Soft law, legal ethics and the corporate lawyer: confronting human rights and sustainability norms

Abstract

We are all familiar with the old adage that hard cases make for bad law. This symposium riffs off that idea to inquire whether soft law can make for (great) ethical lawyering? To interrogate this question, the Schulich School of Law at Dalhousie University, Canada, hosted the 30th annual Wickwire Lecture and invited several scholars from different jurisdictions to share their reflections on the complicated, but increasingly common, challenges of the relationship between emerging soft law norms and the ethical obligations of corporate lawyers. Soft law norms for corporate actors emerge from a variety of sources, and a bright line between ‘hard’ and ‘soft’ law is often not obvious. For example, from the international human rights law sphere, the United Nations Guiding Principles on Business and Human Rights (UNGPs) were endorsed by the member states of the UN Human Rights Council in 2011. The UNGPs were developed over a number of years through many multi-stakeholder processes that included input from states, business actors, and non-governmental human rights organisations, as well as corporate lawyers. Often referred to as the authoritative global standard on business and human rights, the UNGPs are comprised of three pillars: 1) the state duty to protect human rights in accordance with existing international human rights law; 2) the business responsibility to respect human rights as a reflection of social expectations; and 3) the need for effective access to remedy for victims of business-related human rights abuses, whether through judicial, non-judicial, state-based, or non-state-based processes, including company-level grievance processes. Particularly, pillar two further provides that corporate actors should adopt human rights policies, engage in human rights due diligence throughout the business enterprise, and both prevent and account for human rights impacts that they identify, among other conduct. However, while the point of reference