The modern corporation offers significant potential to contribute to the human rights project, in part because it is free from the challenges posed by national sovereignty. That promise has begun to be realized in businesses practicing corporate due diligence with regard to the human rights of persons involved in or affected by those enterprises. Yet due diligence preserves the self-seeking orientation of the conventional corporation and seeks only to protect itself from committing human rights abuses. This approach, typified (...) by the UN Guiding Principles on Business and Human Rights, does not address background conditions for and root causes of vulnerability to human rights abuses. My alternative, the human rights corporation, takes an other-regarding orientation that advances human rights within the corporation and in its human, social, economic, and natural environments. It moves beyond the due diligence carrot-and-stick model to a model in which the corporation produces not only goods and services but also human rights consciousness and practice as well. (shrink)

Abstract As non-state actors, PMSCs are not embraced by traditional state-dominated doctrines of international law. However, international law has itself failed to keep pace with the evolution of states and state-based actors, to which strong Westphalian notions of sovereignty are no longer applicable. It is argued that these structural inadequacies stand in the way of international regulation of PMSCs, rather than defects in international human rights and humanitarian law per se. By analyzing understandings of legal responsibility, where such structural issues (...) come to the fore, it is argued that, rather than attempting to resolve the essentially ideological dispute about the inherent functions of a state, regulatory regimes should focus on the positive obligations of states and PMSCs, and the interactions between them. Applying the results of this analysis, current and proposed regulatory regimes are evaluated and their shortcomings revealed. (shrink)

A nexus of imperfect duty, defined as positive commitments that have practical limits, describes business behavior toward building affable and virtuous relations, maintaining reasoned social discourse, and performing the due diligence necessary for making knowledgeable business decisions. A theory of the development and extent of the limits of these imperfect managerial duties is presented here, a theory that in part explains the activities and personnel included under the firm’s umbrella. As a result, the nexus of imperfect duty is shown (...) to complement the perfect-duty-based nexus-of-contracts theory of the firm. The existence of flexible trade-offs involving these duties, trade-offs limited by contractual arrangements whether explicit or implicit, is shown to be one of the advantages of imperfect duty for developing business relations. (shrink)

Retail corporations orchestrate much of what happens in today’s food supply chains. From setting sky-high cosmetic standards for fresh produce to bundling off close-to-expiry products at discounted prices, retail’s contribution to food waste often extends beyond its in-store numbers. By occupying a powerful position in a globalised food system, these corporations enable chronic overproduction and consequently, the removal of surplus food from supply chains. This, in turn, contributes to the unfair distribution and overexploitation of food resources, further exacerbating the globally (...) pervasive problem of food insecurity. To realise the right to food and the United Nations’ Sustainable Development Goal of halving global per capita food waste by 2030, we argue that retail corporations must be held accountable for their direct and indirect contribution to food waste. We posit that to make a tangible difference, they must move away from the current voluntary corporate social responsibility approach to food waste reduction and instead invest in robust due diligence mechanisms and transparent reporting systems in line with the UN Guiding Principles on Business and Human Rights and the upcoming EU Corporate Sustainability Due Diligence Directive. Based on Pillar II of the Guiding Principles, we propose a five-step approach to accountability for food waste that may lead to serious actions towards the relaxation of cosmetic standards, abolition of unfair trading practices, and improvement in demand forecasting, thereby reducing the volume of food that ends up as waste. (shrink)

This paper offers a critical overview of the newly proposed Corporate Sustainability Due Diligence Directive by the European Commission. The aim is to uncover potential opportunities, challenges, gaps, and contradictions, within the directive. We provide insights on how companies can effectively navigate through these issues and leverage upon the directive for more environmentally friendly and ethically sound operations within the global value chain. Ultimately, our aim is to offer researchers, managers, and policymakers a viewpoint on the potential impacts of (...) the new directive on organizations and provide future research directions around responsible corporate conduct across global value chains. (shrink)

Odious debts are debts incurred by a government without either popular consent or a legitimate public purpose. There is a debate within academic circles as to whether the successor government to a regime that incurred odious debts has the right to repudiate repayment.

The article is guided by two main research questions: First, do the Equator Principles (EPs), a voluntary CSR-initiative in the project finance sector, and the recently published working paper of the Thun Group of Banks adequately address the U.N. Guiding Principles on Business and Human Rights or do they fall behind the ‘Ruggie framework’? Second, is the demand for human rights due diligence sufficient to classify the EPs as a positive and leverage-based concept of CSR (à la Wettstein and (...) Wood) or is this requirement still a feature of a negative and impact-based concept of CSR? In case it is a negative and impact-based concept of CSR, the question comes up which further steps should be taken by financial institutions to fulfill their positive and leverage-based responsibilities. The article argues that positive and leverage-based responsibilities for multinational companies exist – due to the moral nature of human rights and due to the political authority of multinational companies – and that the current (Ruggie-like) requirements for human rights due diligence are not adequate for a positive and leverage-based concept of CSR. Further measures should be taken by multinational companies – and especially (Equator) banks which possess a high leverage-influence over their clients – to not only ensure the respect for human rights, but also the on-the-ground protection and realization of human rights. (shrink)

The ‘Guiding Principles on Business and Human Rights’ (Principles) that provide guidance for the implementation of the United Nations’ ‘Protect, Respect and Remedy’ framework (Framework) will probably succeed in making human rights matters more customary in corporate management procedures. They are likely to contribute to higher levels of accountability and awareness within corporations in respect of the negative impact of business activities on human rights. However, we identify tensions between the idea that the respect of human rights is a perfect (...) moral duty for corporations and the Principle’s ‘human rights due diligence’ requirement. We argue that the effectiveness of the ‘human rights due diligence’ is in many respects dependent upon the moral commitment of corporations. The Principles leave room for an instrumental or strategic implementation of due diligence, which in some cases could result in a depreciation of the fundamental norms they seek to promote. We reveal some limits of pragmatic approaches to coping with business-related human rights abuses. As these limits become more apparent, not only does the case for further progress in international and extraterritorial human rights law become more compelling, but so too does the argument for a more forceful discussion on the moral foundations of human rights duties for corporations. (shrink)

As recently stakeholders complain about the use of conflict minerals in consumer products that are often invisible to them in final products, firms across industries implement conflict mineral management practices. Conflict minerals are those, whose systemic exploitation and trade contribute to human right violations in the country of extraction and surrounding areas. Particularly, supply chain managers in the Western world are challenged taking reasonable steps to identify and prevent risks associated with these resources due to the globally dispersed nature of (...) supply chains and the opacity of the origin of commodities. Supply chain due diligence represents a holistic concept to proactively manage supply chains reducing the likelihood of the use of conflict minerals effectively. Based on an exploratory study with 27 semi-structured interviews within five European industries, we provide insights into patterns of implementation, key motivational factors, barriers and enablers, and impacts of SCDD in mineral supply chains. Our results contribute to both theory and practice as we provide first insights to SCDD practices and make recommendations for an industry-wide implementation of SCDD. Altogether, this study provides the basis for future theory testing research in the context of SCDD and conflict mineral management. (shrink)

The purpose of the present article is to analyse South African listed companies' public reporting in order to contribute to our understanding of how and why companies consider human rights. The empirical analysis is placed in the context of the increasing prominence of human rights as a business issue, premised in part on the activities of the United Nations (UN) Special Representative of the Secretary General (SRSG) on human rights and business. On the basis of a content analysis of the (...) public reports of the top 100 companies listed on the Johannesburg Stock Exchange (JSE), we test hypotheses focused on the antecedents of companies' demonstrated human rights due diligence, with particular reference to assumptions or findings of the SRSG and institutional theory. Some of our results are unexpected: there is little influence exerted by the sector and size of companies in our sample, and there is also an unexpectedly insignificant impact of company participation in the UN Global Compact and the JSE Socially Responsible Investment Index. On the other hand, a key predictor of human rights due diligence is an explicit leadership commitment, and important roles are also played by government regulations and stock exchange listing rules. (shrink)

Data-driven technologies have come to pervade almost every aspect of business life, extending to employee monitoring and algorithmic management. How can employee privacy be protected in the age of datafication? This article surveys the potential and shortcomings of a number of legal and technical solutions to show the advantages of human rights-based approaches in addressing corporate responsibility to respect privacy and strengthen human agency. Based on this notion, we develop a process-oriented model of Privacy Due Diligence to complement existing (...) frameworks for safeguarding employee privacy in an era of Big Data surveillance. (shrink)

Recently, there has been a strong push for binding human rights due diligence (HRDD) legislation, both at the national and European levels. As empirical evidence of such legislation's impact gradually emerges, it is time to take stock. In this article, we conduct a systematic literature review to assess available empirical evidence on (1) how HRDD legislation affects the policies and practices through which companies engage with human rights; (2) how these policies and practices, in turn, affect different actors in (...) companies’ value chains. While it is too early to make conclusive judgements, existing evidence allows us to identify several worrying trends: most companies opt for managerialist and compliance-oriented approaches to HRDD; revert primarily to earlier (and flawed) private governance mechanisms; and try to cascade responsibilities and costs in their supply chain. This risks perpetuating or reinforcing marginalisation and exclusion dynamics. Based on these findings, we formulate some lessons for policy-makers. (shrink)

The Maputo Protocol, adopted in 2003, was intended to counterbalance the normative deficiencies of the African Charter with respect to women’s rights. However, 15 years down the line, there is not much case law on the Protocol. The ECOWAS Court made its first pronouncement on the Protocol in 2017 in Dorothy Njemanze & 3 Others v. The Federal Republic of Nigeria. This paper analyses three gender-based violence decisions by the Ecowas Court: Dorothy Njemanze, Aminata Diantou Diane and Mary Sunday cases. (...) The paper examines the potential of the Protocol and the due diligence principle in influencing the Ecowas Court’s jurisprudence on women’s rights and makes recommendations. (shrink)

Assessing social risks has proven difficult for IRBs. We undertook a novel effort to empirically investigate social risks before an HIV prevention trial among drug users in Thailand and China. The assessment investigated whether law, policies and enforcement strategies would place research subjects at significantly elevated risk of arrest, incarceration, physical harm, breach of confidentiality, or loss of access to health care relative to drug users not participating in the research. The study validated the investigator's concern that drug users were (...) subject to serious social risks in the site localities, but also suggested that participation in research posed little or no marginal increase in risk and might even have a protective effect. Our experience shows that it is feasible to inform IRB deliberations with actual data on social risks, but also raises the question of whether and when such research is an appropriate use of scare research resources. (shrink)

In the legal domain, ontologies enjoy quite some reputation as a way to model normative knowledge about laws and jurisprudence. This paper describes the methodology followed when developing the ontology used by the second version of the prototype Iuriservice, a web-based intelligent FAQ for judicial use. This modeling methodology has had two important requirements: on the one hand, the ontology needed to be extracted from a repository of professional judicial knowledge (containing nearly 800 questions regarding daily practice). Thus, the construction (...) of ontologies of professional judicial knowledge demanded the description of this knowledge as it is perceived by the judge. On the other hand, due to the distributiveness of the environment, there was a need for controlled discussion and traceability of the arguments used in favor or against the introduction of a concept X as part of the domain ontology. This paper presents the Ontology of Professional Judicial Knowledge (OPJK), extracted manually from the selection of relevant terms from judicial practice questions and modeled according to the DILIGENT methodology. We will show that DILIGENT has proved to be a methodology that facilitates the ontology engineering in a distributed environment, although appropriate tool support needs to be developed. (shrink)

Business actors create and operate in global production networks that bring them in contact with regulatory frameworks across multiple levels and domains. Importantly, they also participate in shaping those regulatory frameworks. But what are the specific interests they pursue in their involvement in regulation? Traditionally, scholars tended to assume that the focus of business actors is primarily on avoiding (stringent) public regulation. Recent developments have highlighted a broader range of business interests, however. Accordingly, this paper investigates business positions on the (...) ascription of duties and rights in regulation, specifically in the fields of due diligence, supply chain liability, and extraterritorial jurisdiction. The paper explores these issues in the context of business regulation in the field of Human Rights, looking at the United Nations Guiding Principles on human rights, their German implementation in the ‘Nationaler Aktionsplan Wirtschaft und Menschenrechte’ and the associated processes, in particular. (shrink)

After almost two decades in power, R. T. Erdoğan and his Justice and Development Party have established authoritarian and Islamist governance in Turkey, which has adversely affected gender equality and women’s rights. So much so, that in 2009 the European Court of Human Rights acknowledged that there is a climate conducive to domestic violence in Turkey. Despite Erdoğan withdrawing Turkey unconstitutionally from the Convention on Preventing and Combating Violence against Women and Domestic Violence, the government cannot withdraw from the state’s (...) duty to protect its citizens from the criminal acts of private individuals. By using international and regional organisations’ approaches to positive obligations and due diligence as a measure, the article addresses whether Turkey is fulfilling its duty of protecting women from the violent conduct of others. It is concluded that the government is failing in its positive obligations and instead, is reinforcing the climate through its discourse and practices that strengthen a national tolerance of violence against women and the national authorities’ reluctance to address it, thus allowing for impunity of its perpetrators. (shrink)

As audiences demand better and more diverse representation in the fictions they consume, there is a question of how that demand should be placed on fiction creators. In this article, I answer this question by arguing creators of fiction have a hermeneutical responsibility to include diverse characters in their creations, and to do so without relying on harmful stereotypes. I cast this responsibility as the epistemic virtue of due diligence, offset by epistemic laziness and epistemic paralysis as the corresponding (...) vices of absence and excess, respectively. Practicing either vice can constitute a type of hermeneutical gap described by Katharine Jenkins, in which harmful stereotypes (conceptions) become more accessible to epistemic agents than the more accurate concept. By blocking the agent's access to the accurate conception, such stereotypes create a hermeneutical gap and can contribute to hermeneutical injustices, as described by Miranda Fricker and José Medina. (shrink)

Socrates argued that the unexamined life is not worth living. What this means is we are so ignorant that we are guilty of criminal negligence how to lead our lives, unless we do our due diligence by philosophising.

When should someone who may have intentionally or knowingly committed criminal wrongdoing be excused? Excusing Crime examines what excusing conditions are, and why familiar excuses, such as duress, are thought to fulfil those conditions. Setting himself against the 'classical' view of excuses, which has a long heritage, and is enshrined in different forms in many of the world's criminal codes, both liberal and non-liberal; Jeremy Horder argues that it is now time to move forwards. He contends that a wider range (...) of excuses - 'diminished capacity', 'due diligence' and 'demands of conscience' - should be recognised in law. (shrink)

ABSTRACT The main cause of the crisis was the behavior of the banks—largely a result of misguided incentives unrestrained by good regulation. Conservative ideology, along with unrealistic economic models of perfect information, perfect competition, and perfect markets, fostered lax regulation, and campaign contributions helped the political process along. The banks misjudged risk, wildly overleveraged, and paid their executives handsomely for being short‐sighted; lax regulation let them get away with it—putting at risk the entire economy. The mortgage brokers neglected due (...) class='Hi'>diligence, since they would not bear the risk of default once their mortgages had been securitized and sold to others. Others can be blamed: the ratings agencies that judged subprime securities as investment grade; the Fed, which contributed low interest rates; the Bush administration, whose Iraq war and tax cuts for the rich made low interest rates necessary. But low interest rates can be a boon; it was the financial institutions that turned them into a bust. (shrink)

BackgroundA patient who fulfils the due diligence requirements for euthanasia, and is medically suitable, is able to donate his organs after euthanasia in Belgium, the Netherlands and Canada. Since 2012, more than 70 patients have undergone this combined procedure in the Netherlands. Even though all patients who undergo euthanasia are suffering hopelessly and unbearably, some of these patients are nevertheless willing to help others in need of an organ. Organ donation after euthanasia is a so-called donation after circulatory death (...) (DCD), Maastricht category III procedure, which takes place following cardiac arrest, comparable to donation after withdrawal of life sustaining therapy in critically ill patients. To minimize the period of organ ischemia, the patient is transported to the operating room immediately after the legally mandated no-touch period of 5 min following circulatory arrest. This means that the organ donation procedure following euthanasia must take place in the hospital, which appears to be insurmountable to many patients who are willing to donate, since they already spent a lot of time in the hospital. Case presentationThis article describes the procedure of organ donation after euthanasia starting at home (ODAEH) following anesthesia in a former health care professional suffering from multiple system atrophy. This case is unique for at least two reasons. He spent his last conscious hours surrounded by his family at home, after which he underwent general anaesthesia and was intubated, before being transported to the hospital for euthanasia and organ donation. In addition, the patient explicitly requested the euthanasia to be performed in the preparation room, next to the operating room, in order to limit the period of organ ischemia due to transport time from the intensive care unit to the operating room. The medical, legal and ethical considerations related to this illustrative case are subsequently discussed.ConclusionsOrgan donation after euthanasia is a pure act of altruism. This combined procedure can also be performed after the patient has been anesthetized at home and during transportation to the hospital. (shrink)

The adoption of the French Duty of Vigilance law has been celebrated as a milestone for advancing the transnational business and human rights regime. The law can contribute to harden corporate accountability by challenging the “separation principle” of transnational companies and by obligating companies to report on their duty of vigilance. However, the question of whether the law actually contributes to human rights and environmental protection along global supply chains requires empirically grounded research that connects processes in home and host (...) state countries. This paper contributes to such a new research agenda by linking political ecology literature and empirical insights from the Global South to research on due diligence regulations. With reference to field research data on contestations between the oil and gas company Total E&P and indigenous communities in Bolivia, I argue that the burden of proof and contestations over valid knowledge represent major obstacles when trying to establish legal liability. (shrink)

Human trafficking is one of the most lucrative international criminal activities and is widespread across a variety of industries. The response to human trafficking in corporate supply chains has been dominated by analyses of due diligence obligations. Existing scholarship, however, has cast doubt on the effectiveness of corporate due diligence in addressing human trafficking, because human trafficking is the outcome of macro-level social structures that are created by and consist of multiple actors, including business. The outsourcing and sub-contracting (...) model provides incentives throughout the global supply chain to sub-contract further to reduce the cost of labor, which has led to human trafficking remaining a pervasive problem. Business responsibility for human trafficking derives from the fact that business decisions and strategies enable the conditions that allow for human trafficking to occur within their supply chains. To address human trafficking, we propose a social connection and political responsibility model, based on Iris Marion Young’s analysis of social connection and structural injustice, that is holistic, forward-looking, and outcomes-oriented. We differentiate between businesses with a strong connection to human trafficking and businesses with a weak connection, and within this distinction delineate different pathways that firms can take to meet their political responsibilities to address human trafficking. We conclude with implications for future research. (shrink)

This article examines the efficacy of an ethics discernment process in the organizational context, a practice referred to in the paper as "mission due diligence." This type of ethics discernment is a structured process intended to awaken the ethical concerns that a particular issue raises within moral agents and to give voice, directly and indirectly, to those who will be impacted by, and responsible for, strategic decision making. The efficacy of this particular ethics discernment practice is contingent upon several (...) realities, including, but not limited to 1) the timing in which it is undertaken, 2) the degree of importance and relevance attributed to it, and 3) the skills of the person leading it. This case report examines how this process was used to highlight and address the ethical issues related to a new hiring policy, namely, a mandatory nicotine screening test for prospective employees in the healthcare context. (shrink)

Dieser Quick Guide gibt einen Überblick über Compliance, ESG und Investigations in Emerging Markets im Kontext wachsender Anforderungen wie des deutschen Lieferkettensorgfaltspflichtengesetzes und EU-Verordnungen. Deutsche Unternehmen sind durch neue Regelungen, besonders in Emerging Markets, mit verstärkten Sorgfalts-, Dokumentations- und Berichterstattungspflichten konfrontiert. Dieser Leitfaden beleuchtet diese Herausforderungen und zeigt, wie On-Site Audits effizient durchgeführt werden können. Der Inhalt: Einführung Anknüpfungspunkte: Due Diligence, Supply Chain Compliance, Nachhaltigkeitsberichterstattung, Korruptionsvermeidung Betroffene Kreise: Unternehmen, Tochtergesellschaften, Zulieferer, Dritte Organisation von On-Site Audits Zusammenfassung und Ausblick Die (...) Zielgruppen CEOs, CFOs, Rechtsabteilungsleiter, Compliance-Beauftragte, Beschaffungsmitarbeiter, Rechtsanwälte Die Autoren: RA Dr. Constantin Frank-Fahle, LL.M., Gründungspartner (emltc), spezialisiert auf rechtliche und steuerliche Strukturierung von Auslandsinvestitionen. RA Roland Falder, Counsel (emltc), spezialisiert auf Arbeitsrecht und Compliance Untersuchungen. RA'in Dr. Anna-Luisa Lemmerz, Counsel (emltc), spezialisiert auf Handels- und Gesellschaftsrecht sowie Compliance. (shrink)

ABSTRACT:The UN Framework on Human Rights and Business comprises the State’s duty to protect human rights, the corporate responsibility to respect human rights, and the duty to remedy abuses. This paper focuses on the corporate responsibility to respect. It considers how to overcome obstacles, arising out of national and international law, to the development of a legally binding corporate duty to respect human rights. It is argued that the notion of human rights due diligence will lead to the creation (...) of binding legal duties and that principles of corporate and tort law can be adapted to this end. Furthermore, recent legal developments accept an “enlightened shareholder value” approach allowing corporate managers to consider human rights issues when making decisions. The responsibility to respect involves adaptation of shareholder based corporate governance towards a more stakeholder oriented approach and could lead to the development of a new, stakeholder based, corporate model. (shrink)

In recent years, the ethical impact of AI has been increasingly scrutinized, with public scandals emerging over biased outcomes, lack of transparency, and the misuse of data. This has led to a growing mistrust of AI and increased calls for mandated ethical audits of algorithms. Current proposals for ethical assessment of algorithms are either too high level to be put into practice without further guidance, or they focus on very specific and technical notions of fairness or transparency that do not (...) consider multiple stakeholders or the broader social context. In this article, we present an auditing framework to guide the ethical assessment of an algorithm. The audit instrument itself is comprised of three elements: a list of possible interests of stakeholders affected by the algorithm, an assessment of metrics that describe key ethically salient features of the algorithm, and a relevancy matrix that connects the assessed metrics to stakeholder interests. The proposed audit instrument yields an ethical evaluation of an algorithm that could be used by regulators and others interested in doing due diligence, while paying careful attention to the complex societal context within which the algorithm is deployed. (shrink)

Heterogeneous institutional investors' shareholding preferences have been driven to change by the deepening of ESG investment philosophy. Therefore, we examine the impact of corporate ESG performance on institutional investors' shareholding preferences and its mechanism of action. We conduct mixed OLS and mediation effect tests using data on ESG responsibility scores and institutional investors' shareholding ratios of A-share listed companies in China from 2010 to 2020 as samples. We find that corporate ESG performance can significantly and robustly increase institutional investors' shareholdings; (...) the mediation effect analysis shows that overall corporate ESG performance contributes to increases in corporate book and market values, thus encouraging institutional investors to increase their shareholdings. The heterogeneity analysis shows that independent institutional investors attach more importance to corporate ESG responsibility performance, and long-term institutional investors attach more importance to corporate environmental performance; moreover, institutional investors have more significant ESG shareholding preferences for Chinese SOEs. Our study can strengthen the encouragement of institutional investors to integrate ESG investment concepts from multiple perspectives, such as research and analysis, portfolio management, risk control, and due diligence management, to design and develop targeted ESG investment tools, give full play to the role of shareholders and guide the sound development of listed companies from the perspective of investment strategy objectives. (shrink)

As a sovereign wealth fund, the $1 trillion Norwegian Government Pension Fund-Global, which is managed by Norges Bank Investment Management on behalf of the welfare of Norway’s citizens, is supposed to be a flagship for socially responsible investments through its Council of Ethics. However, its investment in Delta Topco, the holding company of Formula 1 world championship that, through Formula One Group, brokered a deal with Russia to host a Formula 1 Grand Prix in 2014, raises the question of whether (...) the Oil Fund should enhance its due diligence processes. Although no evidence of corruption related to the race is introduced, the complex relation between financial logic and the world of sports still raises questions about the ethical solidity of the Oil Fund’s investment. Drawing upon reports of the relationship between political economy and sporting events, this paper therefore analyses, in light of the Oil Fund’s ethical guidelines, the complexities of its investment in Delta Topco. As a result, it is argued that a new set of examination methods by the Council of Ethics may be warranted. (shrink)

The United Kingdom case R v Lee EWCA Crim 1404 resulted in a pharmacist being convicted for an inadvertent dispensing error and paved way for the decriminalisation of such errors by way of a due diligence defence enacted in 2018. In relation to Hong Kong, what is its legal position for dispensing errors, and can it follow the decriminalising steps of UK? The primary objective of this paper is to explore whether and how HK can reach the normative position (...) for a dispensing error legal regime: I posit that the normative position for healthcare professional liability for dispensing errors should prioritise the public interest of minimisation of future dispensing errors over the retribution of past wrongs; I illustrate HK’s current position for the liabilities of HCPs on dispensing errors, focusing analysis on the relatively controversial aspects of HK’s criminal liability, referencing the landmark cases Hin Lin Yee v HKSAR 13 HKCFAR 142 and Kulemesin v HKSAR 16 HKCFAR 195 to assist my analysis of the requisite mental element for relevant statutory offences; through comparison with UK’s development post-R v Lee and application of Rule of Law principles, HK’s current position is critiqued, coming to the conclusion that while there are compelling reasons for the decriminalisation of dispensing errors in HK, the prerequisite for this to happen is an overhaul of regulatory frameworks by significantly increasing levels of accountability. (shrink)

While private sector investment plays a key role in fostering sustainable economic development in developing countries, respect for internationally recognized worker rights is also a vital component. The paper presents a methodology to assist investors in largescale private infrastructure and other industry sector projects to utilize internationally recognized core labor rights and related standards for fostering sound labor management. The methodology involves due diligence or analysis of labor conditions and subsequent supervision and monitoring of performance and promotes the use (...) of best practices to complement existing minimum requirements. Case study examples are presented and challenges in applying the approach are discussed. (shrink)

A discussion concerning whether to conceive Artificial Intelligence systems as responsible moral entities, also known as “artificial moral agents”, has been going on for some time. In this regard, we argue that the notion of “moral agency” is to be attributed only to humans based on their autonomy and sentience, which AI systems lack. We analyze human responsibility in the presence of AI systems in terms of meaningful control and due diligence and argue against fully automated systems in medicine. (...) With this perspective in mind, we focus on the use of AI-based diagnostic systems and shed light on the complex networks of persons, organizations and artifacts that come to be when AI systems are designed, developed, and used in medicine. We then discuss relational criteria of judgment in support of the attribution of responsibility to humans when adverse events are caused or induced by errors in AI systems. (shrink)

In this paper we challenge the idea that valid consent is the golden standard by which a sexual encounter is deemed ethical. We begin by reviewing the recent public focus on consent as an ethical standard, and then argue for a standard that goes beyond legalistic and contractual foci. This is the standard of mutuality which extends beyond the assurance that all parties engaging in a sexual encounter are informed, autonomous, and otherwise capable of making a valid choice: one must (...) also encounter the other with care and loving attention. We develop this claim using Iris Murdoch’s concept of an attitude of “loving attention,” which differentiates our view from the duty of due diligence to ensure that each person is a willing participant in sex, that the rights of others have not been violated, as emphasized by Dougherty. We also address three objections to using mutuality as a measure of ethical sex, namely that it is patronizing, that it is a maximalist position that puts too great a burden on individuals and inhibits their freedom, and that it is an ideal rather than a requirement. We then look at three examples that test the construct of mutuality: the typical college hook-up, sex work, and anonymous sex through glory holes and similar set-ups. (shrink)

Ethics dumping is a global phenomenon involving the ‘off-shoring’of research. Research that would be prohibited, severely restrictedor regarded as highly patronizing in high-income regions is instead conducted inresource-poor settings. Twenty-eight case studies of ethics dumping were examined through inductive thematic analysis to reveal predisposing factors from the perspective of researchers from high-income regions. Six categories were agreed and further illuminated: Patronizing conduct, unfair distribution of benefits and/or burdens, culturally inappropriate conduct, double standards, lack of due diligence and lack of (...) transparency. The ultimate aim of the paper is to deepen understanding of thesehighly unethical practicesamongst academics who stand against poverty, leading to theirfurther reduction. (shrink)

The United Nations ‘Protect, Respect and Remedy’ Framework,developed by the U.N. Special Representative JohnRuggie, brings together social expectations and law into anemerging policy framework of direct relevance to corporate social responsibility, CSR. The principle source of the Framework’s significance for the policy and practice of CSR is its definition of the theory of business responsibility for human rights as arising from business activities and relationships, and its deployment of due diligence for human rights risk as the core operational concept (...) of this theory of responsibility. The article considers the responsibility to respect human rights in light of theories about polycentric regulatory regimes and draws the conclusion that the Ruggie Framework creates a regulator dynamic in which both voluntarism and law have relevant and reinforcing roles to play in governing business behavior. In the wake of the adaptation of the Framework by the UN, the challenge for the field of CSR will be to adapt to an emerging reality in which business responsibility for ‘the social’ is increasingly a question of compliance and beyond. (shrink)

As technology redefines relationships, new assumptions are emerging about the ethics of persuasion. In an increasingly global economy, technology is forcing greater transparency onto businesses and governments as the moral context of their communications is inseparable from the competitive nature of the business world. This article suggests that moral boundaries will be set naturally, that consumers have a moral obligation to excercise "due diligence" in their acceptance of messages, and that no one is in charge of the global economy's (...) conventions and morality. The system ultimately depends on participants to keep their own self-interested boat in the race. (shrink)

If we’re aiming to have well-founded beliefs, then we generally think it’s a good idea to listen to a wide range of arguments. Listening to dissenting views, in particular, is important for avoiding epistemic dispositions to dogmatism and closed-mindedness. We might say we have an epistemic responsibility to listen to others in order to ensure we do our due diligence when forming beliefs. But do we also have to listen to the arguments of people with whom we disagree online? (...) Received wisdom suggests no, and that not listening online is something of a life raft for epistemic self-preservation. Search engines like Google help to facilitate this self-preservation by filtering the testimony we will come across. There are legitimate concerns about the way that this sort of online personalization undermines our ability to access a sufficiently wide range of information. I explore here a related worry: how might our reliance on Google filtering be affecting our ability to listen responsibly and meet our duties to be good listeners? I propose that our received wisdom is misguided, and in fact search engines like Google have raised the stakes for what counts as good listening. (shrink)

According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons is (...) based on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability. (shrink)

The adoption of the Guiding Principles for Business and Human Rights by the United Nations in 2011 created a new governance instrument aimed at improving the promotion of human rights by business enterprises. While reaffirming states duties to uphold human rights in law, the UNGPs called on firms to promote the realization of human rights within global markets. The UNGPs thus have sought to embed human rights more firmly within the field of corporate social responsibility and to use CSR practices (...) to improve corporate human rights accountability. In this paper, we explore how this incorporation of human rights into the CSR field has affected the business practices and public commitments British firms have made to promote human rights. We analyse the CSR reports published by the 50 largest British firms over a 20-year period starting in the late 1990s and interview senior CSR managers of these firms. We find that these firms have expanded how they articulate their responsibility for human rights over time. These commitments however remain largely focused on improving management practices such as due diligence and remediation procedures. Firms are often both vague and selective about which substantive human rights they engage with in light of their concerns about their market competitiveness and broader legitimacy. These outcomes suggest that, while firms cannot completely resist the normative pressures exerted by the CSR field, they retain significant resources and agency in translating such pressure into concrete practices. (shrink)

Public pressure is essential for providing multinational enterprises (MNEs) with motivation to follow the standards of human rights conduct set in soft-law instruments, such as the United Nations Guiding Principles on Business and Human Rights. But how does the public judge MNE involvement in human rights violations? We empirically answer this question drawing on an original survey of American adults. We asked respondents to judge over 12,000 randomly generated scenarios in which MNEs may be considered to have been involved in (...) human rights violations. Our findings reveal substantial gaps between public judgments and the standards set in soft law and the normative literature. We identify the attributes of episodes of human rights violations involving MNEs that influence public judgments, including the relationship between the MNE and the perpetrator, the practice of due diligence, and the type of abuse. These results provide insights as to when we might expect public pressure to drive MNE compliance with soft-law instruments, and they direct attention to specific standards that will likely require stronger, ‘hard’ law approaches or broader efforts to shift the public’s view. (shrink)

‘Terminal discharges’ are carried out in Singapore for patients who wish to die at home. However, if due diligence is not exercised, parallels may be drawn with euthanasia. We present a theoretical discussion beginning with the definition of terminal discharges and the reasons why they are carried out in Singapore. By considering the intention behind terminal discharges and utilising a multidisciplinary team to deliberate on the clinical, social and ethical intricacies with a patient- and context-specific approach, euthanasia is avoided. (...) It is hoped that this will provide a platform for professionals in palliative medicine to negotiate challenging issues when arranging a terminal discharge, so as to avoid the pitfall of committing euthanasia in a country such as Singapore where euthanasia is illegal. It is hoped that a set of guidelines for terminal discharges may someday be realised to assist professionals in Singapore and around the world. (shrink)

The article deals with the sociocultural and historical background of the Olivencia Report and relates this to the document's content, particularly, to its recommendations for Spanish Boards. A discussion of the distinctively Spanish understandings of loyalty, due diligence and transparency is included. The work ends with insights into parallelisms between corporate governance and political government, specifically on the role of culture, democratic representation and accountability, the distribution of power, the protection of property rights and equality.

Public entities around the world are increasingly deploying artificial intelligence and algorithmic decision-making systems to provide public services or to use their enforcement powers. The rationale for the public sector to use these systems is similar to private sector: increase efficiency and speed of transactions and lower the costs. However, public entities are first and foremost established to meet the needs of the members of society and protect the safety, fundamental rights, and wellbeing of those they serve. Currently AI systems (...) are deployed by the public sector at various administrative levels without robust due diligence, monitoring, or transparency. This paper critically maps out the challenges in procurement of AI systems by public entities and the long-term implications necessitating AI-specific procurement guidelines and processes. This dual-prong exploration includes the new complexities and risks introduced by AI systems, and the institutional capabilities impacting the decision-making process. AI-specific public procurement guidelines are urgently needed to protect fundamental rights and due process. (shrink)

We are rational creatures, in that we are beings on whom demands of rationality are appropriate. But by our rationality it doesn't follow that we always live up to those demands. In those cases, we fail to be rational, but it is in a way that is different from how rocks, tadpoles, and gum fail to be rational. For them, we use the term ‘arational.’ They don't have the demands, but we do. The demands of rationality bear on us because (...) we have minds that can move us to act, inspire us to create, and bring us to believe in ways that are responsible and directed. My interests here are the demands rationality places on our beliefs. Beliefs aim at the truth, and so one of the demands of being a rational creature with beliefs is that we manage them in a way that is pursuant of the truth. Reasons and reasoning play the primary role in that management – we ought to believe on the basis of good reasons. That is, if you believe something, you think that you're right about the world in some way or another. You believe because you think that something is true. Now, p's truth is different from all ways it could be false, and your being right about p isn't just some arbitrary commitment, one that could just as well have been its negation. This non-arbitrary specificity of beliefs is constituted by the fact that they are held on the basis of reasons. Arguments are our model for how these reasons go – we offer some premises and show how they support a conclusion. Of course, arbitrary premises won't do, so you've got to have some reason for holding them as opposed to some others. Every premise, then, is a conclusion in need of an argument, and for arguments to be acceptable, we've got to do due diligence on the premises. This, however, leads to a disturbing pattern – for every premise we turn into a conclusion, we've got at least one other premise in need of another argument. Pretty soon, even the simplest arguments are going to get very, very complicated. (shrink)

ABSTRACT Banks provide a valuable but inherently unstable combination of deposit‐taking and lending functions that were successfully held together for several decades after the New Deal by tough banking rules. The weakening of the rules after the 1970s promoted the displacement of traditional relationship‐based banking with securitized, arms‐length alternatives that encouraged banks to undertake activities about which bankers lacked deep relationship‐based knowledge of the risks. Ironically, this risky behavior, encouraged by loosened regulation, was reinforced by progressively tightened securities regulation, which (...) promoted stock‐market liquidity but also deprived large banks (and other publicly traded companies) of oversight by investors with “insiders’” knowledge. Both the underregulation of banking and the overregulation of securities were underpinned by economic theories that favored blind diversification in liquid, anonymous markets, and that ignored the value of relationship‐based knowledge and case‐by‐case due diligence. (shrink)

Despite the widespread popularity of the Creating Shared Value discourse, its ‘business case’ and ‘win–win’ rhetoric remain problematic. This paper adds an inclusive development perspective to the debate, arguing that analysing CSV strategies through an inclusivity lens contributes to a better operationalisation of societal value; makes tensions and contradictions between economic and societal value explicit and uncovers processes of inclusion, exclusion and adverse inclusion. We illustrate this by analysing Nestlé’s CSV strategy in its cocoa supply chains in Ghana based on (...) content analysis of company documents, interviews with value chain actors and stakeholders, and focus groups with farmers. We ask how Nestlé frames and implements its CSV discourse in practice and how this relates to the social, relational and environmental dimensions of inclusive development. Findings show how the company addresses inclusive development dimensions in its corporate discourse, practices and business operations, and what trade-offs it faces. We then unmask the inherent tension between business objectives and societal interests and explain why the scope, issues addressed and societal impacts of CSV remain constrained. We conclude that CSV can help reduce a company’s impact on some persistent societal issues, but that its contribution to transformational change remains limited because the need to uphold competitive advantages and short-term financial performance narrows its ability to address all inclusivity dimensions. Legislation mandating responsible business conduct and due diligence can reduce this inherent tension by levelling the playing field between companies addressing inclusivity issues vis-à-vis those who do not. (shrink)