Jan Fougner opened this year's OCF by stressing the seriousness of conducting activities in breach of human rights.

Part of the intention behind the forum, which took place for the seventh consecutive time this year, is precisely to call attention to the most current and relevant legal risks facing trade and industry. Legislators across the world are now introducing more stringent requirements for compliance with and protection of human rights, and the Norwegian legislature even includes dynamic key concepts in rules of law leading to an expansion of the rules’ scope. The business sector needs to acknowledge this development and take the necessary steps, before it is too late.

Experiences from other countries

France is one country which has taken a proactive approach with respect to passing legislation aimed at ensuring that companies uphold human rights and actively works to ensure that the rules passed are not breached.

Olivier Attias is one of the lawyers who have been involved in developing the so-called Duty of Vigilance Law in France, which addresses just this obligation of trade and industry to perform risk assessments and prepare action plans. In this year’s OCF, he spoke about this law and how it has been received by companies. He considers the effect of the law so far not to have been sufficiently strong and that more drastic measures must be taken in order for companies to take action. “The human rights dimension has not been sufficiently prioritised by French companies,” he said. “This law remains a ‘soft law’ and our companies are not taking the risks seriously.”

Norsk Hydro has extensive experience as a cornerstone company in local communities. Recently, this has proved a difficult role to have in some countries where the company is present. Elise Must, VP of CSR, Compliance & General Counsel, gave a thorough account of the company’s dedicated and on-going efforts to ensure that they work together with the communities in which they operate. In Brazil the company is now in the process of launching a comprehensive initiative under the name “Sustainable Bacarena Initiative” to contribute towards improved social conditions and a better future for this region. Ms Must pointed out that business will not succeed in a society that fails. Consequently, trade and industry have a responsibility towards and a vested interest in working towards the proper functioning of local communities.

Public prosecutor Ubiratan Cazetta from the Para district of Brazil attended OCF to give a talk on how companies should best mitigate this risk in Brazil. He underlined the importance for companies doing business in Brazil of understanding the complex nature of Brazilian society. There have been a multitude of challenges historically and there are important lessons to be learnt from the operators that have failed.

“The dialogue with the local people and with local authorities can present communication problems,” he warned. This is suited to create a distance between the parties and make it even harder to establish the necessary level of trust. “The concept of compliance is wider than it used to be,” Mr Cazetta said. “Now the term increasingly relates to understanding companies’ responsibility towards the environment, people and social conditions.”

He urges companies contemplating doing business in Brazil to seek information regarding local conditions. Enter into a dialogue with local authorities and the local people, showing respect and building trust through communication, is his advice.

Sound advice and panel discussion

After the break, Georg Abusdal Engebretsen of Wiersholm presented six distinct pieces of advice on the practical handling of the risks. Mr Engebretsen was clear that the risk is in no way a hypothetical one. This is a topic of high immediate interest and of the utmost relevance. “The companies that succeed in this work are the ones ensuring that they’re at the forefront of the development,” Mr Engebretsen said. Thus, his advice was not to put off tackling these issues. The companies need to show that they take the work seriously, which can be done successfully through the use of existing regulations and guidelines and through correct reporting.

The last item on this year’s programme was the panel discussion, where the panel members’ different approaches to the problem came to light. Terje Svabø chaired a mixed panel consisting of Inge Svae-Grotli of the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim), Maja de Vibe of Statkraft, Cira Holm of Yara, Muriel Bjørnseth Hansen of the Norwegian Ministry of Trade, Industry and Fisheries, Thomas Skjelbred of law firm Elden and Nils H. Thommessen of Summa Equity.

Muriel Bjørnseth Hansen informed the audience that the Ministry of Trade, Industry and Fisheries are currently preparing a new ownership report, which contains an important section on the duty of companies to observe human rights. Pressure from investors and regulatory requirements remain catalysts for change and for putting words into practice.

Another important driving force is the media. Maja de Vibe pointed to how the press has acted as a catalyst in this field. Without the media’s unswerving spotlight on challenging cases in which companies have not fulfilled their responsibility, progress would have been considerably slower.

Thomas Skjelbred, who has worked many years in Økokrim, takes a positive view of the recent development in this area of law. He considers international cooperation to be particularly important. The combination of international cooperation, efficient enforcement and profitability of ethical business is the recipe for ensuring that human rights are upheld, in his opinion. Inge Svae-Grotli confirmed that the prosecuting authorities in the various countries are in closer contact now than before. Being able to gain insight faster into the different cases allows for more effective handling and sanctioning. He also addressed the fact that incorrect reporting of these matters may in itself be unlawful and that both the authorities and the courts are following up the development we are currently seeing through more investigations and prosecutions, and stricter penalties in cases of breach.

Cira Holm pointed out how important it is, in the face of mounting reporting obligations, to focus on the actual implementation of measures, not just on correct reporting. So-called “greenwashing” and “rainbow washing” are well-known concepts in connection with corporate social responsibility, and although reporting to authorities and owners is important, it is still the outcome of the companies’ efforts that counts.

The factors that can induce companies to behave correctly was the recurring theme of the discussion. Nils H. Thommessen said that the best way to ensure compliance by trade and industry is to make compliance profitable. “In today’s world, ethical business is actually more profitable than unethical business,” he pointed out.

We would like to thank all of our speakers, the panel members and all attendees at OCF 2019, and are already looking forward to OCF 2020, where we will be addressing a new set of highly topical and relevant issues.

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