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Thursday 20 November 2014

The IBA's Business and Human Rights Working Group publishes draft guidance for bar associations and lawyers

The IBA's Business and Human Rights Working Group has published a guidance for bar associations and business lawyers on the implementation of the United Nations (UN) Guiding Principles on Business and Human Rights (‘Guiding Principles’) – the first guidance of its kind since the UN Human Rights Council endorsement of the Guiding Principles in 2011.

Released in draft form, the IBA Guidance is divided into two working documents, one for bar associations and the other for business lawyers practising as in-house counsel and in law firms. Read the press release here

The Group is chaired by John F Sherman III, former Co-Chair of the IBA Corporate Social Responsibility (CSR) Committee, and has the support of the CSR Committee, operating in coordination of the IBA Legal Projects Team.

Background

In July 2005, Harvard Kennedy School Professor John Ruggie was appointed as Special Representative to the Secretary General of the United Nations on Business and Human Rights. In June 2011, following six years of international consultations and research, the UN Human Rights Council unanimously endorsed his Guiding Principles on Business and Human Rights (the 'Guiding Principles'). The Guiding Principles implement the three pillars of Professor Ruggie’s Protect, Respect, and Remedy Framework –the state's duty to protect human rights, business's responsibility to respect human rights, and the need for greater access to remedy – welcomed by the Council in 2008.

Since 2011, the Guiding Principles have become an authoritative global reference point for business and human rights. Global CSR standards have referenced or aligned themselves with the Guiding Principles. Requirements that companies report on the impact of their business activities on human rights have been enacted into law and are reflected in stock exchange listing requirements. Governments have enacted national action plans for implementing the Guiding Principles, and export credit agencies and National Development Finance Institutions are focusing on them too. Judicial and non-judicial forums are increasingly hearing human rights disputes involving business. Hundreds of companies have adopted explicit human rights policies, and leading companies are asking their lawyers for proactive advise on how to manage human rights risks.

IBA involvement

The IBA participated actively in the consultation stages of the Framework as a partner of BASESwiki, a critical project for Professor Ruggie that mapped grievance mechanisms to solve disputes between business and communities. Since the endorsement of the Principles by the UN Rights Council, the IBA has continued its efforts to promote and encourage discussions through seminars, articles, sessions, webcasts, etc.

The Guiding Principles are squarely on the agenda of the legal profession. The American Bar Association endorsed the Guiding Principles in 2011. In 2013, the Law Society of England and Wales, established a Business & Human Rights Advisory Group, which earlier this year, recommended that the Society take specific steps to integrate the Guiding Profession into the practice of law by providing practical guidance, raising awareness, and training. Read their recommendations here.

The working group

In October 2013, during the IBA Annual Conference in Boston, the IBA Legal Projects Team held a brainstorming meeting with 15 bar representatives from different jurisdictions to discuss the relevance of the UNGP to the legal profession. There was agreement to set up a working group with two main objectives:

1.     To exchange best practices and experiences

2.     To establish a capacity building programme for bar associations based on a Business and Human Rights Guidance for Bar Associations

In March 2014 the IBA UNGPs Working Group was officially established under the auspices of the IBA CSR Committee with a special input from the IBA Bar Issues Commission (BIC). The Group is chaired by John F Sherman III, former Co-Chair of the IBA CSR Committee and Secretary, and currently General Counsel and Senior Advisor to Shift, an independent, non-profit centre for business and human rights practice, chaired by Professor Ruggie. The members of the Working Group are:

  • Stephane Brabant Co-Chair, IBA Corporate Social Responsibility Committee
  • Horacio Bernardes-Neto Chair, IBA Bar Issues Commission and Brazilian Bar Association
  • Gonzalo Guzman Head of Legal Projects, IBA
  • Umit Herguner American Bar Association and Turkish Bar Association
  • Robert Heslettt Law Society of England and Wales
  • Isabel Jimenez Mancha Spanish National Bar
  • Tatsu Katayama Japan Federation of Bar Associations
  •  Deidre Sauls Law Society of Namibia

The main aims of the Guidance for Bar Associations are to:

  • Encourage bar associations to improve the understanding of the relevance and applicability of business and human rights principles;
  • Urge bar associations to develop an overall strategy for integrating the Guiding Principles into the practice of law;
  • Provide information to heighten awareness of the implications of the Guiding Principles; and to
  • Serve as a training tool for current and future legal professionals.

For business lawyers the new Guidance:

  • Explores the ways in which the Guiding Principles may be relevant to the advice that business lawyers provide clients, consistent with their professional ethical responsibility as lawyers to uphold the law, to act in their clients’ best interests and to preserve client confidences;
  • Reviews potential implications of the Guiding Principles for law firms as business enterprises with their own responsibility to respect human rights, focusing on services rendered to clients; and  
  • Will assist the representation of the legal profession in the design of business and human rights policies before policy makers, governments and legislatures.

The IBA Guidance was presented and discussed at the 2014 IBA Annual Conference in Tokyo, Japan, during the IBA Showcase We’re all human rights lawyers now – the convergence of business and human rights and what it means for you.

Over the next 12 months, the IBA Business and Human Rights Working Group will solicit feedback from several national bar associations, including the Spanish National Bar, the Law Society of Namibia, and the Costa Rican Bar Association.

If you would like to know more about this IBA initiative, please contact the Legal Projects Team at LPTTeam@int-bar.org