Soft law gets a hard look
White & Case launches firmwide human rights training for all our lawyers.
White & Case became a signatory to the UN Global Compact, the world’s largest voluntary corporate sustainability initiative, in July 2016.
In 2011, the United Nations Human Rights Council unanimously endorsed the UN's first corporate human rights initiative, the Guiding Principles on Business and Human Rights. The Guiding Principles emphasize the state duty to protect human rights, the corporate responsibility to respect human rights, and the need for both states and companies to provide remedies for victims of abuse.
Although adherence is voluntary, the Guiding Principles are proving to be a powerful influence that both promotes proactive action by companies and empowers actions by plaintiffs, governments and civil society that increase the costs of noncompliance by corporations.
Legal institutions have embraced the Guiding Principles in an effort to promote concrete standards and guidance. The International Bar Association (IBA), the American Bar Association, the Law Society of England and Wales and the Law Council of Australia have endorsed them and begun to provide direction on how to incorporate the principles into the practice of law. According to the IBA's report, Business and Human Rights Guidance for Bar Associations: "There are few areas of legal practice for which the Guiding Principles—and the human rights standards they reference—are not potentially relevant. And companies are increasingly requesting that their legal counsel provide advice that takes potential human rights risks into account as part of their broader management of legal risks."
There are few areas of legal practice for which the Guiding Principles—and the human rights standards they reference—are not potentially relevant.
IBA Business and Human Rights Guidance for Bar Associations
In response to this new paradigm, White & Case launched a firmwide business and human rights training program in partnership with Business for Social Responsibility (BSR), a nonprofit consultancy that works with 250 member companies around the world.
Peter Nestor, Associate Director of BSR, helped design regional training sessions held in the Americas, Asia and EMEA, and also served as faculty with White & Case lawyers. ‘"When it comes to businesses and their legal advisors engaging with human rights," Peter says, "we are at a formative—and very uncertain—juncture. When something really foundational, like the Guiding Principles, comes into play, governments tend to adopt a wait-and-see approach before formalizing the soft requirements into hard law or regulations. In this case, companies have been extremely proactive about taking the Guiding Principles on board and voluntarily implementing them. Law firms have historically been advisors rather than main players shaping the human rights agenda, but that is changing as multinationals now need clear guidance on how to approach these sensitive and critical issues for the first time."
Launched in July of 2016, the training sessions focus on the foundations of business and human rights, provide a review of some existing business practices, introduce relevant legal frameworks and offer workshops on mock legal and ethical problems.
The Guiding Principles are based on several international agreements on human rights, which have been adopted since the Universal Declaration of Human Rights in 1948. The principles provide the first global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity. In response to this "soft law," companies have created and disseminated human rights policy statements and undertaken audits of their own business practices and supply chains, among other initial efforts.
Yet hard—enforceable—law plays an increasingly significant role, and each training session included region-specific overviews of evolving legislation and case law. In New York, partner Owen Pell offered an expansive overview of recent US developments in human rights law as it relates to business.
Our work to train our lawyers in business and human rights was given a "standout" rating by the Financial Times.
FT North America Innovative Lawyers 2016 Report
Owen remarks: "Initiatives like the Firm's are especially important in light of continuing developments in how human rights law relates to companies. Thus, while it may have become harder for businesses to be sued in the United States under the US Alien Tort Statute, increasingly, the US and other countries are demanding greater disclosure by companies about how their businesses impact human rights, which can expose companies to adverse publicity, and potential litigation regarding the depth and quality of those disclosures." Owen also notes that "this demand for greater transparency is likely to continue and accelerate."
Recent legislative efforts reflect an increased desire on the part of governments to formalize business and human rights commitments, and all three training sessions featured extensive discussion of legislation such as the UK Modern Slavery Act. This reflects a broad trend toward greater disclosure, mandating that businesses post statements describing their efforts to eradicate modern slavery from supply chains. In the United States, noteworthy legislation includes the California Transparency in Supply Chains Act, which has helped promote corporate behavior that is consistent with human rights goals by requiring similar disclosures.
London partner Clare Connellan also served as faculty for the training. "The second pillar of the Guiding Principles addresses the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which a business may be involved," says Clare. "Operating in jurisdictions around the world, our business clients are increasingly aware of their impact on human rights. This training is an important step for our lawyers to be aware of the issues and risks to human rights that exist for our business clients, and to advise with an understanding of best practices and relevant legislation to mitigate or avoid involvement in adverse human rights impacts."
"This training is a key part of White & Case's commitment to increasing knowledge of human rights issues and is consistent with our Firm being a signatory to the UN Global Compact," says Jacquelyn MacLennan, partner and Global Pro Bono Practice Leader. "The reaction to the training sessions has been fantastic," she notes. "All of our lawyers, from the most junior associates to the most senior partners, in all our offices, benefit from an enhanced understanding of human rights and how they impact the areas in which they operate. All of our lawyers need to have a working knowledge of the basics covered in this course."
UN SUSTAINABLE DEVELOPMENT
GOALS ADVANCED BY THIS WORK
01 | No Poverty
05 | Gender Equality
08 | Decent Work and Economic Growth
10 | Reduced Inequalities
12 | Responsible Consumption and Production
16 | Peace, Justice and Strong Institutions