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
Category Archives: Corporate Governance
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 June 20, at the 2018 Global Forum on Responsible Business Conduct, the Organization for Economic Co-operation and Development (“OECD”) formally launched its new Due Diligence Guidance for Responsible Business Conduct.
Intent of the Due Diligence Guidance
The new Due Diligence Guidance is expressly intended to support all companies, both large and small, seeking to implement the due diligence expectations set forth in the OECD Guidelines for Multinational Enterprises.… More
Why You and Your Board Need to Adapt to New Forms of Consumer Advocacy
Public companies are facing heightened expectations with respect to the social and environmental impacts of their business operations. Recent developments such as the emergence of the #MeToo movement and increasing public concern regarding issues ranging from climate change to gun control have highlighted the risks that exist in today’s social media-driven environment. When allegations of corporate missteps can instantly capture public attention,… More
This post, written by Jonathan Keselenko and Erin Olesen, was originally published as a client alert by the firm’s Labor & Employment practice. We have previously posted about the NLRB’s Browning-Ferris decision here.
On February 26, 2018, the National Labor Relations Board vacated its recent ruling in the Hy-Brand Industrial Contractors,… 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: 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
The Intersection of Trademarks, Advertising and Corporate Social Responsibility
Protecting the value of your corporate brand is a critical mission. As companies are increasingly asked to make disclosures regarding their efforts to address social and environmental risks, these disclosures create both opportunities and challenges for those entrusted with protecting a company’s intangible assets.
In this webinar, we explore the interrelationship between trademarks, false advertising and emerging compliance requirements in the field of corporate social responsibility (CSR).… 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: 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
New FCPA Corporate Enforcement Policy Incentivizes Corporate Voluntary Self-Disclosure and Cooperation
Under the new FCPA Corporate Enforcement Policy recently released by the Department of Justice (“DOJ”), when a company has voluntarily self-disclosed misconduct, fully cooperated in the government’s ensuing investigation, and appropriately remediated the situation and made restitution or otherwise disgorged all illicit profits, there is a now an express presumption – absent certain identified aggravating factors – that DOJ will affirmatively decline to prosecute the company.
This new Policy is an evolutionary step forward in enforcement – not a radical change.… More
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”).…
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,…
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
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: 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,…
Congress passed a joint resolution this week expressing its disapproval of the revenue transparency rule issued last June by the Securities and Exchange Commission. The rule, issued pursuant to Section 1504 of the Dodd-Frank Act, required extractive sector companies (oil, gas, and mining) to disclose the payments that they make to governments for the commercial development of oil, gas, or minerals.
President Trump is expected to sign the joint resolution,… More
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
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
Five on Friday – Five Recent Developments that We’ve Been Watching Closely (Special Post-Election Edition)
It’s Friday and time for an overview of developments in the field of business and human rights that we’ve been monitoring. This week’s post is focused entirely on responses to the recent election of Donald Trump as the next President of the United States.
This week’s post includes: the potential for changes to legislation and regulation related to the human rights impacts of business activity; private sector support for continued U.S.… More
In order to integrate concrete CSR commitments into corporate compliance programs, a company must establish how each commitment translates into performance requirements for the relevant business units and departments. The nature of these requirements may differ considerably depending on a company’s industry and operating context,… More
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,…
As issuers prepare for the pay ratio disclosures that will be required with respect to fiscal years beginning on or after January 1, 2017, the SEC’s Division of Corporation Finance issued new Compliance & Disclosure Interpretations (“C&DIs”) on October 18,… More
CSR places concrete performance goals in an aspirational context: it can infuse corporate compliance requirements with a level of intrinsic motivation whereby company employees share a collective sense that the company is trying to improve its performance and act in a responsible manner.… More
Integrating CSR into the framework of a company’s overall compliance program may help engage executive-level managers and the board of directors as allies in ensuring that CSR commitments are supported through the allocation of sufficient resources and management attention.… More
In weighing the costs and benefits of considering the integration of a company’s CSR commitments into existing compliance programs, it is important to recognize that this integration may strengthen the company’s capacity in both areas.… More
For some companies, integrating CSR commitments into the company’s overall compliance program may represent a significant shift. Corporate managers may view CSR as a set of programmatic commitments that are removed from the core business strategies of the company and there may be internal reluctance to integrate the relevant commitments into the company’s compliance systems.… More
CSR is dynamic: it is responsive to standards, expectations, and contexts that are ever-shifting. To be effective, CSR requires a comprehensive approach to both standard-setting and engagement with internal and external stakeholders.… More
Over the last 20 years, many companies have invested considerable time and resources in developing comprehensive compliance standards and procedures. At a minimum, compliance programs are intended to prevent and detect violations of the law that may lead to civil or criminal liability.… 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
On June 27, the Securities and Exchange Commission (“SEC”) issued a new rule requiring extractive sector companies (oil, gas, and mining) to disclose the payments that they make to governments for the commercial development of oil, gas, or minerals.
The rule was enacted pursuant to Section 1504 of the Dodd-Frank Act, which directed the SEC to issue a rule requiring extractive sector companies to disclose payments to governments,… More
This week’s post includes: a new guide for business lawyers from the International Bar Association that seeks to promote implementation of the U.N. Guiding Principles on Business and Human Rights; the public release of Know the Chain’s first report benchmarking technology companies on efforts to address forced labor in their supply chains;… More
This week’s post includes: new guidance for boards of directors on business and human rights; the launch of the Responsible Sourcing Tool; the release of the 2016 Global Slavery Index; and a new code of conduct in Europe by which American Internet companies have committed to taking actions to combat illegal hate speech.… More
This week’s post includes: 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
Corporate social responsibility (“CSR”) is an important component of overall enterprise risk management for many companies. That said, too often, corporate implementation of CSR commitments is reliant upon diverse functions and systems that may not be all that well coordinated with one another and may utilize a range of different oversight and accountability mechanisms.
Too often, assurance of corporate adherence to voluntary standards may not be well documented,… 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
The Principles for Responsible Investment (“PRI”) recently published a report, Addressing ESG Factors Under ERISA, that sets forth two legal perspectives on the ability of fiduciaries to consider environmental, social, and governance (“ESG”) factors in their investment decision-making.
The report builds upon an interpretative bulletin released by the U.S. Department of Labor in October 2015. The bulletin, previously discussed here,… 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.…
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
On December 11, 2015, the Securities and Exchange Commission (“SEC”) issued a new proposed rule to implement a key provision of the Dodd-Frank Act that targets corruption and increases transparency requirements for payments made to foreign governments by the oil, gas, and mining industries.
New guidance from the U.S. Department of Labor (“DOL”) clarifies the role of environmental, social and governance issues (referred to as “ESG factors”) in investment decisions by ERISA fiduciaries. ERISA Interpretive Bulletin 2015-01 recognizes that ESG factors,… More
On November 4th, the World Federation of Exchanges (WFE) released a set of 34 sustainability measures that include environmental, social and governance indicators. WFE recommends that its member exchanges implement these indicators into the disclosure requirements for listed companies.
The WFE is an industry trade organization made up of 99 organizational members, including 64 regulated exchanges (such as NASDAQ and NYSE) across the globe.… 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
The European Court of Justice has issued a decision (ECJ 6 October 2015 Case C-362/14, Maximillian Schrems v. Data Protection Commissioner) that invalidates the so-called US-EU “Safe Harbor” system.… More
This post, written by Martha Coakley and John Hurst, originally ran as an op-ed in the September 25, 2015 edition of The Boston Globe.
Hardly a week goes by without a news report of a new cyberattack. As any consumer affected by fraud knows, the harm is real. The impact on businesses, government,… 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,…
On August 5, the SEC, by a 3 to 2 vote, adopted the controversial “pay ratio rule,” which requires public companies to disclose the ratio of the annual total compensation of the chief executive officer (CEO) to the median of the annual total compensation of the company’s employees.… More
In late July, Representative Carolyn Maloney (D-NY) introduced H.R. 3226, the Business Supply Chain Transparency on Trafficking and Slavery Act of 2015. The bill, if passed, would require companies to file annual reports with the Securities and Exchange Commission (“SEC”) disclosing their efforts to identify and address specific human rights risks in their supply chains. Senator Richard Blumenthal (D-CT) is expected to introduce a companion bill in the Senate.… More
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
Nuclear Deal with Iran Holds Out Possibility of Phased Relaxation of Sanctions
On July 14, 2015, the United States and five other countries (collectively known as the P5+1) reached a Joint Comprehensive Plan of Action (JCPOA) with Iran under which Iran will limit its nuclear activities in exchange for a gradual lifting of international economic sanctions.… More
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
In March, President Obama issued Executive Order 13693, “Planning for Federal Sustainability in the Next Decade.” It replaces and updates a number of Executive Orders and Memorandums, most notably replacing Executive Order 3514, “Federal Leadership In Environmental, Energy, and Economic Performance,” issued by President Obama in 2009.
The new Order provides federal agencies with a series of targets and deadlines through 2025,… More
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
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
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.
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
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
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
Corporate social responsibility (“CSR”) may have its roots in voluntary efforts by businesses to address their broader impacts on society, but the trend towards CSR becoming mandatory advanced significantly this week under a deal that will soon require all large European companies to begin issuing annual social and environmental performance reports.
On February 26, the European Council and the European Commission reached an agreement that all but guarantees that the forthcoming European directive on corporate social responsibility will require all publicly traded companies with more than 500 employees to report their performance on a number of non-financial metrics every year.… 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
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
In November, Gwen Jaramillo and I published a piece in Practical Law that looked at trends relevant to CSR. The piece covered a range of topics, including new legislative and regulatory requirements, the role of the board of directors, and key concerns for corporate general counsel.
In noting the key role of the board in overseeing a company’s approach to CSR,… More
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
CSR serves to strengthen a company’s capacity to listen to, and communicate with, a range of stakeholders, including employees, customers, investors, legislators, and the communities impacted by corporate activities.
These stakeholders, in their dialogues with companies, often push companies to go “beyond compliance” with existing legal and regulatory standards, especially with regard to efforts to manage the social and environmental impacts of their operations. Even as these requests seek voluntary commitments,… More
On July 17, Delaware Governor Jack Markell signed into law legislation enabling the formation of public benefit corporations in Delaware. In doing so, Delaware became the 19th state to enact this type of legislation.… More
Everyone is in favor of transparency and anti-corruption – at least, everyone except the occasional despot or dictator. Yet substantial controversy now swirls around the disclosure of the vast sums that governments receive from mining and oil projects.
The question is not whether the streams of payments paid to governments by oil, gas, and mining companies should be disclosed, but how.… More
On July 2, the U.S. District Court for the District of Columbia vacated the rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and remanded it to the Securities and Exchange Commission (“SEC”) for further consideration. Section 1504 requires Securities and Exchange Commission issuers involved in the extraction of oil, gas, and minerals to report on their payments to foreign governments and the U.S.… More
Recent revelations regarding surveillance activities by the U.S. Government have raised many questions regarding the balance between privacy and security. There have already been, and there will continue to be, Congressional hearings and other public policy forums regarding the appropriate scope of government surveillance efforts and the role of private companies in responding to law enforcement requests.
Beyond questions regarding the scope of government under existing legislation,… 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[.]
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
Shareholders increasingly expect boards of directors to exercise greater oversight over the social and environmental impacts of corporate activities. The 2013 Proxy Preview recently published by As You Sow, the Sustainable Investments Institute, and Proxy Impact, noted that the shareholders have recently filed approximately two dozen proposals requesting structural governance reforms in terms of how companies manage and oversee social and environmental issues,… More
A number of significant briefs were filed recently with the U.S. Court of Appeals for the D.C. Circuit in support of Section 1504 of the Dodd-Frank Act, which requires oil, gas, and mining issuers to report on their payments to governments.
On January 16, Oxfam filed an intervenor brief in the case that the American Petroleum Institute (“API”) and others have brought against the Securities and Exchange Commission (“SEC”) to block its final rule. … More
As memories of New Year’s Eve fade, and another Inauguration Day winds down in Washington, D.C., it’s time to look ahead and identify key events and emerging trends that we think will help shape the business and human rights agenda in 2013.
Here are five developments that we’ll be watching closely:
Further integration of human rights considerations into business management systems. Eighteen months after the release of the U.N.… More
On January 2, the Securities and Exchange Commission (“SEC”) filed its brief (.pdf) in the lawsuit brought by the U.S. Chamber of Commerce, the American Petroleum Institute (“API”), the National Foreign Trade Council, and the International Petroleum Association of America that seeks to alter or overturn the SEC’s final extractive industry transparency rule.
The petitioners’ lawsuit made several key arguments,… More
On December 1, a new benefit corporation statute went into effect in Massachusetts, making the state one of twelve that have enacted legislation allowing for the formation of this new form of corporate entity.
Benefit corporations are similar to traditional for-profit corporations but they differ in one important respect. While directors and officers of traditional for-profit corporations must focus primarily on maximizing financial returns to investors, … More
On November 8, the Securities and Exchange Commission (“SEC”) rejected a request by industry groups to stay new regulations requiring disclosure of payments to governments relating to oil, gas, and mining projects. The American Petroleum Institute, U.S. Chamber of Commerce, and other groups in the extractive sector had urged the SEC to stay the requirements while the groups’ litigation against the rules proceeds.… More
Earlier this month, on October 10, the U.S. Chamber of Commerce and three other industry groups filed suit against the Securities and Exchange Commission in federal court in Washington, D.C. The lawsuit seeks to overturn the recently-promulgated SEC rule implementing Section 1504 of the Dodd-Frank Act, which requires disclosure of payments to governments relating to oil,… 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
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
Does your board exercise proper oversight over cybersecurity risks? Directors and officers have fiduciary duties to protect the assets of their companies. This obligation covers digital assets, including corporate information, applications, and networks. The scope of the obligation is defined, in part, by laws and regulations that impose specific privacy and security obligations on companies.
The threats to digital assets are real, and companies are increasingly grappling with how best to manage network infiltrations,… 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
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
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.
U.S. Supreme Court Holds that the TVPA Does Not Apply to Organizations, but Corporate Officers Are Still Fair Game
Renewing speculation about the future of corporate liability for human rights abuses, last week the Supreme Court held unanimously in Mohamad v. Palestinian Authority that the Torture Victims Protection Act (“TVPA") cannot be used to sue organizations, and by extension, corporations. The Court, however, did not limit the type of individuals subject to suit under the Act, thus a corporation’s officers or employees may still find themselves open to suit under the TVPA.… 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
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 fascinating article in last weekend’s New York Times Magazine discusses the powerful statistical techniques that some companies are using to analyze sales and other data in order to gain insights into their customers’ behaviors and needs. The article raises a number of difficult consent and privacy issues.
The feature-length piece by Charles Duhigg uses the “predictive analytics” program developed by Target, America’s third-biggest retailer, as a case study to illustrate how companies are combining data from customer interactions with other information obtained from commercial databases to draw strikingly detailed portraits of individual customers.… More
Gwen Jaramillo and I recently authored an article for BNA Corporate Governance Report on the role of the board of directors in overseeing a company’s CSR initiatives and commitments. A copy of the article ("Board Oversight and Corporate Social Responsibility: Obligations and Considerations") is available here (.pdf).
At the conclusion of the article, we identify a number of questions that board members may wish to consider when thinking about their role in overseeing a company’s approach to,… More
The U.S. Securities and Exchange Commission (“SEC”) failed to issue a final rule on conflict minerals regulations before the end of 2011, and companies still await clear guidance on the scope of Section 1502 and the nature of the relevant reporting requirements.… More
Former UN Special Representative on Business and Human Rights John Ruggie, now a senior advisor to our CSR practice, recently authored an article in Corporate Secretary magazine in which he observed that there has been a "convergence of expectations" with regard to business responsibilities in the area of human rights.
These expectations are set forth in the UN Guiding Principles on Business and Human Rights,… More
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
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
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
On September 20, the Obama Administration announced its intent to join the Extractive Industries Transparency Initiative ("EITI"). Government members of the EITI are required to disclose the payments that oil, gas, and mining companies make to them, and companies operating in those countries publish their payments to the governments. The two can then be reconciled for greater transparency and certainty regarding payments to governments.
A working group in each EITI member country –… More
In the Carbon Disclosure Project’s 2011 analysis of the largest 500 companies, the Global 500, there is a very interesting statistical trend — the companies who were the most strategically focused on accelerating low-carbon growth had returns from January 2005 to May 2011 that doubled the Global 500 as a whole, with returns totaling over 85%, compared to the 42.7% returns for the index. Even more amazingly, the 13 companies that had been recognized by CDP for this strong focus for the last 3 years outperformed the Global 500 by over 60 percentage points over the same period. … More
The topic for today’s #CSRChat on Twitter (hosted bi-weekly by Fenton) was “CSR and Corporate Philanthropy: Do the Two Align?” The chat fostered a lively debate and brought together a range of different viewpoints (all expressed in 140 characters!) on corporate social responsibility and philanthropic initiatives.
Reading through the discusssion, I reflected on the ways in which my role as an attorney has shaped my perspective on the distinctions between CSR and corporate philanthropy.… 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.
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
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
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
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
Transparency International and Revenue Watch have released a report, Promoting Revenue Transparency: 2011 Report on Oil and Gas Companies, that is indicative of the pressure being placed on extractive sector companies to report on their payments to host governments and the value-sharing stipulations in their contracts.
The report ranks 44 oil and gas companies – both publicly listed and national oil companies –… More
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
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
The U.N. Special Representative for Business and Human Rights, John Ruggie, has released the long-awaited draft of his final report, the Guiding Principles for the Implementation of the United Nations "Protect, Respect and Remedy’" Framework (.pdf). The Guiding Principles are the culmination of the Special Representative’s mandate, which began in 2005, and which will conclude when the final report is delivered to the U.N.… More
Raise the topic of due diligence in a room of corporate lawyers and you might expect the conversation to turn to a discussion of mergers and acquisitions or environmental site assessments. Increasingly, however, corporate counsel are being asked to help clients develop due diligence strategies and systems to identify the human rights concerns that may be associated with their existing, or potential, operations.
Corporate stakeholders, including both legislators and shareholders,… More