Elise Groulx Diggs: Lawyers must be creative and innovative

By Danial Naqvi

In a recent interview with Front Group, Elise Groulx Diggs shares her insights as a human rights lawyer. An associate tenant of Doughty Street Chambers, she is a lawyer based in Washington D.C., with knowledge of international developments in modern slavery and human rights issues. She insists that lawyers need to become more innovative in their approach to advising corporations tackle modern slavery issues.

Globally, the UK is the leader of modern slavery legislation says Groulx Diggs, the Modern Slavery Act (2015) provided a platform and a model that other countries can use to take appropriate steps to help the global fight. She called the UK MSA a “good first step”. Groulx Diggs adds:

“[Companies active in this field to the release of the MSA] welcome the new transparency in supply chain provision as they believe that their organisations have been acting responsibly already and that the new provisions will force other businesses to raise their standards and create a more level playing field.”

As new laws, thereafter, came into place in the USA and France — Groulx Diggs says lawyers must now act “proactively” with clients, a role that lawyers are not always trained to perform and do not propose to clients.

The emphasis on “creativity”, “innovation” and “leadership” throughout the interview shows the direction that Groulx Diggs sees for the new field of business and human rights. She remains enthusiastic and optimistic about the prospects of modern slavery being tackled by all concerned actors including corporations.  The adoption of more and more legislation and regulation supports this movement. A recent French law, adopted in March 2017 and entitled “Duty of Vigilance Act”, strongly encourage companies to “engage with all stakeholders” in order to comply with its requirements.

Given the ambiguity in the language of the French law, Groulx Diggs suggests that lawyers must find new angles to accompany companies as they try comply with the law. Striving to be compliant will enable corporate actors to avoid being “named and shamed” by media and NGOs. However, she does say that companies up to this point have not set aside serious budgets to help them comply and adopt these new principles as part of their core operations.

Before the UK MSA (2015) came the California Transparency in the Supply Chain Act (2010) which Groulx Diggs labels as “ground-breaking” at the time. Furthermore, the Trade Facilitation Act (2016) in the USA could also help change the nature of trade and impose new compliance requirements on the goods and commodities that can enter legally into the United States. Groulx Diggs explained that the amendment to the Trade Act (1930) limits import of goods known to have been produced by child labour or forced labor practices. She comments:

“NGOs and trade associations in the US have initiated lawsuit… This is an indirect tool to address issues of Modern Slavery. It could be a very powerful tool if it’s properly used. Corporations have to conduct due diligence to discover if there is slavery happening in their supply chains. If not, they could be caught by surprise and risk long delays and disruption of their trade operations at the border.”

The severity of new laws doesn’t stop there. India has been working hard to guarantee its workers are paid the national minimum wage. Companies and subcontractors that don’t pay the minimum wage are considered to be contributing to slavery, according to Groulx Diggs. This is where lawyers must be more “proactive” and show imagination in tackling these issues with their clients first by raising awareness and in helping improve compliance.

Regulation and proposals for new legislation may seem progressive but the consequences of restricting imports from modern slavery locations can have unexpected consequences that were not perceived at first. A bill in the Netherlands to completely ban child labour, expected to be in force in 2020, has met with problems before the Dutch Senate making it uncertain it will become law as Groulx Diggs explains:

“If you’re sure that you’re not going to import products that have been tainted by child labour it means that you have to support the families, because often in places like India and Bangladesh the children are working because the families need income to survive. You have to improve adult wages and find ways to send kids to school.”

This roadblock is under debate before the Dutch parliament, where it is a poignant topic of conversation related to ideas of social progress and ethical and sustainable development.

Finally, Groulx Diggs mentions how corporate lawyers can learn to engage creatively with human rights lawyers and make these endeavours more beneficial for all concerned, including NGOs and corporate actors:

“Since the profession in a way is saturated with old ideas and old ways of doing things, this is an opportunity to have an integrated approach bringing different sectors of the law together to solve these complex problems and develop also a transnational approach.”

In all, Groulx Diggs provides an all-round insight into how lawyers in the field of human rights and modern slavery, can help corporations take the next steps in the right direction. Governments are starting to play their roles in various jurisdictions (bills covering modern slavery are pending before Australia and Hong Kong to name but a few). Contemporary approaches introduced by the legal profession exercising leadership will make a difference for corporations looking forward.

The issues of Modern Slavery and Human Rights will be discussed further at the upcoming Modern Slavery & Human Rights in Supply Chain Conference on 19-20 April in London. Confirmed speakers include Adidas, Co-op, Engie, Debenhams, Centrica, M&S, Marshalls, NXP Semiconductors, BBC Worldwide, Sanofi and many more. Find out more here: https://front-group.co.uk/modernslavery/brochure/

Found the article of interest? Then take a look at the upcoming Modern Slavery & Human Rights in Supply Chain Conference here.