Getting hard to resist: Prospect of mandatory human rights due diligence in Ukraine

Sammanfattning: The 2011 UN Guiding Principles on Business and Human Rights (UNGPs) introduced human rights due diligence (HRDD) as a societal expectation to businesses to implement a new kind of due diligence risk management process to ‘know and show’ they respect human rights. Ten years later, mandatory human rights due diligence (mHRDD) legislation imposing a legal duty to carry out HRDD has become mainstream across Europe. Although just one piece of such legislation is currently in effect – the 2017 French Duty of Vigilance Law – the momentum is growing for passing similar laws in seven other European states alongside at the EU level. Notably, corporate civil liability for harm resulted from business-related human rights abuse features as a critical element of the mHRDD regimes. In addition, the prospect of a long-awaited reversal of the burden of proof from a victim to a company, as suggested by the 2021 EU legislative report on corporate due diligence and corporate accountability, brings hope for greater access to justice. Ukraine has pledged to implement the UNGPs and, to this end, has recently adopted the business and human rights chapter within the 2021-2023 National Human Rights Strategy. Furthermore, the Government publicly committed to pursuing a stand-alone National Action Plan on Business and Human Rights. Ukraine is concurrently under treaty obligation to align its legislation to one of the EU, which creates additional opportunities to follow the mHRDD trends. To a considerable extent, Ukrainian legal and policy frameworks already reflect elements of HRDD, such as impact assessment and corporate reporting. They also cover closely related issues, including stakeholder engagement, corporate governance and directors’ duties, public procurement. Interestingly, Ukrainian civil law establishes a relatively more advanced delict (tort) liability regime in terms of the burden of proof distribution: fault-based liability with a statutory presumption of the tortfeasor’s fault. Other liability regimes and sanctions may be potentially relevant in the business and human rights context too. The Government’s ongoing efforts to fundamentally reform civil, labour, and company law, accompanied by the strategic plans to pass a law on economic stimuli for responsible business, bear significant potential in bringing about change in corporate behaviour thus should all be concerted. The New Economic Strategy 2030 yet gives rise to concerns as it echoes the ‘"human rights" read "anti-development"’ sentiment. The latter should not become a recourse hindering a sound foundation for legislative progress on the business and human rights agenda. The mHRDD legislative mainstream is getting hard to resist, and, fortunately, Ukraine is well-positioned to join it instead.