Could there be room for Corporate Social Responsibility in legal consultations? This would seem to be a controversial question, considering that politicians and business consultancies often find CSR to be an entirely non-legal issue, concerning voluntary good deeds of business enterprises for the benefit of the society.
The Council of Bars and Law Societies of Europe (CCBE) has now tanken stance. In a “Guidance” paper , the CCBE points at the connections that legal consultation has – or should have – with soft law. According to the CCBE, hard law cannot easily be kept apart from soft law.
When civil courts asses the scope of liability of a business enterprise, they can well take soft law into account. The CCBE regards “soft law as a precursor of hard law […]. When they act as counsel, lawyers may have therefore a duty to provide relevant advice on CSR soft law.” The CCBE explicitly names the UN Guiding Principles on Business and Human Rights, the OECD Guidelines for Multinational Enterprises, the Equator Principles and the International Finance Corporation Standards on Environmental and Social Sustainability. Furthermore, there are many more soft law mechanisms, some of which raise some very concrete demands at business enterprises of specific sectors of the economy. Whether, in a difficult situation, a business enterprise has proceeded with appropriate care might often be well determined with a look at those standards of soft law.
This change in the legal profession had been pointed towards some years ago by the legal literature, see for instance publications by J. Zerk , R. Mares , see also Grabosch , Rechtsschutz … (2013) and Prospects … (2011) .
Have there been lawsuits yet by human rights defendants who base their claims against business enterprises on arguments of soft law? Looking at the (few) examples of such lawsuits in Europe, the answer is probably: No. At least for now. Business enterprises and corporate lawfirms, however, seem to be wide awake. The last UN Forum on Business and Human Rights was not only frequented by an increased number of businesses but also, for the first time, by well-known corporate law firms. The risk is noted.