Dr. Tara Van Ho, Lecturer in Law at the University of Essex, spoke on the responsibility of corporations under international law at the 40th anniversary celebrations of the Urban Morgan Institute for Human Rights at the University of Cincinnati School of Law in the US.
Dr. Van Ho, a co-President of the Global Business and Human Rights Scholars Association, was asked to discuss the international legal standards relevant to addressing business impacts on human rights.
After outlining the expectations in the UN Guiding Principles on Business and Human Rights, currently the most authoritative statement on the issue, Dr. Van Ho focused on the difficulty victims face in securing remedies. These include, but are not exclusive to, states that are unwilling and unable to ensure victims can hold corporations accountable and complex corporate structures that limit the ability of victims to pursue people abroad.
When states like the US take administrative action to sanction businesses, the fines paid rarely go to support the victims but instead benefit the treasury of the enforcing state. There is room for hope, however. As Dr. Van Ho explained, businesses can embed respect by human rights by ensuring they speak about human rights responsibilities, empower employees and others to raise concerns through independent grievance and complaint mechanisms, and ensuring their incentive structures encourage managers and employees to take human rights seriously. This has been done successfully by some businesses.
The Urban Morgan Institute is the oldest endowed human rights centre at a law school in the world. There is a rich history of collaboration between Essex and Cincinnati.
The Urban Morgan Institute houses the Human Rights Quarterly, the world’s leading interdisciplinary journal on human rights, which has provided a venue for research works from several Essex faculty members.
The Essex Human Rights Centre‘s first director, Kevin Boyle, and the Urban Morgan Institute’s Director for its full 40-year history, Bert Lockwood, were long-term friends and colleagues. Professor Lockwood served as a visiting lecturer at Essex for a year when Professor Boyle was asked to serve at the UN.
A few years later, the late Sir Nigel Rodley, the long-term Chair of the Essex Centre, visiting Cincinnati to receive the Butler prize for his work on human rights and to deliver a speech on the prohibition of torture.
Dr. Van Ho is a graduate of the educational programmes at both centres.
Dr Onyeka Osuji, Reader in Law at the University of Essex, recently presented his research on mandatory modern slavery disclosure at two international conferences.
Disclosure
is an emergent regulatory strategy for corporate social responsibility (CSR) in
certain jurisdictions despite its original conception as a voluntary management
tool. As exemplified by recent anti-modern slavery legislations in some
jurisdiction, disclosure is growing in significance and reach. In extending
social responsibility to global supply chains, disclosure regulation implicitly
references ideas of gatekeeper responsibility and glocalisation and overcomes
the extraterritorial limitations of substantive regulation.
Anti-modern slavery legislations by California in 2010, the UK in 2015 and Australia in 2018 reflect the regulation by information approach based on a universal revenue threshold. The goal of the regulatory strategy appears to be two-fold. On the one hand, disclosure requirements may promote the awareness of modern slavery and encourage businesses to eliminate or reduce its existence in their operations, supply and purchasing chains. On the other hand, information generated through reporting requirements will be used by stakeholders like consumers and investors factor in purchasing and investment decisions. This market-based approach indirectly relies on stakeholder pressure to compel businesses to address modern slavery.
This research examines the underlying assumptions for disclosure-oriented modern slavery legislations. These assumptions include leverage and political CSR, adequacy of a revenue threshold test for the capacity to confront modern slavery in operations, supply and purchasing chains, business case justifications for CSR, and an activist and vibrant stakeholder group of investors, consumers and civil society.
The paper demonstrates the various limitations of the disclosure regulatory strategy of the modern slavery legislations and argues that it is at the lowest end of a hierarchy of effective legislated CSR. Alternative thresholds, including sector-based and regional approaches, may reflect the degree of risk and need for awareness and therefore approximate to the contextual understanding of CSR and its priorities. The reliance on the market-based reputation and stakeholder information regulation excludes direct positive and negative incentives for compliance. It may encourage symbolic statements of corporate policies and processes rather than substantive compliance and quality reporting of steps undertaken to reduce risks. The lack of provisions for monitoring, verification and enforcement and for responsibility, liability and accountability creates the potential for a “promise-performance gap” exemplified by deceptive and misleading statements.
This research was presented at the 18th International Conference on Corporate Social Responsibility (CSR) and 9th Organisational Governance Conference ‘CSR: Public and Private Perspectives’, Barcelos, Portugal (10-13 September 2019) and at the one-day conference ‘Critical Perspectives on “Modern Slavery”: Law, Policy and Society’, organised by the Wilberforce Institute for the Study of Slavery and Emancipation, University of Hull (30 October 2019).
Dr Georgios Zouridakis, Lecturer in Law at the University of Essex, has published a new chapter in the edited collection Cross-Border Mergers: EU Perspectives and National Experiences (Springer 2019).
Dr Zouridakis’ study shows that shareholders championing corporate interests may face several obstacles following cross-border mergers within the EU, depending on whether the suit is temporally prior to the merger or vice versa. The fact that, post-merger, the company ceases to exist (and is succeeded by another entity in another jurisdiction), gives rise to issues regarding the application of rules intrinsic to the mechanics of derivative suits and particularly those on: continuous ownership; contemporaneous ownership; costs; and on the requirement for shareholders to first demand the board to take action.
Given that the derivative suit, in all its variations, is a form of shareholder-led representative action, provided by most European countries – and often the only such available – this chapter argues in favour of a policy facilitating such shareholders’ enforcement of corporate claims in the cross-border merger context.
Dr Zouridakis’ chapter is included in the collection Cross-Border Mergers, which was edited by Dr. Thomas Papadopoulos and published by Springer in October 2019.
This edited volume focuses on specific, crucially important structural measures that foster corporate change, namely cross-border mergers. Such cross-border transactions play a key role in business reality, economic theory and corporate, financial and capital markets law. Since the adoption of the Cross-border Mergers Directive, these mergers have been regulated by specific legal provisions in EU member states.
This book analyses various aspects of the directive, closely examining this harmonised area of EU company law and critically evaluating cross-border mergers as a method of corporate restructuring in order to gain insights into their fundamental mechanisms. It comprehensively discusses the practicalities of EU harmonisation of cross-border mergers, linking it to corporate restructuring in general, while also taking the transposition of the directive into account.
Exploring specific angles of the Cross-border Mergers Directive in the light of European and national company law, the book is divided into three sections: the first section focuses on EU and comparative aspects of the Cross-border Mergers Directive, while the second examines the interaction of the directive with other areas of law (capital markets law, competition law, employment law, tax law, civil procedure). Lastly, the third section describes the various member states’ experiences of implementing the Cross-border Mergers Directive.
On 11 September 2019, the Advertising Standards Authority (ASA), the UK’s advertising regulator, found that claims on the website of an essay writing service lacked adequate substantiation and breached the Authority’s rules on misleading advertising.
What was the ad about?
The ASA’s remit includes, since 2011, claims made by companies on their own websites and in social media spaces under their control. The contested advertisement appeared on the website http://www.proacademichelp.co.uk, which included on its home page the following text:
EXCELLENCE BEGINS HERE… There [sic] no better place than Proacademichelp.co.uk to get the best academic help. Professionals [sic] Assistance by highly qualified experts… FIRST ORDER DONE FOR FREE*
Services listed on the website included assignments and dissertations for several subjects including law, engineering and marketing. Further text read:
Quality Essays We don’t offer plagiarized or duplicate essay content. Our content is 100% original. Quality is what comes first for us.
Under the page titled ‘Essays’, additional text included the following statements:
Best Essays by Oxford and Cambridge Experts… We provide accurate and possibly best essays that are of highest standards. Our expert essayists make sure that they deliver you a first-rate quality of essay…
A disclaimer available on the website read in smaller text:
Proacademichelp.co.uk is offering services pertaining to editing, proofreading, formatting and consultation through its website while ensuring to comply with the laws and ethical norms of the industry. We do NOT [emphasis in the original] own any work given to us by clients. We do not offer any sort of writing services.
What were the regulatory issues raised?
One complainant challenged whether the statement ‘FIRST ORDER DONE FOR FREE*’ could be substantiated. Additionally, the ASA felt there were reasons for further investigation and queried whether the claim ‘best essays by Oxford and Cambridge experts’ could also be adequately substantiated and whether the website misleadingly implied that students could submit an essay they had bought as their own.
What was the ASA’s decision?
First of all, advertisers are required under the ASA’s Non-Broadcast Advertising Code (CAP Code) to address the regulator’s enquiries without delay. In an apparent disregard for the Code, Proacademichelp.co.uk provided no response. This resulted in a finding of breach of Rule 1.7 of the CAP Code (unreasonable delay).
Second, the ASA upheld the single complaint against the ad because it found no evidence that the claim ‘first order done for free*’ was a genuine offer. The statement on the website did not include any information about how to obtain the ‘free’ order, nor did it identify any further limitations or qualifications attached to it. As such, it failed to clarify the extent of the commitment the consumer must make to benefit from a free offer in breach of Rule 3.23 of the CAP Code.
Third, the ASA challenged the statement ‘Best Essays by Oxford and Cambridge Experts’. This was sensibly taken to imply that students who selected this essay writing service would receive high-quality essays from individuals who had attended prestigious Oxbridge institutions. Although this claim was likely to be regarded by consumers as objective, no evidence was provided whatsoever by Proacademichelp.co.uk to substantiate it. As a result, the ASA found that it violated its general principle under Rule 3.1 of the CAP Code, which requires advertisers to avoid including materially misleading statements in their commercial messages.
Last but not least, the regulator took issue with Proacademichelp.co.uk’s claims that the essays would be plagiarism-free. It considered that students likely to read them would understand that they could purchase and submit essays as their own without any consequences. The website did not, however, make clear that this was not the case and as such, it was found to have mislead consumers by omitting material information in breach of Rule 3.3 of the Code. The ASA also noted that the disclaimer provided was ‘insufficient’ to neutralise the unsubstantiated claims about non-plagiarised professionally written essays. The regulator concluded:
We told [Proacademichelp.co.uk] not to use the claim ‘best essays by Oxford and Cambridge experts’ and not to imply that students could submit an essay that they bought as their own without risks.
This is not the first time the ASA has grappled with claims made by essay writing companies. In 2013, the Authority ruled that Oxbridgeessays.com had breached its CAP code by offering a money-back guarantee that customers would receive ‘at least the grade they ordered’. Commissioning custom essays is a rapidly growing problem, which the higher education sector and legislation has been slow to address. Also known as ‘contract cheating’, this practice compromises the fairness of the assessment process and presents a real threat to academic integrity. A study conducted by Swansea University found that one in seven students globally is believed to have paid for someone to produce their assignment, ‘potentially representing 31 million students around the world’.
Offering a product which (the presence of disclaimers notwithstanding) can be used for the purposes of cheating in a programme of study is not compliant with the ASA’s core principle, which requires marketing communications to be ‘legal, decent, honest and truthful.’ The UK Advertising Code will not, however, apply to non-UK based websites offering custom essay writing services. This approach may have limited impact considering that many of these websites are based overseas (and are thus beyond the ASA’s jurisdiction). Nevertheless, the ASA’s ruling is a useful reminder that providers’ unsupported claims that their essays are ‘100% original’ or ‘100% plagiarism free’ are misleading and far from honest. Although such an advertised essay may not include any plagiarised text per se, submitting it and representing it as the student’s own work can amount to an act of plagiarism, which is a serious academic offence.
On 14 June 2019, the Advertising Standards Authority, the UK’s advertising watchdog, introduced new rules which target ads featuring gender stereotypes likely to cause harm, or serious or widespread offence. The ban was imposed because the regulator found some portrayals could contribute to “limiting people’s potential”.
Dr. Alexandros Antoniou, Lecturer in Media Law, takes a look at the first ever ads to have been formally investigated by the Authority under its new rules. His piece on The International Forum for Responsible Media, can be accessed here.
10 May 2019 10.00am – 5.00pm University of Essex, Wivenhoe Park, Colchester, CO4 3SQ
The
UK’s withdrawal from the EU will result in far-reaching, significant
consequences for the regulatory spheres of both the UK and the remaining Member
States. Even after the completion of the withdrawal process, EU laws will still
impact businesses operating in the UK, both directly and indirectly. Fields
which are most likely to be affected include product specifications,
competition, employment, health and safety, banking and financial services,
company law, insolvency, consumer protection and insurance. Despite this, there
continues to be gaps in the research which has been carried out to explore the
ultimate consequences of Brexit on the business regulatory environment.
This
workshop, organised by the Commercial Law Cluster at the University of Essex,
aimed to cover this research gap by exploring the opportunities and risks faced
by UK business in this time of legislative change. In particular, this workshop
focused on three key legal fields: (i) finance and banking law; (ii) corporate
law; and (iii) maritime and insurance law.
The purpose of this workshop was to raise awareness and foster debate on the rules that will govern the UK after Brexit. The regulatory changes for each of these three economic sectors were discussed in separate panels. In each panel, invited speakers provided an overview of the opportunities and challenges faced by businesses. Invited discussants then complemented these presentations with views from both academia and legal practice.
The
programme and speakers included:
Welcome: Professor Theodore
Konstadinides (University of Essex)
Keynote Presentation: Professor Takis
Tridimas (King’s College London; Matrix Chambers)
Session One: Finance
and Banking
Financial Markets: Professor Stuart Weinstein (Aston University) and Dr Flora Huang (University of Essex)
Banking Supervision: Dr Menelaos Markakis (Erasmus University Rotterdam) and Dr Anastasia Karatzia (University of Essex)
Session Two: Corporate
Law
Chair: Dr Eugenio Vaccari
Company Law: Professor Janet Dine (Queen Mary University of London) and Dr Marios Koutsias (University of Essex)
Insolvency Law: Hamish Anderson (Norton Rose Fulbright) and José Carles (Carles Cuesta Abogados y Asesores Financieros, Madrid)
Employment Law: Dr Jennifer Gant (University College Cork) and Dr Niall O’Connor (University of Essex)
Session Three:
Maritime, Shipping and Insurance
Chair: Dr Lijie Song
Shipping: Zoumpoulia (Lia) Amaxilati (Queen Mary University of London) and Dr Durand Cupido (University of Essex)
Insurance: Dr Keren Wu (University of East Anglia) and Dr Anna Antoniou (University of Essex)
Closing Presentation: Professor Steve Peers
(University of Essex)
Essex Law Research Blog 