Introduction

This blog is the second part of a four-part series titled From Business of Human Rights to Business for Human Rights

With the coming in force of stronger regulation concerning the responsibilities of corporations, there has been an expansion in the role of the lawyer acting on behalf of their corporate clients. Whilst previously, human rights risks were primarily considered a reputational concern for a corporation, regulation mandating Human Rights Due Diligence (HRDD) has brought it to the center creating legal risk, as corporations can now face liability or penalties for violations of such laws. This also means that the range of issues that a corporate lawyer now advises on also includes human rights risks for their corporate clients.

Despite the EU’s Omnibus Simplification Package, which rolls back parts of the Corporate Sustainability Due Diligence Directive (CSDDD), the evolving regulatory landscape in business and human rights is transforming the role of lawyers. Typically, lawyers engage with, and represent corporations in three key areas – litigation, corporate advisory, and corporate transactions in areas such as mergers and acquisitions, private equity etc. Human rights issues can come up in all three. For instance, a litigation lawyer might be involved in strategic or class action litigation for or against a corporation; a lawyer might have to consider in their advice the interest of or potential risk to a community in a new business project; and a lawyer may discover human rights risks in the course of conducting regular due diligence for a business transaction that needs to be escalated.

All of these raise a foundational question: Should a lawyer weigh and assess human rights risks strictly in the context of advancing their client’s business interest or with a fundamental consideration of broader ethical and societal values?

After all, the code of ethics governing the legal profession often urges fidelity to the client’s interest, sometimes implicitly affirming the lack of reflection of larger systemic considerations in the lawyer’s professional advice and decisions. Yet, the BHR agenda challenges this orthodoxy by questioning what the neutrality of lawyers means when their silence or narrowly framed advice might allow for, or even enable, human rights harm.

With the evolution of the BHR field, we also now see the emergence of a new kind of professional: the Business and Human Rights lawyer. This role is not simply synonymous with a corporate lawyer who is personally concerned about human rights or a human rights lawyer working in corporate accountability. Instead, it requires fluency in the language of business risk, regulatory compliance, international, regional and national BHR standards, and multistakeholder engagement.

From Legal Compliance to Normative Commitments

Lawyers have traditionally operated within a client-centric framework – advising their clients on how to remain compliant with applicable laws and minimise exposure to legal risks. In the context of BHR, this often means identifying potential human rights risks that could result in liability or reputational damage. The IBA (International Bar Association) Practical Guide on Business and Human Rights for Business Lawyers, for instance, helps lawyers integrate human rights considerations into their legal advice and transactions. But even such guidance tends to remain couched within a risk mitigation frame – human rights as something to avoid violating rather than something to actively promote. Furthermore, organisations like the IBA are only recently starting to discuss lawyers’ impact on human rights in relation to their work.

As more jurisdictions introduce mandatory human rights due diligence laws (including France, Germany, Norway and the EU), this framing is beginning to shift. The proactive identification, prevention and remediation of human rights harms is no longer just good practice but is becoming a legal obligation. This raises the important question that if laws now require companies to proactively engage with human rights, should lawyers also evolve from their reactive, compliance-based role to one of active human rights advocacy within the business space?

Embedding Human Rights in Corporate Compliance and Transactions 

One of the most practical ways lawyers can engage with BHR is through transactional work, ensuring that human rights clauses are embedded within M&A documentation, incorporated in due diligence templates and licensing agreements. Ideally, a transaction would begin with identifying and assessing both ongoing and past human rights and environmental impacts linked to the target company, as well as evaluating the maturity and robustness of its HRDD programme. The human rights clauses included in such transactions should be informed by these risk assessments in practice. This is especially important in cross-border transactions concerning global supply chains where legal accountability for human rights and environmental harms is dispersed across jurisdictions and very hard to enforce. A responsible transaction lawyer therefore, may need to consider international standards such as the UNGPs and OECD Guidelines, going beyond advising on the black letter of the law and its potential enforcement. Companies increasingly face both legal and non-legal and reputational pressures – like NCP complaints for non-compliance, sometimes even pressure from stakeholders for addressing cases of alleged non-compliance; advice that only addresses hard-law risks would be incomplete.

This tension is particularly acute when human rights concerns arise “incidentally” during regular legal work. This could, for example, occur when a lawyer advising on land acquisition for a project learns of community displacement or Indigenous rights violations, or when advising on acquiring a company whose business model, though financially sound, is fundamentally destructive to the environment. Should the lawyer flag these as legal risks only if they could result in liability? Or should they raise them as ethical concerns even if there is no clear legal exposure?

Here, the BHR field poses a challenge to the classic advisory paradigm. Lawyers are being asked not just to interpret the limits of the law and what the client can get away with but how the client should mitigate or prevent the potential human rights and environmental impacts of their activities on external stakeholders such as rightsholders, communities, indigenous people among others.

From Risk Shifting to Responsible Contracting 

As businesses are trying to comply with evolving BHR regulations, contracts have become a primary tool to allocate legal risk. Yet, if the buyers in the countries that are subjected to the laws pass down the burden of compliance on to the suppliers, then the objective of the law stands defeated. Buyers may contract out of the legal risk by making the suppliers responsible for any lapses in due diligence. Passing down legal risk leads to heightened legal and operational risk for suppliers, squeezed margins, and in many cases, increased precarity for workers. 

Responsible contracting offers an alternative. It embeds shared ethical commitments directly into commercial agreements, making contractual clauses more equitable in sharing the burden of compliance between buyers and suppliers, and enabling buyer companies to support and assist suppliers in ensuring ethical supply chains. The Responsible Contracting Project has come up with draft European Model Clauses which rely on voluntary adoption by companies to bring about this change. The model clauses cover topics such as grievance mechanisms, third-party audits, worker protections, and the right to terminate relationships where severe human rights violations occur. These clauses are drafted in a way to make responsibility for protecting workers more equitable between buyers and suppliers. This matters because, in global supply chains, suppliers often operate under intense pressure from buyers with deeper pockets and greater bargaining power. The Rana Plaza disaster tragically illustrates the danger from unfair contracts where short delivery times in the contract contributed to unsafe working conditions, and the ultimate tragedy that unfolded.

However, if a lawyer’s role is to advise on human rights laws, should they be required to translate international human rights standards into enforceable contractual language? Or does the lawyer’s role reinforce prioritizing the avoidance of risk in contracts to protect their client? While the legal profession emphasises neutrality and fidelity to client interest, there is growing debate around whether lawyers should adopt a more values-based approach when it comes to operationalizing BHR laws through one of its most important tools, the contract. 

Strategic Litigation and Movement Lawyering 

The courtroom has seen a rise in strategic, collective (class-action), and often transnational forms of litigation. These cases have different models of funding, including third-party funding, where “investors” recover their costs from the proceeds if the claimant succeeds. Such arrangements, with their varying conditions on fund utilisation and returns, increasingly shape the political economy of the legal services industry as lawyers have to carefully balance their contractual duties to the funders with their overarching duty to the clients. These cases often concern causes of action concerning a large group of people, seeking to hold large and powerful corporations to account and bring about systemic change.

In such cases, when lawyers are advancing BHR by aiming to hold businesses legally accountable for their activities, lawyers have to balance their role as litigators but also as facilitators of long-term strategy.  On this side of the table, they often represent vulnerable communities, NGOs, and community movements. While turning grass-root problems into legal arguments, they have to balance legal strategy with the consequence of its long-lasting impacts on communities they represent. In addition, there are other procedural complexities in representing Claimants in such suits, such as ensuring that costs are spent efficiently and proportionately as these are often paid by the Defendants if the Claimants are successful and there may be rules or laws allowing the Defendants to challenge the amount of these costs. This can often present hurdles given the large number of parties involved, the complex nature of these cases and the consequent heavy use of resources and costs. On the other side, lawyers representing corporations face equally intricate challenges and issues. While their primary duties may lie towards their client, the questions grappling them might be deeply complex, ranging from dilemmas around whether to accept certain representation to deciding where to draw the line when choosing litigation strategy if this may come at a high cost to society. 

In relation to representing communities and their rights, there is also a new form of lawyering called movement lawyering now emerging that seeks to de-center the lawyer and the courtroom and put the communities’ priorities at the centre. It is a movement led by lawyers that view their job as more than crafting and delivering legal arguments in the courtroom, and includes deep collaboration with social movements, organising communities to take legal action, and building public pressure. While some may argue that this stretches the traditional boundaries of a lawyer’s role, it is worth reflecting on whether these tasks are, in fact, inseparable from the very essence of being a lawyer.

In the context of BHR, human rights litigation against corporations, be it in any form, compels some hard questions. Whose voices are being heard in the courtroom – the lawyer’s or the victims’? What should be understood as serving the clients’ best interests – is it necessarily securing the highest possible monetary compensation (often through an out-of-court settlement), or is it ensuring accountability that drives systemic change? Should lawyers be accountable not only to their individual clients, but also to the broader communities whose rights they seek to defend, and if so, should that accountability be measured by the interests of specific claimants or by the collective interests of the group as a whole?

Moving Towards Business for Human Rights?

Ultimately, the challenge and opportunity is to move from business and human rights to business for human rights. This does not mean lawyers abandoning their role as legal professionals. Rather, it means reimagining that role to include facilitation, advocacy, and creative lawyering that aligns business strategy with human rights outcomes.

This is not an easy shift. But if lawyers are to remain relevant in a world where the expectations of corporate behaviour are fast evolving, it is a necessary one. The next decade will not just be about new laws and new risks – it will (hopefully) be about new mindsets. And lawyers, whether in big law, boutique firms, or public interest practice, have a critical role to play in shaping that future.

[We would like to acknowledge and thank James Ford, Senior Associate at Mayer Brown; Daniel Schönfelder, Lead European Legal Advisor at the Responsible Contracting Project; and Misha Chandna, Senior Associate at Pogust Goodhead, for their valuable feedback in shaping this blog.]