by Ee Vi Lim, final year L.L.B. student. Reviewed by Dr Allison Lindner, Lecturer on Business and Human Rights
In the 12 years following the release of the UN Guiding Principles on Business and Human Rights (UNGPs), there has been increased awareness and focus on human rights in the business world. As a student of the Tort Special Seminar on Business and Human Rights, I was more exposed to human rights discussions in commercial areas ranging from Covid’s amplification of vaccine equity, income inequality, as well as the provocations raised by ChatGPT and emerging technology.
As with any significant problem, the question of human rights is a multifaceted issue which requires a multidisciplinary solution. Hence, the father of the UNGPs, Professor Ruggie, stressed the importance of piecing together fragmented human rights initiatives with shared values and institutional procedures in his contribution to the Research Handbook of Human Rights and Business. However, I wonder how exactly this cross-disciplinary collaboration alligned with the roles responsibilities of individuals and corporations in advancing Business and Human Rights.
In the course of my exploration, I stumbled across the 2022 issue of Allen & Overy’s Business and Human Rights Review (BHR Review) which intrigued me with varied insights from corporate clients, researchers, lawyers and the United Nations. To learn more about this, I spoke with Justin Tan, an International Arbitration associate from Allen & Overy (A&O) and a member of the editorial team for the 2022 BHR Review, on his reflections and experiences.
Lawyering in Business and Human Rights
Human rights are protected through “soft” laws on one hand, which set the norms and expectations, and “hard” laws on the other, which are mandatory requirements that companies are legally obliged to follow. For the former, Justin observed that there is a growing expectation for companies to go beyond just mere adherence to the law. For the latter, a “hardening” of legal obligations on a corporate, national, and international level was highlighted in a research paper by Choudhury B. (2018). Taken together, it appears that the law functions as a protective “floor” to set the baseline expectations for businesses while consumer demands and industry pressure lead businesses to go above and beyond. To that, Justin raised a crucial point that “soft” and “hard” laws have a synergistic role to play: even as “hard” laws set a minimum standard for companies to follow, “soft” law increases pressure on corporations to do more while also shaping our social norms and practices over time, which can then facilitate the passing of enhanced “hard” legislation in the future.
As Justin shared, BHR lawyers are engaged on both the micro-level, to ensure the human rights compliance of specific cases and transactions, and on the macro-level, to advise on corporate policies that may impact the overall direction of the business. As a result, it has become more and more common for international firms like A&O to have a specialist working group dedicated to Business and Human Rights. Seeking BHR advice at a macro-level is also increasingly important given the renewed emphasis on human rights due diligence, with one major example being the recent vote in favour of a new Corporate Sustainability Due Diligence Directive by the European Parliament in June 2023. For Justin, lawyers play a pivotal role in helping clients to navigate the often-complex landscape of human rights legislation, analysing the specific impact on their business and also making tailored recommendations.
Convergence in a Multidisciplinary Field
As previously noted, BHR is a multidisciplinary practice which involves various industries at different points on the value chain, and concerns both micro and macro-matters. Having been on the board of the Econsilience multidisciplinary research journal, I can vividly remember the challenges in finding the right people with the right expertise to review a broad range of articles. Hence, I was curious to find out what strategies and structures law firms have in place to provide the required breadth and depth of expertise to deliver multidisciplinary BHR solutions efficiently.
To this, Justin answers that international lawyers, like those at A&O, already have considerable experience working across different jurisdictions and practice areas in their day-to-day practice. Additionally, there are several internal distribution lists and working groups which bring together lawyers from different parts of the firm to provide holistic advice on BHR issues and international disputes with human rights elements.
A Career with Purpose
Part of providing good and sensible commercial advice, as Justin affirmed, is advocating for the protection of human rights where necessary. As one of the editors of the A&O BHR Review, Justin shared that it takes a significant amount of work to pull the Review together given the large number of both client and internal stakeholders involved. It is also very inspiring to see the willingness of these lawyers to commit their time to this in addition to their billable work. For Justin, the dual-purpose of this Review is to engage with A&O’s current stakeholders but also to increase awareness of Business and Human Rights issues for new clients too. To this, I add a third purpose, which is to attract the attention of aspiring lawyers like me (which they have, successfully) to venture into this impactful field.
In the face of all the career options that we have out there, we do not necessarily have to think of commercial law, activism, and advocacy as trade-offs for one another. Yes, we may not be able to be everything everywhere all at once; but we can certainly arm ourselves by developing our expertise and pick the battle for the causes that we want to fight. Whether or not our career can be purposeful, is up to us to decide.
Disclaimer: The views and opinions expressed are those of the authors. They are for informational purposes only and do not necessarily reflect the official policy or position of UCL SPBC and Allen & Overy (A&O).