A/HRC/38/49 25. During the discussions held on an international legally binding instrument, participants referred to the draft “elements” issued in 2017 to serve as a basis for negotiations among States. The substantive points suggested for a treaty to bridge existing gaps included: • Civil liability in home countries of transnational corporations • Barriers to justice related to the forum non conveniens legal doctrine • Reversing the burden of proof in favour of victims • Legal requirements for companies to exercise human rights due diligence in accordance with the Guiding Principles • Barriers to class actions • Uneven compensation standards (and consequently potentially skewed incentives for transnational corporations) across regions • Legal assistance to victims 26. A range of different views on whether an international instrument would be the best way forward in closing the current accountability and remedy gaps was represented. 27. With regard to legal developments relating to access to remedy in cases involving transnational corporations, Forum participants highlighted developments in some jurisdictions, such as in English law regarding parent company liability, where this principle had been invoked in a handful of cases in order to frame access to remedy. Claims had been brought against parent companies domiciled in the United Kingdom of Great Britain and Northern Ireland, where jurisdiction depended on whether duty of care of a parent company in relation to actions of a subsidiary could be imposed. One question discussed was whether corporate reporting on human rights risks could increase exposure to the risk of litigation or actually demonstrate that due diligence had been exercised. 28. Another example centred on laws in North America, which could provide — though not in a straightforward manner — avenues for remedy, all of which predated the Guiding Principles. In the United States of America, in addition to the Alien Tort Statute, the extraterritorial reach of which was limited by the Supreme Court in 2013 (in Kiobel v. Royal Dutch Petroleum), other avenues included the Trafficking Victims Protection Reauthorization Act (civil and criminal liability in trafficking and forced labour) and the Global Magnitsky Act (sanctions against human rights abusers in other countries). In Canada, a number of cases had been brought against Canadian mining companies relating to human rights abuses committed in third countries, some of which were moving to trial as tort cases. Historically, such cases were rejected on grounds of forum non conveniens, but the judicial interpretation was changing. 29. It was suggested that regulations such as the Modern Slavery Act in the United Kingdom, the draft anti-slavery act in Australia and the non-financial reporting directive of the European Union did not by themselves improve access to remedy, as this was not their purpose. They did, however, play an important preventive role by promoting more effective risk management through human rights due diligence. D. Strengthening State-based non-judicial remedy 30. Participants discussed the policy implications of findings made in a discussion paper prepared in the context of the OHCHR Accountability and Remedy Project II, 6 which focused on improving the effectiveness of State-based non-judicial mechanisms. 31. It was generally agreed that State-based non-judicial mechanisms provided specific benefits, such as a reduction in certain financial barriers prevalent in legal proceedings, and greater accessibility and faster resolution. It was also suggested, however, that despite these 6 8 See www.ohchr.org/EN/Issues/Business/Pages/ARP_II.aspx.