Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights

Forthcoming In Fordham Law Review, 84, (Spring 2016)

ANU College of Law Research Paper No. 16-20

55 Pages Posted: 6 Jan 2016 Last revised: 14 Jan 2016

See all articles by Milton C. Regan, Jr.

Milton C. Regan, Jr.

Georgetown University Law Center

Kath Hall

ANU College of Law

Date Written: January 4, 2016

Abstract

This paper examines the growth of transnational governance, and what it means for business lawyers advising multinational corporate clients. The term “governance” incorporates the network of actors, instruments and mechanisms that now govern transnational corporations, separate from the nation state. It is reasonable to expect that lawyers play an important role in advising business clients on how to effectively operate within this system. Indeed, many transnational legal instruments are intended to enhance clients’ business goals by enabling them to engage more efficiently in cross-border commerce. Other forms of regulation, such as human rights regulation, purports to impose requirements on companies that go beyond what is necessary to enhance cross-border commerce.

In this paper we discuss the transnational governance regime that has arisen to address the adverse human rights impacts of business activities. We focus in particular on the United Nations (UN) Guiding Principles on Business and Human Rights, which were adopted by the UN Human Rights Council in 2011. We ask what if any role is there for lawyers in fostering acknowledgment and fulfilment of these responsibilities among clients? Is the duty to respect human rights a “legal” obligation in any sense? If a lawyer does provide advice, should it encompass only legal risks to the company that fall within the lawyer’s traditionally defined specialized expertise? Or should it go beyond that to include other concerns?

Keywords: Transnational governance, transnational corporations, lawyers, human rights, United Nations Guiding Principles, Corporate Social Responsibility

Suggested Citation

Regan, Milton C. and Hall, Kath, Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights (January 4, 2016). Forthcoming In Fordham Law Review, 84, (Spring 2016), ANU College of Law Research Paper No. 16-20, Available at SSRN: https://ssrn.com/abstract=2711011

Milton C. Regan

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9414 (Phone)
202-662-9408 (Fax)

Kath Hall (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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