Navigating a world shaped by non-binding soft laws

Although not formally binding, soft laws shape the context in which businesses have to operate nowadays. This is what our client discovered when they invested in the realisation of an onshore wind park in Scandinavia.

Human rights violation

The local company our client invested in, had realised the wind park with due regard to national laws. Nevertheless, after the wind turbines were installed, local courts found that the wind park violated indigenous peoples’ rights. Which meant the local operating company had to find a solution in order to move the project forward and safeguard the substantial investments made by our client.

Although our client’s portfolio company oversaw negotiating a solution with the indigenous peoples, our client was increasingly confronted with NGO engagement. Obligating them to act in accordance with international (soft law) human rights standards. Our client risked getting caught in the crossfire that resulted from the extensive media attention for the case.

A more active role

We advised our client to take on a more active role. And helped them identify the relevant international soft law standards that could guide their response. On this basis, we jointly developed a more active engagement strategy to ensure that any negotiations at portfolio company level would comply with international standards. In cooperation with indigenous law experts from our offices in Canada and Mexico, we developed do’s and don’ts for the negotiations and held workshops with the key negotiators.

Litigation risks mitigated

This proactive strategy mitigated litigation risks for our client, as it acts in compliance with international soft law principles. In addition, the expertise shared in respect to indigenous peoples’ engagement helped propel negotiations forward and improved the chance of a solution protecting the client’s investments.

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