Tuesday, April 11, 2017

Corporate Social Responsibility Law--A Tentative Syllabus


(Pix © Larry Catá Backer 2016)

I will be teaching a course on Corporate Social Responsibility. I am delighted by the prospect.  Like the subject itself, the course is a hybrid.  Corporate social responsibility is inherently hybrid in its nature, character, and manifestation as both law and policy.  Its governance trajectories touch on the essence of law and the lawyer's craft; its normative trajectories speak to politics, ethics and morals, to the fundamental organization of cultures of human interactions in the economic sphere.

First, it focuses on enterprises--that is on institutions organized for the purpose, principally, of economic activity.  Collective and collective activities are at the center of this field.  It focuses on the individual within a collective that is not the state. As such, also embedded within it are those organizations and institutions that operate within or in relation to that sphere.  At its limit, it touches on all organizations other than the state.  

Second, it focuses on the societal role of enterprises--that is on the structures and frameworks within which non-state organizations (and specifically enterprises) order themselves in and of themselves that are found outside the formal structures of state and government. One speaks here of those direct relations between the enterprise and its communities sometimes within and sometimes beyond the state and sometimes in a space ceded by the state. But these societal relations can have regulatory effect; and the state may well seek to legalize some to all of those societal relations.      

Third, it focuses on the responsibility of enterprises within the societal sphere, that is on the autonomous obligation of enterprises to embed itself within the regulatory structures through which it engages in the communities where it operates. Responsibility is to be differentiated from obligation. The societal responsibilities of enterprises are not to be confused with the mandatory obligations of everyone subject to its jurisdiction to obey the command of law. And yet the societal responsibilities of enterprises share with law the notion of authority and leadership,of accountability and of autonomy embedded within the strictures of the norms that frame responsibility.   

CSR, then, occupies a conceptual space between the social and the legal, and between the moral and legal order.  Such a conceptual space is inherently unstable, especially in the context of globalization that at once appears to shift public regulatory power to state collectives (energizing a robust sphere of public international law), even as it also appears to shift regulatory power to the private sphere. This instability thus manifests itself in contests for control of regulatory space--through robust projects of legalization and judicialization of the societal sphere in general, and the obligations of enterprises specifically--or through the privatization of the legal sphere as enterprises themselves are deputized to undertake the role once reserved to states. It is at this point that corporate social responsibility becomes interesting to the law--the lawyer, to the legislator, to the administrator and the courts. Yet that convergence also reveals the vibrancy of governance beyond the control of law, and of the state.

It is to those issues that this course is directed. The syllabus is constructed with these general ideas in mind.  Comments and suggestions (especially for compiling a useful student friendly reading list) gratefully received as this remains very much a work in progress.





PROPOSED SYLLABUS
Corporate Social Responsibility Law
Larry Catá Backer


COURSE DESCRIPTION:

This course provides an introduction to the law and policy of corporate social responsibility (CSR). The focus is on CSR (1) as a subject of legal regulation within states, (2) as a matter of international law and compliance beyond the state, and (3) as a tool and methodology for privatizing regulation through the enterprise itself operating in global production chains. The emphasis is on the study of the legal and regulatory frameworks. These frameworks include those existing and emerging within states, in international institutions, and within production chains and the apex corporations that manage them. The course begins with issues of definitions and of variations in approaches to legal and other governance mechanisms in the U.S. and among major commercial jurisdictions. It then turns to the existing law of CSR, focusing specifically on charitable giving and disclosure regimes. It then considers the rise of CSR regulatory regimes as privatized law making that uses the mechanisms of contract to regulate conduct throughout a production chain. It then considers the emergence of international standards as they inform regulatory efforts in states and enterprises and as normative standards in their own right. It ends with a consideration of key trends and developments going forward.

COURSE CONCEPT STATEMENT:

Two questions dominated a century-long debate about the economic, social, and political role of economic actors operating in corporate form: Whom must corporations serve and to what extent should the regulation of corporations be left to the market, to private ordering (contract law) among corporate stakeholders, or to public regulation by the state? Both of these questions reflect an even more fundamental question, the answer to which remains unresolved: What is the essential nature of the corporation? Is it an autonomous community, like a nation-state? Is it the sum of contractual relations among some of the people with stakes in the joint enterprise? Or is the corporation merely property, a complex commodity?

These questions remained highly contested through the end of the twentieth century. Early on, however, the American bench and Bar seemed to reach an uneasy stalemate about the contours of the debate regarding corporate social responsibility. Since then, it has been academics who argue, mostly among themselves, about the nature, character, and purpose of the corporation beyond those limits of discourse enforced by the practice community.

This course provides an introduction to the law and policy issues that touch on the responsibility of enterprises for their business activities. It provides an overview of corporate social responsibility (CSR), as a subject of legal regulation within states, as a matter of international law and compliance beyond the state, and as a tool and methodology of corporate governance and finance with governance effect through contract. It focuses on the contemporary interplay between large corporations and governments, intergovernmental institutions, investors and non-governmental organizations (NGOs).

Over the past several decades, economic actors, and especially those operating as enterprises, have seen the development of efforts to impose on them certain responsibilities for the consequences of their decisions and to change the way that corporations view the scope and character of their obligations to inside and outside stakeholders. These efforts have produced both law at the domestic level and norms and structuring principles at the international level. During its evolution, CSR has progressed from legally tolerated traditional philanthropy and a consignment of the issues to the “social sphere” of moral and ethics, to encompass a much broader palette of actions and objectives. CSR now encompasses not only what companies do with their profits, but also how they make them in virtually every respect of their operations. Through their stakeholder relations and business models, companies can develop policies and practices to respect human rights and help address environmental and social concerns. These developments have occurred at the local and national level through law and the adoption of principles and expectations of conduct, they have also seen a strong growth in international soft law standards touching on corporate responsivities to respect human rights, for sustainable business practices and for the protection of the environment.

There are many factors that have contributed to increased expectations for corporations to adopt CSR programs as governments have changed the scope and thrust of their regulatory and ownership roles, and as regulatory governance principles that favor of market-based approaches have become more compelling for many states. Companies have been encouraged through law and governance mechanisms to identify opportunities for innovative products, technologies and business models aimed at proactively solving social or environmental challenges. Many enterprises have developed internal governance structures that embed a governance framework for CSR within their international corporate governance.

As global production chains become more important, these internal enterprise governance systems begin to have profound effects throughout the entire production process, affecting workers and other partner enterprises in many states. CSR has also become a tool for investors, to mitigate emerging social, environmental and governance risks and to identify opportunities for aligning financial performance with social, environmental and governance (ESG) performance. In addition, CSR has become a lever for civil society organizations to influence corporate practice and public policy.

Advocates have seen CSR as a means of addressing governance gaps where government is weak. In contrast, critics have seen CSR as an intrusion of corporate interests in the public sphere where government is strong. More recently critics have seen in internationalism of CSR a profound and direct attack on state sovereignty in the service of the objectives of autonomous multilateral institutions that do not reflect local wishes. At the same time, the limits of voluntary CSR measures as a transformative agent are also becoming clearer, and are raising questions about the need for a recalibration between the public and private domains.

This course focuses on large multinational corporations. These complex organizations are composed of one or more organizations woven together through ownership or contract and creating a set of business relationships that span production chains—the integration of the process of economic activity overseen usually by a corporate enterprise that serves as the apex of global production chains, but has application to enterprises throughout supply chains. The enterprise, embedded in global production within and outside the state serves, in turn, as the object of regulation, including (but not limited to) conventional systems of law. The emphasis of this course, then, is on the study of the legal and regulatory frameworks, both existing and emerging within states, in international institutions, and within production chains and the apex corporations that manage them. The course surveys the literature and examines topical examples drawn from today's US and global experiences. The object will be to begin to develop a conceptual and “as applied” basis for approaching key questions in CSR law in context: What has worked, what hasn't, and why? What are CSR's limits? What is the future of CSR?


COURSE CONTENT AND STRUCTURE

This course will examine these and related developments with a view to informing future business lawyers of their responsibilities to their clients in relation to CSR, lawyers, policymakers and advocates of potential mechanisms for business accountability for CSR, and future government lawyers of the relationship between CSR and legal regulatory tools. The course provides case studies, conceptual frameworks and tools to help students understand and assess different components of corporate social responsibility and different models of interaction between corporations, governments, intergovernmental organizations, investors and non-governmental organizations. It combines lectures, case studies, class discussions and practical assignments.

The course begins with a focus on the corporation itself, providing a grounding in the corporate form, corporate legal personality and the core principles of corporate law and operation that frames any CSR discussion in law and policy. It then turns to an initial consideration of CSR itself—the elusiveness of consensus on definition, approaches to an understanding of CSR as a legal and normative concept, and the evolution of the field over the last century. The course then turns to CSR in a broader context, focusing on the distinct approaches to the expression of CSR among leading state and civil society actors. The materials then turn to the traditional scope of the legal regulation of CSR, focusing on philanthropy and concepts of waste in U.S. corporate law.  The materials then broaden the legal examination to consider emerging legal disclosure regimes in the United States, the U.K. and France. The course then turns to the consideration of the privatization of the law of CSR within corporations, especially those operating within global production chains. The materials consider how self-regulation works and the construction of corporate CSR codes. The materials then examine recent litigation and future strategies around CSR codes with a focus on veil piercing, mutuality of contract and 3rd party beneficiary principles and their transformation. Having considered both self-regulation and legal regulation within national legal orders, the materials then consider CSR codes administered through third parties, with a focus on their legal and social effects, including the emerging role of multi-stakeholder partnerships. From this broad base, the course then turns to indirect approaches to the legalization of CSR standards, considering enterprise liability, corporate criminality, corruption and environmental and sustainability standards. In that context the rise and fall of the use of the U.S. Alien Tort Claims Act is considered. The last section of the materials examines emerging international soft law regimes, principally the UN Guiding Principles for Business and Human Rights and the OECD Guidelines for Multinational Enterprises. The course ends with a consideration of key trends and developments going forward.

LEARNING OUTCOMES OBJECTIVES

1. Identify the legal framework within which the regulation of corporate social responsibility is framed within the United States, within international organizations, and among corporate actors.

2. Examine the relationship between corporate law in states and corporate social responsibilities, understanding their overlap and distinguishing scope.

3. Demonstrate familiarity with the legal regulation of CSR in the United States and selected other states, with a focus on the law of charitable giving and the emerging disclosure and reporting laws

4. Demonstrate familiarity with third party certification frameworks.

5. Identify the structures, legal and regulatory effects of corporate CSR self-regulation systems.

6. Demonstrate familiarity with the substantive content and application of a selection of international normative standards such as the 2011 United Nations Guiding Principles for Business and Human Rights, and OECD Guidelines for Multinational Enterprises, among others.

7. Develop a working familiarity with the U.S. Alien Tort Claims Act and its relevance to CSR related litigation.

8. Identify the relationship between CSR regimes and the regulation of corruption, enterprise liability and environmental sustainability objectives.



COURSE SYLLABUS

NOTE: THESE MAY BE SUBJECT TO CHANGE DUE TO THE EVOLVING NATURE OF THE FIELD AND STUDENTS ARE ADVISED TO CHECK THE CLASS PAGE EACH WEEK

Summary Syllabus:

Week 1: The corporation: Introduction to the corporate form, corporate legal personality and the legal regulation of the corporation in society.

Week 2: Corporate Social Responsibility; Definitions and approaches, and the evolution of the field

Week 3: Corporate Social Responsibility in a broader context: distinct approaches of states, the European Union and NGOs.

Week 4: The legal regulation of social responsibility: Considering the legal framework in the U.S. and other states focusing on philanthropy and the notions of corporate waste.

Week 5: Beyond philanthropy: disclosure regimes in national law.

Week 6: Self-Regulation and its Legal Effects: Corporate Social Responsibility Codes; what are they and how do they operate.

Week 7: Legal Effects of CSR Codes: Recent litigation and future strategies with a focus on veil piercing, mutuality of contract, and 3rd party beneficiary defenses.

Week 8: Third Party Certification Regimes: Legal and Social effects.

Week 9: Driving Transformative Change: The role of multi-stakeholder partnerships - Can new models of voluntary industry­ wide and cross-sector partnerships overcome market failures and governance gaps?

Week 10: Indirect Approaches in law: Enterprise Liability, Corporate Criminality, Corruption, environmental and sustainability concerns

Week 11: The U.S. as a global CSR Jurisdiction: The rise and fall of the Alien Tort Claims Act and CSR and alternatives

Week 12: International Efforts: U.N. Global Compact and the U.N. Guiding Principles for Business and Human Rights

Week 13: International Soft Law Approaches: OECD Guidelines for Multinational Enterprises.

Week 14: The Future of Corporate Social Responsibility: Key trends, environmental sustainability and other perspectives .

 

____________

SYLLABUS READINGS:


Week 1
The corporation: Introduction to the corporate form, corporate legal personality and the legal regulation of the corporation in society.

Readings:

(1) Dodge v. Ford Motor Co., 204 Mich. 459, 170 N.W. 668 (1919)

(2) CTS Corp. v. Dynamics Corp pf America, 481 U.S: 69 (1987)

(3) Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th Cir., 1989)

(4) Backer, “The Autonomous Global Corporation: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality,” 41(4) Tulsa Law Journal (Vol. 41(4), 2006): 541-571.

(5) Friedman, "The Social Responsibility of Business Is to Increase Its Profits," New  York Times Sunday Magazine, September 13, 1970;

(6) Allen, "Our Schizophrenic Conception of the Business Corporation," Cardozo Law Review (Vol. 14, 1992): pp 261-281;

(7) Strine, "Corporations are Our Creations," Harvard Law Bulletin, Fall 2015;

(8) Robé, "Being Done with Milton Friedman," Accounting, Economics, and Law, 2 (No. 2, 2012);

(9) Ruggie, Just Business: Multinational Corporations and Human Rights (New York: W.W. Norton, 2013), pp. xxv-xxxvi.



Week 2:
Corporate Social Responsibility; Definitions and approaches, and the evolution of the field

Readings:

(1) Backer, “Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law,” Columbia Law Review  (Vol. 37 2006): 287-308 (2006).

(2) Sheehy, "Defining CSR: Problems and Solutions," Journal of Business Ethics,  131 (2015): 625-648. This is a difficult article, hence skim the philosophical discussions linking the various substantive sections, but pay close attention to the latter.

(3) Kang & Moon, "Institutional complementarity between corporate governance and Corporate Social Responsibility: a comparative institutional analysis of three capitalisms," Socio-Economic Review, 10 (2012): 85-108;

(4) Kinderman, "'Free us up so we can be responsible! ' The co-evolution of Corporate Social Responsibility and neo-liberalism in the UK, 1977-2010," Socio-Economic Review, 10 (2012): 29-57;

(5) Wong, "Corporate social responsibility in China: Between the market and the search for a sustainable growth development," Asian Business & Management, 8 (2009):129-148, focus on pp. 133-148;

(6) John Ruggie, "Taking Embedded Liberalism Global: The Corporate Connection," in Ruggie, ed, Embedding Global Markets, chap. 8, pp. 231-253.

(7) Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business (London/New York: Routledge, 2012)

(8) Florian Wettstein, “CSR and the Debate on Business and Human Rights: Bridging the Great Divide,” Business Ethics Quarterly 24(4):730-770 (2012).



Week 3
Corporate Social Responsibility in a broader context: distinct approaches of states, the European Union and NGOs; Governance Gaps and Extraterritoriality.

Readings:

(1) What does the Canadian government think CSR is? Industry Canada website:
http://www.ic.gc.ca/eic/site/csr-rse.nsf/eng/home

(2) What do Law Firms say about CSR and the law? What do NGOs say about CSR and the law?
Amnesty International: http://www.amnesty.org/en/business-and-human-rights
International Corporate Accountability Roundtable:  http://accountabilityroundtable.org/

(3) European Union: EU Commission, “A Renewed EU Strategy 2011-2014 for Corporate Social Responsibility,” Brussels 25.10.2011 COM(2011) 681 final http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011DC0681&from=EN

(4) Embassy of Sweden, “A Study on Corporate Social Responsibility Development and Trends in China” (2015), http://www.csr-asia.com/report/CSR-development-and-trends-in-China-FINAL-hires.pdf

(5) China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters, "Guidelines for Social Responsibility in Outbound Mining Investments," available at http://www.srz.com/files/upload/Conflict_Minerals_Resource_Center/CCCMC_Guidelines  for_Social_Responsibility_in_Outbound_Mining_Operations_English_Version.pdf.

(6) Extraterritoriality and the constraints of national jurisdiction: Surya Deva, “Corporate Human Rights Violations: A Case for Extraterritorial Regulation’” in Christoph Luetge (Editor-in-Chief), Handbook of the Philosophical Foundations of Business Ethics (Springer, 2012), pp. 1077-1090.




Week 4
The legal regulation of social responsibility: Considering the legal framework in the U.S. and other states focusing on philanthropy and notions of corporate waste and corporate compliance.

Readings:

(1) Theodora Holdings Corp v. Henderson, 257 A.2d 398 (Del.Ch. 1969)

(2) Kahn v. Sullivan , 594 A.2d 48 (Del 1991)

(3) Conference Board, Corporate Philanthropy in China (2012) https://www.avpn.asia/wp-content/uploads/2013/01/Corporate-Philanthropy-in-China.pdf

(4) Jenny Hasrrow, “Contested Perspectives on Corporate Philanthropy,” in Corporate Social Responsibility: A Research Handbook 234-254 (Kathryn Hayne, Alan Murray s and   Jesse Dillard, Routledge 2013).

(5) H. Wells, “The Life (and Death?) of Corporate Waste,” Washing and Lee Law Review 74 (2017). Available https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878091 
 
(6) Corporate Compliance:
(A) In Re Caremark International Inc. Derivative Litigation. 698 A.2d 959 (Del. 1996)
(B) Stone v. Ritter, 911 A.2d 362 (Del.Supr. 2006) available http://courts.delaware.gov/opinions/download.aspx?ID=84060
(C) Douglas Cassel, “Outlining  the  Case  for  a Common  Law Duty  of  Care of  Business to  Exercise  Human  Rights  Due  Diligence," Business and Human Rghts Journal  1:179-202 (2016)(Cambridge University Press) accessible at
(D) OPTIONAL: José A. Tabuena, “The Chief Compliance Officer versus the General Counsel: Friend or Foe,” Compliance & Ethics Magazine  pp. 4-7; 10-15 (2006) available http://www.corporatecompliance.org/Portals/1/PDF/Resources/past_handouts/CEI/2008/601-3.pdf
(E) OPTIONAL: Claire Hill and Brett McDonnell, Stone v. Ritter and the Expanding Doctrine of Loyalty, 76 Fordham L. Rev. 1769 (2007), available at http://scholarship.law.umn.edu/faculty_articles/83




Week 5
Beyond philanthropy: disclosure regimes in national law.

Readings:

(1) L. Backer, “From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations” Georgetown Journal of International Law, Vol. 39, 2008.

(2) California Transparency in Supply Chains Act of 2010          California Civil Code § 1714.43

(3) Barber v. Nestlé USA, Inc. No. SACV 15-01364-CJC(AGRx) 9 Dec. 2015  http://www.csrandthelaw.com/wp-content/uploads/sites/2/2016/01/Nestle-dismissal.pdf

(4) Dodd Franck ¶1502Conflict Minerals (2010)

(5) UK Modern Slavery Act (2015) U.K. 2015 c. 30

(6) France: Supply Chain Due Diligence Law (2017) [24 March 2017: Constitutional Council removed the €10 to €30 million civil penalty attached, liability continues to apply when companies default on their duty of vigilance obligations, including failing to publish a vigilance plan or faults in its implementation.]

(7) Proposal for a Regulation of the European Parliament and of the Council setting up a Union system for supply chain due diligence self-certification of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas–Outcome of the European Parliament's first reading (Strasbourg, 13 to 16 March 2017); http://data.consilium.europa.eu/doc/document/ST-7239-2017-INIT/en/pdf; Press release http://www.consilium.europa.eu/en/press/press-releases/2017/04/03-conflict-minerals/ 

(7) Shift, "Mapping the Provisions of the Modern Slavery Act Against the Expectations of the UN Guiding Principles on Business and Human Rights," available at
http://shiftpro ject.org/sites/default/files/Shift_Mapping%20Modern%20Slavery%20Act% 20Against%20UNGPs%20Note_July2015.pdf;

(8) Howitt, "The EU law on non-financial reporting-how we got here," available at http://www.theguardian.com/sustainable-business/eu-non-financial-reporting-how­ richard-howitt?CMP=twt_gu;

(9) Ghuliani, "India Companies Act 2013: Five Key Points about India's 'CSR Mandate'," available at http://www.bsr.org/en/our-insights/blog-view/india-companies-act-2013-five­ key-points-about-indias-csr-mandate'



Week 6
Self-Regulation and its Legal Effects: Corporate Social Responsibility Codes; what are they and how do they operate.

Readings:

(1) Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making:  Wal-Mart as Global Legislator, University of  Connecticut Law Review  (Vol. 39(4), 2007): 1739-1784.

(2) Backer, L. “Multinational Corporations as Objects and Sources of Transnational Regulation,”  ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008.

(3) Cedillo Torres, C, et al., “Four Case Studies on Corporate Social Responsibility: Do Conflicts Affect a Company’s Corporate Social Responsibility Policy?” Utrecht Law Review 8(3): 2012.

(4) Supplier Codes of Conduct:



Week 7
Legal Effects of CSR Codes: Recent litigation and future strategies with a focus on veil piercing, mutuality of contract, and 3rd party beneficiary defenses

Readings

(1) Gibson, Dunnn, “Corporate Social Responsibility Statements: Recent Litigation and Avoiding Pitfalls” (2017).

(2) Bondali  v.  Yum!  Brands,  Inc., 620 Fed. Appx. 483, 489 (6th Cir. 2015).

(3) Sud v. Costco Wholesale Corporation, No. 4:15-cv-03783, 2017 WL 345994, at *5 (N.D. Cal. Jan. 24, 2017).

(4) Hodson v. Mars, Inc./Mars Chocolate North America, LLC, No. 15-cv-04450, 2016 WL 627383, at *6 (N.D. Cal. Feb. 17, 2016)

(5) Jane Doe I et al. v. Wal-Mart Stores Inc., No. 08-55706 (9th Cir., 2009)  http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1214&context=globaldocs.
Optional Background: Katherine E. Kenny, Code or Conduct: Whether Wal-Mart's Code of Conduct Creates a Contractual Obligation between Wal-Mart and the Employees of Its Foreign Suppliers, 27 Nw. J. Int'l L. & Bus. 453 (2006-2007)) http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1652&context=njilb.  U.S: Chamber of Commerce brief on appeal--http://www.chamberlitigation.com/sites/default/files/cases/files/2006/Doe%2C%20et%20al.%20v.%20Wal-Mart%20Stores%2C%20Inc.%20%28NCLC%20Brief%29.pdf.    

(6) Lubbe and Others and Cape Plc. and Related Appeals [2000] UKHL 41 (20th July, 2000) available http://www.bailii.org/uk/cases/UKHL/2000/41.html.

(7) Anna Beckers, Enforcing Corporate Social Responsibility Codes: On Global Self-Regulation and National Private Law (Hart, 2015).







Week 8
Third Party Certification Regimes: Legal and Social effects.

Readings

(1) Etilé, Fabrice and Teyssier, Sabrina, Signaling Corporate Social Responsibility: Third‐Party Certification Versus Brands (July 2016). The Scandinavian Journal of Economics, Vol. 118, Issue 3, pp. 397-432, 2016. Available at SSRN: https://ssrn.com/abstract=2801361 or http://dx.doi.org/10.1111/sjoe.12150


(3) Fair Labor Association, http://www.fairlabor.org/

(4) Backer, L. C. "Transnational Corporations’ Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc." Indiana Journal of Global Legal Studies, vol. 20 no. 2, 2013, pp. 805-879. Project MUSE, muse.jhu.edu/article/538447.






Week 9

Driving Transformative Change: The role of multi-stakeholder partnerships - Can new models of voluntary industry­ wide and cross-sector partnerships overcome market failures and governance gaps?


Required Reading:

(1) Baumann-Pauly, Nolan, Labowitz & van Heerden, "Setting and Enforcing Industry­ Specific Standards for Human Rights - The Role of Multi-Stakeholder Initiatives in Regulating Corporate Conduct".

(2) Patscheke, Barmettler, Herman, Overdyke & Pfitzer, "Shaping Global Partnerships for a Post-2015 World." Stanford Social Innovation Review. 2014

(3) Nelson & Jenkins, "Tackling Global Challenges: Lessons in System Leadership from the World Economic Forum's New Vision for Agriculture Initiative. CSR Initiative, HKS. January, 2016.

(4) Oxfam Briefing Paper, "Moral Hazard? 'Mega' public-private partnerships in African agriculture." September, 2014. Available at https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/oxfam_moral_hazard ppp-agriculture-africa-010914-en_O.pdf

(5) The example of global garment supply chains:
(A) Shift, "From Audit to Innovation: Advancing Human Rights in Global Supply Chains," available at http://www.shiftproject.org/publication/audit-innovation-advancing-human­ rights-global-supply-chains'; read pp. 3-8 plus a case study of your choice;

(B) Labowitz & Baumann-Pauly, "Beyond the Tip of the Iceberg: Bangladesh's Forgotten Apparel Workers," NYU-Stern Center, available at
http://staticl.sguarespace.corn/static/54 7df270e4b0bal84dfc490e/t/5672d01f841aba5776  Od62 8a/l 450364959693/Beyond+the+ Tip+o f+the+Iceberg+ Report. pdf;

( C) World Economic Forum, "Shared Responsibility: A New Paradigm for Supply Chains," available at
http://www3.weforum.org/docs/WEF_GAC_Supply_Chains_%20A_New_Paradigm_201 5.pdf; skim Appendices.

(D) Backer, Are Supply Chains Transnational Legal Orders?: What We Can Learn From the Rana Plaza Factory Building Collapse, 1(1) University Of California Irvine Journal Of International, Transnational, And Comparative Law – (Vol. 1(1), 2017).



Week 10
Indirect Approaches in law: Enterprise Liability, Corporate Criminality, Corruption, environmental and sustainability concerns

Readings

(1) Foreign Corrupt Practices Act 15 U.S.C. § 78dd-1, et seq.

(2) SEC v. Eli Lilly No. 12-2045 (D.D.C. 2012)  https://www.sec.gov/litigation/complaints/2012/comp-pr2012-273.pdf

(3) Joel M. Cohen & Daniel P. Harris, Gibson, Dunn & Crutcher LLP, “Coerced Corporate Social Responsibility and the FCPA,”  The International Comparative Legal Guide to Business Crime 2016: A practical cross-border insight into business crime (6th Edition 2016) http://www.gibsondunn.com/publications/Documents/Cohen-Harris-Coerced-Corporate-Social-Responsibility-and-the-FCPA-GLG-Oct-2015.pdf.


(5) Joel M. Cohen & Daniel P. Harris, Gibson, Dunn & Crutcher LLP, “Coerced Corporate Social Responsibility and the FCPA,” 

(6) Backer, Larry Catá, The Evolving Relationship between TNCs and Political Actors and Governments Research Handbook on Transnational Corporations, Alice de Jong and Roman Tomasic, eds., Edward Elgar Publishing Limited, 2015

(5) Brodie, D., Enterprise Liability and the Common Law (Cambridge U. Press 2010).

(6) Seck, S.,  “Conceptualizing the Home State Duty to Protect Human Rights”, in Karin Buhman, Mette Morsing, & Lynn Roseberry, eds., Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives, (Palgrave Macmillan, 2010) 25-51.

(7) Richard Meeran, “Access to Remedy: The United Kingdom Experience of MNC Tort Litigation for Human Rights Violations,” in Human Rights Obligations of Business: Beyond the Corporate Repsonsibility to Respect (Surya Deva and David Bilchitz, eds. Cambridge 2013) pp. 378-402.




Week 11
The U.S. as a global CSR Jurisdiction: The rise and fall of the Alien Tort Claims Act and CSR and alternatives

Readings:

(1) Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013)

(2) Jesner v. Arab Bank, No. 13-3605 (2nd Cir; 2016); cert granted 2017 http://www.scotusblog.com/wp-content/uploads/2016/10/16-499-op-below-2d-cir.pdf.

(3) Dana, David A. and Barsa, Michael, "Three Obstacles To The Promotion Of Corporate Social Responsibility By Means Of The Alien Tort Claims Act: The Sosa Court's Incoherent Conception of the Law of Nations, the "Purposive" Action Requirement for Aiding and Abetting, and the State Action Requirement for Primary Liability"(2010). Faculty Working Papers. Paper 114. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/114  





Week 12
International Efforts: U.N. Global Compact and the U.N. Guiding Principles for Business and Human Rights

Readings:

(1) U.N. Guiding Principles for Business and Human Rights (2011); http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

(2) Cases:

(A) Araya v. Nevsun Resources Ltd., Supreme Court of British Columbia 2016 BCSC 1856; https://drive.google.com/file/d/0B5JyyTlmKnOfcVhiMjhFbFl1UGc/view.

(B) Angelica Choc v. Hudbay Minerals Inc., HMI Nickel Inc. and Compañía Guatemalteca de Níquel S.A. (22 July 2013)

(3) Backer, From Institutional Misalignments to Socially Sustainable Governance:  The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance, 25(1) Pacific McGeorge Global Business & Development Law Journal (Vol. 25, 2012): 69-171

(4) Rasche, "A Necessary supplement-What the United Nations Global Compact is and is not," Notizie di Politeia, XXVII (# 103, 2011);

(5) Ruggie, "Global Governance and 'New Governance Theory': Lessons from Business and Human Rights," Global Governance, 20 (Jan-Mar 2014);

(6) Schoemaker, "Raising the Bar on Human Rights: What the Ruggie Principles Mean for Responsible Investors,"
Focus on pp. 1-4, and 13-24.

(7) "Human Rights Requirements for World Cup Hosts, FIFA Sponsors," http://www.nytimes.com/ aponline/2015/ 12/14/sports/soccer/ap-soc-fifa-human­ rights.html?_r= !.

(8) Backer, “Moving Forward The U.N. Guiding Principles For Business And Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law that Might Bind them All,” 38(2) Fordham International Law Journal (Vol. 38(2), 2015) 457-542;

(9) U.N. Global Compact; https://www.unglobalcompact.org/.

(10) David Bilchitz, “A Chasm Between ‘Is’ and ‘Ought’: A Critique of the Normative Foundations of the SRSG’s Framework and the Guiding Principles,” in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Surya Deva and David Bilchitz, ed., Cambridge, 2013) pp. 107-137.



Week 13
International Soft Law Approaches: OECD Guidelines for Multinational Enterprises

Readings:

(1) OECD, Guidelines for Multinational Enterprises (2011); http://www.oecd.org/daf/inv/mne/48004323.pdf.

(2) Backer, L., Case Note: Rights And Accountability In Development (Raid) V Das Air (21July 2008) And Global Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal of International Law 258-307 (2009).

(3) Specific Instance between USW; Sindicato Nacional de Trabajadores Mineros, Metalurgicos, Siderurgicos y Similares de la Republica Mexicana (Mineros); and Grupo Mexico and its U.S. subsidiary, ASARCO, LLC for conduct in the United States; https://www.state.gov/documents/organization/261119.pdf.

(4) Specific Instance between the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) and Starwood Hotels & Resorts Worldwide for conduct in the Maldives and Ethiopia (2016); https://www.state.gov/documents/organization/257322.pdf.

(5) USNCP Final Statement on the Specific Instance Between the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) and PepsiCo, Inc. in India (2016); https://www.state.gov/documents/organization/256049.pdf.

(6) Santner, A., “A Soft Law Mechanism for Corporate Responsibility: How the Updated OECD Guidelines for Multinational Enterprises Promote Business for the Future”, 43 Geo. Wash. Int'l L. Rev. 375 (2011).



Week 14

 The Future of Corporate Social Responsibility: Key trends, environmental sustainability and other perspectives.


(1) Backer, “The Perils and Promise of Drafting a Comprehensive Treaty on Business and Human Rights: Principles, Pragmatism and Principled Pragmatism in Shaping a Global Law for Business Enterprises,”  North Carolina Journal Of International Law (Vol. 42(1):-- 2017);

(2) Backer, L., Theorizing Regulatory Governance Within its Ecology: The Structure of Management in an Age of Globalization, 23 Contemporary Politics — (Special Issue forthcoming 2017).

(3) Schumpeter, "Social saints, fiscal fiends: Opinions vary on whether fines can be "socially responsible" while avoiding taxes". The Economist. January 2, 2016.
Available at: http://www.economist.com/news/business-and-finance/21684770-social­ saints-fiscal-fiends-opinions-vary-whether-firms-can-be-socially-responsible ?frsc=dg% 7Cc

(4) Seck, S., “Home State Regulation of Environmental Human Rights Harms as Transnational Private Regulatory Governance”, (2012) 13 German Law Journal 1363-1385: https://www.germanlawjournal.com/index.php?pageID=11&artID=1492.

(5) Daniel Augenstein and David Kinley, “Beyond the 100 Acre Wood: In which international human rights law finds new ways to tame global corporate power,” International Journal of Human Rights 19(6):828-848 (2015).



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