Part 14: The U.S. NCP and Specific Instance Claims: The Obama Administration NCP Reorganization Cases 2012
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.
We have been considering the specific instance claims of the U.S. NCP. The claims through 2011 evidence a significant policy choice of the United States--that the OECD project in general and OECD Guidelines for Multinational Enterprises (2011) (MNE Guidelines) in particular are understood as part of the foreign policy of the United States but has no connection with domestic U.S. policy. The OECD project and the MNE Guidelines express standards that ought to be transposed into the law of foreign states, but they form no part of U.S. law or policy. The traditional division between U.S. law, grounded in traditional shareholder based corporate law principles and international law applied elsewhere, grounded in the human rights effects of corporate activity, remain quite distinct. This post considers whether the current claims before the US NCP indicate a change in this basic structure of US policy.
Information for 2012 was obtained from OECD Watch, Quarterly Case Update, Vol. 7(3) Nov. 2012.
Case: Illegal eviction of villagers for ASR’s sugar production in Cambodia
Company/ies: American Sugar Refining Incorporated; Florida Crystals Corporation; Sugar Cane Growers Cooperative of Florida; Fanjul CorporationDate filed Current status: 31 October 2012Duration (to date); filed.
Complainants: Community Legal Education Center of Cambodia (CLEC), EarthRights International (ERI)
National Contact Point(s) concerned: United StatesIssue: American Sugar Refining (ASR), the world’s largest sugar cane refiner and best known for producing Domino Sugar, holds an exclusive contract to buy all the sugar produced at a sugar plantation and factory in Sre Ambel District, Koh Kong Province, Cambodia, where villagers were illegally evicted from their land without fair or adequate compensation. The villagers are now facing impoverishment, malnutrition, and other social deprivations. The complaint alleges that ASR’s parent companies Florida Crystals Corporation, Sugar Cane Growers Cooperative of Florida and Fanjul Corporation are also responsible for the illegal eviction and subsequent deprivation of the villagers.
Developments/Outcome: The complainants are awaiting the US NCP’s initial assessment.