Private Law Remedies, Human Rights, and Supply Contracts

Private Law Remedies, Human Rights, and Supply Contracts

68 Am. U. L. Rev. 1781 (2019).

* Professor of Law, St. Thomas University School of Law.  The Author wishes to thank research assistants Jose De la Cruz, Renato Da Costa Almeida, Heidy Gonzalez, and Jikky Thankachan of St. Thomas University School of Law for their valuable work on this project.  The Author also wishes to thank Professor David Snyder (American University Washington College of Law) and Susan Maslow (Antheil Maslow & Macminn, LLP) for their leadership of the ABA Working Group and Christopher Johnson (Center for Justice, Rights & Dignity), Professor Sarah Dadush (Rutgers Law School), and Professor Stephen Sepinuck (Gonzaga University School of Law) for their comments on my proposals in this Article.

Implementation of company human rights policies through the supply chain necessarily includes access to the full range of contractual remedies.  Many corporations already have corporate human rights policies respecting a wide number of human rights that might be violated in the supply chain, yet having corporate policy is not akin to action.  To the extent commercial buyers implement corporate policies in supply chain contracts the contractual obligations are answerable for breach.  The Uniform Commercial Code and the UN Convention for the International Sale of Goods provide access to contractual remedies using a market-based remedial framework that would assist in curbing breaches arising from the use of forced or slave labor in international supply chains.  This Article provides an overview and analysis of available remedies for breach of a corporate human rights policy implemented in the supply chain.  Buyers have access to these remedies either through default or as specifically contracted for remedies, subject to the general notions disfavoring penal damages. The Model Contract Clauses from the American Bar Association’s Working Group to Draft Human Rights Protections in International Supply Contracts operate to provide such alternate remedies to buyers implementing human rights policies as contractual supply chain obligations that operate consistently with the existing legal frameworks.