Ethical Issues for Business and Lawyers under the United Nations Guiding Principles

• Author: Steven M. Richman
• Position: Steven M. Richman is a member of the international law firm of Clark Hill, based in its Princeton, New Jersey and New York, New York offices, practicing in the area of dispute resolution and international law. He is immediate past chair of the Section of International Law of the American Bar Association, an officer of the Bar Issues Commission...
• Pages: 423-443

Ethical Issues for Business Lawyers Under the

United Nations Guiding Principles

S

TEVEN

M. R

ICHMAN

, E

SQ

.*

I. Introduction

We are all human rights lawyers now. Such concerns are no longer the

sole province of public interest lawyers or those who otherwise specialize in

human rights issues. Commercial lawyers in private practice representing

private companies must be attentive to human rights issues. This article

arose from various presentations made during my tenure as Chair of the

Section of International Law of the American Bar Association. It does not

purport to run down every issue in exhaustive fashion, but rather to

highlight a broad range of issues of relevance to those in the practice of

private international law and business law. In some instances, I have cited to

the work of others that summarizes developments in the area, in the interest

of limiting this article and not being redundant. What has become apparent

is that corporate social responsibility is of concern to private as well as public

lawyers, as well as significant multinational corporate actors.

Corporate social responsibility is no longer simply aspirational. With the

advent of the United Nations Guiding Principles on Business and Human

Rights (“UNGP”),

1

there has been increased attention as to the impact of

such principles in the private sector. It is and should be of concern to the

business law practitioner under various rules of professional conduct as part

of counseling clients doing business both internationally and domestically.

Corporate political and social agendas are being promoted in visible ways by

corporate stakeholders.

2

One example of a company actively engaged in corporate social

responsibility is RELX Group, a self-defined “global provider of

* Steven M. Richman is a member of the international law firm of Clark Hill, based in its

Princeton, New Jersey and New York, New York offices, practicing in the area of dispute

resolution and international law. He is immediate past chair of the Section of International

Law of the American Bar Association, an officer of the Bar Issues Commission of the

International Bar Association, and frequent speaker on corporate social responsibility and

professional ethics.

1. U.N. Guiding Principles [UNGP], infra, note 7. There are other United Nations

Guiding Principles (e.g., Guiding Principles on Internal Displacement); use of the defined term

UNGP in this article refers to those on Business and Human Rights.

2. Sam Walker, You’re a CEO—Stop Talking Like a Political Activist, W

ALL

S

T

. J. (July 27,

2018), https://www.wsj.com/articles/youre-a-ceostop-talking-like-a-political-activist-15326838

44.

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information and analytics for professional and business customers across

industries.”

3

It defines corporate responsibility (“CR”) as:

[T]he way we do business and our efforts to increase our positive impact

and reduce any negative impact. It ensures good management of risks

and opportunities, helps us attract and retain the best people and

strengthens our corporate reputation. It means performing to the

highest commercial and ethical standards and channeling our

knowledge and strengths, as global leaders in our industries, to make a

difference to society.

4

RELX Group’s 2017 report focuses on its objectives and achievements, and

provides an example of how corporate social responsibility has become part

of the paradigm for doing business.

5

While the UNGP do not have mandatory strictures, certain other laws do.

While some may be limited to reporting requirements, we are nonetheless

seeing the codification of what was once merely suggestive. Beyond that,

business lawyers as counsellors must understand not just legal obligations,

but political and social factors as they may affect legal liability. This article

explores the ethical obligations of the contemporary practitioner in this

regard.

First, though, we need to understand what we are addressing. How does

one define corporate social responsibility? The Australian Centre for

Corporate Social Responsibility (“ACCSR”) has noted:

There are hundreds of definitions of corporate social responsibility, or

CSR. The one we think says it the best comes from the International

Organization for Standardization’s Guidance Standard on Social

Responsibility, ISO 26000, published in 2010. It says:

“Social responsibility is the responsibility of an organisation for the

impacts of its decisions and activities on society and the environment,

through transparent and ethical behaviour that:

• Contributes to sustainable development, including the health and

the welfare of society

• Takes into account the expectations of stakeholders

• Is in compliance with applicable law and consistent with

international norms of behaviour, and is integrated throughout the

organization and practised in its relationships.”

6

3. R

ELX

G

RP

., https://www.relx.com/ (last visited July 29, 2018).

4. R

ELX

G

RP

., https://www.relx.com/corporate-responsibility (last visited July 29, 2018).

5. Corporate Responsibility Report 2017,R

ELX

G

RP

., https://www.relx.com/~/media/Files/R/

RELX-Group/documents/responsibility/download-center/relx2017-cr-report.pdf (last visited

July 29, 2018).

6. Corporate Social Responsibility – It’s Everyone’s Responsibility, O

UTSOURCE

I

NSTITUTE

, (Jan.

13, 2016) http://outsourceinstitute.com.au/news/corporate-social-responsibility/.

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW