In a landmark development, the European Union’s Foreign Ministers on December 8 approved an “Action Plan on Human Rights and Democracy” that establishes a new mechanism for targeting systematic violators of human rights from any country in the world. The human rights community has colloquially termed the Action Plan “Europe’s Global Magnitsky Act”, an homage to the U.S. Global Magnitsky Human Rights Accountability Act that was passed by a wide bipartisan margin in Congress and signed into law by former President Obama at the end of his administration.… More
Category Archives: Human Rights
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
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
Trump Administration’s Proposed Prosecution of Pipeline Opponents: Weighing Human Rights Obligations and Congressional Support
The Trump Administration is using the reauthorization of a pipeline safety statute as an opening to insert new provisions that would give U.S. authorities broader latitude to thwart and criminalize the activities of protestors opposing hydrocarbon pipeline projects. The provision would apply to both existing pipelines and those that are under construction, with at least the partial intent of targeting large-scale protests that have encircled construction of oil transport infrastructure projects like the Dakota Access Pipeline and the Keystone XL Pipeline.… 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
Following the publication of a landmark report this September that makes the case for businesses to secure “the shared space” in which enterprises and civil society both operate, last month a group of eight leading organizations released a statement supporting civic freedoms, human rights defenders, and the rule of law. The statement, which is signed by companies including Unilever, Adidas and AngloAmerican, recognizes human rights defenders as “important partners in identifying risks or problems in our business activities” and call on governments to ensure defenders are free from harassment,… 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
On November 29, Australia became only the second country in the world to enact legislation to fight modern slavery when the country’s Parliament passed the Modern Slavery Act. The new Australian legislation is similar to the UK’s Modern Slavery Act, which was enacted in 2015, inasmuch as both statutes seek to fight modern slavery by getting companies to crack down on such practices in their supply chains.… 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
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. …
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 dismissal of a climate change lawsuit brought by the cities of San Francisco and Oakland; the launch of the Centre for Sport and Human Rights; and a new benchmarking report from Know the Chain.
- On June 18, Know the Chain published its second benchmarking report of information and communications technology (“ICT”) companies.…
On April 24, the U.S. Supreme Court held that plaintiffs may not bring claims against corporations domiciled outside the United States in Alien Tort Statute (“ATS”) cases.
In the years following the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, courts have made clear that filing suit against a U.S.-domiciled company is not sufficient for plaintiffs to be able to overcome the presumption against extraterritoriality that is applicable to ATS litigation.… More
The 2017 benchmarking report ranked 98 of the world’s largest publicly traded companies on their human rights performance using 100 specific performance indicators. The CHRB has focused on companies in the following three industry sectors: agriculture;… More
For Alien Tort-watchers, all eyes are focused on the Supreme Court and the pending decision in Jesner v. Arab Bank, which may determine that corporations are not appropriate defendants in cases brought pursuant to the Alien Tort Statute (“ATS”).
In the interim, in a decision released on February 21, the District Court for the Eastern District of Virginia has allowed plaintiffs to proceed with their ATS case against U.S.… More
This week’s post includes: a new venture fund intended to support companies trying to increase transparency with regard to labor conditions in corporate supply chains; the launch of new principles on responsible corporate tax policy; and litigation alleging that a company’s failure to disclose human rights-related risks in its supply chain in its packaging is deceptive to consumers.… 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
On December 21, 2017, the Trump Administration released a list of foreign nationals it has identified to be sanctioned in accordance with the Global Magnitsky Human Rights Accountability Act of 2016. In December 2016, we issued a client alert providing an overview of the legislation as it was being passed by Congress.
Based on the Sergei Magnitsky Rule of Law Accountability Act of 2012 – which authorized imposition of sanctions on Russian nationals who grossly violate human rights or engage in massive corruption – the Global Magnitsky Act greatly expands the aperture of U.S.… 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
This week’s post includes: the formal withdrawal of the United States from the EITI; the passage of the Canadian Magnitsky Act; and the launch of the Investor Alliance for Human Rights.
- On November 2, the Government of the United States formally withdrew from the Extractive Industries Transparency Initiative (“EITI”).…
A Business and Human Rights Treaty: Updates from the Third Session of the Intergovernmental Working Group
The Open-Ended Intergovernmental Working Group that is considering an international treaty on business and human rights held its third session from October 23-27 in Geneva. A draft report of the session is available here.
The mandate of the Working Group, as set forth by the U.N. Human Rights Council in 2014, is “to elaborate an international legally binding instrument to regulate, in international human rights law,… More
This week’s post includes: a paper from on the proposed draft elements for an international treaty on business and human rights; new guidance from the United Kingdom with regard to compliance with the Modern Slavery Act; and a review of corporate responsibility reporting.
- On September 29,…
Corporate Liability and the Alien Tort Statute: Highlights from the Oral Arguments in Jesner v. Arab Bank
On Wednesday, October 11, the U.S. Supreme Court heard oral arguments in Jesner v. Arab Bank. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).
In granting plaintiffs’ petition for a writ of certiorari, the Supreme Court agreed to review the following question:
This case presents the question this Court granted certiorari to resolve,… 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.
This week’s post includes: a new report from the U.N. Working Group on Business and Human Rights; a report evaluating corporate efforts to assess forced labor risks in sugarcane supply chains; and a revised report reviewing national action plans on business and human rights as issued by 18 countries.… More
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
This week’s post includes: an announcement by the Government of Australia that it will move forward with the development of a new “Modern Slavery Act”; new commitments by five companies to prohibit recruitment fees in their supply chains; and decision by the African Commission on Human and Peoples’… 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
This week’s post includes: a decision by the Ontario Superior Court of Justice addressing a corporation’s “duty of care” with regard to the employees of its suppliers; new IBA guidance for lawyers on integrating business and human rights considerations into their advice to clients; and a report evaluating corporate conflict minerals filings for calendar year 2016.… 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 human rights litigation in U.S. federal courts; new guidelines on the E.U. directive on non-financial reporting; and the release of the U.S. State Department’s 2017 Trafficking in Persons report.
- On June 8, U.S. Customs and Border Protection published a final rule in the Federal Register amending existing customs regulations in order to to reflect the elimination of the consumptive demand exception,…
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.
This week’s post includes: the announcement of a new corporate alliance intended to advance diversity and inclusion in the workplace; the release of a paper by Professor John Ruggie on the development of the UN Guiding Principles on Business and Human Rights; and guidance from the UN Office of the High Commission for Human Rights on the human rights responsibilities of banks.… 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,…
On Monday, April 3, the U.S. Supreme Court granted a petition for a writ of certiorari filed by plaintiffs in Jesner v. Arab Bank, No. 16-499. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).
The petition was filed after the Second Circuit Court of Appeals upheld the dismissal of plaintiffs’ claims in five consolidated cases against Arab Bank,… 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 Monday, March 13, the Corporate Human Rights Benchmark (“CHRB”) will release its inaugural results.
As previously discussed, the CHRB will rank 100 companies on their human rights performance as part of an initial pilot. The companies chosen for the pilot include members of the extractive, apparel, and agricultural sectors. Companies will be assessed in the following areas: governance and policy; systems and processes;… 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: expected efforts by the U.S. Congress to repeal the Securities and Exchange Commission’s revenue transparency rule; the dismissal of a case against Royal Dutch Shell in the United Kingdom stemming from the company’s activities in Nigeria; and the revival of claims against Tahoe Resources in British Columbia on the basis of the alleged shooting of protestors at a mine site in Guatemala.… More
This week’s post includes: updates on litigation in the Doe v. Nestle case; a private members’ bill in the United Kingdom that would expand the scope of the Modern Slavery Act; and an easing of U.S. sanctions against Sudan.
- As noted previously,…
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
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
The Global Magnitsky Human Rights Accountability Act: A Sanctions Tool for Promoting the U.S. Human Rights Agenda
After months of closed-door discussions, Congress is near final passage of the negotiated National Defense Reauthorization Act (“NDAA”) for appropriating defense funds in fiscal year 2017. … 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: 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
Alien Tort Case Development: Plaintiffs Overcome Presumption against Extraterritoriality, but Still No Corporate Liability in the Second Circuit
On August 24, the Second Circuit Court of Appeals affirmed the dismissal of plaintiffs’ claims in a case filed against Lebanese Canadian Bank pursuant to the Alien Tort Statute (“ATS”). Plaintiffs in the case, Licci et al. v. Lebanese Canadian Bank, allege that the bank facilitated rocket attacks in Israel through the provision of a bank account in New York that allowed for wire transfers on behalf of Hezbollah.… 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
This week’s post includes: the release of the third, and likely final, draft of the World Bank’s revised safeguard policies; guidance for management accountants on how to identify human rights-related risks and manage human rights performance; and developments in a major Alien Tort Statute case.
- On July 20,…
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
Second Circuit Holds that the U.S. Government Can’t Order Microsoft to Disclose Customer Emails Stored in Ireland
In a case closely watched by privacy advocates, on July 14, the Second Circuit Court of Appeals held that the Stored Communications Act (“SCA”) does not authorize U.S. law enforcement authorities to order U.S.-based companies to turn over customer e-mail content that is stored exclusively outside the United States.
This week’s post includes: a new lawsuit aimed at combating human trafficking in corporate supply chains; the release of the 2016 Trafficking in Persons Report by the U.S. State Department; and a change in the Reporting Requirements on Responsible Investment in Burma.
- On July 1,…
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
President Obama signed the Trade Facilitation and Trade Enforcement Act of 2015 into law in February of this year. In doing so, he eliminated the “consumptive demand exception,” a long-standing loophole in the general prohibition against the importation of goods made with forced labor.
U.S. law has long prohibited the import of “goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor.” The consumptive demand exception allowed companies to import goods produced with forced labor if the “consumptive demand” for those goods in the United States exceeded the capacity of domestic production.… More
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
This week’s post includes: the first reports published pursuant to the requirements of the U.K. Modern Slavery Act; an overview of social and environmental shareholder proposals filed for the 2016 proxy season; and a new effort to benchmark technology companies on their policies and practices with regard to forced labor in their supply chains.… More
On March 21, the Corporate Human Rights Benchmark (“CHRB”) released the methodology that it will use to rank 100 companies on their human rights performance as part of an initial pilot. The companies chosen for the pilot include members of the extractive, apparel, and agricultural sectors.
Earlier this year, the CHRB announced the list of companies that it will assess as part of the pilot effort.… More
This week’s post includes: an overview of amicus briefs in the Apple case; the arrest of a Facebook executive in Brazil; and a statement from the U.S. Government on its human rights “commitments and pledges,” including its forthcoming adoption of a National Action Plan on Responsible Business Conduct.… 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.…
On February 11, the U.S. Senate passed the Trade Facilitation and Trade Enforcement Act and President Obama is expected to sign the legislation this week. A key provision in the Act eliminates the “consumptive demand exception,” a long-standing loophole in the prohibition against the importation into the United States of goods made with forced labor.
Pursuant to the consumptive demand exception, companies have been able to import goods produced with forced labor if the “consumptive demand”… 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
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
A District Court judge in California has dismissed a complaint against Nestlé USA Inc. and Nestlé Purina Petcare Co. (together “Nestlé”) which argued that the company was obligated to inform consumers that seafood in its catfood products may have been sourced from forced labor. Plaintiffs alleged violations of the California Unfair Competition Law, the Legal Remedies Act, and the California False Advertising Law.
Specifically, plaintiffs stated that they would not have purchased the company’s products if they had been informed that the seafood in those products was linked to forced labor,… More
On December 8, the Second Circuit Court of Appeals upheld the dismissal of plaintiffs’ claims in five consolidated cases against Arab Bank, PLC. Plaintiffs in each of the cases alleged that they, or their family members, had been harmed in attacks by terrorist organizations that had received financing, in part, as a result of accounts and transfers arranged by the bank.
Claims in the consolidated cases, … More
The transparency provisions of the U.K. Modern Slavery Act went into effect on October 29. At the same time, the U.K. Government has released guidance for companies seeking to comply with the Act.
As previously discussed, 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.… More
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
On October 2, the Securities and Exchange Commission (“SEC”) filed a schedule with the U.S. District Court for the District of Massachusetts providing details as to when the agency will seek to issue a final rule on revenue transparency.
As discussed in previous posts, the SEC originally issued a rule in August 2012 implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.… More
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
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,…
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 week, the Second Circuit Court of Appeals affirmed a decision in In re: South African Apartheid Litigation dismissing claims brought pursuant to the Alien Tort Statute (“ATS”) against Ford and IBM. Plaintiffs had alleged that the companies aided and abetted tortious conduct by South Africa’s apartheid regime.
The Court observed that the “focus” of the necessary inquiry as to whether plaintiffs’… 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
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
U.N. Guiding Principles Reporting Framework Released by the Human Rights Reporting and Assurance Frameworks Initiative
In late February, after 18 months of research and consultation, a new Reporting Framework has been released to help companies report on their human rights performance in a manner aligned with the expectations set forth in the U.N. Guiding Principles on Business and Human Rights. The Reporting Framework is intended to enable companies of all sizes, and in all sectors, to report on their efforts to operate consistently with the corporate responsibility to respect human rights.… More
Frequently Asked Questions on the U.S. Government’s National Action Plan on Responsible Business Conduct
On February 12, the U.S. Department of State released a set of “Frequently Asked Questions” (“FAQs”) with regard to the U.S. Government’s efforts to develop a National Action Plan on Responsible Business Conduct. The plan is expected to be released by the end of this year.
As announced in September, the U.S. Government is working on a National Action Plan “to promote and incentivize responsible business conduct,… 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.
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
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
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.
The Business and Human Rights Working Group of the International Bar Association (“IBA”) recently released draft guidance for bar association and business lawyers on implementation of the U.N. Guiding Principles on Business and Human Rights (“the U.N. Guiding Principles”).
As stated in a press release by the IBA, the intent of the draft guidance for bar associations is to:
- encourage bar associations to improve understanding of the relevance and applicability of business and human rights principles;…
Alien Tort Case Development: Ninth Circuit Affirms Dismissal of Claims Against Occidental Petroleum and AirScan
On November 12, the Ninth Circuit Court of Appeals affirmed the dismissal of claims filed pursuant to the Alien Tort Statute (“ATS”) against Occidental Petroleum and AirScan. The case, Mujica v. AirScan, involves claims by Colombian plaintiffs alleging that the companies were complicit in a 1998 bombing of a Colombian village by the Colombian Air Force. The Ninth Circuit held that plaintiffs’ claims did not rebut the presumption against extraterritorial application of ATS that has served as a significant obstacle for plaintiffs in ATS cases ever since the Supreme Court’s 2013 decision in Kiobel v.… More
Alien Tort Case Development: The Second Circuit Assesses the Appropriate Focus of Jurisdictional Inquiries
On October 23, the Second Circuit Court of Appeals issued a decision in Mastafa v. Chevron Corp., a case filed against Chevron Corp. and BNP Paribas pursuant to the Alien Tort Statute (“ATS”). The court upheld the District Court’s dismissal of the plaintiffs’ complaint. In upholding the dismissal, the court held that the “focus” of the jurisdictional inquiry in ATS cases must be the specific conduct that allegedly violated the law of nations and where that conduct occurred.… More
Earlier this month, the U.K. Home Office announced that a measure requiring public reporting by British companies would be included in the Modern Slavery Bill that is currently being considered by the House of Commons. The Modern Slavery Bill is expected to be enacted before the next general election in May 2015.
In late September, the District Court for the District of Columbia ruled that two closely related cases filed against Exxon Mobil Corporation, and several of the company’s subsidiaries, could proceed. Plaintiffs in both cases, Doe I v. Exxon Mobil and Doe VIII v. Exxon Mobil, allege that the company is liable for human rights abuses committed by members of the Indonesian military who had been engaged to provide security for the company’s operations in Indonesia.… More
On September 24, at a meeting of the Open Government Partnership at the United Nations, President Obama announced that the U.S. Government would develop a national action plan to promote responsible business conduct. The United States had been under considerable pressure from civil society organizations and others to develop such a plan.
Specifically, and as stated in a fact sheet released by the White House:
The United States will develop a National Action Plan to promote and incentivize responsible business conduct,… More
In July, we posted about two recent decisions by federal appellate courts that sought to define the parameters of the “touch and concern” standard established by the Supreme Court in its 2013 decision in Kiobel v. Royal Dutch Petroleum.
Since that earlier post, several other federal courts have issued decisions in cases filed against U.S.-based corporations pursuant to the Alien Tort Statute (“ATS”).… 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 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
Alien Tort Case Developments: Fourth and Eleventh Circuits Apply Kiobel’s “Touch and Concern” Standard
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
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
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
In a mid-April decision in the In re: South African Apartheid Litigation, the Southern District of New York (“SDNY”) has tackled one of the most pressing legal questions left unanswered by the Supreme Court last year in Kiobel v. Royal Dutch Petroleum (“Kiobel II”): Can corporations be held liable under the Alien Tort Statute (“ATS”) for violations of “the law of nations”?… 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
Foley Hoag Authors Good Practice Note on Indigenous Peoples’ Rights and Free, Prior, and Informed Consent
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
A recent ruling by Ontario’s highest court clarifying the law governing the enforcement of foreign judgments may turn Canada’s most populous province into an attractive forum for plaintiffs seeking to collect on judgments against multinational corporations.
On December 17, the Ontario Court of Appeal overturned a stay issued by the Ontario Superior Court of Justice in an enforcement action brought against Chevron and its Canadian subsidiary by a group of Ecuadorian plaintiffs.… More
Today, February 11, is a digital day of protest against surveillance by the National Security Agency. Billed ‘The Day We Fight Back“, participants in the protest range from activist groups to the Reform Government Surveillance Coalition, an business entity which includes Google, Microsoft, LinkedIn, Twitter, Facebook, Yahoo!, and AOL. Protesters’ demands include Congressional support for the Freedom Act,… 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
Daimler AG v. Bauman: In Latest ATS Decision, the Supreme Court Limits Jurisdiction of U.S. Courts over Multinational Corporations
A sweeping decision by the Supreme Court on January 14 has further restricted the circumstances under which plaintiffs may sue multinational corporations in U.S. courts for harms occurring outside the United States.
In Daimler AG v. Bauman, the Supreme Court unanimously rejected an attempt by twenty-two Argentinian plaintiffs to sue the German automaker in California for the alleged role of its Argentinian subsidiary in the deaths,… 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
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
In September, the Rights and Resources Initiative released a report entitled, “Global Capital, Local Concessions: A Data-Driven Examination of Land Tenure Risk and Industrial Concessions in Emerging Market Economies.” The report, drafted by the Munden Project, attempts to quantify the percentage of company land concessions that overlap community (particularly indigenous) claims,… More
The past few months have seen a few interesting developments in cases in which Alien Tort Statute (“ATS”) claims factor prominently. This judicial activity, much of which focuses on the significance of the presumption against extraterritoriality as applied to the ATS, is illustrative of some of the key questions that will inevitably arise as courts work to interpret and apply the Supreme Court’s holding in Kiobel v.… More
The Superior Court of Justice of Ontario’s recent ruling in the matters of Choc v. Hudbay Minerals Inc., Caal Caal v. Hudbay Minerals Inc., and German Chub Choc v. Hudbay Minerals has signaled a willingness by Canadian courts to use generally accepted principles of common tort law to hold domestic companies liable for human rights violations committed overseas by subsidiaries.… 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
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
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
The U.S. Supreme Court granted cert on April 22 in two important cases for the future application of the Alien Tort Statute (“ATS”) following its decision last week in Kiobel v. Royal Dutch Petroleum.
As discussed in last week’s post, in Kiobel, the Supreme Court offered little guidance to litigants regarding what facts and circumstances would be sufficient to overcome the presumption against extraterritoriality in ATS cases.… More
Supreme Court Holds that Plaintiffs Must Overcome Presumption Against Extraterritoriality in Alien Tort Statute Cases
Earlier today the U.S. Supreme Court issued its long-awaited ruling in Kiobel v. Royal Dutch Petroleum, the case that was to decide whether the Alien Tort Statute (“ATS”) could be applied to corporations as legal persons and whether such lawsuits could be based on actions that occurred outside of the territory of the United States. The Court did not directly address the question of corporate liability and stated that,… More
New Charter Outlines Concrete Steps to Implement the International Code of Conduct for Private Security Contractors
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
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
On March 13-14, participants in the Voluntary Principles Initiative gathered in The Hague for the 2013 Annual Plenary Meeting. Foley Hoag’s Corporate Social Responsibility (“CSR”) practice has served as the Secretariat for the Voluntary Principles Initiative since June 2010.
Established in 2000, the Voluntary Principles Initiative is a tri-partite multistakeholder initiative that provides guidance to companies in extractive industries on maintaining the safety and security of their operations within a framework that ensures respect for human rights and fundamental freedoms.… 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
Petitioners Challenging Conflict Minerals Rule File Preliminary Statement of Issues and Proposed Briefing Schedule
On November 21, petitioners challenging the SEC’s new conflict minerals rule filed a “Preliminary Statement of Issues” with the D.C. Circuit Court of Appeals, setting forth an overview of the challenges they intend to raise in further briefing.
As discussed in an earlier post, on October 19, the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Business Roundtable filed a petition seeking review of the conflict minerals rule,… 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
The Future of the Alien Tort Statute, Take II: The U.S. Supreme Court Hears New Arguments on Extraterritorial Liability
The U.S. Supreme Court started its new term on Monday with a holdover from the last term. The case of Kiobel v. Royal Dutch Petroleum was once again before the Court, this time with arguments focused on the question of whether the Alien Tort Statute (“ATS”) provides federal jurisdiction for tortious actions committed outside the territory of the United States by corporations.… More
We are pleased to announce the launch of the Conflict Minerals Consortium, a cross-industry group of service providers working to assist companies in meeting the requirements of the Securities and Exchange Commission’s new conflict minerals rule.
Foley Hoag is the only law firm member of the consortium and will be working to advise clients on the legal aspects of compliance with the new rule,… More
Google’s decision to block access to an anti-Islamic video in Libya and Egypt as a result of widespread violence highlights some of the complex challenges that face companies that host user-generated content. Companies that host such content must confront circumstances in which the nature of that content can have far-reaching effects ranging from affronts to cultural norms to difficult political and security challenges.
At the same time,… More
The Revised Equator Principles Call on Companies to Seek Free, Prior, and Informed Consent. Next up: Governments?
The new draft Equator Principles reflect and build upon the IFC Performance Standards’ requirement that companies obtain the free, prior, and informed consent (“FPIC”) of indigenous peoples for development projects. This language reflects the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”), which was supported by all but four countries in the UN General Assembly in 2007. The four countries that originally voted against the Declaration – the United States,… 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
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.
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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 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
U.S. domestic counterterrorism measures are a critical component of the U.S. national security framework. Since the U.S. Supreme Court’s June 2010 decision in Holder v. Humanitarian Law Project, there has been renewed debate about the scope and impact of various U.S. measures including the Material Support Statute (18 U.S.C. § 2339B) and Executive Orders pursuant to the International Emergency Economic Powers Act (IEEPA) (50 U.S.C.… More
Obama Administration Calls for Significant Restrictions on the Application of the Alien Tort Statute
The Obama Administration has filed a supplemental amicus brief with the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum arguing for significant limitations on the application of the Alien Tort Statute ("ATS") to conduct outside the United States.
In its March order scheduling Kiobel for rehearing, the Supreme Court directed the parties to focus a new round of briefs on the following question:
Whether and under what circumstances the Alien Tort Statute,… More
No matter how big or small your company currently might be, your company needs a geolocation policy that takes human rights into account if you are either: (1) gathering or storing data that personally identifies your customers; or (2) providing a platform for creating or storing user generated content.
Technology companies typically first think about geolocation when they have grown to the point where they need to locate data somewhere other than their home base for redundancy reasons or to reduce network latency.… More
Technology companies typically begin to think about corporate social responsibility in the context of "giving back to the community" once they have become large, established market players with a track record of profitability. This is far from an ideal approach to CSR, however, because having a proper CSR framework in place right from day one can young companies avoid problems that can stymie their growth or tarnish their reputation permanently.… More
On Thursday, May 17, 2012, President Obama announced that the U.S. would issue a general license easing sanctions on the export of financial services and new investment in Burma, although he did not lift them, meaning that they could be reinstated if there is backsliding on reforms. Although senior Administration officials had previously indicated that sanctions would only be eased on a few industries, the White House today announced that the general license would apply to all new investments in Burma,… More
Access, an advocacy organization that promotes open and secure access to the Internet, recently released its Telco Action Plan, a document that sets forth ten steps and implementation objectives for telecommunications companies (“telcos”) seeking to operate with respect for human rights.
Access launched the plan at last month’s Stockholm Internet Forum and intends to use the document as a platform for dialogue with telcos that seek to operate in political and legal contents that may post threats to freedom of expression,… 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
Integrating corporate social responsibility ("CSR") into compliance structures and processes can be critical to ensuring a company’s CSR commitments are communicated and acted upon. Only then can a company reap the intended benefits of a voluntary commitment, whether those benefits are legal, reputational, or operational. Ideally, CSR should be integrated into training, learning, report, and auditing vertically and horizontally across a company.
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
What policies, processes, and procedures do companies need to have in place in order to protect the fundamental human rights of freedom of expression and privacy?
This question was central to the first independent assessments of corporate implementation of the Global Network Initiative ("GNI") Principles, conducted this past year and announced on April 18 with the release of GNI’s second annual report. … More
On April 17, the U.S. Treasury issued new General License No. 14-C, which relaxes sanctions on financial services with respect to certain humanitarian and not-for-profit activities in Burma.
This License allows financial services to support a broader range of development projects than was previously permitted, and includes: (1) projects to meet basic human needs; (2) democracy building and good governance projects; (3) educational activities;… 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
If the U.S. Supreme Court strikes down, or severely limits, the Alien Tort Statute (“ATS”), what are the implications for plaintiffs and defendants in cases involving violations of international human rights law? The crystal balls were out in Washington recently as scholars and practitioners alike continued to speculate about the future of the ATS following the Supreme Court’s order to rehear arguments in Kiobel v.… 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
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
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
On March 5, less than a week after oral arguments in Kiobel v. Royal Dutch Petroleum, the Supreme Court ordered the case "restored to the calendar for reargument." The Court’s order directed the parties to file new briefs on a calendar running through June 29. The case will not be decided this term.
The Court’s order directs the parties to focus their briefs on the following question:
Whether and under what circumstances the Alien Tort Statute,… More
U.S. Supreme Court Review of Corporate Liability Under the Alien Tort Statute — An Overview of the Oral Arguments in Kiobel v. Royal Dutch Petroleum
On February 28, in proceedings that were both closely watched and anxiously anticipated, the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum. For the first time, the question of whether corporations are proper defendants in Alien Tort Statute ("ATS") cases is squarely before the Court. Petitioners had sought Supreme Court review of a decision by the Second Circuit Court of Appeals finding that corporations are not proper defendants under the ATS.… More
Liability and Immunity for Human Rights Violations: The Impact of Current Legal Developments on Corporate Responsibility
It is likely that the coming year will see a number of legal developments relating to the immunity and liability of corporations, states, and individuals as recognized by U.S. courts. With an increasing number of suits filed against companies for human rights abuses, the question of whether immunity attaches is of great significance.
Courts inside and outside the United States are weighing questions regarding jurisdiction and immunity,… More
Responding to Government Demands for Content Restrictions: The Need to Focus on Responsible Implementation Strategies
The announcement by Twitter last month that it is deploying the ability to block tweets on a country-by-country basis in response to government demand for content restrictions has generated an enormous amount of controversy.
Some commentators have accused the company, whose CEO once memorably described it as belonging to the “free-speech wing of the free-speech party,” of giving in to the demands of governments who take a narrow view of the freedom of expression in order to grow their business in lucrative new markets.… More
The new IFC Environmental and Social Performance Standards — in particular, Performance Standard 7 on indigenous peoples — present a range of management and operational challenges for certain companies. For the first time, the Performance Standard includes a requirement of free, prior, and informed consent (“FPIC”) from indigenous peoples.
The new Performance Standards went into effect in January 2012 and are applicable to a greater number of the IFC’s investments than the 2006 Performance Standards,… 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 Obama Administration has filed an amicus brief with the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum in support of the plaintiffs’ position that corporations are proper defendants in cases involving claims under the Alien Tort Statute ("ATS"). Filed on December 21, the brief was signed by the Department of Justice, the Department of State, and the Department of Commerce. … 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
I recently authored an article for IR Magazine on "CSR and the Role of the Board." In looking at board oversight in the area of CSR, one source that I relied upon was the 2010 report, Board Oversight of Environmental and Social Issues, published by Calvert Asset Management Company and The Corporate Library.
The report analyzed board committee charters at S&P 100 firms and found that only 65 companies in the S&P 100 have board committees with some level of responsibility for oversight of corporate responsibility concerns.… More
A developer for Google’s Android mobile phone operating system has exposed what has the potential to be the most significant user privacy security vulnerability ever discovered in any computing device.
In a video posted to YouTube, Connecticut-based developer Trevor Eckhard has demonstrated how a program called Carrier IQ logs an astonishing amount of information about every aspect of mobile device use —… 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
Almost one year ago, we wrote about the long history of Sarei v. Rio Tinto, an Alien Tort Statute ("ATS") case filed in 2000 against Rio Tinto Plc involving allegations stemming from the company’s mining operations on the island of Bougainville, Papua New Guinea. Last week, on October 25, the Ninth Circuit Court of Appeals reversed the District Court’s dismissal of plaintiffs’ claims for genocide and war crimes.… More
On Monday, October 17, the U.S. Supreme Court granted plaintiffs’ petition for a writ of certiorari in Kiobel v. Royal Dutch Petroleum Co. In Kiobel, the Second Circuit Court of Appeals held that corporations cannot be sued under the Alien Tort Statute (“ATS”) for violations of customary international law. The question of corporate liability under the ATS was left unsettled by the Supreme Court in Sosa v.… More
Corporate social responsibility and nuclear power? Indeed. In September, the very first code of conduct for the nuclear power plant industry was launched.
The development of the "Principles of Conduct" was facilitated by the Carnegie Endowment for International Peace. Representatives of all of the major exporters of nuclear power plants participated in the drafting process, which was initiated in 2008. I had the honor of being selected by the Carnegie Endowment to help facilitate the negotiations.… 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
Last week, I gave the keynote address at an Extraordinary Plenary Meeting of the Voluntary Principles on Security and Human Rights, held in Ottawa, Ontario on September 15-16, 2011. (Note: I did not deliver my remarks in my capacity as Senior Advisor to Foley Hoag’s CSR practice. As noted previously on this blog, however, Foley Hoag serves as the Secretariat for the Voluntary Principles.) … More
Human trafficking is a problem that is often hidden from sight, especially in the United States. The statistics on human trafficking and commercial sexual exploitation are unsettling. Nearly 800,000 people are trafficked across international borders every year. The U.S. Department of State’s 2010 Trafficking in Persons Report estimated that 2,000,000 children are exploited in the global commercial sex trade. ECPAT International,… More
September 7, 2011 — John G. Ruggie, the former U.N. Secretary-General’s Special Representative for Business and Human Rights and current Harvard professor, has joined Foley Hoag LLP’s Corporate Social Responsibility Practice as a senior advisor.
As discussed in an earlier post, the International Finance Corporation ("IFC") recently released an updated version of its Performance Standards on Environmental and Social Sustainability. The IFC uses the Performance Standards to manage the social and environmental risks and impacts associated with projects receiving IFC financing. The revised Standards reflect a number of important changes, particularly on the topic of engaging with communities, with special guidance related to indigenous peoples. … More
H.R. 2759: New Federal Bill Would Require Companies to Disclose Efforts to Address Human Rights Risks in their Supply Chains
On August 1, Rep. Carolyn Maloney (D-NY) introduced H.R. 2759, the Business Transparency on Trafficking and Slavery Act (.pdf), a bill modeled after the California Transparency in Supply Chains Act. The bill 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 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 Monday, July 11, for the second time in four days, a U.S. appellate court issued a decision stating that corporations are proper defendants in cases involving claims under the Alien Tort Statute (“ATS”). The Seventh Circuit Court of Appeals dismissed plaintiffs’ claims in Flomo v. Firestone, but held that “corporate liability is possible” under the ATS.
In a decision written by Circuit Judge Richard Posner,… More
On July 8, the D.C. Circuit Court of Appeals reinstated a lawsuit brought against Exxon Mobil Corp. (“ExxonMobil”) by Acehnese villagers, alleging that the company and its Indonesian subsidiary are liable for killings, torture, and other human rights abuses committed by the Indonesian military. In a lengthy 2-1 decision, the D.C. Circuit held that companies are proper defendants under the Alien Tort Statute (“ATS”),… More
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.
District Court Denies Motion to Dismiss Certain Alien Tort Statute Claims Against Chiquita Brands International
On June 3, the U.S. District Court for the Southern District of Florida declined to dismiss certain claims brought by Colombian plaintiffs against Chiquita Brands International ("Chiquita") alleging that the company knew, or should have known, that its material support for the United Self-Defense Forces of Colombia (“AUC”), a paramilitary organization, would lead to the death or torture of their family members. In Re: Chiquita Brands International,… More
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
Last week, the Ninth Circuit Court of Appeals reversed and remanded a lower court’s decision to dismiss Bauman v. DaimlerChrysler Corp. The case involves allegations by residents of Argentina stating that one of DaimlerChrysler’s subsidiaries, Mercedes-Benz Argentina, collaborated with state security forces to kidnap, detain, torture and/or kill plaintiffs or their relatives during Argentina’s "Dirty War." Plaintiffs have asserted claims under both the Alien Tort Statute ("ATS") and the Torture Victims Protection Act.… 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
Earlier this week, a coalition of companies, investors, and organized labor announced a major new initiative in support of sustainable business practices. The Investor-Business Roundtable for a Sustainable Economy was launched during the 2011 Ceres Conference. Founding signatories include CalPERS and CalSTRS, the AFL-CIO, Levi Strauss & Co., Pacific Gas & Electric, SAP, Jones Lang LaSalle, Generation Investment Management, and the Skoll Foundation.
Participants in the Roundtable have agreed to leverage their position as "industry leaders and key market influencers to accelerate adoption of sustainability approaches and solutions across [their] networks,… More
Retailers and manufacturers seeking to evaluate the potential applicability of The California Transparency in Supply Chains Act to their businesses should make certain that they are aware of recent changes in the California Revenue and Tax Code. Specifically, Section 23101 of the Revenue and Tax Code was amended in a way that creates a more expansive definition of "doing business" in the state for taxable years beginning on or after January 1,… 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
Gare Smith and I recently co-authored an article on corporate social responsibility ("CSR") and risk management for Executive Counsel magazine. In the article, "Making Corporate Social Responsibility Systemic," one issue we discuss is the potential risk to companies that "claim to have embraced CSR and then simply point to glossy reports reflecting anecdotal philanthropic initiatives to demonstrate the degree of their commitment." We believe that
such companies fail to develop the internal policies and mechanisms necessary to ensure that the correct people,… 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.
Foley Hoag’s CSR practice serves as the Secretariat for the Voluntary Principles on Security and Human Rights (the "Voluntary Principles”). The Voluntary Principles, a tripartite multi-stakeholder initiative established in 2000, provide guidance to companies in extractive industries on maintaining the safety and security of their operations within a framework that ensures respect for human rights and fundamental freedoms. The Voluntary Principles urge companies to
recognize a commitment to act in a manner consistent with the laws of the countries in which they are present,… More
Institutional Shareholder Services ("ISS") recently released a report on engagement between investors and public corporations in the United States that included the finding that this “engagement is expanding beyond financial and strategic issues and ‘traditional’ governance topics to include more environmental and social issues.” The report, The State of Engagement between U.S. Corporations and Shareholders, was based on a survey of 355 issuers of stock and 161 investors.… More
Earlier today, the District Court for the Southern District of New York entered an order dismissing, with prejudice, plaintiffs’ claims in Abdullahi v. Pfizer, 01-cv-8118 (S.D.N.Y.). The case involved allegations that Pfizer conducted nonconsensual testing of Trovan, an experimental drug, during a meningitis outbreak in Nigeria in 1996. Earlier this month, plaintiffs and Pfizer had filed a stipulation of dismissal after the parties reached an agreement to settle all claims.
The Nigerian plaintiffs had originally filed suit in 2001,… More
Last week, Sarah Altschuller was interviewed on Capital Thinking, an internet radio program on VoiceAmerica Business Network. During the interview, she addressed several recent legal developments in the field of corporate social responsibility, including the Dodd-Frank provisions on conflict minerals and disclosure of payments to governments, as well as the California Transparency in Supply Chains Act.… More
This year’s Super Bowl, held on February 6, provided advocates with an opportunity to shine a spotlight on one of the darkest sides of major sporting events: the trafficking of sex workers. At an anti-trafficking event held in January, Texas Attorney General Greg Abbott stated that “the Super Bowl is one of the biggest human trafficking events in the United States.”
When large numbers of people attend events like the Super Bowl,… More
The Global Network Initiative: Confronting Human Rights Challenges in the Information & Communications Technology Sector
The Global Network Initiative ("GNI") released its first annual report (.pdf) last month. This is a milestone worth celebrating by all who continue to believe in the power of the information and communications technology ("ICT") sector to promote freedom and development (and development as freedom) worldwide.
Although the changes wrought in the last decade by the proliferation of ICT companies to the furthest reaches of the globe are almost unimaginable,… More
Alien Tort Statute Update: Second Circuit Denies Petition for Rehearing En Banc in Kiobel v. Royal Dutch Petroleum
On February 4, the Second Circuit Court of Appeals denied plaintiffs’ petition for a rehearing en banc in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010). Plaintiffs filed the petition after the Second Circuit held, in a controversial September 2010 decision, that corporations cannot be properly sued under the Alien Tort Statute (“ATS”) for violations of customary international law.… More
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:
Last week’s post, “Why Don’t Executives Understand CSR?” prompted me to reflect on the risks to companies where executives claim pride in corporate CSR programs, but don’t really see CSR as a core element of their business strategy.… More
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
Today is National Human Trafficking Awareness Day. In less than one year, on January 1, 2012, The California Transparency in Supply Chains Act will go into effect. As discussed in previous posts, many large retailers and manufacturers doing business in California will be required to disclose their efforts, if any, to ensure that their product supply chains are free from slavery and human trafficking.… 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
Foley Hoag’s Emerging Enterprise Center blog has recently published several posts on a preliminary staff report, recently released by the Federal Trade Commission (“FTC”), which sets out a proposed framework for protecting privacy in the digital economy. Specifically, the report endorses the implementation of a “Do Not Track” mechanism to allow consumers to choose whether to allow the collection of data regarding their online activities.… 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
Early last week, the Ninth Circuit Court of Appeals revived a tort case brought by 25 members of the Peruvian Achuar indigenous group and Amazon Watch against Occidental Petroleum ("Occidental"). Plaintiffs allege that the company’s operations in the Peruvian Amazon resulted in severe contamination of the land and rivers in the region and that, as a result, they have suffered adverse health effects and negative impacts on their livelihoods.… 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
CDP Water Disclosure, a program of the Carbon Disclosure Project, released its first water disclosure report (.pdf) last week. The report summarizes the results of a survey of 302 companies from 34 countries regarding their water use and their management of water-related risks. The findings highlight the degree to which water-related challenges are capturing the attention of a wide range of corporate stakeholders.… More
Signature Ceremony Marks a Milestone for the International Code of Conduct for Private Security Service Providers
On November 9, at a signing ceremony hosted by the Swiss Government in Geneva, fifty-eight industry-leading private security companies (“PSCs”) signed an International Code of Conduct for Private Security Service Providers (.pdf).
The publication and signature of the Code represents a milestone achievement for a multi-stakeholder initiative, launched in June 2009 and sponsored by the Swiss Government, aimed at creating a set of universally recognized standards for private companies engaged in providing security services. … More
Ten years ago today, plaintiffs filed an Alien Tort Statute (“ATS”) suit against Rio Tinto Plc alleging that they were the victims of numerous violations of international law as the result of Rio Tinto’s mining operations on the island of Bougainville, Papua New Guinea. Almost ten years later, on October 26, an en banc panel of the Ninth Circuit Court of Appeals referred the proposed class action,… 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
Earlier today, the United States Supreme Court issued an order (.pdf) declining to grant a writ of certiorari in response to plaintiffs’ petition, and defendant’s conditional cross-petition, seeking review of the Second Circuit’s decision in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2nd Cir. 2009). The Second Circuit upheld a lower court decision dismissing the case, which involved allegations that Talisman Energy aided and abetted the Sudanese Government in committing human rights abuses in Southern Sudan. … 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 17, 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 Alien Tort Statute (“ATS”) for violations of customary international law. The case is one of a series of cases arising from claims that Royal Dutch Petroleum was complicit in human rights abuses against the Ogoni people in Nigeria. … More
On September 13, Microsoft Corporation announced a major change in policy whereby the company will make a new unilateral software license available to NGOs and certain journalist organizations in Russia.
Microsoft’s announcement came shortly after The New York Times published a front-page article stating that Microsoft’s local counsel had provided assistance to Russian authorities in the criminal prosecution of NGOs and independent journalists on the basis of allegations that these groups were utilizing pirated Microsoft software. Although software piracy is a serious problem across Russia, Russian authorities allegedly targeted journalists and advocacy groups for criminal prosecution. This is not surprising,… 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
Isa Saharkhiz, an Iranian journalist who has been in detention in Iran since June 2009, and his son, a resident of New Jersey, recently filed suit against Nokia Siemens Networks (“NSN”), a joint venture of Nokia Corporation and Siemens Corporation. The lawsuit, filed on August 16 in the District Court for the Eastern District of Virginia, includes claims under the Alien Tort Statute ("ATS") and the Torture Victim Protection Act and alleges that NSN aided and abetted the Iranian Government in detaining and torturing Mr.… More
In his latest report to the U.N. Human Rights Council, John Ruggie, the U.N. Special Representative on Business and Human Rights, highlighted the significant costs associated with stakeholder challenges and resistance to company operations. The report noted that one company consulted by his office may have experienced a US $6.5 billion “value erosion” over a two-year period as a result of non-technical factors, including stakeholder opposition.
The Special Representative’s report stated that stakeholder challenges to company operations,… More
On August 9, many people around the world will observe International Day of the World’s Indigenous People, which was first established by the United Nations in 1994. This year, many stakeholders are using the opportunity to urge the United States to endorse the U.N. Declaration on the Rights of Indigenous Peoples. As was noted in an earlier post, the United States government is undertaking a formal review of its position on the Declaration.… More
On July 28, the United Nations General Assembly passed a non-binding resolution recognizing access to clean water as a fundamental human right (.pdf). This U.N. resolution will likely feature in corporate dialogues with stakeholders regarding water use, water access, water production, and the impact of corporate activities on local watersheds.
Finding solutions that provide for the current and future needs of all water users is imperative. The stakes for both companies and communities are significant: a recent report by the 2030 Water Resources Group,… More
Foley Hoag recently released a ground-breaking report on the relationship between companies and indigenous peoples. Talisman Energy commissioned this report at the request of two responsible investors, Bâtirente and Regroupement pour la responsabilité sociale des entreprises (“RRSE”). The World Resources Institute (“WRI”), a think tank and thought leader on indigenous rights, was asked to provide a third party commentary on it. … 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
The Dodd-Frank Wall Street Reform and Consumer Protection Act (.pdf), signed into law by President Obama on July 21, contains broad-reaching transparency provisions requiring oil, gas, mining, and other extractive industry companies to report their payments to governments to the Securities Exchange Commission (“SEC”).
The premise of the bill is that transparency, in the long run, supports human rights, and helps limit corruption in countries where few benefits from mineral wealth typically reach the general population.… More
In late June, Foley Hoag’s CSR practice was selected to serve as the new Secretariat for the Voluntary Principles on Security and Human Rights (“The Voluntary Principles”). On June 30 and July 1, three Foley Hoag attorneys, Gare Smith, Sarah Altschuller, and Amy Lehr, helped facilitate a special Mid-Year Special Session of the Voluntary Principles hosted by the United States Government,… More