The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically oriented legal scholarship. It brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics. It encourages dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's place in culture.
This year the ASLCH's 13th Annual Conference, is being held at Brown University, Providence, Rhode Island. The Conference program may be accessed here. I was pleased to participate in a panel on Masculinity and Manliness, Chair John Min Kang (St. Thomas University School of Law), Discussant Frank Rudy Cooper (Suffolk University School of Law). The panelists presented the following papers:
David Cohen (Drexel University Earle Mack School of Law), Masculinity and Sex Segregation
Larry Catá Backer, Masculinities and Enterprise Global Governance: The OECD and Development of Transnational Norms for Enterprise Organization and Behavior
What follows is a rough version of the essay I presented at that conference.
Masculinities and Enterprise Global Governance: The OECD and Development of Transnational Norms for Enterprise Organization and Behavior
Larry Catá Backer[1]
ABSTRACT: Juanita Elias (Hegemonic Masculinities, the Multinational Corporation, and the developmental State, Men and Masculinities, Vol. 10(4): 405-421 (2008)) has argued that that the mainstream study of multinational corporations reflects a set of gendered assumptions that construct the firm as a hegemonically masculine political actor, and its internal functioning a form of a masculinist managerialism that constructs women workers in terms of their "productive femininity." R.W: Connel has noted that a transnational business masculinity, institutionally based in multinational corporations and global finance markets, is arguably the emerging dominant form on a world scale. (R.W. Connel, Masculinities and Globalization, Men and Masculinities, Vol. 1(1):3-23 (1998)). This paper examines these insights in the context of the development of emerging global corporate governance frameworks. Like the entities they mean to regulate, and the economic framework within which they are to be implemented, efforts at global regulation of enterprises tend to reflect and build on the hegemonically masculine. Focusing on the Organization of Economic Cooperation and Development (OECD) projects to produce an interlocking set of principles and guidelines for corporate governance, behavior norms for multinational corporations, and guidelines for state owned enterprises, the paper suggest the ways in which these governance frameworks reproduce and deepen the culture of transnational business masculinity.
I. Introduction.
It has become something of a cliché that globalization has substantially altered the once tidy system of governance grounded in the state, and based on a prime presumption that for every object of regulation—individual or entity—there is a state with substantially complete power to regulate. Globalization itself presents an alternative ideologically based ordering of society, where ideology is understood as systems of social self-consciousness.[2] This ideology of globalization is usually constructed in economic, political and sociological terms. These provide a basis for distinguishing globalization as an organizing ideology from that which served as ordering principles for state law-politics system.
Yet, it is in the nature of the success of ideology that it remains opaque.[3] I suggest here that the traditional and privileged constructions of globalization tend to mask another and equally potent ideological grounding of globalization, one that suggests a strong functional connection between globalization and the state system it appears to be displacing. Ideologies of gender remain ascendant throughout the world. They serve as a subtext of globalization in much the same way that they served the gender-order disciplining norms of the state system. Juanita Elias[4] has argued that that the mainstream study of multinational corporations reflects a set of gendered assumptions that construct the firm as a hegemonically masculine political actor, and its internal functioning a form of a masculinist managerialism that constructs women workers in terms of their "productive femininity." R.W. Connell has noted that a transnational business masculinity, institutionally based in multinational corporations and global finance markets, is arguably the emerging dominant form on a world scale.[5]
This paper examines these insights in the context of the development of emerging global corporate governance frameworks. Like the entities they mean to regulate, and the economic framework within which they are to be implemented, efforts at global regulation of enterprises tend to reflect and build on the hegemonically masculine. Focusing on the Organization of Economic Cooperation and Development (OECD) projects to produce an interlocking set of principles and guidelines for corporate governance, behavior norms for multinational corporations, and guidelines for state owned enterprises,[6] the paper suggest the ways in which these governance frameworks reproduce and deepen the culture of transnational business masculinity. I start with the ordering framework of masculinity and its translation within the context of globalization. I then consider the current efforts to frame governance principles for corporations at the transnational level through the soft law systems elaborated by the OECD. I then suggest the relationship of those efforts to the preservation of stable male privileging gender ordering.
I am mindful of the criticisms of non-European anthropologists. Wazir Jahan Karim has tellingly suggested “that the movement towards deconstructing women's history and the history of gender in terms of macro forces of colonialism, religious orthodoxy, fascism and globalization, cannot rid itself of Western bias or Eurocentricity if anthropologists again base their analysis on the theoretical formulations of thinkers who have attempted these reconstructions on Western data."[7] I also note that a gendered understanding of globalization adds, rather than substitutes, analytical framework. “Clearly, the insights offered here are not meant to "describe the world." They are offered as another layer in the complex of patterns of understanding and conceptualization of the world, and the people in it, scripting coercive normative consequences on the fundamental postulate that humans take one of two forms: male or female.”[8] But I do suggest that ignoring gender, and especially the imperatives of gender hierarchies based on a disciplining of the superior male archetype, ignores a significant aspect of what makes globalization work. More importantly, perhaps, gender based analysis helps explain why something that might appear so different—the organizational structures of globalization and its impact on the state—may have strong ties to the more traditional framework for ordering social, political and economic relations. The preservation of the hegemonically male through constructions of role preserving systems in globalization may explain why something so different has had such a benign impact on the social systems it appears to change.
II. The Ordering Framework of Masculinity.
In earlier work I suggested that the conflation of homosexuality with other forms of social corruption is both trans-cultural and draws on a singular logic of gender roles and a consequential gender hierarchy that privileges the ideal male.[9] This ideal male then stands in for all aspects of behavior that represents the aspirational ideals of the society, whether expressed in religious, ethnic or medical terms.
This "homosexual" allegation/representation draws upon a local logic, which varies with the cultural context, to associate the wrongdoers' "homosexuality" with other traits coded as "bad" within the cultural context. The allegations in each case serve to amplify and fix the other allegations of consequentially bad behavior. This process reiterates the deviant nature of homosexuality, and reinforces the association of homosexual behavior with undesirable characteristics. . . . Ironically, strengthening this association enables the gendered foundations of behavior regulation to recede while retaining its regulatory power.
Such a system of conflation appears to affect only relations between men. In actuality, the power of gendering behavior among men has strong spillover effects on all social ordering. The maintenance of behavior systems that are gendered male necessarily results in the articulation of behaviors that are gendered "not-male" or "female." Though those gendered behaviors apply equally to deviant men and women, gendering effectively assigns a sex, and therefore a social place, to behavior. Since the behavior discouraged in men is "not-male" or "female," such behavior systems tend to reinforce gendered notions of appropriate conduct among women as well as men. The ritual of homosexual accusation functions to narrow the scope of acceptable male behavior, and thus reduce the ideal set of behaviors, to those identified with the non-deviant male. Behavior or expectations unreasonable for men will be generalized for the population as a whole as necessarily undesirable and gendered "not-male" or "female." Gendering male behavior as male (desirable) and "not-male" or "female," what is commonly understood as the "homosexualization" of male behavior, thus contributes to the regulation of women and reinforces a social hierarchy of behaviors in which that gendered "female" is subordinated to that gendered "male." Because each of these episodes takes place on a legal stage, they each give force to a system based on gendered behavior and the association of that gender system with locally powerful logics. This in turn authenticates and legitimizes the resulting conduct system in the neutral terms of the culture in which it is served up. Memorialized as law, the political system can then embrace gendered behavior in culturally acceptable non-gendered terms.[10]
This ordering framework extends beyond the disciplining of individual behavior. “The concept of hegemonic masculinity presumes the subordination of nonhegemonic masculinities. . . . Also well supported is the idea that the hierarchy of masculinities is a pattern of hegemony, not a pattern of simple domination based on force.”[11] It extends beyond the conflation of corruption with deviations from the masculine heterosexual ideal and its further conflation between “deviating masculinity” and the subordinate role of the feminine. Gender normativity has structural and institutional aspects as well. These are brought out well in the work of Connel and Elias. Connel suggests the macro aspects of masculinity as an ordering element in the construction of globalization. Elias suggests its micro parameters in the construction of the ideal economic participant in globally conformist economic units of production.
Connell offers a sketch of major forms of globalizing masculinity in the three historical phases.[12] The first he calls Masculinities of Conquest and Settlement. Colonial conquest itself was mainly carried out by segregated groups of men-soldiers, sailors, traders, and administrators etc. The process of conquest could produce frontier masculinities that combined the occupational culture with an unusual level of violence and egocentric individualism. In certain circumstances, frontier masculinities might be reproduced as a local cultural tradition long after the frontier had passed[13]. Conquest and settlement disrupted all the structures of indigenous society and indigenous gender orders were no exception. The varied course of resistance to colonization is also likely to have affected the making of masculinities.[14]
The second form of global masculinities he refers to as Masculinities of Empire. The imperial social order created a hierarchy of masculinities, as it created a hierarchy of communities and races. The colonizers distinguished ‘more manly’ from ‘less manly’ groups among their subjects.[15] At the same time, the emerging imagery of gender difference in European culture provided general symbols of superiority and inferiority.[16] Empire might also affect the gender order of the metropole itself by changing gender ideologies, divisions of labor, and the nature of the metropolitan state.[17]
The third and most relevant for current systems of globalization, Connell calls Masculinities of Postcolonialism and Neoliberalism. The process of decolonization disrupted the gender hierarchies of the colonial order and, where armed struggle was involved, might have involved deliberate cultivation of masculine hardness and violence. One of the consequences of decolonization was another round of disruptions of community-based gender orders and another step in the reorientation of masculinities toward national and international contexts. Nearly half a century after the main wave of decolonization, the old hierarchies persist in new shapes. Since world politics is more and more organized around the needs of transnational capital and the creation of global markets, the world in which neoliberalism is ascendant is still a gendered world and neoliberalism has an implicit gender politics.
Connell proposes that the hegemonic form of masculinity in the current world gender order is the masculinity associated with those who control its dominant institutions: the business executive who operate in global markets and the political executives who interact with them. He calls this “transnational business masculinity.”[18] This is a masculinity marked by increasing egocentrism, very conditional loyalties (even to corporation), and a declining sense of responsibility for others. Transnational business masculinities differs from traditional bourgeois masculinity by it’s increasingly libertarian sexuality, with a growing tendency to commodify relations with women.[19]
What social dynamics in the global arena give rise to masculinity politics, and what shape does global masculinity politics take? The gradual creation of a world gender order has meant many local instabilities of gender ranging from the disruption of men’s local cultural dominance as women moved into the public realm and higher education to the shifts in the urban intelligentsia that produced “the new sensitive man” and other images of gender change. One response to such instabilities is to reaffirm local gender orthodoxies and hierarchies and a masculine fundamentalism is a common response in gender politics at present.[20]
Within the arenas of international relations, the international state, multinational corporations, and global markets, there is a deployment of masculinities and a reasonably clear hegemony. With the end of the cold war, the more flexible, calculative, egocentric masculinity of the fast capitalist entrepreneur holds the world stage. Two important conclusions of the ethnographic moment in masculinity research: that different forms of masculinity exist together and that hegemony is constantly subject to challenge. These are the possible in the global arena too. Transnational business masculinity is not completely homogeneous; variations of it are embedded in different parts of the world system, which may not be completely compatible.[21]
If these are contenders for hegemony, there is also the possibility of opposition to hegemony. Michael Kimmel recently suggested the rise of such counter masculinities within communities with subordinated male populations.[22] Steve Derné suggested how men from communities subordinated by agents of the globalizing economy seek both to recapture their masculinity and gender primacy through indulgence in symbolic hypermasculinity and in efforts to subordinate the non-male into an exaggerated female gender role.[23] Compared with the concentration of institutional power in multinational businesses, these initiatives remain small scale and dispersed. However, they are important in potential. As Connell contended, the global gender order contains greater plurality of gender forms than any local gender order. This must reinforce the consciousness that masculinity is not one fixed form. The plurality of masculinities at least symbolically prefigures the unconstrained creativity of a democratic gender order.
The study of the global arena itself, both as a venue for the social construction of masculinities and as a powerful force in local gender dynamics will require a reconsideration of research methods which give limited grasp on the very large scale institutions, markets, and mass communications that are in play on the world scale. It also needs to be supplemented by international teams to investigate issues of the scale and complexity we must now address.
In contrast Elias looks to the manifestation of masculinities within the global enterprise. He looks at how we can situate the multinational corporation (MNC) as a site for the production of hegemonic masculinity within a broader understanding of the gendered politics of globalization. By employing insights from both masculinity studies and critical gendered/feminist political economy, Elias aimed to reveal the complex set of gender relationships underpinning the activities of MNCs. A focus on hegemonic masculinities enables an analysis of how gendered forms of inequality become embedded in the functioning of the global market economy.[24] Moreover, understanding the operation of localized gender regimes is something that cannot be fully comprehended without focusing in on the mediating and supporting role of the state which is also addressed in this article[25]. In this sense, Elias draws upon Connell’s notion of “the Globalization of gender” which can be understood in terms of “the structure of relationships that interconnect the gender regimes of institutions, and the gender orders of local societies.”[26]
The focus is on a type of multinational activity- the spread of global factories across the developing world employing a largely female workforce in low-cost[27], monotonous work, rather than on all multinational activity per se. Furthermore, a focus is not simply on women workers, but on the production of “feminine” work. The role of masculinist managerial practice provides insight into the gendered structures and institutions within which women’s and men’s participation in the global economy takes place[28]. Such a focus also opens up space for a discussion of the role of men and (often nonhegemonic) masculinities within MNCs.
Elias argues that the global sphere cannot be regarded as a gender-neutral arena, but rather should be seen as a site for the production of gender identity.[29] Consequently, firms come to be conceptualized as actors embodying not just economic rationality, but also competitiveness and an aggressive pursuit of new market opportunities- characteristics closely associated with Connell’s writing on “transnational business masculinity” as the contemporary hegemonically masculine ideal.[30]
This is the model of hegemonic masculinity associated with the emergence of globalized managerial elite and is thus considered distinct from localized forms of paternalistic management. In addition, it is an identity that should be recognized as intersecting with constructions of race, class, and ethnicity. While the progressive firm has been construed as a gender-neutral market actor having potential to actually undermine gender inequalities in “backward” host economies-such as higher wages paid to women in MNCs compared to local firms, many women employed in MNCs face problems including hazardous working conditions and long stressful hours which may negatively affect their health. UNCTAD’s World Investment Reports (and liberal understanding of FDI more generally) tend to avoid discussion of gender issues. This omission is significant because a focus on gender, and gender inequality in particular, would raise certain questions relating to the “positive” economic and social outcomes that FDI is said to bring.
Gendered worker identities are produced not only in relation to globalized managerial norms but also are forged at the interface between the global and the local. Moreover, the role of the state is central to this process of construction since the production of gender inequality and gender identity is a process that is in constant negotiation with localized masculinities of host states. It is suggested here that the relationship between global capitalist production and localized gendered labor regimes has been effectively mediated by the state. Such a position rests on the development role of the state shifting toward the market economy, but it also points to the unintended consequences of state policies reflecting a pervasive male bias.[31] The model of hypermasculine development is a useful way of thinking about how global and local forces play out in the reconstruction of gender relations in specific national context.
Since a focus on the role of the state in mediating and supporting the global production of gender identities provides an insufficient picture of the relationship between hegemonic masculinities and localized gender cultures, Elias turns to the production and utilization of masculinities and masculine identities within the workforces of export sector factories.[32] This provides an insight into how the relationship between a hegemonic “transnational business masculinity” and localized take root in MNCs often in the form of workplace resistance strategies, but more frequently as a force that stabilizes and reinforces the hegemonic masculinity of transnational business practice.
A “scientific” approach to management has constructed regimes of worker control around a Taylorist organizational model couched in the language of gender neutrality (target setting, measurement techniques, etc.). In practice, however, the pursuit of capitalistic discipline hinges on the incorporation of localized masculinist forms of control and discipline. Workers in Elias’ case study research conducted in the Malaysian garment sector showed that a culture of paternalism pervaded the factories she visited.[33] The highly localized culture of control based around traditional understandings of male power and dominance is reinforced by state-led repression of trade unions in export industries and the rigorous production targets and systems of worker monitoring and surveillance that are standard practice across the globalized garment industry. Groups of male workers known as “migrant leaders” and “yard bosses” whose power and authority rests on a localized gendered discourse of “prowess”-the ability of real men to get the job done. This localized, yet thoroughly masculine, form of control is a mechanism through which multinational firms and their subsidiaries can ensure both worker discipline and a supply of migrant (largely female) workers. Thus, we find that alternative, localized versions of masculine identity work alongside the rational/ scientific managerialism of a transnational business masculinity in fostering gendered regimes of factory control.
Many groups of male workers have accessed localized masculinist identities to secure jobs that are often better paying and less restrictive than the kinds of assembly-line jobs available to women. Because the operation of hegemonic masculinities in export manufacturing is so dependent on the construction of gendered discourse of work concerning “productive femininities,” it is groups of male workers who are best able to avoid association with low-paid assembly-line production. It is by disassociating themselves with the discourse of productive femininities that men are able to seek privilege in the workforce and exert control over female workers. Elias argues that workplaces act as locations for a merging of localized and globalized discourses of the “good” female work that are central to the maintenance of male privilege within the MNCs, and perhaps even the global economy more generally.[34]
How can we introduce about ideas of multiple and nonhegemonic forms of masculinity into an analysis of workplace relations in the global market factory? Elias’ research in Malaysia shows that Chinese men dominated managerial, supervisory, and technical/scientific posts while ethnically Malay men predominated in “craft” and manual employment.[35] According to Elias, such examples suggests that a gendered global management culture, based on the rigorous “scientific” recruitment practices that are so standardized across the world’s garment sector, actually broke down when confronted with localized masculine identities. Women workers were subject to Taylorist patterns of measurement and control in corporate recruitment and employment which were backed up by a localized paternalism. But for male workers, such as the Chinese managers and supervisors, localized masculinities infused with a politics of ethnicity have proven resilient in resisting factory control and promoting group interests.
III. The OECD’s Global Soft Law Corporate Governance and the Reproduction of Gender Hierarchy.
These insights may have insights to offer for an understanding of the emerging frameworks of soft law governance increasingly asserted as a basis for global governance of transitional economic relations. For the purpose of exploring that possibility it is useful to examine the work of the Organization for Economic Cooperation and Development,[36] and its Principles of Corporate Governance,[37] the Guidelines for Multinational Enterprises,[38] and the Guidelines on Corporate Governance of State-Owned Enterprises.[39] Together, these provide a comprehensive set of principles for the governance of economic enterprises in the organization of their government and in the rules limiting the range of their behaviors with other actors.
The OECD Principles of Corporate Governance are divided into six sections, covering the basis for an effective corporate governance framework, the rights of shareholders and key ownership functions, the equitable treatment of shareholders, the role of stakeholders, disclosure and transparency, and the responsibilities of the board of directors.[40] The OECD Principles expressly recognize the ownership of private property as a key means by which resources are used efficiently, and the need to protect those property rights under differing legal and political regimes.[41] They specify that basic shareholders rights[42] The competitiveness and ultimate success of a corporation is the result of teamwork that embodies contributions from a range of different resource providers including investors, employees, creditors[43], and suppliers.[44] But this nod to stakeholders is subject to the overarching obligation of the corporation to its “owners”, the shareholders. The OECD Principles recommend that the corporate governance framework should ensure timely and accurate disclosure on all material matters[45] regarding the corporation, including the financial situation and operating results, corporate objectives, performance, ownership structure and voting rights, membership of the board, key executives and their remuneration, governance structure and policies of the corporation.[46] The Principles embrace a general notion of board independence and objectivity, grounded in the board’s fiduciary duty to the company and its shareholders.[47] This is manifested in a number of structural ways well understood under traditional principles of corporate law.[48]
To these principles of internal organization, the OECD’s Guidelines for Multinational Enterprises adds a critical set of principles describing the behavior norms of corporate enterprises in their operation with other constituencies. If the Principles of Corporate Governance sought to adduce constitutional principals touching on the organization of the apparatus of corporate government, the Guidelines for Multinational Enterprises suggests the substantive values of corporate behavior that such legitimately organized government must follow. These are organized around principles of disclosure, employment and industrial relations, sustainability, bribery, consumer protection, science and technology, engaging in competition, and taxation. The Guidelines addressed disclosure in two areas: The first set[49] of disclosure recommendation is identical to disclosure items outlined in the OECD Principles of Corporate Governance such as timely and accurate disclosure on all material matters regarding the corporation (financial situation, performance, ownership, governance of the company, remuneration policy). The second set is in areas where reporting standards are still emerging such as social, environmental, and risk reporting. The Guidelines recommends that enterprises contribute to the elimination of all forms of compulsory labor while the 1998 ILO Declaration requested that governments “suppress the use of forced or compulsory labor in all its forms within shortest possible period.” The Guidelines made it clear in its Commentary that they are not intended to reinterpret any existing instruments or to create new commitments on the part of governments- they are intended only to recommend how the precautionary approach should be implemented at the level of enterprises.[50] However, the Guidelines impose requirements on multinational corporations to assume responsibility for the conduct of all enterprises within their supply chains. In effect, the Guidelines construct a program of downstream obligation, with the expectation that the most powerful entity within the supply chain will enforce the governance norms recognized within the Guidelines through the supply chain. The effect is that the Guidelines legitimate the creation of a hierarchy centered on the power of multinational enterprises to discipline their subordinate units and to assimilate them to the normative behaviors embraced through the Guidelines.
State owned enterprises and sovereign wealth funds present a unique problem for the governance of corporation. State owned enterprises are both public and private—they are both the property of the sovereign corporation (the state) and a person in its own right (as an autonomous corporation with a sovereign owner). Traditionally the sovereign character of the enterprise was privileged. It was an agency of the state first, and an economic entity only to the extent that this role served the paramount relationship to the state. Globalization has suggested an inversion of that relationship that would privilege the autonomous entity as a separate body corporate from that of its sovereign corporate owner. In this task, the OECD nicely exposes the fundamental constitutional and supra national character of the transnational corporate constitutionalist enterprise—that the normative framework for the organization and behavior of corporations is grounded in universal principals beyond the state and subject to its own autonomous logic.
For that purpose, the SOE Guidelines focus on the obligation to ensure an effective legal framework for SOE operation, managing the state’s role as owner, the equitable treatment of other shareholders, relations with stakeholders, transparency and disclosure, and the responsibilities of SOE boards of directors. It is in the state’s interest to ensure that, in all enterprises where it has a stake, minority shareholders are treated equitably, since its reputation in this respect will influence its capacity of attracting outside funding and the valuation of the company. The underlying principle is that a state ought to strive to set an example in the organization and operation of enterprises in which it has an ownership stake. For that purpose, it ought to follow evolving international best practices regarding the treatment of minority shareholders.[51]A clear division of responsibilities among authorities and a coherent regulatory framework will facilitate the improvement of corporate governance in SOEs. There should be a clear separation between the state’s ownership function and other state functions (particularly market regulation): Full administrative separation of responsibilities is a fundamental prerequisite for creating a level playing field for SOEs and private companies, while also avoiding the distortion of competition.[52] Often the multiple and contradictory objectives of state ownership lead to either a very passive conduct of ownership function or state’s excessive intervention in decisions which should be left to the company and its governance organ. Thus, in order for the state to clearly position itself as an owner, it should clarify and prioritize its objectives.[53] The ownership or co-ordinating entity’s ability to give direction to the SOE or its board should be limited to strategic issues and policies. In addition, it should be publicly disclosed and specified in which areas and types of decisions the ownership or coordinating entity is competent to give instructions.[54] SOEs should acknowledge the importance of stakeholder relations for building sustainable and financially sound enterprises.[55] Co-ordinating or centralized ownership entities should develop aggregate reporting that covers all SOEs and make it a key disclosure tool directed to the general public, the Parliament and the media. As in large public companies, it is necessary for large SOEs to put in place an internal audit system. To reinforce trust in the information provided, the state should require that, in addition to special state audits, at least all large SOEs are subject to external audits[56] that are carried out in accordance with international standards.
From the descriptive exposition of the principles of corporate behavior distilled in the principles and guidelines produced by the OECD, the reinforcement of traditional gender order in a globalized context becomes clear. “Within the contemporary world gender order, the emerging hegemonic form seems to be a masculinity based in multinational corporations and international capital markets.”[57] Like political constitutions, the focus is on the demos; in the case of the corporation, its shareholders. The centrality of shareholders to the legitimacy of the organization of the government of a corporation (run through elected board members and appointed officers responsible to the Board of Directors) is emphasized. Protecting the participation rights of shareholders assumes an importance equal to that focused on the protection of citizen voting rights in political constitutions. At the same time, the position of other groups with important interests in the functioning of the corporation is also protected, though to a lesser extent. These suggest the sort of patterns of control that mark the gender project—the establishment of an ideal type, the definition of behavioral borders, and the demonization of non conformity as corrupt and inefficient.
More importantly, the obligation of multinationals to extend their domination throughout the supply chain legitimates the construction of a hierarchy in which the center acquires a quasi legal authority to use their power to assimilate all entities with which they deal. The assumption that the supply chain responsibilities of corporations run only in one direction—from the multinational corporation down to the smallest and most remote supplier. That parallels the understanding of the way power relationships run between multinationals and other enterprises with which they deal in the construction of non-state governance relationships.[58] Yet, it is not clear that such supply chain governance relationships ought to run solely in one direction. That approach encourages an unhealthy passivity in downstream entities. It also reinforces single vector chains of power relationships that might be embellished with a neo-colonialist or interventionist character, the essence of the institutionalism of indirect gender hierarchy.
Taken together, the OECD project evidences the macro character of global masculinity described by Connell and the micro applications of masculinities within the agents of economic globalization described by Elias. Indeed, the essence of the construction of the OECD Principles and Guidelines transposes, on a global scale, the fundamental construction of a masculinist organization derived from the essence of the systems of the most powerful economic actors, whose business and corporate cultures drive the standards.[59] The structural sociology of that transposition suggests, quite subtly, the underlying gendered ordering of that effort. Janis Sarra suggests the underlying gender impacts of shareholder activism within a hierarchically arranged global order, comparing the United States and Canada with respect to the roles played by shareholder activists and regulators in improving corporate governance in a way that seeks to mitigate the harmful impact of corporate activity on women and people of color.[60] [61] Claire Moore Dickerson has suggested the negative effects of the now global shareholder wealth maximization norm on the commercial lives of women in developing markets, focusing primarily on West Africa, by comparing the role of public companies in the United States to their role in emerging markets.[62] She has suggested that the free market itself is gendered.[63] This review of the OECD structures suggest that as this project seeks to institutionalize the basic parameters of free market behaviors within global governance structures, it will also transpose the gender norms underlying that system. Transposing systems transpose the values on which they are based.[64] Yet, as I have suggested elsewhere, the male privileging construct of social organization will continue to put the non-idealized male—and especially when constructed as female—at a disadvantage. As Claire Moore Dickerson has nicely explained:
Those who have supported fiduciary duty track the three feminist approaches highlighted by Hilary Charlesworth: (1) we sound like liberal feminists when we strive for equality by discounting differences between those with power and those without it; (2) we sound like cultural feminists when we celebrate the different experiences and perspectives of the powerful and the vulnerable; (3) we sound like radical feminists when we assert that we must correct the power imbalances inherent in the existing structures. [65]
Yet that very characterization suggests both the power of the gendering construct on the ordering of social and economic institutions, and the difficulties of moving away from either hierarchy or the male ideal. “Reform from outside--from the realm of the female, from the realm of that which society describes as negative in males--must struggle against an encoding built into the foundations of the socio-legal system itself. To believe that through a simple invocation law, the gender constructions built into male social organization and encoded in law, will simply disappear, thus significantly underestimates the force of male-male gendering in the social order.”[66]
But there is complexity here as well. As Michael Kimmel has suggested,[67] the masculinities ordered hierarchies buried within global economic regulation sourced in developed states and reflecting their values produce counter movements that are gendered as well. These counter movements can be perverse—producing a sort of distorted hyper masculinity that marginalized both deviant male and all female behavior or cultural characteristics. This can be manifested in everything from the evolution of more aggressively patriarchal systems grounded in religion or in “pre-colonial” culture. But in reality, these represent engagements with global interventions and efforts to remain both hierarchically male and dominant within a cultural or territorial space. They can also exert strong inward pressure on indigenous cultures. The result might be manifested in resistance to universalizing norms grounded in notions of impurity or attacks on the indigenous (and male) system of power hierarchy. This is particularly the case in the context of values changing human rights and business that upset traditional patterns of patriarchy within host states. This produces a double attack on local maleness. First, it subordinates local patriarchy to global patriarchal systems projected inward. Second, it inverts the patriarchal order within a host state. Masculinity and gender order thus infiltrates, at a subtextual level both the discourse of values based global economic norms and its impact on gender orders within target (host) states.
IV. Conclusion: Looking Forward.
It is not uncommon among some elements of global civil society outside the developed world to disaggregate efforts at global values ordering in race, power and gender terms.
The hierarchization of humanity has, and has always had, gendered and sexual components that are indissoluble from national, ethnic, racializing and other components. The logic of patriarchy entailed that colonial, neo-colonial and imperialist devaluation of populations was expressed through the symbolic feminization of the men of the dominated groups, a feminization which could of course take very different forms.[68]
I have suggested that by reproducing the universalizing soft law efforts designed to produce a more humane world can feed into this notion. Without a greater sensitivity to the constructions of gender and gender ordering, it is likely that efforts, like those seeking to provide a framework for corporate governance and social responsibilities, will produce the unintended consequences embedded within the gendered behavior frameworks that they might unconsciously embrace.
NOTES:
[1] W. Richard and Mary Eshelman Faculty Scholar and Professor of Law, Dickinson Law School; Affiliate Professor, School of International Affairs; director, Coalition for Peace and Ethics, a policy NGO. The author may be reached at lcb911@gmail.com. My thanks to my research assistant Su Jin Hong for her excellent research and related contributions ot this essay.
[2] Janet Dolgin, The Ideological Context of the Disability Rights Critique: Where Modernity and Tradition Meet, 30 Fla. St. L. Rev. 343, 345 (2003) (citing Janet L. Dolgin & JoAnn Magdoff, The Invisible Event, in Symbolic Anthropology 351, 363 n.7 (Janet L. Dolgin et al. eds., 1977)).
[3] See V. Spike Peterson & Anne Sisson Runyan, Global Gender Issues 44 (2d ed. 1999) ("[I]deologies are most effective when most taken for granted.")
[4] Juanita Elias, Hegemonic Masculinities, the Multinational Corporation, and the developmental State, 10(4) Men and Masculinities 405-421 (2008).
[5] R.W. Connel, Masculinities and Globalization, 1(1) Men and Masculinities 3-23 (1998).
“While the embodiment of transnational business masculinity has yet to be studied in detail, two points leap to the eye. One is the immense augmentation of bodily powers by technology (air travel, computers, telecommunications), making this to a certain extent a "cyborg" masculinity. The other is the extent to which international businessmen's bodily pleasures escape the social controls of local gender orders, as their business operations tend to escape the control of the national state; along with globalization of business has gone the rapid growth of an international prostitution industry.”
R.W. Connell, Understanding Men: Gender Sociology And The New International Research On Masculinities, 24 (1&2) Social Thought & Research 13, 25 (2001).
[6] See, Janis Sarra, Convergence Versus Divergence, Global Corporate Governance at the Crossroads: Governance Norms, Capital Markets & OECD Principles for Corporate Governance, 33 Ottawa L. Re. 177, at 208.
[7] See also Wazir Jahan Karim, Women and Culture: Between Malay Adat and Islam 3 (1992)
[8] Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale Journal of Law & Feminism 1, 5 (2005).
[9] This suggests an ironic and inverted reading of Catherin MacKinnon’s classic suggestion that “theory becomes feminist "to the extent it treats sexuality as a social construct of male power: defined by men, forced on women, and constitutive of the meaning of gender." Catharine A. MacKinnon, Toward a Feminist Theory of the State, at 128 (1989). Instead, the operating postulate here is that sexuality is a construct of male power veiled in language of apparently neutral systems, defined by men, forced on men, and thus constitutive of the meaning of gender, imposed on women.
[10] Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale Journal of Law & Feminism 1, 4-5 (2005).
[11] R. W. Connell and James W. Messerschmidt, Hegemonic Masculinity: Rethinking the Concept, 19 Gender Society 829 (2005) available http://gas.sagepub.com/cgi/content/abstract/19/6/829 (“Cultural consent, discursive centrality, institutionalization, and the marginalization or delegitimation of alternatives are widely documented features of socially dominant masculinities.”).
[12] Id., at 12-16.
[13] Id., at 13 (Some examples would be the gauchos of southern South America and the cowboys of the western US.). In other circumstances, the frontier of conquest and exploitation was replaced by a frontier of settlement. The creation of settler masculinity might be the goal of state policy as part of a general process of pacification and the creation of agricultural social order. Or it might be undertaken through institutions created by settler groups. While it is less documented, the impact on the construction of masculinity among the colonized should be severe. Id.
[14] Id. (“This is clear in the region of Natal in South Africa, where sustained resistance to colonization by the Zulu kingdom was a key to the mobilization of ethnic-national masculine identities in the 10th century.”); Robert Morrell, Political economy and identities in KwaZulu-Natal: Historical and social perspectives (1996).
[15] Id., at 13-14 (“In British India, for instance, Bengali men were supposed effeminate while Pathans and Sikhs were regarded as strong and warlike.”; South Africa: similar distinction between Hottentotos and Zulu; North America: Iroquois, Sioux and Cheyenne on one side, and southern and southwestern tribes on the other).
[16] Id., at 14 (Sinha’s study shows “how the images of ‘manly Englishman’ and ‘effeminate Bengali’ were deployed to uphold colonial privilege and contain movements for change.”); Mrinalini Sinha, Colonial masculinity: The manly Englishman and the effeminate Bengali in the late nineteenth century (1995).
[17] Id., at 14-15. In sum, there was the interplay of gender dynamics between different parts of the world order. However, in general, a widespread result of the world of empire was masculinities in which the rational calculation of self-interest was the key to action, emphasizing the European gender contrast of rational/irrational woman. While the accumulation of wealth made class and gender compromises possible in the metropole, the vehement masculinity politics of fascism still existed as a pattern in this context. Id.
[18] See also Predatory Globalization. CITE.
[19] Id., at 16.
[20] Id., at 17 (“A soft version… is offered by the mythopoetic men’s movement in US and by the religious revivalists of the Promise Keepers. A much harder version is found… in the Oklanhoma City bombing and in contemporary Afghanistan…Talibaan.”)
[21] Id., at 7-18 (“We may distinguish a Confucian variant, based in East Asia..from a secularized Christian variant..).
[22] See Michael Kimmel, Globalization and its Mal(e)Contents, International Sociology, Vol. 18, No. 3, 603-620 (2003) (This article examines the ways in which masculinities and globalization are embedded in the emergence of extremist groups on the far right in Europe and the US, with a final discussion of the Islamic world. It discusses the ways in which global political and economic processes affect lower middle-class men in the economic North, and describes several of their political reactions, especially their efforts to restore public and domestic patriarchy.).
[23] Steve Derné, Globalization and the Reconstitution of Local Gender Arrangements, 5(2) Men and Masculinities, 144-164 (2002) (Men often handle these anxieties by rooting their own national identity in women's acceptance of food habits, clothing, and gender subordination that men regard as traditional. Although participation in bureaucratic economies is an important source of men's anxieties about globalization, men address these anxieties in the realm of interpersonal gender relations over which they have some control.)
[24] See, Elias, supra note 1, at 406 (“ The feminization of global assembly-line employment is not simply an effect of the low wages that employers are usually able to pay female workers, but also reflects the perpetuation of socially constructed ideas relating to the ideal “nimble fingered” factory worker.”).
[25] Id.; S. Rai, Gender and the political economy of development: From nationalism to globalization (2002).
[26] R.W.Connell and J. Wood, Globalization and business masculinities, Men and Masculinities 7, 347-64 (2005).
[27] See, Elias, supra note 1, at 406; M.B.Mills, Gender inequality in the global labour force, Annual Review of Anthropology 32, 41-62 (2003); W.R.Poster, Racialism, sexuality and masculinity: Gendering ‘global ethnography’ of the workplace, Social Politics 9, 126-58 (2002).
[28] Juanita Elias, Stitching-up the labour market: Recruitment, gender and ethnicity in the multinational firm, Internationals Feminist Journal of Politics 7(1), 90-111 (2005).
[29] See, Elias, supra note 1, at 409.
[30] R.W.Connell, The men and the boys (2000).
[31] In seeking to demonstrate how states in East Asia promoted a particular vision of economic development, Ling discussed the notion of “hypermasculinity” to convey the glorification of aggression, competition, accumulation, and power that are a hallmark of these states’ development strategies. L. M. H. Ling, Sex machine: Global hypermasculinity and images of Asian Women in modernity, Postitions: East Asian Cultures Critique 7(2), 277-306 (1999).
[32] See, Elias, supra note 1, at 413; J. Elias, Fashioning inequality: The multinational corporation and gendered employment in a globalizing world (2004); The gendered political economy of control and resistance on the shop floor of the multinational firm: A case study from Malaysia, New Political Economy 10(2), 203-22 (2005). One of the key insights drawn from Hearn, Connell, and others is that masculinity is not a standard category of analysis; there exist multiple and contingent forms of masculinity. In dealing with this complexity of masculinities, Elias turned on her own research from an MNC operating in the Malaysian garment sector. The same tensions and reconstructions of gender identities discussed in relation to the state are also taking place within the factory environment as notions of hegemonic or “transnational business masculinity” play out within the context of multiple and competing masculinities and feminities.
[33] See, Elias, supra note 1, at 414. For example, workers were encouraged to recruit family members into the firm and the company organizing “family days” for workers.
[34] See, Elias, supra note 1, at 416.
[35] See, Elias, supra note 1, at 416.
[36] The OECD is an intergovernmental organization representing most developed states. See OECD, About OECD nd <http://www.oecd.org/pages/0,3417,en_36734052_36734103_1_1_1_1_1,00.html >. For a discussion, see, e.g., Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21
July 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 (2009).
[37] OECD Principles of Corporate Governance (2004) < http://www.oecd.org/dataoecd/32/18/31557724.pdf> (“The OECD Principles of Corporate Governance were endorsed by OECD Ministers in 1999 and have since become an international benchmark for policy makers, investors, corporations and other stakeholders worldwide. Id., at 3 (Forward)).
[38] OECD Guidelines for Multinational Enterprises (2000) < http://www.oecd.org/document/28/0,3343,en_2649_34889_2397532_1_1_1_1,00.html> . The Guidelines provide voluntary principles of business behavior covering virtually every aspect of the operations of an economic enterprise. “Although many business codes of conduct are now available, the Guidelines are the only multilaterally endorsed and comprehensive code that governments are committed to promoting.” OECD, Policy Brief, The OECD Guidelines for Multinational Enterprises (June 2001) < http://www.oecd.org/dataoecd/12/21/1903291.pdf>. The Guidelines are likely to be updated in 2010. See, OECD, Working Party of the Investment Committee, Preparing For Consultation on an Update of the OECD Guidelines for Multinational Enterprises, DAF/INV/WP(2009)4 28 Aug. 2009.
[39] OECD Guidelines on Corporate Governance of State Owned Industries (2005). The OECD has expressed its opinion that these Guidelines are compatible with its Principles of Corporate Governance but oriented to the special issue of state owned enterprises as they were understood within OECD states (not including China) in the early 21st Century. “These Guidelines are also based on a comparative survey of SOE corporate governance practice in OECD countries.” OECD, Guidelines on Corporate Governance of State Owned Enterprises, and http://www.oecd.org/document/33/0,3343,en_2649_34847_34046561_1_1_1_37439,00.html. For a criticism, see Larry Catá Backer, The Chinese Communist Party and the Governance Structures of SWFs and SOEs: “Unswervingly Upholding the Party's Core Political Status in SOEs", Law at the End of the Day, Sept. 1, 2009 http://lcbackerblog.blogspot.com/2009/09/chinese-communist-party-and-governance.html >.
[40] OECD Improving Corporate Governance Standards: the Work of the OECD and the Principles 1, available at http://www.oecd.org/dataoecd/45/24/33655111.pdf (last visited on June 22, 2009). Each includes official commentary and explanation of the principles. Id. at 2.
[41] Janis Sarra, Convergence Versus Divergence, Global Corporate Governance at the Crossroads: Governance Norms, Capital Markets & OECD Principles for Corporate Governance, 33 Ottawa L. Re. 177, at 208.
[42] Id. at 209: “While markets for capital and for corporate control will create incentives for manages to improve corporate efficiency, codifying basic shareholder rights will reduce investment risk and transaction costs.”
[43] Id. The stakeholder chapter breaks with the earlier version in explicitly recognizing the role and rights of creditors. In a number of countries, the experience has been that poorly defined and ineffectively enforced creditor rights have distorted corporate governance, particularly in the presence of controlling shareholders. A new principle states that the corporate governance framework should be complemented by an effective, efficient insolvency framework, and by effective enforcement of creditor rights.
[44] The Principles 46. According to the annotations, in all OECD countries, the rights of stakeholders are established by law (e.g. labor, business, commercial and insolvency laws) or by contractual relations. It also states that even in areas where the interests are not legislated, many firms make additional commitments to stakeholders[44]. Concern over corporate reputation and corporate performance often requires the recognition of broader interests. In addition, the legal framework and process should be transparent and not impede the ability of stakeholders to communicate and to obtain redress for the violation of rights. Id.
[45] The Principles 49-50. (Disclosure requirements are not expected to place unreasonable administrative or cost burdens on enterprises. However, the Principles support timely disclosure of all material developments that arise between regular reports. Material information can be defined as information whose omission or misstatement could influence the economic decisions taken by users of information. )
[46] Id. The Principles also recommend that this disclosure include material foreseeable risk factors, as well as material issues regarding employees and other stakeholders. This is to facilitate investors’ assessment of the stewardship of the corporation.
[47] Policy Brief, Improving Corporate Governance Standards: the Work of the OECD and the Principles, p4: “The principle covering board and director independence has been extended to cover situations characterized by block and controlling shareholders, and not just independence from management.”
The Principles annotation 63. Finance, Competition and Governance: Priorities for Reform and Strategies to Phase-Out Emergency Measures: p52, OECD suggests in its recent document that the “fit and proper person test” needs to be strengthened and extended to cover more institutions including directors since there is compelling case for the criteria to be expanded to technical and professional competence such as general governance and risk management skills. It also mentioned that “the test might also consider the case for independence and objectivity”
[48] For example, Independent non-executive board members or establishment of specific committees might provide additional assurance where there is a potential for conflict of interest among market participants. Id., Principle, 65. The Board should also should review related party transactions using independent board members. See, OECD, Asian Roundtable Task Force on Related Party Transactions, Conclusions and Key Finding Note, 5. It should also provide confidential access for whistleblowers who may be in a position to identify unethical conduct and abusive transactions. Id.
[49] Their focus is on publicly traded companies, however, it should also be a useful tool to improve corporate governance in non-traded enterprises including privately held and state owned enterprises. (Id.)
[50] Commentary
[51] Id. at 33. It is in the interest of the co-ordinating or ownership entity and SOEs themselves to refer to the OECD Principles of Corporate Governance with regard to minority shareholders’ rights. The Principles state that “Minority shareholders should be protected from abusive action, by, or in the interest of, controlling shareholders acting either directly or indirectly, and should have effective means of redress”. The Principles also prohibit insider trading and abusive self-dealing. Finally, the annotations to the OECD Principles suggest pre-emptive rights and qualified majorities for certain shareholder decisions as an ex-ante means of minority shareholders protection. Id.
[52] OECD Guidelines on Corporate Governance of State-Owned Enterprises p19.
[53] Id. at 23.
[54] Id. at 24. The relationship of the co-ordinating or ownership entity with other government bodies should be clearly defined. In particular, the ownership entity should maintain co-operation and continuous dialogue with the state supreme audit institutions responsible for auditing the SOEs. The co-ordinating or ownership entity should also be held clearly accountable for the way it carries out the state ownership function. Its accountability should be, directly or indirectly, to bodies representing the interests of the general public, such as the Parliament. However, The accountability requirements should not restrict unduly the autonomy of the co-ordinating or ownership entity in fulfilling their responsibilities. Id.
[55] Id. at 37.
[56] external auditors should be subject to the same criteria of independence as for private sector companies. This generally includes limits on providing consulting or other non-audit services to the audited SOE. as periodic rotation of audit partners or audit firms. Guidelines for SOEs P43.
[57] R.W. Connell, Understanding Men: Gender Sociology And The New International Research On Masculinities, 24 (1&2) Social Thought & Research 13, 24 (2001).
[58] See, Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39(4) University of Connecticut Law Review 1739 (2007).
[59] Donald J. Johnson, Promoting Corporate Responsibility: The OECD Guidelines for Multinational Enterprises, in Corporate Social Responsibility: The Corporate Governance Op The 21st Century 243, 247 (Ramon Mullerat ed., 2005).
[60] Janis Sarra, Class Act: Considering Race and Gender in the Corporate Boardroom, 79 St. John's L. Rev. 1121 (2005).
[61] Janis Sarra, The Gender Implications of Corporate Governance Change, 1 Seattle J. for Soc. Just. 457, 462, 464-68 (2002) (women face distinct disadvantages even as investors in markets as currently structured).
[62] Claire Moore Dickerson, Sex and Capital: What They Tell Us About Ourselves, 79 St. John's L. Rev. 1161 (2005).
[63] Claire Moore Dickerson, Feminism and Human Rights, 22 Women's Rts. L. Rep. 139, 140-141 (2001).
[64] See, Claire Moore Dickerson, Culture and Trans-Border Effects: Northern Individualism Meets Third-Generation Human Rights, 54 Rutgers L. Rev. 865, 867 (2002).
[65] Claire Moore Dickerson, Feminism and Human Rights, 22 Women's Rts. L. Rep. 139, 142 (2001).
[66] Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale Journal of Law & Feminism 1, 60 (2005) (“There is no sorcerer's (much less witch's) spell that can transform the object to which the incantation is directed through the medium of law.” Id.).
[67] See Michael Kimmel, Globalization and its Mal(e)Contents, International Sociology, Vol. 18, No. 3, 603-620 (2003) (This article examines the ways in which masculinities and globalization are embedded in the emergence of extremist groups on the far right in Europe and the US, with a final discussion of the Islamic world. It discusses the ways in which global political and economic processes affect lower middle-class men in the economic North, and describes several of their political reactions, especially their efforts to restore public and domestic patriarchy.).
[68] Race, class and the contradictions of masculinity, (2005) available http://hatifnattar.net/race-class-and-the-contradictions-of-masculinity/
[40] OECD Improving Corporate Governance Standards: the Work of the OECD and the Principles 1, available at http://www.oecd.org/dataoecd/45/24/33655111.pdf (last visited on June 22, 2009). Each includes official commentary and explanation of the principles. Id. at 2.
[41] Janis Sarra, Convergence Versus Divergence, Global Corporate Governance at the Crossroads: Governance Norms, Capital Markets & OECD Principles for Corporate Governance, 33 Ottawa L. Re. 177, at 208.
[42] Id. at 209: “While markets for capital and for corporate control will create incentives for manages to improve corporate efficiency, codifying basic shareholder rights will reduce investment risk and transaction costs.”
[43] Id. The stakeholder chapter breaks with the earlier version in explicitly recognizing the role and rights of creditors. In a number of countries, the experience has been that poorly defined and ineffectively enforced creditor rights have distorted corporate governance, particularly in the presence of controlling shareholders. A new principle states that the corporate governance framework should be complemented by an effective, efficient insolvency framework, and by effective enforcement of creditor rights.
[44] The Principles 46. According to the annotations, in all OECD countries, the rights of stakeholders are established by law (e.g. labor, business, commercial and insolvency laws) or by contractual relations. It also states that even in areas where the interests are not legislated, many firms make additional commitments to stakeholders[44]. Concern over corporate reputation and corporate performance often requires the recognition of broader interests. In addition, the legal framework and process should be transparent and not impede the ability of stakeholders to communicate and to obtain redress for the violation of rights. Id.
[45] The Principles 49-50. (Disclosure requirements are not expected to place unreasonable administrative or cost burdens on enterprises. However, the Principles support timely disclosure of all material developments that arise between regular reports. Material information can be defined as information whose omission or misstatement could influence the economic decisions taken by users of information. )
[46] Id. The Principles also recommend that this disclosure include material foreseeable risk factors, as well as material issues regarding employees and other stakeholders. This is to facilitate investors’ assessment of the stewardship of the corporation.
[47] Policy Brief, Improving Corporate Governance Standards: the Work of the OECD and the Principles, p4: “The principle covering board and director independence has been extended to cover situations characterized by block and controlling shareholders, and not just independence from management.”
The Principles annotation 63. Finance, Competition and Governance: Priorities for Reform and Strategies to Phase-Out Emergency Measures: p52, OECD suggests in its recent document that the “fit and proper person test” needs to be strengthened and extended to cover more institutions including directors since there is compelling case for the criteria to be expanded to technical and professional competence such as general governance and risk management skills. It also mentioned that “the test might also consider the case for independence and objectivity”
[48] For example, Independent non-executive board members or establishment of specific committees might provide additional assurance where there is a potential for conflict of interest among market participants. Id., Principle, 65. The Board should also should review related party transactions using independent board members. See, OECD, Asian Roundtable Task Force on Related Party Transactions, Conclusions and Key Finding Note, 5. It should also provide confidential access for whistleblowers who may be in a position to identify unethical conduct and abusive transactions. Id.
[49] Their focus is on publicly traded companies, however, it should also be a useful tool to improve corporate governance in non-traded enterprises including privately held and state owned enterprises. (Id.)
[50] Commentary
[51] Id. at 33. It is in the interest of the co-ordinating or ownership entity and SOEs themselves to refer to the OECD Principles of Corporate Governance with regard to minority shareholders’ rights. The Principles state that “Minority shareholders should be protected from abusive action, by, or in the interest of, controlling shareholders acting either directly or indirectly, and should have effective means of redress”. The Principles also prohibit insider trading and abusive self-dealing. Finally, the annotations to the OECD Principles suggest pre-emptive rights and qualified majorities for certain shareholder decisions as an ex-ante means of minority shareholders protection. Id.
[52] OECD Guidelines on Corporate Governance of State-Owned Enterprises p19.
[53] Id. at 23.
[54] Id. at 24. The relationship of the co-ordinating or ownership entity with other government bodies should be clearly defined. In particular, the ownership entity should maintain co-operation and continuous dialogue with the state supreme audit institutions responsible for auditing the SOEs. The co-ordinating or ownership entity should also be held clearly accountable for the way it carries out the state ownership function. Its accountability should be, directly or indirectly, to bodies representing the interests of the general public, such as the Parliament. However, The accountability requirements should not restrict unduly the autonomy of the co-ordinating or ownership entity in fulfilling their responsibilities. Id.
[55] Id. at 37.
[56] external auditors should be subject to the same criteria of independence as for private sector companies. This generally includes limits on providing consulting or other non-audit services to the audited SOE. as periodic rotation of audit partners or audit firms. Guidelines for SOEs P43.
[57] R.W. Connell, Understanding Men: Gender Sociology And The New International Research On Masculinities, 24 (1&2) Social Thought & Research 13, 24 (2001).
[58] See, Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39(4) University of Connecticut Law Review 1739 (2007).
[59] Donald J. Johnson, Promoting Corporate Responsibility: The OECD Guidelines for Multinational Enterprises, in Corporate Social Responsibility: The Corporate Governance Op The 21st Century 243, 247 (Ramon Mullerat ed., 2005).
[60] Janis Sarra, Class Act: Considering Race and Gender in the Corporate Boardroom, 79 St. John's L. Rev. 1121 (2005).
[61] Janis Sarra, The Gender Implications of Corporate Governance Change, 1 Seattle J. for Soc. Just. 457, 462, 464-68 (2002) (women face distinct disadvantages even as investors in markets as currently structured).
[62] Claire Moore Dickerson, Sex and Capital: What They Tell Us About Ourselves, 79 St. John's L. Rev. 1161 (2005).
[63] Claire Moore Dickerson, Feminism and Human Rights, 22 Women's Rts. L. Rep. 139, 140-141 (2001).
[64] See, Claire Moore Dickerson, Culture and Trans-Border Effects: Northern Individualism Meets Third-Generation Human Rights, 54 Rutgers L. Rev. 865, 867 (2002).
[65] Claire Moore Dickerson, Feminism and Human Rights, 22 Women's Rts. L. Rep. 139, 142 (2001).
[66] Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale Journal of Law & Feminism 1, 60 (2005) (“There is no sorcerer's (much less witch's) spell that can transform the object to which the incantation is directed through the medium of law.” Id.).
[67] See Michael Kimmel, Globalization and its Mal(e)Contents, International Sociology, Vol. 18, No. 3, 603-620 (2003) (This article examines the ways in which masculinities and globalization are embedded in the emergence of extremist groups on the far right in Europe and the US, with a final discussion of the Islamic world. It discusses the ways in which global political and economic processes affect lower middle-class men in the economic North, and describes several of their political reactions, especially their efforts to restore public and domestic patriarchy.).
[68] Race, class and the contradictions of masculinity, (2005) available http://hatifnattar.net/race-class-and-the-contradictions-of-masculinity/
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