Edited by Andreas R. Ziegler, Damiano Canapa and Maria Izabel Cardozo, this volume examines a selection of challenging topics within the business and human rights (BHR) landscape. This book offers both theoretical and practical analysis in light of the relevant legal frameworks. On the one hand, it provides a critical legal perspective on the application of key instruments, such as the United Nations Guiding Principles on Business and Human Rights (UNGPs), the EU Corporate Sustainability Due Diligence Directive (CSDDD) and the Legally Binding Instrument (LBI) currently under negotiation at the United Nations. On the other hand, it offers significant insights for lawyers advising corporate clients.
The book consists of a collection of 15 chapters, as well as an introduction and an appendix (Chapter 16) reproducing the ‘Updated IBA Guidance Note on Business and Human Rights: the Role of Lawyers in the Changing Landscape’ (Updated IBA Guidance).
The volume is organised into four parts. Part 1 addresses the ‘Key Developments in Business and Human Rights’, focusing on the hardening of the UNGPs in the drafting of the LBI, the role of lawyers in the context of climate change, the role of businesses in the Russian–Ukrainian conflict, and the coordination between antitrust law and the new instruments on mandatory human rights and sustainability due diligence. Part 2, devoted to the ‘Responsibility to “Respect Human Rights” across Different Industries’, addresses substantive issues affecting various industrial sectors. The contributions deal with the realisation of equality, non-discrimination, integration and diversity in the workplace, the prohibition of discrimination with a specific focus on the use of AI and in the context of the Olympic Games, the role of venture capital as a driver for respect for human rights, and the right to health in the food industry. Part 3 is dedicated to ‘Access to Remedy’ and examines, with a cross-cutting approach, issues related to corporate civil liability for human rights violations, related aspects of private international law, recourse to commercial and investment arbitration and remedies offered by national human rights institutions (NHRIs). Finally, Part 4 focuses on the Updated IBA Guidance and offers a rare and valuable analysis of the role of lawyers in the BHR framework.
Turning to the content of the chapters, the volume opens with Chapter 1 by Elena Assenza, who analyses the hardening of the UNGPs through the drafting of the LBI. This is an important and wide-ranging contribution. It not only discusses the reasons why it would be desirable to adopt a treaty complementary with the UNGPs but also offers an in-depth analysis of some of the provisions of the LBI draft, including the controversial extraterritoriality of the obligations incumbent on the (future) contracting states.
Chapter 3 by Izabela Jędrzejowska-Schiffauer, Daria Nagaivska and Jan Minksztym focuses on the war in Ukraine. The chapter provides an extremely valuable study of the roles played by companies in the conflict and their heightened human rights due diligence obligations. The authors use ‘the locution of business obligations instead of responsibilities and derive such obligations from national and international human rights law norms and jurisprudence rather than mere “social expectations”’ (p. 78). The status of corporate responsibility to respect human rights is also examined in Chapter 8 by Alice Bryk Silveira, who investigates the risks posed to the right to health and the right to adequate food by ultra-processed food (UPF) manufacturing corporations. The author reminds us that, while corporate responsibility is ‘defined by social expectations’ and ‘does not legally bind corporations’ (p. 247), the paradigm is shifting. It remains to be seen whether the approach developed by the author is already being applied in practice or will be applied soon to the UPF industry.
A wide selection of chapters focus on compliance with the principle of non-discrimination in various contexts of business activity. In Chapter 5, Fabian Lütz discusses shared responsibility in the algorithmic age and the roles of states and businesses in preventing the discriminatory effects generated by AI. Chapter 6, by Morgane Ventura, focuses on the implementation of the principle in the workplace and the application of the reasonable accommodation approach, while Jean-Loup Chappelet in Chapter 9 describes how the principle has been applied—not always satisfactorily—in the context of the Olympic Games. The resulting mosaic provides an exploration of the related negative impacts in different industrial contexts and of the approaches to address them.
Chapter 4, by Maria Jose Schmidt-Kessen, on the greening of EU antitrust law and Chapter 7, by Michel Jaccard and Christof Cardinaux, on venture capital address topics that have not been widely explored in the literature. It appears clear that the CSDDD and the ongoing Omnibus negotiations might impact antitrust regulation, and that future regulatory developments might affect venture capital, a field that is currently only partially characterised by binding duties on human rights compliance.
Part 3 focuses on access to remedy and contains an excellent Chapter 10 authored by Andrea Bonomi on private international law. The chapter also addresses recognition and enforcement of foreign judgments, a particularly delicate issue with regard to granting an effective remedy to victims of human rights violations. Chapter 13 by Fernando Bruno Escobar Pacheco then reconstructs investment arbitration, the case law of the Inter-American Court of Human Rights for licences granted to private companies in violation of indigenous peoples’ rights, and the corresponding decisions of domestic tribunals. Nicolas Bueno and Isidore Ngueuleu in Chapter 11 explore further how the current distortions of the international investment regime can be overcome. Their chapter focuses on access to remedies under the CSDDD and examines the ‘“Africanization” of international investment law’ (p. 325) as a driver of new legal solutions aimed at facilitating the exercise of the recipient state’s regulatory powers to protect human rights, the environment and sustainable development. In the context of investment treaties, the insertion of clauses on civil liability of investors is extremely innovative and promising. Also, the use of arbitration as a means of dispute resolution, as governed by the Hague Rules on Business and Human Rights Arbitration, represents an innovative development. However, some related aspects discussed by Max Ebdon in Chapter 12 remain critical, including the conclusion that ‘[s]oft law is not designed to be applied in concrete cases’ (p. 337) and ‘[t]he use of the UNGPs as the sole substantive applicable law […] is ill-advised’ (p. 339). Finally, Puspa Pokharel in Chapter 14 examines the creation of NHRIs as one of the state-based non-judicial grievance mechanisms considered under the UNGPs. In this regard, the author emphasises the need for coordination between NHRIs and the judiciary as a tool to promote compliance and grant effectiveness.
Finally, the chapters devoted to examining the role of lawyers in performing their advisory functions to corporate clients are particularly promising. The topic is addressed in Chapter 2, with specific reference to climate change, by Jasmine Elliott and Boudewijn de Bruin, who emphasise the expertise that lawyers must apply to properly perform their role. Fundamental support comes from the Updated IBA Guidance, commented on in Chapter 15 by Stéphane Brabant, Shaheeza Lalani, Bernhard Maier and Maria Izabel Cardozo. According to them, ‘lawyers must be prepared to identify the human rights issues with which their clients will likely be confronted’ (p. 413) and, even if domestic law is silent, ‘lawyers are encouraged to ascertain and advise on the appropriate boundaries under international human rights standards’ (p. 413) and ‘prospectively identify risks to human rights as a result of harmful business operations or practices that put profits before people’ (p. 413).
This volume provides readers with valuable tools to help them understand how the BHR legal framework applies to emerging challenges and how rules and standards should inform the regulation of corporate conduct. Thanks to its selection of chapters, the volume makes an important contribution to academic research and professional counselling. On the one hand, BHR and its evolution deserve ever-increasing attention and in-depth analysis in scholarly research, and this book offers valuable insights into recent phenomena and future legal developments. On the other hand, BHR is a relatively new field of counselling for lawyers. As the Updated IBA Guidance clarifies, given the dynamic nature of the UNGPs, ‘change continues, and key developments will take place in the future. It would be tempting to wait until developments play out over time, but lawyers have to advise and serve clients in the present’ (p. 429). Against this backdrop, this book can help lawyers understand how to incorporate the BHR approach into their counselling activities with corporate clients and prepare for future challenges.
