My name is Robert Grabosch, I’m an attorney at a small commercial lawfirm in Berlin.
I am partly excited to have been here – and partly disappointed.
It is good to see that lawyers are finally acknowledging that they have a role to play with helping their clients to respect human rights.
But sadly there is still little recognition of how far reaching the legal implications really are.
When a corporate officer tells us that she is aware of her legal duty to take care that her business abides by the law and doesn’t cause damage, but that she is just not sure what exactly her duty of care implies in a difficult parent-subsidiary constellation or in a global supply chain, we will find hardly any guidance in the law. So what measures are reasonably expected of a prudent corporate officer? The ones that the Guiding Principles and other soft law instruments outline? It would be great if the Working Group could make a clear statement on whether the Guiding Principles can be helpful for businesses persons and lawyers when it comes to the carrying-out of legal duties of care.
Also little attention is paid to the question of which clauses businesses should put into their contracts with commercial agents, business partners or subsidiaries in order to avoid negative human rights impacts.
One more area of law that is overlooked is competition law. Competition is after all a root cause for why businesses get involved in negative human rights impacts. We have very good competition laws in Europe. Commercial practices that are unfair are also illegal and can be proceeded against by competitors.
The Federal Court of Justice of Germany has ruled that as we interpret the term “unfair commercial practice”, we need to look at internationally agreed on human rights standards. Exploiting host state standards that are lower than home state standards is not as such unfair. But the court also ruled that when the host state standard falls below “basic moral requirements, that all societies should meet”, then a business practice can be “unfair” in terms of competition law.
It would be helpful if lawyers would address these legal opportunities in their consultations and in contract drafting.
But this is difficult for lawyers as it is a sensitive subject and the Working Group has not yet advised the business community to seek legal tools to ensure that they and others meet the expectations raised at them.