 Hello and welcome. My name is Camille Cameron and for those of you who do not know, I'm the Dean of the Schulich School of Law. I'd like to welcome you all here and I'd like to acknowledge that we're gathered here today for this event on seated territory at the MiGMA people. It's a real pleasure to be hosting this event, which is a combined FB Whitmore lecture in professional responsibility and ethics, and the Osler-Hoskin and Harcourt LLP business law forum being held in association with the Purdy Crawford workshop. I'm going to, having now given you what I hope was a warm welcome, introduce Tilly Pallay. Tilly Pallay QC is the Executive Director of the Nova Scotia Barrister Society. The Barrister Society have, with the law school over the years, been co-hosts of the Wickwire lecture. Tilly is going to come and say a few words about Ted Wickwire, the namesake, but before she does that, I will just say a few words, if I may, about Tilly. Tilly, as I've said, is the Executive Director of the Nova Scotia Barrister Society. She took up that role in January 2018. Before that, she was Executive Director of Legal Services for the Nova Scotia Department of Justice, where she also served as Acting Deputy Minister in 2015 and 2016. She began her career in litigation. She worked first for Legal Aid, and then she joined the Nova Scotia Department of Justice, where she held various roles. I'm not going to also tell you about the amount of volunteer work she's done, but certainly over the years, volunteer work has been a big part of her profile. So I'm going to invite Tilly Pallay to come up now to say a few words about Ted Wickwire. Good afternoon, everyone. I'd like to acknowledge that Eve Wickwire is here today and is going to be listening to the lecture. So welcome, Mrs. Wickwire. We have all encountered in our lives that special person, someone who has made a great impact on all of us. Ted Wickwire was such a person. He walked amongst us with purpose, humility, and grace. He was a consummate professional. He embodied all that we strive to be as lawyers, but more importantly, as human beings. He practiced and modeled the highest professional standards. His commitment to the legal profession and to his community was well known. So when Ted Wickwire passed away at the young age of 52, the Nova Scotia Barrister Society, an organization that greatly benefited from his wisdom and leadership, decided to honor his memory by creating this Memorial Lecture Series in partnership with the Law School, and thank you very much to the Law School for joining us in this. The decision was made to have this lecture series focus on professional responsibility and legal ethics because Ted Wickwire championed professionalism and high ethical standards throughout his entire career. Ted was the society's chair of our first Legal Ethics Committee, and he oversaw the development of the society's handbook on illegal ethics and professional conduct. He also served as our president. His many contributions, and there's too many for me to say here today, like he was the first chair of the Legal Aid Commission, he had a report reviewing the conduct of lawyers in the Donald Marshall Junior case, and he concluded that the judicial system had failed Donald Marshall Junior throughout. These contributions of his focused on his public interest. We are incredibly lucky to have had Ted Wickwire walk amongst us. We at the society are so happy to have this opportunity to celebrate and honor him at this lecture series every year. Thank you for joining us. Hello, everyone. Many of you know me. I'm Professor Sarah Sack here at the Schulich School of Law, and I am absolutely delighted to have the opportunity today to feature a panel of four speakers, all of whom I hold in the very highest regard, and to share some thoughts with you on business responsibilities for human rights, sustainable development, and contemplating the possible role of the business lawyer. This event, as Camille has noted, is a joint initiative supported by the Nova Scotia Barrister Society through the Wickwire Lecture and the Osler-Hoskin-Harkourt Business Law Forum, and it is also the opening event of the Pertie Crawford Workshop, which this year has a focus on the role of business regulation in advancing the sustainable development goals. According to the United Nations' 2030 Sustainable Development Agenda, the private sector has an important role to play in implementation of the SDGs, and all businesses are called upon to apply their creativity and innovation to solving sustainable development challenges, while also respecting human rights and the environment. And this panel is designed to serve as an opportunity to reflect on the potential for business lawyers to play a role in the promotion of respect for human rights and sustainability, and the potential role that regulators at the profession might also play in guiding and enabling that role. Since the late 1990s, there has been a proliferation of international normative instruments designed to guide responsible business conduct, often informed by international human rights law. For example, in the year 2000, the UN launched the Global Compact, which is a learning network through which businesses can align their operations with the UN priorities by endorsing principles in relation to human rights, the environment, labor, and anti-corruption. And now, the UN Global Compact also provides guidance on how businesses can align their operations with the sustainable development goals. And yet our understanding of the relationship between these international guidance tools and the law, or even how we are to understand what the law is, is arguably underdeveloped. And this has implications, I think, for how we understand the role of business lawyers. So an underlying theme for today is how lawyers advising business clients should understand the legal relevance of the independent responsibility of businesses to respect human rights, as established in 2011 under the UN guiding principles. This responsibility is subsequently being implemented into many international guidance tools that are promoted to businesses to implement throughout their operations. And indeed Canada is actually mandated to promote the OECD guidelines for multinational enterprises, including a chapter on international human rights, as a member of the OECD. And it's also mandated to have a national contact point mechanism to which complaints can be brought about irresponsible business conduct, which takes, can be resolved in theory in the form of mediation and dialogue facilitation. The business responsibility to respect rights may also be implemented through domestic statutory law or through the evolution of doctrines and tort or integrated in contractual supply chains. And Canada has actively promoted this international responsible business conduct guidance tools and continues to to Canadian businesses operating outside of Canada, as well as within Canada, and has done so for a number of years. There's been a great deal of emphasis on the mining sector, which is often due to concerns over a failure to respect local and indigenous community rights, as well as increasingly a failure to consider gender-based discrimination. But increasingly, attention is turning to other industry sector contexts as well, such as the garment sector, following the random plaza disaster, tragedy in Bangladesh, and new guidance from the OECD touches on agricultural supply chains and starts to make reference to things like the mitigation of greenhouse gas emissions. The climate justice and business responsibilities for human rights are going to feature as a subject of discussion through the Pretty Crawford workshop, but today we're focused on a particular feature. What is the relationship between these business guidance tools, including those that embed respect for international human rights law and the law? Codes of professional conduct for lawyers in Canada often speak, for example, of the competent lawyer. Must the competent lawyer be one that is knowledgeable of these tools and the relationship between these tools and the law? And what about integrity? So to better unravel this mystery, I'm delighted that we have with us today four international legal experts in business and human rights, responsible business conduct, and sustainability. And key point is that these issues are ones that confront business lawyers all over the world, and that they also have implications in the litigation context. What I'm going to do is to introduce each speaker in order, and each speaker will have 15 minutes to share their insights, and then we'll have time for some discussion. Our first speaker is John Sherman III, whose talk is titled Good Corporate Lawyers Advise Clients on What Hard Law Says They Must Do, but Great Corporate Lawyers Advise Clients on What Soft Law Says They Should Do. John is an internationally recognized expert on the role of corporate lawyers in implementing the UN guiding principles on business and human rights. He was a deputy general counsel for National Grid for 30 years, and he then became a senior legal advisor to Professor John Rugge and helped him draft and shape the UN guiding principles. Since 2011, he's been general counsel and senior advisor to shift, which John Rugge chairs. He's also chaired the International Bar Association Working Group that drafted the 2016 International Bar Association Practical Guide for Business Lawyers on Business and Human Rights, as well as a 2015 guide for bar associations. Welcome, John. Thanks very much, Sarah, and I can't say how delighted I am to be here at this distinguished university on such a great panel, and I really look forward not only to hear what my colleagues say, but to get questions from you. When I started, I was trying to think of what's the right angle to get into the professional responsibility and the ethical implications of advising on normative soft law values, and I decided that the best way to dial in is this topic, which I'm going to talk about, which is contracting out of human rights. It's been around, it's a term that's been around for a while, but it has a particular application today. So here's my argument. Lawyers who represent businesses should not advise their clients to contract out of their responsibility to respect human rights. And that responsibility, as Sarah said, derives from the 2011 UN guiding principles on business and human rights. It is a soft law norm, but it is a soft law norm with a hard bite. Rather, my argument is that businesses should advise their clients to try to achieve the right balance between protecting their clients' legal interests and respecting human rights. Make no mistake, doing that is not easy at all, but in the end, I think it is worthwhile for both business clients, lawyers, and society. So what is the rationale for advising on soft law norms? Model 2.1 of the American Bar Association's rules of professional conduct says it pretty well, and I'll quote, advice couched in narrow legal terms may be of little value to a client, particularly where practical considerations such as costs and the effects on other people are predominant. Purely technical legal advice, therefore, and sometimes inadequate, goes on to say that although a lawyer is not a moral advisor as such, moral and ethical considerations impinge on most legal questions and may decisively influence how the law will be applied. Now, this isn't a radical position. Experienced lawyers often advise, point out the reputational and ethical risks of engaging in very complex financial transactions, even where those transactions would pass technical legal muster, I think, and run. The same should apply to the client when considering the soft law human rights implications of a particular transaction. Soft law on human rights. At the center of the soft law galaxy is the UN guiding principles on business and human rights drafted by Professor John Rugge, who was the special representative of the UN Secretary General. And the UN Human Rights Council unanimously endorsed them in 2011 that followed a six year process of pilot projects, research, and dozens of multi-stakeholder pilot projects. They operationalize Rugge's protect, respect, and remedy framework, which provides that states have a duty to protect human rights, businesses have a responsibility to respect human rights, and there's a need for greater access to remedy. And these have become the authoritative global standard on business and human rights. They have cascaded far beyond their origins in the United Nations and are increasingly reflected in law, multi-stakeholder norms, the policies and practices of leading companies, and the advocacy of civil society. Now of critical relevance to the contracting out of human rights is the concept of human rights due diligence. This is articulated in the business responsibility to respect human rights, which is the second pillar. The responsibility to respect applies to all businesses. It is not limited to local law and it is not a voluntary signup. It's an ongoing process conducted through the lens of the affected stakeholder. It requires businesses to show, to know what their risks are and show how they're addressing them. And it requires, one, identifying the risks, two, responding in an integrated fashion to those risks, three, tracking their performance and four, being prepared to communicate. It also expects that businesses will provide remedy to stakeholders who have been harmed where the business causes or contributes to that harm. Now there is a strong business case to conduct human rights due diligence in order to avoid the risks of involvement in human rights abuse. And as a rule of thumb, you can figure that the more severe the risk to the stakeholder, the more likely it is that the risk to the stakeholder and the risk to the company will converge. Now the risks include non-legal risks, such as disruption and delay in bringing products to market, lost opportunity costs, management distraction, unfavorable treatment and capital markets to vestment and damage to reputation. But there are also legal risks. You can have claims, legal claims by injured persons, class actions, breach of contractual commitments to important business partners, failure to disclose the risks to stakeholders and shareholders as required by modern slavery laws in many countries. Violation of mandatory due diligence laws is also an issue. And those kinds of laws have been enacted in France and Switzerland and the Netherlands that are currently under consideration in the EU, Finland, Switzerland and Germany. So what do lawyers have to do with all of this? Business lawyers. In its 2018 report to the UN General Assembly, the UN High Commissioner on Human Rights addressed the role of lawyers and here's what it said. And I'm quoting, business lawyers have a unique position for shaping the path that an enterprise may take. Often they are seen as one of the main obstacles to adopting effective human rights due diligence with a traditionally narrow focus on legal risk. It goes on to say, quote, law firms and bar association should integrate human rights risk management in line with the UN guiding principles as a core element of the role of business lawyers as wise counselors. And in so saying, the report referred specifically to the IBA's 2016 practical guide for business lawyers on business and human rights. And as Sarah said, I chaired a group of 11 international legal experts who drafted that guide. The guide discusses the role of lawyers as both practical legal experts who tell their clients what the law says it can do and what it can't do and wise counselors who advise the client on what might be the right thing to do in the company's sustainable long-term interest. To put it another way, Brad Smith, the president of Microsoft said just this last week, businesses have to stop the approach of saying it's legal, therefore it's acceptable. So how does this apply to the practical work of business lawyers in advising clients on contracts and agreements? I'd like to give you two contrasting approaches. The protectionist approach and the collaborative approach. Now, the protective approach, which I call the lawyer as guard dog, is intended to protect the client from legal liability for involvement in human rights problems by contracting the problem away, by offloading its responsibilities on the other party. For example, assume that a company doesn't want to read about modern slavery and child labor in its supply chain on social media for the first time. So it asks its lawyers for help in drafting the contract. Now, the lawyer acting as guard dog will draft a contract that negates the buyer's obligation to accept goods that are made with child labor or modern slavery. Pretty good, but at the same time, in order to protect the client, the contract would further provide that the contractual responsibility for any problems ends up in the hands of the supplier. It effectively washes its hand. And that's close to what the American Bar Association is considering in its initial modern slavery supply contracts. But this is in tension with the guiding principles which provide that human rights due diligence is the responsibility of each entity. It can't be contracted out. Let me give you an example. Sarah talked about it earlier. Where suppliers lack the capacity to live up to the contracts human rights standards. The threat of contractual, oh dear, five minutes. The threat of contractual penalties may incentivize suppliers to cheat or use unauthorized subcontractors. And the classic example is the fast fashion model in the apparel industry which ultimately led to first tier suppliers of garment manufacturers to go to that ultimately led to the Rana Plaza factory collapse in 2014, which killed over 1,100 workers. Human Rights Watch calls this paying for a bus ticket and expecting to fly. Now the alternative approach which I call the guide dog approach recognizes the need to try to find the right balance between legal protection and the unpleasant consequences of violating soft law norms. In this case, the guide dog would try to use the contract to protect the lawyer from legal risks but would also integrate human rights due diligence into the contract with collaborative negotiation. And that approach derives from something called the principles for responsible contracts. That was an addendum to the UN guiding principles, addressed to negotiators including lawyers of agreements between foreign investors and host states. The special representative focused on these contracts because they sit at the intersection of the state's duty to protect human rights and the business responsibility or respect. There are 10 contract principles and they include the need to identify upfront what are the most likely human risks from a sign, responsibility for addressing them, to community engagement through the life of the contract and grievance mechanisms. In other words, the contract, this kind of contract doesn't treat human rights as the responsibility of one side or the other but recognizes the joint responsibility of both sides to create an agreement that respects human rights. And that's far more likely to actually reduce the likelihood of human rights harm than attempting to contract out human rights. So let me sum up, I'm almost out of time, my position is that soft law norms such as human rights due diligence are highly relevant when it comes to advising on contracts that may involve a client and human rights harm. Therefore, lawyers who advise businesses should be sensitive not to contract out human rights harm but strive to achieve the right balance between protecting their clients legal rights on the one hand and integrating human rights due diligence into contract negotiation on the other. Doing so is much more likely to help the client avoid involvement and human rights harm in the first place. Thank you. Thank you very much, John and thank you for keeping so beautifully to the time as well. Our second speaker Penelope Simons, the title of her talk is defending corporations in transnational human rights cases in Canada, professional responsibility, sustainable development and the responsibility to respect human rights. Penelope is, I was reminded just before the talk, a graduate of this very law school. She is also an associate professor and a vice dean research at the faculty of law, common law at the University of Ottawa. Her research focuses on the human rights implications of business activity and she's published widely in this area with a particular focus on the extractive sector. She was also co-counsel for the interveners, Amnesty International and the International Commission of Jurists in the Araya and Nebson case. And in 2018 was the winner of the Walter S. Tarnopolsky Award, which annually recognizes a resident of Canada who's made an outstanding contribution to human rights domestically or internationally. Welcome Penelope. Well, thank you very much, Sarah. Thank you first for organizing this panel and continuing this very important discussion on the ethical and professional responsibilities of lawyers and STGs. And thank you all for welcoming me to the university. It's great to be back. I'm pretty sure I took business organizations or business associations, I think we call it here, in this classroom with Don Russell, who's a former dean of this faculty. I've been working just on this paper, and it's in its sort of emerging stages, as it were, with a colleague of mine who works on professional responsibility, who some of you may know as Amy Salizen. And as Sarah mentioned, I had the honor of representing Amnesty International and the International Commission of Jurists as an co-counsel, as an intervener in the Supreme Court case hearing of the Araya or area and Nebson case, which is a case against Canadian extractive companies that was heard last January. It was certainly an eye-opening experience to be in the Supreme Court and to hear firsthand all the arguments that were put forward by all parties and the interveners. But I was particularly struck by some of the arguments that were put forward by Council for Nebson Resources on one of the motions. This is a case for those of you who don't know about some of the most egregious violations of human rights. And it was brought by Eritrean refugees in the BC courts against the Canadian mining company, Nebson Resources. And they alleged that the corporation was complicit in, among other things, torture, forced labor and slavery in Eritrea in relation to the development of the Bishop old mine that was developed by Nebson subsidiary. And Nebson brought a range of preliminary motions in this case. And this is very typical of this type of litigation to try and get it dismissed at the early stage before it's heard on the merits. They brought a motion for form non-convenants to stay the proceedings on the basis that Eritrea was the most appropriate jurisdiction to try the case. And they lost on that. They brought a motion to dismiss the case for active state and a motion to strike the case because part of the plaintiff's claim was based in customary international law. They were trying to, they want to create a new sort of law or cause of action based on the prohibition against torture, the prohibition against forced labor and the prohibition against slavery. Now, in the BC courts, the Supreme Court of British Columbia dismissed all three of the defendant's motions. And when we got to the Court of Appeal, the Court of Appeal agreed. And so Nebson appealed two of those motions up to the Supreme Court of Canada. And so the two of the motions that they appealed, the first, well, the second one, but the first one I'm going to mention, was that the claim should be partially, should be struck because there's no cause of action to partially base the claim in customary international law. And this motion, of course, raised a very important legal question of whether these peremptory norms, which are automatically part of the law of Canada as customary international law, are actionable in themselves. The second motion that was raised was the active state motion. And that's a common law doctrine that actually has never been applied in Canada in the Canadian courts, that is basically this idea that you should not hear a claim when there's an act of a sovereign state that is implicated in the claim itself. And so what they were arguing was that it's Eritrea's acts that were against the law in this case, and the court should decline to hear the case because of that. But a number of arguments that were made by counsel in this latter motion on active state were not only unconvincing, but seemed, at least in my view, to be close to the line of mischaracterization of international law, of domestic case law, and even of the case that was being pleaded by the plaintiffs. So for example, they argued that the case should have been dealt with in international tribunals like the International Criminal Court that the plaintiffs should have brought a claim against the state in the International Criminal Court. Well, of course, there's no jurisdiction of the court to try states, and individuals can't bring a claim in the same way. So I won't go into the other details, but I'm happy to talk about them later. These types of lawsuits are very important because access to justice for victims of business-related human rights violations are an ongoing global concern. And there are a few mechanisms that, through which victims of these violations can actually seek redress, and bringing claims in host states, like Canada, for example, against extractive companies that are Canadian, is one of the only means for holding these companies accountable at this time. Now the problem with these claims is that they're a host of very well-known practical, legal, and also structural barriers to bringing them. So for example, practical barriers would include the cost of litigation, the lack of legal aid, difficulty in finding a lawyer to who can bring these claims. There's no specific cause of action. Some of the legal barriers for this. So you have to try and fit the harms, like torture, slavery, and forced labor into torts, which is a bit difficult. They don't always represent the harm that's been caused. Of course, corporate structures pose a problem. The doctrines of separate legal personality and limited liability to the liability of the parent corporation. And there's always the question of jurisdiction. Is Canada the appropriate place to hear this claim? Or should it be more appropriately heard in another country? And transnational, in terms of structural barriers, the plaintiffs, of course, are often very vulnerable, marginalized people. They can be refugees, women, children, indigenous peoples from other countries. And transnational corporate groups, of course, are able to kind of play with the jurisdiction because they operate across jurisdictions through different legal entities. So the other thing is that defending these motions is very expensive. So you spend the first few years trying to keep the claim in the courts, and it can be very costly, particularly when these motions are brought all the way up to the highest court of the land. So I want to kind of look at four questions. I'm hoping I have more than five minutes at this point. Four questions. First of all, does the conduct of the lawyers who represent extractive companies as defendants in a civil suit like this comply with the traditional view of how lawyers should conduct themselves in adverse area of context? And then do the guiding principles on business and human rights and the sustainable development guidelines speak to this responsibility and require lawyers to adjust their conduct in these types of cases? And then what are the existing constraints on the model of advocacy, which is the zealous or resolute advocate? And is there a case to be made for adopting a different approach to these types of claims and modifying this resolute or zealous advocacy model, drawing an analogy with other approaches that have been adopted in Canada, for example, with respect to litigation by governments against indigenous peoples, and also litigation involving self-represented litigants. So that's a lot to try and stuff in. So I'm just going to just make a few points on it. But first of all, as many of you probably know, if you've studied professional responsibility, the dominant model of adversarial lawyering is one of the zealous or resolute advocate. And so what does that mean? Well, there is a case from 1820 defending Queen Caroline from a charge of adultery that was brought by her husband that says an advocate in the discharge of his duty knows but one person in the world, and that person is his client, to save that client by all means and expedience and at all hazards and costs to other persons and among them to himself is his first and only duty. And in performing this duty, he must not regard the alarm, the torments, the destruction, which he may bring upon others. So that is a very, I guess, zealous advocate that is captured by that, but it has been cited by the Supreme Court of Canada. And it is kind of recognized in the professional, the model of professional conduct. This idea that the lawyer has to place their interests, the interests of the client above those of other people and the interests of the client above his or her own or their own. So if we look at the Federation of Law Societies model code of conduct, we can see that this is reflected in there. In adversarial proceedings, a lawyer has a duty to raise, duty to the client to raise fearlessly every issue, advance every argument and ask every question. However distasteful that the lawyer thinks will help the client's case to endeavor to obtain for the client the benefit of every remedy and defense authorized by law. So the next question is, where do the guiding principles and the sustainable development goals fit in? Do they impose some sort of responsibility on counsel defending corporations in these types of claims? And what is the relationship between these guidelines and obligations of professional responsibility? Well, we've heard from John Sherman that law firms do have some responsibility to respect human rights throughout their business activity. But in the context of lawyers as advocates, it seems that this seems to be, there's a different perspective and for some very good reasons. But the International Bar Association practical guide on the guiding principles says that nothing in the guiding principles or in the practical guide should be read to restrict the rights of clients to ensure a robust defense for such claims or to seek judicial determination of human rights related issues. And if we'd look at the guiding, the sustainable development, sustainable SDGs, yes, the SDGs, member 16.35 minutes, okay. It calls on all actors to promote the rule of law at the national and international levels and ensure access to justice for all. So how do you balance then the international right to an effective remedy, which includes access to an effective remedy? So getting to the merits of the case potentially and an effective remedy and getting an effective remedy. And then the right of businesses to independent counsel when they are charged with these types of, or sued for these types of abuses. Well, there are certain constraints in the professional responsibility guidelines. Counsel are supposed to discharge the duty by fair and honorable means without illegality in a manner that is consistent with the lawyer's duty to treat the tribunal with candor. However, also a lawyer should avoid and discourage the client from resorting to frivolous or vexation, vexatious objections. And when acting as an advocate, a lawyer must not knowingly deceive a tribunal or influence the course of justice by misdating facts or law. Now I'm not reading the whole, I'm just sort of reading the things that I think apply. Or knowingly misstate the substance of an argument. So it's hard to say based on how the counsel conducted themselves, do they fall foul of these rules or not? It would appear that they were really raising fearlessly every issue and advancing every argument and asking every question. So even though some of those arguments might be close to the line. So there are some people who've thought a lot about the adversarial system. And Tim Dare has said that there's a distinction between a zealous lawyer and a hyper-zealous lawyer, where a zealous lawyer is someone who's partisan in the sense that they bring out all of their professional skills to bear upon the task of securing their client's rights, but under no obligation to pursue the interests that go beyond the law. A hyper-zealous lawyer is concerned not merely with securing his client's interests or her client's interests, but to pursue any advantage obtainable for her client through the law. So it's still not clear whether or not the Nebson counsel, as I saw it, actually would be considered a zealous or a hyper-zealous, perhaps hyper-zealous, but that doesn't bring us really any closer to the question because it would still be hard to find them in violation of the professional rules. So I think a way forward rather than trying to look to the guiding principles and the sustainable development goals to stress different ways of acting for lawyers in this context of litigation would be to look at the legal and moral obligations on Canada and states like Canada, including their provincial and territorial governments, to provide an effective remedy for foreign victims of violations of human rights that are perpetrated by corporations from that jurisdiction, so Canadian corporations. And this would include removing some of the obstacles to bring these types of claim, creating a cause of action beyond a traditional tort, to reflect things like grave violations of human rights, for example, asserting that Canada has jurisdictions over the claims and maybe creating a rebuttable presumption that the Canadian courts are the appropriate jurisdiction, like they do in Australia. Introducing legislation that would prevent motions like active state being brought or a commodity in cases where a Canadian extractive company has been operating in a foreign state. In light of the importance of access to justice, we really, really still need to question whether the model of robust adversarial litigation is appropriate. And I think we could draw some analogies from changes that have been made in terms of litigation involving indigenous peoples and the attorney general is directive in that regard and the guidelines that have been produced by a variety of law societies as well as Supreme Court's decision in Pineda and John's on the obligations of courts in dealing with self-represented litigants and also the discourse around the conduct of lawyers in these contexts and sharp practice. In transnational corporations, transnational litigation, we're dealing with some of the most vulnerable and marginalized plaintiffs and I think that there is an argument that we do need to treat these differently in this context. Thank you very much. Thank you very much, Penelope. Our next speaker is Larry Kettabacker whose talk is sustainability, corruption and compliance, the role of the lawyer in institutional frameworks and corporate transactions. Larry is the W. Richard and Mary Eschelman faculty scholar and professor of law and international affairs at Penn State University. His work touches on the regulation of multinational corporations, sovereign wealth funds, transnational constitutionalism and the convergence of public and private law. He teaches a semester long course on corporate social responsibility that seeks to align issues of sustainability with those of philanthropy and human rights. And he's also associated with a coalition of peace and ethics and runs an academic blog called Law at the End of the Day which I highly recommend. Thank you very much and thank you very much for sticking around. John and Penelope are impossible acts to follow. So rather than try to do that which I am not going to do, I'm gonna give you eye candy, not me, this. So as I try to talk through some issues that are going to be much more abstract as you get disoriented or bored or just look at the pretty pictures and try to figure out what I'm doing. There's also, there's a method to this madness as well. I do a lot of work in semiotics and that teaches us, if anything else about the critical importance of signaling in pictures. And a lot of times what you say and what you see can be quite distinctive things or sometimes they can align. And as I walk through this presentation I want you to think about that in terms of the pretty pictures that I put up or the pretty amalgamations of colors that you're going to see. All of which ultimately relate to the fundamental questions that we're talking about which is ethics and ultimately the fundamental question of ethics is a question of your own sense of self and your own autonomy within series of overlapping complex relationships. And that's ultimately where we're going to not to slavery to a particular law or code not to obligation to a particular master who may or may not be paying you or enough but to yourself. And that ultimately is where we're going to start. So I've now shown you three pictures. You've probably are trying to figure out what they are. And three pictures, all of which deeply go into structures of ethics. None of which go to the structures of ethics that you might have wanted us to start with which is probably the most narrow and from my perspective the most irrelevant of them because they're merely issues of compliance and that's the professional rules of conduct. We all love them and we all abide them but that's hardly the beginning of what you wind up doing or being as an ethical lawyer. I've shown you pictures of the old ways in Africa and African thinking about ethics and the relationship of people to their surroundings. I've shown you pictures. I've always, I love the top one of Moses and Paul. They're cousins separated at birth in a sense, frenemies but coming from a very different tradition and of course a condom blaze ceremony for Yemenia in who is the manifestation. I don't like using the English term, the manifestation of there's a lot of ways of looking at it but of the female of the oceans of the vast underlying the Chinese yin in the context of figuring out who and where you are in their relationship and you're going what is this crazy man doing? Talking about all of this stuff, how is he going to bring this back into what I have to do when a client calls me up and asks me to do something that's really kind of smelly. We'll get there, we'll get there but I want you to start thinking about this because when you start talking about ethics you generally, you, me, I generally take for granted the starting point and so the first couple of slides is to remind you that the starting point is actually quite contingent and not only contingent but the starting point is multiple and that one has to be very careful about how one aligns one morals and ethical starting point with what one does in relation to oneself, to one's clients, to one's adversary, this state and stakeholders and so when you look at ethics, you're looking at right conduct but right conduct is unmoored until you moor it and you either moor it because you must or because you should or because you want to but in that mooring of right conduct I could have taken you back to Justinian's Institute which is where I like starting this stuff but students just go crazy if I'm talking about a seventh century Byzantine emperor and I just lose you so I'm doing it this way instead, right, it's right conduct but when you think about ethics is right conduct you're really talking about a number of things and I just put a couple of them up I'm not gonna read through this there's almost nothing more excruciating than reading your own PowerPoints you can look at this as I babble on about this you're looking at ethics as norm, right you're looking at moral principles and value systems including those which in developed states we've traditionally tended to marginalize but which are vibrant and important and in global production may actually predominate in the way in which you think about not merely conduct but issues of sustainability issues of community and ultimately issues of human rights so we're looking at ethics as norms and moral principles this is the happy land that you all tend to live in in the university and the law schools which as you can see for me is just a tiny component of what you ought to be looking at as an ethical lawyer and that's ethics as compliance the mandatory obligation of a particular set of behaviors that's usually mandated by the state or by your professional organizations or by the state through your professional organizations we can quibble about how all that works, right and it goes to the structures of compulsion and implicates the question of scope and especially important when you are working beyond your own particular compliance unit dealing with issues of ethics beyond the reach in your case in Canada of the Canadian rules of professional conduct you're working in Nigeria, you're working in Bangladesh you're working in Honduras whose ethical mandatory codes ought you to be looking at as and when you advise from whose perspective and so this gets complicated as well and it brings us to the next point which is ethics as responsibility not merely as codes, not merely as self-awareness not merely as systems but actually as a system of responsibility intranormative communication is at its heart and the responsibility to first become aware of it and then to figure out whether to what extent to align it and then especially if you sit and eventually all of you will if God willing or some reasonable facsimile thereof you all wind up sitting somewhere as an executive vice president of compliance or a CEO you're gonna have to worry about how you implement all of this thing and make into a coherent process when you are presiding over complex systems of combinations of control and contract that manages large global production chains all over well I'm being redundant but global production chains all over the place right and then ultimately you're looking all of this becomes ethics as a duty extending beyond compliance if you think about nothing else after I get done and I'm only at the beginning of the slides but I'm probably not gonna finish them but anyway, so I'm gonna give you the clue the only thing you should think about at the end of this is when you think about ethics you think about ethics as a duty rather than as a compulsion to what extent does it or ought to extend beyond compliance whose ethics are you applying whose duty to whom do you have a duty and how is it manifested and it's only in that context that you can understand your relationship as a Canadian lawyer to the Canadian professional responsibility code or mine is an American lawyer to the professional rules that to which I am responsible for but only in part given the nature and scope of my own duties and my own representation right and all of this of course becomes clear I'm not making this stuff up lawyers who are making money and people who are making money off of lawyers in this case I just pulled this up there's a million of these this is the corporate legal operations consortium remind you that what used to be the simple thing that we like to teach you in law school about lawyers and their relationship with clients has now become not only a business but it has become a web of objectives and relationships that far exceed the simple thing I want to exploit this person and you say okay it'll cost you $10,000 in a retainer and I'll figure out a way to do it of course and hopefully tells us that that's a bad thing and we know that there are ways of doing this well and John tells us I'm gonna be fine but how you deal with it well now it's really part of a lot of stuff we're managing we're vendor management I don't want to go there but I do I can't resist pointing out the ethics of data and data management you are no longer just serving a client you are managing huge streams of data especially when you sit at the apex of global production chains and your ethical obligation to them may well be legal but extends well beyond it these are all things you wind up having to think about and so the role of the lawyer is not the simple minded I give you money and you sue someone it's now embedded not just geographically across spaces but it is embedded deeply in a very transformative in the way in which law itself the role of the lawyer within economic activity as a gatekeeper or not as itself been transformed over the course of a long time now you have to figure out which one you are in all of this y'all like to think of yourselves as this dude in the hat but you may well be these folks over here who are about to get their head sliced query this maybe should stay with you so what is the role of the lawyer right you normally look at sources and we've already talked this to death I just noted again I'll make the power points available to everyone these are hot links and you can go and look at them if you are if you're interested in the American sources my guess is that you're less interested in the Canadian but it's what I do so there you go you can take a look at them these aren't as simple and straightforward as you might think you've got and we've already mentioned they sell it I got five minutes we'll see if we can do this right you've got the zealous representation scope of representation but you've got a role as an advisor because not only are you representing your client but you are an advisor and you are a social agent as well and even the mandatory compliance rules of ethics will layer your response so what kind of challenges do we have I'll do this for five minutes and then race through the rest it's all just derivative so here are your challenges right compliance and risk management and ethics are you looking at business risk are you looking at legal risk do you have the choice anymore in a world in which business risk may inevitably lead to legal risk it's hard for me to tell the difference anymore and it's hard for me to figure out in terms of ethics whether there's a different ethics for them whether there's a unitary ethics or whether the ethics changes in the context of in the context of where and to whom I'm giving advice the gatekeeper autonomy and multiple sites of ethics we've talked about this again the ethical obligations of clients versus the ethical obligations of lawyers you are not bound by your client's ethical obligations but neither are you free of your own and they may be different and that may require a mediation of multiple points of ethics down a production chain across representational boundaries and the like which we tend to ignore which causes a great set of conundrums like the scope of representation issues it's again defined by the boundaries of legal forms rather than by control relationships we have wind ourselves to death about to who we represent in terms of we represent the corporation and the subsidiaries do we have ethical obligations with respect to those in a control relationships from the perspective of human rights and sustainability the answer is increasing the yes from the traditional perspective of the proper deed role of lawyers and ethics the answer would be a horrified no that's changing you ought to think about it the limits of agency at what point does the lawyer's role change from that of advisor to principal if you're in California that becomes a live issue all the time because one wrong word, one wrong move you stop being the lawyer and you are now a co-conspirator in other places you have protection that changes and it changes even more where human rights and sustainability imposes positive obligations on you with respect not only to your principal client but with respect to the stakeholders who may or may not have an interest in the actions that ultimately produce harm somewhere within the field of action that may ultimately impact your client how does that work the difference and this is especially important in the context of complicity and corruption and becomes tinged with public functions when it's a government that you're dealing with at the wrong end of the ethical conundrum and then of course my big thing is the lawyer is a socially moral agent you are not in the business of being a tool you are a socially moral agent who is autonomous or ought to be autonomous of those who pay you money or those for whom you work for no money and that has significant implications well beyond the role of the simple role of compliance and so what does that all mean in terms of what I'm looking at sustainability and what I've done here is taken all of these abstract issues and then apply that in a series of concrete situations of first is sustainability there are a number of ethical issues which goals I can tell you that for example the Norwegian state-owned enterprise hydro will take a look at this reduce these to five and then rank order them and then allocate resources on the basis of those that they have chosen which align with their business model and the politics of the Norwegian state I've got one minute we'll do this right which goals are they ordered do they align with business and legal risk interpretation we've got corruption one of my personal favorites and I'm sure you all are following this baby here but this becomes even more interesting that the labeling case not only because it's state corporate you've got inter-corporate you've got the effectiveness of compliance system and complicity what we talk what we fail to talk about in corruption cases it's complicity and then for me the big one that I want you to focus on when you're looking at corruption everyone loves talking about corruption when you are giving money to the Gaddafi family no one likes talking about corruption when you pay off your suppliers intra-corporate inter-supply chain corruption is as ethically pregnant as the thing that is the subject of public law ought that to have ethical implications as well I think the answer is yes my favorite picture y'all know who this guy is if you haven't seen this movie you must right and the question is how you work it in institutional frameworks again you're looking at the accountability you're looking at monitoring and ultimately in corporate transactions how does this all work when you have ethics silos when you have human rights that may be pushing you in a different direction and then sorry this is for Sarah how does climate have to do with all of this and here you have an ethical obligation to act proactively the ethics rules are not a shield they are a sword that has been put in your hands and climate and sustainability has made that absolutely clear you're going to see it five years from now but I can tell you right now that that is the case and I'll end with this if I may the summary is just very simple and again this is the only other thing that asks you to remember from all of this stuff lawyers are not algorithms lawyers are not algorithms you are instead moral beings who are deeply embedded in the societies you serve you should wake up every morning and recite that sort of like a catechism to remind you as you get dirty over the course of the day that that is you you are not an algorithm you are not a tool you are a moral being the nature of that service for which you get paid is bounded by the expectations which are autonomous of those with which other actors are burdened and to that extent lawyers can't see themselves as a moral tools but only and they can be utilized by social actors to protect and advance their interests but only within the constraint of the social order to which they owe their highest you owe your highest fidelity within the bounds of that fidelity everything is possible outside of the bounds of that fidelity and this is the ultimate goal of ethics outside of that of those boundaries nothing is available and those boundaries are defined by the social orders not by your clients right and thus the ethical duties of lawyers flow to clients flow to clients and not from and from the social order I leave you with that amount of time thank you very very much thank you Larry from the I can't multitask from Larry's excellent theoretically dance in some ways talk we will move and Larry is like totally my favorite we will move to Brigitte who is also my favorite I'm incredibly grateful actually to Brigitte for coming here she is her talk is entitled the corporate social responsibility of the legal profession European perspective Brigitte is an of council at Dentons Europe LLP an associate professor at the University of Bremen where she in international business law and business ethics and the focus for her current practice research and teaching is on business and human rights CSR and international environmental law she was previously a partner in one of the leading German law firms in the regulatory and environment department and she is chair of the compliance and CSR committee of the German Lawyers Association past chair of the CSR committees of the Council of Bars and Law Societies of Europe and the International Bar Association she is also a member of the CSR in anti-corruption and energy and environment commissions at the International Chamber of Commerce I'm incredibly grateful to Brigitte for coming here to share the European perspective this is something that a number of us have actually spoken about at in Geneva at the Business and Human Rights Forum which is where many of us actually met for the first time and so Brigitte, thank you so much for coming and sharing your expertise Yeah, thank you so much, Sarah for this kind introduction and invitation to come here I'm speaking today with the attorney's hat on and I think it will be and I think this is was your request, Sarah that it should be also kind of be a specific position adding to complementary to the positions we've just heard and it should be also a summary of what we have discussed at the Council of Bars and Law Societies in Europe John said, good corporate lawyers advise clients on what hard law says what they must do and but great corporate lawyers advise clients on what soft law says what they should do and a brilliant lawyer she, that's of course a she advises clients in addition on the intricate relationship between soft and hard law why is she brilliant because as an attorney she cannot refer and also as an in-house counsel by the way she cannot refer usually to a disclaimer like many CSR and Human Rights consultancies do for example the Global Reporting Initiative which exclude any professional liability for any consequences national hard law might attach when the client follows religiously the great corporate lawyers advise on soft law what do I mean I'll give you an example British courts heard a number of cases recently in which the complainants alleged that a British parent company should be held liable for environmental damages caused by a foreign subsidiary because the parent has a duty of care vis-a-vis the person's damaged by the subsidiary in the most recent case Longowe versus Vedanta reached resources PLC the British Supreme Court held that a duty of care which establishes the competence of British courts is conceivable because the parent company stressed in its sustainability report that it steers and controls the compliance with environmental regulation in the entire corporate group into area through uniform CSR policies and intensive trainings throughout the group and substantial influence on the management of the subsidiaries this is however what the UNGP's due diligence scheme requires if you were the great corporate lawyer who advised the client to do exactly that you should better contact your professional liability insurance I recently had a case in which a chemical multinational enterprise drafted a human rights policy in which it promised to ensure that it will neither cause nor contribute nor be directly linked to any negative human rights impact in its whole supply chain again, this is what the UNGPs recommend the multinational enterprise had approximately 100,000 first-tier suppliers alone this is mission impossible why? because it will never be capable to control 24 hours a day and seven days a week the entire supply chain in order to live up to this promise such a policy could invite claims against the company based on unfair competition like the famous Nike case and comparable cases in Europe in addition any chemical company has a lot of negative human rights impacts they are however not human rights violations when they are allowed by national laws and state permits if you're an environmental lawyer advising such a client to obtain a permit you're simply doing your job but in terms of the UNGP you might be considered to be contributing to negative human rights impacts even if the client does the utmost to avoid the emissions this raises the question and John and I had intensive discussions on that whether the UNGP and other CSR norms can be applied one-to-one to lawyers and law firms and the answer also reflected in the IBA Practical Guidance on Business and Human Rights for Lawyers and in the guidances of the Council of Bars and Law Societies of Europe the CCPE on CSR is no why? also in principle there is agreement that the legal profession can and should make significant contribution to human rights and sustainability the devil is in the detail there are challenges and unresolved questions such as is advice on CSR soft law norms legal advice is soft law law in that sense may or must lawyers advise on CSR soft law is it covered by their professional insurance at all what kind of CSR responsibilities apply or may be imposed on lawyers and to what extent by whom, by their clients by professional organizations by the state do they have to be modified to comply with professional confidentiality rules and with the human right to access to justice how far can there be responsibility for clients behavior taking into consideration the independence of the legal profession which is indispensable for the administration of law what about conflicting codes of conduct of law firms and their various clients the legal profession is called upon by professional organizations like the IBA the CCPE and National Bars as well as by their clients to bear responsibility for human rights and the environment in four capacities we've heard some of them already one as enterprises two, Larry mentioned that as gatekeepers three as supplier of services and four as advisors let me touch briefly on these four aspects first law firm as enterprises law firms are enterprises in the sense of all international CSR norms such as the UN Global Compact, UNGP OECD guidelines on multinational enterprises the European Commission stipulated that compliance with applicable laws and regulations is the minimum responsibility for lawyers this includes compliance with bar rules the CCPE charter for off-court principles of the European legal profession and the code of conduct for European lawyers covering only the economic and governance side of lawyers responsibilities partly further spelled out by guidances for example on anti-money laundering anti-corruption or insider trading some law firms have signed the UN Global Compact some start to develop CSR policies or publish an annual CSR or sustainability reports dealing with their internal issues such as employee health and well-being gender and diversity issues and environmental enhancements pro bono advice and activities are an established element of law firm CSR particularly important for the human right of access to justice in countries which do not have a legal aid system two lawyers as gatekeepers of their clients there have been in the past already intensive discussions whether and to what extent lawyers should be gatekeepers of their clients this can undermine the lawyer's role as trusted advisor concerning anti-corruption and anti-money laundering a gatekeeper role has been acknowledged and law firms run know-your-customer policies regarding the Sarbanes Oxley Act Larry you have published on that the gatekeeper role was hardly disputed between the US government and the European bars now we see NGOs raising far-reaching duties for law firms to examine, influence and sanction a client who has or may have a negative human rights impact it is an established rule that a lawyer may not aid and abet a client in illegal behavior the claims of NGOs to hold lawyers accountable for negative impacts on human rights caused by their clients or even the opposite party to which they contribute or are directly linked through their legal advice in the widest sense go however much further the CCPE and IBA held that such wide accountability can conflict on the one hand with the role of the attorney as advisor and supplier of services to the client and on the other hand the attorney has a crucial function in the day-to-day operation of the rule of law as advisor and supplier of services the attorney depends on the client's definition of the scope of work the attorney has an advisory role which means that the client may or may not follow its advice if the client asks the attorney to restrict her advice to hard law for example whether the operation is compliant with applicable environmental laws there is little that the attorney can do about it in addition the attorney has a crucial role in the promotion and implementation of the role of law one of the basic human rights is access to justice which means that every person is entitled to be represented by a lawyer and that the lawyer has a role on his own distinct and independent from the client's conduct due to this official function the attorney is subject to specific bar regulations in particular to confidentiality requirements the attorney client privilege limitations regarding the termination of the client relationship and under certain conditions even the obligation to represent a client in court even massive violators of human rights such as mass murderers are entitled to legal representation and a far fair trial three law firms as supplier of services as supplier of services lawyers and law firms are increasingly asked to sign the client's code of conduct as part of the retainer agreement the ccpe discussed a number of crucial and yet run unresolved questions one how do you avoid becoming subject to a multiplicity of potentially conflicting policies of various clients take mother law firms I'm I'd hear two dentists with tens of more than 10,000 lawyers and the largest law firm in the world if every lawyer has only 10 clients dentists would be subject to 100,000 client requests to sign their code of conduct usually applicable to all firm members and all matters world wide this is obviously not feasible that's a number of law firms make their life easy at least at first by following a we sign everything strategy the better strategy is however to develop a CSR policy on your own adapted to the specific requirements of the professional role and ask the client to accept it as equivalent to its own policy second question is a client request to audit all the law firms compliance with his code of conduct feasible at all such request to check the law firm's books and records may contradict confidentiality rules it is not unusual that the client as a law firm to sign its code of conduct containing such nice provisions like no excessive working hours which conflict on the other hand with the client's demand to have ground the clock negotiations or amend drafts over the weekend the law firm is usually in an impossible conflict and technically speaking in a breach of the retainer agreement and will usually have to disregard the code of conduct to get the deal done for and last point lawyers as advisors we touched already briefly on the role as law of lawyers as advisors and their unique position to advise on soft law and its hard law implications and consequences CSR triggered in Europe and in Germany fundamental questions such as is advice on CSR norms legal advice is soft law law in that sense may or must lawyers advise on CSR soft law is it covered by the professional insurance these questions are not solved yet in Europe and in Germany Anglo-American insurance policies often cover risk management and advice on CSR is considered to fall into this category European policies however usually don't which triggers the so far unresolved question is advice on soft law legal advice is it law or otherwise part of the usual attorney's scope of work as defined by the bar associations in Germany we are discussing with the insurance companies whether separate coverage is needed in order to advise on CSR norms without insurance coverage and taking into consideration the uncertainties connected with the new area of CSR soft law it is quite risky to render advice another question also still unresolved is whether attorneys may or must advise on CSR soft law this is a matter of the definition of the scope of an attorney's activities usually defined in the bar rules may most likely yes but must if CSR soft law develops a standard of care that informs tort or criminal law most likely yes if it is separate like in the OACD guidelines on multinational enterprises and NCP procedures the lawyer should clarify in the retainer agreement whether such advice on soft law shall be covered it might be advisable to limit the lawyer's liability for CSR related advice to a certain amount taking into consideration the significant uncertainties connected therewith the CCP and the national bars are called upon to develop further guidance on these issues and provide clarification in the bar rules it is however a slow process last not least because there is intensive resistance to accept that in a globalized world the good old national and EU laws and international treaties are not sufficient anymore to steer transnational issues such as global business, digitalization and climate change in addition the political proposition of the bars of the European bars no more rules on the bar is widespread thank you very much thank you very much to all our panelists there's a lot of information there and just to note and I think why I really wanted to have this conversation here this is very much a new and early stages conversation globally and really not something that we have reflected on very much at all in the Canadian context a little bit here and there and there's obviously a lot to think about at this point let's turn it over to you and see if there are any questions maybe I could get a sense of if there are a lot of questions a small number of questions there's a good number of questions alright we're going to we're going to dive into the questions then and then possibly at the end I'm going to ask the speakers to offer some reflections themselves on what they heard from the others so maybe I'll start at this time just her yeah well, and now for some new money my name is Salo de Ancio from the University of Iowa and I think my question is on the table you all address wonderful different elements regarding the legal profession I would just like to see many of your calls and I admire your ethics as doing the last part in a way not only for the professional but also for state attorney for delegating the more rightful ones right at the end I think from a human rights perspective from my perspective I see that this is fostering a different view of how the law is what the law should be and how can you do this or are the challenges that this presents for example in the Canadian context where two weeks ago the law society of Ontario revoked the rule to promote diversity in its bar manner so this presents a we're talking about challenges on how to promote diversity how to see our our legal profession not something as I will defend my client as how this is over which is a statement that the attorney of our Chevrolet Dexato made in the case that he here in Canada when in practice we're seeing that law societies are more reluctant or are trying to revoke or consider putting to debate the the relation of this site of norms like more diversity inclusion in different views of the law thank you thank you for that question I'm just going to because not all of the panelists are aware of this there was this is some development under the Ontario um bar so they changed the name of it from the Law Society of Upper Canada and I can't remember what it's actually called now but it's the Ontario Law Society of Ontario I should know I'm a member thank you Law Society of Ontario um but there was an initiative to have um to have as part of the code that there would that law firms would promote diversity within the profession then there was an election and complete change of people involved this was revoked and what was put in place with something that is very much about what lawyers will do is respect Ontario human rights law which I think gets precisely to the point in a sense of some of our conversations Larry I think the question was possibly aimed at you more but any general any any would anyone like to reflect on the ethics piece or all right all right all right yeah um this all right there's an easy answer there's a harder answer um the easy answer is grounded in an orthodoxy of views of what the moral requirements of a society ought to be in which case you're absolutely right and the duty must be to further it but here's the problem with multi-directional and multi-vector moral and societal orders they sometimes don't align and I've got a problem right and I've got a problem if in fact we are committed to openness and diversity and we are committed to the notion that there is no single moral order whose orthodoxy can be ascribed down to the most granular level then we have to think about the ethics of conversations among them in this case this is not a great case for that because what they've done is this I don't know you're all your business but it when it appears from from this is that you're making a great principle you've gotten rid of it and you say ah there's no principle instead what we're going to do is is comply with the law whatever that means but effectively what they're saying is we reject the principle but we're not putting anything in this place right and in from an ethical perspective of duty that's wrong but and that's the harder part of the answer what happens if there is a counter that indeed the notion a deeply felt and moral view that the notion of diversity is itself divisive and that the that diversity is itself symptomatic of a larger moral issue to which we ought to work at rather than to the fixing of its symptoms by counting heads now you've got a different problem right and where you've got multiple moralities each of which might require respect and now that they sense a different perspective a different form and now you're going to have to deal with the the art of communication for which I'm going to answer and tonalty I think wants to no oh no oh okay yeah all right okay I want to respond to that yes one one traditional comment in Europe I think your question correctly we're just moving in the opposite direction because the one of the basic question is what does respect of human rights mean and break that down into specific issues so we are discussing at the ccp you know which I would have a kind of a guidance specific items on diversity just to break it down and make it more specific and complete next question so this is a question for Larry and I think I know what you're getting at but I'm curious to hear you expand on it you said in the climate context five years from now I think it's ethical roads ethical norms would be a sword and not a shield I'd be interested to if I understood you correct it I'd be interested to hear what we mean by that okay all right so I'm putting on my hat as a prognosticator which means that I'm going to be 120% wrong that's okay all right all right so when you're dealing with climate what you're dealing with is if you take it all and again I'm going to put my foot in it so please forgive me and you all can be in that what you're seeing ultimately is a radical transformation of the way in which we understand both social organization and the role that laws and social actors play within it moving from perspectives of individuality of division to one of interconnection and it's not for nothing that the sustainable development goals include 16 very intimately interconnected things you can't take one apart and then deal with it and say you solved it that requires a radical reorientation of the way in which not only social and economic and political actors approach the issue of their activities but the way in which lawyers approach their advice to clients much more collectively much more holistically you cannot solve a problem by cabining it and it's a notion how do you solve the problem of moral responsibility where you live in a regime where in order to minimize my liability in a cab company I can create a holding company and then incorporate each of my 16 cab companies so that I will never be exposed to more than $10,000 as a famous case in the U.S. more than $10,000 in liability for each of my cabs right climate is really the it's a metaphor for a significant change that isn't just about climate there's the way in which we order our society and that will have ramifications everywhere including basic ramifications in all of our core areas everything from asset partitioning and the protection and the compartmentalization of liability to the way in which we understand separation of powers and cooperation to the way in which we understand decision making to the way in which we understand property so I think I cannot say it or you do not know No, if he did not know I will try and follow Larry but just to say that there's an interesting quote from David Lubin who was talking about professional responsibility and considering all the moral arguments in favor of the adversary system and one of the things he says is that when serious moral obligation conflicts with professional obligation the lawyer must become a civil disobedient to professional rules and I think that maybe that captures what will happen with climate change where if we do not progress in our in our ethical approaches at you know in law societies etc that we will have to then have lawyers who are actually starting to say because when you have these serious moral questions or serious moral obligations people are going to have to be starting to step out in order to address them Well, let me jump in on this one because I didn't have an immediate answer to all the questions that I have had with you but I think that it's important to recognize that the role of lawyers and businesses has changed and has changed over the years and the old paradigm was that if you had a really serious problem involving strategic issues for the company you go to your house you go to a big law firm and you get the advice from the top lawyer that's changed over the last 10 years 15 years and it's the locus as power has shifted to the in-house council Ben Heineman has written books on this The Harvard Center for the Legal Profession has done really good work on this and what this means is that now for the very best and brightest business lawyers are expected to act as partners with senior management and the board managing strategic risk for the company I was an in-house lawyer and I would find myself at a board meeting and offering advice every once in a while I'll say is that legal advice is it am I you know am I just shooting off my own opinion or am I trying to take my role as a lawyer and then looking forward to climate change issues as a potential risk five years 10 years or a year in the future and what am I how do I factor that into my legal advice or am I just simply talking about what's in the best of the company it's very hard in that situation and that is now the paradigm in which lawyers the ones that businesses pay attention to find themselves and I think that maybe kind of what Larry's is getting at but I won't put words in Larry's mouth because that's a problem I don't I think there is also in the Paris agreement I think you open up also the little legal side is opening up to have this kind of transnationalization of law that it's not the law and legal instruments anymore which are relevant but it's a whole array of instruments and a whole array actually of steering mechanisms and I think this is the point where lawyers have to adapt to this kind of new and wider definition of law or alternative instruments so thank you for wonderful conversation so our last speaker summarized the four roles that the partners spoke about of lawyers so as enterprises gatekeepers suppliers of services as advisors and I want to suggest that maybe that is an incomplete list for some problems and in some contexts so let me give you some complete examples in Nigeria lawyers sue Shell in the ECHO us the economic community of West Africa community called of justice even though it's an international court where only where we're not in super state not a multinational operation why don't they be doing that they're basically going against what the problem level says in East Africa lawyers use a trade court that has no jurisdiction of a human race to bring the types of cases that used to kind of have been brought in Canada in other places now one might say that those lawyers are really in violation of their professional responsibilities because they're most not allowed to do that but surprisingly in each of those contexts those lawyers are actually doing a very well trodden very well trodden by the lawyers of all of it for some problems in some context where they challenge the structure because it doesn't afford it what they'd like to achieve and so I'd like to suggest that perhaps there's another model of previous wiring that crosses boundaries and in East Africa in most of West Africa this is actually showing success the lawyers of which US Africa for that court to be a human race cases not against international operations although I can tell you there are many benefits for bringing a case against shelf in the upper West court as opposed to the Supreme Court of the United States in East Africa that court has now jurisdiction has opened up in a way that never opened up because Mr. Swaz is not interested in going there so I'd like to suggest that there are other the many other instances in which rebellious wiring as a model should be embraced and that we shouldn't sort of just be confined with the niceties of the rules of professionals supposed to be which are coming against by the way thank you reflections so I think that's a really very interesting of points that you made and and very what the lawyers have done there I just wanted to kind of bring up the issue of what is a serious moral moral issue that might require the lawyer to be disobedient of this question and I think you know climate change is a very obvious one areas becoming a very obvious one now because it is considered an emergency that will affect the whole planet but there's also I think the issue of just the human rights impact of business activity which which includes you know a lot of the things that contribute to climate change and and not you know you know assisting corporations to act in ways that are unsustainable and I think that that has to be you know for a rebellious lawyer or something that they need to think about as well is this another serious moral issues do mean and I don't know I don't you know I haven't really thought through how you would how you would sort of connect that with professional responsibility but but I think that that that is another context that is sort of more under the wire because we don't see or hear about it every day we aren't witnessing the changes in the climate you know around the country and around the world you know in the context of business and human rights for example and the the types of uses and grave abuses that are that are happening if I could follow up on that because it makes me think of something that has to come up in the discussion so far relating to professional responsibilities of lawyer and it relates to the rebellious lawyer it relates to the point that Penelope just made and it is litigation okay it's generally you have preventative lawyers and you have litigators litigators are the are the guard dogs and preventative ones trying to keep companies out of trouble and then they and the preventative lawyers run into the rebellious lawyers so on the other side representing people who need access to remedy one of the responses of business lawyers is something called slap suits these are strategic this is called strategic litigation against public participation the whole goal is not to win the suit but to make the costs of bringing suits so egregious that um you just you give up uh at the outside it's just who can who can fund it and I think that this is this was something that started in the United States and it's spread all over the world so every time you have a rebellious lawyer I applaud that because I think lawyers have to be rebellious at times you have it's matched by some fairly unethical behavior on the part of businesses and I don't think that the discussion today has really drawn that out has has drawn the parameters of what is a slap suit it's it's just the side of frivolous it's got enough to survive emotion to dismiss but it's real intent is to punish the other side the best example of that is Chevron in Texaco where Texaco brought when everybody thought was a slap suit a RICO claim organized crime claim against the plaintiff's lawyer and then suddenly through through discovery they found they found facts to substantiate that the lawyer had been had been thriving the judges who were making the award and that has made it very difficult to fight slapses now I don't know what your experience is that would have happened it's it's something that really needs to be brought up Brigitte I think John what you're raising is something very we don't see that in such a way in Europe at the moment not yet I think it's coming over but what we understand as strategic litigation is the opposite that we see in particular in climate change context increasingly litigation which is using for example toward concepts in very creative and innovative ways for example we have one case in Germany at the moment pending Peruvian peasant is actually suing a German energy company because the German energy company has emitted a certain amount of climate gas is over time and this is causing a glacier in Peru to melt and the melting can cause actually a damaging of this peasant so this was totally new so I think it's not only rebellious we see to put it in in other terms innovative lawsuits in particular in climate litigation where we see also strategic litigation of NGOs also it might be difficult to really win the case it wins an enormous amount of publicity and already around winning that amount of publicity is already half of the goals so to speak they they try to achieve so I think it works both ways and in Germany we see more of the other type of strategic litigation and I'll take oh I think actually I just was at another conference in the UK and suddenly presented a paper on slap suits in Europe but it was in France and there have been a lot of suits been brought and been brought against Sherpa which is an NGO that regularly tries to hold corporations to account through lawsuits and was actually very very involved in bringing the French law vigilance into into being and they have I think there's been an ongoing case against them for 10 years and it's it's been but then they are dogged so and very brave I think but but there I think there it is starting to happen maybe not to the same percent and Germany we don't I don't know the idea of any case yeah of this quality I'm not aware of that in terms of that I mean just a very minor point on the the rebellious lawyer which is all cool rebellious lawyer I think he is is strategically useful and effective but only within a social a social legal order that finds a space for it my caution is that not all societies are as open in their own contextually relevant way as perhaps Nigeria or Canada or France that when you're dealing especially in production chains that travel down into Marxist-Leninist countries for example and into certain other countries rebellious lawyer and is not only dangerous for the lawyer but it's likely to have reverberations and consequences which are much greater than really shutting the lawyer down so one ought to be careful here especially when one is dealing in interest systemic ethical possibilities and strategic behaviors about constraints and sometimes quite severe ones that may come up within different legal and in social orders and particularly Marxist-Leninist space other question yes Keith I give my sir a to get it here I'll talk a little a lot and make a little litigation context the question is more kind of a regulatory context in terms of ethics when we're talking about something like the softwares say that the CPPs forward that companies are are adopting into their sustainability reports or and by references to the year annual reports which are kind of public disclosure and P&A and that kind of stuff and potentials for liabilities from soft law devices around there and if they are potentially liable is there now a chance for them to start saying less and less or if they have a new CSR supply chain management or what are you saying we're not going to do anything all of a sudden if there's a liability or they're going to start going back to the old ways and say nothing again or even going worse deserve lobbying or advocating to regulatory authorities say we have a terrorist security submission or a TSX to not make laws more stringent or not increase disclosures or going back and going into the reverse is there any potential or an impairment yeah I go ahead I'm just going to briefly for the sake of people who might listen to this later attempt to say what that question was for the into the mic so Keith is asking about reporting of climate climate disclosures and in particular CBP and and other contacts and what though what the implications of those might be for responsible loitering John yeah I I think the horse has already left the barn on this issue and to me the thing to keep your eye on is the spectacular growth of funds that use ESG factors it's gone up even after Trump was was elected there was a so-called Trump bump in which which investors were saying well now it's up up to businesses to manage their risks for themselves because you can't look to at least the U.S. government to do so and ESG obviously for climate change there's the fits in the E but it also fits in the S in a big way I think there's a lack of conceptual understanding or towards the S so so you have investor pressure that is going to make it very hard to turn the clock back am I is it I think one of the crucial issues are what does ESG exactly mean and there are there are a lot of different actually interpretations by different banks and different standards so there is no uniform standard at the moment we are discussing in the European Union a taxonomy system to be introduced by a European regulation but the devil is also in the detail there what is really sustainable and what they they started off only with environmental and climate change issues and they wanted to adopt only or take into consideration only then the core labor norms and now they are shifting maybe also to the UNGP etc but you know the devil is really there in the detail and also the question which we are discussing in Europe is does it make sense to freeze a situation because whenever you introduce a regulation meaning hard law you are freezing to a certain extent as a status quo in a situation where a lot of development is happening so the question is also what is the right instrument at this stage of the development and I'm personally very reluctant also the impetus is good and we need to really define that in order to make it comparable but it has its disadvantages because the next three we shall be in two or three years and also you are not flexible enough to combine social issues environmental issues integrity issues they are all interconnected and when you take only one part the environmental part and then a little bit of social things is this really sustainable I think at certain points any other outstanding questions at this point Sarah I just have one one thing to add to that I think it has an impact it could have us an impact in the litigation sense so the vendetta case that you talked about is an example where corporations are talking about the environmental policy and they're pushed to do that by investors etc but then it comes back to fight them in litigation because then it shows that the parent company is actually directing the group which they don't they like to still pretend that they're all these separate entities that are so I think that you kind of wonder in some of these cases if you do establish parent company liability in a bunch of jurisdictions is that going to mean that companies are going to be less likely to develop human rights policies climate change policies that are public I think those are all excellent and important questions and the things that we're struggling with I just wanted for people who are perhaps not familiar also with the terminology I just wanted to note that we have thrown out a lot of acronyms so ESG is often environmental social and governance factors the SDGs of course are the sustainable development goals BHR is business and human rights RBC is responsible business conduct there's a few others in there sustainability and depending on which sort of institution and mechanism you're looking at they're going to be using different terminology to talk about sort of the same stuff but in kind of different ways which is part of the problem and so on that note I think it's probably we've had a very good session time to call it to a close I just want to note that for anybody who's particularly excited about climate change and lawyer responsibilities and those sort of things I'm going to attempt to have a bit of a discussion as part of our SDGs and business regulation conference tomorrow at 11 o'clock or so in room 204 on business business responsibilities and lawyer responsibilities for climate justice I don't actually know what we're going to talk about yet but I'm hoping that this will have given me some ideas and hopefully our panelists will have some too so on that note thank you so much for coming and for speaking and thank you