Event Summary: BHRLA Geneva Launch 30 May 2023: The Role of Commercial Lawyers in Promoting Business Respect for Human Rights

The Business and Human Rights Lawyers Association (“BHRLA”) held its launch event in Switzerland on 30 May 2023 in the Geneva office of founding member firm LALIVE.

The focus of the event was to introduce the BHRLA to Swiss practitioners, address the current trends in business and human rights (“BHR”), and have a panel discussion on the role of commercial lawyers in promoting business respect for human rights and corporate social responsibility (“CSR”). It was also the opportunity to present the activities of the UN Global Compact (“UNGC”) Network Switzerland & Liechtenstein.

The event was chaired by Sandrine Giroud, Partner at LALIVE and Vice-Chair of the Geneva Bar Association, with Antonio Hautle, Executive Director of the UNGC Network Switzerland & Liechtenstein, Caroline Bydzovsky, General secretary of the Geneva Bar Association, and Dr. Jérôme Barra, Vice-President of Sweet Goods Strategic Business Unit at Firmenich and Board Member at UNGC Network Switzerland & Liechtenstein.

Discussing the role of commercial lawyers in promoting BHR and CSR, the panel addressed the UNGC and the importance of human rights due diligence, the Geneva Bar Association’s initiatives in this field, as well as the need for training and the relevance of international frameworks.

Introduction

Sandrine Giroud began by introducing the BHRLA and the UN Global Compact, emphasising that lawyers cannot stay passive but must rally around common objectives and act. She highlighted three initiatives to this effect:

• The UNGC’s call to companies to align strategies and operations with universal principles on human rights, labour, environment and anticorruption, and the ensuing Sustainable Development Goals (“SDGs”), championed in Switzerland and Liechtenstein by the UNGC Network Switzerland & Liechtenstein;

• The Geneva Bar Association’s inclusion in its internal regulations of an obligation for lawyers to mitigate the risk for human rights violations and promote their respect; and finally

• The BHRLA, founded in November 2022 to be a global platform that inspires and advances BHR leadership, learning, collaboration and practices among commercial law firms and business lawyers around the world.

Panel discussion: The Role of Commercial Lawyers in Promoting Business Respect for Human Rights

The UNGC and the need for human rights due diligence

Antonio Haulte and Jérôme Barra first presented the work of the UNGC Network Switzerland & Liechtenstein. They introduced the UNGC, starting by its creation with a view to achieving a better future for all – laying out a path to end extreme poverty, fight inequality and injustice, and protect the environment. They addressed how, whilst non-mandatory, the SDGs are the result of a voluntary process that had included government, business, civil society and citizens from the outset. The panel shared insights on:

• The synergy between ESG and the UNGC, and the importance to involve lawyers;

• SDG 16, which crystalizes the obligation to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels;

• The ensuing need to raise awareness of human rights due diligence within the legal and business communities; and

• The role of lawyers as proactive advisors for their clients but also in their own dealings.

Antonio Haulte and Jérôme Barra continued with a presentation on the work of the UNGC Network Switzerland & Liechtenstein and its objective to promote responsible business practices by stimulating multi-stakeholder dialogue, providing knowledge, tools and mutual learning for businesses in Switzerland and Liechtenstein. The importance of accessibility to training and know-how was highlighted.

The panel insisted in this context on the need for human rights due diligence. For the market, the good quality of a product today also means how it is produced. Human rights due diligence has also become crucial for employees, who want to be part of a company which corresponds to their values. It is finally important for the shareholders, which more and more choose to invest in companies with BHR processes as it is a positive indicator of the company’s stability and reliability.

The panel then addressed the concrete measures to be taken for efficient human rights due diligence, and discussed the need for genuine engagement at all levels in the company, through a company’s code of ethics and ethics committee, employees’ training, human rights policies, press and social media monitoring as well as speak up policies, which must allow all stakeholders – employees, suppliers and clients – to raise concerns as soon as they arise.

The tension between business interests and BHR was addressed by the panel in this context. The panellists discussed how many major companies are positive about BHR. They emphasised that human rights due diligence had to be implemented for a company to be sustainable, not only from a human rights perspective, but also from a financial point of view. Discussing long-term strategies and development plans was presented as a way to raise awareness within shareholders and management that human rights compliance was not charity, but in the company’s interest. As the panel concluded, having a sustainable value chain is a necessary step to have a sustainable company.

The Geneva Bar Association’s Role and Initiatives

Caroline Bydzovsky continued with a presentation of the Geneva Bar Association’s obligation for lawyers to mitigate the risk for human rights violations and promote their respect, one of the first of its kind for bar associations. She highlighted that the legal profession has only recently considered itself as a business. Mentalities are however changing and lawyers are more and more aware of their role as actors of a business that needs to be sustainable.

Caroline Bydzovsky and Sandrine Giroud then addressed how the inclusion in 2017 of the obligation for lawyers to mitigate the risk for human rights violations and promote their respect in the Geneva Bar Association’s regulations, was not the Geneva Bar’s first step taken in this direction, but part of a global and long-standing vision of the role lawyers had to take to protect human rights and the rule of law. The Geneva Bar already had an Equality Commission and a Human Rights Commission, organising conferences on human rights, provided a pro bono platform, lawyers on call for asylum seekers, as well as continued education for lawyers. A mentoring platform for young female lawyers was also implemented, as well as anti-harassment training and policies.

Caroline Bydzovsky and Sandrine Giroud noted however that while today accepted, these actions had not been a success without push-back. They accordingly insisted on the pro-active role that the Geneva Bar Association had to play, to engage with the lawyers and help define what the legal profession will be tomorrow. The panel agreed that this was the way forward, highlighting the existence of synergies between lawyers and their clients' training.

Lawyers and companies’ interest for BHR expertise

If many companies are already aware of their human rights impact throughout their value chains, others are at a much earlier stage in that process. The panel thus turned to the expertise required for internal and external counsel.

It discussed in particular the complexity of the BHR regime, composed of soft and hard law, with different scopes of application and often extraterritorial effect, and the difficulty and importance to monitor all relevant regulations in Switzerland and abroad, in particular in all States where the company’s suppliers are active. Lawyers and companies’ interest for BHR, whilst real, is in practice confronted with a lack of understanding and expertise. The panel highlighted the challenge of navigating an increasingly complex web of compliance requirements. These concerns are especially felt from companies with less developed systems in place to manage human rights impacts, small and medium-sized enterprises. Internal and external legal teams must accordingly be able to get training to help companies fulfil their responsibility to respect human rights.

The panellists discussed the tools available to help companies and lawyers get know-how in BHR, notably with the BHRLA, the UNGC Network Switzerland & Liechtenstein as well as bar associations with the following objectives in mind:

• Raising awareness within the profession, so that lawyers feel they have a stake in the process;

• Helping clients get accessible and implementable keys to BHR; and

• Creating synergies and cross-fertilization towards convergent international standards.

In this latter respect, the panel discussed how the different legislations and regulations across the world had created a need for uniformization, alignment. They notably addressed the Nutri-Score, emphasising the importance and usefulness of common and objective indicators.

The panellists also shared insights into how their law firms and companies were structured to take responsibility for business and human rights issues. They discussed for instance how raising awareness and preparing human-rights reports helped improve management and functioning throughout the companies and firms involved, both requiring and enabling interactions and discussions with all parts of the company.

The panel finally emphasised that companies’ focus, even in Switzerland, was on EU laws and regulations, as the EU was becoming a leader in the field and foreign multinational companies were pressing Swiss companies for compliance so that they could themselves attest of BHR compliance throughout their chain of value. This highlighted again the need for converging standards and BHR expertise.

The panel concluded that progress had been made, but that more needed to be done.

The event was closed by a Q&A chaired by Sandrine Giroud, which was the occasion to address questions on the BHRLA’s organisation and role, the will of Swiss and foreign companies to comply with BHR but their lack of expertise, the difficulties to hold a company liable for human rights violations committed within its value chain, as well as the need for training.