Le droit à réparation des victimes de violations des droits humains par les entreprises multinationales

Alors que la question de la responsabilité juridique des entreprises multinationales (EMNs) est sujette à de nombreuses controverses sur la sphère internationale, les victimes collatérales et directes des activités des EMNs sont engagées dans une tout autre bataille. En effet, de quels recours disposent les victimes de pollution environnementale causée par les activités d’une entreprise minière, ou les employés victimes de violations des droits fondamentaux du travail au sein d’une chaîne de production par les sous-traitants d’une très respectable EMN? Telles sont les interrogations animant la présente étude qui se focalise essentiellement sur la mise en oeuvre du droit à la réparation consacrée par le troisième pilier des Principes directeurs adoptés par l’ONU en 2011. Retraçant les fondements du droit à la réparation en droit international, elle met en évidence l’impossibilité de poursuivre les EMNs devant les instances internationales du fait de l’irresponsabilité juridique internationale découlant du statut actuel des EMNS. En l’absence de législation extraterritoriale et d’harmonisation juridique au niveau régional, l’analyse aborde ainsi en profondeur les opportunités et les limites de la mise en oeuvre du droit à réparation devant les instances judiciaires nationales les plus courues du moment par les victimes qui cherchent à obtenir des réparations pour les violations des droits humains par les EMNs. Si les obstacles rencontrés par les victimes devant le prétoire américain n’ont eu de cesse de se multiplier ces dernières années, l’émergence d’un principe de diligence raisonnable sous-tendant l’idée d’une responsabilité civile des EMNS devant le juge européen et canadien peut offrir une base adéquate pour asseoir l’encadrement d’un droit à réparation par les acteurs transnationaux à l’échelle locale. Les Principes directeurs privilégiant également l’implication des EMNs dans la mise en oeuvre du droit à réparation, la recherche se clôt avec l’étude du cas pratique de la réponse apportée par les EMNs aux victimes bangladaises de la tragédie du Rana Plaza survenue en 2013 à Dacca. L’analyse permet ainsi de conclure que de ce combat aux allures de David contre Goliath opposant les EMNs à leurs victimes, il est impératif que les mécanismes judiciaires nationaux soient renforcés et que l’encadrement juridique de la responsabilité internationale des EMNs sorte enfin des sentiers battus afin de remédier à l’asymétrie causée par la poursuite des intérêts économiques sur la protection effective des droits humains.

Intellectual property management in M&A transactions

Purpose – The purpose of this paper is to focus on the intellectual property (IP) aspects of mergers and acquisitions (M&A) transactions. Design/methodology/approach – A holistic approach is proposed that embraces IP as an integral part of the M&A process in the form of a roadmap for the strategic and purposeful management of IP assets in M&A deals. Findings – Addressing IP issues in transactions in isolation can lead to undesirable consequences (e.g. considerable costs for unplanned purchases of rights). IP due diligence and IP integration project processes can be automated using collaborative software solutions. Thereby, risk can be reduced through the creation of a high level of transparency and predefined responsibilities. Practical implications – Although the proposed IP management framework is based on intellectual property matters relevant to German jurisdiction, conclusions derived and the proposed roadmap are transferable to other jurisdictions and hence have a broader relevance. Evidence for this is provided by the successful application of the roadmap in the context of the multinational transaction stated above. Originality/value – This paper is based on the authors' collective experience, insight and reflected observation of M&A practice gained in advisory M&A roles in management consultancies over a period of more than a decade. The paper summarizes the authors' reflections and observations and brings these into the context of the current management literature. Moreover, this paper builds on earlier published research.

New scientific paradigms for probiotics and prebiotics

The inaugural meeting of the International Scientific Association for Probiotics and Prebiotics (ISAPP) was held May 3 to May 5 2002 in London, Ontario, Canada. A group of 63 academic and industrial scientists from around the world convened to discuss current issues in the science of probiotics and prebiotics. ISAPP is a non-profit organization comprised of international scientists whose intent is to strongly support and improve the levels of scientific integrity and due diligence associated with the study, use, and application of probiotics and prebiotics. In addition, ISAPP values its role in facilitating communication with the public and healthcare providers and among scientists in related fields on all topics pertinent to probiotics and prebiotics. It is anticipated that such efforts will lead to development of approaches and products that are optimally designed for the improvement of human and animal health and well being. This article is a summary of the discussions, conclusions, and recommendations made by 8 working groups convened during the first ISAPP workshop focusing on the topics of: definitions, intestinal flora, extra-intestinal sites, immune function, intestinal disease, cancer, genetics and genomics, and second generation prebiotics. Humans have evolved in symbiosis with an estimated 1014 resident microorganisms. However, as medicine has widely defined and explored the perpetrators of disease, including those of microbial origin, it has paid relatively little attention to the microbial cells that constitute the most abundant life forms associated with our body. Microbial metabolism in humans and animals constitutes an intense biochemical activity in the body, with profound repercussions for health and disease. As understanding of the human genome constantly expands, an important opportunity will arise to better determine the relationship between microbial populations within the body and host factors (including gender, genetic background, and nutrition) and the concomitant implications for health and improved quality of life. Combined human and microbial genetic studies will determine how such interactions can affect human health and longevity, which communication systems are used, and how they can be influenced to benefit the host. Probiotics are defined as live microorganisms which, when administered in adequate amounts confer a health benefit on the host.1 The probiotic concept dates back over 100 years, but only in recent times have the scientific knowledge and tools become available to properly evaluate their effects on normal health and well being, and their potential in preventing and treating disease. A similar situation exists for prebiotics, defined by this group as non-digestible substances that provide a beneficial physiological effect on the host by selectively stimulating the favorable growth or activity of a limited number of indigenous bacteria. Prebiotics function complementary to, and possibly synergistically with, probiotics. Numerous studies are providing insights into the growth and metabolic influence of these microbial nutrients on health. Today, the science behind the function of probiotics and prebiotics still requires more stringent deciphering both scientifically and mechanistically. The explosion of publications and interest in probiotics and prebiotics has resulted in a body of collective research that points toward great promise. However, this research is spread among such a diversity of organisms, delivery vehicles (foods, pills, and supplements), and potential health targets such that general conclusions cannot easily be made. Nevertheless, this situation is rapidly changing on a number of important fronts. With progress over the past decade on the genetics of lactic acid bacteria and the recent, 2,3 and pending, 4 release of complete genome sequences for major probiotic species, the field is now armed with detailed information and sophisticated microbiological and bioinformatic tools. Similarly, advances in biotechnology could yield new probiotics and prebiotics designed for enhanced or expanded functionality. The incorporation of genetic tools within a multidisciplinary scientific platform is expected to reveal the contributions of commensals, probiotics, and prebiotics to general health and well being and explicitly identify the mechanisms and corresponding host responses that provide the basis for their positive roles and associated claims. In terms of human suffering, the need for effective new approaches to prevent and treat disease is paramount. The need exists not only to alleviate the significant mortality and morbidity caused by intestinal diseases worldwide (especially diarrheal diseases in children), but also for infections at non-intestinal sites. This is especially worthy of pursuit in developing nations where mortality is too often the outcome of food and water borne infection. Inasmuch as probiotics and prebiotics are able to influence the populations or activities of commensal microflora, there is evidence that they can also play a role in mitigating some diseases. 5,6 Preliminary support that probiotics and prebiotics may be useful as intervention in conditions including inflammatory bowel disease, irritable bowel syndrome, allergy, cancer (especially colorectal cancer of which 75% are associated with diet), vaginal and urinary tract infections in women, kidney stone disease, mineral absorption, and infections caused by Helicobacter pylori is emerging. Some metabolites of microbes in the gut may also impact systemic conditions ranging from coronary heart disease to cognitive function, suggesting the possibility that exogenously applied microbes in the form of probiotics, or alteration of gut microecology with prebiotics, may be useful interventions even in these apparently disparate conditions. Beyond these direct intervention targets, probiotic cultures can also serve in expanded roles as live vehicles to deliver biologic agents (vaccines, enzymes, and proteins) to targeted locations within the body. The economic impact of these disease conditions in terms of diagnosis, treatment, doctor and hospital visits, and time off work exceeds several hundred billion dollars. The quality of life impact is also of major concern. Probiotics and prebiotics offer plausible opportunities to reduce the morbidity associated with these conditions. The following addresses issues that emerged from 8 workshops (Definitions, Intestinal Flora, Extra-Intestinal Sites, Immune Function, Intestinal Disease, Cancer, Genomics, and Second Generation Prebiotics), reflecting the current scientific state of probiotics and prebiotics. This is not a comprehensive review, however the study emphasizes pivotal knowledge gaps, and recommendations are made as to the underlying scientific and multidisciplinary studies that will be required to advance our understanding of the roles and impact of prebiotics, probiotics, and the commensal microflora upon health and disease management.

Valuation accuracy: reconciling the timing of the valuation and sale

Carsberg (2002) suggested that the periodic valuation accuracy studies undertaken by, amongst others, IPD/Drivers Jonas (2003) should be undertaken every year and be sponsored by the RICS, which acts as the self-regulating body for valuations in the UK. This paper does not address the wider issues concerning the nature of properties which are sold and whether the sale prices are influenced by prior valuations, but considers solely the technical issues concerning the timing of the valuation and sales data. This study uses valuations and sales data from the Investment Property Databank UK Monthly Index to attempt to identify the date that sale data is divulged to valuers. This information will inform accuracy studies that use a cut-off date as to the closeness of valuations to sales completion date as a yardstick for excluding data from the analysis. It will also, assuming valuers are informed quickly of any agreed sales, help to determine the actual sale agreed date rather than the completion date, which includes a period of due diligence between when the sale is agreed and its completion. Valuations should be updated to this date, rather than the formal completion date, if a reliable measure of valuation accuracy is to be determined. An accuracy study is then undertaken using a variety of updating periods and the differences between the results are examined. The paper concludes that the sale only becomes known to valuers in the month prior to the sale taking place and that this assumes either that sales due diligence procedures are shortening or valuers are not told quickly of agreed sale prices. Studies that adopt a four-month cut-off date for any valuations compared to sales completion dates are over cautious, and this could be reduced to two months without compromising the data.

IS capabilities for supporting post crisis regulatory compliance

The financial crisis of 2007-2009, has precipitated large scale regulatory change. Financial organizations are faced with implementing new regulations of considerable breadth and depth. Firms are faced with engaging in complex and costly change management programs at a time when profits are diminished. Furthermore, investors are becoming increasingly focused on compliance are seeking to ensure that organizations can demonstrate robust compliance practices as part of their due diligence process .The role of IS in underpinning stable, is paramount. IS allows the stable and consistent controls for meeting regulations in order to ensure long term effective compliance. Consequently, our study explores the IS capabilities which support the post crisis regulatory landscape. We identify eight key capabilities: Managing Internal Controls, Measuring Monitoring and Reporting Transactions, IS Development and Procurement, Managing Third Parties, Sharing and Selecting Best Practice, IS Leadership, Data Management and Enabling Cultural Change.

The tri-dimensional role of information security in E-business : a managerial perspective

The effective management of information and its associated infrastructure is critical in electronic business. Failure to exercise due diligence in information assurance and security may lead to lost revenue or business opportunities, brand and reputation erosion, adverse media publicity, scrutiny from consumer advocates and even lawsuits. Traditionally, information security was approached in terms of goals. Yet, the goalsoriented approach may be a flawed one. In this paper, we adopt a conceptual analytical approach and propose a tri-dimensional understanding of information security in electronic business. Our approach can help managers better understand and communicate the information security’s role in e-business and the inter-dependencies between business and legal requirements, for devising the goals, objectives and policies relevant to their organization.

A conceptual framework of e-fraud control in an integrated supply chain

The integration of supply chains offers many benefits; yet, it may also render organisations more vulnerable to electronic fraud (e-fraud). E-fraud can drain on organisations’ financial resources, and can have a significant adverse effect on the ability to achieve their strategic objectives. Therefore, efraud control should be part of corporate board-level due diligence, and should be integrated into organisations’ practices and business plans.
Management is responsible for taking into consideration the relevant cultural, strategic and implementation elements that inter-relate with each other and to coordinating the human, technological and financial resources necessary to designing and implementing policies and procedures for controlling e-fraud. Due to the characteristics of integrated supply chains, a move from the traditional vertical approach to a systemic, horizontal-vertical approach is necessary. Although the e-fraud risk cannot be eliminated, risk mitigation policies and processes tailored to an organisation’s particular vulnerabilities can significantly reduce the risk and may even preclude certain classes of frauds.
In this paper, a conceptual framework of e-fraud control in an integrated supply chain is proposed. The proposed conceptual framework can help managers and practitioners better understand the issues and plan the activities involved in a systemic, horizontal-vertical approach to e-fraud control in an integrated supply chain, and can be a basis upon which empirical studies can be build.

The money laundering risk posed by low-risk financial products in South Africa : findings and guidelines

Purpose – The purpose of this paper is to investigate the level and nature of criminal abuse of financial products that are classified as posing a low anti-money laundering/combating of financing of terrorists (AML/CFT) risk in South Africa to determine the effectiveness of the simplified due diligence measures that apply to these products.

Design/methodology/approach – The paper presents empirical research on the views of bank officials and law enforcement officials regarding the criminal abuse of South African financial products that are subject to simplified customer due diligence controls.

Findings – South Africa's AML/CFT laws allow certain deposit-taking institutions and money remitters to implement simplified customer due diligence measures in relation to specific low-risk products that are mainly designed to allow previously unbanked persons to access financial services. The paper finds that the products have been abused by criminals but that the incidence of such abuse and the amounts involved are low. The paper investigates possible weaknesses in the current system that allow limited criminal abuse to occur. It concludes with a number of guidelines that emerge from the study and are of value to regulators that wish to implement a similar system.

Originality/value – The South African AML/CFT scheme in relation to low-risk products is of interest to many international regulators that are grappling with the interplay between effective AML/CFT controls and the impact of strict controls on the ability of socially and economically excluded persons to access appropriate financial services. This paper provides evidence that appropriately designed controls can facilitate financial inclusion while limiting the risk of criminal abuse.

How we finance our new and growing firms

Entrepreneurs are the engines that drive new companies and financing is the fuel that propels them. One form of that financing is called informal investing, sometimes called ''business angel activity'' (which we reserve for more professional and commercial investors). Informal investors use their own money and carry out their own due diligence to invest in the entrepreneurial opportunities of other entrepreneurs.

Aligning anti-money laundering, combating of financing of terror and financial inclusion : Questions to consider when FATF standards are clarified

Purpose – The purpose of this paper is to identify key questions that should be addressed to enable the Financial Action Task Force (FATF) to provide guidance regarding the alignment of anti-money laundering, combating of financing of terror and financial inclusion objectives.
Design/methodology/approach – The paper draws on relevant research and documents of the FATF to identify questions that are relevant to consider when it formulates guidance regarding the alignment between financial integrity and financial inclusion objectives.
Findings – The FATF advises that its risk-based approach enables countries and institutions to further financial inclusion. It is, however, not clear what the FATF means when its uses the terms “risk” and “low risk”. It is also unclear whether current proposals for financial inclusion regulatory models will necessarily limit money laundering (ML) aswell as terror financing risks to levels that can be described as “low”. The FATF will need to clarify its own thinking regarding low money laundering and low terror financing risk before it will be able to provide clear guidance to national regulators and financial institutions.
Originality/value – This paper was drafted to inform current FATF discussions regarding guidance on financial inclusion. The questions are relevant to all stakeholders in financial regulation.

Balancing the benefits and risks of public–private partnerships to address the global double burden of malnutrition

Objective: Transnational food, beverage and restaurant companies, and their corporate foundations, may be potential collaborators to help address complex public health nutrition challenges. While UN system guidelines are available for private-sector engagement, non-governmental organizations (NGO) have limited guidelines to navigate diverse opportunities and challenges presented by partnering with these companies through public–private partnerships (PPP) to address the global double burden of malnutrition.

Design: We conducted a search of electronic databases, UN system websites and grey literature to identify resources about partnerships used to address the global double burden of malnutrition. A narrative summary provides a synthesis of the interdisciplinary literature identified.

Results: We describe partnership opportunities, benefits and challenges; and tools and approaches to help NGO engage with the private sector to address global public health nutrition challenges. PPP benefits include: raising the visibility of nutrition and health on policy agendas; mobilizing funds and advocating for research; strengthening food-system processes and delivery systems; facilitating technology transfer; and expanding access to medications, vaccines, healthy food and beverage products, and nutrition assistance during humanitarian crises. PPP challenges include: balancing private commercial interests with public health interests; managing conflicts of interest; ensuring that co-branded activities support healthy products and healthy eating environments; complying with ethical codes of conduct; assessing partnership compatibility; and evaluating partnership outcomes.

Conclusions: NGO should adopt a systematic and transparent approach using available tools and processes to maximize benefits and minimize risks of partnering with transnational food, beverage and restaurant companies to effectively target the global double burden of malnutrition.

Leading the quality management of online learning environments in Australian higher education

The paper presents the findings of the first year of a nationally funded Australian Learning and Teaching Council (ALTC) project on the quality management of online learning environments by and through distributed leadership. The project is being undertaken by five Australian universities with major commitments to online and distance education. Each university, however, has a distinctive location, history and profile in the sector. The first year of the project has seen the development of a quality management framework with six interrelated elements. The framework is being applied, refined and validated in the second year of the project. Allied with the development of the framework, was the conduct of focus groups at each of the five partner institutions in the middle of the first year. These focus groups composed a range of staff involved collectively in the leadership of the organisation's online learning environment. Prominence was given to the nature and value of strategic planning, due diligence conducted in selecting and mainstreaming technologies, evaluation approaches informing decision making, and the various relationships between different leadership levels and domains. A number of key issues which emerged relating to the elements identified in the framework are examined.

A responsabilização do coordenador líder de ofertas públicas de ações por infração ao dever de informar: como indenizar os danos dos investidores?

O presente trabalho analisa a aplicabilidade dos regimes de responsabilidade civil para indenizar os investidores por danos decorrentes de infrações do coordenador líder de oferta pública de ações. A responsabilização desse agente tem por base o dever de agir com elevado padrão de diligência para: (i) assegurar a qualidade das informações; (ii) divulgar informações de forma que permita o investidor tomar uma decisão fundamentada; e (iii) atuar em conformidade com o princípio da boa-fé. Para tanto, serão estudados os regimes de responsabilidade civil subjetiva, fundado na conduta culposa do coordenador líder, e de responsabilidade objetiva, com base no Código de Defesa do Consumidor e no risco da atividade de intermediação financeira em ofertas públicas de ações. Pretende-se, por fim, identificar o regime mais apropriado para a reparação de danos dos investidores.

International private equity funds strategies in the Brazilian market

The Private Equity Market in Brazil has flourished in the last two decades, and international Funds have been entering the market since then. The activity of these enterprises and how they deal with institutional voids that are present in the brazilian market and the all spheres of distances they have with Brazil are investigated in this research. What are the main challenges for those players in the local market and how private equity functions in Brazil? The first chapter reviews all the literature that concerns private equity in their home countries, such as the United States and Spain (Europe) and Brazil. It also discourses about the concept of private equity in all its different senses, the routine of investees and how is the relationship between Private Equity Fund and Investee. In addition to that, the due diligence process is also explained as well as the private equity sector in Brazil and its regulation. Moreover, the distance between countries and how it affects business is presented followed by the concepts of institutional voids. For the inquiry proposed interviews were conducted in order to capture the perspective of International Private Equity Funds on the Brazilian market. Advent International, The Carlyle Group and Mercapital replied to the inquiries and provided the tools so a picture of the sector was developed. This sector has a range of challenges and opportunities and requires the International Fund to establish a local branch in order to really succeed in the market. The results of this project pointed out to the challenges the market presents and how International Private Funds are coming about it. There are definitely gaps that need to be fulfilled however the industry is going in the right direction. Revenues may change its nature in the next couple of years, however from the Private Equity Fund perspective Brazil has been a worthwhile investment. Nonetheless, it is important to question the vision also of the investee and institutional investor so one can have the entire picture of the sector.

Why merger talks collapse: an exploratory study about contributing factors to ‘wedding cold feet' and deal making failure in mergers and acquisitions from the perspective of active deal making professionals in Brazil

Why merger talks collapse: an exploratory study about contributing factors behind ‘wedding cold feet' and deal making failure in Mergers and Acquisitions from the perspective of active deal making professionals in Brazil. One basic question encouraged this study: after all the effort, expectations and money usually invested in dealmaking, why are so many transactions simply abandoned, even when the benefits are clear for the business, shareholders, customers and employees?