Business and Human Rights for the Legal Profession

TRAINING LAWYERS ON
BUSINESS AND HUMAN RIGHTS

IMPORTANCE OF BUSINESS AND HUMAN RIGHTS FOR CORPORATE LAWYERS

There is a growing awareness of the negative impact on and adverse participation in human rights by businesses. A failure to respect human rights may present legal, financial and reputational risks to companies and can have grave consequences for companies that fail to observe them.

Law firms are increasingly expected to advise their clients on the identification and management of human rights risks, as well as broader reputational risks that may be associated with it. Law firms may also be expected to respect human rights, as businesses are becoming more aware of their supply chain risks.

In-house lawyers are the first port of call for advice relating to business practices and principles, including global soft law standards, such as United Nations Guiding Principles on Business and Human Rights (“UNGPs”). Moreover, in-house lawyers also play a significant role in managing the company’s strategic and reputational risks, including those regarding human rights.

Importantly, human rights are constantly evolving and are increasingly reflected in hard law instruments. Illustrative examples include the Section 1502 of the Dodd-Frank Act (2010), the California Transparency in Supply Chain Act (2012), 2014/95/EU Non-Financial Reporting Directive (2014) and the UK Modern Slavery Act (2015).

BACKGROUND INFORMATION ON THE PROJECT

Since the endorsement of the UNGPs, the International Bar Association (“IBA”) has continued its efforts to promote and encourage discussions on business and human rights through various means, including seminars, articles, sessions, and webcasts.
The IBA Legal Policy & Research Unit (“ IBA LPRU”) formed the IBA Business and Human Rights Working Group (“Working Group”), after consultation with various representatives of Associations, Societies and Members, at the 2013 IBA Annual Conference in Boston. The Working Group mandate was to further support the work of bar associations and law societies with respect to business and human rights (“B&HR”) and to further explore the implications of the UNGPs for lawyers through the development of guidance documents.

In developing these guidance documents the Working Group and the IBA LPRU conducted numerous rounds of consultations with IBA committees, bar associations, law societies, individual lawyers, civil society organisations, academics and corporations. Furthermore, three detailed in-country consultations were conducted by the IBA LPRU, in collaboration with the Bar Associations of Spain, Costa Rica and Namibia. These guidance documents became known as the IBA Business and Human Rights Guidance for Bar Associations (“Bar Association Guidance”), and the IBA Practical Guide for Business Lawyers on Business and Human Rights (“Practical Guide”)

At its Annual Conference in Vienna on the 8th of October 2015, the IBA Council adopted the Bar Association Guidance, and committed to consider the Practical Guide.

The IBA approved the Practical Guide at its mid-year meeting in Barcelona on the 28th of May 2016. The Working Group, in collaboration with the IBA LPRU also prepared the Reference Annex to supplement the Practical Guide.

The Bar Association Guidance aims to inform bar associations on how they may promote, launch and develop business and human rights initiatives that are relevant to practitioners in their jurisdictions.

The Practical Guide is intended to assist internal and external lawyers, who are involved in advising businesses globally, to understand:

  • the core content of the UNGPs based on its framework of three core pillars:
    • the state duty to protect human rights;
    • the corporate responsibility to respect human rights; and
    • the role of both states and companies to enable greater access to effective remedy, judicial and non-judicial, for victims of business-related abuses
  • the relevance of the UNGPs to the advice provided to clients by individual lawyers subject to their unique professional standards and rules (whether they are in-house or external counsel acting in their individual capacity or as members of a law firm); and
  • the potential implications of the UNGPs’ for law firms as business entities with a responsibility also to respect human rights.

This Reference Annex intends to be consistent with the general principles of the Practical Guide and consists of:

  • an in-depth review of the UNGPs;
  • the Interpretive Guide on the Responsibility to Respect prepared by the Office of the High Commissioner of Human Rights; and
  • the extensive literature, ongoing practices and policies of governments, multi-stakeholder institutions, bar associations and companies.

The IBA appreciates the contribution and hard work from John F. Sherman III, Chair of the Working Group and the key drafter of the Bar Guidance, the Practical Guide and the Reference Annex.

THE HANDBOOK

The potential human rights impacts of legal advice in commercial transactions, mergers and acquisitions (“M&A”), litigation and arbitration, as well as banking and finance is being increasingly well-recognised. Other areas of legal advice that may have possible human rights implications are company law compliance, intellectual property, property and environmental law, criminal defence work, employment law and pensions.

For these reasons, the IBA LPRU is adopting a chapter by chapter approach to the development of a BH&R handbook for lawyers. The first phase of work is focusing on company and commercial work (including M&A). This will include an examination of the roles and responsibilities of lawyers in helping companies to develop ethical global supply chains.

The IBA Handbook is being developed by a highly experienced consultant, in collaboration with a group of distinguished business and human rights experts drawn from legal practice, academic institutions, non-governmental organisations and companies (the Advisory Group) – together with the following highly regarded specialists from the IBA Corporate and M&A Law Committees (the M&A Focus Group).

 

THE CURRICULUM & TRAINING

The curriculum and training programs are designed to assist lawyers in developing their capacity and expertise on human rights in the business context. Academics from three top international Universities based in Australia will develop the curriculum and training materials in collaboration with the Advisory Group.

The curriculum and training will be piloted in Australia in July of 2017 and will be replicated in other jurisdictions during subsequent stages of the project. An evaluation system will be put in place to monitor and assess the impact of the training and to identify possible areas for improvement.

AUSTRALIAN PILOT PROJECT

The Australian pilot project will be delivered by the IBA together with the Law Council of Australia (“LCA”) [1]. The IBA appreciates the contribution and hard work from Greg Vickery, Chair, at the LCA’s Business & Human Rights Committee and Simon Henderson, Senior Policy Lawyer,  at the Legal Policy Division of the LCA.

Australia has been identified as the ideal jurisdiction to pilot the curriculum and training programme because :

  • The LCA has already produced and disseminated material on B&HR in an effort to increase awareness within the legal profession and business community.[2]
  • In December 2014 the Australian Government launched the National Action Plan to Combat Human Trafficking and Slavery 2015-2019 and established a Supply Chain Working Group focused on addressing the issue of exploitation in supply chains. Additionally, the Australian Government has conducted public consultations on implementing the UNGPs throughout 2016, and a National Baseline Assessment will also be conducted — potentially leading to the creation of an Australian National Action Plan (“NAP”).
  • Australia is a significant market economy in the world, with, among others,strong mining and agricultural industries;
  • The 2017 IBA Annual Conference will be held in Sydney (Australia) (8-13 Ocotber).

[1] http://www.lawcouncil.asn.au/lawcouncil/

[2] http://www.lawcouncil.asn.au/lawcouncil/images/Business_and_Human_Rights_QA.pdf

 

THE ADVISORY GROUP

Permanent members:

This group of individuals are experts in the area of B&HR and are providing legal and technical advice to the Consultant and IBA LPRU throughout the course of the B&HR Part II and for an initial period of two years.

Name Position Law Firm / Organisation
Elodie Aba Interim Corporate Legal Accountability Project Manager Business and Human Rights Resource Centre
Nicole Bigby Partner, Director of Risk Berwin Leighton Paisner
Christine Chow Associate Director Hermes Investment Management
Daniel D’Ambrosio Associate DLA Piper
Dr. Mihir Kanade Head of the Department of International Law, & Director of Human Right Centre United Nations mandated University for Peace
Sangwoo Kim President Corporate Affairs Europe, Samsung Electronics
Sternford Moyo Senior Partner Scanlen & Holderness
Andrea Saldarriaga Project Lead Investment and Human Rights London School of Economics

The temporary members

The temporary members of the Advisory Group represent the relevant jurisdiction where the training is being conducted. These renowned experts will provide advice throughout the training, whilst simultaneously holding the same responsibilities as the other Advisory Group members.

Name Position Law Firm / Organisation
Abigail McGregor Partner Norton Rose Fulbright
Paul Redmond Professor, University of Technology Sydney City campus
Vanessa Zimmerman Business and Human Rights specialist   

OBJECTIVES OF B&HR PART II

The objectives of the B&HR part II are the following:

  • Increase lawyers’ ability to advise businesses to prevent and protect against any adverse impacts on human rights, both domestically and internationally;
  • Educate lawyers on the possible negative impacts of human rights on businesses; and
  • Provide educational and practical tools to allow businesses to respect human rights whilst maintaining the profitability of the business.

For further information on this project please contact:

Rocio Paniagua

Senior Legal Advisor IBA LPRU

LPRU@int-bar.org

 



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