Supplementary memorandum submitted by
BP
I undertook to write to you to expand our views
on how to approach situations where prospective claimants in foreign
jurisdictions perceive they have no effective remedy in their
own country for human rights claims against the foreign subsidiary
of a UK domiciled company.
This is an issue which we believe to be at the
heart of one of BP's core values—namely that in the conduct
of our business, we must always have regard to the human rights
impact of those who are involved with and affected by our business
activities. I hope that through both our written and oral submissions,
it is clear that BP has sought to take tangible steps to embed
consideration of human rights within our business and risk management
process and that there is senior leadership commitment to addressing
the issue. Our company is also actively engaged with other extractives
companies (along with governments and Human Rights NGOs) in the
Voluntary Principles on Security and Human Rights (VPs). We continue
to implement the VPs in our major projects and operations specifically
to address human rights concerns in the provision of security.
When I appeared before you, I acknowledged that
there will always be the risk, despite the best systems a company
can devise, that even the best-intentioned companies may fail
to live up to their own standards, and that this could result
in the infringement of the human rights of nationals in foreign
countries. In such cases, we believe the most appropriate response
should be the swift, fair and proportionate resolution of such
complaints on the ground in the relevant country, including, where
appropriate, the provision of reasonable compensation and remedial
action, without the need for such complainants to seek redress
in their local courts.[127]
As a company, where we believe complainants have justifiable and
meritorious claims, we aim to settle matters promptly and reasonably
without the need for recourse to either local or other courts,
In Appendix 1, I provide examples of BP's efforts to facilitate
timely feedback and resolution of community based issues, including
human rights claims.
None of this, however, precludes foreign complainants
from accessing the UK courts in appropriate circumstances. In
the event that such complainants believe a foreign subsidiary
of a UK domiciled company has infringed their human rights, and
that they have no real recourse in the courts of their own country,
then we believe it is a matter entirely for them if they wish
to bring an action in the UK courts. As a general matter BP believes
the UK courts provide a just and efficient forum for resolution
of disputes.
If foreign complainants choose this route, they
can already access the UK courts in certain circumstances. There
is an existing legal framework to allow the UK domiciled parent
to be sued in the UK in appropriate circumstances. Further, there
is legal precedent applicable to certain cases which might be
relied upon to sue the foreign subsidiary in the UK courts.
In saying this, BP is not passing judgment on
the efficacy or otherwise of the judicial systems of the countries
in which we operate—nor would it be appropriate for us to
do so.
Additionally there are other mechanisms that
allow the complainant to access other, non-local mechanisms for
the consideration of redress:
— The VPs, in addition to providing a framework
for understanding and managing the issue of human rights as it
relates to the provision of security services, includes a detailed
reporting requirement and a mechanism by which concerns over company
performance can be raised by other VPs members, mediated and resolved.
— There are already existing mechanisms
such as the OECD Guidelines for Multinationals, which have country
based National Contact Points who in effect have the ability to
hear and publish findings (which are albeit non binding).
With regards to company level policies, English
law already mandates consideration of issues such as human rights
to be factored into decision making. The recently amended UK Companies
Act has expanded the fiduciary duties of directors to consider
the impact of their company's operations on the community and
the environment of which human rights would be one consideration,
particularly for a multi-national like BP which operates globally
in a range of different socio-economic environments. The Companies
Act also requires additional reporting on non-financial risks.
In discussing a way forward on this I believe
it imperative that we should not pre-empt the outcome of the work
of John Ruggie who has so far developed the framework of "protect,
respect, redress" which has gained fairly widespread support.
The next stage is to make more explicit the expectations of governments,
companies and civil society under this framework. Only after Ruggie
builds consensus on the companies' role in respecting human rights,
should we move to consider the need for a globally consistent
set of rules or standards and the appropriate framework for compliance.
In the absence of such a consensus, there is
the risk of a multiplicity of new country based business and human
rights related standards and adjudication systems. This should
be avoided since it will have the consequence of complicating
the business environment and creating potentially inconsistent,
country specific guidelines.
Moving forward, BP offers the following thoughts
on the debate on national mechanisms for redress, and more broadly
on business and human rights:
— BP is broadly supportive of the concept
of a non-judicial, independent body which uses the Ruggie output
as a framework—but with a mandate to clarify and promote
appropriate standards, create greater coherence amongst government
agencies and evaluate the effectiveness of existing initiatives.
However, we feel strongly that, in the UK, the courts are best
placed to fairly and effectively adjudicate human rights claims
given their knowledge and experience of interpreting the law and
procedure which might apply.
— We need to preserve the momentum created
through the VPs. No doubt, there are still issues about governance,
the voluntary nature of the VPs and how VP members report performance:
but at base, the initiative is trying to guide and support companies
in identifying and mitigating the potential human rights impacts
of their security arrangements. Additional UK Government support
to enhance this effort should be an essential part of the way
forward on this debate.
— Ultimately any new standard must be pragmatic—allowing
business to be successful while at the same time to be a force
for positive change in the countries we operate. Ongoing consultation
With business on this issue will be essential to developing such
a pragmatic and practical approach.
I hope these additional points are helpful to
your Inquiry, before which I was pleased to appear as a witness
earlier in the summer.
127 In referring to redress, I am agreeing with John
Ruggie's conceptualisation of redress to include "compensation,
restitution, guarantees of non-repetition, changes in relevant
law and public apologies". Back
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