LAW AND SOCIAL ENTREPRENEURSHIP

HUMAN RIGHTS GUIDANCE FOR CORPORATE LAWYERS

Originally posted  in the Triple Pundit 

In the years since the United Nations Guiding Principles on Business & Human Rights (Guiding Principles) were unanimously endorsed by the U.N. Human Rights Council in 2011, groups like Shift and the International Corporate Accountability Roundtable (ICAR) have worked hard to educate businesses on how the Guiding Principles impact their operations and influence their decision-making.  Much of this guidance has been sector specific, and rightly so.  Human rights are not impacted uniformly or in the same ways across industries, and companies in the extractive, apparel or ICT sectors, for instance,  arguably operate in “riskier” environments than businesses in other industries.

Yet, despite playing major roles in drafting, advising and acting on the Guiding Principles, lawyers had thus far been offered little help understanding the impact of the Guiding Principles on their work.   Last week, the International Bar Association (IBA) did its part to rectify that, issuing guidance — the first of its kind — to bar associations, private lawyers and law firms about how to integrate the Guiding Principles into their work.   This is a welcome first step in what should be a broad discussion among lawyers and bar associations regarding the role of lawyers in the implementation of the Guiding Principles.

Why the IBA guidance is necessary

Not only are many law firms big businesses in their own right — and the legal industry, by some measures, represents a $400 billion market in the U.S. alone — but lawyers make their livings by advising companies on compliance and risk avoidance.  Thus, as the IBA points out in the introduction to its report, “There are few areas of legal practice for which the Guiding Principles – and the international human right standards they reference – are not potentially relevant.”  Companies also increasingly expect their legal counsel to be able to provide advice on human rights risks.

What role individual can lawyers play

General advice.  The first aspect of the IBA’s substantive guidance addresses how lawyers, in their roles as outside or inside counsel, can help businesses respect human rights — the second pillar of the Guiding Principles.  The IBA notes that often the lawyer’s role could simply be to advise a business on how to comply with existing national laws that protect human rights.  Such advice would first require a lawyer to analyze the national legal framework and determine that national laws meet the minimum standards underpinning the Guiding Principles.

Where there is a gap between what national law and the Guiding Principles require, the lawyer should be prepared to explain the gap and advise on what the business must do to satisfy the higher standards.  For instance, as the IBA explains, acquiring legal title to land may be, in and of itself, insufficient to discharge a company’s duty to respect human rights. This would be true where that land was ‘grabbed’ by a government without consulting with or compensating the affected households or communities — common practice in countries across Africa and Asia.  In those cases, not only is the company linked to a serious human rights violation, but the “defective government acquisition process may sow the seeds of conflict between the community and the company, which could threaten the project’s long-term viability.”

Specific company actions.  Beyond broadly advising business clients on their human rights responsibilities under national law, lawyers are increasingly called upon to provide human rights-related advice as it relates to certain company actions.  One such action is public reporting or disclosure.  In one of the more encouraging trends in the business and human rights movement, non-financial reporting requirements have greatly evolved and increasingly require disclosure of a company’s human rights “policies, processes and performance.”

For example, the European Union is on the verge of passing a directive that would require broad reporting on the environmental, social (including human rights) and governance impacts of their work.  Denmark has a non-financial reporting law, as does the U.K., and the U.S. already requires certain disclosures related to conflict minerals and businesses operating in Burma.

Human rights litigation and tactics.  Though the battle against corporate impunity for human rights abuses may still be an uphill one, the rise in human rights-related claims filed against companies around the world should be of particular concern to corporate lawyers. In the United States, there is the rapidly evolving — if disheartening — Alien Tort Statute jurisprudence.  Internationally, the use of National Contact Points under the Organization for Economic Cooperation and Development’s (OECD) Guidelines for Multinational Enterprises has exploded.  Understanding the Guiding Principles and the international human rights laws on which they are based is crucial to any lawyer hoping to navigate such matters.

The IBA also deserves credit for pointing out that the Guiding Principles may also require a lawyer to question a company’s litigation strategy or tactics in human rights cases.  The Guiding Principles’ architect, Professor John Ruggie, himself raised this in the runup to the U.S. Supreme Court’s Kiobel opinion.  In the time since Kiobel, we have learned that Shell — the defendant in the Kiobel case — extensively lobbied the U.K. government, seeking amicus support at the U.S. Supreme Court, which it received.

As the IBA points out, the Guiding Principles in no way undermine a lawyer’s duty to zealously defend his or her client(s) or to betray client confidences.  However, they likely do require that a lawyer explain “the entire range of risks entailed by the [company’s] litigation strategy and tactics, … as part of helping their client understand the full implications of any proposed approach to responding to claims of human rights harms.”

The implications for law firms as businesses

Finally, the IBA explores the human rights obligations that arise from a law firm’s provision of legal services and advice to business clients.  Importantly, despite having independent human rights obligations, a law firm “cannot force a business client to do anything that the client does not want to do.”  This tension may lead to situations where a firm’s duty to its client could appear to conflict with its human rights obligations under the Guiding Principles.

Where such a tension arises, the IBA suggests that the law firm consider whether it can leverage its role as the business’ trusted advisor to encourage the business to consider the human rights impacts of its decisions.  Given the confidential nature of the firm-client relationship, a law firm can do so “without fear that the communication will become public.”

The IBA recommends the following practical tactics:

  • Emphasizing to all clients up-front that it intends to advise on the ‘big picture,’ which includes human rights risks, in order to provide greatest value to all clients
  • Raising the kinds of problems that other companies have faced when they have not fully addressed human rights issues associated with a similar matter
  • Offering capacity-building training to clients and their legal departments on human rights issues
  • Providing advice and services on business and human rights on a pro bono basis to clients
  • Issuing client alerts on specific human rights issues related to its individual practice groups
  • Participating in multistakeholder dialogues where the firm can champion business and human rights issues
  • Supporting the efforts of law societies and bar associations to provide training and guidance for member lawyers on business and human rights issues

The IBA ends on a collaborative note, suggesting that law firms and lawyers, “when acting collectively, are likely to be able to assert much greater leverage than they can alone.”  Hopefully the American Bar Association and state bar associations will heed the IBA’s call and start talking about these challenging issues.

PHARMACEUTICAL PUBLIC-PRIVATE PARTNERSHIPS: MOVING FROM THE BENCH TO THE BEDSIDE

From the Harvard Law Review – Volume 4, Issue 2

This article provides a game theory and law-and-management analysis of for- profit pharmaceutical public-private partnerships, a complex type of legal arrangement in the highly regulated pharmaceutical industry. A pharmaceutical public-private partnership (PPPP) agreement is a legally binding contract be- tween a private pharmaceutical enterprise and a public research university (or a private university conducting publicly funded research) to support research leading to new commercial pharmaceutical and biologic products. The key purpose of this article is to provide a theoretical explanation and a practical perspective on how properly crafted PPPP arrangements can promote innovation more efficiently than traditional self-optimizing contracts. In particular, a properly framed binding contract, coupled with respect for positive incentives, can move the parties away from an inefficient prisoners’ dilemma Nash equilibrium to the Pareto Optimal Frontier and thereby increase both the overall size of the pie and the value of the share retained by each participant. To deliver an efficient framework for collaboration, the PPPP contract must include mechanisms for encouraging cooperative behavior, leading to a win-win approach rather than a traditional competitive perspective. Thus, this article discusses how the PPPP contract should encourage the parties to collaborate with a strong focus on attaining common goals by sharing gains or losses and information, and by instituting risk and reward systems to build and share innovation. When coupled with appropriate attention to the difficult task of coordinating the actions of interdependent actors, a PPPP arrangement can enhance the likelihood of successful commercialization of pharmacological discoveries by flipping the par- ties’ incentives as compared with a more traditional contract.

Full article found here

SOCIAL ENTERPRISE INNOVATION: DELAWARE’S PUBLIC BENEFIT CORPORATION LAW

From the Harvard Law Review – Volume 4, Issue 2

Delaware has innovated in the benefit corporation area by creating its own statutory framework to compete with the Model Benefit Corporation Legislation (the “Model”), and when Delaware talks, other states listen.  This Article provides a comparative analysis of Delaware’s Public Benefit Corporation (“PBC”) law and the Model, and suggests that Delaware’s approach is superior in most areas. Despite Delaware’s superiority, this Article also calls for policymakers to consider amendments to Delaware’s PBC statute, including clarifying the priority of the specific public benefit purpose, requiring a partial-asset lock, imposing a charitable giving floor, providing more effective enforcement mechanisms, and reconfiguring the current re- porting requirements. Social enterprise legal forms are extraordinarily recent additions to the list of possible business entity types. While Delaware’s PBC law is likely to have significant influence on social enterprise statutes, continued innovation in this field, from inside and outside of Delaware, is both likely and necessary.

The full article can be found here.

 

CROWDFUNDING: THE REAL AND THE ILLUSORY EXEMPTION

From the Harvard Law Review – Volume 4, Issue 2

Crowdfunding is commonly defined as raising small amounts of capital from a large number of people over the Internet. To avoid the expense of securities regulation, companies often crowdfund by giving away rewards (such as a free t-shirt) instead of selling stock or other securities. In April 2012, Title III of the JOBS Act sought to change this status quo by directing the Securities and Ex- change Commission (SEC) to facilitate securities-based crowdfunding through websites like Kickstarter. Congress and the President believed this would broaden access to sidelined capital and help companies grow and hire. But this “retail crowdfunding” exemption, open to all investors, was not the only means of crowdfunding in the bill. A last minute compromise, which has been largely overlooked, expanded the ability of issuers to use the private placement exemption, as revised in new Rule 506(c), to crowdfund from accredited investors. This “accredited crowdfunding” exemption provides a less regulated capital-raising alternative to retail crowdfunding that is available to the same companies and more.

This article is the first to examine the impact that accredited crowdfunding will have on retail crowdfunding. It claims that accredited crowdfunding is likely to dominate and, depending on SEC action, could render retail crowdfunding superfluous or a market for lemons. But it also claims that accredited crowdfunding—when compared to traditional private placements—may face a similar lemons problem over the longer term on account of rules that discourage investors from fending for themselves. These potential problems threaten to under- mine the social welfare goals of the JOBS Act: increasing access to capital, spurring business growth, and creating jobs. But the SEC can minimize these problems and promote social welfare by strengthening the bargaining incentives of accredited investors and encouraging retail investors to piggyback off of ac- credited investors’ work. The normative section of this Article provides targeted recommendations that balance the need for capital formation against a novel incentives-based theory of investor protection.

Full article can be found here