Corporate Investors’ Nationality and Reforming Investment Treaties: Can Older Generation Treaties Undermine Substantive Reforms?

9 Mar 20219 Mar 2021 / essexlawresearch / Leave a comment

Dr. Anil Yilmaz Vastardis, Senior Lecturer and Co-Director of the Essex Business and Human Rights Project, School of Law and Human Rights Centre, University of Essex

In my recently published book The Nationality of Corporate Investors under International Investment Law(Hart Publishing 2020), I dissect the relationship between international investment law, corporate law and the concept of nationality. I argue that this relationship has been problematic from host states’ and their communities’ perspective, for it creates a free market for manufactured corporate nationalities enabling wealthy investors to access investment treaty protections to challenge regulatory measures.

Scrolling through the UNCTAD investment dispute settlement database, one can detect, even without reading the awards or decisions, that some businesses publicly known to be corporate nationals of a particular state seek protection under investment treaties of other states. For instance, the UNCTAD database shows a claim filed by Chevron against the Philippines in 2019. One would expect this claim to be filed under the US-Philippines investment treaty, as Chevron Corporation is incorporated and headquartered in the US. But it appears from the UNCTAD investment agreements database that there is no investment treaty between the US and the Philippines. Instead, Chevron filed this claim under the Philippines-Switzerland investment treaty utilising its Swiss subsidiary Chevron Overseas Finance GmbH.

One investor, convenient nationalities

This practice of nationality shopping is relatively common and largely permitted in investment treaty practice. It is enabled by investment treaty texts and generous arbitral interpretations of a corporation’s link to its alleged home state. In the example of Chevron, while it certainly has a corporate presence in Switzerland, through which it may have channelled its investments to the Philippines, the question remains as to whether this alone makes Chevron a Swiss investor. The relevant investment treaty defines a protected Swiss ‘investor’ to include any company incorporated under Swiss law. According to this definition, Chevron in the Philippines is a Swiss investor and not a US investor. However, according to two prior investment treaty claims that Chevron filed against Ecuador, it is a US investor. This is not an isolated instance. In its 2011 claim against Australia, Philip Morris argued it was a Hong Kong investor, whilst at the same time arguing in a 2010 claim against Uruguay that it was a Swiss investor. Philip Morris is a well known, US – headquartered tobacco company. But in investment treaty claims, it has never been a US investor. Similarly, Mobil initiated a claim against Venezuela in 2007 as a Dutch investor and against Argentina in 1999 as a US investor. Total was a French investor in its claim against Argentina in 2004, but it was a Dutch investor in a claim against Uganda in 2015.

Good governance and development narratives no longer justify manufactured nationalities

There are many similar instances of less well-known corporate investors relying on manufactured corporate identities or nationalities in order to invoke investment treaty protections. And all of this is often permitted within the boundaries of investment treaty law and corporate law. Taking a page from Katharina Pistor’s Code of Capital, we can understand investment treaties and corporate law principles as offering a legal coding of foreign investment that enables investors to change identity so as to increase the durability and priority of their interests. Those in favour of this flexibility of investment treaty law argue that we should focus on the bigger picture: the objective of investment treaty law to enhance good governance and economic development would be better achieved if all investors had access to treaty protections and investment arbitration, regardless of their origin or nationality. Thus, it is in line with the objectives of investment treaties to interpret the concept of investor or corporate nationality expansively and flexibly – so much so that an investor can be a national of one state for the purpose of one claim and a national of another state for the purpose of another claim.

The good governance and development narratives of investment treaties, however, have been challenged by recent empirical work. After 20 years of proliferation of investment treaty claims, the evidence is lacking to support these narratives as justification for expanding the personal scope of investment treaty protections. States have begun to pay some attention to the personal scope of their investment treaties, especially for corporate investors, in newly negotiated investment treaties. Increasingly, states are adopting more detailed clauses that require a corporate investor to have a stronger connection to its home state than merely being incorporated in that jurisdiction. The question of personal scope of investment treaty protection is also considered by the UNCITRAL Working Group III as one of the reform areas to overcome consistency and correctness problems in investor-state dispute settlement. The recently published UNCTAD IIA Reform Accelerator also identifies ‘investor’ definitions among the eight key provisions of investment treaties in most need for reform. The objectives of these reform efforts are to tighten the definition of ‘investor’ and introduce ‘denial of benefits’ clauses to prevent corporate investors’ reliance on tenuous links with a home state to access treaty protection.

Reform and the pitfalls ahead

Reform is crucial in the area of personal coverage of treaties to (1) restore the reciprocal nature of investment treaty protections and (2) to avoid the reforms pursued by states on substantive investment treaty standards being side-stepped by investors by relying on the remaining older generation investment treaties. As I argue in my book, the permissive definitions of investor in older treaties and expansive interpretations of even the tighter definitions by arbitral tribunals have resulted in undermining the reciprocal nature of investment treaty commitments among states. There is no barrier for a US investor to rely on investment treaty protections for its investments in the Philippines, despite the two countries not having committed to extending such protection to each other’s investors. The definitions of investor, coupled with the convenience of creating corporate entities, artificially transform the standards of protection included in investment treaties into pseudo-erga omnes obligations for states which can be invoked by any investor, whether or not they are genuinely covered by a treaty. While reform of treaties is necessary to reverse this trend, treaty wording alone may not offer the tightening of standards the states are aiming for. Investment arbitration tribunals continue to have decisive input over the interpretation of treaty standards. This means that even tighter standards can be loosened in the process of arbitral interpretation. One of the key reforms added to investor definitions is to require that a protected investor has its real seat or substantial business activities in the home state. Yet, in a recent arbitral award in Mera Investment v Serbia, the tribunal interpreted the concept of real seat as the place of incorporation and permitted a shell corporation indirectly owned by nationals of the host state to benefit from the investment treaty, despite the investor lacking the genuine connections to the home state sought in the investment treaty. Thus, textual reform of treaties may not achieve the outcomes desired with the current model of investment arbitration.

The second consequence of the current definitions of investor and arbitral interpretations is that they can undermine substantive investment treaty reforms pursued by host states. This is due to investors’ ability to adopt a new, or rely on an existing corporate nationality, established using subsidiaries or mailbox companies and based on tenuous links with a home state that has an older generation treaty with the host state. In this way investors, who may genuinely be nationals of a home state that has recently signed a reformed treaty with the host state, can sidestep the reformed treaty and rely on an older generation treaty to bring its claim against the host state. Many new investment treaties introduce more nuanced substantive standards of protection and exceptions to the application of standards such as the FET standard or indirect expropriation in the areas of policies and measures introduced in the public interest. If, for instance, a Canadian investor within the EU wishes to avoid the provisions safeguarding the host state’s right to regulate to achieve legitimate public policy objectives enshrined in CETA, it can rely on an older generation investment treaty signed by the relevant EU member state and a third state in whose territory the investor can set up a shell corporation or has an existing subsidiary to reroute its investment before filing a claim and before a dispute becomes reasonably foreseeable.

Conclusion

Many states are working on reforming their investment treaties to curb the excesses of the older generation investment treaties. Unlike their first-generation counterparts, these newer generation treaties are being negotiated with greater attention to detail and lessons learned. The process for any state to reform its entire investment treaty programme can take a significant amount of time. In the meantime, investor definitions in treaties and expansive interpretation of this notion by arbitral tribunals can allow backdoor access for investors to older generation treaties via subsidiaries or shell corporations based in third countries. Even if a state reforms all its treaties and tightens investor definitions and includes denial of benefits clauses, there will still be a risk of arbitral tribunals undermining the objectives of the parties by interpreting the concepts incorrectly, as was done in Mera Investment v Serbia. The problems with both investment treaty texts and the decisive interpretative influence exercised by arbitral tribunals over those texts indicate that even serious change to one aspect of the investment treaty system, in isolation, can be undermined in the absence of more systemic reform.

The author would like to thank Daria Davitti, Nathalie Bernasconi, Paolo Vargiu, and Zoe Phillips Williams for their helpful comments. This post was originally published on Investment Treaty News.

Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection

4 Mar 20211 Mar 2022 / essexlawresearch / Leave a comment

Dr. Jaime Lindsey, Lecturer in Law at the University of Essex has a new article published in the Journal of Law and Society. The article is entitled ‘Capabilities, capacity, and consent: sexual intimacy in the Court of Protection’ and is co-authored with Professor Rosie Harding of the Birmingham Law School.

The article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity.

The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation.

Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.

The article is published Open Access and is available here.

Enhancing Cross-Border Access to Electronic Information in Criminal Proceedings: Towards a new E-Evidence legal framework in the EU

2 Mar 2021 / essexlawresearch / Leave a comment

Dr Oriola Sallavaci, Senior Lecturer in Law, University of Essex

In recent years cross-border exchange of electronic information has become increasingly important to enable criminal investigations and prosecutions. As I have discussed in depth in my study “Rethinking Criminal Justice in Cyberspace: The EU E-evidence framework as a new model of cross-border cooperation in criminal matters” the use of technology has transformed the nature of crime and evidence leading to ‘crime without borders’ and ‘globalisation of evidence’. An increasing number of criminal investigations rely on e-evidence and this goes beyond cyber-dependent and cyber-enabled crimes. From an evidential point of view, today almost every crime could have an e-evidence element as often offenders use technology, such as personal computers, notepads, and camera phones, where they leave traces of their criminal activity, communications or other pieces of information that can be used to determine their whereabouts, plans or connection to a particular criminal activity.

Crime today often has a cyber component and with it an increasingly prominent cross border dimension because electronic information to be used for investigative or evidentiary purposes is frequently stored outside of the investigating State. The borderless nature of cyberspace, the sophistication of the technologies and offenders’ modii operandi pose specific and novel challenges for crime investigation and prosecution that, in practice, may lead to impunity. In 2018 the European Commission found that in the EU “more than half of all investigations involve a cross-border request to access [electronic] evidence.” Yet, alarmingly, “almost two thirds of crimes involving cross-border access to e-evidence cannot be effectively investigated or prosecuted”. Challenges to accessibility relate inter alia to the volatility of e-information, availability and the location of data, as well as the legislative barriers and shortcomings that must be overcome to enhance cross-border access to electronic evidence and the effectiveness of public-private cooperation through facilitated information exchange.

Cross border access to e-information is currently conducted through traditional judicial cooperation channels and requests are often addressed to specific states which are hosts to many service providers (SP). In the EU these include Mutual Legal Assistance requests and European Investigation Orders according to Directive 2014/41/EU which provides for the acquisition, access and production of evidence in one Member State (MS) for criminal investigations and proceedings in another Member State. The nature of the existing judicial cooperation instruments, actors and procedures involved, and the ever-increasing number of requests have resulted in delays and inefficiencies, posing specific problems for investigations and prosecutions that are exacerbated by the volatility of electronic information.

In the EU, there is no harmonised framework for law enforcement cooperation with service providers. In recent years, Member States have increasingly relied on voluntary direct cooperation channels with service providers, applying different national tools, conditions and procedures. Service providers may accept direct requests from LEAs for non-content data as permitted by their applicable domestic law. However, the fragmented legal framework creates challenges for law enforcement, judicial authorities and service providers seeking to comply with legal requests, as they are increasingly faced with legal uncertainty and, potentially, conflicts of law.

Cross border access to electronic information requires legal instruments that are capable of efficiently supporting criminal investigations and prosecutions and that, at the same time, have in place adequate conditions and safeguards that ensure full compliance with fundamental rights and principles recognised in Article 6 of the Treaty on European Union, the EU Charter of Fundamental Rights and the European Convention on Human Rights, in particular the principles of necessity, legality and proportionality, due process, protection of privacy and personal data, confidentiality of communications, the right to an effective remedy and to a fair trial, the presumption of innocence and procedural rights of defence, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

In order to achieve these objectives and overcome difficulties present in the existing mechanisms of cross-border cooperation, in April 2018 the EU Commission proposed an important legislative package referred to as “E-evidence”, aimed at facilitating the access to e- evidence by European law enforcement agencies (LEAs). The framework contains two legislative measures: a Regulation which provides two new mechanisms for LEA’s cross border access to e-evidence: European Production Order and European Preservation Order which are to be addressed directly by LEAs of the issuing MS to a service provider, and a Directive which requires every online service provider “established” in or that has “substantial connection” to at least one EU Member State to appoint a legal representative in the territory of an EU MS of choice as an addressee for the execution of the above Orders.

On 7 December 2018 the Council adopted its own draft (known as Council’s “general approach”) and after two years of delays caused partially from the EU parliamentary elections and the Covid-19 pandemic, on 11 December 2020 The EU Parliament adopted its position. On 10 February 2021 the ‘trilogue’ procedures amid the EU Parliament, the Council, and the Commission started in order to agree to a common text. In the study cited above, I have analysed in depth the key legal provisions contained in the Commission’s proposal, the Council’s draft and the report of the LIBE’s rapporteur Birgit Sippel, presented to the EU Parliament in 2020. Considering that the E-evidence framework is currently being negotiated, the study’s analysis and findings aim to contribute to achieving the best version of the forthcoming instruments.

The EU E-evidence framework is of particular importance in shaping the future of similar instruments and the terms of cooperation between countries all over the world. To a certain extent, it follows the US CLOUD Act 2018 that in itself marks a major change in how cross-border access to e-evidence may develop in the rest of the world. The EU E-evidence framework shall influence and at the same time needs to conform to a number of new agreements currently being negotiated. In 2019 the EU Commission received a negotiating mandate to achieve an agreement between the EU and US, as well as to shape the second amending protocol of the Cybercrime Convention (CCC). Both these instruments need be negotiated from the perspective of the forthcoming E-evidence framework, therefore it is important that the latter offers provisions that increase the efficiency of investigations and prosecutions by surpassing challenges in cross-border cooperation, while maintaining safeguards to fundamental rights of individuals.

The E-Evidence legislative package lays down the rules under which, in a criminal proceeding, a competent judicial authority in the European Union may directly order a service provider offering services in the Union to produce or preserve electronic information that may serve as evidence through a European Production or Preservation Order. This framework will be applicable in all cross-border cases where the service provider has its main establishment or is legally represented in another Member State. The framework aims to complement the existing EU law and to clarify the rules of the cooperation between law enforcement, judicial authorities and service providers in the field of electronic information. The new measures for cross border access to e-evidence will not supersede European Investigation Orders under Directive 2014/41/EU or Mutual Legal Assistance procedures to obtain electronic information. Member States’ authorities are expected to choose the tool most adapted to their situation. However, authorities of the Member States will be allowed to issue domestic orders with extraterritorial effects for the production or preservation of electronic information that could be requested on the basis of the e -evidence Framework.

Despite expected improvements in the efficiency of investigations and prosecutions by simplifying and speeding up the procedures, the necessity of having a new legal framework to organize cross-border access to electronic evidence has been questioned. The proposed e-evidence framework is perceived as adding another layer to the already complex tableau of existing, multiple channels for data access and transnational cooperation. While alternative approaches have been considered and could have been taken by the Commission, as I have argued in depth elsewhere, a specific framework dedicated to improving access to e-evidence is more suitable to help achieve that goal than amendments to existing procedures and instruments that are general in scope and do not provide for the specific e-information related challenges. Procedural improvements to existing cross border cooperation instruments are necessary, but not by themselves sufficient to overcome the present difficulties and inefficiencies. It is not possible to adequately respond to novel challenges with old mechanisms embedded in lengthy procedures and bureaucratic complexities. The answer is to provide adequate safeguards that protect fundamental rights and the interests of all stakeholders, suited to the new type of instruments created by the e-evidence framework, albeit not identical to the ones found in existing mechanisms of transnational cooperation.

The E-evidence model builds upon the existing models of cooperation yet is fundamentally different. The extraterritorial dimension of the framework affects the traditional concept of territorial sovereignty and jurisdiction. It departs from the traditional rule of international cooperation that cross-border access to electronic information requires consent of the state where the data is stored. Most importantly, jurisdiction is no longer linked to the location of data. According to the new approach, the jurisdiction of the EU and its MSs can be established over SPs offering their services in the Union and this requirement is met if the SP enables other persons in (at least) one MS to use its services and has a substantial connection to this MS. In this way the framework avoids the difficulties in establishing the place where the data is stored and the “loss of location” problem. E-evidence framework is a clear example of the development of the concept of territorial jurisdiction in criminal law and the evolvement of connecting factors that establish it, in line with the requirements of legal certainty.

The extraterritorial reach of judicial and state authorities’ decisions in the E-evidence framework introduces a new dimension in mutual recognition, beyond the traditional judicial cooperation in the EU in criminal matters, so far based on procedures involving two judicial authorities in the issuing and executing State respectively. This important aspect of the e-evidence framework entails a fundamentally different approach that demonstrates the (need for) development of the EU law traditional concepts in order to respond to the new challenges with adequate mechanisms. From the perspective of the proposed e-evidence framework, the scope of article 82 (1) TFEU requires further clarification from CJEU or an amendment (albeit difficult). Reliant on the principle of mutual trust, the debates surrounding the e-evidence framework reveal that in today’s European reality this principle is still an objective to be achieved. For as long as disparities in the standards and protections provided by MSs still exist, the way forward should include innovative mechanisms that allow for the control, improvement and maintenance of those standards within each MS as opposed to fostering lack of trust, prejudicial treatment and unjustifiable differentiation between MSs within the EU.

The e-evidence framework generally achieves what it sets out to do: i.e. to increase the effectiveness of cross-border access to e-evidence. The application of the same rules and procedures for access to all SPs will improve legal certainty and clarity both for SPs and LEAs which is currently lacking under the existing mechanisms of cooperation. In several aspects the framework serves as a model to be followed in the international arena. However, further improvements can be recommended:

There should be only an exceptional involvement of the enforcing MS as proposed by the Council, so that the framework does not replicate the existing judicial cooperation models.
The wording of Article 7a in the Council draft could be amended to allow for the enforcing MS to raise objections on behalf of any affected state.
Service Providers should maintain their reviewing powers of production and preservation orders, given the unique position they are in to understand the data. A productive dialogue and close cooperation between SPs and the issuing authorities should be promoted in the earliest stages.
The framework should specify the definition of e-evidence and should provide for its inadmissibility in cases of breaches of the requirements specified therein.
The data categories need to be better defined and brought in line with other EU and international legal instruments, as well as the jurisprudence of CJEU and ECtHR. The draft presented by EU Parliament is a positive step in that direction.
Judicial validation of orders issued by non-judicial authorities should be imperative for all types of data as a form of control and safeguard against abuse or overuse.
A classification of investigating authorities by means of a schedule in the proposed framework would help to better define the permitted activities within the scope of the Regulation.
A provision that clearly prohibits the production or use of e-evidence in cases contrary to the ne bis in idem principle should be included in the final draft.
The final instrument should adopt the approach proposed by the Commission regarding confidentiality and subject notification with an obligation for the issuing authority to inform the person whose content or transactional data are sought in all cases (even though delays should be permitted).
The right to exercise legal remedies should be extended to the enforcing MS and/or the MS of residence of the suspect.
There should be provisions that enable defendants or other parties in the criminal proceedings to access or request e-evidence. The accessibility of electronic data to the suspects / defendant’s lawyer should be ensured in order to assert their rights effectively.

If implemented, these recommendations would improve the e-evidence framework by ensuring a balance between effective criminal investigations/prosecutions and respect for fundamental rights. A balanced and principled approach should be at the core of any existing or forthcoming instruments concerning cross-border access to electronic information.

Van Ho Quoted in The Nation on Business and Human Rights Claims against Unilever

25 Feb 2021 / essexlawresearch / Leave a comment

Tea planation, Kenya | Source: Wikimedia Commons

In the cover article of The Nation’s 8-15 February issue, Dr. Tara Van Ho, Lecturer in Law at the University of Essex, asserts that businesses operating in Kenya should have predicted that the 2007 national election would result in violence and taken appropriate measures to protect ethnic minority workers.

In ‘Blood on the Tea Leaves,’ author Maria Hengeveld details the story of ‘Anne,’ a worker at a tea plantation in Kenya. The plantation is owned by a subsidiary of London-based Unilever, a multinational purveyor of household goods. Anne, her husband, and her daughters were raped in their home on the plantation. Her husband was one of 11 plantation residents killed. Those who were tortured and killed were members of minority ethnic groups that were believed to have opposed the politician favoured by the population in the area surrounding the plantation. Anne and her co-complainants have argued that Unilever had a responsibility to ensure their safety in light of the severity of the harm posed to them from election-related violence. Dr. Van Ho concurs.

After a tort case against Unilever was dismissed by the English Court of Appeal, the Kenyan claimants wrote to the UN Working Group on Business and Human Rights. The Working Group has a mandate to receive complaints that either a state or business (and sometimes both) has failed to meet the standards set out in the UN Guiding Principles on Business and Human Rights, currently the most authoritative statement on the responsibilities of businesses and states when the former harms human rights. The Working Group can intervene to encourage businesses to abide by their responsibilities, and to correct misinterpretations or misapplications of the Guiding Principles.

In The Nation article, Dr. Van Ho indicates that Unilever’s efforts to prevent Anne and others from accessing an adequate remedy run afoul of what the Guiding Principles expect of businesses.

Dr. Van Ho, her Essex Business and Human Rights Project (EBHR) co-director Dr. Anil Yilmaz Vastardis and Lisa Kadel (then an Essex LLM student and EBHR frontrunner), have previously criticized the English Court of Appeal decision.

Dr. Van Ho also has an upcoming article in the Human Rights Quarterly that examines when a business incurs a responsibility to provide remedies.

International Law and Regional Norm Smuggling

23 Feb 202123 Feb 2021 / essexlawresearch / Leave a comment

Dr. Marija Jovanovic, Lecturer in Law at the University of Essex, had a new article published in The American Journal of Comparative Law titled ‘International Law and Regional Norm Smuggling: How the EU and ASEAN Redefined the Global Regime on Human Trafficking’.

The article examines how the regional organizations in Europe and Southeast Asia have redesigned the global regime on human trafficking established by the United Nations Palermo Protocol to suit the dominant regional agendas in the European Union (EU) and the Association of Southeast Asian Nations (ASEAN).

Map indicating locations of European Union and ASEAN | Source: Wikimedia Commons

In seeking to consolidate and coordinate the implementation of the global anti-trafficking action across their respective member states, these regional actors have shaped and promoted fundamentally different understanding of the phenomenon of human trafficking and the actions needed to address it.

These findings challenge general assumptions about the universality and coherence of the growing international legal framework on human trafficking and show the capacity of regional actors to redefine international treaties in line with their specific mandates, pressing concerns and dominant agendas.

Dr. Jovanovic’s article can be accessed through the publisher’s website here.

ICO Targets Companies for Seeking to Illegally Make Profit from the Current Public Health Emergency

18 Feb 2021 / essexlawresearch / Leave a comment

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 24 September and 8 October 2020, the Information Commissioner’s Office (ICO), the United Kingdom’s independent body established to uphold information rights, imposed fines on two companies for sending thousands of nuisance marketing texts and unlawful marketing emails at the height of the current pandemic.

In September 2020, Digital Growth Experts Limited (DGEL) was issued with a monetary penalty of GBP 60,000 in relation to a serious contravention of Regulations 22 and 23 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). The PECR provide for specific privacy rights in relation to electronic communications. They include rules on marketing calls, emails, texts and faxes; cookies (and similar technologies); keeping communications services secure; as well as on customer privacy in relation to traffic and location data, itemised billing, line identification, and directory listings. Under the 2003 Regulations, ICO has the power to impose a monetary penalty of up to GBP 500,000 on a data controller.

The Commissioner found that between 29 February and 30 April 2020, DGEL had transmitted 16,190 direct marketing texts promoting a hand sanitising product, which was claimed to be “effective against coronavirus”. The company came to the attention of the Commissioner after several complaints were received via the GSMA’s spam reporting tool (the GSMA is an organisation that represents the interests of mobile operators worldwide).

In the course of the investigation, DGEL was unable to provide sufficient evidence of valid consent (as required by PECR) for any of the messages delivered to subscribers over the relevant period. The company’s explanations for its practices and the means by which it had obtained the data used for its direct marketing were found to be “unclear and inconsistent”.

DGEL had also used data obtained via social media ads which purported to offer free samples of the product to individuals, to automatically opt them into receiving direct marketing without advising them that their data would be used for this purpose, and without giving them (at the point the data was collected) a simple way of refusing the use of their contact details for direct marketing.

In October 2020, ICO again took action against a London-based software design consultancy, Studios MG Limited (SMGL), which had sent spam emails selling face masks during the pandemic. The company was fined GBP 40,000 for having transmitted unsolicited communications by means of electronic mail for the purposes of direct marketing, contrary to Regulation 22 of PECR.

More specifically, on 30 April – in the midst of the pandemic – SMGL sent up to 9 000 unlawful marketing emails to people without their permission. SMGL did not hold any evidence of consent for the individuals it had engaged in its one-day direct marketing campaign. ICO held that SMGL’s campaign had been made possible by using “data which had been scraped from various vaguely defined sources”.

ICO’s examination also found that SMGL’s director had decided to buy face masks to sell on at a profit, despite the fact that the company bore no apparent relation to the supplying of personal protective equipment (PPE). Moreover, it was impossible in SMGL’s case to determine the total number of individuals whose privacy had been affected, as the company had deleted a database with key data evidencing the full extent of the volume of emails delivered.

During the pandemic, ICO has been investigating several companies as part of its efforts to protect people from exploitation by unlawful marketing-related data processing activities. The ICO Head of Investigations said in a statement that DGEL “played upon people’s concerns at a time of great public uncertainty, acting with a blatant disregard for the law, and all in order to feather its own pockets.” A hard line was also taken in relation to SMGL. The Head of Investigations stated that “nuisance emails are never welcome at any time, but especially when people may be feeling vulnerable or worried and their concerns heightened.”

This article first appeared on the IRIS Merlin database of the European Audiovisual Observatory and is reproduced here with permission and thanks. Read the original article here.

When Business Harms Human Rights: Affected Communities that are Dying to be Heard

16 Feb 2021 / essexlawresearch / Leave a comment

Dr. Tara Van Ho (University of Essex, School of Law), Professor Jena Martin (West Virginia University, College of Law) and Professor Karen Bravo (Indiana University Robert H. McKinney School of Law)

When Business Harms Human Rights: Affected Communities that Are Dying to be Heard, edited by Jena Martin (West Virginia U), Karen Bravo (Indiana U) and Essex Law School’s Tara Van Ho uses reported narratives to examine how businesses harm human rights. Each of the ten chapters tell a different story, using first-hand narratives from individuals and communities.

In doing so, the book reveals common experiences despite different legal and cultural systems, with victims identifying how businesses have failed to conduct appropriate due diligence and how existing legal structures are inadequate for ensuring victims can access appropriate remedies when their human rights are harmed.

In her own chapter, Dr. Van Ho examines how a mining company upended the lives and communities surrounding the village of Cajamarca, Colombia, by planning to exploit resources without consultation and in a manner that threatened the water safety and security of an entire region.

When Business Harms Human Rights (Anthem Press, 2021)

While many books briefly feature the experiences of victims, this book is intended to place victims at the centre of their own story. In response to the reported experiences, the editors draw important conclusions and make a series of proposals for international and domestic policymakers. When Business Harms Human Rights: Affected Communities that Are Dying to be Heard is available from Anthem Press (260 pages; £80.00, $125.00).

Van Ho Quoted in Vogue Business on Forced Labour in Xinjiang, China

11 Feb 202111 Feb 2021 / essexlawresearch / Leave a comment

Recent reports that the government of China has been forcing members of the Muslim minority Uyghur community to labour in the supply chains of western companies have raised a series of questions for other governments and individual businesses about how to respond to such an egregious violation of international human rights law standards.

Annachiara Biondi from Vogue Business has covered the story with a focus on the cotton supply and fashion retailers, and they have turned to Essex Law School’s Dr. Tara Van Ho for guidance on the appropriate standards to be employed.

In a September 2020 article, Dr. Van Ho helped explain the differences between the EU and US approaches to the revelations. In a January 2021 article, she considered the legitimacy and adequacy of the UK’s new controls.

As Dr. Van Ho explains in the January article, the severity of the alleged violations in Xinjiang call for a strong response to ensure that UK companies are not contributing to the violations by using forced labour in their supply chains. Measures announced by the UK government last month, Dr. Van Ho concludes, are not yet strong enough.

Climate Litigation in the United Kingdom

9 Feb 202112 Feb 2021 / essexlawresearch / Leave a comment

Dr Birsha Ohdedar, Lecturer in Law, University of Essex, has published a new chapter, co-written with Steven McNab (Partner, Cleantech Cadre) on Climate Litigation in the United Kingdom. The chapter is published in M. Weller & W. Kahl (eds.) Climate Change Litigation: A Handbook (CH Beck 2021).

Ohdedar and McNab examine both the history of climate litigation and emerging trends in the United Kingdom. As they point out, the Courts in the United Kingdom have kept away from the global spotlight in many ways, not producing high profile cases that have grabbed headlines like those in the Netherlands or Pakistan. However, there has been a growing suite of climate-related jurisprudence in the United Kingdom covering a breadth of different areas of law. In fact, by some measures, the United Kingdom has the third most recorded climate litigation cases in the world.

Analysing the emerging trends of climate litigation in the United Kingdom, Ohdedar and McNab identify and discuss three types of litigation:

public/administrative law litigation against the government’s climate targets and standards;
litigation stemming from a transition to a low-carbon society (that is, litigation against fossil fuel intensive projects, such as fracking and airport runways, and for low carbon projects, such as renewable energy development); and
criminal litigation that targets climate activists and climate protests.

The chapter provides a bird’s eye view of many cases in these three categories linking back to broader themes of climate litigation globally.

The chapter is a valuable resource for practitioners, researchers and students and complement the comparative approach of the Handbook.

A copy of the chapter is available on Researchgate.net and Academia.edu.

The Forever War and the Laws of War

21 Jan 2021 / essexlawresearch / Leave a comment

Dr. Nathan Derejko, Lecturer in Law, University of Essex

The looming threat of a ‘forever war’, characterised by the so-called ‘Global Battlefield’ and the perpetual applicability of International Humanitarian Law (IHL), has thrust the question of when and how Non-international Armed Conflicts (NIAC) end to the forefront of international concern and debate. In both practical and legal terms, identifying the end of a NIAC is notoriously difficult. There are several reasons for this, but two in particular should be highlighted.

First, is the complex spectrum of social, political and economic factors that underpin, propel, and ultimately bring NIACs to an end. Indeed, history is replete with NIACs spanning several years and, in some cases, several decades.

Second, is the virtual silence of IHL regarding its temporal scope of application during NIAC. While conventional IHL speaks of the ‘end of hostilities’ and the ‘end of the conflict’, it stops short of providing any guidance on the precise meaning and scope of these expressions, or the relationship between them.

These factors are further compounded by a comparative dearth in legal scrutiny of when and how NIACs end. While considerable judicial and academic analysis has focussed on IHL’s threshold of activation (when a NIAC legally comes into existence), much less attention has been given to its threshold of termination (when a NIAC legally ends).

In a recent article, A Forever War? Rethinking the Temporal Scope of Non-International Armed Conflict (published in the Journal of Conflict and Security Law), I undertake a forensic examination of IHL’s threshold of termination during NIAC.

The article first explores the temporal architecture of Common Article 3 and Additional Protocol II to determine what, if anything, IHL has to say about its threshold of termination. From here, it unpacks and critically examines two of the leading approaches for determining IHL’s threshold of termination during NIAC: the ‘peaceful settlement’ approach advanced in the jurisprudence of International Criminal Law; and the ‘lasting pacification’ approach advanced by the International Committee of the Red Cross.

While both of these approaches possess advantages and limitations, it is argued that neither produce entirely satisfactory results for determining IHL’s threshold of termination during NIAC. In short, their common ailment is a quest for a single point in time that marks the ‘end’ of a NIAC, and at which point IHL terminates in toto. In practice, such an approach invariably results in the over-extension of IHL to factual circumstances that no longer warrant its application, or by the termination of its applicability before comprehensive protection is restored under International Human Rights Law.

For these reasons, the article develops and proposes an innovative ‘functional approach’ for determining IHL’s threshold of termination during NIAC, which addresses the silence and shortcomings of existing law and doctrine, while at the same time, holds true to the very object and purpose of IHL during NIAC.

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