Edie Hofmeister, Vice-Chair of the IBA Business Human Rights Committee, interviews the business and human rights lawyer Stéphane Brabant, a partner at Herbert Smith Freehills in Paris, about empathy in the corporate value system, putting forward new systems in business, and advice for new in-house counsel.

Q: Stéphane, you are French and I am American. I wanted to start out asking what you had for breakfast so we can establish from the outset who is wiser and more civilized. I had drip coffee and a granola bar.

A: Ah, I know what you are hoping for. But these days I am gluten free with my enjoyment of French pastries and croissants sadly behind me. Today I enjoyed a simple fare of fresh blackberries, a little orange juice, some raspberry jam and toast. And of course a nice black coffee. My favourite part of the morning, though, is rising very early, exercising, working and sharing breakfast with my wife.

Q: That sounds wonderful – a highly superior morning ritual, as I suspected. Can you tell us a little bit about how you got interested in business and human rights? Is there a good juicy story there?

A: Around 2008 I helped write a guide describing best practices and tools to create sustainable development in business. Specifically, I focused on responsible contracting – adding provisions to contracts with suppliers and others to promote sustainable development, including the means to respect human rights. Some big companies I worked with at the time objected to the recommendations, and asked that the work be suspended and even argued to my firm’s leadership that such work was not timely. The area was relatively new at the time and perhaps naturally met with some scepticism.  

After [then] United Nations Secretary-General Kofi Annan appointed Professor John Ruggie as Special Representative on the issue of human rights and business, John’s team called and asked me to be part of the expert team to advise on responsible contracting provisions. They also wanted me to host the first expert group meeting. This seemed to melt all doubt about the timeliness of the Business and Human Rights initiative. We gladly accepted John’s proposal and with my firm’s continuing support, I have been an enthusiastic champion of promoting respect for human rights in business ever since.

Q: Let’s speak about a related topic that you recently proposed – putting empathy at the centre of the corporate value system. How do you see the practice of empathy helping us out of this global economic and public health crisis?  

You only have to think back a few months to see the positive impact that respect for human rights can have. In early March, several companies called for empathy both at national and international levels to prevent massive job loss. These businesses demonstrated empathy either [by] protecting livelihoods through job retention schemes or protecting income through temporary reduction of bills. Laudable history suggests the most effective results are achieved when companies act in a way that shows consideration for all their stakeholders. 

Q: Can lawyers really play a leading role here? In the US, I can name several companies that chose to cut employees or contractors over cutting the shareholder dividend. That’s hardly empathetic. 

A: I believe that in this fast-changing market, the legal profession now has an opportunity to really shine. In normal circumstances, lawyers commit to using knowledge, skills and connections to help clients navigate legal and commercial issues flowing from their financial objectives. Now more than ever, we need new ways to help them consider environmental and social objectives. Specifically, business lawyers must work to avoid negative impacts on the human rights of their employees, local communities, suppliers or customers.

Q: Can you point to some examples of soft laws or legislation that demonstrates a more humane approach that has worked for business?

A: Certainly. In the area of human rights, for example, a large number of resolutions, recommendations and other non-mandatory incentives, rather than strict rules, have been adopted relating to the environment and human rights such as the Sustainable Development Goals, the Global Compact, the United Nations Guiding Principles on Business and Human Rights and the Paris Climate Agreement. For the most part, we owe these achievements to two visionary figures: Kofi Annan and John Ruggie.

When it comes to legislation, countries around the world have adopted anti-slavery initiatives, supply chain disclosure and other types of due diligence requirements for companies. The European Commission, for example, recently announced that it intends to introduce legislation in 2021 that will require European companies and other companies operating in Europe to undertake due diligence to avoid adverse impacts on human rights and the environment. Codifying these principles and even putting them into a treaty can level the playing field for all business. Even in the few years that some of these laws have existed, they demonstrate that a clear legal framework mitigates risk, saves lives, adds more legal certainty for business and generates positive effects for everyone.

Q: What if the lawyer pushes empathetic ideas such as putting profit aside to support employees and supply chains but the client refuses? As General Counsel for a precious metals mining company, I often experienced institutional resistance to imposing new and more empathetic systems that might slow the operation or affect the bottom line. Sounds like you did too.

A: Yes. But you persisted and I did too. We kept working on our clients and colleagues to show the human and business value of erring on the side of empathy. That is what lawyers need to do – stay at it, make the business and the human case, don’t get discouraged. You know, after the UN Guiding Principles came out, I was both surprised and encouraged to see how a number of multinationals quickly understood the importance of following legally non-binding standards. My hope is that companies will increasingly make soft law part of ‘hard’ law by including it in their contractual relationships.

Q: What is your advice for the eager young associate or new in-house counsel who wants to put empathy front and centre but does not feel she has much influence with her grizzled law firm partner or stressed-out general counsel?

A: I guess I am the grizzled old partner?! I will refer back to my work with John Ruggie under Kofi Annan’s leadership. There I found two prominent leaders promoting one of the most worthy causes I can think of. Not easy work! But it really inspired me. They became my mentors and I will work to promote respect for human rights in business for the rest of my life. So I say to the shining new star who wants to save the world to persevere in the promotion of respect for human rights by business and the states. She must try and try and try. Speak up when you can. But I must say this: If your business clients or firm leaders resist too much your efforts in this area, then do as the UNGPs suggest for companies in the same situation and consider moving on. The old grizzled guy will get left behind. Top young lawyers do not want to work for firms or companies that don’t take into account respect for the environment and for the human rights of all stakeholders. The businesses working hard to respect human rights in their operations and supply chains and the leaders who welcome incoming laws to help them do that, will end up attracting the most talented employees, including the best lawyers. 

Q: Stéphane, it has been an honour to interview one of the pioneers in business and human rights and someone I consider a mentor and a friend. As we wrap up here, do you have any final wisdom for us?

A: Yes, thank you. One more thing. A new group of judges has now emerged on this stage, but not in the traditional courts. They are the consumers, the NGOs, the students, employees and the activists. I have watched these stakeholders evolve into an increasingly proactive and sometimes harsh court of public opinion (through boycotts, media, pressure campaigns, or direct action). More and more you also see the asset owners, financial institutions and shareholders making demands about human rights and the environment through environmental, social and governance efforts. These new judges may be the ultimate decider on which companies thrive and which do not. From this new court, business will have no ability to appeal.