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It’s a lovely Friday night for grading papers for my Business and Human Rights course where we focused on ESG, the Sustainable Development Goals (SDGs), and the UN Guiding Principles on Business and Human Rights. My students met with in-house counsel, academics, and a consultant to institutional investors; held mock board meetings; heard directly from people who influenced the official drafts of EU’s mandatory human rights and environmental due diligence directive  and the ABA’s Model Contract Clauses for Human Rights; and conducted simulations (including acting as former Congolese rebels and staffers for Mitch McConnell during a conflict minerals exercise). Although I don’t expect them all to specialize in this area of the law, I’m thrilled that they took the course so seriously, especially now with the Biden Administration rewriting its National Action Plan on Responsible Business Conduct with public comments due at the end of this month.

The papers at the top of my stack right now:

  1. Apple: The Latest Iphone’s Camera Fails to Zoom Into the Company’s Labor Exploitation
  2. TikTok Knows More About Your Child Than You Do: TikTok’s Violations of Children’s Human Right to Privacy in their Data and Personal Information
  3. Redraft of the Nestle

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Join me in sunny Miami on April 26 for this in-person conference featuring outside counsel, inhouse practitioners, and academics. 

Panel topics include:

Change Management: The Legal Department of the Future –  More and more, in-house legal departments are employing new hybrid and remote work models, incorporating artificial intelligence and technology in their workflows, and restructuring and absorbing new teams after mergers, acquisitions, and divestitures. This panel discussion will focus on how the in-house legal department can be a champion in leading successful developmental and transformational change by implementing change management best practices to be effective and efficient, remaining client-focused, and being a trusted business advisor.

Remote Work:  Accelerated Adoption and Related Challenges – Which option would you choose: on-site, hybrid, or virtual? We will discuss the pros and cons of remote work arrangements, including the challenges of implementing a remote work policy in Latin America where the legal framework is a complex patchwork of requirements, as well as the strategies for creating culture and building a team in a remote work environment.

Counseling the Board of Directors (the panel I’m on)-  This panel will focus on issues that arise when counseling the board of directors and address important…

Yesterday, I was privileged to attend a wonderful Knoxville Symphony Orchestra performance as part of its Chamber Classics Series.  The featured piece was the Bach Concerto for Two Violins–an amazing piece of work.  It was preceded in the program by a wonderfully catchy Stravinski Octet.  The second half of the program focused solely on a Shostakovich piece (arranged by Rudolph Barshai): Chamber Symphony, Op. 73a.  I want to focus here for a moment on this last composition.

Dmitri Shostakovich was a Russian (Soviet) composer.  He died back in 1975.  As my husband and I looked at the program in anticipation of the Shostakovich work, we could not help but think of the ongoing Russian invasion of Ukraine.  We have watched with horror and sadness the violence, destruction, displacement, and more.  Of course, the program for the concert today was many months in the making; the Knoxville Symphony Orchestra could not have anticipated that a Russian composer’s music would be played in these circumstances . . . .

In his introduction to the Shostakovich Chamber Symphony, our conductor, Aram Demirjian, explained that Shostakovich was periodically critical of the Soviet government, despite its patronage of his work.  He explained that the…

Between the Winter Olympics and the Superbowl, this weekend is a sports-lover’s dream. But it can also be a nightmare for others. Next week in my Business and Human Rights class, we’ll discuss the business of sports and the role of business in sports. For some very brief background, under the UN Guiding Principles on Business and Human Rights, the state has a duty to protect human rights but businesses have a responsibility (not a duty) to “respect” human rights, which means they can’t make things worse. Businesses should also mitigate negative human rights impacts. I say “should” because the UNGPs aren’t binding on businesses and there’s a hodgepodge of due diligence and disclosure regimes that often conflict and overlap. But things are changing and with ESG discussions being all the rage and human rights and labor falling under the “S” factor, businesses need to do more. The EU is also finalizing mandatory human rights due diligence rules and interestingly, some powerful investors and companies are on board, likely so there’s some level of certainty and harmonization of standards. 

I’ve blogged in the past about human rights issues in sports, particularly the Olympics and World Cup in Brazil…

I’ve been thinking about environmental, social, and governance issues (“ESG”) for almost twenty years — long before they became mainstream. As an in-house lawyer at a public company prior to joining academia, I had no choice. I teach, research, and consult on these issues now and have a whole lot of thoughts about them, which I’ll share in coming posts. 

I had the honor of presenting on “ESG and India in 2022” yesterday. ESG is a hot topic in India, as it is everywhere – – I have either attended or spoken on half a dozen panels on ESG this year to introduce the topic to lawyers. If you’re not familiar with the term or think it’s completely irrelevant to what you do for a living, here are some common classifications for investors that integrate ESG into their portfolio selection and investment process. 

Environmental: climate change, water, alternative energy, pollution & waste management

Social: human rights, workplace standards, worker health safety, diversity & equal opportunity, labor relations, land grabs

Governance: bribery & corruption, board diversity, corporate political contributions, executive compensation, disclosure & transparency, board independence, tax avoidance

If you’re a transactional lawyer, chances are you or your clients…

I’m so excited to present later this morning at the University of Tennessee College of Law Connecting the Threads Conference today at 10:45 EST. Here’s the abstract from my presentation. In future posts, I will dive more deeply into some of these issues. These aren’t the only ethical traps, of course, but there’s only so many things you can talk about in a 45-minute slot. 

All lawyers strive to be ethical, but they don’t always know what they don’t know, and this ignorance can lead to ethical lapses or violations. This presentation will discuss ethical pitfalls related to conflicts of interest with individual and organizational clients; investing with clients; dealing with unsophisticated clients and opposing counsel; competence and new technologies; the ever-changing social media landscape; confidentiality; privilege issues for in-house counsel; and cross-border issues. Although any of the topics listed above could constitute an entire CLE session, this program will provide a high-level overview and review of the ethical issues that business lawyers face.

Specifically, this interactive session will discuss issues related to ABA Model Rules 1.5 (fees), 1.6 (confidentiality), 1.7 (conflicts of interest), 1.8 (prohibited transactions with a client), 1.10 (imputed conflicts of interest), 1.13 (organizational clients), 4.3 (dealing…

As regular readers of the blog know, my passion is business and human rights, particularly related to supply chain due diligence and disclosure. The ABA has just released thirty-three model clauses  based on the United Nations Guiding Principles on Business and Human Rights, and the OECD Due Diligence Guidance for Responsible Business Conduct. The ABA committee’s reasoning for the model clauses is here:

The human rights performance of global supply chains is quickly becoming a hot button issue for anyone concerned with corporate governance and corporate accountability. Mandatory human rights due diligence legislation is on the near-term horizon in the E.U. Consumers and investors worldwide are increasingly concerned about buying from and investing in companies whose supply chains are tainted by forced or child labor or other human rights abuses. Government bodies such as U.S. Customs and Border Protection are increasingly taking measures to stop tainted goods from entering the U.S. market. And supply chain litigation, whether led by human rights victims or Western consumers, is on the rise. There can therefore be little doubt that the face of global corporate accountability for human rights abuses within supply chains is changing. The issue is “coming home,” in other…

If you read the title, you’ll see that I’m only going to ask questions. I have no answers, insights, or predictions until the President-elect announces more cabinet picks. After President Trump won the election in 2016, I posed eleven questions and then gave some preliminary commentary based on his cabinet picks two months later. Here are my initial questions based on what I’m interested in — compliance, corporate governance, human rights, and ESG. I recognize that everyone will have their own list:

  1. How will the Administration view disclosures? Will Dodd-Frank conflict minerals disclosures stay in place, regardless of the effectiveness on reducing violence in the Democratic Republic of Congo? Will the US add mandatory human rights due diligence and disclosures like the EU??
  2. Building on Question 1, will we see more stringent requirements for ESG disclosures? Will the US follow the EU model for financial services firms, which goes into effect in March 2021? With ESG accounting for 1 in 3 dollars of assets under management, will the Biden Administration look at ESG investing more favorably than the Trump DOL? How robust will climate and ESG disclosure get? We already know that disclosure of climate

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I am delighted to announce that Professor Lécia Vicente from LSU Law is joining us as a guest blogger at the BLPB this month. Her posts will be on Sundays through the end of the month.  You can find her work on SSRN here.

Professor Vicente teaches Business Associations, a Comparative Corporate Law Seminar, the Louisiana Law of Obligations, and Western Legal Traditions (a comparative and legal methodology course). Her recent scholarship focuses on the several dimensions of property rights within the firm’s contractual framework. She is also expanding her research to include law and development as a result of her consultancy work with developing countries and various other professional engagements, including her roles as:

  • a delegate to the 74th Session of the United Nations General Assembly in 2019;
  • the Head of Delegation of the African Union at the United Nations’ High-Level Political Forum on Sustainable Development under the auspices of the United Nations Economic and Social Council in 2016; and
  • an advisor of the African Union at the United Nations Sustainable Development Summit for the adoption of the Post-2015 development agenda.

Professor Vicente holds an LL.M. in Comparative, European and International Laws and a Ph.D. from the European…

The Academy of Legal Studies in Business is in the midst of its annual conference.  And, not surprisingly, it’s completely online.  Although we aren’t able to meet in person this year, the event has been a really great, remarkably smooth experience.  Pre-pandemic, the Program Chair, Professor Robert Bird, at the University of Connecticut School of Business, presciently selected the theme of “Managing Disruption.”

For me, one highlight of the conference thus far has been the opportunity to hear guest speaker Lee Buchheit’s remarks to the ALSB’s International Section on the “State of the Art of Sovereign Debt Restructuring.”  Buchheit is arguably the world’s leading expert on sovereign debt restructuring.  As an FT Alphaville piece put it: Buchheit “has represented nearly every country that has gone bankrupt since the 1980s, sparring with aggrieved creditors and cajoling stricken governments back to fiscal health — and in the process almost single-handedly building up an entire field of international law.”  He didn’t disappoint, giving us a fascinating overview of the major disruption the pandemic is causing in the sovereign debt arena, and the likely challenges that lie ahead, including the risk of a systemic sovereign debt crisis such as happened in the 1980s. …