Christine Kaufmann, Konzernverantwortungsinitiative: Grenzenlose Verantwortlichkeit?, SZW 2016, p. 45-54.
Christine Kaufmann – Konzernverantwortungsinitiative Grenzenlose Verantwortlichkeit
Summary
Prof. Dr. Christine Kaufmann’s essay addresses the content of the federal popular initiative on the creation of a new Art. 101 of the Swiss Federal Constitution. This initiative, which was launched on April 21st, 2015, aims at requiring Swiss domiciled companies to respect human rights and environmental standards globally.
The initiative is primarily based on the Guiding Principles on Business and Human Rights (known as the “Ruggie Principles”), which have been unanimously endorsed by the UN Human Rights Council. The aforementioned principles should be implemented by a “smart mix” of compulsory and voluntary measures; their effect is therefore undoubtedly to be qualified as soft law.
This responsible business initiative would introduce a legally binding duty of care for companies. The promoters of the initiative find their expectations confirmed, inter alia, by the finding of the Swiss Federal Council according to which “[a]s a hub of several globally active companies, Switzerland has a great responsibility with regard to the respect of human rights and the environment, namely also in countries with an inadequate rule of law”.
The provisions to be adopted by the legislator should be addressed to companies with a head office or main branch that is, according to their Articles of Associations, in Switzerland. The promoters of the initiative call for the legislator to draft the new business duties as overriding mandatory rules and therewith as compulsory provisions, which are applicable regardless of the lex causae according to art. 18 Federal Code on Private International Law (CPIL). Overriding mandatory rules take account of “significant interests of the social, political or economic order” and, therefore, their reservation can be described as positive ordre public. However, the promoters of the initiative do not wish to obtain a “catch-all-provision” in the terms of an ordre-public-reserve clause pursuant to art. 17 CPIL; instead, they aim for a compulsory norm, with an application that is mandatory, regardless of what the foreign law provides.
Prof. Kaufmann observes that the initiative reflects the international consensus insofar as it promotes a human rights and environment-oriented duty of care for groups of companies with regard to both their own activities and for those of their business partners. Furthermore, a clear definition of responsibilities in cases of negative human rights and environmental impacts occurring in a foreign country provides for legal certainty and improves competitiveness. Nevertheless, Prof. Kaufmann is of the opinion that the initiative goes, in part, beyond the objective. She argues that existing concepts, such as the duty of care according to art. 717 of the Swiss Company Law (CO), the emergency jurisdiction pursuant to art. 3 CPIL and the ordre public according to art. 17 CPIL, are necessary for the avoidance of conflict of law problems. Additionally, the option of embedding a potential liability basis in the regulatory environment, where Switzerland and Swiss companies are active, has to be carefully re-assessed. This is also because several goals of the initiative could be implemented through already existing norms.
Prof. Kaufmann concludes that the initiative joins a nationally and globally launched discussion which can no longer be stopped. It remains undisputed that with their business activities Swiss companies can contribute to human rights and the environment.