A/HRC/37/67
aid. Additionally, the panellist noted the importance of recognition and enforcement of
judgments.
94.
The third panellist discussed how important it would be for victims to have access to
courts in the home States of transnational corporations. To better confront problems such as
piercing the corporate veil, he recommended reversing the burden of proof and improving
victims’ access to disclosure. He also suggested that damages should be based on home
State calculations, the abolishment of the “loser pays” principle, and inclusion of proper
cost-recovery mechanisms to encourage legal representation.
95.
Delegations and NGOs welcomed the inclusion of that section in the document,
noting that it was crucial to address gaps in legal protection and that doing so would
constitute important added value in a future instrument. In particular, efforts to remove
practical and legal barriers to effective access to justice were appreciated; however, some
NGOs warned that by listing specific barriers, it could be excluding those not mentioned. It
was suggested that the section should clearly state the right of everyone to have access to
remedy regardless of the perpetrator.
96.
A regional organization indicated that the assessment in the chapeau seemed
acceptable but questioned whether the provisions mostly restated existing obligations.
Another delegation suggested the complete removal of the section, arguing that a more
holistic approach was warranted and that the current approach would force States to adopt a
system that could be inappropriate in local circumstances. A business organization noted
that the root problem regarding access to justice was a lack of the rule of law, and the
instrument would need to find ways of incentivizing States to implement existing
obligations.
97.
States and many NGOs appreciated the inclusion of a provision emphasizing the
need for access to justice for vulnerable groups; however, it was suggested that more
empowering and positive language should be employed. Some NGOs recommended the
inclusion of language about the need for gender-sensitive access to justice and remedies.
An NGO also suggested that language from the United Nations Declaration on the Rights
of Indigenous Peoples should be included, in particular to recognize the different legal
systems and customs of certain communities. One delegation was concerned that specific
groups were being recognized at all, indicating that there would be unfair and special
treatment for those listed. A panellist disagreed, arguing that fairness dictated that different
groups be treated differently.
98.
Clarification was requested regarding the provision concerning non-judicial
mechanisms not being a substitute for judicial mechanisms. It was mentioned that recourse
to non-judicial mechanisms could be in the interest of victims, as they were sometimes
faster and more appropriate. One panellist agreed that non-judicial mechanisms had a role
to play, but argued that they were complementary, noting that judicial mechanisms should
always be available.
99.
Several NGOs appreciated the provision on reducing regulatory, procedural and
financial obstacles in access to remedy, in particular mentioning the importance of ensuring
class actions, access to information and limiting forum non conveniens. Many welcomed
the inclusion of a provision concerning the reversal of the burden of proof; however, one
business organization argued that that provision would upset the fair balance among the
parties and potentially violate due process. Panellists disagreed, noting that, in some cases,
raising a displaceable presumption would be appropriate, and that reversing the burden of
proof existed in some national systems.
100. Several delegations and NGOs welcomed a provision addressing the need to
guarantee the security of victims, witnesses and human rights defenders, although it was
questioned whether the provision went beyond what States were already obliged to do.
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