The Australian Government has launched an online register that publishes companies’ statements on their compliance with the country’s Federal Modern Slavery Act of 2018. The website, which is searchable and available to the public, marks the first government-run website tracking companies’ compliance with efforts to eradicate modern slavery. Unlike comparable legislation passed recently in other jurisdictions, including the U.K. Modern Slavery Act of 2015, Australia’s Act makes reporting mandatory within six months of a company’s fiscal year-end.… More
Category Archives: Human Rights Due Diligence
As the United States Targets China’s Human Rights Abuses, Companies Should Prepare for Stricter Due Diligence on Forced Labor
As the United States seeks to take more forceful action punishing China for its escalating human rights abuses against Muslim ethnic minorities in the Xinjiang autonomous region and the citizens of Hong Kong, international businesses whose supply chains intersect with China should be prepared for new legislation and regulatory enforcement that could result in penalties. Companies will need to take additional steps to ensure their due diligence processes account for potential human rights risks associated with forced labor in Xinjiang and elsewhere in the country.… More
Toward a Credible and Universal Concept of Rights: How Racial Injustice in America Affects U.S. Human Rights Practices Abroad
The Murder of George Floyd on May 25th by a white Minneapolis police officer did not happen in a vacuum. It was not an aberration in an “otherwise functioning” justice system. Countless black men and women in America have suffered similar fates at the hands of a criminal justice apparatus that often sees black people as material threats before seeing them as human. Floyd’s death is just the most recent symptom implicating a justice system in the United States that many experts and activists consider out of control,… More
The COVID-19 pandemic is one of the most significant global public health crises since the Influenza Pandemic of 1918-20. The spread of the Coronavirus through every continent and major metropolis has led to unprecedented policy responses from governments both large and small. As a result, the human rights community is more closely scrutinizing the impact of these responses, while many company operations are more likely to overlap with the pandemic and evolving government policy in some way.… More
Pioneering Dutch Law Raises Global Standards for Eliminating Child Labor in Supply Chains – Understanding the Dimensions of Compliance
The Dutch Senate recently adopted the Child Labour Due Diligence Act, a new measure with far reaching implications for the sourcing, manufacturing, and consumption of products that contain inputs from the bodies of child laborers.
The new law is the product of protracted negotiations that have taken place over several years in the Dutch Parliament. The Dutch House of Representatives approved the legislation in February 2017 with 82 of the chamber’s 150 Members of Parliament in favor. … More
As we mark the 70th anniversary of the Universal Declaration of Human Rights today, some might say that we have little to celebrate. The significant human rights gains of the early post-Cold War years appear to be coming undone as authoritarian populists take hold in countries that once seemed firmly in the democratic fold. For all of our solemn promises to “never again” permit the perpetration of genocide and crimes against humanity,… More
The 2018 Corporate Human Rights Benchmark: Some Successes but Ongoing Challenges in Company Efforts to Advance Human Rights
On November 12, The Corporate Human Rights Benchmark (CHRB) released the results of its 2018 Corporate Human Rights Benchmark. The 2018 Corporate Human Rights Benchmark assesses over 100 of the largest publicly traded multinational companies in the world on a set of key human rights indicators, including governance policies, remedies and grievance mechanisms, responding to serious allegations, due diligence, and transparency.
Established in 2013,… More
On September 26, the Senate Committee on Foreign Relations approved the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018 (H.R. 2200). The bill would reauthorize the Trafficking Victims Protection Act of 2000. In July 2017, the House passed its version of H.R. 2200.
Of potential consequence for companies, Section 133 of H.R. 2200 would enhance the List of Goods Produced by Child Labor or Forced Labor that is issued and updated periodically by the Department of Labor’s International Labor Affairs Bureau (ILAB). … 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 guidance on compliance with North Korea-related sanctions laws; the release of the first annual report by the parties to the Dutch Banking Sector Agreement on International Responsible Business Conduct; and a new blog series on the “zero draft” of the proposed Treaty on Business and Human Rights.… More
On August 7, the Omidyar Network’s Tech and Society Solutions Lab and the Institute for the Future (“IFTF”) launched a new toolkit, The Ethical Operating System (Ethical OS), to help guide technologists in building preventing, mitigation, and correcting the “social downsides” of technology while also maximizing positive impacts.
The guide, which has already been piloted by 20 companies, uses checklists, scenarios, and exercises to help companies anticipate problems and to develop appropriate strategies to mitigate risk.… 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: developments with respect to the proposed Australian Modern Slavery Act; the dismissal of another climate change-based lawsuit; and an initial draft of the proposed Business and Human Rights Treaty.
- On June 28, the proposed Modern Slavery Bill was introduced to the Australian Parliament. …
On June 20, at the 2018 Global Forum on Responsible Business Conduct, the Organization for Economic Co-operation and Development (“OECD”) formally launched its new Due Diligence Guidance for Responsible Business Conduct.
Intent of the Due Diligence Guidance
The new Due Diligence Guidance is expressly intended to support all companies, both large and small, seeking to implement the due diligence expectations set forth in the OECD Guidelines for Multinational Enterprises.… 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 insights into the proposed Australia Modern Slavery Act; a new Withhold Release Order prohibiting the import of products produced with Turkmenistan cotton; and the launch of the Investor Alliance for Human Rights.
This week’s post includes: two new reports looking at corporate compliance with the U.K. Modern Slavery Act and best practices with respect to efforts to address the risks of forced labor; and the release of a “Frequently Asked Questions” document by the U.S. Department of Homeland Security regarding the presumption that goods made by North Korean workers are made with forced labor.… More
This week’s post includes: a lawsuit by the City of New York seeking compensation for the costs incurred as the result of climate change; a lawsuit in France alleging that a company’s statements regarding its ethical sourcing commitments are deceptive to consumers; and the establishment of a new Ombudsperson for Responsible Enterprise by the Government of Canada.… More
This week’s post includes: a revised Toolkit on National Action Plans on business and human rights; a new automobile industry initiative to address the social and environmental risks associated with raw materials sourcing; and a report from the NYU Stern Center for Business and Human Rights on the efforts of internet platform companies to address content that incites terrorism or that represents politically motivated disinformation.… More
This week’s post includes: a look ahead at the upcoming UN Forum on Business and Human Rights; a decision in the Nevsun case by the British Columbia Court of Appeal; and the first decision by a NCP to hear a complaint focused on the impacts of climate 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
New Standards of Conduct for Companies Seeking to Operate with Respect for the Rights of LGBTI People
On September 26, the U.N. High Commissioner for Human Rights released new Standards of Conduct intended to support the business community in tackling discrimination against lesbian, gay, bisexual, transgender, and intersex (“LGBTI”) people. The full report released by the High Commission includes the Standards, background materials, and corporate case studies.
The U.N. Human Rights Office has observed that the Standards are intended to provide both operational guidance for companies and a benchmark against which corporate efforts can be evaluated.… More
This week’s post includes a number of new guidance documents and tools, including materials on: the elimination of recruitment fees; assurance efforts with regard to human rights reporting and performance; and the development of social compliance systems.
On February 7, the Dutch Parliament adopted a bill that would require companies to conduct due diligence as to whether child labor is occurring in their own operations or in their supply chains.
The Dutch Senate is expected to review the bill in the coming months. If the bill is approved, further detail on the scope and applicability of the law’s requirements will likely be set forth through an administrative order.… More
As previously noted, on February 21, 2017, the French National Assembly adopted a law establishing a “duty of vigilance” for large multinational firms carrying out all or part of their activity in France.
In a subsequent development, on March 23, the French Constitutional Council released a decision upholding the majority of the legislation, but striking down the proposed civil penalties for companies that fail to develop a diligence plan.… More
Key Consideration for In-House Counsel: Reviewing Domestic Law Against International Human Rights Standards
In reviewing your current operating locations, do you know the extent to which domestic law is protective of human rights?
Is there a disconnect between your company’s stated commitment to respect human rights and the due diligence efforts that are part of your day-to-day business operations?
Human rights due diligence is a critical component of corporate efforts to operate with respect for human rights, while also managing legal,… More
This week’s post includes: the U.S. Government’s amicus brief in Jesner v. Arab Bank; a Declaration from the Leaders of the G20; and a commitment to renew the Accord on Fire and Building Safety in Bangladesh.
- On June 27, the U.S.…
Update: On August 16, the Government of Australia announced that it would move forward with the development of a Modern Slavery Act.
Corporate counsel must increasingly assess the implications of new transparency statutes that require companies to make public disclosures as to their efforts to address certain human rights-related risks in connection with their business operations, including their supply chains.
Companies are also increasingly aware that their companies may be directly or indirectly linked to acts of human trafficking.… More
This week’s post includes: a new report on the state of corporate human rights reporting; the passage of a shareholder resolution on climate change at Occidental Petroleum; and the latest Ministerial Declaration from the Labour and Employment Ministers of the G20.
- On May 10,…
This week’s post includes: a jury verdict in the Quinteros v. DynCorp litigation; the latest GAO report on corporate conflict mineral disclosures; and a statement from the Scottish Parliament that investments agreements should only be signed after appropriate human rights due diligence.
- On March 29,…
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
This week’s post includes: an effort by Twitter to enjoin U.S. Government demands for information regarding a user account critical of the Trump Administration; an announcement that seven telecommunications companies have joined the Global Network Initiative; and a decision by EITI to make project-level payment reporting mandatory.… More
This week’s post includes: the European Parliament’s adoption of a new conflict minerals regulation; the French Constitutional Council’s review of the proposed duty of vigilance legislation; the dismissal of the Doe v. Nestle litigation; and the release of a new Corporate Accountability Index by Ranking Digital Rights.… More
This week’s post includes: new reports on the U.S. National Action Plan on Responsible Business Conduct, corporate disclosures pursuant to the California Transparency in Supply Chains Act, and shareholder proposals on social and environmental issues; the second discussion paper published by the Thun Group of Banks;… More
On February 21, 2017, the French National Assembly (Assemblée nationale) adopted proposed legislation defining a duty of vigilance for parent companies and their subcontractors.
The law provides that multinational firms carrying out all or part of their activity on French territory shall establish mechanisms to prevent human rights violations and environmental damages throughout their supply chain.… More
This week’s post includes: IHRB’s annual list of the Top 10 business and human rights issues for the coming year; the latest benchmarking report from Know the Chain focused on apparel and footwear companies; and the release of a reference annex to the IBA Practical Guide on Business and Human Rights for Business Lawyers.… More
This week’s post includes: new reports on the corporate responsibility to respect human rights; a report on sustainability disclosures in corporate filings with the U.S. Securities and Exchange Commission (“SEC”); a draft law in France that would require companies to conduct human rights due diligence; and developments in human rights litigation against Chiquita.… More
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,…
This week’s post includes: an important decision by the Supreme Court of British Columbia with regard to a case raising forced labor concerns; the release of the U.S. Department of Labor’s most recent List of Goods Produced by Child Labor and Forced Labor;… More
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
This week’s post includes: a new report from the U.N. Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression; reviews of the latest round of conflict minerals reports; corporate efforts to address the risks of sex and labor trafficking in connection with the Olympic Games;… 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
This week’s post includes: a new guide for business lawyers from the International Bar Association that seeks to promote implementation of the U.N. Guiding Principles on Business and Human Rights; the public release of Know the Chain’s first report benchmarking technology companies on efforts to address forced labor in their supply chains;… 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
This post was originally published on The Huffington Post.
Five years ago today, on June 16, 2011, the way we view the human rights responsibilities of companies changed. On that day, the United Nations Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights (the “Guiding Principles”). This endorsement could have gone unnoticed except by those in the room at the time,… More
This week’s post includes: new guidance for boards of directors on business and human rights; the launch of the Responsible Sourcing Tool; the release of the 2016 Global Slavery Index; and a new code of conduct in Europe by which American Internet companies have committed to taking actions to combat illegal hate speech.… More
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.…
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
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
Attorneys in Foley Hoag’s Corporate Social Responsibility (“CSR”) practice and the U.N. Environment Programme Finance Initiative (“UNEP FI”) recently collaborated on a report analyzing the implications of the U.N. Guiding Principles on Business and Human Rights for the banking sector. A copy of the report is available here.
In addition to assessing the implications of the U.N. Guiding Principles, the report evaluates existing national and international human rights laws and the extent to which these existing laws may create potential liabilities for banks and/or their officers.… More
Companies face a range of new requirements and expectations calling for enhanced transparency regarding human rights-related risks in connection with their operations. Responsible compliance with both mandatory requirements and voluntary standards requires a coordinated internal approach that seeks to address the concerns of key stakeholders while mitigating potential legal risks.
Examples of new transparency requirements include:
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
There continue to be regular developments in the business and human rights field that warrant attention from both companies and their stakeholders. New legislation and regulation, shifting policy positions, and developments in ongoing litigation…there is always a lot to discuss.
To conclude this week, we have put together a rundown of five recent developments that we’ve been watching closely:
- On September 2,…
D.C. Circuit Court Re-Affirms Decision that Portions of SEC’s Conflict Minerals Rule are Unconstitutional
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
Companies that do business in the United Kingdom should assess their exposure to the U.K. Modern Slavery Act, which goes into effect this October. The transparency provisions of the Act are applicable to companies that do any part of their business in the United Kingdom if they have annual gross worldwide revenues of £36 million (approximately $56 million) or more each year.
The transparency provisions are applicable to all commercial organizations, … More
Earlier this month, the District Court for the District of Columbia denied Exxon Mobil’s motion to dismiss plaintiffs’ claims in Doe I v. Exxon Mobil, a case brought pursuant to the Alien Tort Statute (“ATS”). Plaintiffs allege that Exxon Mobil should be held liable for aiding and abetting human rights abuses committed by members of the Indonesian military.… 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.
At the conclusion of the G7 Summit held on June 7 and 8, the assembled leaders released a declaration endorsing the U.N. Guiding Principles on Business and Human Rights. Specifically, leaders of the United States, the United Kingdom, Canada, France, Germany, Italy, and Japan stated that
We strongly support the U.N. Guiding Principles on Business and Human Rights and welcome the efforts to set up substantive National Action Plans.… More
Shareholder proposals filed during this year’s proxy season reflect investors’ continued concerns about the social and environmental impacts of corporate operations. The Proxy Preview published by As You Sow, the Sustainable Investments Institute, and Proxy Impact, provides an overview of the 433 non-binding shareholder proposals that had been filed by investors for the 2015 proxy season as of mid-February.… More
The State of California has recently stepped up enforcement of the California Transparency in Supply Chains Act, which went into effect on January 1, 2012. The California Department of Justice has also issued new guidance on compliance with the legislation.
In April 2015, the Department of Justice sent out letters to certain retailers and manufacturers regarding compliance with the transparency legislation. The letters requested the companies to provide,… More
On January 29, the U.S. Government released a final rule establishing new anti-human trafficking requirements for U.S. government contractors. The rule amends the Federal Acquisition Regulation (“FAR”) and seeks to strengthen the FAR’s existing prohibitions and requirements related to trafficking in persons.
Protecting the Rights of Children Should Be Integral to Every Corporate Social Responsibility Strategy
Consideration of the rights of children should be integral to any Corporate Social Responsibility (“CSR”) strategy or policy. Traditionally, companies have focused on reducing and eliminating the use of child labor in their supply chains as a means of protecting the rights of children. While important, companies should keep in mind that respecting and protecting children’s rights extends far beyond the use of child labor.… 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.
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 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
Companies increasingly face expectations that they will “know and show” that they are taking appropriate steps to manage the human rights impacts associated with their business activities. New transparency requirements on issues ranging from conflict minerals to investments in Burma reflect this trend.
With respect to human trafficking, existing statutes such as the California Transparency in Supply Chains Act and proposed statutes such as the Business Supply Chain Transparency on Trafficking and Slavery Act require companies to report on their efforts to conduct due diligence on their supply chains in order to identify the risks of human trafficking.… More
On June 11, Representative Carolyn Maloney (D-NY) introduced H.R. 4842, the Business Supply Chain Transparency on Trafficking and Slavery Act of 2014. 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.
The proposed federal legislation, co-sponsored by Representative Chris Smith (R-NJ),… More
The European Union took another step toward requiring large companies to publish social and environmental performance reports when the European Parliament approved amendments to a draft directive by a 599-55 majority last week. All that now remains for the measure to come into force is for the leaders of the 28 EU member states to approve the directive by a qualified majority at their next meeting,… 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
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
Reports that the Ukrainian government may be tracking the movements of anti-government protesters using their cellphones raises a number of difficult questions for telecommunications providers operating in that country.
On January 21, cellphone subscribers in the vicinity of Kiev’s Independence Square — the epicentre of recent anti-government protests — received an SMS that read: “Dear subscriber, you are registered as a participant in a mass disturbance.” According to Andrea Peterson of the Washington Post,… More
This week the news has been full of reports from Las Vegas regarding the latest technological trends on display at the International Consumer Electronics Show. Discussions about wearable technologies and smart appliances — and the emerging “Internet of Things” — often lead privacy advocates to question the potential downsides of companies collecting massive amounts of data regarding everything from where we walk to what we eat.… More
Agricultural sector companies, and companies with large agricultural supply chains, face new scrutiny from investors and other stakeholders concerning human rights-related risks in their corporate supply chains. Key issues for this sector include the risks of human trafficking and forced labor and the potential for suppliers to be complicit in land grabs which displace vulnerable populations.
In early December, a group of faith-based and socially responsible investors announced that they would launch a campaign in January 2014 urging fifteen companies in the food-agricultural and hospitality sectors to take steps to address risks of human rights abuses in their corporate supply chains.… More
In November, Gwen Jaramillo and I published a piece in Practical Law that looked at trends relevant to CSR. The piece covered a range of topics, including new legislative and regulatory requirements, the role of the board of directors, and key concerns for corporate general counsel.
In noting the key role of the board in overseeing a company’s approach to CSR,… More
Gare founded the CSR practice in 2000 after serving as Senior Foreign Policy Advisor and Counsel to U.S. Senator Edward M. Kennedy and Principal Deputy Assistant Secretary in the U.S. State Department’s Bureau of Democracy,… 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
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[.]
Increasingly, companies will face explicit demands from investors, especially members of the socially responsible investor community, that they provide detailed disclosures regarding internal processes and procedures to assess and manage the human rights impacts of their operations. For many companies, responding to these requests will require careful review of the nature of the impacts of their operations and the development of internal capacity to understand and communicate those impacts through a human rights lens.… More
This week, members of the United Nations (“U.N.”) Working Group on Human Rights and Transnational Corporations are making an official visit to the United States as part of the Group’s mandate to promote the effective implementation of the U.N.… More
As mentioned in last week’s post, participants in the Voluntary Principles Initiative recently held their Annual Plenary Meeting. The discussions began with opening addresses from Professor John Ruggie, the former U.N. Special Representative on Business and Human Rights and author of the U.N. Guiding Principles, and Dr. Margaret Jungk, from the U.N.… More
The Telecommunications Industry Dialogue, a group of eight telecommunications companies, recently published a set of Guiding Principles on freedom of expression and privacy. Originally formed in 2011, the Industry Dialogue also announced a two-year partnership with the Global Network Initiative.
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
Brazil’s Belo Monte Move: Will National Development Banks Start Taking Human Rights and Environmental Concerns More Seriously?
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
On December 4 and 5, more than 1,000 participants from 85 countries gathered for the first U.N. Forum on Business and Human Rights in Geneva, Switzerland. The Forum focused on “trends and challenges” in the implementation of the U.N. Guiding Principles on Business and Human Rights (the “Guiding Principles”), which were formally endorsed by the U.N. Human Rights Council in June 2011. The Forum includes discussions of a broad set of key issues in the business and human rights space,… 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
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
As discussed in previous posts, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act directed the SEC to issue a rule defining specific disclosure requirements for issuers for which conflict minerals are “necessary to the functionality or production of a product” manufactured,… 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
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 July 11, the U.S. government eased sanctions on financial services and new investment in Burma, while requiring that U.S. persons (including U.S.-organized entities) with cumulative investments in Burma exceeding $500,000 report on processes they have in place to address social and environmental impacts. This is the first time that the United States has explicitly used a sanctions regime to encourage responsible business practices. Despite the general easing of restrictions,… More
Securities and Exchange Commission Sets Date for Final Hearing on Conflict Minerals and Revenue Transparency Rules
On August 22, the Securities and Exchange Commission ("SEC") will hold an open meeting to consider whether to adopt final rules implementing Section 1502 and Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Under the original statutory provisions, both rules were to have been issued by April 17, 2011. Draft rules were originally released in December 2010 and the final rules have been long-delayed. … More
I recently published an op-ed in The Christian Science Monitor cautioning companies seeking to make investments in Burma (Myanmar) to make sure that the inflow of new investments does not end up harming the country’s long-suffering citizens.
The op-ed recommends that such companies undertake human rights due diligence, consistent with United Nations Guiding Principles on Business and Human Rights,… More
Private equity firms are under increasing pressure, especially from their limited partners, to incorporate environmental, social, and governance ("ESG") factors into their investment and management processes. Limited partners expect private equity firms to integrate ESG criteria into due diligence practices, the management of existing portfolio companies, and communications to external stakeholders.
Many private equity firms have signed on to industry guidelines including the United Nations Principles for Responsible Investment (“UNPRI”) and/or the Private Equity Growth Capital Council’s Guidelines for Responsible Investment.… More
New Executive Order Imposes Sanctions on Technology Companies that Facilitate Human Rights Abuses in Iran and Syria
The White House recently released a new Executive Order imposing sanctions on information technology companies that facilitate certain human rights abuses in Iran and Syria. Released on April 23, the Executive Order ("Blocking the Property and Suspending the Entry into the United States of Persons with Respect to Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology") explicitly applies to both individuals and entities. … More
Following the success of Daw Aung San Suu Kyi and her National League for Democracy (“NLD”) party at the polls and today’s announcement that the United States will soon lift some of its sanctions against Burma, companies are closely scrutinizing the possibility of conducting business in the long-isolated country.
Recent events should not, however, be considered a green light to conduct business in Burma for at least two reasons: … More
A recent letter from Senator Patrick Leahy (D-VT) created expectations that the U.S. Securities and Exchange Commission (“SEC”) had drafted and circulated its long-awaited final rule on conflict minerals. These expectations now seem to have been premature.
In mid-February, Senator Leahy and other co-sponsors of the conflict minerals provision — Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act — sent a letter to the SEC (.pdf) that was interpreted to imply that the SEC had drafted a final rule and shared it with lawmakers,… More
A coalition of 80 institutional investors sent a letter to Congress last week in support of the Business Transparency on Trafficking and Slavery Act (HR 2759). As discussed previously, the proposed legislation would require companies to disclose efforts to identify and address the risks of human trafficking, forced labor, slavery, and the worst forms of child labor in their supply chains.
The U.S. Securities and Exchange Commission (“SEC”) failed to issue a final rule on conflict minerals regulations before the end of 2011, and companies still await clear guidance on the scope of Section 1502 and the nature of the relevant reporting requirements.… More
Former UN Special Representative on Business and Human Rights John Ruggie, now a senior advisor to our CSR practice, recently authored an article in Corporate Secretary magazine in which he observed that there has been a "convergence of expectations" with regard to business responsibilities in the area of human rights.
These expectations are set forth in the UN Guiding Principles on Business and Human Rights,… More
In less than two months, on January 1, 2012, the California Transparency in Supply Chains Act will go into effect. Companies impacted by the legislation will be required to disclose their efforts, if any, to ensure that their direct supply chains are free from slavery and human trafficking.
As discussed in previous posts, the legislation applies to retail sellers and manufacturers doing business in California that have annual worldwide gross receipts exceeding one hundred million dollars.… More
Business Ethics magazine recently published an interview with John Ruggie, the former U.N. Special Representative on Business and Human Rights who recently joined Foley Hoag’s CSR practice as a senior advisor. Michael Connor, Editor and Publisher of Business Ethics, conducted the interview. The conversation focused on the Guiding Principles on Business and Human Rights, the business drivers for respecting human rights, and the ways in which the Principles have been adopted by both public and private stakeholders.… More
More than a Resource: Water, Business, and Human Rights, a recent report by the Institute for Human Rights and Business (“IHRB”) calls on companies to take action to respect the human right to water.
The report references the emerging consensus among international institutions that businesses have a responsibility to respect human rights, and highlights the Guiding Principles on Business and Human Rights,… More
The International Finance Corporation ("IFC") released its updated Sustainability Framework today, reflecting changes adopted by the IFC’s Board of Directors in May 2011. The Framework includes the IFC’s Policy and Performance Standards on Environmental and Social Sustainability. The updates reflect a number of important changes, including both the scope of Framework’s application and the nature of the substantive requirements for borrowers. The new Framework will be effective on January 1, 2012.
On June 16, the U.N. Human Rights Council formally endorsed the Guiding Principles on Business and Human Rights prepared by the U.N. Special Representative for Business and Human Rights, Professor John Ruggie. The Human Rights Council’s endorsement represents the conclusion of the Special Representative’s mandate, which began in 2005.
Revised OECD Guidelines State that “Respect for Human Rights is the Global Standard of Expected Conduct” for Companies
On May 25, forty-two countries, including the 34 countries that are members of the Organization for Economic Co-operation and Development ("OECD"), committed to promote an updated version of the OECD Guidelines of Multinational Enterprises.
The OECD Guidelines (.pdf) are a non-binding code of conduct containing recommendations for responsible business conduct in a global context. The countries that adhere to the Guidelines agree to promote the guidelines among the business sector.… More
Foley Hoag recently issued commentary on the Guiding Principles on Business and Human Rights. As noted in an earlier post, an advance copy of the Guiding Principles was released in March by the U.N. Special Representative for Business and Human Rights, John Ruggie. The Principles will be considered by the U.N. Human Rights Council at its June 2011 session.
As noted in our commentary (a copy of which is available here)
The Principles are not binding international law.… More
The Securities and Exchange Commission ("SEC") has delayed the release of final rules applicable to companies that source "conflict minerals" from the Democratic Republic of Congo ("DRC") and adjoining countries. Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act requires companies that utilize tin, tungsten, tantalum, and gold to conduct and disclose due diligence on their supply chains in order to identify whether the sourcing of these minerals is supporting the ongoing conflict in the Democratic Republic of Congo.… More
U.N. Special Representative Releases Final Version of the Guiding Principles on Business and Human Rights
The U.N. Special Representative for Business and Human Rights, John Ruggie, has released his final report, Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect, and Remedy" Framework. The report will now be submitted to the U.N. Human Rights Council for consideration at its June 2011 session.
Conflict Minerals and Payments to Governments: SEC Extends Time Period for Comments on Proposed Rules
The Securities and Exchange Commission ("SEC") has extended the time period for comments on proposed rules issued pursuant to Section 1502 (conflict minerals) and Section 1504 (disclosure of payments to governments) of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rules are now open for comment until March 2, 2011.
The extension applies to rules proposed pursuant to:
In previous posts, we have discussed the requirements and implications of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (.pdf), which 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. … More
2010 was a big year for indigenous rights. By the end of the year, the four countries that had voted against the U.N. Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in 2007 – the United States, Canada, Australia, and New Zealand – had reversed their positions and declared their support for the Declaration. This development reflects the rising importance of indigenous rights on the international stage,… More
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”). … More
A resolution adopted by the European Parliament on November 25, 2010 increases the likelihood that the days of CSR as a purely voluntary initiative are numbered. Approved by a margin of 480 votes to 48, the resolution on corporate social responsibility in international trade agreements calls on the European Commission to include a CSR clause in all of the European Union’s trade agreements.
Such a clause would require,… More
Yesterday, the Securities and Exchange Commission (“SEC”) posted proposed rules pursuant to Section 1502 (conflict minerals) and Section 1504 (disclosure of payments to governments) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
The proposed rules are open for comment until January 31, 2011. Final rules will be issued no later than April 15, 2011.
We will be providing further analysis of both of these proposed rules. … More
The U.N. Special Representative for Business and Human Rights, John Ruggie, has released the long-awaited draft of his final report, the Guiding Principles for the Implementation of the United Nations "Protect, Respect and Remedy’" Framework (.pdf). The Guiding Principles are the culmination of the Special Representative’s mandate, which began in 2005, and which will conclude when the final report is delivered to the U.N.… More
Raise the topic of due diligence in a room of corporate lawyers and you might expect the conversation to turn to a discussion of mergers and acquisitions or environmental site assessments. Increasingly, however, corporate counsel are being asked to help clients develop due diligence strategies and systems to identify the human rights concerns that may be associated with their existing, or potential, operations.
Corporate stakeholders, including both legislators and shareholders,… More
The California Transparency in Supply Chains Act: New Legislation Requires Disclosures on Corporate Efforts to Eliminate Slavery and Human Trafficking
On September 30, California Governor Arnold Schwarzenegger signed The California Transparency in Supply Chains Act of 2010 into law. The legislation will require companies to disclose their efforts to ensure that their supply chains are free from slavery and human trafficking.
The legislation will go into effect on January 1, 2012 and applies to retail sellers and manufacturers doing business in California that have annual gross receipts exceeding one hundred million dollars.… More
On September 10, the Ninth Circuit Court of Appeals upheld a jury verdict in favor of Chevron Corporation (.pdf) in a case involving plaintiff allegations that Chevron was complicit in human rights abuses committed by Nigerian security forces in 1998. Plaintiffs brought claims under the Alien Tort Statute (“ATS”) and the Torture Victim Protection Act (“TVPA”).
The primary events at issue in the litigation took place at an offshore platform belonging to Chevron’s Nigerian subsidiary. … More
The Dodd-Frank Wall Street Reform and Consumer Protection Act (.pdf), signed into law by President Obama on July 21, contains provisions requiring publicly traded companies that utilize certain "conflict minerals" to report regarding whether their products are “conflict free” – meaning that they should report on any due diligence steps taken to demonstrate that their products are not fueling conflict in the Democratic Republic of Congo ("DRC"). The legislation does not prohibit companies from using minerals from conflict areas. Rather,… More