More than Meets the Eye: Participatory (In)Justice and the EU Corporate Sustainability Due Diligence Directive

Article for general public (2023)

Centering Europe and Othering the Rest: Corporate Due Diligence Laws and Their Impacts on the Global South

Article for general public (2023)

Centering Europe and Othering the Rest: The Impacts of the EU Corporate Sustainability Due Diligence Directive on the Global South

Scientific Conference (2022, November 29)

Human Rights Experimentalism in Action: The Potential of National Human Rights Institutions in Enhancing the Implementation and Monitoring of the Convention on the Rights of Persons with Disabilities

in Journal of Human Rights Practice (2022), 14(1), 108-127

Article 33(2) of the United Nations Convention on the Rights of Persons with Disabilities provides for the establishment and designation of independent monitor- ing mechanisms charged with the promotion ... [more ▼]

Article 33(2) of the United Nations Convention on the Rights of Persons with Disabilities provides for the establishment and designation of independent monitor- ing mechanisms charged with the promotion, protection and monitoring of its im- plementation. In numerous States parties, National Human Rights Institutions have been designated as Article 33(2) institutions, either individually or in co-ordination with other bodies, and have consequently made effective contributions to the reporting and inquiry procedures of the Committee on the Rights of Persons with Disabilities. Drawing from experimentalist governance theory, this contribution interrogates whether, and to what extent, this dialogue between locally placed actors and institutions (such as National Human Rights Institutions) on the one hand, and internationally situated actors and institutions (such as the Committee) on the other, has the potential to bolster the implementation of the Convention on the Rights of Persons with Disabilities. At its core, experimentalism proffers a nor- matively attractive vision of how broadly agreed upon goals can be brought to life in a multi-level setting, such as the monitoring mechanism contemplated by the Convention on the Rights of Persons with Disabilities with its unique role and defini- tion for both international and national actors. By analysing Article 33 through an experimentalist governance lens, the contribution thus hopes to highlight a rou- tinely neglected or underestimated aspect of the human rights treaty system, that is, the iterative and dynamic interaction between locally situated actors and institutions and internationally situated actors and institutions, and bring to light what this por- tends for the Convention’s implementation in reality. [less ▲]

A TWAIL Critique of Due Diligence Legislation

Speeches/Talks (2022)

In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism

in Baade, Björnstjern; Burchardt, Dana; Feihle, Prisca (Eds.) et al Cynical International Law? Abuse and Circumvention in Public International and European Law (2021)

Despite a promising start in the Universal Declaration of Human Rights, economic and social rights still retain a second-class status in most national jurisdictions. What explains this reticence with ... [more ▼]

Despite a promising start in the Universal Declaration of Human Rights, economic and social rights still retain a second-class status in most national jurisdictions. What explains this reticence with which economic and social rights are (still) regarded? This chapter analyses how the sceptical gaze through which states view economic and social rights legitimises (or attempts to legitimise) government failures to provide for those members of their populace who are in most desperate need, and (unsuccessfully) masks the self-interest that pervades most of international law. The chapter commences with a brief introduction and subsequently proceeds in three subsequent parts. Section 2 demonstrates that cynicism was used as a sword to pierce the normative foundations of economic and social rights generally, and the International Covenant on Economic, Social and Cultural Rights particularly in the early days both before and after its adoption leading to economic and social rights’ lower status in the human rights family; Section 3 posits that cynicism has been relied upon as a shield to offer errant states a defence for not meeting their obligations under both international and national (constitutional) economic and social rights norms; and finally Section 4 argues that a certain amount of cynicism is inherent in the history of economic and social rights and how they advanced through the ages, but more optimistically that a light at the end of the tunnel exists because contemporary developments point to less rather than more cynicism in the area of economic and social rights in today’s world. [less ▲]

(Laws) Made in the ‘First World’: A TWAIL Critique of the Use of Domestic Legislation to Extraterritorially Regulate Global Value Chains

in ZaöRV: Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht (2021), 81(2), 497-532

In the last ten or so years a ‘new kid on the block’ has arrived on the Business and Human Rights scene; that is, the use of domestic legislation to regulate theGlobal Value Chains (GVCs) of Transnational ... [more ▼]

In the last ten or so years a ‘new kid on the block’ has arrived on the Business and Human Rights scene; that is, the use of domestic legislation to regulate theGlobal Value Chains (GVCs) of Transnational Corporations (TNCs). The intention behind these so called ‘supply chain laws’ is to (begin to) hold TNCs accountable for violations of human rights and environmental norms within the context of their operations. This need for national legislation can be partly attributed to the fact that the international level has been plagued with paralysis in attempting to come up with binding rules to regulate the behaviour of TNCs.1 In fact, it is only as recently as August 2020 that the Second Revised Draft of the binding treaty on TNCs and human rights has been completed and awaits next steps. Given this regulatory gap in the international legal sphere, the mushrooming of domestic supply chain laws in diverse countries such as the United States of America (USA), France and Germany (which on 11 June 2021 finally passed a corporate due diligence in supply chains law, the ‘Lieferkettensorgfaltspflichtengesetz – LkSG’) sets the stage for this paper’s analysis of these laws in light of Third World Approaches to International Law (TWAIL), a critical scholarly network that offers a distinctive way of thinking about international law. ‘TWAIL scholarship has addressed multiple issues related to society, politics, identity, and economics – with an underlying commitment to democratic values and concerns in relations within and between the Third World and developed countries’ and (as will be shown in subsequent sections of this article) can and should be extended to an analysis of domestic supply chain laws that are ‘made in the First World’. [less ▲]

Like a Phoenix from the Ashes of Insolvency: An Appraisal of the Rescue Culture of the Kenyan Insolvency Act of 2015

in East African Community, Law Journal (2020), 1(1), 33-50

Caroline Lichuma and Florence Shako posit that the goal of any modern insolvency regime is to salvage financially viable companies or to provide individuals in financial distress with breathing room ... [more ▼]

Caroline Lichuma and Florence Shako posit that the goal of any modern insolvency regime is to salvage financially viable companies or to provide individuals in financial distress with breathing room without or before subjecting them to the liquidation or bankruptcy processes. The application of the Insolvency Act 2015 and the accompanying Insolvency Regulations of 2016, they note, is bound to have a more than positive change in the Kenyan insolvency regime. In that context, the rescue procedures should be adequately utilized in order to ensure a lasting change in the administration of the insolvency regime in Kenya. It is hoped that there will be no need to be ‘rescued from rescue’ procedures as a result of misuse or abuse of these mechanisms. They convey optimistsm that under the aegis of this fortified rescue culture, many deserving debtors in Kenya, especially companies worth saving, will live on to trade and enrich the country. [less ▲]

In international law we (do not) trust The persistent rejection of economic and social rights as a manifestation of cynicism

Article for general public (2019)

Like a Phoenix from the Ashes of Insolvency: An Appraisal of the Rescue Culture of the Kenyan Insolvency Act of 2015

in Kenya Law Review (2019), 7(1), 69-85

Before the commencement of the Insolvency Act of 2015, the statutory provisions regulating insolvency law in Kenya were found in the Companies Act, Cap 486 of the Laws of Kenya and the Bankruptcy Act, Cap ... [more ▼]

Before the commencement of the Insolvency Act of 2015, the statutory provisions regulating insolvency law in Kenya were found in the Companies Act, Cap 486 of the Laws of Kenya and the Bankruptcy Act, Cap 53 of the Laws of Kenya. The pertinent provisions of the former outlined the procedure to be followed in the event of corporate insolvency while the latter detailed the course of action to be followed in the event of personal insolvency, or bankruptcy as it is more commonly known. Despite the dissimilarities in the two regimes of insolvency law there was one crucial similarity between them, that is, neither the Bankruptcy Act nor the Companies Act espoused a rescue culture. An individual found to have committed “an act of bankruptcy” would be declared bankrupt by a court of competent jurisdiction and a corporate body would in most cases be wound up. It is for this reason that the insolvency laws in Kenya were for a long time referred to as the “Kiss of Death” Laws. This reality was articulated in Jambo Biscuits v. Barclays Bank (2002) where Justice Ringera stated, “I think it is notorious facts of which judicial notice may be taken that receiverships in this country have tended to give the kiss of death to many a business.” The Kenyan Insolvency Act of 2015 is closely modelled upon the UK Insolvency Act of 1986. This latter Act epitomizes the rescue culture. As elaborated upon by Lord Browne-Wilkinson the rescue culture seeks to preserve viable businesses and is fundamental to much of the Insolvency Act of 1986. This Act was the governmental response to the report and recommendations of a multi-disciplinary committee tasked with reviewing insolvency law and practice in the United Kingdom in the late 1970s. The Cork Committee laid the foundations for the so called rescue culture and argued that a good, modern system of insolvency law should provide a means for preserving viable commercial enterprises capable of making a useful contribution to the economic life of the country: “We believe that a concern for the livelihood and well-being of those dependent upon an enterprise which may well be the lifeblood of a whole town or even a region is a legitimate factor to which a modern law of insolvency must have regard. The chain reaction consequences upon any given failure can potentially be so disastrous to creditors, employees and the community that it must not be overlooked.” Rescue procedures are thus major interventions necessary to avert the eventual failure of a company. Central to the notion of rescue is, accordingly, the idea that drastic remedial action should be taken at a time of corporate crisis. This remedial action should take place ex ante as opposed to attempting to deal with the backlash that follows total corporate failure ex post facto. The term rescue culture has primarily been used in the context of corporate insolvency, but the present research will attempt to extend its use to personal insolvency specifically arguing that the various alternatives to bankruptcy do have the effect of rescuing an insolvent individual from otherwise imminent bankruptcy which has grim ramifications for persons adjudged bankrupt. This research will be divided into three subsequent parts. Part I will endeavor to summarize the roots of the current insolvency regime in Kenya, as well as examine the meaning of rescue culture together with its importance in any well-functioning insolvency regime. Part II will analyze the aspects of the Insolvency Act, 2015 that espouse a rescue culture for insolvent natural persons. Part III will analyze the rescue options for corporate bodies whose financial position is redeemable. The paper will end with a brief conclusion. [less ▲]