Thursday, March 27, 2008

Extraterritoriality and Corporate Social Responsibility: Governing Corporations, Governing Developing States.

Describing the current direction of norm making for multinational corporations, John Ruggie recently noted, “[t]he state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations.” (Ruggie 2007). The potential and perils of large economic enterprises, at once both property in the hands of their owners and autonomously constituted legal actors, looms large in the 21st century. Globalization—a privatizing, market-based system of increasingly freely moving capital—has provided the context in which the potential for these great enterprises has come closer to being realized. And its fundamental premises have also served as the basis for tremendous disaffection.

But assertions of great power also produce great reaction. The tone of elite global discourse in this context was driven to some extent by the political and economic “left,” which had never abandoned the Marxist-Leninist premise of the conflation of law, politics and economics. While the “right” was satisfied in elaborating the core ideal—strict separation between public and private, law and markets, and positing the essentially private nature of the firm and the markets through which it operated, the “left” was crafting an increasingly elaborate case for the notion that corporations were infused with a public purpose or had a public effect, and therefore had duties to maximize social as well as private value.

There have been many important developments that have flowed from these conversations about economics and politics in the context of global corporations beyond territorially based uniform regulation. These include everything from fiduciary duties of corporate boards and officers, reporting and surveillance obligations, ethics standards, labor policy, contract and investment policies. Among the most important has been growth of efforts to contain the power (or at least the assertions of that power) by these great economic actors. Corporate social responsibility (“CSR”) has assumed its place as among the most visible of legal fetishes of the 21st century. become something of a legal fetish object in the 21st century. “There is nothing in the rule of law, save that which has been placed there by training. . . . The rule seems to point in a certain direction. . . . But there is nothing in the rule itself . . . that points us in any direction whatsoever. . . . We move in the direction that we are trained to move and we call it the rule of law. We have been trained to see, and do in fact see, the rules as if they determine the circumstances of their own application. This is legal fetishism.” (Farley 2004, at 1233).

The taming of economic enterprises whose operations cross borders under the rubric of CSR has become a great enterprise of those who would regulate. CSR based regulatory efforts have generated a tremendous effort to bend domestic law to control the activities of multinational enterprises globally. It has given new life to the ancient debates about the identity of the stakeholders the corporation ought to serve, suggesting efforts under the rubric of CSR to hold that in “addition to shareholders' interests, corporate officers must give weight to the interests of other corporate and societal constituencies," such as "creditors, employees, customers, local communities and the environment." (Licht 2004, at 651). CSR has also generated a growing body of scholarly study, from the perspective of the multinational corporation, the (regulating) state, the objects of multinational corporate activity, stakeholders, surveillance systems as a basis for international regulation in a market environment, and the regulatory frameworks within which all of this control can be implemented (or resisted). It has been the object of discourse as domestic and international law. It has been understood as necessarily soft law or inevitably hard law, or new regulatory forms.

CSR has produced consensus that multinational corporations might be subjects of international law for certain global criminal activity. Corporate criminal liability was another of the great changes brought by the need to clean up after the defeat of the Nazi regime in Germany. Its initial targets were the great German Krupp and Farben industrial complexes. Its modern manifestation has been advanced with legislation like the Military Extraterritorial Jurisdiction Act (2000), “which was enacted precisely because U.S. military courts are not an option for private actors, specifically allows criminal charges to be brought against U.S. contractors working for the Defense Department.” (Dickinson 2005 at note 228). But global CSR has met with resistance, as well, especially where presented as global hard law. The global communities (after strong resistance by developed states) has rejected the ideology of the Norms on the Responsibilities of Transnational Corporations and Other Businesses (20003), as another thwarted expression of developing states to control the discourse of globalization and regulation. It has also resulted in the United Nation’s more developed-nations friendly Global Compact, and similar efforts.

But in a global regulatory context in which “no one is in charge” (Friedman 1999, at 112), the approaches to regulation of large multi national corporations has become as complex a subject as the regulation of states within a transnational or international framework—and as contested. Currently, among the CSR community, there are three principal approaches to the deployment of CSR in the context of corporate regulation—the extraterritorial application of the (favored) laws of certain jurisdictions (usually from out of developed states); the development of substantive rules of corporate responsibility as international law (usually reflecting the position of developing states though serving the policy objectives of portions of developing state elites); and privatization of corporate regulation beyond the traditional scope of corporate governance.

In her book, “Multinationals and Corporate Social Responsibility” (Zerk 2007), Jennifer Zerk provides a cogent examination of CSR in the early 21st century as developed especially in the United Kingdom. (Zerk 2007, at 2-3). Unfortunately, the emphasis on the development of CSR in the U.K. with a nod to the development in other developed states, leaves the discussion one sided. While the U.K. is admittedly an important site for the development of CSR, it is not the only one, and indeed, not the source of CSR values on which there is general consensus. More importantly, though, it suggests that CSR is essentially a colonialist effort—another effort by developed states to regulate for the rest of the world. This, when coupled with a taste for extraterritorial application of developed state law, all for a good cause, ignores growing CSR sensibilities in the states in which much of the development on the ground is happening, and does suggest the sort of paternalistic venture tat tends to make developing states suspicious.

She makes a strong argument for a traditionalist, state centered, approach to CSR regulation that at once privileges the legal regimes of developed states and then subordinates those regimes potentially to overarching international regulatory frameworks. Zerk’s “central argument is that, while international law has its limitations, it is also capable of supporting new regulatory opportunities that have the potential greatly to improve the welfare of people and communities affected by multinational activities, particularly in less developed countries.” (Id., at 2). That potential might be realized because certain powerful states are increasingly willing to project their law outside their territory. (Id.). Moreover, the global CSR movement appears to indicate a greater willingness to impose, through international law, “global ethical standards for business.” (Id.). Together, for Ms. Zerk, global trends suggests a capacity for great movement toward global regulatory harmonization at the public law level. “The question is: are we prepared to use them?” (Id., at 4).

To this end, Ms. Zerk, examines the current state of the legal regimes governing corporate social responsibility, both on a domestic and an international level, and makes several suggestions on how CSR standards might enforced against multinational commercial entities in the future. Ms. Zerk focuses on what she describes as three of its most important areas, namely, workers’ rights, environmental protection, and consumer protection. (Id., at 22). This is a position open to substantial disagreement. Ms. Zerk suggests that the biggest obstacles to furthering an international CSR regime is the state-based approach inherent in international law, and the lack of uniformity and efficacy that inevitably results from lack of jurisdiction, the absence of liability for parent corporate entities, and differing interests and philosophies between developing nations, and the economic powers who are currently the biggest proponents of increasing CSR standards. (Id., at 11).

A neat trick if you can manage it, but perilous depending on your politics. But the likelihood that this sort of effort produces yet another variant of developed state control of the agenda, responses and framework for dealing with conditions and actors originating among them is great. Zerk produces a well meaning and well-argued set of propositions for a regulatory scheme based on extension of extraterritorial jurisdiction and international legal regimes. She suggests subtly and effectively the ways in which the excesses of one might be used to negate that of the other. Still, for all that, it is hard to overcome a sense that these efforts might constitute yet another in the many variants of the warm of embrace of well meaning but controlling helpmates from the developed world. Yet, what Zerk might well highlight, and highlight effectively, is an important conundrum of the corporate social responsibility movement—the difficulty of devising systems of CSR that avoid the sort of neo-colonialist effects that make host states so uncomfortable. But her book also underlines how this conundrum may no longer matter much—at least among the intelligentsia of the developed world. Thus, David Becker and Richard Sklar note
“After all, for several decades it was commonplace for intellectuals to believe that transnational corporate expansion was an up-to-date form -- a higher stage -- of imperialism. But it is obvious that the idea of capitalist imperialism no longer commands the attention of political thinkers or commentators on world politics. Democracy has now eclipsed imperialism as this century's preeminent political word. In recent years, several other "isms," among them constitution alism, ethno-nationalism, fundamentalism, even alleged forms of fascism, have attracted more attention than imperialism. For whatever reason, intellectuals generally are no longer inclined to believe that economic growth under capitalist conditions will ineluctably result in the domination and exploitation of nations that are relatively poor and weak by those that are relatively rich and strong.” (Becker & Sklar 1999, at 1).

This is ironic considering the originating political sensibilities of CSR. But then again it may not be. The fact of sensibility for issues of subordination in developing states does not reduce the cultural pull of subordinating systems. Thus, it is perfectly logical, though perverse, that the most sensitive of developed world elites would tend to want to control the methods and premises of action in aid of anti-subordination efforts—and in so doing replicate subordination more artfully.

In approaching this complex issue, Ms. Zerk first provides a history of the CSR movement from its infancy, noting that, in the current environment, most multinationals at least pay lip service to the idea of CSR. (Id., at 23). The problem is, of course, that these entities regard CSR as a largely volunteer effort, rather than a set of standards that should be universal and, more importantly, legally binding. (Id., at 33). The arguments against binding international regulation are familiar; “voluntarists” argue that international CSR standards will inhibit competition and innovation, and furthermore, are unnecessary as increasing CSR is in the long term financial interest of multinational corporations. (Id.). Developing nations have also voiced opposition, claiming a sovereign right to “move at their own pace,” motivated by concerns that the CSR movement, emanating largely from the developed world, is merely veiled protectionism. (Id.). On the other side, it is argued that a concerted effort at elevated uniform CSR standards from a sufficient number of multinationals so as to influence corporate behavior on a global scale is unlikely, if not impossible. (Id., at 34). Ms. Zerk contends that the volunteer vs. mandatory model is overly simplistic and is to some extent based on the misconception that a binding legal standard will result in “higher standards of corporate behavior and transparency.” (Id., at 34-35). Ms. Zerk makes the case that the classic “command and control” model of corporate regulation is, in the modern global context, ineffective at best and counterproductive at worst, and notes that national governments have recognized this and are currently experimenting with alternative forms of regulation. “These include self-regulation, use of incentives, awards and accreditation systems, market-based initiatives, disclosure obligations . . . and education campaigns.” (Id., at 37). Even in the face of shifting conceptions of what constitutes effective corporate regulation, multinationals present a unique set of issues and challenges. (Id., at 49-50). Ms. Zerk observes that the term “multinational” is one that should be read broadly, and can apply to any number of commercial relationships no longer based on equity, but on “control.” (Id., at 51). This is problematic for, specifically, determining the extent of a state’s jurisdictional reach, and the allocation of liability. (Id., at 54-56).

Ms. Zerk then turns to an examination of international law in the context of CSR. International law can be divided into private and public spheres. (Id., at 61). Ms. Zerk argues that public international law is ‘horizontal’ inasmuch as states are both the makers and the subjects of law. (Id., at 62). Under this regime, there is often an absence of a central authority to enforce/interpret the law. (Id.). This system further frustrates efforts at the “command and control” model of multinational corporate behavior. (Id., at 73). However, Ms. Zerk contends that, as legal personalities, multinationals enjoy rights under international law and can therefore theoretically be subject to obligations under international law. (Id., at 81). However, because of the existing bulk of international human rights law is dedicated solely to state responsibility and because there is currently no enforcement mechanism for international CSR, direct law may not be an option for the furtherance of CSR on a uniform, global scale. She suggests that “[i]t should not be assumed, though, that the human rights obligations of states are readily translatable to the corporate context.” (Id., at 83). Ms. Zerk instead points to indirect regulation, which occurs largely at the national level. (Id.). While this is currently the most used method of implementing CSR initiatives, there is a lack of the power to enforce the laws beyond the borders of the home state. (Id., at 83-84). She also notes that some would argue that home states not only have the power to regulate extraterritorially, but the obligation to do so. Id., at 85). However, the general UN treaty provisions concerning human rights that place some obligations on states promote and respect human rights are most often viewed as not obligating a home state to regulate beyond its borders. (Id., at 89). More difficult still is the question the extent or even the existence of a duty owed by a home state to nationals of other countries. (Id., at 90). Ms. Zerk contends that it is unlikely that any positive obligations have been placed upon home states to regulate extraterritorially. (Id., at 91).

Non-political entities may have a role to play in the creation of greater global CSR. Currently, NGO’s have been influencing this area in two ways. First, they have created grass roots movements that ultimately influence shareholders and lawmakers; as well as disseminated information about corporate adherence to CSR standards or lack thereof. Second, many NGO’s have created partnerships and coalitions with multinationals to tackle specific human rights issues. (Id., at 100). Ms. Zerk suggests that these cooperative efforts may form the foundation of a new global CSR regime. (Id., at 102).

Jurisdictional constraints are one of the biggest obstacles for home states to increase CSR standards. Ms. Zerk devotes an entire chapter to analyzing the different extraterritorial theories and how may be employed by home states to regulate beyond their borders. (Id., at 105). Ms. Zerk argues that neither the “effects doctrine” nor the “universality principal” are sufficient under current international law to allow a home state to effectively regulate multinational behavior beyond its borders. (Id., at 112). The second jurisdictional issue involves where private parties may bring suit against multinationals. (Id., at 117). Citing jurisprudence of both the US and the UK, Ms, Zerk highlights the reluctance of courts in the developed world to hear cases against multinationals arising from events in the developing world. (Id., at 120). Forum non conveniens has provided a cushion for multinationals against litigation in more plaintiff-friendly jurisdictions. (Id.). Although the UK courts have recently softened the application of forum non conveniens, the jurisdictional hurdle for international litigants is still a high one in the US. (Id., at 125-126). Additionally, choice of law has involved a balancing of interests test in both the US and the UK, with varied results. (Id., at 129-30). Ms. Zerk suggests that the courts are best left in the role of arbitrators rather than regulators. (Id., at 133). Lastly, the duty of non-intervention has proved to be a roadblock to extraterritorial regulation by home states. (Id., at 138). Ms. Zerk contends that a broader interpretation of extraterritoriality, which examines impact of laws rather than the place “where laws are applied or enforced,” may serve to advance international CSR standards. (Id., at 140).

With chapter 4, Ms. Zerk arrives at the crux of her argument and the start of the difficulties of the well-meaning neo colonialist aspects of CSR. Both are richly displayed at the start of her consideration of the value of extraterritorial application of the law of proper states in favor of the benighted citizens of those states unwilling or unable to resist the onslaught of global multinationals.
But the rise of the CSR movement is causing home states to reassess their role in relation to the foreign activities of multinational based in their respective jurisdictions. There is now a significant degree of public and NGO support for the idea that these states should take much greater interest in the social and environmental performance of multinationals in poorer countries. (Id., at 145).

But first some preliminary questions require interrogation. The question of whether multinationals actually have a home state is largely unanswered in international law. (Id., at 149). This is of particular interest due to wealthier nation’s interest in greater CSR regulation. Ms. Zerk explains that this fact highlights the need for an international standard, as multinationals are often comprised of several entities which each may be domiciled in different countries. Id., at 150). Because the developing nations are concerned with remaining competitive and developing at their own pace, an international standard is much more difficult to establish. (Id., at 154-155). Additionally, wealthier nations are equally wary of multinationals ability to move operations overseas with relatively more ease than in the past. (Id.). Ms. Zerk suggests that although these factors work against international CSR, that wealthier nations appear to be showing more interest in sustainable growth, which has been developed in parallel with CSR generally. (Id., at 157). Although there doesn’t appear to be any international obligation for home states to regulate beyond their borders, there might be a duty to warn other nations under the international legal obligation to cause no transboundary harm. (Id., at 158-60). She then suggests a number of techniques of extraterritorial jurisdiction that might show promise in the CSR context. These include parent based extraterritorial regulation (Id., at 161-62 (referencing, for example, the US Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. § 5001), and codes of conduct with extraterritorial reach. (Id., at 163). Ms. Zerk hails a number of efforts in Australia and other places, but downplays the failure of these efforts to produce viable legislation. (Id., at 165-171). But she correctly notes the effects of disclosure and transparency efforts. (Id., at 171-182). Yet she fails to suggest the potential synergies between these disclosure efforts and market regulatory effects, synergos that have been noted elsewhere. (Backer 2008).

Recognizing that several nations and the supra national European Union, have enacted domestic corporate codes of conduct, which include disclosure and reporting requirements and tax incentives, Ms. Zerk argues that these provisions, while often lacking in placing positive obligations on multinationals, are likely to lay the groundwork for a future international standard for CSR. (Zerk 2007, at 185-86). Lastly, Ms. Zerk reminds the reader that the current moves on the part of wealthier nations toward a more comprehensive CSR policy are borne out of political or moral, rather than legal obligations. (Id., at 196-97). And here there is a return to the legitimacy issue of state CSR imposed across borders. Territoriality is recognized as a nuisance that is important. But how to manage the delicate balance between the temptations of the well meaning to extend their “good news” across state lines, and the equally well meaning international law principal of non-interference? The answer, for Ms. Zerk, lies in international law—as long as sensibilities (and domestic law) of developed states can be translated into international law standards, then the issue of extraterritorial application will be finessed—developed states will not be applying their law so much as applying international law standards! (Id., at 194-96). This is the neat trick to the argument. Ms. Zerk thus suggests:
As a general rule, however, the more ‘internationally accepted’ the standards imposed on the multinational, the less likely it is that the extraterritorial regulation will amount to a breach of the duty of non-intervention in the domestic affairs of other states. Genuine initiatives designed to give effect to established principles of human rights should not automatically be regarded as interference. Even where the initiative goes beyond that which is strictly necessary to give effect to human rights, it is arguable that the extraterritorial regulation would not usually be ‘unreasonable’ where there is a significant degree of international consensus as to the content of those obligations, the need for regulation and the form that regulation should take.”

(Id., at 195-196).

Well done. But from the perspective of developing states this solution may prove somewhat less than satisfactory. However laudatory the product, developing states, especially those that have spent the greater part of a century of more getting out from under systems of political and cultural subordination and hegemony in which they were told what was good for them, will find problematic a system of law in which they will again have what is good for them imposed from outside.

The area of private tort law may be a step toward inducing greater standards of CSR, as Ms. Zerk argues in chapter five. (Id., at 198). A number of factors in more developed countries make a proliferation of litigation based on CSR violations (environment, labor, and consumer protection) extremely likely. (Id., at 199). Ms. Zerk argues that there are two key components that will determine the future of litigation in this area: courts accepting jurisdiction and the “substantive rules of parent company liability. (Id.). As to the jurisdictional question, courts appear somewhat more willing to deny claims of forum non conveniens in favor of multinational defendants. (Id., at 214). Noting that there are several theories of liability (Id., at 216), Ms. Zerk suggests that primary liability is often ineffective in the multinational context, as the duty of care is hard to establish with a parent company as to the behavior of a subsidiary. (Id., at 218). She also argues that because vicarious liability is often founded on the employer-employee relationship, it too may not be an effective theory of liability for the purposes of multinationals. (Id., at 223). The theory of secondary liability, which looks to whether the defendant assisted, authorized, or encouraged the wrongful behavior, are largely untested, but may provide a means for determined liability in the future. (Id., at 227). Lastly, Ms. Zerk notes that enterprise liability, which would treat a multinational as a single economic entity, may provide for future liability in CSR litigation. (Id., at 229). Acknowledging that the issue of control will be paramount to any determination of non-primary liability, Ms. Zerk voices the concern that emerging theories of liability may only induce multinationals to shift corporate structure to avoid liability. (Id., at 235). Thus, private tort law is limited in its ability to broadly influence multinationals in the area of CSR.

Ms. Zerk has given a comprehensive overview of the current state of CSR from a legal perspective. Despite its complex subject matter, the book distills core issues down and makes them very clear to a reader unfamiliar with the issues facing multinational corporations and their role in fostering international human rights. Ms. Zerk ably identifies the shortcomings of current international treaties and of purely domestic regulation. While understandable given her objectives, it is lamentable that she spends almost the majority of the book dealing with the national laws of the great common law states: the UK, the USA, and Australia. There is some mention of the European Community, but only enough to whet the appetite. This is more lamentable, still, since the object of all of this activity is the regulation of the lives and welfare of citizens of states other than those of those developed states. Additionally, little attention is paid to those developing states that occupy an important middle ground in the CSR debate—those states that are both net importers and exporters of corporate activity. China, Brazil and India are no longer merely developing states dependant on the efforts of well meaning consumers from developed states to help them understand the nature of workplace standards acceptable among civilized states. Each has a growing multinational sector that is contributing to the development of those standards. The Brazilian Instituto Ethos, for example, has become an important voice in the global CSR dialog. Western governments, NGOs and academics ignore them at their own peril. Lastly, Ms. Zerk seems to suggest that an international standard for CSR should be achieved through the UN. It seems that the UN is perhaps not the best institution to deal with this issue. Little mention, however, is made of the possible utility of other international organizations as the institutional base for global governance of multinational corporations. The WTO, with a mechanism firmly in place for dispute resolution, might seems like a good alternative to develop and implement not only a universal, but an enforceable standard. (But see Zerk 2007, at 306). Or it may not. But those debates await other authors.

Moreover, the focus on the development of global substantive standards seems somewhat misplaced. Ms. Zerk places a substantial amount of hope on the development of international law standards from out of the great soft law CSR initiatives. (Id., at 262-277). Though this is high on the list of the desires of global NGOs, the current political situation is unlikely to produce consensus on corporate behavior. (Backer 2008). First, the foundational project for this end, the U.N.’s Norms has been abandoned (Backer 2006), an event sadly given short shrift by Ms, Zerk. (See Zerk 2007, at 245-48). Moreover, the discussion of supplier chain standards might as easily produce a greater movement away from public international law standards (Backer 2007), as it portends greater successes for public law. (See Zerk 2007, at 265-67).

Lastly, the work might have profited form a greater focus on the use of international law as a mechanics of disclosure and transparency. (Backer 2008). “In the meantime, the most promising avenue for the enforcement of human rights obligations of multinationals remains the national courts.” (Zerk 2007, at 305). And perhaps in the private regulatory systems emerging in which the multinational corporation stands at the center of a complex matrix of relationships. (Backer 2007). Or the most promising avenue might lie in the power of global NGOs to match the power of multinationals in the competition for the allegiance of consumers and investors through certification programs and other private contractual mechanisms. All may be right. But it is a stretch to suggest that “[u]ltimately, it is more than likely that new international institutions will emerge to promote—and enforce—the CSR standards of multinationals themselves.” For all of that, this work is a quite worthy addition to the academic literature in the field of corporate social responsibility. Whether or not one agrees with Ms, Zerk, she has produced a strongly argued work worthy of serious consideration.

The global elite is expending a tremendous energy on issues of CSR. Those issues are bond up in power relations between the public and private sectors of developing states, between developed and developing states, between economic elites, the intelligentsia and the media, and between labor, consumers and investors. It signals a contest for power as much as a drive to better the lives of people adversely affected by economic development. It suggests the change in the tenor of discussions about communal organization. Today values matter, states matter less, and economic organizations wield a substantially greater institutional and political power than they have in a long time. CSR will remain the language within which all of these dynamic struggles will be fought. The nature of victory or the identity of the victor, if such is to be had, remains unknown. But to the victor will go power, economic and regulatory, in fact if not in form.

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Doe v. Unocal, 395 F.3d 932, 937-42 (9th Cir. 2005)

Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 92-93 (2d Cir. 2000).

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