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Thursday, October 4, 2012

CSR and Litigation Strategies - Comments on Forbes' CSR Blog Article "Shell, Corporate Social Responsibility and Respect for the Law"

Forbes' CSR blog posted an interesting article by Amol Mehra and Katie Shay on Shell's litigation strategy in relation to litigation under the United States Alien Tort Statute (ATS).  In the article, the authors criticize Shell's arguments to the US Supreme Court that the ATS should not apply so as to bring the allegations (which relate to activities in Nigeria) within the jurisdiction of a US Court.  While I respect their views and think it is an important question to consider, I strongly disagree with their conclusions...

To be clear, I am not at all an expert in US law or the proper scope or application of ATS.  Nor am I familiar in any detail with the Shell litigation discussed in the blog.  However, the blog raises interesting questions regarding the interplay between CSR and litigation strategies that I thought would be interesting to discuss here.  I'm going to get academic, but I like being academic and this is my blog so too bad!

The blog quotes John Ruggie, former Special Representative to the Secretary General of the United Nations who formulated the Protect Respect and Remedy business and human rights framework, recently referenced by the IFC Performance Standards on Environmental & Social Sustainability (and likely to be adopted by the Equator Principles framework) and which was unanimously endorsed by the U. N. Human Rights Council last year.  Professor John Ruggie raised concerns about Shell’s arguments in an issues brief he recently authored on the case. Specifically, Ruggie states:

Should the corporate responsibility to respect human rights remain entirely divorced from litigation strategy and tactics, particularly where the company has choices about the grounds on which to defend itself? Should the litigation strategy aim to destroy an entire juridical edifice for redressing gross violations of human rights, particularly where other legal grounds exist to protect the company’s interests? Or would the commitment to socially responsible conduct include an obligation by the company to instruct its attorneys to avoid such far-reaching consequences where that is possible? And what about the responsibilities of the company’s legal representatives? Would they encompass laying out for their client the entire range of risks entailed by the litigation strategy and tactics, including concern for their client’s commitments, reputation, and the collateral damage to a wide range of third parties?

The Forbes CSR blog notes recent statements of support for the ATS by large ethical investors.  The blog article goes on to conclude:

The choice of litigation strategy and legal positions feeds directly into this responsibility [of business to protect human rights], especially when a company is seeking to do more than defend itself from allegations of wrongdoing. No corporation is above the law, and in the quest to find ways of doing well by doing good, companies should carefully consider the range of their activities, from their operational impacts to the legal positions and litigation strategy they adopt.

This issue really shows the interplay between CSR and the law and the challenge of applying moral considerations (which CSR is often believed to be) to situations of legal argumentation. While this may seem like a new issue, there has been a debate about the extent to which morality must inform the interpretation of the law for centuries.  The most well known example of this debate was between "positivist" legal theorists like H.L.A. Hart and Joseph Raz and "natural law" theorists like Ronald Dworkin and John Finnis.  In (over) simplified form, the debate between these two camps was whether law must be moral in order to be law.  Put differently, whether an immoral law could be a law at all.  This lead to debates over what "is" versus what "ought" to be, etc., and zeroed in on the ultimate meaning of what law is.  The positivist scholars concluded that looking at law only through the lens of morality doesn't allow us to understand the law as it "is", i.e. how it is meant to be applied by courts and administrators. 

The positive approach has a lot of sense to it in understanding what law is, how it works, and how it relates and inter-relates with CSR. For law to not be completely arbitrary, it has to have some potentially ascertainable meaning prior to its application, and prior to the actions of its subjects.  If the subjects of law were able to re-interpret its meaning and impose their personal moral or ethical judgements in deciding how it applies to them, and if this was accepted by courts, then the law would be a very uncertain thing indeed.  Really what separates a functioning "rule of law" system from a false system of justice that is driven solely by political considerations is the lack of subjectivity of law in its application to a given situation.

Of course, this leaves us with a situation where immoral laws may indeed be laws.  So how does a legal system deal with that?  It's a complicated question, but it starts with having a democratic political system that can draft and design laws that accords with the will of the communities to which it applies.  Liberal theorists like John Rawls believe that the overlapping consensus that results from democracy (and which is embodied in law in a democratic society) will reflect the morality of the community that formulates the consensus.  There will still be the possibility that the morality of the community is not shared by a member of that community, or an outsider, but that is the subjective reality of morality - and reflective of the problem of its direct application in law.  Once the consensus is identified and created into law, it must no longer be applied subjectively if it is to have any "legal" meaning - i.e. if it is to be used as a reason for action (either by an individual subject of the law or a court applying it).   Law, as a reason for action, must replace all other reasons someone may have to act if it is to be truly "obligatory" and "authoritative" in governing a particular situation.

Does that mean we have no "right" to question an immoral law?  No, from a moral perspective we certainly can and should question immoral laws and maybe even not follow them if we feel strongly enough about it.  Civil disobedience is what it is because it involves intentional disobedience of the law on moral grounds. That act would have no meaning if those morally opposed to a law could simply re-interpret the law in applying it to their own circumstances. Civil disobedience recognizes that the law "is" what it is, but that it "ought" to be something different, and those who believe so are willing to break the law until the law changes.  But in breaking the law, they are also willing to accept the consequences and even penalties for breach.  In other words, their actions do not suggest for a minute that there is no morally repugnant law, but rather faces that fact head on with the aim of changing or eliminating it.

In the case of CSR, where minimal legal requirements may be viewed as inadequate to meet the legitimate expectations of stakeholders, corporations may be compelled to operate with regard to expectations that require them to do more than minimally comply with laws, in order to maintain legitimacy and a "social licence to operate". 

But that imperative doesn't mean that CSR is a purely subjective or moral question, or reduces corporate behaviour to a series of ad hoc decisions about what is "right" in a particular circumstance.  Quite to the contrary, the evolution of CSR from a sentiment or aspirational goal with little practical effect, to the establishment of highly influential frameworks like the IFC Performance Standards that has a real impact on corporate conduct, is indicative of the (I believe inevitable) process of norm-governance that is quite different from subjective moralizing.  Systematized transnational CSR norms of this sort: (1) provide constraints (i.e., rules of conduct) (2) against which social action can be evaluated (3) and which may give rise to social consequences. These systemic characteristics of transnational CSR norms provide evidence of their objective existence and potential for use as “rules of action”. Once they become "rules of action" they are no longer arbitrary or subjective, but can actually be used to guide and constrain behaviour of corporate actors and become authoritative and therefore highly influential.

So, let's get back to the point.  Should lawyers not raise arguments that could undermine the scope of legislation that purports to provide remedies for human rights obligations?  Is that a CSR requirement?  Is it expected by the Protect, Respect and Remedy Framework?  I would say "no" to all of the above questions.  It is the ethical obligation of lawyers to raise all legal arguments that they can in defence of their client which are not themselves unethical or illegal (i.e. known falsehoods, deceptive etc.).  There should not be a CSR exception to this general and widely accepted principle integral to maintenance of the rule of law.

The litigation before the Supreme Court is a legal discourse that requires the Court to consider the proper application of the ATS as existing law, not whether the ATS "ought" to exist in its present formulation or whether it should go further to provide remedies for human rights violations perpetrated by companies. That question is a political one which should spark debate about how the law should be amended or changed through a political process to address the question of access to remedy. Challenging the scope of application of legislation is a completely legitimate legal strategy.  If lawyers used their own judgement to "hold back" on raising legitimate arguments for their clients, then we could simply not be confident that defendants are getting a fair hearing and that would ultimately undermine the rule of law.  That would not be consistent with the objectives being forwarded by CSR, which includes upholding the rule of law.

But what about the company itself?  Shouldn't they instruct their counsel not to raise certain arguments in their defence, if the effect could be to undermine access to human rights remedies?  This is obviously a question that companies will have to consider and navigate based upon their stakeholder's expectations.  However, deciding not to make a legitimate legal argument simply because it would challenge a broader interpretation of a particular statute would not necessarily be doing society any favours, or forwarding the cause of human rights.  If a statute like the ATS is found by the US Supreme Court to not provide remedies for the human rights violations at issue, then they will have identified a short-coming in that piece of legislation that makes it an inadequate vehicle for the protection of human rights. That is a perfect impetus for political action and legislative reform by those who think such an outcome is unacceptable.

That being the case, it is not for a defendant or a lawyer to act as a policy maker and adopt an interpretation of legislation that is incorrect, simply because we wish it were different. To do so would not be respectful to the rule of law.  On the contrary, it would imply that laws do not have an objective existence and can be re-interpreted or revised depending on the circumstances or our personal beliefs. That is the ultimate affront to the rule of law and disrespectful of its authoritative and obligatory character.  As well, such a subjective approach is very dangerous because it can just as easily be used to justify illegal conduct - by those whose personal moral views do not include respect for human rights.  Adherence to the rule of law means accepting that the law will be the final arbiter of legal disputes, regardless of what the law is or how we think it ought to be.

More practically, Dr. Ruggie's suggestion that corporations and their lawyers have the capacity to dismantle legal regimes in a country as developed as the United States simply by raising legal arguments before a court is hyperbole to say the least.  If the arguments raised by counsel before the Supreme Court are upheld, it will be because the Court concludes that their legal arguments on the scope of the ATS are correct in law.  The Court could easily reach the same conclusions whether or not counsel raised them in argument.  It is the Court's job to interpret the law as it is, which includes interpreting its proper scope.

I would go even further to say that determining the proper scope of legislation (be it narrow or broad) is a social good because it allows us to understand the law as it is - not just how we wish it were.  If the ATS or any other human rights statute is interpreted narrowly, it may mean that current protections of human rights are inadequate.  This may mean that there should be a political process for legislative reform.  But lawyers and defendants cannot reasonably be faulted for challenging an incorrect interpretation of an existing law.  That is not their proper role, and is not consistent with respect for the rule of law.

Dr. Ruggie himself found in the Protect, Respect and Remedy report that existing state or judicial protections of human rights are spotty, not comprehensive, and may not be adequate to provide effective remedies to protect human rights in all cases.  Accepting that is the case, the only credible answer to such inadequacy is to reform existing laws.  But it is way overboard to suggest that respect for human rights requires defendants to pretend that existing laws have greater scope or application than they actually do ,when formulating their defences. That kind of argument simply ignores the primary obligation of States to protect human rights which Dr. Ruggie emphasized in his influential report.  It shifts that responsibility onto corporations in an unfair and completely unworkable way, which ultimately undermines the rule of law.

Now, with all that having been said, the situation would be very different and highly improper (in a legal, ethical, moral and CSR sense) were a corporation to:
  • Lobby (through political or economic influence) against laws protective of human rights;
  • Influence a court or government body through non-legal or illegal means to not apply human rights protections that exist; or
  • Rely on the absence of human rights protections in law to engage in human rights abuses (as companies should be taking steps to respect human rights and avoid complicity regardless of the existence of judicial consequences for non-compliance - something Ruggie concludes in his report).
The foregoing scenarios would certainly be inconsistent with CSR and worthy of great disapprobation and criticism.  Why? Because those actions would be premised on a judgement by the corporation that human rights protections are not universal, don't create any obligations on them, and that respect for human rights is not necessary so long as there are no legal ramifications for doing so or where such ramifications can be illegitimately avoided. Such a position would be contrary to generally accepted norms of international law on human rights and certainly at odds with the Protect, Respect and Remedy framework.  It would also be a very unwise approach to take in light of the scrutiny, both judicial and non-judicial, that corporations receive on their human rights practices.

But such circumstances are highly distinct from the litigation strategy criticized by the Forbes blog and Dr. Ruggie and should not be lumped together.  A legitimate legal argument that a particular legal regime does not apply to a given situation of alleged human rights abuses does not undermine the rule of law or human rights. In fact, such arguments, if they have merit, challenge societies to develop effective remedies for human rights where existing remedies are inadequate.  That type of questioning and ability to honestly examine our approach to the protection of human rights is a critical part of the rule of law, liberalism and democracy and ultimately strengthen legal protections - if there is indeed political will to do so.

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