Category Archives: Contracting

The protection of a company’s investments abroad could soon be linked to that company’s compliance with its CSR obligations. This is what the new Dutch draft model bilateral investment treaty (BIT) heralds. If other countries adopt the Netherlands’ approach, then international arbitration tribunals hearing claims that investors bring against foreign governments may also scrutinize the investors’ CSR track record.

CSR obligations are most relevant to the compensation a tribunal can award the investor.… More

Under the new FCPA Corporate Enforcement Policy recently released by the Department of Justice (“DOJ”), when a company has voluntarily self-disclosed misconduct, fully cooperated in the government’s ensuing investigation, and appropriately remediated the situation and made restitution or otherwise disgorged all illicit profits, there is a now an express presumption – absent certain identified aggravating factors – that DOJ will affirmatively decline to prosecute the company.

This new Policy is an evolutionary step forward in enforcement – not a radical change.… More

In Washington, D.C., the news this week focused on President Trump’s decision to designate (or redesignate) North Korea as a state sponsor of terrorism. For companies importing goods into the United States, developments this past August are likely to have more immediate impact.

On August 2, the United States enacted amendments to the North Korea Sanctions and Policy Enhancement Act of 2016. The amendments create a presumption that goods made by North Korean citizens or nationals,… More

On June 14, 2017, the District Court for the District of Columbia issued a decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. The Court found that the Army Corps of Engineers (“the Corps”) had not adequately considered several issues in its environmental assessment (“EA”) for the Dakota Access Pipeline, and that therefore the Corps’ decision-making was arbitrary and capricious.

The EA was undertaken pursuant to the National Environmental Policy Act (“NEPA”),… More

On May 9, we released a public summary of our report “Good Practice for Managing the Social Impacts of Oil Pipelines in the United States.” A copy of the public summary of the report is available here.

The independent report was prepared by Amy Lehr, Cicely Parseghian, and Gare Smith.… More

It is clear that Michael Piwowar, Acting Chairman of the Securities Exchange Commission (“SEC”) is not a fan of the conflict minerals rule. Earlier this month, the Acting Chairman and the Division of Corporation Finance released two statements regarding rule, both of which clearly state that the regulation will not be an enforcement priority.

By way of background, the statements were published after long-running litigation regarding the conflict minerals rule finally reached a formal conclusion.… More

Congress passed a joint resolution this week expressing its disapproval of the revenue transparency rule issued last June by the Securities and Exchange Commission. The rule, issued pursuant to Section 1504 of the Dodd-Frank Act, required extractive sector companies (oil, gas, and mining) to disclose the payments that they make to governments for the commercial development of oil, gas, or minerals.

President Trump is expected to sign the joint resolution,… More

On Friday, December 16, the Government of the United States will release its long-awaited National Action Plan on Responsible Business Conduct.

A livestream of the launch event, which will be held at 11 a.m. ET, can be accessed here.

First announced by President Obama in September 2014, the plan is expected to focus on ways in which the U.S.… More

It’s Friday and time for an overview of developments in the field of business and human rights that we’ve been monitoring. This week’s post is focused entirely on responses to the recent election of Donald Trump as the next President of the United States.

This week’s post includes: the potential for changes to legislation and regulation related to the human rights impacts of business activity; private sector support for continued U.S.… More

This is the final post in a series of posts reflecting excerpts from a chapter that I authored on corporate social responsibility (“CSR”) for the Corporate Legal Compliance Handbook.

In order to integrate concrete CSR commitments into corporate compliance programs, a company must establish how each commitment translates into performance requirements for the relevant business units and departments. The nature of these requirements may differ considerably depending on a company’s industry and operating context,… More

It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the first annual report from the U.K. Anti-Slavery Commissioner; a new benchmarking report from Know the Chain focused on food and beverage companies; and the results of a survey on corporate human rights due diligence efforts.

• On October 12,…

More

It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the GAO’s latest report on the conflict minerals rule; a civil society report on the SEC’s efforts to modernize financial disclosure requirements; and an independent impact assessment of the Better Work Programme.

• At the end of August, the U.S.…

More

This is the fifth in a series of posts reflecting excerpts from a chapter that I authored on corporate social responsibility (“CSR”) for the Corporate Legal Compliance Handbook.

Integrating CSR into the framework of a company’s overall compliance program may help engage executive-level managers and the board of directors as allies in ensuring that CSR commitments are supported through the allocation of sufficient resources and management attention.… More

It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: an announcement by the International Criminal Court regarding the potential for the prosecution of crimes based on environmental harm and land grabs; the lifting of sanctions on Burma and the end of the Burma Reporting Requirements on Responsible Investment; and new attention to the operational and reputational risks associated with global shipping.… More

It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: litigation developments in cases that address the “Social Cost of Carbon,” the liability of interactive media service providers, and human trafficking in corporate supply chains; and a new global ranking of countries according to the relative risk of human trafficking and forced labor.… More

New legislative requirements and stakeholder concerns have driven many companies to implement systems to identify address the potential human rights impacts of their operations. Companies increasingly realize the responsible management of human rights impacts helps mitigate legal, operational, and reputational risks.

That said, as companies begin to assess human rights impacts, they need to avoid the trap of treating these assessments as box-checking exercises. A large volume of information can be gathered through human rights due diligence,… More

On June 15, the European Union announced that it had reached a “political understanding” on many of the substantive components of a new conflict minerals regulation. The regulation, once drafted, will be submitted to the European Parliament and Council for adoption. The final regulation will be applicable to all E.U. member states.

The European Union has been engaged in a multi-year process of negotiation and deliberation regarding the sourcing of conflict minerals.… More

It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: new private and public initiatives on recruitment fees, including a proposal to further amend the U.S. Government’s Federal Acquisition Regulation to provide a clear definition of such fees; the dismissal of a lawsuit brought by victims of the Rana Plaza factory collapse;… More

It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: Apple’s refusal to comply with a federal court order; a new report highlighting the most pressing business and human rights challenges facing companies today; and an evaluation of corporate compliance with the California Transparency in Supply Chains Act.

• Apple made headlines this week when it announced that it would not comply with a federal court order requiring the company to assist the FBI in unlocking the iPhone of one of the San Bernardino shooters.…

More

Companies are increasingly being required to disclose how they assess and respond to the risks of human trafficking in their product supply chains. Statutes like the California Transparency in Supply Chains Act and the U.K. Modern Slavery Act require such disclosures. In addition, certain U.S. federal contractors are now required to develop detailed compliance plans to address the risks of trafficking associated with the good and services they provide to the U.S.… More

It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: recent developments with regard to a major Alien Tort Statute case; the announcement of a pilot effort to benchmark corporate human rights performance; and a major new report demonstrating the potential links between anti-corruption compliance programs and effort to eradicate labor trafficking in corporate supply chains.… More

On December 11, 2015, the Securities and Exchange Commission (“SEC”) issued a new proposed rule to implement a key provision of the Dodd-Frank Act that targets corruption and increases transparency requirements for payments made to foreign governments by the oil, gas, and mining industries.

The SEC voted to re-propose rule 13q-1 and proposed an amended form SD to implement Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.… More

It’s Friday and time for our latest overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes notice of several new lawsuits regarding human rights concerns in corporate supply chains as well as coverage of the European Court of Justice’s recent decision to strike down the 15-year old “Safe Harbor” agreement allowing companies to self-certify that their data transfers between the United States and Europe are in compliance with E.U.… More

This post, written by Colin Zick, Catherine Muyl, and Alice Berendes, was originally published as a client alert on the firm’s Security, Privacy, and the Law blog.

The European Court of Justice has issued a decision (ECJ 6 October 2015 Case C-362/14, Maximillian Schrems v. Data Protection Commissioner) that invalidates the so-called US-EU “Safe Harbor” system.… More

It’s Friday, which means it’s time for another rundown of five developments in the field of business and human rights — and broader corporate social responsibility — that we’ve been monitoring.

This week’s post includes a number of recent reports on issues ranging from conflict minerals to children’s rights. It also notes the release of the Sustainable Development Goals and the convening of Climate Week NYC.… More

This post, written by Dean Hanley, Paul Bork, and Anderson Chang, was originally published as a client alert by the firm’s Corporate Finance & Securities practice. 

On August 18, 2015, the United States Court of Appeals for the D.C. Circuit, in likely the first majority opinion citing Charles Dickens (A Tale of Two Cities) and George Orwell (Nineteen Eighty-Four),… More

In late July, Representative Carolyn Maloney (D-NY) introduced H.R. 3226, the Business Supply Chain Transparency on Trafficking and Slavery Act of 2015. The bill, if passed, would require companies to file annual reports with the Securities and Exchange Commission (“SEC”) disclosing their efforts to identify and address specific human rights risks in their supply chains. Senator Richard Blumenthal (D-CT) is expected to introduce a companion bill in the Senate.… More

The following is a client alert previously published here.  Questions should be directed to Gwendolyn Jaramillo or Shrutih Tewarie.

Nuclear Deal with Iran Holds Out Possibility of Phased Relaxation of Sanctions

On July 14, 2015, the United States and five other countries (collectively known as the P5+1) reached a Joint Comprehensive Plan of Action (JCPOA) with Iran under which Iran will limit its nuclear activities in exchange for a gradual lifting of international economic sanctions.… More

It has been nearly a month since the deadline for companies in the United States to file their second annual conflict minerals reports with the Securities and Exchange Commission. As companies and their stakeholders assess the strength of their compliance efforts and public disclosures, many are also watching developments in Europe with regard to due diligence on conflict minerals.

In late May, the European Parliament endorsed a regulation that would require companies to perform due diligence with regard to the tin,… More

In March, President Obama issued Executive Order 13693, “Planning for Federal Sustainability in the Next Decade.” It replaces and updates a number of Executive Orders and Memorandums, most notably replacing Executive Order 3514, “Federal Leadership In Environmental, Energy, and Economic Performance,” issued by President Obama in 2009.

The new Order provides federal agencies with a series of targets and deadlines through 2025,… More

In mid-December, the Ninth Circuit Court of Appeals affirmed the dismissal of claims filed pursuant to the Alien Tort Statute (“ATS”) against Occidental Petroleum. Plaintiffs in the case argued that Occidental should be held liable for the deaths of three union leaders in Colombia who were killed by the Colombian National Army’s 18th Brigade in 2004. The court affirmed the lower court’s finding that the case raised non-justiciable political questions.… More

Civilian application of drone technology has increased dramatically in recent years. The burgeoning civilian opportunities are a potential boon for investors, who view this emerging market as one that will expand long into the future, notwithstanding current and pending regulation of the industry. VCs are eager to get in on a piece of the action.

Notably, drones have historically been used primarily by the military,… More

In November, the Government of Canada announced a revised Corporate Social Responsibility (“CSR”) strategy for the extractive sector. Building on Canada’s plan for Responsible Resource Development, the strategy (“Doing Business the Canadian Way: Advancing Corporate Social Responsibility in Canada’s Extractive Sector Abroad“) focuses on the activities of extractive sector companies, but is intended to provide “a more general audience with an overview of Canada’s approach to promoting and advancing CSR abroad.”… More

December 18 is International Migrants Day.  Companies in a wide variety of industry sectors must address the human rights-related risks specific to employing migrant workers. These workers are especially vulnerable to human rights abuses, including poor working conditions, discriminatory treatment, physical abuse, and forced labor.

Current guidance for companies seeking to understand and address risks to migrant workers includes the Dhaka Principles for Migration with Dignity.… More

In the coming weeks, the U.S. federal government is expected to release amendments to the Federal Acquisition Regulation (“FAR”) that are intended to strengthen existing prohibitions against human trafficking by federal contractors.

The draft FAR amendments were first released in September 2013. The final amendments, once released, will impact all federal contracts, with heightened requirements for contracts performed outside the United States that exceed $500,000 in value.… More

On July 31, President Obama issued an Executive Order requiring federal contractors to disclose past labor violations. The order applies to new contracts for goods and services, including construction, valued at more than $500,000.

Contractors subject to the new order must disclose any “administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor”… More

On July 21, President Obama issued an Executive Order prohibiting federal government contractors from discriminating against lesbian, gay, bisexual, and transgender (“LGBT”) employees. The President directed the U.S. Department of Labor to propose implementing regulations within 90 days.

The order amends Executive Order 11246, originally issued by President Johnson, which prohibits federal contractors from discriminating “against any employee or applicant for employment because of race,… More

In the last month, two federal appellate courts have issued decisions in cases filed against U.S.-based corporations pursuant to the Alien Tort Statute (“ATS”). Both courts applied the “touch and concern” standard established by the Supreme Court in its 2013 decision in Kiobel v. Royal Dutch Petroleum with one court finding that jurisdiction was proper and the other court finding that “there is no jurisdiction” because all relevant conduct took place outside the United States.… More

Human Rights Watch‘s recent report, Tobacco’s Hidden Children – Hazardous Child Labor in United States Tobacco Farming, seeks to draw attention to the presence of child labor on American tobacco farms and to the significant health and safety risks faced by young workers, including widespread acute nicotine poisoning. More generally, the report highlights key challenges for those concerned about human rights and corporate supply chains.… More

On April 14, the D.C. Circuit Court of Appeals issued an opinion in National Association of Manufacturers v. SEC, a case that sought to challenge the conflict minerals rule released by the Securities and Exchange Commission (“SEC”) in August 2012.

The Court largely rejected the plaintiffs’ challenges, holding that the SEC did not act arbitrarily or capriciously in adopting the due diligence and disclosure requirements of the rule and in deciding not to include a de minimis exception.… More

The U.N. Global Compact recently released a Good Practice Note on Indigenous Peoples’ Rights and the Role of Free, Prior, and Informed Consent (“FPIC”) authored by Amy Lehr, an associate in Foley Hoag’s Corporate Social Responsibility practice. The Note complements the U.N. Global Compact’s release of a longer Business Reference Guide to the U.N. Declaration on the Rights of Indigenous Peoples. … More

Over the past week, significant attention has been paid to the risks of sex trafficking associated with the Super Bowl. Law enforcement resources were dedicated to identifying traffickers and ensuring that services are available for victims, and companies in both the airline and hotel industries took action to ensure that their facilities were not used to facilitate trafficking activities.

All of these actions are laudable,… More

Earlier this month, a group of global banks known as the Thun Group released a discussion paper exploring the ways in which financial institutions might seek to integrate the U.N. Guiding Principles on Business and Human Rights into their core business activities.

Current members of the Thun Group include Barclays, BBVA, Credit Suisse AG, ING Bank N.V., RBS Group,… More

On July 23, the District Court for the District of Columbia rejected a challenge to the conflict minerals rule adopted by the Securities and Exchange Commission in August 2012 and published in September 2012.  Plaintiffs seeking a review of the rule included the National Association of Manufacturers, the Chamber of Commerce, and the Business Roundtable.

Plaintiffs had challenged the rule under the Administrative Procedure Act (“APA”),… More

On July 2, the U.S. District Court for the District of Columbia vacated the rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and remanded it to the Securities and Exchange Commission (“SEC”) for further consideration. Section 1504 requires Securities and Exchange Commission issuers involved in the extraction of oil, gas, and minerals to report on their payments to foreign governments and the U.S.… More

Following the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum a number of questions remain as to whether corporations may be held liable under the Alien Tort Statute (“ATS”) for serious violations of human rights.  The U.S. Supreme Court, in a unanimous decision authored by Chief Justice Roberts, held that the presumption against extraterritorial application of federal statutes applies to the ATS,… More

The International Council of Mining & Metals (“ICMM”) recently released a position statement on indigenous peoples and mining that explicitly requires its 22 member companies to work to obtain the free, prior, and informed consent (“FPIC”) of indigenous communities for new projects (and changes to existing projects).

Specifically, ICMM member companies commit to:

Work to obtain the consent of indigenous communities for new projects (and changes to existing projects) that are located on lands traditionally owned by or under customary use of Indigenous Peoples and are likely to have significant adverse impacts on Indigenous Peoples[.]

The position statement replaces an earlier statement,… More

On April 22, the European Union lifted all sanctions on Burma except an arms embargo. The sanctions had already been eased in April 2012, which left open the option of easily putting them back into place. The European Union’s move to lift them altogether sends a strong signal of support for the reform-oriented government in Burma.

The European Union made this decision at a controversial time,… More

The International Code of Conduct for Private Security Service Providers’ Association recently published its Charter. This marks a critical step in the establishment of oversight and governance processes to operationalize the commitments outlined in the International Code of Conduct for Private Security Providers (“ICoC”).

The ICoC is a multistakeholder initiative the aim of which is to establish principles and standards for the private security industry based on international human rights and humanitarian law.… More

A number of significant briefs were filed recently with the U.S. Court of Appeals for the D.C. Circuit in support of Section 1504 of the Dodd-Frank Act, which requires oil, gas, and mining issuers to report on their payments to governments.

On January 16, Oxfam filed an intervenor brief in the case that the American Petroleum Institute (“API”) and others have brought against the Securities and Exchange Commission (“SEC”) to block its final rule. … More

Human rights due diligence requires many of the hallmarks of existing corporate compliance programs: clear policies; assessments of risk; and the integration of strong standards into corporate management systems. This provides companies with the opportunity to leverage the capacity of a variety of existing internal compliance programs in an effort to integrate consideration of human rights-related risks and impacts into the management of their operations.… More

As memories of New Year’s Eve fade, and another Inauguration Day winds down in Washington, D.C., it’s time to look ahead and identify key events and emerging trends that we think will help shape the business and human rights agenda in 2013.

Here are five developments that we’ll be watching closely:

Further integration of human rights considerations into business management systems. Eighteen months after the release of the U.N.… More

On January 2, the Securities and Exchange Commission (“SEC”) filed its brief (.pdf) in the lawsuit brought by the U.S. Chamber of Commerce, the American Petroleum Institute (“API”), the National Foreign Trade Council, and the International Petroleum Association of America that seeks to alter or overturn the SEC’s final extractive industry transparency rule.

The petitioners’ lawsuit made several key arguments,… More

In late November, the Brazilian national development bank (“BNDES”, by its Portuguese initials) announced its approval of a $10.8 billion loan to finance the construction of the Belo Monte dam, the world’s third largest hydroelectric dam.  Approximately $1.5 billion, representing 11.2% of the loan, was earmarked for social and environmental programs — the largest amount ever set aside by BNDES for such purposes.… More

In a landmark speech to the Clinton Global Initiative in September 2012, President Barack Obama declared that the “fight against human trafficking is one of the great human rights causes of our time” and that “our global economy companies have a responsibility to make sure that their supply chains, stretching into the far corners of the globe, are free of forced labor.”

The President’s speech is reflective of the fact that human trafficking and forced labor have become key priorities for those seeking to hold companies accountable for the human rights impacts of their operations.… More

Until recently, it was not uncommon for Chinese companies to be invoked as bogeymen in certain circles. The narrative went something like this:

Western companies are more accountable than Chinese companies – via tort suits, civil society pressure, government regulation, and non-judicial accountability mechanisms such as the OECD Guidelines, to name a few.  Although Western companies’ operations do create negative social, environmental and human rights impacts,… More

Two years ago, in October 2010, I published a post, Human Rights Due Diligence and the Corporate Lawyer, that addressed the need for corporate counsel to assess stakeholder expectations that companies should be accountable for identifying, and taking action to mitigate, the adverse human rights impacts of their operations. At the time, the expectation that companies should conduct human right due diligence had been put forward as a fundamental component of the “Protect,… More

Burma’s Hluttaw, or Parliament, passed a new Foreign Direct Investment Law on September 7. Few details on the legislation are yet available, and we have seen only partial translations, although the final version reportedly is preferable to its draft predecessor. President Thein Sein has not yet signed it into law.

From the information available thus far, it is clear, however, that the law is a significant improvement on the version that the lower Hluttaw passed earlier this summer,… More

The proposed draft of the revised Equator Principles, released on August 13, reflects a greater focus on human rights, with explicit mention of the expectation of human rights due diligence as set forth in the U.N. Guiding Principles on Business and Human Rights. The revised Principles also cover a wider range of project financing structures in recognition of the fact that the project finance market has diversified significantly since the Principles were first released in 2003.… More

Amy Lehr, the author of this post, will be presenting during a webinar on “Responsible Business in Myanmar: Operating Context, Sanctions, and International CSR Standards,” this Thursday, August 16, at 11:00 a.m. She will be joined by John Ruggie and Gare Smith. Information on registration can be found here.

*     *     *     *     *

The U.S. decision to ease financial and investment sanctions on Burma for the first time since 1997 is a landmark – and controversial – moment.… More

One of the challenges for companies seeking to manage the adverse human rights impacts of their operations is how to deal with impacts that are most directly tied to business partners, suppliers, and even governments. Companies have varying degrees of control over the actions of third parties, and yet the activities of third parties have the potential to expose companies to a range of reputational – and legal – risks.… More

On April 2, one day after its Parliamentary by-elections, Burma (Myanmar) floated its currency, the kyat. This is an important first step in normalizing the country’s investment climate and curbing corruption. For years, the official kyat exchange rate has been more than 100 times lower than the black market rate, which has led to endless headaches for organizations operating in Burma, as well as for Burmese citizens.… More

The month of March marked a key deadline in the compulsory — but gradual — transition from the use of private to public security forces in Afghanistan.  This transition was initiated in August 2010 when President Hamid Karzai issued Presidential Decree 62 in response to a number of criticisms regarding the presence, role and activities of private security companies ("PSCs") in Afghanistan. With a few exceptions,… More

On September 20, the Obama Administration announced its intent to join the Extractive Industries Transparency Initiative ("EITI"). Government members of the EITI are required to disclose the payments that oil, gas, and mining companies make to them, and companies operating in those countries publish their payments to the governments. The two can then be reconciled for greater transparency and certainty regarding payments to governments.

A working group in each EITI member country –… More

Some of the world’s most well-known apparel companies have come under criticism from Greenpeace for not sufficiently monitoring and limiting industrial wastewater discharges by suppliers.  In a new report called "Dirty Laundry", Greenpeace highlights the wastewater discharges from two major manufacturers in China that supply products to a range of major brands — including Adidas, Bauer Hockey, Calvin Klein, Converse, Lacoste, Nike, Phillips-Van Heusen and Puma.  … More