Looking back at 2010, there have been a number of significant legal developments in the field of corporate social responsibility. New federal and state statutes have imposed due diligence requirements on companies with the specific intent of addressing human rights concerns, ranging from forced labor to the ongoing conflict in the Democratic Republic of Congo. Courts continue to grapple with the potential scope of corporate liability under the Alien Tort Statute (“ATS”). At the international level, the concept of the corporate “responsibility to respect” human rights continues to gain credence, at the same time as access to water was recognized as a human right by the United Nations.
As lawyers, we advise clients on developments in both “hard law” requirements and “soft law” expectations for companies in the area of human rights and social responsibility. The intersection of what is required and what is expected of companies can present both challenges and opportunities. In no specific order, here are five “big developments” that we think will impact corporations, and the expectations of corporate stakeholders, in 2011 and beyond.
- The SEC, Conflict Minerals, and Disclosure of Payments. Buried in the Dodd-Frank financial reform legislation are two provisions that impose significant new disclosure requirements on companies. Section 1502 requires companies that utilize certain conflict minerals to conduct and disclose due diligence on their supply chains in order to identify whether the sourcing of these minerals is supporting the conflict in the Democratic Republic of Congo. Section 1504 requires companies in the extractive sector to report on taxes, royalties, fees, and other material benefits paid to foreign governments and the United States. Compliance with these provisions will be a significant challenge for many companies. In mid-December, the SEC released proposed rules pursuant to these two provisions, and final rules are expected to be in place by April 2011, although under the new Congress implementation of these rules may be delayed.
- Ruggie’s Draft Guiding Principles. The U.N. Special Representative on Business and Human Rights, John Ruggie, released his Draft Guiding Principles for the implementation of the three-part “Protect, Respect, and Remedy” framework first set forth in his 2008 report to the U.N. Human Rights Council. Institutions ranging from the European Parliament to the OECD have already cited certain provisions of the framework, especially with regard to the corporate responsibility to respect human rights — that is, not to infringe on rights — and its central component of human rights due diligence.
- Water is a Human Right. In July, the U.N. General Assembly declared access to safe water to be a human right. In September, the U.N. Human Rights Council adopted a resolution recognizing access to clean water and sanitation as a fundamental human right, “equal to all other human rights” and capable of legal enforcement. These developments came at the same time as increasing water scarcity is impacting communities, and companies, around the world. Companies will likely find that stakeholders increasingly expect due diligence efforts, especially with regard to human rights impacts, to include assessments of corporate impacts on community water resources.
- The Second Circuit Declares that Companies are Not Proper Defendants Under the ATS. In a controversial opinion, the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum that corporations cannot be properly sued under the ATS for violations of customary international law. Already cited by other courts, and by many defendant briefs, this opinion, whether or not it is upheld, stands as one of the most significant ATS decisions to date.
- California Transparency in Supply Chains Act. Retailers and manufacturers operating in California with global receipts in excess of $100 million will now be required to disclose what efforts they are taking, if any, to “evaluate and address” the risks of slavery and human trafficking in their supply chains. This requirement applies to a wide range of companies, ranging from apparel companies that have grappled with concerns about their supply chains for many years, to companies in other sectors for which these due diligence requirements represent a new challenge.
As the New Year begins, we will continue to monitor these developments, and others, in the dynamic field of corporate social responsibility and the law.