Transparent Companies? Legal Research Strategies to Understand Forced Labour in Global Supply Chains
Transparent Companies? Legal Research Strategies to Understand Forced Labour in Global Supply Chains
Abstract and Keywords
Private commercial relationships constitute significant practical challenges for researchers analysing issues of Corporate Social Responsibility (CSR), such as forced labour in global supply chains. The private nature of commercial relations means that freedom of information requests are not available. One way for researchers to study forced labour in global supply chains, therefore, is to use information made available by the corporations themselves. This Chapter draws on empirical legal research methods to explore the value of publicly available documents on how companies address CSR issues. It argues that, despite some limitations, it is possible to use data that is available on company websites such as codes of conduct, terms and conditions of purchase and nonfinancial reporting to assess business practices. These documents can complement both traditional doctrinal legal research of cases and statutes and research from other disciplines, thus providing new opportunities for research on forced labour in global supply chains.
MOST MULTINATIONAL ENTERPRISES HAVE policies to combat forced labour in their global supply chain. These policies are often included in their supplier code of conduct and/or the terms and conditions of purchase that they impose on their suppliers. Whilst corporate social responsibility (CSR) has traditionally fallen under the purview of private governance schemes, more recently governments have started to implement public legislation around these issues. For example, the United Kingdom passed the UK Modern Slavery Act 2015 to address the way companies account for forced labour in their global supply chains. This raises the question of how this type of legislation has impacted private commercial relationships, and in particular regarding the issue of forced labour. Given that the UK Modern Slavery Act and similar legislation are triggering companies to publish disclosure statements, update policies and generally increase their transparency with regard to measures they are or are not taking to combat forced labour in their global supply chains, this body of legislation also opens up a new source of information for researchers.
This chapter focuses on how legal research can secure and analyse data about how companies address forced labour in their global supply chains. Related to this question, the chapter seeks to demonstrate how such methods can complement research on the business models of forced labour in global supply chains in disciplines such as politics and management studies (Crane & LeBaron 2018).
Securing reliable data on the commercial relationships between buyers and suppliers poses several challenges, however, particularly as supply chain relations (p.149) are by nature private. For example, the UK’s Freedom of Information Act 2000, which provides members of the public with the right to request information, only covers public bodies. It is therefore difficult to access reliable empirical data that lends insights into how multinational enterprises are addressing forced labour in their global supply chains in practice and how effective these efforts are. One often overlooked option for researchers, however, is to work with information that companies publish either voluntarily or as a result of disclosure laws.
The chapter builds on and deepens scholarship on legal research methods and the opportunities and limitations of empirical legal research (see, for example, Cane & Kritzer 2010) in the context of business policies on forced labour, and thus makes two conceptual contributions. First, it argues that although the private nature of commercial relationships and the weakness of transparency laws constitute significant challenges for research in this area – and companies are not required to report specific or consistent information – it is nevertheless possible to gain valuable insights into business practices on CSR issues in global supply chains through the empirical legal analysis of publicly available documents. Empirical legal research can also complement research on forced labour in global supply chains in other social science disciplines. This discussion thus also contributes to debates about the further development of empirical legal research methods. Second, the chapter argues that the availability of reliable data on forced labour in global supply chains would be improved if governments made disclosure laws more stringent, by requiring companies to disclose reliable information and demonstrate the effectiveness of efforts designed to improve corporate accountability.
The chapter will begin by discussing the underlying framework of corporate transparency, and providing an overview of the data that this regulatory landscape is generating in the form of voluntary information disclosure and mandatory company publications. It will then further frame the debate about legal research methods and their potential contribution to interdisciplinary research on forced labour, before outlining the challenges of empirical legal research of business policies on forced labour in global supply chains. To demonstrate the value of these methods in practice, I will introduce two case studies: the first on how 25 FTSE 100 companies in the United Kingdom address forced labour and bribery in their supply chain, and the second on the compliance rating of the top 30 listed Germany companies. These two case studies will illustrate how research on business policies for forced labour can be conducted given these challenges. The chapter concludes with practical recommendations for researching business polices on CSR in global supply chains, as well as suggestions for how disclosure laws could improve the accountability of companies.
In terms of its jurisdictional scope, this chapter primarily focuses on English law (although many laws apply to the whole of the United Kingdom, English law and Scottish law are distinct legal systems, see Zweigert & Kötz 1998: 201–4). English law is illustrative of the situation in many other countries of a similar legal, (p.150) political and socio-economic makeup that are also home to many multinational enterprises. Where appropriate, laws from other jurisdictions are referred to in order to demonstrate international legislative trends.
Whilst the two case studies originate in two different countries, it is important to note that they have not been chosen in order to compare CSR norms in these two countries, but rather as a means to illustrate how research on business policies can be conducted despite the challenges posed by private commercial relations. While the laws that constitute some of these challenges are similar, an in-depth comparison between the socio-economic, legal and political environments that companies operate in in those two countries is beyond the scope of this chapter. Rather, the chapter uses these two case studies as useful illustrations of arguments related to the possible contribution of empirical legal research to forced labour research.
The emerging field of disclosure laws on CSR issues: regulation through transparency
Tracking down accurate and reliable information about multinational enterprises’ commercial relationships with supplier firms has long been a challenge for researchers. Companies are often secretive about dynamics they consider to be commercially sensitive or have the potential to damage their reputations with consumers, including information on companies they source their goods from, their conditions of purchase and manufacture, and the logistics around how the goods are transported from factory to retail. However, over the last five years or so, this situation has begun to change as companies are increasingly publishing information about their suppliers, policies and sourcing practices on their websites. Indeed, there is much information available nowadays, including sustainability and CSR reports, as well as information about the compliance practice of companies. Some of the publications accessible on companies’ websites are voluntary, while others have been required by law to publish by a recent wave of transparency legislation.2
Disclosure is classified as a communication-based regulatory instrument intended to ‘regulate behaviour by enriching the information available to the target audience’ (Morgan & Yeung 2007: 96), therefore enabling the audience to make informed choices which, in turn, should lead to the promotion of the regulatory objectives, e.g. companies combating forced labour in their supply chains. The purpose of transparency is thus to increase accountability; to reduce information asymmetries between corporate executives and company stakeholders, including shareholders; to make markets work more efficiently; and to enhance trust and cooperation (Haufler 2010: 55).
(p.151) Private forms of voluntary disclosure on non-financial information by companies developed during the early 1990s in the form of environmental reports (Owen & O’Dwyer 2008: 389). In general, private governance instruments often fill the gaps left by the absence of public regulation (Bernstein & Cashore 2007: 347–71). Private labour standards in global supply chains consist of a diverse range of private actors and are of varying reach and levels of stringency (Fransen 2012). Companies adopt voluntary reporting practices to build a positive image of themselves for the public (Kurucz et al. 2008: 83–112), but such reporting regimes are based on corporate-led dialogue (Owen & O’Dwyer 2008: 405): companies can decide what to report or whether to report at all. In addition, there is no level playing field between companies. Researchers working with information that companies voluntarily disclose therefore face the risk of collecting patchy and unreliable data. In addition, there are risks to taking companies’ voluntary reporting at face value, given their vested interest in portraying their practices in the best possible light.
With this context in mind, the public regulation of transparency may appear to be an instrument for improving reporting practices. The recent trend towards transparency legislation is not just prevalent in the United Kingdom; it is a transnational development. The transparency in supply chains clause in the UK Modern Slavery Act 2015, for example, requires companies to publish an annual statement with information about the steps the organisation has taken during the financial year to ensure that slavery and human trafficking are not taking place in their supply chain or to publicly state that it has taken no such steps (UK Modern Slavery Act 2015: s54). Statutory reporting requirements of non-financial issues in other countries, of varying stringency, include the California Transparency in Supply Chains Act 2010, the US Business Supply Chain Transparency on Trafficking and Slavery Act of 2015 and the US Dodd-Frank Act regulation of conflict minerals (see for more comprehensive overviews of the regulatory landscape: LeBaron & Rühmkorf 2017: 15–28; Phillips et al. 2016). At the time of writing, further developments towards more corporate transparency in other countries are under way: Australia is currently considering adopting national legislation to combat modern slavery, comparable to the UK’s Modern Slavery Act 2015. While Germany has not enacted a similar piece of legislation on modern slavery, it is currently implementing the EU Directive on non-financial information disclosure. This upcoming legislation will require public-interest entities with more than 500 employees to include a non-financial statement containing information on environmental, social and employee matters, among others, in their management report. The law will be based on a ‘comply or explain’ approach, which means that when a company does not have a policy for the issues named in the law, it will be required to provide an explanation.
Interestingly, the existing public governance forms of reporting have received much criticism (see, for example, Villiers on the non-financial reporting requirements in the UK Companies Act 2006, 2013: 97–129). In fact, the weakness of (p.152) most of these statutory reporting requirements is that they are ‘soft touch’ laws, with few binding requirements. For example, the UK Modern Slavery Act only requires companies to report on ‘the steps’ they have taken in order to combat forced labour (see for an assessment Henty & Holdsworth 2015: 11). Section 54(5) lists a number of factors that a company ‘may’ report on, such as its due diligence processes, but it does not require companies to report on them. The quantity and quality of reports by companies therefore vary and can be unreliable, as companies are under no obligation to publish any key indicator factors or externally verified audit reports.
The emerging trend towards transparency legislation is part of a changing regulatory landscape. Whereas, traditionally, regulation was the domain of the state, there is now a much more diversified set of standard setters (Bottomley & Bronitt 2006: 312–24). Regulation can thus be understood broadly as ‘all mechanisms of social control or influence affecting behaviour from whatever source, whether intentional or not’ (Black 2001: 129), and it does not need to originate from the state. It also includes other means of exercising social control or influence to affect behaviour, including ‘unintentional and non-state processes’ (Baldwin & Cave 1999: 2). An understanding including this range of regulatory forms – including public and private, national and international – accounts for the decline of state-based public regulation, which is a development that has occurred in many sectors over several decades (Vogel 2008: 266).
The recent wave of transparency legislation on CSR issues such as forced labour can be seen as an attempt by the home states of multinational enterprises to use public governance to fill the ‘regulatory gap’ (Fransen & Burgoon 2012: 236–9) in global supply chains, especially as reports about gross violations of CSR principles in global supply chains are recurrent. Some have highlighted the complementary role of the public and private forms of governance, such as Locke (2013: 177), who argues that public governance and private governance need to ‘work together and build off of one another’. This public–private interaction provides many opportunities for research on, for example, how companies respond to these public governance measures. Given the unevenness of information, and given the bias introduced by using reports generated by companies, however, transparency reporting is not always and everywhere the advance for researchers that we might expect it to be.
Legal research methods and research on forced labour
Before looking at the challenges and opportunities for such research, we must first consider the role of legal research in the context of research on forced labour. Traditionally, legal research in the United Kingdom was the domain of doctrinal (often called ‘black-letter’) research. Doctrinal legal research is considered to be a hermeneutical (p.153) discipline, as it focuses on the interpretation of texts and documents according to standard methods (van Hoecke 2011: 4). A doctrinal legal approach ‘criticises, explains, corrects and directs legal doctrines’ (Birks 1996: ix), and answers a concrete legal question (van Hoecke 2011: 4). According to Van Gestel and Micklitz (2011), the basis for arguments in doctrinal legal research is found in authoritative sources, such as existing rules, principles, precedents and scholarly publications. Thus, legal doctrine presents the law as a coherent system, which case decisions adhere to.
Van Hoecke (2011: 4) summarises his analysis of legal doctrine as follows:
Legal scholars collect empirical data (statutes, cases, etc.), word hypotheses on their meaning and scope, which they test, using the classic canons of interpretation. In a next stage, they build theories … which they test and from which they derive new hypotheses … Described in this way, doctrinal legal scholarship fits perfectly with the methodology of other disciplines.
Doctrinal legal research usually concentrates on primary source materials (legislation and the leading cases). It focuses on the interpretation of ‘traditional legal materials’ (Cownie & Bradney 2013: 34). It has been defined as ‘research which asks what the law is in a particular area’ (McConville & Chui 2007: 18). Therefore, in the context of forced labour in global supply chains, traditional doctrinal legal research would focus on a critical assessment of the transparency in supply chains clause in the Modern Slavery Act 2015. Such research would, inter alia, assess the wording of the statutory provision, its mode of operation and its potential impact through legal interpretation. What this research does not do, however, is to study how companies react to this legislation, i.e. how they engage with forced labour in their supply chain, for example, through business policies. These issues could be addressed by socio-legal research, i.e. legal research that uses methods taken from disciplines in the social sciences (McConville & Chui 2007: 5). The difference between doctrinal legal research and socio-legal research is often illustrated through reference to the former as ‘law in books’ and to the latter as ‘law in action’ (McConville & Chui 2007: 5). Importantly, socio-legal research includes quantitative and qualitative research. In quantitative legal research statistical and econometric methods are applied ‘in order to test whether and how legal rules matter in the real world’ (Siems & Síthigh 2012: 656). An example of qualitative legal research is the interviewing of judges with the aim of studying aspects of the judicial function and practice (Jaremba & Mak 2014: 5).
Therefore, socio-legal research broadens the opportunities of legal research in the field of forced labour in global supply chains, as it enables researchers to move beyond the interpretation of statutory texts and cases. Thus, researchers employing socio-legal research methods can address research questions related to the way companies address forced labour in the legislative environment of the Modern Slavery Act in documents such as codes of conduct, terms and conditions of purchase, and CSR/sustainability reports, as a complement to doctrinal legal (p.154) research of the Act itself. Moreover, it also adds to theoretical and empirical studies on the business of forced labour in global supply chains in other disciplines such as politics and management. Empirical legal studies can, for example, focus on the stringency of corporate policies on forced labour and thus make valuable contributions to research in other disciplines. In the first case study below, I discuss research that I conducted with a co-author to investigate whether the Modern Slavery Act changed companies’ efforts to address forced labour in their supply chains using documentary analysis of various publicly available documents of companies. Documentary sources are considered to ‘provide a rich source of data’ (Webley 2010: 938). The analysis of documents is influenced by the nature of the documents. In the example here, the chosen research method of documentary analysis made it possible to assess similarities and differences among a set of 25 FTSE 100 companies. An advantage of this method, then, was to provide insight into the behaviour of a larger set of companies than would have been possible through other qualitative methods, such as a single-company case study.
It is important to note that black-letter legal research and empirical legal research are not necessarily exclusive or in contradiction. Rather, it is important to appreciate the opportunities and the limitations that each respective research method offers in any given case. When researching forced labour policies of multinational enterprises, both research methods complement each other well. Whilst doctrinal research enables the researcher to fully study and evaluate how the transparency in supply chains clause is drafted, empirical legal research allows the researcher to gain insights into the practical impact of the legislation on companies.
The challenges of conducting research on business policies
Researching business policies on forced labour in global supply chains comes with significant challenges. First of all, there is limited access to reliable data due to the private nature of contracts (Andrews 2015: 6–7). The reason for this is that the contractual documents between the buyers (i.e. the Western multinational enterprises) and their suppliers, such as purchase order forms, are not publicly available. Indeed, there is limited material available online, given that supply contracts are of a sensitive commercial nature. Companies have an interest not to share with competitors and the general public information about the quantity and quality of goods that they order, for example. Contracts are based on the agreement between the parties of the contract (Smits 2014: 41–62).
The limited availability of private commercial data can be understood in the context of the public–private divide (Cane 2011: 18). The contractual relations between buyers and suppliers are a matter of contract law and are thus part of private law. Private law is generally considered to be a residual area, i.e. the area of the law that is not public law. It is often not defined in common law systems (p.155) what private law is (Hedley 2011: 89). Public law is commonly defined as being concerned with relations between the individual and the state as well as the distribution of power between public institutions and a range of non-governmental organisations (Oliver 1999: 14). The essential criterion for distinguishing between public law and private law is the function they perform. Hence, if the function is a governmental activity, then it is public law (Lord Woolf 1995: 62). Private law, in contrast, is the system that protects the private rights of private individuals or the private rights of public bodies. Hedley notes that private law would often be described as ‘the law between private individuals that is contrasted with the law involving organs of the state which is public law’ (2011: 89). As private law thus establishes rules that regulate private rights between private individuals, it covers areas such as contract law and tort law. The fact that the supply contracts are part of private law and are therefore on the private side of the public–private divide has important ramifications for research. As private law, these contracts are not subject to the accountability regime that exists for public law such as through judicial review mechanisms or through the Human Rights Act. This situation exacerbates the challenges that exist for anyone wanting to research in this area.
Second, and closely linked to the public–private divide, members of the public cannot make freedom of information requests about the contractual supply chain documents. The reason is that the Freedom of Information Act 2000 provides public access to information held by public authorities unless there is a good reason for it to be refused. This means all recorded information held by a public authority. There is no public access to information held by private parties. The Freedom of Information Act only covers public authorities. Anyone can make a freedom of information request (Freedom of Information Act 2000, section 1).
The purpose of the Freedom of Information Act is that the citizens should have a right to access information about the work of public authorities in order to make these accountable to the public for the work that they are doing with taxpayers’ money (ICO 2015: 5). The definition of a public authority also includes companies that are wholly owned by the Crown, by the wider public sector or by both the Crown and the wider public sector (Freedom of Information Act 2000, section 6). However, this extension to publicly owned companies does not include private companies. Whilst there have been debates around the effects of the privatisation of government functions on accountability through freedom of information laws, this does not affect the situation where private companies – which are not owned by public authorities – enter into supply contracts (Bunker & Davis 1998: 464).
Third, the difficulty of accessing reliable data related to the engagement of Western multinational enterprises with forced labour prevention in their supply chain is further exacerbated by the structure of global supply chains. The global supply chain of companies often spans different levels of suppliers and sub-suppliers. This makes it difficult to assess the reality of the CSR record of multinational enterprises in their supply chains as many cases of gross violations (p.156) of CSR principles, such as the use of forced labour, occur at supplier factories, at the bottom of the global supply chain in developing countries and far removed from the buyer at the top of the chain (LeBaron 2014: 245). Moreover, existing auditing regimes are often flawed. For example, the Rana Plaza building in Bangladesh which collapsed in 2013 was audited twice by Primark before it collapsed, but the audit did not include a structural survey (Jones 2014).
Fourth, as indicated above, there is a lack of quality of non-financial information disclosure (Aiyegbayo & Villiers 2011: 700). Companies tend to only describe how they are implementing their CSR principles in their supply chain and how they care about the working conditions at their supplier factories, without providing a full picture with facts, figures and externally verified reports.
Fifth, researchers can, of course, contact companies directly and ask for access to private commercial data such as purchase order forms, terms and conditions of purchase or supplier codes of conduct, but the experience of this author suggests that such endeavours have limited success.
Researching business policies on forced labour despite challenges
These challenges shape and limit researchers’ access to information, but should not discourage scholars from studying company practices in relation to forced labour. There are ways around these constraints. Transparency regulation is improving the situation and prompting companies to make information public, although this creates new challenges as detailed above. In my own work, I have used company documents, including CSR reports and supplier codes of conduct, to assess company practices and the impact of recent legislation on those practices. This section of the chapter will briefly describe the methods and evidence base of two of my recent studies, in the hope of further illustrating the opportunities and challenges of this research approach. The first case study focused on research on forced labour and bribery policies of UK companies, whereas the second case study focused on research on compliance by the top 30 listed German companies.
The first case study is about a research project that assessed how the UK Modern Slavery Act and the UK Bribery Act impact on how multinational enterprises address the issues of forced labour and bribery in their global supply chains. In this research project, empirical legal research was used to examine a number of issues, including supplier codes of conduct, terms and conditions of purchase (where available) and company reports. At times, companies had posted only some of this information, so I reached out to them to secure further data. Often I didn’t receive the extra documentation requested despite repeated attempts, and simply acknowledged the company’s refusal to provide documentation within the methods section of my papers. In this study (LeBaron & Rühmkorf 2017: 15–28), my (p.157) co-author and I used company documentation to assess the effectiveness of the Modern Slavery Act in spurring changes to company practices regarding forced labour in global supply chains, focusing in particular on sourcing practices, policies and contracts. We did so by analysing for 25 FTSE 100 companies: 1) own code of conduct; 2) supplier code of conduct; 3) terms and conditions of purchase for suppliers; 4) CSR and sustainability reports for 2015 and 2016 (the years before and after the publication of the Act); and 5) any other documentation on the website specific to forced labour policy.
Our approach was based on the recognition that companies publish a number of documents that can be utilised for research into their business practices, such as the annual CSR/sustainability report, which typically contains information on how companies approach issues like forced labour. Whilst there is an ongoing debate about the lack of quality of reporting despite the quantity of reports (Ethical Corporation 2015), these CSR documents can be a useful source for evaluating how companies approach different CSR issues. Moreover, a company’s code of conduct can usually be found online. Companies with brand reputation normally publish information about CSR and their supply chain, which often includes the supplier code of conduct. Some companies also publish their terms and conditions of purchase, which can be used in legal assessments of how different CSR issues are addressed in supply contracts.
Due to the availability of these documents, the information gathering itself is not so much of a problem; the challenge is rather the process of information evaluation. For example, in this case study, we had to deal with the issue that the full contracts between the UK companies and their overseas suppliers are not in the public domain, as these are between private commercial entities. However, the fact that several companies make their terms and conditions of purchase and/or their supplier code of conduct available enabled us to study how the companies address bribery and forced labour in their supplier relations. This is an important insight as these two issues are subject to regulation at different stringency levels. We decided to use documentary analysis as a method to study the different documents about how FTSE 100 companies address forced labour and bribery in their supply chains, as this allowed us to look at a bigger sample of companies across different industries and economic sectors. That way, we hoped to be able to discover patterns of behaviour at a more general level than by conducting interviews with fewer companies. Moreover, given the reluctance of companies to share information that is not already in the public domain, it also appeared a more suitable research strategy to assess documents that were openly accessible and thus to work within the framework of available material. The purpose of this analysis was to complement the doctrinal legal analysis of the approaches to supply chain regulation taken in the Bribery Act and the Modern Slavery Act by studying the approach of business to these two areas within this legislative framework.
(p.158) We first looked at the contractual quality of clauses and provisions regarding bribery and forced labour in the terms and conditions and supplier codes of conduct and applied means of legal interpretation such as wording and purpose in order to assess the stringency of, for example, clauses in terms and conditions of purchase and supplier codes of conduct. The analysis of the contractual documents was therefore influenced by traditional techniques of legal interpretation in order to have an objective standard to measure the stringency of these policies. This approach allowed us to determine the effect of these clauses in the supply contracts and to thus evaluate how these companies address forced labour and bribery in their contractual relations with their suppliers. We assessed how those clauses are drafted, how binding the wording of provisions related to bribery and forced labour are, and which obligations are imposed on suppliers. This approach allowed us to identify, for example, if the companies apply due diligence mechanisms to the issues of bribery and forced labour.
Second, we complemented this assessment of contractual documents with the documentary analysis of the 25 company CSR/sustainability reports. Here, we posed the following questions: What is the frequency of incidents of forced labour or bribery? How extensive is the reporting on these two issues? What is the content of the reporting? Once more, we applied techniques of interpretation that looked at the quantity of reporting (frequency, amount of reporting) as well as the quality of reporting, which included questions like: What language do the companies use to outline their approach to these two issues, i.e. do they write in a firm (e.g. ‘anti’, ‘zero tolerance’) or in a more aspirational manner (e.g. ‘we strive to’)? Are forced labour and/or bribery treated as individual sections or do they fall under a general reporting topic (e.g. human rights)?
In short, we drew together and analysed company documents into a database that shed light on how company policies and practices had evolved since the publication of the Act. We supplemented this with an in-depth case study of a single company that covered a longer timespan, to triangulate our findings and to gain a broader and clearer sense of how company policy evolved over time.
Methodologically, this documentary analysis enabled us to overcome some of the challenges described earlier in this chapter such as the limited access to reliable data due to the private nature of contracts between buyer and supplier companies and the non-availability of freedom of information requests about the contractual supply chain documents. While it may not be possible to access documents that companies choose not to share, our approach illustrates that analysing documents available online can help researchers reach important insights and detect patterns of behaviour.
We discovered that there were two very different approaches to combating bribery and forced labour. In short, bribery appeared to have become a genuine compliance issue, whereas forced labour remains one of many human rights issues that companies address with less stringency than compliance issues. This was (p.159) evident not only in the contractual documents (there were often clauses that were longer and more specific on bribery), but also in reporting practices. Reporting on bribery prevention was much more frequent and prominent, and the language used regarding bribery typically included words such as ‘anti’ or ‘zero tolerance’. Forced labour, in comparison, was an issue that was addressed in a more aspirational manner. This contrast is important as it complements the doctrinal finding that the criminal liability of companies in the Bribery Act is likely to lead to more stringent business policies – particularly the implementation of due diligence mechanisms – than the transparency regulation in the Modern Slavery Act.
Overall, the documentary analysis therefore enabled us to work within the challenges associated with accessing private commercial data from supply chains. Whilst it is not possible to entirely overcome the various challenges, it is possible to work within the existing framework and to utilise publicly available data on global supply chains in order to gain insights into business practices and, particularly, to compare approaches to different topics. This research did not assess the approach of companies before and after the enactment of the respective Acts; it nevertheless allowed us to view how policies and reporting on the two issues differ, which, in turn, complements a purely doctrinal legal assessment of the statutory provisions. The key advantage of our approach is that it provided a reliable documentary evidence base to assess how far and in what ways the Modern Slavery Act was effective in spurring corporate accountability for forced labour in supply chains.
A second example further underscores the challenges of research approaches that rely on companies to provide data, and the importance of locating data on websites and elsewhere. The second study focused on a rating that a German business magazine conducted of how transparent the DAX303 companies are about their compliance activities. We understand ‘compliance’ to mean adherence to standards, regulations and other requirements such as voluntarily adopted codes of conduct (Ghassemi-Thabir et al. 2016: 14). I was asked to help in developing and conducting the transparency rating. Whilst at the outset of the project the majority of the companies had stated their intention to fill in a survey, they changed their minds once they received the survey. In fact, all companies eventually declined the request and thus withdrew their support for the rating. A variety of reasons were given, including that such a rating would not be possible. The survey consisted of 30 questions on a number of compliance-related issues, such as the size of the compliance team in relation to the firm, the number of violations of the company’s code of conduct in the previous year and the number of annual trainings of all staff on the provisions of the code of conduct. Although in the end the survey of companies was unsuccessful due to the companies’ withdrawal from the study, our interactions with the companies were highly illuminating and gave us (p.160) an interesting (albeit unexpected) set of insights into company policies and behaviour with regard to compliance issues. Following the companies’ refusal to fill in the survey, the challenge for the evaluation of the companies’ compliance systems was the absence of internal data on issues such as violations of the company code of conduct or the existence, use and effectiveness of whistle-blower systems and compliance trainings for staff. We therefore decided to shift our focus to publicly available, external data. The key issue for us was, again, to develop a research method capable of evaluating publicly available data. This constituted a particular challenge due to the absence of the important data mentioned in this section (i.e. size of compliance team; frequency of compliance trainings; number of violations of code of conduct).
We therefore decided to shift the focus of the rating to assessing the ‘compliance transparency’ of companies. By ‘compliance transparency’ we mean the way that companies are transparent about their compliance system. Assessing compliance transparency includes analysing the external assessments of the companies’ compliance organisation, their recognition and administration of compliance duties and compliance risks, as well as how they present their compliance culture. We also evaluated the stringency of policies that the companies have adopted and published, such as their employee code of conduct and their supplier code of conduct. It is important to note that the prevention of the use of forced labour plays an important role in these documents. Moreover, in Germany, companies are under a statutory duty to issue a declaration of compliance with the recommendations of the German Corporate Governance Code (Aktiengesetz, section 161). Companies that do not comply with one or more recommendations have to explain why. This is therefore a further important, publicly available source of information related to compliance.
The limitation of this research method is that assessing compliance transparency might not, in every case, draw an accurate picture of how seriously companies address compliance. For example, a company that has serious human rights violations at the bottom of its supply chain may adopt the most stringent code of conduct and present its compliance system in the most detailed way. It is, however, possible to evaluate how transparent each company is. Companies that are more transparent about their compliance approach are also more likely to have a well-functioning compliance system. A lack of transparency constitutes an investment risk as, where violations of statutory duties by a company become apparent, the public will look at the quantity and quality of information that this company has made available beforehand. Given the lack of available information, we decided to call the assessment a rating rather than a ranking. A rating allows us to award levels to companies (such as triple A rating for the credit rating of countries) that appear to be operating at a similar standard. The example of this rating illustrates that, despite significant challenges due to the private nature of commercial data, it is nevertheless possible to design research that provides important insights concerning company approaches.
(p.161) While these two examples are based on anecdotal evidence, they are useful for illustrating the challenges that researchers face when assessing issues related to companies’ private commercial data and possible ways to overcome these challenges. The bad news is that it proves to be difficult to access information that companies choose not to make publicly available, despite these issues being of interest to a wider community of stakeholders. The good news is that as a number of governments impose transparency requirements, stakeholder groups are compiling company statements and documents into user-friendly databases that eliminate some of these challenges for researchers. TISCREPORT, for instance, at the time of writing had drawn together 45,000+ company statements published under transparency legislation in ten jurisdictions.4
As these case studies are based on research in two different countries, it is worth noting the different legal and political environments that companies in the two countries operate in, since these could have an impact on what information companies share with researchers and the public. While Germany is a civil-law jurisdiction, meaning that statutes are the only primary source of law, England and Wales are a common-law jurisdiction, in which both cases and statutes are primary sources of the law (Zweigert & Kötz 1998). In Germany, the ongoing emphasis on public governance can be seen by the fact that softer forms of company regulation such as the German Corporate Governance Code are often seen as lacking democratic legitimacy (Martin 2002: 59–60). This situation differs from the United Kingdom’s system of regulating companies, in which softer forms of regulation are more embedded in the legal and political culture (Moore 2013: 913–56). The different approach to regulating companies in the two countries is also evident in the varieties of capitalism theory (Hall & Soskice 2001). However, despite their different approaches for regulating companies, the challenges for researching business policies are similar in both jurisdictions. Whilst there is much information published voluntarily by companies, the quality of reporting varies and companies are reluctant (as evidenced by the case studies here) to share information other than what they choose to release.
The two case studies reinforce the chapter’s argument that it is possible to gain insights into corporate practices on issues such as forced labour in global supply chains despite the significant challenges outlined above. Whilst the challenges cannot be completely overcome due to the absence of freedom of information requests for private commercial contracts and the inconsistent reporting quality of companies, companies do make information available on their websites that can be utilised for research about corporate practices. This material is published online partly in response to laws on non-financial information disclosure and partly in response to pressure from the media and NGOs. Moreover, there are also some (p.162) documents publicly available that are not primarily intended for CSR reputation management, but rather as information for current and possible future business partners such as suppliers (e.g. terms and conditions of purchase). Such material can provide valuable insights too.
Recommendations for empirical research of business policies
The main argument of this chapter is that, despite significant challenges, it is possible to gather information for research projects, as publicly available documents provide ample opportunities for research on how companies address issues of forced labour.
The first step of research based on publicly available data is to recognise what such an analysis of the data has the potential to achieve, as well as what it cannot achieve. For example, information published by companies that is not externally verified does not provide data about actual occurrences of forced labour. However, it is possible – as illustrated in the first example – to use this data for specific purposes. The different ways companies treat bribery and forced labour can be assessed irrespective of the actual prevalence of bribery and forced labour in the supply chains of companies. Working with data that is available online requires a careful web-based search. Some information, such as a company’s CSR/sustainability report, is relatively straightforward to find. The same usually applies to the code of conduct of companies. The availability of additional, more specific information varies by individual company and can differ significantly. Whilst most companies publish their supplier code of conduct, fewer make the terms and conditions of purchase for their supply chain available. Also, it is important for researchers to recognise that not all of the relevant information can necessarily be found in the CSR/sustainability section of company websites. Instead, there might be separate sections intended for use by current and prospective suppliers, and these sections might contain information such as terms and conditions of purchase, self-auditing documents, etc. Anyone wishing to research the approach of companies to their supply chain might find useful information in those sections. So, whilst researchers cannot overcome the barriers of the private commercial nature of the relations between suppliers and buyers, they can access documents online that could provide interesting insights into business practices and important research opportunities. This chapter has sought to demonstrate that empirical legal research of publicly available corporate documents can not only complement traditional legal analysis of cases and statutes, but can also complement research into the business of forced labour in other disciplines.
Whilst the public–private divide limits the access to information about business practices, the present state of non-financial information reporting needs to be (p.163) considerably improved. It is unfortunate that the statutory requirements of corporate transparency on issues such as forced labour are very soft and amount to little more than requiring what companies often already voluntarily disclose to the public. Meaningful disclosure laws could help fill the information gap in global supply chains, for example by requiring companies to conduct and to publish external audits of their supply chains, including information about risk-based due diligence processes. The public regulation of corporate transparency has the potential to level the playing field for companies covered by a disclosure duty. It can therefore lead to more information coherence and reliability, but it will only achieve this if it is specific and if it requires companies to provide certain facts and figures rather than leaving it largely to them to choose what information they provide. Such requirements would enable interested parties, including researchers and civil society, to engage with the conduct of companies on the basis of reliable data and thus promote accountability in the area of forced labour.
This chapter has shown how empirical legal research of business policies on forced labour in global supply chains can complement both traditional doctrinal legal research and research in other disciplines. There are significant challenges for researching commercial data on forced labour in global supply chains due to the private nature of buyer–supplier relationships. Freedom of information requests are not available for these private relationships, which makes it difficult for researchers to access reliable data. This chapter suggests ways in which researchers can utilise the documents that are publicly available for empirical research despite these challenges. It is argued that publicly available documents provide ample opportunities for research, but researchers need to recognise that the data only answers some research questions, such as an assessment of the stringency of corporate policies on different CSR issues. Still, research of such documents would strongly benefit from more meaningful disclosure laws, which could eliminate the information deficit resulting from the public–private divide. Existing disclosure laws, such as the transparency in supply chain clause in the Modern Slavery Act, are too vague and general and do not sufficiently require companies to publish externally verified data and facts about their supply chain. Stricter disclosure laws would therefore be an important step for future research of forced labour in global supply chains.
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(1) Dr Andreas Rühmkorf is a member of Sustainable Market Actors for Responsible Trade (SMART) (smart.uio.no). SMART has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No. 693642, and we gratefully acknowledge its support.
(2) Hereafter, this chapter will use the terms ‘transparency’ and ‘disclosure’ interchangeably.
(3) The DAX is the German stock index.