I recently attended a talk by Yousuf Aftab at the Debevoise & Plimpton Energy Disputes Roundtable. It was a lively piece that generated food for thought from a third party funding perspective.
Mr Aftab argued the case that human rights are no longer an exclusive state responsibility. Corporations will increasingly be judged by a growing consensus of an emerging international public policy in respect of human rights. This has significant implications from a TPF perspective as human rights will increasingly become a measurable variable in assessing the strengths and weaknesses of a case.
This is not mere blue sky thinking nor is it particularly idealistic, as Mr Aftab demonstrated there is a corporate responsibility evolution towards an international public policy on human rights that is picking up momentum and may be realised within the next 5 years. Historically the difficulty has been that human rights were too woolly of a concept to carry any significant business risk. What did it mean if a company said that it respected the human rights of its workers? Or indeed if an investor in a country made such statements? Was it a legally enforceable standard on which the actions of the corporation could be judged? How was it capable of giving rise to real liability? As Mr Aftab pointed out this is a problem of precision of standards. Accordingly the greater the precision of standards the greater the business risk and precision of standards is what we are seeing and can expect to see more in the future.
In 2011 the Guiding Principles on Business and Human rights (the Guiding Principles) were published. Shortly thereafter the OECD produced guidelines on Multinational Enterprises incorporating many of these principles. Since 2012 there has been a tremendous growth in the implementation of legislation based on these guidelines all in respect of human rights and corporate responsibility. The concept of human rights in the context of corporate responsibility is becoming a more precise standard which can be measured in respect of corporate liability and it behoves professional third party funders to take note when assessing corporate liability.
The Guiding Principles framework defines business respect for human rights for businesses in every industry. This is the only sector-wide and rights-wide business and human rights framework. It is endorsed by the UN Human Rights Council, ICC, OECD, IFC, International Council on Mining and Metals, IPIECA, American Bar Association, Equator Principles, Thun Group of Banks, United Kingdom National Action Plan and the EU Non-Financial Reporting Requirements. As a consequence what is emerging is a roadmap for decision making based on the nature of the right impacted and the link to business operations. In other words, human rights in the context of corporate responsibility is no longer a woolly concept – there is arguably now a test against an objective standard. What does this mean? Human rights and corporate responsibility are measurable in respect of corporate liability.
From a third party funding perspective, risk is assessed by balancing impact versus probability. How likely is an allegation to succeed and what is its value? Through this process the core foundations of a claim can be measured in order to determine prospects of success. If indeed human rights and corporate responsibility have obtained a precision of standards to be weighed and measured it would appear axiomatic that these variables are added to the risk assessment process. So, if indeed “Respect” has a testable meaning and this is combined with widespread endorsement as outlined above, it becomes a measurable standard for a reasonable business. Using this example, under the UK Companies Act 2006 and the EU Non-Financial Reporting requirements, arguably when corporations publish public statements and policies using the word “respect” this may very well be a measurable legal risk with consequent liability which could become a key variable that professional third party funders can use in determining whether some of the most vulnerable claimants have a meritorious claim with a strong prospect of success.
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