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S4E09: Human Rights in the Corporate Supply Chain, with Prof. Sarah Dadush
20 Plays1 year ago
Professor Sarah Dadush joins Co-Dean Rose Cuison-Villazor to discuss her work as the founding director of the Law School's Business & Human Rights Law Program and the Responsible Contracting Project (RCP).
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Shanida Carter
Series Producer & Editor: Nate Nakao
--- Send in a voice message: https://podcasters.spotify.com/pod/show/rutgerslaw/messageRecommended
Transcript
Introduction of Podcast and Guest
00:00:10
Speaker
Hello, this is Rose Guizan Villazor, Interim Co-Dean at Rutgers Law School, and you are listening to the Power of Attorney podcast. Today, I have the privilege of interviewing one of my colleagues on the Newark Law Faculty, that is Sarah Dadoosh.
00:00:26
Speaker
Professor Daudouche teaches first year courses, including contracts, as well as upper level courses that focus on business and human rights. Sarah, I am so happy that you have joined us today. Thank you for coming. Thank you for having me. I'm really happy to be here.
Sarah's Background and Heritage
00:00:44
Speaker
So we'd like to start these conversations by first talking about the interviewee's origin story. And by this, I mean I would like for you to talk about who you are, your identity, what motivates you, and all that good stuff.
00:01:02
Speaker
OK. Who am I? My goodness. Well, I mean, I think one of the things that feels quite defining of me is that I am a bit of a global nomad and very sort of international in my
00:01:26
Speaker
in my heritage and in my adults also lived experience. So my parents are both North African Jews and I was born, they met in Israel and I was born in Italy.
Childhood and Education Journey
00:01:44
Speaker
But very soon after I was born, we went to the States so that my parents could complete their graduate studies in economics.
00:01:53
Speaker
which is also a significant part of the origin story because I grew up around economists.
00:01:59
Speaker
And then we moved to Belgium. And then when I was five, we moved to London. And that's really where I grew up. So I was in London from ages five to 17. And I went to the French lycée in London. And that is because my parents very much wanted my brother and I to be bilingual.
00:02:25
Speaker
And the French comes from the fact that my mom is Algerian, French. So we are French, colonially, but none of us has ever actually lived in France.
00:02:39
Speaker
So this is a part of I think the origin story. There's a lot of like stuff going on in the mix. And so I have very much and have always had very much a commitment to a certain sort of internationalism, both in my personal life, my love of languages and in my professional life.
00:03:06
Speaker
That is so amazing.
Language Skills and Living in Germany
00:03:07
Speaker
I'd like to know how many languages you speak. So it's funny that you're asking me that now because I am in a country where I speak exactly none of the language. We're speaking now. I am currently in Germany. I just arrived last week and I'm here for at least four months.
00:03:31
Speaker
Um, but I speak French, English, obviously, uh, Italian, Spanish, and Portuguese well enough. Like I wouldn't say, you know, so perfectly fluently, but, but well enough that I never have to start a conversation the way that I do here in Germany where being like, I'm sorry.
00:03:51
Speaker
Do you speak English because I don't speak any German? I don't like having to do that. It's not my favorite way. But yes, normally languages are slightly my superpower and I don't get to exercise it right at this time. That's so impressive that you know all those languages, but then also be situated in a place right now where you're
00:04:18
Speaker
now in the situation where you're going to have to try to understand what others are saying to you and then forcing you to learn at least some phrases, right? So you can communicate with those who don't speak the other five languages that you speak. Yeah.
00:04:33
Speaker
Yeah, so I just added Duolingo, this language app to my phone. And I'm trying to do some number of minutes per day to get it because it's completely different. I can't decipher it, reading it or anything like this. So none of my usual tricks.
00:04:53
Speaker
um work here but so it's quite humbling. The one thing I will say that is um working is I'm here with my dog. I traveled because I'm going to be you know away for so long from um from the States and from Rutgers
00:05:10
Speaker
I decided to bring my dog, Paco, and there is a universal dog parent language. You don't need to speak the language fluently to understand that someone is asking you, is your dog friendly? Is your dog old? Or is your dog's name? Like all these things I can get by even not speaking any German.
00:05:38
Speaker
Yeah, or does your dog like trees? I have a dog too. And so when I'm walking around New York City, which is where I live, it's regardless of the human person's language, right? You can tell the language from
00:05:54
Speaker
the dog. So I'm glad that you have Paco with you. That's great because you'll be there for several months. And I'll definitely ask you questions about the work that you're doing there. But I want to ask you more questions about your background. And so you grew up in London, you said. And then from there, where did you go to college or university?
Transition to the U.S. and Education
00:06:19
Speaker
Yes, so we moved again with my family. We moved to DC in 93 when I was 17. And I finished the French Lise, the French system high school in Maryland. And then I went to college in New York. I came in 94. I went to Barnard College, which is the women's college of
00:06:49
Speaker
Columbia University and have been on and off in New York since then, since 1994. Yeah. Okay. So from New York, you ended up moving to North Carolina. You went to law school at Duke Law School. Tell me why you chose to become a lawyer.
00:07:11
Speaker
Yeah, so there were a couple of interim trips between New York and Durham. One was that I lived for a few months in Chile, in Santiago, and I was very interested, so I should say, in undergrad, I studied political economy with a very strong focus on international development, global poverty issues and
00:07:38
Speaker
what the sort of strategies were being developed at that time and still today, of course, to address global poverty issues.
00:07:47
Speaker
And so I wanted to work in a development type of setting.
Work Experience in Chile, New York, and Brazil
00:07:53
Speaker
And one of the opportunities that I got was to work in a governmental women's rights organization in Chile. So I did that. And then from that long story, but I ended up coming back to New York and becoming very interested in criminal justice reform. And so I got a job at this wonderful New York
00:08:17
Speaker
nonprofit called the Vera Institute of Justice that does very interesting work around criminal justice reform and they had an international programs department. And so I was staffed onto that department and we were working with various NGOs in other countries to help them with police reform efforts and this kind of thing, sentencing reform efforts, this kind of thing.
00:08:47
Speaker
And through them, I met an NGO in Brazil. And so I went from Vira. I went to work inside this NGO in Rio called Viva Rio that does urban violence reduction programming. And I worked on a campaign against the use of firearms and also a police reform campaign.
00:09:11
Speaker
there. So all this to say, I was very interested in international development. And there was also Vera, everyone that I looked up to and was wowed by because it's full of incredible people, was a lawyer. And so I had been having grown up around economists and sort of feeling like, I am not an economist, but I am very interested in international development.
00:09:40
Speaker
I sort of wound my way into, well, I'm really interested in the intersection of the law and international development. And so that's why I decided to go to law school and very happily ended up at Duke, where they have a very fantastic international program. So I did at Duke, I did both a JD and an LLM in public international law.
00:10:10
Speaker
So I'm so impressed with just your story. I mean, we've been colleagues for about five years now. And I'm always in awe when I get to know again and again some of the work that colleagues have done before they became law professors. And so I'm just to tell you, I'm so in awe of the work that you did, even before you went to law school.
00:10:37
Speaker
I'm imagining you as a younger version of yourself and try exploring the intersection between political economy and development and why law became the medium for doing that work. And so we're just going to fast forward a little bit because I know you practice law, you did other work for a firm, but I want to fast forward to where you are now and
00:11:04
Speaker
why you chose to become a law professor. What did you want to become a law professor? So I did not until 2012 really sort of land on the idea. But when I landed on it, I was very sure that it was going to be the right place, the right job for me.
00:11:31
Speaker
And it has certainly turned out to be completely true. So after I graduated, I was really looking for opportunities to do international work.
00:11:46
Speaker
So I worked at this law firm where they had a giant practice on project finance, which is a lot of which is focused on getting loans from rich country lenders to poor country borrowers.
00:12:05
Speaker
to finance infrastructure projects like toll roads or airports or something like a water desalination plant in Algeria was one of the projects that I worked on. So this was like, I was really thirsty to see like an intersection between law and development from the private sort of profit sector side. And then in 08, I started
00:12:29
Speaker
I really wanted to work at like the UN or a World Bank or some kind of international development institution, but I couldn't find a job at any one of those places. They wanted more years of practical experience than I had. And I ended up very happily being a researcher at NYU Law School
Transition to Academia
00:12:51
Speaker
administering their financing for development.
00:12:56
Speaker
program. And through that long story, but I did end up getting a job at the UN in Rome at the International Fund for Agricultural Development. But while I was there, and then while I was at NYU, I had a chance to write for the first time. I had never written an academic piece really, and I'd never published anything, and I'd never presented anything at a conference.
00:13:25
Speaker
And I ended up presenting and writing a paper around the Product Red campaign, which you may remember these t-shirts from The Gap that said Admire Red, Inspire Red, or now still, there are many iPhones that have the Product Red logo on the box. So the Product Red campaign is an initiative to raise money to fight AIDS in Africa.
00:13:55
Speaker
And I basically exposed the contractual structure that underlined the Product Red campaign and
00:14:06
Speaker
sort of identified it as a, you know, we're now quite familiar with the term greenwashing. I think most people are familiar with the idea of like sort of over promising the social or environmental performance of a company. And this was my first attempt at sort of exposing a type of greenwashing in a corporate initiative.
00:14:30
Speaker
Um, so I knew that I really, I discovered that I really liked researching and I really liked presenting my work. And then when I was at IFAAD in Rome, the general counsel, uh, who I was working very closely with was offered a chance to teach a class for an LLM program in Rome.
00:14:52
Speaker
on the architecture of international development. And he said to me, I will do this, but you have to do it with me because I don't have time.
00:15:03
Speaker
but I cannot overstay, deathly afraid of teaching. I was like, you cannot, I cannot possibly. Why? I've been through so many countries and I'm sure that forced you to get to know, you know, you were a stranger in many places and so you had to come out of your shell and get to know other people. Why would you be afraid of
00:15:25
Speaker
Yeah, being responsible for somebody's legal education, you know, I just was like, this is crazy talk, nobody should give me this kind of power. And I was just very afraid. But it was the second time an opportunity like this had come up. And, you know, there are some things where if it just keeps coming, then you say, okay, fine, I'm gonna, I'm gonna try, you know,
00:15:53
Speaker
And so I tried and I worked very hard. He very kindly gave me time to prepare for the classes. I ended up doing basically all the classes because he had no time because he was the general counsel of a UN organization. And I found that I loved it. And the students responded very positively and gave me really, really helpful and encouraging feedback.
00:16:23
Speaker
And so then it was kind of, you know, an aha moment of realizing, well, I love the writing, and I love the researching, and now I also know I love the teaching. Perhaps there is a job in the world that combines both of these things. Ah, yes, I could be a law professor, that's all.
00:16:45
Speaker
That's amazing. So from there, then what was your path? Did you end up going on the teaching market or was there a particular outreach done to you by Rutgers or did you reach out to Rutgers? How did that work for you? Yeah, it worked that I went on the teaching market from Italy.
00:17:06
Speaker
And yeah, yeah, from Rome, from from IFAID.
Joining Rutgers Law School
00:17:11
Speaker
And and I was very happy at IFAID. So for me, it was very, you know, kind of low stakes because I figured if it doesn't work, it's OK because I have a very nice job here. I'm getting a lot out of it. But if it does work, then even better. And and I actually got a lot of help from my former professors at Duke.
00:17:35
Speaker
to get ready for this and from my former boss and mentor from NYU. So yeah, so I did it from Italy and how the match happened with Rutgers is a long story but a couple of
00:18:00
Speaker
women on the faculty, one who had taught at Rutgers and then moved to Georgetown, reached out to me because I had met her at the NYU conference where I presented the product red paper and she said, Rutgers is hiring.
00:18:21
Speaker
I think this would be a very nice match for you. And she facilitated connecting me with Donna, who was at that time chairing the hiring committee. And so I met everybody in DC when we used to have the meet
00:18:39
Speaker
market market. Yeah. And, and it was basically an immediate click. And it gave me you know, the possibility to return to New York area was a absolutely unexpected boon. And I love I love the idea of teaching at a public university, a state university, I love
00:19:03
Speaker
So many things about Rutgers that I can share if you would like. Yeah, because I hear what you're saying about a match, right? It needs to be the school that you want to be a part of, a school that supports the work that you're doing. And so it was intentional, it sounds like, for you to come to Rutgers. So why choose Rutgers over the other schools?
00:19:29
Speaker
Yeah, I mean, I felt like in my conversations when I visited the campus and emailed a lot with people and chatted, I just felt like this was a place where I could really be creative in how I approached.
00:19:46
Speaker
not just how I taught the first year class that I knew I was going to teach, but also the upper level classes. It felt very inviting to any number of points of views and approaches to
00:20:00
Speaker
like what matters as a subject to be studied under the umbrella of the law. It didn't feel, in my conversations with people, it didn't feel like there was a narrow understanding of what it means to study the law or what it means to be a lawyer. It felt very ample and capacious in a way that really resonates with me because of my origin story, I don't fit into like a particular box
00:20:30
Speaker
So the interdisciplinarity that I could like do, you know, mixing business and human rights or something along these lines, that I didn't have to just be thinking about legal classes in a very sort of narrow way.
00:20:47
Speaker
was very appealing to me. That and the fact that the student body here is very international as well. And I love that, you know, we have so many of our students that are first or second generation arrived here and
00:21:07
Speaker
certain and many times first generation law school and sometimes first generation also undergrad here. And I love teaching to that demographic. I love thinking of myself as being in service of that demographic.
00:21:27
Speaker
Yeah, I mean our so 30% of our students are first first in their family to go to college and 60% of our students are the first in their family to go to professional school, including law school,
Influence of International Background on Teaching
00:21:41
Speaker
right? And so it is I mean, what you said about our student body resonates a lot with me. I'm first gen first in college and law school in my family, no academics or lawyers in my family. And so when I
00:21:55
Speaker
teach my, when I meet our students, I feel this instant connection with many of them. I'd like to know how your origin story, your experiences, find their way into the classroom. Does that inform your pedagogical approach to teaching contracts, for example? Because, so I ask it in this way because, as you know, I mean, as a law school, we need, it's important for us to teach our students
00:22:21
Speaker
critical legal analysis, how to be lawyers, what it means to be a lawyer, how to read a case. But as you said, and I agree with you, one just doesn't study the law itself. The law is shaped by so many things, political reasons, economic reasons, social, race, gender, everything. And so how does your broad, your international background and experiences impact the way that you teach contracts?
00:22:53
Speaker
Or does it? Or do you have a different persona in the classroom as a first year law professor versus maybe as a professor who also teaches upper level courses?
00:23:04
Speaker
Yeah, I think I may have a slightly different, not persona, but a different approach to teaching the first year contracts than the upper level. But in the contracts, one of the things that I try to do is to... So we teach contracts, as you know, in the first semester.
00:23:32
Speaker
So I get the students that are in their first semester of their first year of law school. And for me, when I think back to my experience of being in law school, the most important thing from my first year, especially the first semester, was to learn how to tell stories in a different way. We're kind of learning
00:23:57
Speaker
when we're learning to read a case or we're learning to even identify the key issue in the case and understand the reasoning of the court's decision, but also just even in our telling of the facts of the case. All of those
00:24:16
Speaker
things are we're learning to do it differently as a law student than we would as a sociology student or as a political science student. It's a different art of storytelling that we're trying to teach our first year students. So that's really where I put the emphasis is like, you know, you guys know how to tell stories.
00:24:41
Speaker
in your regular life before you've come into this classroom, you had a way of telling stories, we're going to learn a different way. So let's just work with that. So that's really what I focus on in the first year.
00:25:00
Speaker
And I think it does connect to my origin story insofar as there's a lot of somehow like a translation going on there, you know, that you may see a case, if you're a brand new law student, you may see a case and it may look like a language that you do not speak because it is a language that you do not speak yet. And so how do we translate it into a language that you actually can't speak?
00:25:25
Speaker
and understand, you know. So that's one thing and then in the upper level, I do get much more sort of bringing my own experience, my own work experience and my own knowledge from outside the casebook.
00:25:41
Speaker
into the classroom and try to really expose the students to this area of legal practice that is business and human rights that is new. It's actually, you know, it's a new and emerging area that
00:25:59
Speaker
brings together, I think, in a really nice way, sort of traditional corporate law type stuff that is useful if you're looking to, for example, work in a law firm, but with
00:26:17
Speaker
this human rights piece that so many of our students really care about, you know, and cared about before they came to law school, right? So that sort of that this field of business and human rights to me is, is, is very,
00:26:34
Speaker
It's very exciting because it's actually becoming an area where if you are a BHR expert or you know stuff about what's going on in the world with respect to BHR, which is a lot, you can actually find jobs in law firms in doing stuff that even when I graduated, you couldn't find those jobs.
00:26:59
Speaker
You know, there's a whole new line of work that exists now that did not exist when you or I were in law school. So that's interesting because some might say there's a disconnect between human rights and business law, corporate law. And then you just, you said that this is a new area of, it's a new field. What are there, what led to this convergence of business human rights?
Business, Human Rights, and Corporate Responsibility
00:27:27
Speaker
So I think what happened is that we've had for a long time this idea and practices around corporate social responsibility. And corporate social responsibility usually takes the form of it's voluntary is a very important aspect of it. And it usually takes the form of a company making a charitable contribution to a nonprofit.
00:27:55
Speaker
you know, working on, for example, cancer research, you know, or breast cancer research, I should say, or, you know, some kind of reentry program for people leaving prison or something like this, as opposed to
00:28:13
Speaker
actually changing how they operate and how they are run so that their own profit making is generated in a way that complies with the interests of people and planet.
00:28:31
Speaker
So for a long time, we were just talking about CSR, corporate social responsibility, because all of this area where businesses were getting involved in stuff that went beyond profit making was voluntary. But now we're seeing, and in the last few years, we've been seeing a turn toward making
00:28:59
Speaker
the responsibility of business to respect human rights become a legal obligation, a binding obligation. So it's no more a voluntary thing. It's becoming a mandatory thing for a business to run itself in a way that complies with human rights, protects human rights.
00:29:25
Speaker
And I think that that was really the genesis of the BHR movement is to recognize that CSR has just not been doing the trick, has not been doing enough to actually change the way that companies operate in the world. And with companies becoming more and more powerful all the time,
00:29:47
Speaker
that really presented a risk and presents, it continues to present a huge risk for human rights. And so there's been this movement to take the conversation out of the voluntary and into the, move it into the mandatory. And one of the
00:30:07
Speaker
The tools for doing that is to start talking not just about social responsibility, but about human rights, because human rights are inalienable. They are non-negotiable. You cannot say, oh, I respect this much of your human rights, but only this much, because otherwise it starts to cut into my profits.
00:30:28
Speaker
That's actually not an option. If you say human rights seriously, it's a non-negotiable thing. So the business and human rights movement is kind of all about, let's move away from the voluntary. Let's move toward centering human rights, which are inalienable, non-negotiable, and then push for legislation. And that push is really starting to work, especially here in Europe, where I am now.
00:30:57
Speaker
OK, so this is great. I love learning more about your particular research area and your expertise. And so we're going to dig deeper into that. This semester, you're doing a competitive fellowship at the Max Planck Institute in Hamburg, which you said that's where you're at right now. Tell us about the work that you're doing right now. I know that you, as Rutgers, part of the work that you do is to engage in
00:31:25
Speaker
in the Center for Corporate Law and Governance and you lead up a project there. So tell us a little bit more about your particular project through the Corporate Law Governance Center. Yes, okay. So I'll start with the project and then talk about what I'm doing at Max Planck because they're related, but you kind of need to understand the project first. So the project is the responsible contracting project.
00:31:49
Speaker
And the mission of the project, I should say, is to improve human rights in supply chains through innovative contracting practices. And the responsible contracting project, the RCP, comes out of an initiative of the American Bar Association. So the American Bar Association, you know, is our professional.
00:32:16
Speaker
Lawyers Association, the ABA, created a working group, the business law section of the ABA created a working group that drafted model contract clauses for human rights that companies can take and integrate into their international supply contracts to improve human rights in the supply chain.
Responsible Contracting Project
00:32:43
Speaker
So imagine a Nike.
00:32:46
Speaker
would take the model contract clauses that were published in 2021 and integrate them into their contracts with their suppliers, say, in Bangladesh, the factory in Bangladesh. And the idea of the model contract clauses is essentially to
00:33:09
Speaker
operationalize the buyer's own human rights policy throughout the contract. So many, many companies now have, especially the big ones, have a human rights policy or have something like a supplier code of conduct that says no child labor, no forced or traffic labor can be used
00:33:33
Speaker
to manufacture our goods or anywhere in your supply chain. You know, you have to have appropriate safety standards, health and safety standards in the workplace, you have to pay everyone the minimum wage, at least, you know, all these types of standards in and they'll contain it, they'll include it in a supplier code of conduct or human rights policy.
00:33:59
Speaker
And usually what they'll do is they'll say, supplier, through this contract, our supply contract, you are signing up to our supplier code of conduct. And you're telling us that you are in full compliance with our code of conduct.
00:34:17
Speaker
And so what the MCCs, the model contract clauses do is they say, okay, we'll take that code of conduct. We'll say it's called schedule P and then P for policy. And then all the model contract clauses operationalize that schedule P.
00:34:37
Speaker
and basically say you will behave in conformity with Schedule P. If we find out that there is a problem with Schedule P, this is what will happen. You'll have this much time to fix the problem. And if we are not able to fix the problem in a way that is satisfactory to the victims, then maybe we will decide to end our contractual
00:35:06
Speaker
relationship. So anyway, these are just quick examples of what the MCCs contain, but the idea is that they are taking the policy that we know many companies have and implementing it, operationalizing it through the contract. Okay. So then who does... Oh, sorry. I'm just curious about how then enforcement works, compliance work. Let's say
00:35:34
Speaker
someone comes forward and said, I was trafficked. Who did they go to? How does this whole work? How does it get enforced so that the company who has this contract with a supplier that violated it, what then happens afterwards?
00:35:53
Speaker
So, one of the model contract clauses says that the supplier has to have what is called an internal grievance mechanism in place that would allow victims to come and register complaints or grievances and then have those grievances addressed.
00:36:14
Speaker
The other thing that's really important is that in the MCCs, we say that both buyer and supplier
00:36:27
Speaker
have to, throughout the contract, have to engage in what is called ongoing human rights due diligence, which means what? So this is like a new concept for a lot of Americans especially, but it's becoming very well known here in Europe.
00:36:47
Speaker
So human rights due diligence essentially is a process, a practice whereby the company, each one, buyer and supplier, looks at their supply chain and looks to see where are the biggest, most severe human rights risks in my supply chain.
00:37:05
Speaker
And then you have to identify them and you have to record where those risks are, what they are. It might be child labor. It might be minimum wage violations. It might be whatever it is. It may be any number of things. And then once you have identified them, you have to take affirmative measures to prevent those risks from graduating into harm.
00:37:30
Speaker
So it's a very heavy emphasis on prevention, which is another way of saying that the expectation is not perfection, but the expectation is that you will do your best to identify risks and try to prevent them from graduating into harm. Then if a harm does happen, even though you tried to avoid, a harm does happen, then you also have an obligation to provide human rights remediation.
00:38:00
Speaker
to the victims. And that remediation can take any number of forms. It can be restitution of lost wages, for example. So it can be financial restitution. It can be setting up new processes to avoid the bad thing ever happening again. It can be apologies. It can be changing, all kinds of internal operational structures.
00:38:29
Speaker
The important thing, though, in the MCCs is that you have to get verification from the victims that they are satisfied with the solution. So in answer to your question,
00:38:44
Speaker
the victims could register a grievance. This is assuming that the company takes all our model contract releases, which is not a guarantee, obviously, but they would have a vehicle through which to register their grievances. And very importantly, they would be involved in the remediation process. So they would be involved in the conversation where they say, this is what remedy looks like for us.
00:39:12
Speaker
And then they would also be involved in the conversation around, OK, now you have provided the remedy that we agreed. Or no, we're not there yet. You were not certifying this remediation plan as having been fully implemented.
00:39:25
Speaker
What the MCCs don't do, and this is an answer to your question as well, is they don't say that the victims would have the right to sue under the contract as third-party beneficiaries. So the enforcers are really one or the other party, in theory.
00:39:44
Speaker
but not the victims. Although we do include one model clause that is for companies that might want to give victims third-party beneficiary rights, we have a clause that they can use for that. But honestly, it is very, very unlikely that a company would include a third-party beneficiary right of enforcing of enforcement under the contract. Very unlikely. And you can understand why.
00:40:13
Speaker
Yeah. So you said earlier that these MCCs are much more common, generally more accepted in Europe than in the United States. But it sounds to me, based on what you said also, that there are companies in the United States that are adopting
00:40:33
Speaker
these MCCs, and is that right? And if so, what has led to that? So the thing that is more accepted is, I don't want to say the MCCs because that is what the responsible contracting project is tasked with, is implementation of the MCCs, uptake of the MCCs, getting companies to, you know, working hand in hand with companies to get them to improve their contracts. But what is accepted here, increasingly, is this idea of human rights due diligence.
00:41:03
Speaker
this idea that all companies, it doesn't matter if you're the buyer or the supplier, you have a responsibility to identify the human rights risks and take preventive measures and remediation measures if needed. That idea is, you know, more than gaining ground in Europe because, for example, in Germany, they have just adopted a supply chains Accountability Act, which is
00:41:32
Speaker
precisely mandating that corporations with a certain number of employees or a certain threshold of revenue in Germany have to engage in human rights decisions. And now there is an EU-wide
00:41:49
Speaker
legislative initiative called the Corporate Sustainability Due Diligence Directive, which we summarize as the CS3D, that is making its way through the EU legislature.
00:42:05
Speaker
And if that goes through, which everybody expects it will, but we don't know exactly what the final text will contain, that will make human rights judigants and environmental judigants. We haven't talked about that, but it's similar. Human rights and environmental judigants, a legal requirement for companies generating above a certain amount of revenue in the EU.
00:42:31
Speaker
including non-European companies. That's huge. It's huge. Yeah. It is a complete game changer. So that's why now American companies, especially the big ones, are really starting to pay attention to HRDD, human rights decisions, because they're seeing the prospect that they could be subject to this now forthcoming EU legislation.
00:42:58
Speaker
Yeah, interesting. So is this the type of work that you're doing at the Max Planck Institute?
Work at Max Planck Institute
00:43:04
Speaker
So the thing about the MCCs that I worked on, I co-authored a number of the clauses in there, is that in my
00:43:20
Speaker
contribution to the MCCs I really tried to bring forward is the idea that the buyer company cannot simply shift the responsibility for human rights onto the supplier. They have to share responsibility for human rights with the supplier.
00:43:40
Speaker
And there are many reasons why this is the case. But I don't know that we have time to go into them now. But the point is that this idea of shared responsibility in contract strikes a lot of people as strange. Let me just put it this way.
00:44:03
Speaker
So when we talk with companies, some, especially the ones that are going to be subject to the new mandatory HRDD laws, get why a shared responsibility model makes sense. But for a lot of companies and a lot of people,
00:44:23
Speaker
you don't have to be inside a corporation and they have no questions like why would a company take on more contractual liability than it has to.
00:44:34
Speaker
And so the project that I'm working on at Max Planck is in a way to answer that question, but from a theoretical, a doctrinal point of view. So saying like, actually, you may not think that shared responsibility has a place in US contract law, but in fact, here are all these cases where we see shared responsibility principles actually play out in judges' decisions.
00:45:04
Speaker
And yes, and maybe through those judges decisions are changing behavior, then and the outcomes of if that's the outcome in those cases, it must have had some impact on the parties involved. And so then collectively, you can imagine the shared responsibility approach has made an impact.
00:45:23
Speaker
much more broadly than we've understood before. I mean, that's part of what I want to argue in the paper that I'll be working on here, to say, I'm not crazy. This actually happens all the time. And it actually influences your behavior more than you might realize. And then I want to conclude by saying, so I'm going to do the shared responsibility analysis outside of human rights. But I'm going to conclude by saying judges should be particularly
00:45:53
Speaker
encouraged to apply principles of shared responsibility where human rights are at issue, or where the contract has the performance of the non performance of the contract comes with a very high social cost.
00:46:12
Speaker
So that's going to be the overarching argument. That's great. I'm really looking forward to reading this paper at the end of your fellowship. We're actually now near the end of our talk. I don't know if you've thought about this recently, but you joined Rutgers in 2013, I think.
00:46:34
Speaker
now entering your first decade or ending, I guess, your first 10 years. And I just wonder if maybe you could reflect on where you are in terms of your career, particularly given that you started off in your story, having moved around quite a bit with your family and learning all those various experiences and bringing that into your teaching, into your scholarship.
Career Reflection at Rutgers
00:46:59
Speaker
How do you feel right now about where you are in your life?
00:47:05
Speaker
I feel amazing. I feel like this, honestly, the opportunity to teach, continue teaching our amazing students and combining that with this very real world facing project of the responsible contracting project is, it just,
00:47:33
Speaker
I feel extremely fulfilled and I'm constantly stimulated and I feel incredibly fortunate to be doing something that I love.
00:47:45
Speaker
for so many, you know, I love in so many different ways. So yeah, I knew back in 2013 when I started, 2012 when I accepted the offer from Rutgers that this would be a good home and that knowledge has only deepened with time and I just feel
00:48:11
Speaker
Incredibly lucky. I don't know, you know, I just feel so lucky.
00:48:16
Speaker
Well, you know, we're lucky. We're lucky that we have you. Our students are lucky that they have you in their classes and that you're teaching this really interesting and important area of law of how to incorporate human rights into business law. So thank you for what you're doing. Thank you for spending time with me today. And I wish you well during the semester while you are doing your research at the Max Blind Institute.
00:48:42
Speaker
And I'm looking forward to seeing you back on campus. Me too. Thank you so much. Thank you. Thank you, Sarah. The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers a prestige and reputation of a large, nationally known university with a personal, small campus experience. Learn more by visiting law.ruckers.edu.