Larry Catá Backer has just kicked off a new series of articles over at his blog on “Business and Human Rights.” In his most recent article, he examines the different human rights obligations of corporations and the institutions that finance corporate activity.
Apparently, there is a different standard of due diligence for each entity; corporations are held to a higher standard than financial institutions (according to the United Nations Special Representative of the Secretary-General on Business & Human Rights). This logic is based on the notion that financial institutions are ‘one step removed’ from the actual corporate activity they are financing, so they are simply unable to do the on-site due diligence for all the investments they make.
This assumption seems to roil Backer:
“It seems odd to suggest that an industry with such a sophisticated approach to the monitoring and control of borrowers would be incapable of adding another layer of monitoring and review–that centered on human rights–to an already well established list of risk assessment protocols. Indeed, it would seem that banks are in a better position to monitor compliance form their borrowers than companies might be able to monitor the conduct of their down chain supply chain partners.”
So how do SWFs fit into this story? Backer highlights the difficulty of using the above logic for this class of investor. As government-owned entities, they should be held to the highest standards of due diligence in terms of human rights. However, SWFs, in many cases, are working very hard to be seen as “commercial” and “returns driven” entities. So, this begs the question: should SWFs be held to the same human rights standards as private financial institutions (i.e. low) or to the same standards as governments (i.e. high).
Here is Backer’s (abridged) take:
“Where sovereign wealth funds invest primarily in shares of other entities, then, to that extent they ought to be subject to the same scope of responsibility as other funds of the same type. In that case the obligation would be that of a shareholder investor, and to a large extent, remote form the operations of the corporations whose shares are acquired in the market….SWFs that own controlling interests in an enterprise ought to face substantially broader responsibilities. And SWFs that own financial operations–banks and the like–ought to be responsible for their downstream operations like any other enterprise.”
Backer has raised an interesting thought experiment that has some practical ramifications. The above shows the difficultly in reconciling government obligations with private sector demands. Indeed, the legitimacy of these funds is bound up in their ability to act in accordance with government and societal standards of due diligence (think Norway). However, the success if these funds (also in the eyes of the government and society) depends on their ability to compete according to private sector standards.
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