I. Introduction
External experts—which include legal advisors, social auditors, non-profit consultants and certification bodies—play a pivotal role in shaping compliance with the UN Guiding Principles on Business and Human Rights (UNGPs). They form part of the polycentric world envisioned in the UNGPs by John Ruggie, where implementation of the corporate responsibility to respect is in fact mediated through the work of many actors.Footnote 1 Through designing, undertaking, auditing and certifying human rights due diligence (HRDD) processes, external experts influence how businesses identify, understand and mitigate human rights risks under the UNGPs framework.Footnote 2 A growing expert industry has emerged as businesses increasingly outsource HRDD tasks in response to the rise of mandatory HRDD requirements.Footnote 3 As such, these actors are becoming the focus of emergent yet significant empirical research in the business and human rights (BHR) field.Footnote 4
To better understand the contours of expert responsibility in supporting corporate compliance with the UNGPs, this article examines the extent to which external experts are emerging as legal subjects in litigation concerning actual or potential corporate human rights harms. To date, research on external experts has largely overlooked their presence in judicial approaches to remedy. Several factors contribute to this gap, particularly the limited availability of case law directly addressing the liability of external experts in the field. Nonetheless, this remains a missed opportunity, given both the importance of remedy for corporate human rights harms and the significance of judicial decisions in the interpretation of BHR norms. While the primary purpose of human rights litigation is the remediation of harm, it also serves as an important site of socio-legal inquiry. The effect of litigation extends beyond the rights claim at hand, illuminating overlooked subjects, principles and structures of legal fields.Footnote 5 In doing so, it can help consider how external experts are subject to evolving expectations regarding their potential responsibility in relation to human rights harms, and how they may function as co-constituents in the development and operationalisation of BHR law.
The article unfolds as follows. Part II provides an overview of the study of external experts in the BHR field. Cognisant of the gaps in research relating to expert responsibility, Part III then moves to demonstrate how litigation can be used as site of analysis to provide insights into previously invisible actors through a ‘visibilisation’ process.Footnote 6 Using this basis, three landmark BHR decisions—Araya v Nevsun,Footnote 7 Les Amis de la Terre et al., v Total S.A.,Footnote 8 and Corporate Accountability Lab (CAL) v Hershey and Rainforest Alliance Footnote 9—are analysed in Part IV to make visible the role of external experts. This analysis focuses on civil claims, since they make up most actions brought against companies for human rights harms. Each case was chosen specifically both for its relevance to the BHR field and for featuring external experts involved in supporting the companies’ compliance with the UNGPs. Expert work is scrutinised from various perspectives through this litigation, including their methodologies in human rights assessments, practices, and the relationship with the named defendants, the multinational corporation. Whether through the submission of testimony, the inclusion of human rights assessments in legal arguments, or direct challenges to expert methodologies, this article contends that external experts’ legal subjectivity can encompass both an evidentiary role and a functional participation in corporate processes. This dual role raises important questions about accountability, particularly given their influence on the design and implementation of HRDD and their involvement in shaping the narratives through which corporate conduct is assessed. Building on these findings, Part V of the article then examines how the trend of expert responsibility is likely to evolve through case law, particularly as we enter the ‘era’ of mandatory HRDD.Footnote 10 Part VI offers concluding thoughts.
This research both complements and advances theoretical and empirical research by providing concrete insights into the role of experts, revealing the characterisation of external experts and implications of their presence in judicial decisions, and highlighting the broader effects of expert involvement as actors implicated in human rights harms perpetuated by multinational corporations. In doing so, it offers an original and ‘visibilising’ intervention on expert responsibility and on the future of business and human rights governance.
II. Situating the External Expert and Their Responsibilities under the UNGPs
The UNGPs provide us with a starting point to understand external experts in this field. They highlight the importance of external experts in assisting companies with the implementation of HRDD and, in certain cases, providing adjudication in remediation mechanisms.Footnote 11 The more complex a situation and its potential impact on human rights, the stronger the case for the company to draw on independent expert advice in ‘deciding how to respond’.Footnote 12 As suggested by the OHCHR’s Interpretive Guidance on the corporate responsibility to respect, their input may also be particularly useful where trust between parties is lacking.Footnote 13 It was envisioned that external expertise could be drawn from both public and private organisations, ranging from national human rights institutions, legal professionals, management consultants and auditors.Footnote 14 In the years since the adoption and proliferation of the UNGPs, a burgeoning industry of boutique human rights consulting firms, non-governmental organisations (NGOs), certification schemes and multistakeholder initiatives (MSIs) has emerged.Footnote 15
As other scholars and I have argued elsewhere, external experts in the BHR field, despite their institutional diversity, share a unifying purpose: providing services that enable companies to demonstrate alignment with the UNGPs.Footnote 16 This support ranges from designing corporate policies, assessing human rights risks, advising on potential adverse impacts, undertaking human rights impact assessments, providing certification on HRDD practices, and assisting with operational-level grievance mechanisms.Footnote 17 Many of these actors are private entities and some have incorporated as ‘non-profit organisations’. Many are subject to professional standards or internal codes of conduct.Footnote 18 Despite many being businesses themselves and thus falling under the remit of the UNGPs, what distinguishes them is not the form of their organisation but the particular function in the BHR ecosystem that is distinct from the multinational corporations they advise.Footnote 19 Until recently, they have been treated as apolitical mediating bodies, a perception arguably reinforced by their ambiguous treatment in the UNGPs and their related documentation.Footnote 20
Emerging scholarship on external experts has examined the discursive authority of external experts, highlighting their intermediary role in interpreting the corporate responsibility to respect human rights.Footnote 21 Others have demonstrated the impact of experts on shaping and reshaping transnational regulation, particularly within the UK and European context.Footnote 22 Those who carry out human rights impact assessments have also come under increased scrutiny.Footnote 23 With regards to MSIs, scholars have assessed their ability to interpret and define human rights standards for companiesFootnote 24 or provide effective remedy.Footnote 25 Certification schemes have received less attention overall in the BHR literature, though this is likely to change with the introduction of mandatory HRDD laws.Footnote 26 A pertinent (yet under-researched) element of this body of work further assesses the potential liability when carrying out expert work, focusing on the liability of social auditors and third-party certifiers.Footnote 27
Given this advisory function, external experts are unlikely to fall within the ambit of direct legal responsibility for corporate harm, though as a recent complaint to the UN Working Group on Business and Human Rights suggests, expert work could be linked to human rights impacts if the harm arises as a result of their advisory work, or if the work carried out is inadequate to the extent that it risks facilitating human rights abuses.Footnote 28 To better understand expert accountability, it is essential to analyse what external experts do and the roles they play in the implementation of the UNGPs. This is not an easy task. Issues of client confidentiality and limited reporting transparency persist and present significant obstacles. Experts and their clients alike may justify non-disclosure by claiming that comprehensive HRDD processes necessitate sharing commercially sensitive information. This position conflicts with the UNGP framework, which, though minimally prescriptive, encourages greater transparency.Footnote 29 Certain case studies may be shared publicly with agreed-upon parameters and business clients may cite how they utilise external expertise when undertaking HRDD in their reports. Yet these examples are often abridged, selective, or tightly managed.Footnote 30 This lack of transparency hampers understanding of how external experts fulfil their duties and provides insufficient information to determine their responsibility for potential adverse human rights impacts.
With this challenge in mind, previous scholarship has sought to shed light via empirical research on how external experts understand their role, the tasks they undertake, and the issues faced when advising clients. Research has further examined the strategies employed by external experts to navigate the complexities of translating the UNGPs into actionable guidance for corporate clients in two case studies.Footnote 31 Other work focuses on the ‘many hats’ of external experts as knowledge providers, diplomats, critics and legitimisers.Footnote 32 Harrison and Wielga in their study of 22 HRDD professionals again acknowledge the diversity of approaches to HRDD practices, in addition to the methodological and technical challenges present not only in the actual performance of assessments, but in the implementation of recommendations arising from expert practice. Power dynamics within client relationships and the prevalence of superficial practice within the field were particularly felt.Footnote 33
The above empirical research provides valuable insights into the dynamics at play during the exercise of external expert work, particularly important given the often-opaque settings in which this work takes place. While this research has begun to map the functions and influence of experts in supporting corporate compliance with human rights standards, comparatively less attention has been paid to whether and how responsibility is being ascribed to these actors when alleged harm occurs. Despite their increasing significance in shaping corporate human rights strategies, external experts continue to occupy a peripheral position in legal accountability discourse. Where this has been addressed to some extent, existing scholarship has provided important conceptual frameworks for understanding the potential liability of social auditors and in tracing the treatment of certifiers and MSIs within the specific instance procedures of OECD National Contact Points (NCPs). Footnote 34 One strand of inquiry that remains overlooked is the configuration of external experts within existing judicial grievance mechanisms. This absence points to a significant gap in scholarship, given the centrality of juridical remedy in addressing corporate-related human rights harms and the interpretive authority of litigation in shaping the normative contours of the field. It is therefore essential to examine how external experts are constituted as legal subjects within judicial reasoning. The following parts develop this analysis by advancing the concept of ‘visibilisation’ through litigation and applying this framework to three illustrative cases of corporate accountability.
III. ‘Visibilising’ the External Expert Through litigation
Much of the litigation in the BHR field can be categorised as ‘strategic’ human rights litigation. While such litigation may result in concrete legal judgments or precedents, its transformative ambitions often extend well beyond the courtroom, with the aim of achieving broader political, social, or legal reforms beyond their immediate potential to provide remedies and establish legal precedents.Footnote 35 By bringing attention to specific legal and policy gaps, such litigation also aims to develop jurisprudence, inform evolving interpretations of both binding and non-binding legal standards, and exert pressure for institutional or legislative reform.Footnote 36 It can produce important spillover effects, shape public discourse and elevating underrepresented or marginalised issues to the political agenda.Footnote 37 Though ambitious, the capacity of judicial mechanisms to deliver meaningful and effective redress has been the subject of extensive discussion. Scholars such as Wettstein and Schrempf-Stirling have noted that in strategic litigation concerning corporate human rights abuses, courts have, to date, had only limited success in producing effective remedies for victims, and that their influence on corporate conduct remains mixed.Footnote 38 There also remains a wider and more fundamental debate surrounding the emancipatory potential of strategic litigation, wherein by framing complex social and political struggles within juridical terms, such approaches risk stripping conflicts of their political character, reinforcing the institutional logics and power asymmetries inherent in capitalist legal orders.Footnote 39
Despite these limitations, sociolegal research has theorised that strategic litigation remains a site of constitutive and political contestation, one may yet serve as a way to bring to the surface unseen priorities and exclusions.Footnote 40 Such approaches emphasise the ability of litigation to illuminate social struggles and to provide actors ‘with access to a public forum in which they can make visible the ways in which they are affected by relations of domination’ (albeit limited through the juridical context).Footnote 41 In this vein, in her research on transnational reproductive health law, Atina Krajewska frames strategic litigation as one way in which subjects assume legal personality through a ‘visibilisation’ process.Footnote 42 Here, subjects ‘who remain excluded from or marginal to the legal sphere become legally relevant because of the recognition of their particular entitlements and obligations’.Footnote 43 Visibilisation therefore provides a particularly useful analytical concept in transnational legal fields (such as BHR), which are characterised by the often fuzzy boundaries between public and private law, the development and eventual ‘hardening’ of soft law principles, and the wide variety of actors that co-constitute the field.Footnote 44 In the wider study of BHR litigation, visibilisation might initially offer a lens to examine how individuals or communities harmed by corporate abuse but who lack adequate recognition or protection under prevailing legal regimes are rendered visible as subjects of rights through legal processes.
However, the visibilisation process need not be confined to victims or rightsholders, but can shed light on other obscured subjects in the context of particular legal expectations and their obligations, whose influence has remained hidden or insufficiently understood within the field.Footnote 45 As such, this article adopts a deeper reading of visibilisation, suggesting that it can also function as an analytical tool providing insights into the configuration of previously invisible actors or structures that create and perpetuate legal rules and norms through a juridical lens.Footnote 46 Even where actors may remain formally outside the spotlight of direct legal responsibility, visibilisation enables a critical interrogation of the power relations embedded in transnational legal processes, including how certain actors come to shape particular legal expectations on corporate responsibility for human rights abuses. Through this lens, we can examine emergent forms of legal subjectivity and explain how new actors and organisations ‘operate formatively in the constitutional construction’ of BHR law.Footnote 47
Given the challenges in assessing the role of external experts under the UNGPs, BHR case law serves as a useful site for visibilisation. These decisions provide concrete illustrations of how courts understand the role of external experts and, in some instances, interpret their actions in relation to human rights harms. By analysing the decisions, obiter and even the submitted evidence of the respective parties involved in cases, we therefore gain insights into how external experts contribute to or mitigate alleged adverse human rights impacts, as well as the extent to which experts are presently being held accountable for their advisory roles and envisage how this might evolve over time. This perspective complements existing theoretical and empirical research by illustrating tangible consequences of expert work, thereby fostering a deeper understanding of their responsibilities within the framework of the UNGPs.
IV. Case Law
Effective judicial mechanisms ‘are at the core of ensuring access to remedy’ for victims of corporate human rights harms.Footnote 48 Litigation for alleged harms is an increasingly global trend, drawing on various legal bases to pursue accountability, including tort, administrative, constitutional, environmental, employment and advertising law.Footnote 49 The drive towards mandatory HRDD has also become a key basis for litigation in Europe.Footnote 50 The present analysis is limited to civil claims, which constitute the vast majority of actions brought against companies for human rights harms. While jurisdiction and applicable law might vary, each of the chosen cases represents a significant and impactful BHR case. The cases have been selected both for their legal significance and because they involve external experts playing a direct role in supporting companies in the compliance with the UNGPs. Through an excavation of each case below, this article illuminates how these experts are involved in various guises, whether they are included to provide contextual evidence during the case, included in complainant evidence linked to a company’s human rights impacts, or specifically named as co-defendants.
A. Araya v Nevsun
Arguably one the most significant BHR cases of the last few years, Nevsun v Araya was the first mass tort claim allowed to proceed in a Canadian court.Footnote 51 The case concerned claims of forced labour, slavery and inhuman and degrading treatment at Bisha mine in Eritrea, which was majority-owned at the time by the Canadian mining giant, Nevsun Resources. In 2020, the Canadian Supreme Court held for the first time that, in principle, a private corporation may be liable under domestic law for breaches of customary international law committed in other countries, allowing the claim to proceed.Footnote 52
For the purposes of this article, another detail of the case is also significant: its inclusion of evidence from an external expert in the lower courts. Initial proceedings in Araya v Nevsun were brought by the Eritrean refugees before the Supreme Court of British Columbia (SCBC), where Nevsun filed to dismiss the claims.Footnote 53 It also sought to strike out certain evidence submitted by the plaintiffs on grounds of inadmissibility.Footnote 54 Included in this motion were transcripts from a hearing at the House of Commons Subcommittee on International Human Rights, related to human rights issues in Eritrea. In consideration of the admissibility of the transcripts, Judge Abrioux broadly ruled in favour of Nevsun, with the exception of testimony given to the Subcommittee by Nevsun’s then CEO, by its vice-president for corporate social responsibility, and by an independent human rights expert. The expert, Mr Lloyd Lipsett, had been appointed by Nevsun to conduct a human rights impact assessment (HRIA) on Bisha mine between 2013 and 2014. These testimonies were allowed into evidence on a limited basis, to provide ‘a broader context’ to Nevsun’s evidence and objections.Footnote 55
In his extensive statements to the Subcommittee, the independent human rights expert set out his professional experience on HRIAs and the relevant activities included in the HRIA of the Bisha Mine, which included site visits, policy reviews, and interviews with workers, community leaders, company managers, unions, lawyers and government officials.Footnote 56 The HRIA screened and reviewed the ‘full spectrum of human rights’, using tools from the Danish Institute for Human Rights and the human rights organisation Rights and Democracy to structure and customise the assessment.Footnote 57 The HRIA further relied on the UNGPs to frame the fieldwork carried out as part of the assessment and the report was made publicly available.Footnote 58 In his concluding remarks to the Subcommittee, Mr Lipsett stated that ‘there are some differences between external reports and what I was able to observe on the ground…[f]rankly, I expected a more militarised and overtly repressive environment…’.Footnote 59 He went on to state he was unable to ‘make a definitive finding about some of the past allegations about the Bisha’.Footnote 60 Later, Mr Lipsett acknowledged that ‘there are two stories and there is a middle narrative’Footnote 61 and ‘I know these are contested issues and I don’t want to wave this report and say I have some magic bullet’.Footnote 62 Mr Lipsett further commended Nevsun on their transparency, engagement with stakeholders and their follow-up action plan.Footnote 63
The decision of the SBSC did not turn solely on the evidence provided by Mr Lipsett’s testimony, with the Court of Appeal in British Columbia and then the Canadian Supreme Court eventually allowing the claimants to continue successfully. Nonetheless, as Rogge points out, background ambiguity is typical of extractive company-community conflicts.Footnote 64 On the ground, information can be incomplete, reflecting disparities between the lived experiences of communities and companies, and situations change rapidly.Footnote 65 Where litigation includes evidence by external experts, this can shed light on their methodologies, their professional expertise and their experiences of undertaking HRDD work in a particular location. Additionally, it demonstrates, as previous research has alluded to, how experts can exert authority in the implementation of the UNGPs, as knowledge providers and in the facilitation of dialogue between seemingly disparate groups.Footnote 66 In this context, expert testimony is not necessarily determinative evidence, but instead a means of mediating these knowledge gaps. BHR litigation—particularly the transnational tort cases (which make up the majority of case law)—often takes place in a location far removed from the alleged human rights abuse. With the aforementioned ambiguity, the contextual contributions of external experts in BHR litigation via secondary evidence or public testimony therefore take on a deeper significance.
B. Les Amis de la Terre et al v Total
The next case study examines the role of external experts in BHR litigation through the French case Les Amis de la Terre et al v Total. Footnote 67 This case is particularly significant as the first legal action under France’s 2017 Vigilance Law, which partly incorporated the UNGPs into French law.Footnote 68 Under this legislation, French multinational companies must implement a vigilance plan to conduct HRDD for their own activities, as well as those of their subsidiaries, subcontractors and suppliers. In this case, Friends of the Earth and five other NGOs sued the oil giant Total, arguing that its vigilance plan for major oil projects in Tanzania and Uganda was inadequate.Footnote 69 The claimants sought an injunction to prevent further harm, asserting that Total had failed to meet its obligations under the Vigilance Law. As a test case, it exposed the difficulties of pursuing such litigation, particularly concerning judicial competency and admissibility.Footnote 70 The case moved through multiple French courts before ultimately being dismissed without a ruling on the merits.Footnote 71 Following the dismissal, 26 community members affected by the oil project filed a separate claim seeking compensation for damages suffered since the project’s inception.Footnote 72
For our purposes, the submitted case documents provide an insight into how experts were allegedly implicated in Total’s failure to comply with the Vigilance Law, though not named as defendants in the case. The formal notice submitted by the claimants in 2019 was accompanied by a report highlighting the involvement of two consulting firms: Atacama Consulting Ltd, a Ugandan environmental and social consultancy, and Newplan Consulting Ltd, an engineering consultancy.Footnote 73 These firms were subcontracted to oversee the ‘land acquisition and resettlement programmes’, including registering grievances for communities affected by the Tilenga project and the EACOP pipeline, respectively. According to the claimants, these programmes—particularly the Ugandan Tilenga project—allegedly amounted to ‘land-grabbing’, violating various human rights of the impacted communities.Footnote 74 Tilenga alone was estimated to displace over 31,000 people.Footnote 75 Research carried out by the claimants alleged that Total, acting through Atacama and Newplan, had variously threatened communities, prevented individuals from using their land without adequate compensation, and failed to provide adequate grievance mechanisms while engaging in a range of other retaliatory activities.Footnote 76 Though not formally named as co-defendants in the suit, the claimants requested that Total establish and publish a vigilance plan to prevent the serious human rights harms resulting from the activities of Total and its subcontractors.Footnote 77
While litigation on the particular issues above remains at an impasse, in 2023, the Human Rights Watch (HRW) wrote to Total, Atacama and the other consultancies highlighting similar concerns to those highlighted in the original case.Footnote 78 In particular, in the interviews conducted by HRW, families described intimidation by Total representatives and representatives of its subcontractors. Families had been pressured to accept cash settlements after displacement that were below the cost to replace land and HRW identified significant gaps between the commitments made by Total and Atacama in their responses to the report, and the lived realities of the communities affected by the projects.Footnote 79 This information is also supported by reports from the International Federation for Human Rights (FIDH) and Global Witness.Footnote 80
Like the first example, expert work is not the focus of this case. However, Les amis de la Terre helps to identify and make known the work of external experts and their involvement in alleged human rights harms, even when the primary focus remains on a multinational company. External experts, often drafted in to assist companies on their implementation of the UNGPs on the ground and in the mitigation of human rights harm, can instead, in this role, serve to contribute to alleged human rights violations. The subcontracting relationship between the consultancies and the company was a core component of the claimant’s case, and the work carried out by consultancies on behalf of Total highlights the contested neutrality of the external expert in certain contexts and roles. It points to broader issue of accountability in corporate subcontracting chains, where consultancies and other third-party actors play a crucial role in supposedly implementing the UNGPs—circumstances where there remains a clear lack of oversight.Footnote 81
C. CAL v Hershey and Rainforest Alliance
The third case in our sample originates from US consumer protection law. Although this approach is less conventional within the realm of BHR litigation, consumer protection law can play a critical role as a kind of ‘gap filler’ in addressing irresponsible corporate practices.Footnote 82 This case also introduces a notable distinction compared to the previous two examples. In the earlier cases, external experts were involved only through evidence submitted by the claimants, with the focus primarily on the direct defendants, i.e., multinational corporations. By contrast, CAL v Hershey and Rainforest Alliance takes a different approach, naming the external expert as a co-defendant alongside the company.
In this action, CAL sued confectionary conglomerate Hershey together with Rainforest Alliance, an environmental certification organisation, under the District of Columbia Consumer Protection Procedures Act for making ‘false and deceptive representations’ about the sustainability and ethical sourcing of its chocolate products. The complaint alleged that Hershey’s claim of using sustainably sourced cocoa was misleading, as the cocoa used in its chocolate had a ‘well-documented connection to child labour and other exploitative labour practices’.Footnote 83 In evidencing this claim, CAL pointed to its own investigation of Rainforest Alliance-certified farms, where multiple incidents of child labour were found.Footnote 84 Additionally, CAL argued that Rainforest Alliance’s certification process does not explicitly require compliance with international human rights or labour standards.Footnote 85 The lawsuit further alleged that Rainforest Alliance continued to certify farms as ethical despite evidence of child and forced labour, discrimination, and workplace violence and harassment.Footnote 86 CAL also criticised Rainforest Alliance’s auditing process, claiming it was consistently lax and failed to uphold the rigorous sustainability standards it promoted.Footnote 87
In 2023, the District of Columbia Superior Court dismissed CAL’s suit against Rainforest Alliance on procedural grounds, due to a lack of personal jurisdiction in the District. The inclusion of Rainforest Alliance’s certification on Hershey products sold in Washington, D.C. did not amount to significant enough reason for the case to proceed against the certifier. The case against Hershey was initially allowed to proceed, with both parties agreeing to settle the case in 2024, on the basis that Hershey suspended its use of Rainforest Alliance’s seal on their products.Footnote 88 This is not the end of the Hershey/Rainforest Alliance saga in the US, with another consumer protection case suit filed in Illinois, similarly alleging that both company and the certifier are misleading consumers on their ethical sourcing and certification practices.Footnote 89
Unlike the previous cases, which focused solely on corporate defendants, this case emphasises the certifier’s role in potentially deceptive representations. The decision does not set binding precedent for the responsibilities of certification organisations under consumer protection law. Indeed, the refusal to allow the case against Rainforest Alliance to proceed suggests an underlying ambivalence towards how experts might be held directly accountable for potentially unethical practices. Yet importantly, the evidence submitted in the complaint by CAL brings critical attention to the certifier’s role in enabling corporate misconduct. Rainforest Alliance’s conduct takes centre stage, and their methodologies, practices and policies come under significant scrutiny. This makes visible the importance of certifiers and certification processes; in this instance, they are not simply neutral third parties, but actors with tangible responsibilities in shaping corporate conduct.
V. The Future of External Expert’s Legal Subjectivity
This article demonstrates the importance of looking below the surface in existing BHR jurisprudence to understand the configuration of the external expert. Though the question of their direct responsibility for human rights harm is rarely the subject of litigation, expert work is nevertheless scrutinised through the above cases, highlighting the various human rights methodologies and practices used, and the relationship with the multinational corporations.
In Nevsun, expert work served as a contextualisation tool, admitted into evidence to authenticate experiences where there is ambiguity. The expert functioned as an evidentiary facilitator, necessary for the courts to grapple with the nuances of alleged human rights abuses, highlighting their role as contributors to the legal narrative. In Les Amis de la Terre, expert involvement extended beyond mere observation or assessment, demonstrating how expert work could contribute to corporate human rights harm through a subcontracting relationship, where the experts carried out tasks on behalf of the company which negatively impacted upon communities. It therefore raises questions about the extent to which experts can be held responsible for adverse impacts linked to their tasks, underscoring their potential legal subjectivity as co-contributors to harm. Finally, through the case against Rainforest Alliance, we can see how the methodologies of expert actors come under clear scrutiny when named as co-defendants, making visible their structural role in shaping and endorsing corporate narratives of ethical compliance.
Taken together, this visibilisation exercise demonstrates that external experts’ legal subjectivity can encompass both an evidentiary role and a functional participation in corporate human rights processes. This dual role raises important questions about accountability, particularly given their influence on the design and implementation of HRDD and their involvement in shaping the narratives through which corporate conduct is assessed. External experts’ legal subjectivity is not limited to instances in which they are parties to litigation, but embedded in the very epistemic frameworks through which business and human rights claims are understood and adjudicated.
Looking to the future, BHR litigation is likely to continue apace, with the focus remaining largely on harms caused by multinational corporations. Building on the case studies above and cognisant of recent regulatory developments, the final part of this article will briefly survey the future of external experts’ emergent legal subjectivity in BHR litigation. As we enter the age of mandatory HRDD, the regulatory context will likely shape the legal subjectivity of various categories of external experts. Primarily, experts may find that their relatively invisible status in litigation becomes more detectable through the incorporation of international norms (such as the UNGPs) into domestic legislation.Footnote 90 A pertinent example of this can be found within the text of the Corporate Sustainability Due Diligence Directive (CSDDD). The adopted legislation (provided that it remains intact in its current form),Footnote 91 expects that in-scope companies will use MSIs to create leverage and to identify, mitigate and prevent adverse impacts.Footnote 92 It further recognises that companies may also use ‘independent third-party verifiers to support the implementation of due diligence obligations’, though even when companies make use of these services, they may still be held liable for failing to comply with the legislation.Footnote 93 In a similar fashion to the UNGP’s commentary on external experts, verifiers should act with objectivity and complete independence from the company, remain free from external influence, and refrain from contravening this independence. Depending on context, they should have experience in environmental or human rights matters.Footnote 94 Of particular importance is the statement that these actors shall be accountable for the quality and reliability of verification.Footnote 95 Though this is not elaborated on, the CSDDD raises the question that experts could face liability for flawed assessments or inadequate risk mitigation strategies (as in CAL v Hershey and Rainforest Alliance), though the extent to which this will be enacted by individual Member States is unclear.Footnote 96 While the CSDDD might have an effect on the legal responsibility of experts, mandatory HRDD may also require courts to more heavily rely on evidence provided by experts when claims are brought against in-scope companies. New legal obligations, compliance requirements and interpretive challenges all point towards more technically complex litigation. As demonstrated by Nevsun, expert work, including conducting HRIAs, may be scrutinised to provide a clearer contextual picture for the courts.
While case law unsurprisingly concentrates on the direct liability of multinational corporations, one can surmise that standalone cases—at least against certifiers and multistakeholder initiatives—appear likely to increase. The scope of this research is limited to judicial mechanisms; however, other state-based grievance mechanisms are already forging ahead on external expert responsibility in this area. One important sample comes from the specific instance decisions of NCPs, which consider alleged breaches of the OECD Guidelines for Responsible Business Conduct, and which have dealt with complaints regarding the direct responsibility of expert actors on inadequate social audits and certification practices (similar to the Rainforest Alliance example above), in addition to MSI responsibility.Footnote 97 For example, in 2021, the UK NCP reviewed a complaint against the sugarcane MSI Bonsucro, identifying a direct link between harm caused by one of its members (and its subsidiaries) and Bonsucro itself, based on their business relationship, evidenced by membership fees and the use of the MSI’s branding.Footnote 98 This member had committed multiple human rights violations in Cambodia, and the NCP concluded that Bonsucro failed to demonstrate it had exercised leverage over the member or conducted adequate HRDD before admitting the member.Footnote 99 As Corcione highlights, the impact of these types of cases for experts has potentially far-reaching implications.Footnote 100 One can also imagine scenarios where the rationale underlying the Bunsucro decision extends to broader categories of external experts, other than certifiers and MSIs, involved in HRDD processes.Footnote 101
With regard to other judicial mechanisms, there also appears to be some appetite for hearing standalone cases against certifiers. An illustrative example of this is the forthcoming trial against the London Bullion Market Association (the world’s largest gold bullion market) in the UK High Court.Footnote 102 The case, brought by Leigh Day on behalf of the families of two artisanal miners and is scheduled to begin in June 2026, alleges that the LBMA wrongly certified that gold sourced from the North Mara Gold Mine in Tanzania (owned by Barrick Gold Corporation) was free from human rights abuses, despite the mine being associated with widely reported systemic human rights abuses. The case is the first against a UK-based certifier and will likely hinge on determining whether a certification body can be held legally responsible for a reportedly flawed certification process.
Finally, with the rise in corporate climate litigation,Footnote 103 external experts who advise on a company’s climate mitigation strategies may also find themselves in the spotlight as co-defendants. One particular example of this can be seen in a US lawsuit brought by Multnomah County, Oregon, seeking to hold fossil fuel companies and other parties liable for climate damages in the county. Of these other defendants, the consulting firm McKinsey were specifically targeted for ‘for coordinating and participating in a deliberate misinformation campaign to downplay and/or outright deny the causal relationship between the GHG emissions of its members [the fossil fuel companies] and extreme weather events.’Footnote 104
VI. Conclusion
This article provides an original ‘visibilising’ perspective on expert responsibility and on the future of BHR governance, by tracing emergent forms of expert legal subjectivity in key BHR litigation. External experts, while diverse, provide a unifying function in the BHR field: providing services that enable companies to demonstrate alignment with the UNGPs. Despite their increasing significance in shaping corporate human rights strategies, external experts continue to occupy a peripheral position in legal accountability discourse and research on external experts has largely overlooked their presence in judicial remedy.
Drawing on the proposal that litigation can be a site of visibilisation from Krajewska and others’ work, this article demonstrated that external experts’ legal subjectivity can encompass both an evidentiary role and a functional participation in corporate processes. This dual role raises important questions about accountability, particularly given their influence on the design and implementation of HRDD and their involvement in shaping the narratives through which corporate conduct is assessed. Their subjectivity is not limited to instances in which they are parties to litigation, but embedded in the very epistemic frameworks through which business and human rights claims are understood and adjudicated. As such, external experts are actors with tangible responsibilities in shaping corporate conduct in relation to the corporate responsibility to respect human rights.Footnote 105
Looking forward, as HRDD regulatory frameworks continue to evolve, external experts may find themselves caught between pressures of increasing expectations of independence, rigor, and accountability in their work, and the risk of legal exposure when their assessments and actions are challenged through litigation. This raises critical questions about the future of external expertise in the BHR field. One can imagine that increased litigation risks may discourage experts from engaging in human rights assessments, leading companies to internalise these processes. At the same time, these developments open space for further discussion on the professionalisation and standardisation of external expertise in the business and human rights field, and how this might intersect or necessitate revision of existing professional standards across expert domains. In this context, future research into experts’ perceptions of legal exposure, their risk mitigation strategies, and the evolution of professional norms will be essential for understanding how expert responsibility is being shaped within the shifting business and human rights landscape.
Acknowledgements
An early version of this article was presented at the BIICL/SLS Workshop on ‘Non-state actors in international law’ in November 2023. The author also acknowledges Professor Colin Harvey, Professor Surya Deva and an anonymous reviewer for their helpful comments on the draft manuscript.
Competing interests
The author declares none.
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