Access to remedy concerns the responsibility of States and the corporate sector to permit access to effective remedy for those who are affected. This should be achieved by both judicial and non-judicial mechanisms.
The Federal Council acknowledges its duty to grant access to remedy to those affected by human rights abuses committed on Swiss territory and/or under Swiss jurisdiction. It believes the principal means of doing this is via the Swiss judicial system, along with alternative, non-judicial disputeresolution mechanisms.
The Federal Council acknowledges its responsibility to facilitate access to Swiss grievance mechanisms where business enterprises based in Switzerland are involved in human rights abuses abroad, and those affected in the host country have no appropriate access to effective remedy.
State judicial mechanisms
The Federal Council recognizes the importance of effective domestic judicial mechanisms to punish offenders and grant remedy to victims of human rights abuses connected with business enterprises. The extra-territorial dimension of any judicial mechanisms must be examined here. The Federal Council supports efforts to achieve a better understanding of the relevant frameworks in different countries, and encourages international processes.
Under certain circumstances, it is possible under Swiss law for individuals who believe that their rights have been violated by Swiss companies to bring an action or to appeal before Swiss courts. The competence of these courts to hear such cases, as well as the applicable law, must be assessed individually.
In 2014, the federal government commissioned a study from the SCHR on jurisdiction in cas-es of infringements of human rights by transnational business enterprises. The analysis con-centrates on the ways in which those affected by human rights abuses committed by Swiss companies abroad can claim effective remedy before Swiss courts. The study evaluates Switzerland in comparison with the international community, and identifies any future measures.
In fulfilment of postulate 14.3663 "Zugang zur Wiedergutmachung" ['Access to remedy'], sub-mitted by the Council of States Foreign Affairs Committee, the Federal Council is also analys-ing which judicial and non-judicial measures are being put in place by other States to permit persons whose human rights have been violated by a company in a host state to seek reme-diation in that company's home State. Drawing on the study, by 2019 the Federal Council will examine possible measures in the Swiss context.
As part of work in fulfilment of motion 14.4008 "Anpassung der Zivilprozessordnung" ['Amend-ment of the Civil Procedure Code'] and postulate 14.3804 "Zivilprozessordnung. Erste Erfahrungen und Verbesserungen" ['Civil Procedure Code. Initial experience and improve-ments'], the Federal Council is currently examining the law of civil procedure in order to identify shortcomings. It will submit any proposed revisions to Parliament by the end of 2018 at the latest. The situation with regard to legal costs, in particular, is to be investigated.
Furthermore, in fulfilment of motion 13.3931 "Förderung und Ausbau der Instrumente der kollektiven Rechtsdurchsetzung" ['Furthering and extending class action instruments'], the Federal Council is also currently drawing up draft bills which will make it easier for a number of injured parties in low-value and mass claims to bring a class action. Individual aspects of the existing instruments are to be improved, and new instruments introduced.
Switzerland engages in political dialogue and international development cooperation to support its partner States which exhibit deficits in governance. This support aids them in establishing and strengthening the rule of law, so they are better able to fulfil their duty to protect. These programs include public-private partnership projects.
State non-judicial grievance mechanisms
State non-judicial grievance frameworks can be an important factor in gaining remedy for human rights abuses. They enable the parties to identify solutions, avoiding lengthy and costly court proceedings.
The states signatory to the OECD Guidelines for Multinational Enterprises are obliged to set up a non-judicial grievance mechanism in the form of an NCP. Submissions may be made to the NCP where multinational enterprises based in one of the signatory states are accused of failing to comply with the OECD Guidelines, which also include a chapter on human rights
The secretariat of the Swiss NCP forms part of SECO, but involves the relevant federal agencies in handling submissions, and receives advice on its strategic orientation from the multi-stakeholder NCP Advisory Board.
Labour relations can give rise to various disputes, for example regarding pay and working hours or because of discrimination or an appeal against dismissal. In every canton exist arbitration procedures for conflicts which take place in the cantons. For collective disputes which extend beyond the cantonal border there is a federal arbitration procedure.
Swiss business enterprises, and especially those that are particularly heavily exposed to hu-man rights risks, should provide appropriate grievance mechanisms at the corporate level to allow those affected by abuses to claim remediation. Such mechanisms can also have a pre-ventative effect.
The Federal Council regards support for grievance mechanisms as part of multi-stakeholder initiatives as an important means of guaranteeing access to remedy. They not only facilitate redress for those affected by abuses, but also boost the effectiveness and credibility of the initiatives concerned.
The International Code of Conduct for Private Security Service Providers stipulates an innovative grievance mechanism by which to punish violations by business enterprises. Claims may be made by employees or by third parties.
Switzerland provided content and financial support for the introduction of the ICoC grievance mechanism. It also makes a financial contribution to the International Code of Conduct Association, which is responsible for implementing the grievance mechanism.
Switzerland will continue to offer political and financial support for the implementation of the ICoC, and thus also its grievance mechanism. Furthermore, through its membership of other multi-stakeholder initiatives it will promote the introduction of further such mechanisms.