We are excited to announce the launch of our first Paxus newsletter. In this first edition, we wrap up the year with some reflections and highlights of our activities in 2023. Subscribe to keep up to date with all things Paxus and receive our note on What’s in Store for 2024 in Business and Human Rights Law early in the new year.
As we look back on 2023, we are reminded that historic milestones and tragedies of epic proportions have formed the backdrop of our work on legal matters pertinent to peace and human rights during this, our first, year of operation at Paxus.
December marks the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a document drafted by representatives of different legal and cultural traditions from all regions of the world, that was adopted by the UN General Assembly as a common standard of achievements for all peoples and all nations. The UDHR sets out, for the first time, fundamental human rights to be universally protected, and paved the way for the adoption of more than seventy human rights treaties at the global and regional levels.
Late 2023 also marked the 75th anniversary of the Genocide Convention, which seeks to protect groups, and the 25th anniversary of the UN Declaration on Human Rights Defenders, which seeks to protect those who defend the human rights to which we are all entitled and hold our governments and companies to account when they let us down.
In the decades since the adoption of the UDHR, human rights have become more recognised and guaranteed across the globe, and this has extended to human rights as they are affected by business activities since the adoption of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011.
However, the promise of both the UDHR and the UNGPs, of dignity and equality in rights against government and business interference, has been under a sustained assault in recent years and especially this past year. The promise of “never again” that inspired the Genocide Convention has tragically become “time and again”, reminding us that nothing can prevent hate crimes more than the existence of societies where human rights are fully enjoyed by all.
As the global economy and societies face new and ongoing challenges, including the climate crisis, conflicts involving tremendous loss of life and horrific abuses, exploding inequalities, and a misaligned global financial system, the values, and rights enshrined in the UDHR and applied to business activities through the framework of the UNGPs provide guideposts for our collective actions that must not leave anyone behind.
Our work at Paxus over the past year was guided by human rights principles and aimed to show our business and sovereign clients the way to approaches that can help resolve tensions and create peaceful and stable solutions to their legal challenges.
We have helped clients engage with the most difficult issues of our time, such as whether and how to arrive, stay or go from conflict zones on three continents; how to align a financial institution’s business activities with a pathway towards achieving global net zero emissions and zero business-related human rights impacts; what the human right to a clean, healthy, and sustainable environment means to international business in a diverse range of industries, including commodities trading; what the human right to health means for pharmaceutical companies in an age of growing health inequality, addiction and pandemics; how to reconcile international investment law and international human rights law in the context of an arbitration under an investment treaty about climate mitigation measures; and the list goes on…
We have also helped clients with a range of more prosaic issues, such as their human rights policies and due diligence processes, net-zero transition plans, a matter of private international law for a transnational tort case and an arbitration plagued by interminable procedural wranglings…
The importance of this type of advice and representation has been affirmed by the sometimes-wobbly advances that governments have made over the course of 2023 in embedding corporate respect for human rights and the environment into national legislation.
Last week saw EU legislators reach political agreement on the much-anticipated Corporate Sustainability Due Diligence Directive (CSDDD), which will require large businesses to carry out and report on both human rights and environmental due diligence or face civil liability, and also to develop climate transition plans. The new corporate obligations are influenced by the UNGPs and represent a landmark in the developing landscape of regulation aimed at managing businesses’ impacts on society and the planet, although there was a mixed response to financial institutions only being required to undertake due diligence on their upstream value chains.
The start of 2023 saw the new German Supply Chain Act come into force, while the EU Deforestation Regulation came into effect in June. Proposed human rights due diligence legislation was tabled in the UK and South Korea, among other major markets, while India began to consider a proposal for mandatory supply chain ESG disclosures.
In our “What’s in Store for 2024” alert in the New Year, we will explore the CSDDD and discuss the business and human rights legislation that will come into effect in several markets next year, including Canada’s Forced Labour and Child Labour in Supply Chains Act.
Advances and set-backs at the international level in 2023 have spurred us on in our efforts to help clients align their business activities with respect for human rights and net-zero.
Last week also saw COP28 conclude the first global stocktake of climate action under the Paris Agreement, which remains far too slow, and adopt a decision calling for accelerated action, including a transition away from fossil fuels towards climate-neutral energy systems – the first-ever COP decision to address fossil fuels.
The OECD Guidelines for Multinational Enterprises were updated earlier in the year to include, among other advances, recommendations for enterprises to align with internationally agreed goals on climate change and biodiversity; to conduct due diligence on impacts and business relationships related to their use of their products and services; better protection for human rights defenders who raise concerns regarding the conduct of business; and to ensure lobbying activities are consistent with the Guidelines.
In July, the UN Intergovernmental Working Group released an updated draft of the legally binding instrument on business and human rights, which many critiqued as a step backwards, including because it removed reference to heightened due diligence in the context of conflict zones and language pertaining to the climate crisis.
Human rights and the environment also became a focal point of many international disputes in 2023 and governments’ desire to preserve their policy space to regulate business in these areas prompted some to withdraw from the Energy Charter Treaty, which has provided the foundation for many investment disputes in recent years.
In our “What’s in Store for 2024” alert in the New Year, we will examine the COP 28 decisions and discuss the business and human rights litigation and arbitration landscape, including the recent UK High Court decision that the Ogale and Bille communities can bring their legal claims against Shell over allegations that their right to a clean and healthy environment has been breached.
We reach the conclusion of 2023 with mixed feelings – concerned about the dismal state of the world and yet hopeful about the few cornerstones that have been laid this year on which to build a better future. Our own year at Paxus has been one of laying foundations, with the inclusion of the firm in the inaugural Legal 500 Green Guide an especially promising sign of what is to come. We read that as recognition of the importance of looking at climate change from a human rights perspective. As ever, we are grateful for all support from clients and friends during this professionally exciting time and we hope you all have a fantastic festive period!
Suzanne Spears Founder and Principal Paxus LLP
Paxus made its mark on the conference circuit
We had the opportunity to speak to a diverse range of audiences on many of our favourite subjects. You can watch or listen to a sampling of the sessions at the links below:
‘Energy Transition: Green and Just’ Panel at Building Bridges (Geneva, October 2023) (See video)
‘Environmental, Social and Governance (ESG): Corporate Responsibility or State Responsibility?’, Panel at the ACICA and CIAA International Arbitration Conference (Perth, October 2023) (See Video)
‘ESG Risks and Disputes’, The Fountain Court Podcast (London, October 2023) (Hear Podcast)
‘Implementation of the UNGPs in the Context of the Pharmaceutical Industry’ Panel at the UN Forum on Business and Human Rights (Geneva, November 2023) (See UN TV)
You will find some of our other presentations at the links below:
‘The Right to Health and the Pharmaceutical Industry’ Presentation to the Biopharma Sustainability Roundtable (BSRT) (Boston, March 2023) (See Presentation)
‘The Right to a Healthy Environment: What does it mean for business?’ Presentation to the IOE-BDA-DPDHL Conference on Responsible Business Conduct (Bonn, April 2023) (See Presentation)
‘Climate Change, Human Rights & Investment Arbitration’ Seminar at Uría Menéndez (Madrid, June 2023) (See Presentation)
‘Planning for a Transition that Respects Human Rights’ Presentation to the Thun Group of Banks (Wolfsburg, October 2023) (See Presentation)
Other topics we spoke on during the year included, ‘ESG Litigation and Regulatory Enforcement Action’ at the World Law Forum’s Roundtable (London, June 2023); ‘The Implications of Mandatory Human Rights and Environmental Due Diligence Laws for the Financial Sector’ at the BIICL Human Rights Due Diligence Forum (London, September 2023); ‘Climate issues at the intersection of law and politics’ during Australian Arbitration Week 2023 (Perth, October 2023); ‘ACICA Practice & Procedures toolkit: Cutting edge tools for timely, cost effective and fair arbitral proceedings’ (Perth, October 2023); and ‘Responsibility of business enterprises to respect the human right to a clean, healthy and sustainable environment’ during an Expert UN seminar (Geneva, November 2023).
Paxus also published widely
Some of our publications are at the links below:
‘UN business and human rights treaty negotiations: a long and winding road’, PLC Magazine (March) (Article)
Paxus and Suzanne were recognised in the legal directories
We were delighted to retain our ranking as a ‘Firm to Watch’ for Public International Law in The Legal 500 UK Guide 2024, with Suzanne Spears also retaining her ranking as a ‘Leading Individual’. We were also extremely pleased to be included in The Legal 500 Green Guide: United Kingdom 2024.
Furthermore, Suzanne was again recognised for Public International Law in the Chambers and Partners UK Guide 2024. The guide describes Suzanne as “very pragmatic and lovely to work with” and “brilliant on business and human rights matters”, with one source commenting “she has a really good ear for what the client needs and understands this on the personal level. She also has strong technical skills.”
Suzanne was included in Business Today’s Top 10 Global Leaders in Business and Human Rights Law 2023. The list describes Suzanne as “renowned for her work with parent companies regarding the potential liability of their cross-border subsidiaries.”
Suzanne was recognised in the 2023 Lawdragon 500 Leading Global Litigators Guide, which celebrates litigators and arbitrators at the pinnacle of dispute resolution globally, and Suzanne’s inclusion places her as a standout in public international law.
Most recently, Suzanne was recognised in the Who’s Who Legal: Arbitration 2024 report as a Recommended Lawyer. The report identifies top experts in resolving complex international disputes based on feedback from peers and clients.
If after this, you want to get to know Paxus even more, please reach out for more information. In the meantime, keep an eye out early next year for our breakdown of ‘What’s in Store for 2024’ in the field of business and human rights law. We wish you all the best for the holiday period and hope that you have a wonderful new year!