This chapter starts from the premise that business and human rights is much more complex than the impact of corporate practices on the fulfillment of human rights and environmental law. Rather, it is crucial that one identifies the underlying causes of this tension, namely: a) the broader corporate perspective in its transnational context; b) the inter-state investment relations and; c) the international financial architecture. Within all three of these, home and host states interact with each other, as well as with corporations. Powerful home states are lobbied by multinational corporations (MNCs) to create an international framework that better guarantees investment and trade. This is taken up as a policy imperative and reflected in international treaty making. States, both home and host, are clearly central to this process and their achievements, good or bad, will ultimately shape, or open up the space for subsequent corporate conduct. Hence, the starting point for our understanding of business and human rights should not be based on corporations themselves, but rather extend to all the contextual and underlying grounds that shape their existence, regulation and performance.

This chapter discusses the United Nations Global Compact (UNGC) and the OECD Guidelines for Multinational Enterprises as voluntary standards for business and human rights. Both standards have received significant scholarly attention. Although both initiatives differ with regard to some dimensions (e.g., in terms of their scope), they also share a number of similarities (e.g., their voluntary and principle-based nature and their lack of monitoring). It is therefore appropriate to discuss both initiatives and to also compare them with each other (whenever possible and feasible). The discussion in this chapter proceeds as follows. The next section discusses the theoretical background by emphasizing the rise of voluntary standards related to corporate sustainability and responsibility. The following two sections provide a more practical discussion. Section three and four take an in-depth look at the UNGC and the OECD Guidelines and discuss (a) the basic idea underlying both initiatives, (b) their link to the business and human rights agenda, and (c) their enforcement mechanisms. The discussion of both standards shows one important similarity: the lack of a robust system to implement and enforce the promoted principles.

The goal of the business corporation traditionally has been understood to be the maximization of shareholder wealth. A growing demand for social enterprise has led to the creation of various new forms of business organization, including the benefit corporation, that have the goal of creating both shareholder wealth and other public benefits. Although benefit corporations were developed to overcome the shareholder wealth maximization norm, it is not fair to say that they also overcome shareholder primacy. Properly understood, benefit corporations are shareholder-centric: they exist to allow shareholders to pursue altruistic goals rather than to require them to do so. This essay demonstrates this from the history and structure of the Model Benefit Corporation Act and argues that benefit corporation legislation ought to remain essentially enabling rather than mandatory in nature.

This chapter examines the main issues and achievements in the process of making MNEs human rights compliant. This involves, first, some understanding of the complexities of MNE organisation to highlight the problematic nature of attributing responsibility within what is a transnational network of interlocking entities linked either by ownership or contract or a mix of both. A distinction is made between integrated corporate group structures and looser transnational production and distribution networks between legally independent firms, often referred to as Global Value Chains (GVCs). Both have the capacity to violate human rights, but each has different control and accountability profiles.Secondly, the chapter will cover the main regulatory problems. These begin with the modalities of regulation. The UNGPs have stressed self-regulation through the corporate responsibility to respect human rights and the use of human rights due diligence (HRDD). MNEs operate as integrated enterprises, and GVCs as production and distribution networks, across national borders, while regulation remains bounded by the limits of sovereign state territory creating tension between the limits of national laws and the transnational nature of human rights claims against MNEs and GVC firms. The remainder of the chapter will cover substantive liability issues.

This chapter argues that corporate law is unique in a way that is not widely recognized, and is not unique in the way it is widely thought to be. First, unlike other fields of law where fiduciary obligations play a key role, in corporate law, not one, not two, but three distinct actors owe fiduciary duties—executive officers, directors, and controlling shareholders. The beneficiaries of those actors' duties, the reasons for imposing duties, and the scope and demands of fiduciary duties differ for the three actors. Thus, there is not a singular duty of care and loyalty in Delaware corporate law, but multiple variations of those duties owed by multiple actors. Delaware has a law of fiduciaries, not a fiduciary law. Second, this chapter challenges the supposed standard of conduct-standard of review divergence first hailed in 1993 by Professor Melvin Eisenberg as unique to corporate law.The construct was descriptively inaccuratewhen Professor Eisenberg first wrote, it has been little used by the Supreme Court since then, and the standards often converge rather than diverge.

Financial firms that offer investment advice to retail clients are beset by conflicts of interest: they may receive compensation tied to particular products, operate the financial products themselves, or be subject to other distortions. Regulators and lawmakers have looked to fiduciary and quasi-fiduciary duties to mitigate these conflicts. The paradigmatic example is the rigorous fiduciary standard imposed on registered investment advisers, but the Department of Labor’s now-defunct fiduciary rule, and the Securities and Exchange Commission’s recently adopted Regulation Best Interest similarly aim to mitigate problematic conflicts by imposing duties on those giving investment advice. These interventions largely focus on conflicts affecting which investment products investors are advised to hold, but other types of distortions, less discussed, may be just as important. This chapter offers an expanded account of conflicts of interest, how conflicts might interact, and how the fiduciary rule and Regulation Best Interest should be evaluated in light of this expanded menu of problematic incentives.

In this chapter, we first discuss the growing expectations for companies to address human rights and the need to develop business models that enable profits and human rights principles to co-exist. We then describe and discuss two empirical cases of companies that are experimenting with new business models to align the expectations for profits with the protection of human rights. The first case from the sportswear industry shows how Decathlon, a French sports retailer, has revised its purchasing practices to create partnerships with its suppliers with a view to improving both productivity and working conditions. The second case, from the extractives sector, discusses how Trafigura, a Swiss-based commodity trading company with headquarters in Singapore, has set up a collaborative project with a mining company to formalize the artisanal mining activities of cobalt in the Democratic Republic of the Congo (DRC) to mitigate human rights risks. Both cases illustrate actions taken by companies to embed human rights into their core activities while also developing their businesses. These cases provide anecdotal evidence for the hypothesis that systematically integrating respect for human rights can indeed go hand in hand with financial success and be considered ‘good business’.

Concluding that even if economists cannot agree why shareholders should have priority, they are nevertheless agreed that this is the case, the chapter goes on to examine the legal position of different stakeholders in the context of the company by referring to the thorough reform process observed in the UK some two decades ago. Noting then that, despite such a comprehensive debate, the enlightened shareholder value solution (ESV) arrived at remains controversial, and recognising that, in any case, such formal statutory provisions by no means exhaust the arrangements in place for corporate governance, the chapter goes on to look at the hugely influential development of essentially self-regulatory, best-practice based arrangements that are now a feature of stock markets throughout the world. Insofar as the experience of the jurisdiction from which this approach emerged has not been uniformly positive, the chapter proceeds to examine the alternative approach of a strict rule-based approach to corporate governance, taking the US as an example. Despite the problems associated with any alternative, these apparent limits perhaps explain the ongoing and indeed intensified interest in the notion of corporate social responsibility. The chapter goes on to seek clarity in a definition of CSR which draws a distinction between what society requires corporations to do and what it is willing to regard as optional. Noting, however, that encouraging legislators to take firm action in the face of the fear of capital flight can be difficult in the absence of some clear evidence of a problem (and even then, in some recent cases), the question is then whether the recent enthusiasm for environmental, social and governance (ESG) reporting is a reasonable way forward.

Recent developments in investment arbitration have reaffirmed that corporations are not only recipients of rights under bilateral investment treaties, but also subjects of international law and can thus bear at least some human rights obligations under international law. Moreover, in a growing number of cases such as Philipp Morris, civil society intervened as third party by relying heavily on human rights arguments, thus enabling affected communities to voice their interests. The present contribution thus investigates the multiple roles of human rights in investment law and arbitration. It argues that human rights play an important role for state parties, foreign investors, and affected communities alike. They are not only conflicting and complementary to investment treaties, but can both expand and restrict the scope of jurisdiction of investment tribunals. For states, investors, and third parties alike human rights can be used as a sword or a shield in international investment law and arbitration. The different roles human rights play in investment law and arbitration very much depend on the underlying concept of human rights.

This chapter provides a critical overview of the UNGPs and its three predecessors: the 1990 Draft Code, the Global Compact, and the Draft UN Norms. The current BHR treaty process, which is dealt with elsewhere in this book, is touched upon briefly because of space constraints. In providing an overview of various attempts at the UN level to regulate corporations, two arguments are made in this chapter. First, we should see the UNGPs as part of a continuing process to develop standards at the UN level, rather than as a complete new start. Second, it is argued that the UN has made too little and too slow progress in putting in place an effective regulatory regime. In making such an assessment about the progress made so far in ‘humanizing business’, the author attempts to step in the shoes of rights holders, because progress could be interpreted differently from the perspective of different stakeholders.

The statutory regime that governs employee benefit plans includes fiduciary provisions that track the obligations of loyalty and care developed in trust law. Relationships among key benefit plan actors, however, never have mapped neatly onto the trust law structure of settlors, trustees, and beneficiaries. In particular, the self-interest of the employers that sponsor benefit plans is in tension with their fiduciary obligations. Changes in the relative importance of some types of benefit plans have caused the tensions to become more acute. To address the relationships among benefit plan actors and the tensions between self-interest and fiduciary obligation, courts have developed implementing rules to adapt the fiduciary standards to the employee benefit plan ecosystem. This chapter compares two implementing rules to identify differences in the ways they function and have adapted to the current plan paradigms.

The goal of this chapter is to

» explain the importance of networking in participatory community practice.

Objectives of the chapter are to enable the reader to:

» understand the concepts ‘networks’ and ‘networking’.

» understand the process of networking.

14.1 INTRODUCTION

A network is a system of linkages by means of which diverse individuals, groups, projects and organisations may be flexibly linked through communication and interaction to exchange information and resources in order to expand their effectiveness.

To think in terms of networks and networking is to think in terms of a whole that is made up of various parts. The more effective and stronger the various connections and relationships are, the more effective the whole is likely to be. And the better each part is connected, the more effective each part is. Think of a fishing net. If there are too few connections, the holes in the net will be too big, and many fish will not be caught.

Any part of a network may simultaneously be part of other networks because networks can overlap. Being connected to different networks enriches and increases effectiveness and provides more access to support and resources.

The basic assumption underlying networking is that all social organisms are in interaction with their context and are dependent on their context for actualisation, maintenance and development. No social organism is entirely self-reliant; all need one another and have something to contribute. Networking is a reciprocal process, not one-sided, but adds value – all participants benefit and contribute, sustaining reciprocity and interdependency rather than dependency.

Goal of the chapter is to:

» outline ethics and principles for community practice.

The objective of the chapter is to enable the reader to:

» have a good understanding of ethics and important principles for participatory community practice.

4.1 INTRODUCTION

Community practitioners often experience situations where they have to make choices between different actions. All actions have ethical implications. They have to reflect and decide which course of action is more ethical than the alternatives. The principles of community practice are intended to guide these choices.

4.2 ETHICS FOR PARTICIPATORY COMMUNITY PRACTICE

Ethics refers to the values, norms and moral judgements that guide behaviour. Ethics is concerned with morality; its focus is on questions about what is considered the ‘good’, ‘right’, ‘correct’, ‘not harm’ or an ‘ethical’ position to adopt in a situation. ‘Ethics provides a basis for defining professional good actions and “good and bad guys’ (Hardcastle & Powers 2004:20). Ethics implies a responsibility and a duty. It provides guidelines to the community practitioner on how to act towards communities, colleagues, organisations and other professions. Professional ethics protect the community, the community practitioner, other community practitioners, the organisation and the profession. Through such ethics, malpractice is prevented, and quality service and professional competence are ensured. Ethics implies transparency and accountability towards the community, the employing organisation, and funders.

All actions by community practitioners should be critically reflected upon and questioned, because all actions have ethical implications. We should always ask whether what we are doing is ethical.