The pact also includes an agreement to set up a working group to report by September 2016 on when a bank is considered “connected”, contributes to or “causes” certain human rights impacts – although we know that the working group has not yet been set up. Given that the Guidelines give companies the responsibility to remedy the effects they cause or contribute to, but not necessarily those with which they are directly related through a business relationship, it would be useful to clarify what these conditions mean for the financial sector. Overall, the Confederation has an uneven and incomplete approach to providing access to corrective measures. The UN Guiding Principles have only one requirement for multi-stakeholder human rights initiatives – that they must ensure that effective and accessible complaint mechanisms are available (GPCP 30). Unfortunately, it is far from clear that this agreement meets this requirement. Finally, there is an internal dispute settlement mechanism. Although this only applies to the handling of complaints from one party to the agreement on another party, its decision contains a recommended follow-up within a time frame and can be made public. This could be the most effective way for communities or organisations with a human rights complaint against one of the undersigned banks to remedy the situation – by asking one of the civil society signatories to raise the complaint on their behalf. When the alliance was published, we were curious to see what it said. To sum up, this is an ambitious agreement with far-reaching commitments, but it is not enough in some important areas, so that even if fully implemented, it is unlikely to lead banks to fully comply with their human rights obligations. In this article, we take a closer look at some of the pact`s strengths and weaknesses and what this could mean for the sector as a whole.

Editor`s Note: Benjamin Thompson is a PhD student in Business and Human Rights at Tilburg Law School in the Netherlands. Her doctoral dissertation focuses on the impact of the UN Guiding Principles on Business and Human Rights, which support the operational level, out-of-court complaint mechanisms and their role in improving access to remedies. He recently published an article for the special issue of the Utrecht Law Review on the responsibility of multinational companies for human rights violations, in which he discussed the role that the new Dutch multi-stakeholder initiative could play with the Dutch banking sector in improving banks` human rights performance. The paper follows two current trends in the interpretative guideline: the relevance of corrective actions where banks are directly related and the central role of due diligence in determining the category of liability in which a bank is located (contribution or directly related). The document states that remedies are relevant not only when companies cause or contribute to negative human rights effects, but also when they are directly related to them. Remediation mechanisms should be part of an “ecosystem”; Banks could “activate” remedies for all forms of connection. The report focuses on how banks could increase and exert their influence over their customers to remedy the situation, including examining whether a customer has a complaint resolution mechanism by better assessing its effectiveness, supporting its effectiveness and advocating for better complaint mechanisms at all levels. Six factors are identified: 1) the initial knowledge of the bank at the time it concluded the transaction, 2) the bank`s cooperation with the customer and/or other stakeholders, 3) the customer`s behaviour in an existing relationship with the bank, 4) the inclusion of binding expectations in credit agreements with the customer, 5) the interaction with the customer after the impact, and 6) the quality of a risk assessment by third parties.

If, on the basis of these factors, a bank`s due diligence is appropriate, the bank is directly linked, otherwise it will contribute to it. The report uses some examples of how these factors work in practice. It leaves a great deal of discretion as to how these factors should be weighed together. The parties to the agreement also undertake to carry out a wide-ranging exchange of information. B electronically, on best practices in due diligence and other human rights research they conduct. The Parties also agree to work towards the creation of a publicly accessible human rights “matrix or database”. There is also an obligation to conduct joint value chain mapping exercises for palm oil, cocoa, gold and possibly oil and gas over the three years of the agreement, to make them publicly available and to draw conclusions from the results. In November last year, the Asser Institute offered me the opportunity to participate in a panel discussion on the Dutch Banking Agreement (DTA) as part of its Doing Business Right project. Signed in December 2017, the DTA is a collaboration between the banking sector, government, trade unions and civil society organisations (CSOs), all based in the Netherlands: the first of its kind. The focus is on banks` responsibility to respect human rights, as set out in the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) and the OECD Guidelines for Multinational Enterprises (OECD Guidelines) in their business lending and project finance activities.

The Commission was a hot topic in the business and human rights communities. However, it has not yet published a public monitoring report, which makes it difficult to assess its performance at this stage. During the round table, we discussed the Commission`s role as a potential means of improving the human rights practices of Dutch banks. A central challenge that emerges from this discussion, as reported here, has been the various “ambiguities of interpretation inherent in the Guiding Principles”. An important conclusion was that “more dialogue is needed. determine the behaviour of banks that is consistent with international obligations.” If it is true that the banks` interpretations are “factually incorrect” or, as David Kinley put it, that the latest Thun Group document is merely an attempt by banks to evade their overall human rights responsibilities, how can we understand this discrepancy between banks` understanding of the guiding principles and the logics of the guiding principles themselves (assuming: “we” share a kinship with the project of business and human rights)? It can be said that the Thun Group does not take its human rights responsibility seriously; this statement can probably also be formulated in such a way that it covers a much wider spectrum of companies and industries. .