has primary responsibility in labour rights abuses. The clients, including Apple and HP, which declare decent working conditions at their suppliers have indispensible obligations to put their promise into practice.

14 2012 Dhaka Fire & 2013 Rana Plaza Collapse

2012 Dhaka Fire & 2013 Rana Plaza Collapse

Over 1200 killed leads to pervasive calls for brand responsibility, eventually to Accord

15 Import of this Norm

Import of this Norm

Not yet a significant constraint on MNCs. But: (1) Shows public consensus around brands duties, so important backdrop to lawmaking (2) Soft law norms can be adopted into hard law regimes via adjudication (3) Has been incorporated into binding agreements such as Bangladesh Accord, and multi-stakeholder efforts like Better Work

16 Key provisions: (a) Brands commit to source from compliant factories

Key provisions: (a) Brands commit to source from compliant factories

for at least two years; (b) Brands include sufficient resources in contracts to fund health/safety upgrading (c) Enforcement via arbitration, with awards enforceable in domestic courts. Other regime, Alliance, also involves alleged commitments to enable factory safety but no contractual commitments

17 Unpacking the Norm

Unpacking the Norm

Shared responsibility among: MNC & supplier/employer Home states of MNC & supplier/employer Axes of shared responsibility Direct causation of a harm Benefit from a harm Special capacity to mitigate or eliminate harm Special connection to those who suffer the harm Key works: Iris Marion Young, Responsibility for Justice (2011); various by Dahan, Lerner & Milman-Sivan.

18 Norm of SCR in Intl Legal Instruments

Norm of SCR in Intl Legal Instruments

Ruggie Principles: ...responsibility to respect applies across its business activities and through its relationships with third partiessuch as business partners, entities in its value chain, and other non-State actors OECD Guidelines for Multinational Enterprises (2011): require firms to avoid causing or contributing to adverse impacts and to engage in social dialogue on responsible supply chain management

19 Recent Proliferation of State Laws Reflecting SCR

Recent Proliferation of State Laws Reflecting SCR

United States: Alien Tort Statute Dodd-Frank Provisions on conflict minerals (FLSAs expansive definition of employer) (NLRAs garment & construction industry provisos, and proposed joint employer standard) California Transparency in Supply Chains Act (2012) California Brothers Keeper Law Good caselaw developing

20 State Laws Reflecting SCR

State Laws Reflecting SCR

Netherlands: joint liability common for harms to contracted workers in the country U.K., France, Denmark require large companies to report on CSR initiatives Proposal in French Parliament to create statutory duty of care of companies toward supply chain workers Many in trafficking: Gordon (ILO 2015) and Andrees, Nasri, Swiniarski (ILO 2015

21 Toward Supply Chain Liability in Tort Law

Toward Supply Chain Liability in Tort Law

22 Substantive Impediments/Possibilities Under U.S. Tort Law

Substantive Impediments/Possibilities Under U.S. Tort Law

In U.S. tort law, usually no duty to protect others against harms by third parties. Exceptions: (1) Duty of reasonable care where one has agreed to protect another against particular harms (2) Duty to warn or protect where one has non-negligently created a risk of harm (3) Duties to protect arising out of special relationships limited cases where D has substantial/exclusive power to protect P

23 Key Cases

Key Cases

Doe v. Wal-Mart, 572 F.3d 677 (9th Cir. 2009) (no duty to monitor suppliers where D made no binding contractual commitment to do so) Holds open possibility of such liability where an MNC does make such a commitment Kasky v. Nike, 27 Ca. 4th 939 (2002) (possible liability under state consumer protection laws for misleading statements re: supply chain labor conditions) But constitutional status of decision is unclear. Rana Plaza litigation, (filed 2015, D.D.C.)

24 Procedural Impediments to Supply Chain Liability Under U.S. Tort Law

Procedural Impediments to Supply Chain Liability Under U.S. Tort Law

(Treaties generally have no direct effect on MNCs instead bind states to regulate employment relationships) Jurisdiction & venue questions Judicial aversion to foreign claims Choice of law questions Substantive: which states tort law? Procedural: jury trial? Punitives? Class action?

25 The Case for ILO Standard-Setting

The Case for ILO Standard-Setting

26 Why the ILO

Why the ILO

Transnational rulemaking necessary to resolve procedural Qs ILO is the recognized site for definition and promulgation of intl labor standards Employer participation enhances legitimacy Strategic advantages of ILO Can solve assurance game problem Can negotiate north/south conflicts ILOs monitoring & technical assistance capacity may be helpful for any new regime

27 Precedents at ILO

Precedents at ILO

Better Work Supply-chain governance; Shared responsibility Declaration on MNEs (1977, 2000, 2006) Defines duties for MNEs, though limited to their direct employees Maritime Convention (2006) Shared jurisdiction -- flag states & port states ILO Rec. 203 on Forced Labor (2014) Supply chain due diligence

28 Key Elements (I)

Key Elements (I)

**Ensuring jurisdiction Member states courts shall have jurisdiction to hear claims by supply chain workers against home state MNCs Defining duty Member states shall hold MNCs to duties of reasonable care to prevent (defined harms) to workers within their supply chains OR: Member states shall ensure that MNCs establish transnational industrial relations systems to cover supply chain workers

29 Key Elements (II)

Key Elements (II)

Defining harms: Pervasive & severe violation of core labor standards (Hyde 2012)? Unacceptable forms of work? Failure to establish transnational bargaining? Defining breach/defenses: Financial commitments that enable labor standard compliance? Monitoring protocols? Safe harbor for use of ILO monitoring?

The Case for an ILO Convention on Supply Chain Responsibility
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