My alarm clock went off – 4h30 am. What am I doing? (!) was my immediate reaction, as I got up sluggishly. I was getting ready to get to the airport to catch a flight to Geneva. The International Bar Association was hosting a ‘Business and the Bar’ (drinks were on offer at the end of the day – pun intended!) session for lawyers from across to globe to discuss how the UN Guiding Principles on Business and Human Rights affects lawyers. And indeed how lawyers should be responding to the UNGPs, in particular. This follows the IBA publishing its working draft ‘Business and Human Rights Guidance for Bar Associations’.
We have been involved in this agenda for some time – commenting on the IBA’s draft recommendations, developing content and providing trainings and workshops around the topics of legal CSR, interacting with the England and Wales Law Society who are also developing guidance in this area, and drafting practice notes for Lexis PSL on the subject. It was motivating to be surrounded by internationally recognised experts in this space.
The Palais Des Nations was the hosting venue.
As everyone introduced themselves I realised the level of professionals I was sitting amongst – so many accomplished leaders in the field – and I was excited for the stimulating conversations to come. The day did not disappoint.
A number of key points which came up during day 1’s panel discussions and the Q&A sessions are worth highlighting and reflecting upon here.
For those sceptics in companies that think the issue of ‘human rights’ is just a piece of CSR ‘soft stuff’ or ‘not relevant’ they should take note of the direction that these issues are moving in. We have already seen the growth in mandatory requirements on disclosure of human rights issues in the case of listed companies in the UK, or large entities as defined in the EU Directive on this (Free guides available on these topics available here). The UK Modern Slavery Act will also require companies that fall within a certain threshold (yet to be determined) to provide a ‘slavery statement’ that will have to be signed off by the top decision-makers of an organisation, such as the board of directors.
Although the UNGP’s framework lacks an enforcement mechanism, it is accepted that they are a game changer for business. They provide the benchmark for best practice for companies that seek to fulfill their duty to respect human rights. One of the key features of the UNGPs is that companies are required to carry out due diligence to ensure that their processes don’t cause or directly or indirectly contribute to human rights abuses. What is interesting is that the debate on due diligence is no longer being confined to the ‘optional/ voluntary’ model. In April 2015, the European Parliament adopted a motion calling for mandatory human rights due diligence. There is also now a real drive in certain countries in the EU to make human rights due diligence mandatory. The Swiss Coalition for Corporate Justice has launched a Responsible Business Initiative to enshrine human rights and environmental due diligence. The proposal extends to civil liability to enable people adversely impacted by Swiss companies’ international activities to bring damages claims in Switzerland.
Hot on the heels of this development is the French legislative proposal that will require the certain French multinationals to put in place a due diligence plan to prevent harm to human rights and the environment. The legislation is radical. Currently, the draft legislation would allow French parent or purchasing companies to be made liable and responsible for harmful activities in their operations and supply chains. It will make it easier for lawyers representing people harmed by the activities of French subsidiary companies operating abroad.
There have also been some notable cases in this area in the last year. In the Joe Fresh case the, parent company Loblaw is subject of the claim. The class action lawsuit has been brought by victims (and/or their family members) of the collapse of Rana Plaza in Bangledesh back in 2013, with combined claims for damages of over a billion dollars.
Also, in the case of Doe v Nestle the court looks at assigning responsibility on the basis of where leverage exists within the entire supply chain. Take a look at our legal insight on this case and what it could mean for business here.
What these cases and the evolving laws show is the growing demand for companies (who in many cases can exercise more influence or generate more impact than certain countries and their governments) to take responsibility for their behaviour. In particular, companies need to KNOW and SHOW that they do not perpetrate human rights abuses within their operations and supply chains.
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