What kind of lawyer are you?
Do you view the world through a legal liability lens or are you a forward-looking lawyer?
What does it mean to integrate the soft law of business and human rights into your legal advice?
Find out more about what human rights means in practice for in-house lawyers in Thomson Reuter’s interview with business and human rights advisor Anna Triponel, available as free content here.
Lynsey Poulton: Hello and welcome to our discussion today on human rights for in-house lawyers, looking specifically at why this is top of mind at the moment and also what the role of the in-house lawyer looks like in this regard.
I’m Lynsey Poulton. I’m a senior editor with Practical Law’s In-house team and with me today I have Anna.
Anna Triponel: Hello, my name is Anna Triponel. I’m a business and human rights adviser. I work with companies, lawyers and investors to help them strengthen their systems so that they can better identify and address their human rights risks.
I actually got involved in this field myself as a practising corporate lawyer. I was practising M&A in New York and I was struck by the uncertainty that my clients faced, especially when they were operating overseas. Even though I had passed the Bar in New York and I also passed the Bar in England and France, I felt unable to fully advise them on their risks overseas, to protect them from lawsuits, from investigative journalism and from NGO campaigns. So I joined John Ruggie, who was appointed by the United Nations to clarify what human rights means for companies on a day to day basis. John Ruggie and his team at Harvard essentially developed the UN Guiding Principles on Business and Human Rights. These Guiding Principles have become the soft law standard, the authoritative standard for companies in this field and I’ve been working on them ever since.
Lynsey Poulton: Anna, thank you. It’s great to have you here today and get your insight in this area. First of all, why is human rights top of mind for in-house lawyers? And if it’s not, why should it be?
Anna Triponel: Human rights is top of mind today for in-house lawyers, especially in the UK. And this is because of the Modern Slavery Act. The Modern Slavery Act was passed in 2015 and it really has brought human rights into the boardroom, into the office of the general counsel and his or her team. This piece of legislation asks companies to think about where are their modern slavery risks in their supply chains and what can they be doing to prevent these risks. They’re asked to tell the world what they’re doing. So obviously companies call up their general counsels and say: Am I saying the right thing?
So this is a perfect example of hard law that actually is influenced very heavily by soft law. It’s not the only example. It is the example here in the UK, but in France we have now seen a new law which is called the Duty of Vigilance Law which requires French companies to conduct human rights due diligence and to publish what they’re doing in this space. This is only increasing. In the Netherlands, they are talking this year about the Dutch Child Labour Due Diligence Bill.
Lynsey Poulton: Rolls off the tongue!
Anna Triponel: That’s right. So, basically what are companies doing to prevent child labour in their supply chains? A very similar initiative is taking place in Switzerland where they are thinking about how to push companies to say more about human rights. So regulation is a key driver in bringing lawyers to the table when it comes to human rights.
Lynsey Poulton: So you can see why it is relevant for in-house lawyers here in the UK, but also those that work across different jurisdictions. And, I guess, certainly when I was in-house, for me, I wanted to understand more of what that would look like in my role. How much did I have to do? What should I be looking for, and at both in the UK and in my foreign subsidiaries as well? So what can that role look like for an in-house lawyer then?
Anna Triponel: Sure. Lawyers play a vital role in this field and this question comes up a lot. And it might be easier to start off by saying: What is it not?
Lynsey Poulton: Okay.
Anna Triponel: So, it is not about in-house lawyers becoming human rights lawyers. It’s not about in-house lawyers reciting UN conventions off by heart. And it’s not this fluffy add-on that’s added at the end of the technical legal discussions. But what it is, is about equipping your company, as a lawyer, to have the tools in place so that they can manage their human rights risks. So that they can better know where they might be harming people in their business relationships and in their own operations. And how they can do what they can to prevent those impacts from occurring.
Lynsey Poulton: So it’s that bit of risk assessment, early on, to identify where the potential human rights risks would sit then, I guess.
Anna Triponel: Yes absolutely. It’s about risk assessment with a lens to where human rights risks lie and what lawyers can do in this space. I must say, Lynsey, I’ve been working on this for a while. And I can say that lawyers sit in one of two camps. Lawyers can either put on a legal liability lens or they can take a forward-looking approach.
A legal liability lens is essentially: I will protect my company from legal liability, from legal risks and I will do whatever I can to place those risks onto the other party. That’s understandable. We’ve been to law school. I was trained that way in law school too. And that is the lens that we’re trained to take as lawyers. But today, we know, it’s a very different world today than when we were at law school. And companies are navigating very different environments. Back in the day, we didn’t have national contact points which are quasi-tribunals which rule on companies’ conduct, based on soft law. Not based on hard law at all. Based on the UN Guiding Principles. We didn’t have social media that passed judgment on things that were taking place, thousands of kilometres away. We didn’t have investigative journalism the way we have it today. And we didn’t have the expectation of the UN Guiding Principles. So today, being a lawyer is more than playing a legal, technical role. It’s about being forward- looking and thinking: How can I be a wise counsellor to my company and help my company navigate this field, navigate this space?
Lynsey Poulton: And it’s interesting; how do you go about engaging your executive and your board with this. You know, I guess, for some people, they’ll have their execs and non-execs perhaps bringing it to them and saying: This has come up on some of the other boards I sit in. What are we doing about it? And then the other side is actually taking it to them and saying: Look this is the expectation on us, like regulation, but also this is what we should be doing because it’s the right thing. I guess there’s a large part of that and for those in-house, there’s a little bit of initiative perhaps they can be taking with regards to this to make that approach, isn’t there?
Anna Triponel: Yeah absolutely. And what I always say when working with lawyers is: Think about what driver works best for your company. Each company will have a different set of drivers. If you’re publicly listed, if you’re quoted, probably your investors will be asking you questions on this. And nothing works as well as going into the board and saying: My top shareholder wants to know how they can be sure that we are sustainable; we’re a long term business to invest in. Or it can be: We have workers, we have a lot of millennials that will be joining us. How can we make sure that they stay with us? We have consumers who are ethically minded, how can we make sure they purchase from us? Or it can be just trying to prevent investigative journalism from finding stuff out and try to know before they do about what our risks are as a company.
Lynsey Poulton: And it is interesting, you mention there millennials and retention but there must be an element, as well, for these younger bods, about attraction to companies as well. Certainly my understanding is that this generation now looks at companies’ ethics but beyond just the pure statement of these are our core values, but actually looking into what companies are doing and choose to go to companies where they believe there is a strong ethics policy in place, but more so the culture. They want to go to companies where the culture is correct. So I guess this ties very much into the ethics and culture piece as well.
Anna Triponel: Absolutely. And people want to know that the companies they work with, they’re not just doing sort of corporate social responsibility projects and building a school or helping contribute to community funds but actually are cognisant of how they, as a business, could be potentially harming people and being proactive to prevent those risks from occurring.
Lynsey Poulton: Well it is obviously a huge topic and we can look at the UK, we can look at other jurisdictions. But for those here in the UK in particular, where would you recommend they go to get further resources on human rights. Whether that’s sticking solely to modern slavery or the broader picture. Where should in-house lawyers look for some further guidance?
Anna Triponel: First of all, I would say that in-house lawyers often have what they need inside them. They just haven’t had the opportunity to tap into that yet.
Lynsey Poulton: Interesting.
Anna Triponel: It’s about thinking slightly differently to your task as a lawyer. So let me give you a few examples and then of course I will point you to some resources. And these are all based on examples that I’ve seen. I won’t be naming companies, but just to give you a flavour. So if I’m a procurement contract lawyer and I’m drafting procurement contracts, I could, with the legal liability lens, be saying: Okay, you shall not have modern slavery. I will audit you to make sure that you don’t. And if you do, I will terminate the contract.
Lynsey Poulton: Yes.
Anna Triponel: But the forward-looking approach is: Okay, modern slavery is occurring around the world. Right now, we have 16 million people in the supply chain of these large companies. And it’s a market of $150 billion; a huge market. So it’s hidden; it’s very hard to find it out. So a forward-looking lawyer is: Okay, in my contract and my conversations I will say: Here are the red flags for modern slavery. Please train your staff to try and identify if this is happening. And if it is, come to us and we’ll have a conversation and we’ll work on addressing it together.
Another example, let’s say from the M&A space, which I have also seen. And actually this has been a topic of litigation recently in the UK. Legal liability lens is: I will ask you in a representation of warranty to tell me that you have legal title to land. The forward-looking approach is: Okay, I know that in some countries the legal title to land can be bought. It’s a corrupt practice. Legal title to land can mean that communities have still been evicted by their lands and violently treated by security forces. So actually, I’m going to be asking for a little bit more than legal title to land to make sure that I’m not acquiring these human rights risks and that my company isn’t responsible for them.
Another example I can give is related to litigation. And here I’ll quote a very well known quote which is from Chevron a few years back, during their lawsuit in Ecuador. And the Chevron rep said: We will litigate until hell freezes over, and then we will fight it out on the ice. That is not the forward-looking approach, right? The forward- looking approach is: Okay, what is the issue here? What are people coming to us and complaining about? How can we try and address their issues rather than spending years in court?
The final example Lynsey, and then I’ll stop there. It’s about communication, right? You couldn’t be saying, as a company: I will not put anything in the public domain because it could be used against me.
Lynsey Poulton: Yes.
Anna Triponel: And we have lawyers that say that. Or you can be a forward-looking lawyer and say: You know what, the world is a messy place. Let’s be open about where the challenges are. Let’s be open and transparent about what we’re doing, what’s working well but also what isn’t working well, and try to just create a conversation around this. And I will refer you, for instance, to the ASOS modern slavery statement – does an excellent job at this. Unilever’s human rights report in 2015 – really it sets out a ton of information in this. The Marks & Spencer human rights report that was just released also publishes a ton of information. So, lawyers were behind these companies to enable them to be transparent in this field.
LynseyPoulton: And they will be really useful pieces actually, for people to be able to go and look at and perhaps benchmark themselves against.
Anna Triponel: Yes.
Lynsey Poulton: Are there any other resources that you’d recommend people have a look at though, as well?
Anna Triponel: Yeah sure. Well lawyers are all very busy people.
Lynsey Poulton: True.
Anna Triponel: And what I have found is that there’s a tendency for lawyers to work in a silo. And if lawyers can jump across the fence and find out what their other colleagues have worked on. Maybe they worked on a similar project, in a similar country that they have learnings they can share. Maybe there’s information that the CSR or sustainability or corporate responsibility team in the same company can share with them. So I would encourage lawyers to branch out within their own companies first. And then, of course, if they can have conversations with others who have worked on the field where they’re structuring a project, or NGOs, trade unions, other people who have more visibility on the human rights risks, I would definitely encourage that. But really, resources, practical resources, I would say the International Bar Association has guidance on its website. It has a practical toolkit which goes into how lawyers can structure M&A and commercial transactions with human rights in mind. I would also refer to different resources out there that law firms are putting out. One example is a law firm peer learning process report which I co-drafted with Catie Shavin which basically brings together the experiences from nine leading law firms in this field of what they are doing to consider human rights in their business.
And finally, I would encourage lawyers to look at the Business & Human Rights Resource Centre. A fantastic tool to find out more the kind of human rights issues that companies have faced and what they’re doing to prevent or address these impacts in the first place.
Lynsey Poulton: And that Business & Human Rights Resource Centre, I actually referenced when I was writing some pieces on modern slavery for Practical Law. I would thoroughly recommend that as well. I found that very helpful when I was writing my pieces.
Anna Triponel: And they have a corporate legal accountability portal as well, which describes all the lawsuits that are taking place against companies. And the number is only increasing over time.
Lynsey Poulton: It will only go one way, won’t it? Well that has been fantastic. Thank you so much for your insight in this area. I found that incredibly useful. Thank you for joining us for this discussion. I hope that you found that as useful and interesting as I have. Thanks very much.
Anna Triponel: Thank you.