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
Category Archives: Legislation
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. …
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It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.
This week’s post includes: new insights into the proposed Australia Modern Slavery Act; a new Withhold Release Order prohibiting the import of products produced with Turkmenistan cotton; and the launch of the Investor Alliance for Human Rights.
In his testimony before Congress last week, Facebook CEO Mark Zuckerberg observed that, on issues ranging from fake news to hate speech, the company “didn’t take a broad enough view of our responsibility, and that was a big mistake.”
Looking ahead, it remains to be seen what a “broad enough view” means for companies that both host online content. When the content that you and I see on various websites is determined by a complex ecosystem of content writers,… More
This week’s post includes: two new reports looking at corporate compliance with the U.K. Modern Slavery Act and best practices with respect to efforts to address the risks of forced labor; and the release of a “Frequently Asked Questions” document by the U.S. Department of Homeland Security regarding the presumption that goods made by North Korean workers are made with forced labor.… More
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
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
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 revised Toolkit on National Action Plans on business and human rights; a new automobile industry initiative to address the social and environmental risks associated with raw materials sourcing; and a report from the NYU Stern Center for Business and Human Rights on the efforts of internet platform companies to address content that incites terrorism or that represents politically motivated disinformation.… More
This week’s post includes: a look ahead at the upcoming UN Forum on Business and Human Rights; a decision in the Nevsun case by the British Columbia Court of Appeal; and the first decision by a NCP to hear a complaint focused on the impacts of climate change.… More
In Washington, D.C., the news this week focused on President Trump’s decision to designate (or redesignate) North Korea as a state sponsor of terrorism. For companies importing goods into the United States, developments this past August are likely to have more immediate impact.
On August 2, the United States enacted amendments to the North Korea Sanctions and Policy Enhancement Act of 2016. The amendments create a presumption that goods made by North Korean citizens or nationals,… More
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
On February 7, the Dutch Parliament adopted a bill that would require companies to conduct due diligence as to whether child labor is occurring in their own operations or in their supply chains.
The Dutch Senate is expected to review the bill in the coming months. If the bill is approved, further detail on the scope and applicability of the law’s requirements will likely be set forth through an administrative order.… More
As previously noted, on February 21, 2017, the French National Assembly adopted a law establishing a “duty of vigilance” for large multinational firms carrying out all or part of their activity in France.
In a subsequent development, on March 23, the French Constitutional Council released a decision upholding the majority of the legislation, but striking down the proposed civil penalties for companies that fail to develop a diligence plan.… More
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,…
This week’s post includes: a jury verdict in the Quinteros v. DynCorp litigation; the latest GAO report on corporate conflict mineral disclosures; and a statement from the Scottish Parliament that investments agreements should only be signed after appropriate human rights due diligence.
- On March 29,…
It is clear that Michael Piwowar, Acting Chairman of the Securities Exchange Commission (“SEC”) is not a fan of the conflict minerals rule. Earlier this month, the Acting Chairman and the Division of Corporation Finance released two statements regarding rule, both of which clearly state that the regulation will not be an enforcement priority.
By way of background, the statements were published after long-running litigation regarding the conflict minerals rule finally reached a formal conclusion.… More
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
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: a federal court decision holding that U.S.-based companies may be obligated to turn over customer data stored outside the United States; an amicus brief opposing President Trump’s Executive Order establishing an entry ban on individual from seven Muslim-majority countries; and new guidance from the OECD with regard to due diligence in apparel and footwear supply chains.… 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,…
Litigation Update: Plaintiffs Survive Motion to Dismiss in Case Involving Claims of Forced Labor in Corporate Supply Chains
Today, January 11, is National Human Trafficking Awareness Day, and therefore a good time to revisit some recent litigation developments. On November 9, a date on which most of the American media was focused on the Presidential election results, there were significant developments in the Keo Ratha v. Phattana Seafood Co. litigation, a case involving allegations of human trafficking in corporate supply chains. The District Court for the Central District of California issued an order that will allow the case to go forward,… 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
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
This week’s post includes: the first annual report from the U.K. Anti-Slavery Commissioner; a new benchmarking report from Know the Chain focused on food and beverage companies; and the results of a survey on corporate human rights due diligence efforts.
- On October 12,…
This week’s post includes: an important decision by the Supreme Court of British Columbia with regard to a case raising forced labor concerns; the release of the U.S. Department of Labor’s most recent List of Goods Produced by Child Labor and Forced Labor;… More
This week’s post includes: litigation developments in cases that address the “Social Cost of Carbon,” the liability of interactive media service providers, and human trafficking in corporate supply chains; and a new global ranking of countries according to the relative risk of human trafficking and forced labor.… More
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.
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
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: developments on mandatory disclosure requirements in both the United States and Europe; a new report from Professor John Ruggie addressing the human rights responsibilities of FIFA; and an update from Oxfam on its “Behind the Brands” campaign.
- On April 14,…
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
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
FTC Announces Children’s Online Privacy Protection Settlements Based on Collection of Persistent Identifiers
The Children’s Online Privacy Protection Rule (“COPPA Rule”) requires website and online service operators to give notice to parents and obtain verifiable parental consent before collecting children’s “personal information” online. 16 CFR §§ 312.4, 312.5. The definition of “personal information” encompasses some obvious pieces of data – name and address,… 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
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
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.
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
Companies face a range of new requirements and expectations calling for enhanced transparency regarding human rights-related risks in connection with their operations. Responsible compliance with both mandatory requirements and voluntary standards requires a coordinated internal approach that seeks to address the concerns of key stakeholders while mitigating potential legal risks.
Examples of new transparency requirements include:
This week’s post includes notice of several new lawsuits regarding human rights concerns in corporate supply chains as well as coverage of the European Court of Justice’s recent decision to strike down the 15-year old “Safe Harbor” agreement allowing companies to self-certify that their data transfers between the United States and Europe are in compliance with E.U.… More
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
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
There continue to be regular developments in the business and human rights field that warrant attention from both companies and their stakeholders. New legislation and regulation, shifting policy positions, and developments in ongoing litigation…there is always a lot to discuss.
To conclude this week, we have put together a rundown of five recent developments that we’ve been watching closely:
- On September 2,…
D.C. Circuit Court Re-Affirms Decision that Portions of SEC’s Conflict Minerals Rule are Unconstitutional
On August 18, 2015, the United States Court of Appeals for the D.C. Circuit, in likely the first majority opinion citing Charles Dickens (A Tale of Two Cities) and George Orwell (Nineteen Eighty-Four),… More
One of the most fundamental concepts under federal labor law is identifying who is the employer. Under the National Labor Relations Act, “the employer” has a duty to bargain with the union representing its employees, is bound by the collective bargaining agreement,… More
Companies that do business in the United Kingdom should assess their exposure to the U.K. Modern Slavery Act, which goes into effect this October. The transparency provisions of the Act are applicable to companies that do any part of their business in the United Kingdom if they have annual gross worldwide revenues of £36 million (approximately $56 million) or more each year.
The transparency provisions are applicable to all commercial organizations, … More
Earlier this 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
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
The State of California has recently stepped up enforcement of the California Transparency in Supply Chains Act, which went into effect on January 1, 2012. The California Department of Justice has also issued new guidance on compliance with the legislation.
In April 2015, the Department of Justice sent out letters to certain retailers and manufacturers regarding compliance with the transparency legislation. The letters requested the companies to provide,… More
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
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
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
It used to be that the links between corporate social responsibility (“CSR”) and the law were not so clear. Practitioners in the field were few and far between and often faced considerable challenges in defining their roles and expertise to both internal and external stakeholders.
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
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
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
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
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
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
On July 23, the District Court for the District of Columbia rejected a challenge to the conflict minerals rule adopted by the Securities and Exchange Commission in August 2012 and published in September 2012. Plaintiffs seeking a review of the rule included the National Association of Manufacturers, the Chamber of Commerce, and the Business Roundtable.
Plaintiffs had challenged the rule under the Administrative Procedure Act (“APA”),… 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
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
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 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
Burma’s Hluttaw, or Parliament, passed a new Foreign Direct Investment Law on September 7. Few details on the legislation are yet available, and we have seen only partial translations, although the final version reportedly is preferable to its draft predecessor. President Thein Sein has not yet signed it into law.
From the information available thus far, it is clear, however, that the law is a significant improvement on the version that the lower Hluttaw passed earlier this summer,… 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
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
A coalition of 80 institutional investors sent a letter to Congress last week in support of the Business Transparency on Trafficking and Slavery Act (HR 2759). As discussed previously, the proposed legislation would require companies to disclose efforts to identify and address the risks of human trafficking, forced labor, slavery, and the worst forms of child labor in their supply chains.
The U.S. Securities and Exchange Commission (“SEC”) failed to issue a final rule on conflict minerals regulations before the end of 2011, and companies still await clear guidance on the scope of Section 1502 and the nature of the relevant reporting requirements.… More
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
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.
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
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
Conflict Minerals and Payments to Governments: SEC Extends Time Period for Comments on Proposed Rules
The Securities and Exchange Commission ("SEC") has extended the time period for comments on proposed rules issued pursuant to Section 1502 (conflict minerals) and Section 1504 (disclosure of payments to governments) of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rules are now open for comment until March 2, 2011.
The extension applies to rules proposed pursuant to:
In previous posts, we have discussed the requirements and implications of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (.pdf), which requires companies that utilize certain conflict minerals to conduct and disclose due diligence on their supply chains in order to identify whether the sourcing of these minerals is supporting the conflict in the Democratic Republic of Congo. … More
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
Raise the topic of due diligence in a room of corporate lawyers and you might expect the conversation to turn to a discussion of mergers and acquisitions or environmental site assessments. Increasingly, however, corporate counsel are being asked to help clients develop due diligence strategies and systems to identify the human rights concerns that may be associated with their existing, or potential, operations.
Corporate stakeholders, including both legislators and shareholders,… More
The California Transparency in Supply Chains Act: New Legislation Requires Disclosures on Corporate Efforts to Eliminate Slavery and Human Trafficking
On September 30, California Governor Arnold Schwarzenegger signed The California Transparency in Supply Chains Act of 2010 into law. The legislation will require companies to disclose their efforts to ensure that their supply chains are free from slavery and human trafficking.
The legislation will go into effect on January 1, 2012 and applies to retail sellers and manufacturers doing business in California that have annual gross receipts exceeding one hundred million dollars.… More
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