Category Archives: Human Rights Due Diligence

After the Super Bowl: Human Trafficking Occurs More Than Once a Year

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 […]

Guilt by Geolocation? Bulk SMS Intimidation of Protesters in Ukraine

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 […]

Building Capacity to Exercise Good Judgment in a World of Big Data

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 […]

Agricultural Sector Companies Face Increased Scrutiny on Human Rights-Related Risks

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 […]

Q & A on Trends in Corporate Social Responsibility

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 […]

Q & A with Gare Smith, Chair of the Corporate Social Responsibility Practice

Barrick Gold Corporation (“Barrick”) recently published an interview with Gare Smith, Chair of Foley Hoag’s CSR practice and a member of Barrick’s CSR Advisory Board. 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, Human […]

“Hardening” Soft Law and Human Rights Expectations for Financial Institutions

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 […]

What Might Liability under the ATS Look Like Post-Kiobel?: The Example of Private Contractors

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 […]

ICMM Releases Position Statement on Indigenous Peoples Establishing Commitment to FPIC

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 […]

Responding to Investor Concerns Regarding Human Rights Impacts

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 […]

Taking Stock of Business and Human Rights in the United States

This post was originally published by the Institute for Human Rights and Business.  It is reposted here with permission.   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 […]

Reflections on the Evolving Business and Human Rights Agenda

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. Working Group on Business and Human Rights. […]

Telecommunications Companies Release Guiding Principles on Freedom of Expression and Privacy

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. Current participants in the Industry Dialogue include: Alcatel-Lucent, France Telecom-Orange, Millicom, Nokia Siemens Networks, Telefonica, […]

Due Diligence on Human Rights? Consider Consulting Your FPCA Counsel.

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 […]

Looking Ahead: Five Developments We’ll be Watching in 2013

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 […]

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 […]

John Ruggie Gives Opening Address at U.N. Forum on Business and Human Rights

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 […]

Social Risk Assessment: China Raises Its Game

Until recently, it was not uncommon for Chinese companies to be invoked as bogeymen in certain circles. The narrative went something like this: Western companies are more accountable than Chinese companies – via tort suits, civil society pressure, government regulation, and non-judicial accountability mechanisms such as the OECD Guidelines, to name a few.  Although Western […]

Human Rights Due Diligence – An Emerging Requirement in State and Federal Legislation

Two years ago, in October 2010, I published a post, Human Rights Due Diligence and the Corporate Lawyer, that addressed the need for corporate counsel to assess stakeholder expectations that companies should be accountable for identifying, and taking action to mitigate, the adverse human rights impacts of their operations. At the time, the expectation that […]

SEC Issues Long-Delayed Rule on Conflict Minerals

Earlier today, at an open hearing, the Securities and Exchange Commission (‘SEC”) voted in favor of a final rule on conflict minerals. A copy of the final rule is available here (.pdf). As discussed in previous posts, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act directed the SEC to issue a […]

Newly Released Draft Equator Principles Reflect Greater Focus on Human Rights

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 […]

Leverage and the Management of Adverse Human Rights Impacts

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 […]

Human Rights Due Diligence and Operations in Burma (Myanmar)

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 […]

Integration of ESG Factors into Private Equity Investment and Management Processes

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 […]

Fools Rush In: Social and Environmental Due Diligence in Burma (Myanmar)

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 […]

The Conflict Minerals Rule – Phantom or Final?

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 […]

Investors Urge Congress to Prioritize Proposed Transparency in Supply Chains Legislation

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 […]

The SEC’s Delayed Rule-Making and Implications for Corporate Conflict Minerals Reports

This post, authored by Sarah A. Altschuller and Gwendolyn W. Jaramillo, was originally published, in excerpted form, by The Elm Consulting Group. 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 […]

Business and Human Rights: A Convergence of Expectations

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 […]

Investors Release New Guide to the California Transparency in Supply Chains Act

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 […]

Business Ethics Magazine: An Interview with John Ruggie

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 […]

Respecting the Human Right to Water

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 […]

International Finance Corporation Releases Revised Sustainability Framework

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 […]

U.N. Human Rights Council Endorses Guiding Principles on Business and Human Rights

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.  The Principles are intended to provide guidance on the […]

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 […]

Foley Hoag Commentary on Guiding Principles on Business and Human Rights

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 […]

Conflict Minerals: SEC Delays Federal Rules and California Senate Passes New Bill

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 […]

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. The Guiding Principles are intended to provide […]

Podcast on Conflict Minerals and the Proposed SEC Disclosure Rule

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 […]

Looking Ahead: Indigenous Peoples and Free, Prior, and Informed Consent

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 […]

CSR and the Law: Five Big Developments in 2010

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.  […]

European Parliament Adopts Resolution on Corporate Social Responsibility

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 […]

SEC Issues Proposed Rules on Conflict Minerals and Disclosure of Payments to Governments

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. […]

U.N. Special Representative for Business and Human Rights Releases Draft “Guiding Principles”

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 […]

Human Rights Due Diligence and the Corporate Lawyer

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 […]

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 […]

Bowoto v. Chevron: Appellate Court Upholds Jury Verdict

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 […]

Conflict Minerals and the New Financial Reform Legislation

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 […]