Legal Strategy for Subsidiary Acquisition
03 March 2021
Mining offers many benefits. It also produces many detriments. Responsible business conduct (RBC) is key to adding value for commercial stakeholders, individual stakeholders, and global stakeholders. RBC refers to a standard for Canadian companies doing business abroad to conduct their operations in an economically, socially and environmentally sustainable manner by respecting human rights and complying with laws and global standards.
Canadian Mining Corporation (CMC) is a large Canadian multinational mining company that is registered in Ontario. CMC is considering the acquisition of African Mining Corporation (AMC). AMC is a multinational mining company with branches in several countries in Africa.
This legal strategy is designed to enhance the viability of such an acquisition by preventing, minimizing and mitigating the risks associated with such a venture. In particular, this strategy considers (1) the regulatory framework, (2) the institutional structures to develop, support, monitor, and implement corporate social responsibility (CSR) , (3) responses to identify and prevent or mitigate risks, and (4) a framework for building relationships between the companies by implementing CSR policies and managing venture risk.
1. Regulatory Framework
The regulatory framework comprises both soft law and hard law operating both domestically in Canada and internationally.
Soft law has been defined as “‘principles, norms, standards or other statements of expected behaviour’ that do not create enforceable rights and duties.” Soft law can be perceived along a continuum of rules designed to guide behaviour. Although not legally binding, it can command legal consequences depending on the authority of the drafters and the unequivocal nature of the provisions.
Canada has developed an RBC strategy for companies doing business abroad. This strategy is intended to enhance their ability to better manage social and environmental risks as recommended by international CSR guidelines and best practices. CSR is defined as the “voluntary activities undertaken by a company, over and above legal requirements, to operate in an economically, socially and environmentally sustainable manner”. Canada’s comprehensive approach to CSR includes promoting and advancing CSR guidance; fostering networks and partnerships; facilitating dialogue towards dispute resolution; and strengthening the environment affecting responsible business practices. Both the e3 Plus initiative and the Towards Sustainable Mining (TSM) standard are recommended by this strategy.
The government of Canada has also been instrumental in developing the Child Rights and Security Checklist, the Child Rights and Security Handbook, the International Finance Corporation’s (IFC’s) Performance Standards on Social & Environmental Sustainability, and the Global Reporting Initiative (GRI). The government has also recognized the United Nations Global Compact (UNGC) – Ten Principles as an RBC tool. Additionally, the government is prioritizing women as workers and aids developing countries with management strategies for their natural resources.
As part of Canada’s CSR initiative, the government endorses several international soft-law instruments including OECD Guidelines for Multinational Enterprises for responsible business conduct (OECD Guidelines); OECD Due Diligence Guidance for Responsible Business Conduct; OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas; OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector; United Nations (UN) Guiding Principles on Business and Human Rights (UNGP); and Voluntary Principles on Security and Human Rights (VPs).
The four main international soft-law instruments include: UNGP; OECD Guidelines; International Labour Organization’s (ILO) Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (ILOTDP);  and the United Nations Global Compact (UNGC) – Ten Principles. Although they are all voluntary, the first three can found legal consequences and command authority given their unequivocal drafting and affiliation.
The UNGP is intended to be about responsibilities rather than legal obligations and applies to all States and businesses. It is organized around a three-pillar approach that recognizes that States have a duty to protect human rights, businesses have a responsibility to respect human rights, and those affected by human rights abuses have a right to access a remedy for those violations. The OECD Guidelines are aligned with the UNGP and references provisions of the ILOTPD and the Rio Declaration. The ILO provides voluntary standards for corporate labour issues including employment promotion, child and forced labour, and safety and health standards. The UNGC is another non-binding policy initiative that promotes human rights in business practice. This is considered to be pure soft-law as it sets out only ten general provisions, fails to specify consequences of breach, and does not have any third-party oversight.
Hard law refers to legal obligations that can be enforced by a court. These obligations are non-voluntary and binding. This includes legislation, treaties and the common law.
Mining in Canada is both federally and provincially regulated. Although CMC will be subject to laws governing generic business matters, this legal strategy will focus on the laws pertinent to human rights.
CMC must abide by the Corruption of Foreign Public Official Act (COFPOA) that makes it an offence to bribe a foreign public official or hide such conduct. This applies even where the offence happens outside of Canada.
As a mining company, CMC is also subject to the Extractive Sector Transparency Measures Act (ESTMA). This Act implements Canada’s international commitments against corruption in the extractive sector. Assuming CMC meets its application criteria, this legislation creates reporting obligations of payments in excess of the regulated amount or $100,000. ESTMA reports are publicly reported and criminal investigations may also be conducted by law enforcement agencies for bribery.
Canada, excluding Quebec, is a common law jurisdiction. It is based on the practice that some decisions are binding and must be followed. Recent decisions by the Supreme Court of Canada have served to lift the corporate veil on liability for conduct committed in other countries. This has been accomplished through jurisdictional arguments and the recognition of customary international law as part of Canadian law.
Rather than cases being heard in the foreign jurisdiction, where the foreign court is not found to be the more suitable forum, the matter will be justiciable in Canada. Despite the legal and logistical challenges of evidence, cases have been successfully litigated in Canada. Courts have been very clear that the Act of State doctrine does not apply in Canada. Instead, foreign laws are given deference but the Canadian court retains judicial discretion to decline to enforce laws that are contrary to public policy. While Canadian courts do not purport to make findings that are legally binding on the foreign jurisdiction, they will inquire when it is necessary or incidental to resolve rights.
Customary international law is created by general, widespread, representative and consistent practice and the belief that such compliance is a legal obligation. Where prohibitions are part of customary international law, they automatically become part of Canadian law through the doctrine of adoption. This means that international law is Canadian law.
Human rights law is about the individual and Canadian courts have addressed the “governance gap” in the international sphere. Corporations may now be directly liable for their breaches of international law and remedies may be available in the form of damages. Although “compensation has rarely been achieved,” the recent direction in Canada indicates that the potential for damages is real. In fact, out-of-court settlements have been found to be more likely and provide higher compensation. Given the increase in foreign direct liability cases, it is essential for CMC to take the rights of individuals seriously whether located in Canada or in a foreign jurisdiction like Africa.
Canada has signed on to the following nine main treaties: Convention on the Prevention and Punishment of the Crime of Genocide (1952); International Convention on the Elimination of All Forms of Racial Discrimination (1970); International Covenant on Economic, Social and Cultural Rights (1976); International Covenant on Civil and Political Rights (ICCPR) (1976); Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW) (1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(1987); Convention on the Rights of the Child (CRC) (1991); and Convention on the Rights of Persons with Disabilities (2010).
Generally, there has been a growing trend towards a hardening of soft law initiatives. Examples include the Directive 2014/95/EU on Non-financial Reporting that makes the reporting on CSR issues mandatory for larger corporations; the Modern Slavery Act in the United Kingdom that requires larger corporations to publish a statement on slavery and human trafficking; the Duty of Vigilance Law in France that requires businesses to disclose and implement an effective human rights plan; a Child Labour Due Diligence Law in The Netherlands to combat child labour; and Regulation 2017/821 in the EU that implements a 5-step framework in the OECD Due Diligence Guidance for Responsible Supply Chains from Conflict-Affected and High-Risk Areas. Canada has continued this trend with reporting requirements to combat bribery with both COFPA and ESTMA discussed above.
CMC will also be required to comply with the laws and policies of the foreign jurisdiction. These laws are beyond the scope of this legal strategy and it is recommended to consult with the institutions discussed in the following section for more guidance.
2. Institutional Structures
A Multi-stakeholder Advisory Body was recently organized to advise the Canadian government on the development of law, policy, and practice in the area of RBC for Canadian companies operating abroad. This body establishes the Office of the CSR Counsellor that is responsible for advising and guiding stakeholders about CSR implementation and for reviewing CSR practices of Canadian extractive sector companies operating abroad. This office also offers a non-judicial Review Process that is aligned with Canada’s National Contact Point (NCP) for the OECD that may be accessed to resolve issues between companies and affected stakeholders.
Organizations who may provide information and assistance related with the acquisition of AMC include the Centre for Excellence in CSR (the CfE) and the Canadian Trade Commissioner Service (TCS).
Non-Governmental Organizations (NGOs) are non-profit groups that are not connected with the State but who can exert meaningful influence over commercial activity. NGOs are engaged with the monitoring of corporate activity and may contribute to enforcement of violations through “naming and shaming” and litigation. Some relevant mining associations include: Canadian Institute of Mining, Metallurgy and Petroleum (CIM/ICM); Mining Association of Canada (MAC); Mining Industry Human Resources Council (MIHR); Ontario Mining Association (OMA); and Prospectors and Developers Association of Canada (PDAC).
Other non-governmental groups providing RBC resources include the Canadian network, Global Compact Network Canada (GCNC), Sustainable Development Goal (SDG) Compass, and ISO 26000 – Social Responsibility.
The Canadian Ombudsperson for Responsible Enterprise (CORE) works in collaboration with the NCP, EDC, NRCan, Environment Canada, and Health Canada and is an impartial and independent body that makes remedial recommendations in an effort to support RBC in the area of mining.
The Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (IGF) and the Canadian International Resources and Development Institute (CIRDI) are non-governmental groups that foster dialogue, training and research to help developing countries manage their natural resources.
Export Development Canada (EDC) is Canada’s export credit agency and their funding criteria is aligned with the Government of Canada’s Human rights policy, the OECD Guidelines, the UNGP, the Equator Principles (EPs) and the International Finance Corporation (IFO) Performance Standards.
To support the OECD Guidelines, there is an NCP office in Canada. The NCP promotes, raises awareness, provides information, and offers a grievance mechanism related to the OECD Guidelines. The dispute resolution mechanism is a state-based non-judicial process that manages RBC issues of companies in or from Canada. Participation is by consent and designed to support engagement between businesses and stakeholders. Reporting about specific cases is done publicly.
Enforcement of soft law is enhanced through financial requirements and sanctions made by regulators such as those imposed by the IMF and World Bank for not following soft law. In particular, the Financial Action Task Force is an intergovernmental organization that engages in “naming and shaming” tactics by creating a public blacklist.
Sustainability reporting is done through various initiatives including the Carbon Disclosure Project (CDP) that includes Greenhouse Gas (GHG), water, and supply chain performance, the Global Reporting Initiative (GRI), and the Dow Jones Sustainability Index (DJSI).
The CDP is a non-profit organisation that helps companies disclose their environmental impact. The GRI is a globally recognized reporting standard for businesses designed to enhance transparency and CSR performance. The DJSI provides a benchmark of sustainability. Selection for this index is based on RBC performance. Given the lucrative potential of inclusion, it is vital that CMC prioritize RBC.
Third party private standards include ISO 26000 – Social Responsibility and the Extractive Industries Transparency Initiative (EITI). ISO 26000 is a voluntary international standard that provides guidance on social responsibility and the EITI is a global standard to promote accountability and transparency in the extractive sector.
A development plan moving forward in phases is an essential part of a legal strategy to acquire AMC. This development plan follows the OECD framework for the extractive sector and focuses on stakeholder engagement through due diligence, corporate planning, on-the-ground planning, and monitoring and evaluation.
Due diligence is “the process through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts as an integral part of business decision-making and risk management systems”. Issues include “disclosure, human rights, employment and industrial relations, environment, combating bribery, bribe solicitation and extortion and consumer interests”. The OECD guidance reiterates that offered by the UNGP in that it is done as a risk-based assessment on an ongoing basis.
Strategic stakeholder engagement makes good business sense as it establishes a “social licence to operate”, provides early identification of risks of adverse impacts, avoids reputational risks, reduces approval and negotiating time, avoids lost productivity due to conflicts, improves corporate risk profile, and attracts and retains employees. Stakeholder engagement is important to avoid and address adverse impacts and must be adequately prioritised throughout operations.
Recommendations for on-the-ground personnel is a six step process: (1) ensuring that personnel leading stakeholder engagement understand the local and operating context; (2) identifying priority stakeholders and interlocutors; (3) establishing the necessary support system for meaningful stakeholder engagement; (4) designing appropriate and effective stakeholder engagement activities and processes; (5) ensuring follow-through; and (6) monitoring and evaluating stakeholder engagement activities and responding to identified shortcomings.
Monitoring and Evaluation
RBC is an ongoing process. The OECD recommends a monitoring and evaluation framework for overseeing stakeholder engagement and offers specific guidance for engaging with indigenous peoples, women, workers and artisanal and small-scale miners.
RBC is also relevant to CMC’s ongoing financing options and bottom-line profit. The International Finance Corporation’s (IFC’s) Performance Standards of Social & Environmental Sustainability sets out performance standards for companies as a prerequisite for funding support. These performance standards use the Equator Principles (EPs) as a benchmark for assessing environmental and social project risk. The EPs are used by all five of Canada’s major banks and Export Development Canada (EDC) in their funding decisions. In this way, “financing considerations can drive corporate behavioural change”.
3. Risks and Responses
Risks can happen at all phases of the operation. It is essential to be aware of these and have the tools and strategies to legitimately respond in a way that demonstrates commitment to RBC and minimises risk.
Extractive industries are particularly prone to the risk of human rights litigation. This is especially true when operating in high-conflict areas like Africa. The adoption of RBC as voluntary soft-law initiatives may help to avert this risk.
While the UNGP is not intended as creating any new legal obligations, its due diligence principles are considered for criminal and civil negligence liability. Adoption of this soft law can be a factor in establishing proximity between the harm suffered and its foreseeability by the defendant. This means that commitment to the UNGP can have legal consequences. The growing trend is towards the development of national action plans to implement UNGP into domestic law. From a value perspective, it will benefit CMC to adhere to these principles. In fact, it has been speculated that the non-implementation of a broadly accepted soft law instrument could found liability for negligence. This broadening of negligence liability may also extend to individuals in a company responsible for facilitating compliance systems. Because intent is formed from their awareness of company failure to prevent harm, individual liability could flow from both knowledge of non-compliance and from wilful blindness of such conduct.
Identifying risks is especially important given how “direct liability” in Canada is used to hold parent companies liable for harm caused by their subsidiaries. Recent findings show that a parent company can owe a duty of care to those injured by their foreign subsidiaries. Legal risks of failing to comply with human rights due diligence include breach of contract to other businesses, state-imposed reporting requirements, and asset seizure in other jurisdictions such as the UK. Non-legal risks include lost productivity related to delay, distraction and disruption; reputational loss; and reduced access to capital markets. The identification and addressing of actual or potential harm arising from both past business practices as well as future behaviour of the target company is a critical consideration for the acquisition.
Respecting human rights is essentially a legal compliance issue. This requires that CMC prioritize and comply with the law and respect internationally recognized human rights in all aspects of their venture. Responses should be triaged according to those that are most severe or where delay would cause irreparable harm.
Although “respect for human rights” is not defined in the UNGP, it does involve the avoidance of human rights violations and addresses such impacts through prevention, mitigation, and remediation as they occur. As part of this commitment, businesses are expected to have a human rights policy, a human rights due diligence process, and processes for remediation. The policy statement should be approved by senior staff; be informed by relevant expertise; outline operational expectations; be communicated and publicly available; and be integrated into the operational policies and procedures of the entire company.
Due diligence should be taken to identify, prevent, mitigate, and account for how adverse human rights impacts are addressed. This will include assessment of the actual and potential impacts, responding to the findings, and reporting. Responses are expected to vary according to the risk of severity of human rights impact and nature and context of business operations and evolve with the situation.
Assessment will be based on internal and/or independent external human rights expertise and consist of meaningful consultation with those potentially affected and other stakeholders. Responses from impact assessments will be delivered by the appropriate department as adequately financed. Action depends on whether the impact is caused directly by the company or because of its direct links to the harm and should be proportionate to the extent of company leverage and the nature and context of the operation. Effectiveness is gauged according to both qualitative and quantitative indicators and feedback from internal and external sources.
Reporting must be accessible, in terms of form and frequency, and adequate in terms of sufficiency of information without posing confidentiality risks. Remediation efforts should be active and legitimate.
In general, to avoid liability, CMC should comply with established laws and policies in the countries where it operates. Additionally, because EDC’s funding criteria aligns with the OECD Guidelines, the UNGP, the EPs, and the IFO, adopting these standards is essential to be considered for EDC financing. As part of the EPs compliance, CMC will be required to develop and maintain an Environmental and Social Management System (ESMS); demonstrate effective stakeholder engagement; and establish a grievance mechanism. In particular, adoption of the VPs may assist with addressing and averting risks associated with public and private security.
The government of Canada expects companies to respect human rights and behave responsibly even when operating abroad. Where it is not possible to align foreign operations with “Canadian values”, it suggests that the venture be reconsidered.
4. Building Relationships
Building relationships is key to avoiding and addressing adverse human rights impacts. This is particularly important with the addition of a human rights chapter to the OECD Guidelines.
Business relationships is broadly defined. Leverage to compel compliance with subsidiaries and suppliers refers to the “ability of a business to influence the human rights performance of a business relationship”. Leverage involves the promulgation of a commitment to human rights and the integration of this priority throughout operations.
With the 2018 updates to the OECD include recommendations for due diligence and responsible supply chain management, building relationships with subsidiaries through “avoid and address adverse impacts related to workers, human rights, the environment, bribery, consumers and corporate governance”. As part of building this relationship, CMC can require AMC to adhere to the UNGP or OECD Guidelines if not already required and provide timely and accurate disclosure on all material matters of their activities, structure, financial situation, performance, ownership, and governance. It may also be useful to require the subsidiary to adhere to both the ILO-IOE to improve global supply chain governance, due diligence and remediation processes and the UNGC for issues related to human rights, labour standards, environment and the prevention of corruption.
The expectation for RBC does not end with CMC and AMC, but extends to all entities of the supply chain. Beginning January 1, 2021, with Regulation 2017/821, EU importers are required to follow the 5-step framework of the OECD’s Due Diligence Guidance for Responsible Supply Chains from Conflict-Affected and High-Risk Areas. This means that importers must assess risks in the supply chain, plan to respond to these risks and report annually on this activity. Internal controls such as the implementation of risk management, internal audits and the standardization of procedures, processes, assessment and metrics are also required.
One strategy to ensure that subsidiaries and suppliers not only agree to abide by responsible business practices but actually comply and continue with compliance is with the imposition of external certification standards such as multi-stakeholder and NGO standards. Important non-governmental international organisations like the Social Accountability International (SAI) and the International Organization for Standardization (ISO), and global union federations like IndustriALL and UNIGlobal Union are internationally recognized. Examples include the Social Accountability 8000 (SA8000) of Social Accountability International, the ISO 14000 standard or the ISO 26000 standard. Requiring the reporting of CSR indicators similar to EU requirements with the CSR Directive may support transparency and accountability measures. The obligation of a slavery and human trafficking statement similar to the UK Modern Slavery Act may also support a due diligence agenda.
CSR Implementation Strategy
Business and human rights are not exclusive. Both can flourish through a commitment to RBC. RBC implementation begins with a business code of ethics as “a distinct and formal document containing a set of prescriptions developed by and for a company to guide present and future behaviour on multiple issues of at least managers and employees toward one another, the company, eternal stakeholders, and/or society in general”. Practice is founded through a mission statement and core values. This is where abstract human rights are translated into a concrete plan of action. Incorporating sustainability priorities on a wholistic operational level that includes subsidiaries and suppliers is key. Implementing due diligence assessments prior to acquisition and monitoring progress ongoingly is important. Being accountable to all stakeholders through credible verification and public reporting will help to minimize corporate liability risk. Ultimately, value is created by respecting human rights.
Guidance about how to do this has been provided throughout this legal strategy. To be a vital presence in the Canadian mining space, it is incumbent on CMC to show RBC leadership by adhering to both soft and hard law in their entirety. Taking rights seriously requires not only a multi-stakeholder approach but a firm commitment to social and environmental sustainability. Seeking guidance and practical tools through the various means, encouraging stakeholder engagement, and resolving issues proactively through the various non-judicial grievance mechanisms will help demonstrate that commitment. Respecting human rights ultimately adds value for stakeholders and failing to respect human rights can expose a company to the “courts of public opinion”.
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