A/HRC/37/67
such as nationality, passive personality and the protective principle. Going beyond
traditional bases of jurisdiction could raise several issues. For instance, too much reliance
on home State jurisdiction could act as a disincentive for host States in ensuring access to
justice. Additionally, an expansive view of jurisdiction had the potential to violate the
territorial integrity and sovereign equality of States, principles which were reaffirmed in the
preamble of the elements document. However, panellists considered that those risks were
overstated as that section did not authorize extraterritorial enforcement jurisdiction, and
risks associated with such jurisdiction were allayed with the inclusion of a section on
international cooperation.
108. With respect to specific provisions, delegations expressed most concern with the
provision authorizing jurisdiction over subsidiaries throughout the supply chain domiciled
outside States’ jurisdiction. Additionally, concern was raised about the provision permitting
jurisdiction over abuses alleged to have been committed by transnational corporations and
other business enterprises throughout their activities, including their branches, subsidiaries,
affiliates, or other entities directly or indirectly controlled by them. They argued that that
wording was too broad and could cover legal entities with little connection to the forum
State.
109. Clarification was sought as to the provision permitting claims by victims within a
State’s jurisdiction. It was queried whether that referred to nationals, residents or something
else.
110. Additionally, it was proposed that certain provisions be added to that section. Some
delegations and NGOs suggested explicitly prohibiting the use of forum non conveniens.
Another delegation and NGO recommended adding a provision to address the conflict of
laws. Calls were made to address conflict situations, as local courts were often unavailable
in situations of armed conflict. One delegation suggested that jurisdiction over online
enterprises be addressed. Furthermore, it was proposed that universal jurisdiction be
established for conduct constituting international crimes.
H.
Panel VIII. International cooperation
111. The first panellist noted the importance of that section given our globalized,
fragmented economy. He suggested two ways to strengthen that section. First, by including
subsections addressing cooperation in investigative, prosecutorial, administrative systems,
and criminal and civil court systems separately. Second, by establishing a public register to
help with the coordination of research.
112. The second panellist discussed how cooperation should generally address treaty
implementation, helping States with national implementation and enforcement of
judgments. To ensure appropriate cooperation, States should (a) ensure access to
information for investigatory functions, (b) adopt rules to ensure mutual judicial
cooperation, (c) ensure adequate standards of due process, (d) consider reflecting the
principle of comity in the instrument, and (e) draw inspiration from existing instruments
and standards.
113. Many delegations and NGOs agreed on the importance of international cooperation.
One of the main obstacles to effective regulation of transnational corporations was the fact
that they operated in multiple jurisdictions; thus, cooperation between States was necessary
to ensure abuses were properly addressed. NGOs shared cases in which victims were
unable to obtain redress due to a lack of international cooperation. Major obstacles to
justice for those victims, such as difficulties in obtaining information, could be rectified
with proper cooperation among States. Thus, it was important for States to agree on certain
standards to ensure efficient investigation, prosecution and enforcement. Some delegations
referred to other processes and instruments for guidance, such as the United Nations
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