This series builds on some ideas I have been working through for a number of years relating to a fundamental shift in the approaches to corporate governance that broaden the ambit of corporate governance issues from a singular focus on internal governance (the relationships among officers, shareholders and directors) to one that includes corporate behavior and the standards by which officers, directors and shareholders exercise their respective governance authority. This shift also changes the scope of what is understood as "law" to be applied to issues of corporate governance, from one principally focused on national law to governance norms that may be sourced in the declarations and other governance interventions of public and private international bodies. Lastly, it appears to point to an evolution to the role of the state from the principal source of standards and enforcer of law to a vehicle for the implementation of international standards in which enforcement power is left to global market actors--principally consumers and investors function of the decisions of global actors. All of this is inconsistent with traditional notions of the role of law, the scope of corporate governance and the nature of corporate social responsibility int he United States. The extent to which the United States participates in the construction of these autonomous international systems may suggest the direction in which government policy may be moving away from the traditional consensus of corporate responsibility to something perhaps entirely new.
This post provides the introduction to the series, providing background and setting the context for month long study that follows.
TABLE OF CONTENTS:
Part 1: The OECDand Its Corporate Governance Project
Part 2: The MNE Guidelines
Part 3: Substantive Provisions of the MNE Guidelines:
Part 4:The Transposition of the UN Guiding Principles on Business and Human Rights into the MNE Guidelines:
Part 5: The MNE Guidelines' remedial architecture
Part 7: The Emerging Ideological Framework of the US National Contact Point
Part 8: The Context of Specific Instance Statements Among OECD NCPs; a Study in Contrasts.
Part 9: Transnational Law and the Construction of a New Jurisprudence of Governance--The Role of the NCP and the Specific Instance
Part 10: The U.S. NCP and Specific Instance Claims: The Early Cases 2000-2004
Part 12: The U.S. NCP and Specific Instance Claims: The Early Obama Administration Cases 2009-2010
Part 13: The U.S. NCP and Specific Instance Claims: The Obama Administration NCP Reorganization Cases 2011
Part 14: The U.S. NCP and Specific Instance Claims: The Obama Administration NCP Reorganization Cases 2012
Part 15: The U.S. NCP and Specific Instance Claims: The Obama Administration NCP Reorganization Cases 2012 Cont.
Part 16: The U.S. NCP and the Scope of its Information and Promotion Functions.
Yet the OECD framework itself remains incoherent. The efforts to develop and implement the Guidelines for Multinational Enterprises picks up and extends the stakeholder model of corporate governance and extend it through an enterprise organization liability framework. But the OECD has also been quite careful to continue to expand the national movement to re-affirm a shareholder welfare maximization mode of corporate governance through its Principles of Corporate Governance and its state owned enterprise extension. These re-affirm the basis of corporate governance as grounded in the produciton of income above all else, and that the measure of corporate performance is structured through profit memorialized in the structures of financial activity reporting. That reaffirmation is countered by the MNE Guidelines' refocus of corporate governance in the external relations of the enterprise, and in the maximization of stakeholder value measured not only by financial activity reporting but also by the valuation of the social, environmental and human rights impacts of corporate activity.
While the National Contact Points in European OECD Member States were quite active over the last decade, the US National Contact Point presents a somewhat different story. This series, then, picks up the story of the development of a substantive framework for corporate social responsibility grounded in international public standards, operated through national governmental organs but constituted as a voluntary system with no legal effects by considering the way the United States National Contact Point has approached this project. The object of this study is to better understand the evolving relationship between states (and domestic law) and international standards (including those which relate to treaties or other norms rejected for transposition into the domestic legal order), its effects on the corporations and the construction of a regulatory space that is neither purely legal, nor purely public but collaboratively intermeshed. See Larry Catá Backer,"Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order," Indiana Journal of Global Legal Studies 18(2):751 (2011).
The Ruminations Series in 2009 sought to develop a set of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. Ruminations continue to be produced form time to time.
For 2010, this site introduced a new series--Business and Human Rights. The series took as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum. Each of the Essays considered one of the topics raised in the online consultation. My hope was to help generate discussion and to encourage further discussion of the issues within the framework of the consultation framework.
For 2011, this site introduced a new series of integrated essays--Developing a Coherent Transnational Jurisprudence of Ethical Investing: The Norwegian Sovereign Wealth Fund Ethics Council Model. The object of this series to to consider the work of the Ethics Council of the Norwegian Sovereign Wealth Fund. The thesis of this series is this: The Norwegian Sovereign Wealth Fund (NSWF ) investment program is grounded in the application of a set of Ethical Guidelines adopted by the Storting (the Norwegian Legislature) and enforced through an Ethics Council charged with determining whether a company should be excluded from investment by the NSWF. The work of the Ethics Council has produced the beginnings of a coherent jurisprudence of ethics for corporate investment. That jurisprudence may contribute significantly both to the development of transnational social norm standards and affect the way domestic corporate law is understood.
For 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. The Zhiwei Tong (童之伟) Series focused on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site.