CHAPTER 1 OPENING KEYNOTE REMARKS
| Jurisdiction | United States |
(Feb 2016)
OPENING KEYNOTE REMARKS
President
International Bar Association
Partner, Debevoise & Plimpton, LLP
London and New York, NY
[Page 1-1]
DAVID W. RIVKIN is President of the International Bar Association and a litigation partner at Debevoise & Plimpton LLP in both the New York and London offices. Mr. Rivkin is the first U.S. lawyer to hold the position of IBA President for a quarter of a century. Mr. Rivkin has broad experience in the areas of international litigation and arbitration and has handled international arbitrations throughout the world under common law, civil law, and Islamic law systems. He is identified as one of the top 11 international arbitration practitioners worldwide in Chambers Global (2013) and is consistently ranked in the top tier of International Arbitration counsel and arbitrator in Chambers USA, where he is lauded as "a true giant in the field, whose depth of knowledge is incredible." Other recognitions include: Listed among the Stars of International Arbitration by International Financial Law Review Benchmark: Litigation (2014), which acknowledged him for his resourcefulness and ability to represent a diverse set of clients; listed as a "leading lawyer" for International Arbitration in The Legal 500 (2013), which has described him as "a brilliant lawyer and tactician" with an "analytical mind"; Who's Who Commercial Litigation (2013) described him as "a superb practitioner with broad experience of advising major companies in transnational litigation"; along with Debevoise partner Christopher Tahbaz and co-counsel Bae Kim & Lee, awarded the GAR 2010 Arbitration Win of the Year for representation of Hyundai Heavy Industries. Mr. Rivkin has held leadership positions in many arbitration bodies including the London Court of International Arbitration (LCIA), the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the Singapore International Arbitration Centre (SIAC), the American Arbitration Association (AAA), and the Court of Arbitration for Sport (CAS). Among other positions, Mr. Rivkin is also a member of the Council of the American Law Institute and an active member of the Council on Foreign Relations and various committees of the U.S. Department of State. He has served as a member of the Ad Hoc Division of the Court of Arbitration for Sport at the Olympic Games in 2002, 2004, and 2008. Mr. Rivkin graduated magna cum laude from Yale University in 1977 with a BA in history and received his JD from Yale Law School in 1980.
The Wise Counselor and the Frontiers of Business and Human Rights
I. Introduction
I am delighted to be here for many reasons: First of all, it brings back happy memories because my first ever public speech and published article were at a RMMLF conference when I was a young associate. It was an exciting moment for me. Second, as President of the IBA, I am delighted that we are collaborating with the Foundation. We have many overlapping areas of mutual interest, and we can do a lot to assist each other's mission. Third and most importantly, the Special Institute itself demonstrates the remarkable progress we have made--as a business community and as a legal community--since the UN Guiding Principles were endorsed. It was not long ago that corporate lawyers considered human rights far outside their remit, and lawyers and their business clients focused only on complying with the strict dictates of hard law.
No longer. As this Institute's attention illustrates, the world's leading businesses are entrusting their lawyers, inside and outside, with responsibility for advising on corporate human rights decisions. Resource companies are leading the way. At my firm, Debevoise & Plimpton, our clients are increasingly asking us to, as Justice Stewart would say, advise them not only on what they have the right to do, but also what is right to do. And that should be no surprise.
Successful businesses today, particularly resource companies, must navigate a multitude of risks, which are grounded not only in government regulations, statutes and judicial decisions, but also in ethics, public expectations and international norms. We close our eyes to these risks at our clients' peril. For them, the distinction between "hard" and "soft" law is now academic. At a showcase session on business and human rights at the IBA annual conference in October in Vienna, General Counsel from Novartis, BHP Billiton and L'Oreal each made clear that their companies view it as important to comply with soft law as much as hard law, because it is not only the right thing to do, but also
[Page 1-2]
because the consequences of violating international norms like the UN Guiding Principles can be as severe as violations of statutory law--and possibly more so.
The resource sector is unique in apprehending precisely the toll these risks exact. At a different IBA session last year on Business and Human Rights, John Ruggie recounted an exchange with a CEO of a major resource company. He asked the CEO how much disruptions caused by disputes with local communities cost the company, not only in shutdowns but in delayed shipments, slower labor, fines and other expenses. The CEO took some months to consider the question; when he responded, though, the amount was staggering: $6.5 billion over the two prior years. This is consistent with the Davis and Franks study that shutdowns of a medium-sized project can cost $20 million per week.
As we will explore over the next two days, corporate decisions impacting human rights no longer bear only on reputational risk. Rather, each decision touches on a constellation of corporate risks: legal, financial, and political. And they are interwoven.
Take legal risk. A non-trivial number of cases based on overseas environmental or human rights grievances are currently being pursued in the courts of the ultimate parent company. Claims in the courts of the UK., Netherlands and Canada, often supported by class action lawyers and public interest groups, seek to attribute direct responsibility for these overseas acts or omissions to the parent company, often as a jurisdictional as much as strategic device. Many of the claims have overcome initial admissibility thresholds because the allegations of parent company negligence are based on the parent's own publicly disseminated language of control and responsibility for health, safety and sustainability standards throughout its entire group.1
While a finding of parent company liability remains exceptional in the law of negligence, and the pending cases are both novel and largely untested on the merits, the boundaries of legal responsibility will inevitably be further challenged now that the era of non-financial reporting has begun.
Outside courtrooms, OECD member countries are seeing an uptick in the number of claims before National Contact Points based on the Guidelines for Multinational Enterprises.2 These claims are not just being filed against resource companies; they are increasingly reaching their investors and financiers. Investors, in turn, have started asking more pointed questions about corporate human rights due diligence, aided in large
[Page 1-3]
part by the Global Reporting Initiative, the Reporting Assurance Framework Initiative, and the Principles for Responsible Investment.
Three lessons flow from these developments. First, it is not enough just to be good. Companies need to be ready to justify how good they are with reference to the Guiding Principles and other guidelines on business and human rights, including National Action Plans. Second, while companies need to focus on and to publicize their adherence to such guidelines, vague or overbroad representations about a company's respect for human rights can be sources of risk. Such representations must be supported by appropriate due diligence and response processes, because plaintiffs may seek to rely on them in future litigation.3 Third, as Kofi Annan said at the IBA showcase session in Vienna:
"Lawyers have a very important role to play. . . . All of you are persons of influence . . . Lawyers can influence and go beyond what they think clients want . . . If you don't do the right thing, not only may you end up in jail, but your whole company and society may...
To continue reading
Request your trial