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19 Jun 2019

Benjamin Hoffman, Human Rights Clinic of Columbia Law School

Many segments of the business and human rights field have been co-opted & captured by corporate actors

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Business & Human Rights Resource Centre

You have been involved in transnational litigation in United States courts. What are the various challenges that you have been facing in this context when looking to hold companies legally responsible for human rights abuses?

A first set of challenges are the legal doctrines that make successfully bringing one of these claims very challenging. Some of these challenges and these legal doctrines are longstanding. I'm thinking in particular about statutes of limitations, forum non conveniens, political questions, various forms of immunity, and limited liability for parent companies, among others. These doctrines have been around for a while, and advocates have consistently had to navigate them in their various cases.

More recently, other doctrines have emerged that have posed new challenges for these types of claims. For example, in the context of litigation under the Alien Tort Statute, with the Kiobel decision of the US. Supreme Court, we have seen the introduction of limitations on extra-territoriality. Another example is the restriction on suits against foreign corporations introduced in Jesner vs. Arab Bank. I think these latter decisions are part of a particularly disturbing trend, at least at the level of the US Supreme Court, of favoring corporate interests and power at the expense of greater human rights accountability. And these cases have the risk of influencing lower court decisions in other cases not directly precluded by the new restrictions, particularly if the courts perceive that the Supreme Court is ultimately hostile to these types of claims.

Besides these legal doctrines, another set of challenges is related to time and cost. Litigation, and litigating these cases to completion, can take many years and cost significant amounts of money, both of which can be prohibitively burdensome for affected communities or their legal teams. These costs require the communities and their lawyers to think very creatively about how litigation can be sustained both in terms of time and economic resources. Corporate actors are aware of these challenges, and they at times exploited them as part of a litigation strategy to prolong the cases and as a deterrent for others from bringing similar cases in the first place

While working on cases of human or environmental rights abuses by companies, have you or the plaintiffs faced threats or backlash including through legal action? What can be done to protect the lawyers and communities that sue companies?

Human rights defenders – whether they are lawyers or advocates or plaintiffs considering legal strategies – face serious threats, including physical violence, criminalization, and Strategic Lawsuits Against Public Participation (SLAPPs). Many of the defenders that I have worked with have faced these threats.

Among those various types of threats, SLAPP suits are a growing problem and represent a serious threat to the ability to bring necessary corporate accountability litigation. They risk chilling necessary cases, and defending the SLAPP suits takes vital time and resources away from the efforts to obtain accountability. In terms of what can be done to protect lawyers and communities, I'm encouraged by the work of the Protect the Protest Task Force and other coalitions organising against SLAPP suits. The response has involved a multi-prong strategy of, first, understanding the risks and how advocates can best protect themselves from those risks; second, building and funding a network of experienced attorneys to defend those facing SLAPP suits; third, exposing and campaigning against abusive SLAPPs and those who file them to deter their use elsewhere; and fourth, advocating for the adoption of careful anti-SLAPP law reform projects. 

There is, I think, a careful balance that can be constructed around ensuring that the anti-SLAPP laws don't go too far in limiting free speech in the opposite direction. But there are useful examples that the advocates who work on this issue can point to as good models.

Can you share any success (broadly speaking, not necessarily involving winning a case) or innovative legal strategy that you have used to try to hold companies legally accountable? 

As the US Supreme Court has taken steps to limit the types of human rights cases that can be brought in US federal courts, human rights lawyers will continue to bring cases to test the breadth of those decisions and try to preserve these important avenues for justice and accountability. In parallel, human rights lawyers are also developing important and creative tools for pushing past the limitations introduced by the Supreme Court.

One important tool which has has been used consistently, and this is not new, is bringing claims in state courts under general tort principles. Many of the longstanding legal challenges that I discussed earlier still apply in this context, but the door to litigating the state tort law claims is still largely open.

A second exciting tool that human rights lawyers have started turning to is the Foreign Legal Assistance Statute. This law allows affected individuals and communities to obtain discovery from people and companies in the United States in order to generate information and evidence for use in foreign legal proceedings. In this way, litigation in US courts can be used to strengthen the information available for foreign jurisdictions to provide accountability. In the aftermath of the Kiobel decision, with the limitations on bringing extra-territorial claims, lawyers working with EarthRights International have been key leaders in developing and sharing this strategy with others.

I am also very excited about accountability strategies that push beyond litigation. In the context of workers’ rights advocacy, the adoption of worker-driven social responsibility initiatives is demonstrating the transformative potential of human rights initiatives grounded in rights-holder design, monitoring, and enforcement.

Take for example, the Coalition of Immokalee Workers’ Fair Food Program, or Migrant Justice’s Milk with Dignity Program which I have had the privilege of supporting through my work with the Columbia Law School Human Rights Clinic. Without meaningful governmental protection for labour rights, workers themselves have crafted human rights based codes of conduct for their employers. To get the employers to agree and adhere to those codes, they have obtained the agreements of large corporate buyers further up the supply chain to only purchase from employers that are in good standing with the code. They have also set up an independent body to receive and adjudicate worker complaints, and conduct annual audits, to help employers come into compliance. The entire system is backed up by real economic consequences whenever there is lack of full compliance. The Milk with Dignity Program is still relatively young, but there is already promising evidence of its positive impact on workers in Vermont. And with the Fair Food Program I think the results speak for themselves and the Fair Food Program has been lauded quite publicly by lots of leading thinkers on these issues.

In a very interesting piece that you co-authored, you speak about critical lawyering methodologies. What are they? 

When we wrote that article, my colleague Marissa Vahlsing and I were working as human rights and environmental rights lawyers supporting indigenous communities in the Amazon in their struggles against multinational oil companies. We were concerned about what we saw as a common model of human rights practice in which international non-governmental organizations (INGOs) would learn of a particular rights violation, parachute in to collect information, offer the community support in the form of a predetermined strategy based primarily on the expertise of that organization, and then implement that strategy with very little community engagement or participation. We were worried that the experience of working with human rights advocates might operate to reinforce power asymmetries that are often at the root of injustice.

The critical lawyering methodologies that we drew upon – whether termed client-centered, community-, rebellious-, or collaborative lawyering – seek to respond to that risk by bringing greater attention to power dynamics and re-adjusting the relationships between advocates and rights-holders accordingly. When we applied these methodologies to our practice, this meant taking deliberate steps at key moments in our collaboration with rights-holders to better respect and support the exercise of rights-holder and community power.

The starting point is the frank negotiation of a shared vision of justice that will guide the collaboration. This requires a critical awareness of the various interests held by individuals and groups within communities and the adoption of processes to ensure that disparate views are voiced, acknowledged, and addressed in a transparent manner. Second, once this shared vision is articulated and agreed upon, the emphasis is then placed on the notion of joint- or co-empowerment, where both the client communities and the lawyers are empowered through the relationship in key ways to advance that shared vision of justice. This requires mutual knowledge sharing and a genuine exchange to make sure that all decisions made in advancing this collaboration are well-informed and that expectations are clear. To reduce the risk of lawyers unintentionally coercing any decisions as to the particular strategy to be adopted, the article recommends that lawyers seek to diversify the types of strategies that they can offer to communities. These strategies could be offered by the organization itself, or through building an extensive referral network to be able to connect communities to the resources they need in order to tackle the problem as the community understands it. Finally, once a strategy has been agreed upon—and particularly with strategies such as litigation where lawyers play a significant role–attention needs to be given to ensuring open lines of communication and maximizing rights-holder participation, collaboration, and at times leadership in the implementation of the strategy.

AA: In the communities you worked with, did you ever have to tackle pre-existing attitudes, such as of victimhood, due to previous contacts with the type of harmful NGO work that you were mentioning before?

My experiences working with communities have varied greatly in light of the different communities’ intersectional identities, histories of struggle, and experiences working with external advocates. I have always tried to be conscious as well about my own intersectional identities and privileges, both in terms of how they relate to those of the communities and in terms of how they influence our relationships. Sometimes my presence has initially been treated with great skepticism, leading me to spend significant time working to build trust, and other times with great hope, leading me to spend time adjusting expectations. Regardless of the reception, I think the ultimate goal of the initial meetings is one of creating a space of openness, honesty, mutual sharing, and trust-building. Once that foundation has been established, you can start having some of the difficult conversations around negotiating a shared vision of justice, the strategies that can be undertaken to advance the shared vision, and how you can work collectively and collaboratively to implement the strategies. 

You have noted that the most probable positive outcome for transnational litigation is often a negotiated settlement. What are the challenges and coping strategies in the context of settlement negotiations? Is control of the terms and process of the negotiation by the community the asset to be preserved and developed?

Settlement negotiations provide a very real and valuable opportunity for the plaintiffs to make concrete demands to advance their vision of justice. While corporations often express an openness to dialogue regardless of whether a suit has been filed, it often takes the prospect of an adverse legal judgment for corporations to genuinely consider offering a full and fair remedy for harms suffered.

Plaintiffs may be committed to seeing litigation through to a judgment, and may not be interested in settlement at all. But in many cases, the remedies sought by plaintiffs may be achieved through negotiated agreement with the company. Litigation can serve as a means toward ensuring that that negotiation is conducted on fair terms. And in light of all the challenges related to transnational litigation that we previously discussed and the additional uncertainty with respect to what remedy is ultimately offered, these settlement negotiations represent a valuable opportunity for advancing the goals of many communities.

At the time when litigation is being considered as a strategy to undertake, lawyers working with affected affected communities should be open and honest about the possibility of settlement as a potential outcome, and also begin to prepare their clients for the various challenges that frequently emerge in the context of settlement negotiations. For instance, corporations may seek to initiate settlement discussions and negotiations with just legal counsel or in other ways seek to limit who may be present at the settlement negotiations. At times, corporations may seek to offer remedies that would benefit named plaintiffs in a suit, without offering the collective remedies that had originally been articulated as part of the goal of litigation. Another serious challenge arises when corporations refuse to acknowledge responsibility for the harms in the settlement. Further, corporations often seek to keep the terms of the settlement confidential, which can cause significant tensions within and between affected communities.

Plaintiffs’ lawyers, who often have invested significant time and resources in the case in order to even reach this stage, can often exacerbate these challenges by pushing their clients into accepting terms for the negotiation process, or even settlement offers, that ultimately may not be in the best interest of the community. In light of that particular concern, lawyers counseling their clients as to how to navigate any of the tensions and challenges must introduce conversations about settlement as early as possible, so that many of these challenges can be discussed in advance. A good option to help align expectations may be to include in negotiated retainer agreements provisions for how these challenges are to be navigated when they emerge. Lawyers need to be as transparent and honest as possible when the litigation reaches a stage at which negotiation is being considered, and most importantly, plaintiffs and the communities of which they are a part need to be the key decision-makers for questions both about the process by which the negotiation will take place and the outcomes. The rules of professional ethics for US attorneys acknowledge some of that, but I think it is imperative that lawyers go beyond some of those specific ethical rules to really anticipate the challenges and help communities navigate the right path forward.

One core area of your practice is workers’ rights. Aside from litigation, you have supported non-judicial remedy mechanisms, particularly in the context of worker-driven initiatives. What role and potential do you see for these initiatives in terms of access to remedy, also in relation to litigation?

Non-judicial remedy mechanisms, in light of their speed and flexibility, present a very promising alternative to litigation, but also present some very significant risks. So it is essential that we think about non-judicial remedy mechanisms in context of the growth of the “business and human rights field,” exploring how they are created, who creates them, and how they operate. While the business and human rights field has grown substantially in the past few decades ostensibly to improve corporate human rights behaviour, including with respect to the provision of remedy, many segments of the field have been co-opted and captured by corporate actors. This has led to the proliferation of corporate-controlled “business and human rights” initiatives that, while presenting incremental changes in the direction of greater human rights protection, fundamentally operate to entrench structural inequalities in the distribution of power between corporations and affected communities – power imbalances that are often at the root of continued human rights abuses. Such initiatives are nonetheless afforded a veneer of legitimacy by the broader field in light of their recourse to the human rights discourse. The risk is that the transformative potential of the business and human rights field is thus undermined from the very start.

This critique applies directly to the non-judicial remedy mechanisms that are run by corporations at their various operations, or by financial institutions, or as integrated in many multi-stakeholder initiatives. While such company-created remedy mechanisms may offer a formal path to remedy in environments of ineffective or unavailable state mechanisms and contexts of impunity, companies can take advantage of their position of power in relation to affected communities to coerce rights-holders into accepting inadequate remedy packages that do not meet international human rights standards, often in exchange for legal waivers of their right to pursue full remedy through litigation. This was the subject of the report Righting Wrongs authored by the human rights clinics at Columbia and Harvard Law Schools.

The solution to similar challenges has been modeled in the context of workers’ rights advocacy, with the adoption of the worker-driven social responsibility initiatives that I discussed earlier. Outside of the workers’ rights context, really interesting work is being done by advocates and communities to create models for community-driven operational-level grievance mechanisms. These initiatives are really still at an initial stage and there's still a lot of thinking that needs to be done about how to craft them in the most effective way possible. But I believe that they hold real promise for ensuring a full and fair remedy. And I would say that even if rights-holders are not themselves the driving force behind the creation of these mechanisms, at a minimum, rights-holders should always be involved in the co-creation of any such mechanism. Rights-holder co-creation is certainly not the only requirement and it is not a guarantee that all of the other elements of the remedy mechanism will meet the requirements of a full and fair remedy, but I think it's an essential and foundational requirement upon which a lot of other things will depend.

You have been a Clinical Teaching Fellow at Columbia Law School’s Human Rights Clinic for the past five years. What are the main potentials and challenges of human rights clinic in support of transnational human rights advocacy?

In many ways, a human rights clinic operates as an NGO embedded within a law school, and faces many of the same opportunities and limitations of any other organization that works in this space, but also entails some additional considerations. The commitment to training law students as a foundational part of the clinic's mission necessarily affects the scope and timing of various projects undertaken, and the constraints of the academic calendar and the fact that there is a steady rotation of students in the clinic from year to year, or sometimes semester to semester, all present additional challenges to navigate when tackling these large multi-year and ambitious projects that defy easy solutions.

But some of these same challenges also present wonderful opportunities. Efforts to ensure corporate accountability, or to disrupt the corporate co-option of the business and human rights field, are big and challenging projects that require a level of deep critical and analytical thinking and thoughtful strategic planning. I am consistently inspired and motivated by the amazing students I have had the privilege of working with, who bring creativity, energy, and passion to all of our projects, and push our Clinic to meet its full potential. There is also a wonderful wealth of expertise among the other supervisors in the human rights clinic and the law school’s other clinics, as well as the broader faculty within this institution, that provide support, guidance, and innovative ideas not just for meeting the needs of our clients and partners, but also for thinking through systemic-level change. And I would just say to conclude that the clinic model, situated at the intersection of theory and practice, with the opportunity and responsibility to engage in constant critical reflection, helps ensure that our strategies and methodologies meet the highest standard we can set for ourselves. This is true both in terms of the change that we're able to affect in the world and also in terms of the approach to engaging with partners and rights-holders and our students.