The Responsible Business Initiative: Headstart for the KKS Counter-Proposal in the Conciliation Committee
Following back and forth consultations between the two Chambers (Council of States and the National Council), and with differences still remaining between both of them following the three votes, a Conciliation Committee was formed on June 4. After a fast discussion (only 45 minutes), the Conciliation Committee voted for the KKS counter-proposal with 15 to 11 votes.
This decision taken by the Conciliation Committee was then submitted for a vote to the National Council on June 8 and on June 9 to the Council of States.
- The National Council accepted the decision of the Conciliation Committee in favour of the KKS counter-proposal with 99 to 91 votes and 6 abstentions.
- The Council of States voted in favour of the KKS counter-proposal with 28 to 14 votes and 2 abstentions.
Therefore, the popular vote will take place on November 29, 2020 and the campaign will start this summer. This vote will be preceded by the popular vote of September 27 on the free movement of people with the EU: “For moderate immigration (Limitation Initiative)”, which may jeopardize the bilateral path Switzerland has taken in its relation with the EU until this day. As a result, until September 27, all national and local trade associations will be dedicated to contest the Limitation initiative.
The content of the Conciliation Committee’s proposal is in line with international standards. Firstly, the non-financial reporting duty is in line with an EU-Directive and the standards have been adapted to the conditions in Switzerland. Secondly, an additional due diligence requirement specific to risks associated with child labour in the value chain and trading of conflict minerals was introduced. These requirements go further than the current international standard and only the Netherlands have already implemented a regulation with similar content. As far as liability is concerned, the Conciliation Committee’s proposal adheres to the existing and internationally recognized liability provisions and eliminates any newly proposed liability provision, ensuring legal certainty (no reversal of the burden of proof).
Responsible Business Initiative
The initiative calls for the creation of a new liability provision of parent companies (large companies and SMEs in high risk sectors, such as mining and commodity trading) for wrongful acts of a controlled company (subsidiaries and suppliers) abroad. The catalogue of rights includes all internationally recognized human rights and environmental standards. The concrete consequences of such a liability provision, which would be unique internationally, are very difficult to foresee in detail. The initiative would increase legal uncertainty and; as a result, it will also endanger jobs, not only in Switzerland but also abroad. If a subsidiary of a Swiss parent company violates human rights, victims can directly sue the parent company in Switzerland for damages. To this end, the injured parties must be able to prove in court the damage suffered, its unlawfulness and an adequate causal link. If they succeed in doing so, the Swiss parent company would still have the possibility to free itself from liability, if it can prove that it has exercised all due diligence to avoid this specific damage (reversal of the burden of proof). In addition, Swiss courts would have jurisdiction in the event of liability claims, regardless of the existence of effective remedies in another country with a closer connection to the facts and a recognized legal system.
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