Thursday, February 14, 2013

Part 13: The U.S. National Contact Point: Corporate Social Responsibility Between Nationalism, Internationalism and Private Markets Based Globalization

 (Pix Source HERE)

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2013 this site introduces a new theme: The U.S. National Contact Point: Corporate Social Responsibility Between Nationalism, Internationalism and Private Markets Based Globalization.

Part 13:  The U.S. NCP and Specific Instance Claims:  The Obama Administration NCP Reorganization Cases 2011 

This series builds on some ideas I have been working through for a number of years relating to a fundamental shift in the approaches to corporate governance that broaden the ambit of corporate governance issues from a singular focus on internal governance (the relationships among officers, shareholders and directors) to one that includes corporate behavior and the standards by which officers, directors and shareholders exercise their respective governance authority. This shift also changes the scope of what is understood as "law" to be applied to issues of corporate governance, from one principally focused on national law to governance norms that may be sourced in the declarations and other governance interventions of public and private international bodies. Lastly, it appears to point to an evolution to the role of the state from the principal source of standards and enforcer of law to a vehicle for the implementation of international standards  in which enforcement power is left to global market actors--principally consumers and investors function of the decisions of global actors.  All of this is inconsistent with traditional notions of the role of law, the scope of corporate governance and the nature of corporate social responsibility int he United States.  The extent to which the United States participates in the construction of these autonomous international systems may suggest the direction in which government policy may be moving away from the traditional consensus of corporate responsibility to something perhaps entirely new.

With this post the series turns to the specific instance claims of the U.S. NCP.  The focus here is on the early claims considered by the U.S. National Contact Point under the OECD Guidelines for Multinational Enterprises (2011) (MNE Guidelines). Subsequent posts will consider the claims and then on the context of the NCP system and note the divergence of the US approach to that of the specific instance jurisprudence of other OECD NCPs.
Part 13:  The U.S. NCP and Specific Instance Claims:  The Obama Administration NCP Reorganization Cases 2011 

The U.S. NCP commenced its activity in 2000. The early complaints were decided under the Republican Administration of George Bush for the most part.  They are the product of an organization and policy that was modified significantly  during the course of the first term of President Bush's successor, President Obama. These cases are taken from OECD Guidelines for Multinational Enterprises: Specific Instances Considered by National Contact Points (22 November 2011).
The operation of the US NCP during the Bush Administration was grounded in an avoidance of even the appearance of judicial activity.  The US NCP avoided taking positions on specific instance claims, dismissed claims where it could, and deepened a policy of treating the MNE Guidelines as applicable only to cases that involved foreign states.  Where the action took place in the United States, national law was presumed to apply and the MNE Guidelines provided no additional law or governance standard that could be applied. Effectively the MNE Guidelines were viewed as an internationalist foundation for extraterritorial behavior management with no internal application.  The election of Barack Obama ushered in an administration that appeared to be more sensitive to internationalization.  But whatever its views generally with respect to internationalization, the first two years of the Obama Administration saw very little change in the operation of the US NCP.   

But 20112 brought some significant change in the organization of the US NCP.  It also brought what appeared to be a change of policy of the Obama administration.  This change seemed to suggest a greater sensitivity of the application of the MNE Guidelines and a greater openness to the use of specific instance claims to refine and develop the MNE Guidelines standards. This post considers the 2011 cases.  These cases conform the trend of 2010--the cases deal more with specific instances occurring outside the United States.  But it also indicated a change of MNE enforcement strategy on the part of claimants.  While the previous decade saw substantial emphasis on the employment and labor relations provisions of Chapter IV, the 2011 cases, extending the trend of 2010, moved away from labor issues focus to a greater emphasis on violation of the general provisions of Chapter 1, environmental claims under Chapter V and disclosure and transparency principles under Chapter III.  The cases also showed an increased number of cases in which the US NCP consulted with other country NCPs.

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