UN Forum on Business and Human Rights – Day Two Recap

By Michael Quayle and Emily Holland

Freshfields’ coverage of the 2017 UN Forum on Business and Human Rights – offering global corporations, governments, NGOs, human rights activists and other stakeholders an annual platform to explore and discuss initiatives concerning the role of business with respect to human rights – continues with the following summary of notable perspectives provided by participants across the spectrum.

Territorial jurisdiction and compliance standards questions in human rights litigation Courts are increasingly being asked to consider what the international law boundaries to human rights litigation are, and whether voluntary undertakings aligned to the UN Guiding Principles can give rise to a duty of care. These questions, and the available judicial interpretation, are influencing how some parent companies seek to manage their human rights risks.

Corporate criminal liability for human rights abuses While formal mechanisms (e.g., treaties and mutual legal assistance) and informal networks (e.g., exchange of information and secondment of officers) are key in prosecuting cross-border, criminal human rights matters, prosecution ultimately turns on political will. This is attributed to the many challenges involved in investigating claims and holding corporations criminally liable for human rights violations. Where prosecutions do take place, proving criminal liability can encounter time and evidentiary challenges that can overwhelm over-worked and under-resourced authorities.

Legal profession a force multiplier for good practice Lawyers skilled in enterprise risk management and deal structuring, who additionally understand the human rights legal landscape, market trends, and range of potential actions (including remedies) potentially available to companies, can be valuable partners in helping corporates understand the issues and formulate policy and strategy.

Corporate respect for human rights in practice Many speakers – including those from the business community – noted that embedding respect for human rights, against an ever more widespread expectancy that companies “know and show” that they do so, is no longer a “nice-to-have” but increasingly a business priority. Understanding and addressing a company’s serious human rights risks, and instituting a comprehensive and systematic human rights program, can be the most effective way to manage commercial and legal risks.

Human rights and the divestment dilemma While exiting a problematic operational context or business relationship may communicate a company’s stance on human rights issues, or prevent serious human rights harm, guidance is increasingly giving the message that the full range of options need to be considered in light of the potential, negative effects on vulnerable populations. Resolving tension between the “business case” and the “people case” can be challenging for business and may ultimately turn on what leverage a company has when faced with a serious human rights challenge.

Judicial and non-judicial remedies Judicial and non-judicial mechanisms can furnish uniquely different outcomes for protecting, respecting, and remedying human rights concerns. Litigation can provide a clearer route to remedy but may not ultimately satisfy the human rights fulfillment hoped for. Non-judicial processes can entail years of discussion with the route to actual remedy possibly obscured. Where a non-judicial process is adopted, there may be some value in imitating the positive aspects of judicial mechanisms. Some companies are starting to innovate and/or consider preventative remedies that form part of the continuum of a company’s broader stakeholder engagement approach.

Grievance mechanisms must be relevant, known and grasped Grievance mechanisms must be carefully conceived and appropriate to local circumstances and the specific issues. Individuals whose rights have been negatively affected must be identified along with the particular rights that have been infringed. Processes must be independent, facilitators who are appointed must be trusted, and transparency is vital. Affected rights holders must be aware of, understand, and use the mechanisms established in order for them to be effective. Monitoring and collecting data on the use and effectiveness of grievance mechanisms can help companies to anticipate and get ahead of issues.

We will be blogging from the Forum throughout the week. As a reminder for individuals attending the conference, Freshfields will be presenting on the role of lawyers in human rights litigation and corporate human rights impacts today at 8:15 a.m., and on our blog at 10:15 a.m.