(Pix © Larry Catá Backer 2018)
Last year I taught a course on Corporate Social Responsibility Law for the very first time (Corporate Social Responsibility Law--A Tentative Syllabus). I was full of hope that the course, as designed would provide a sound basis for student learning and engagement in a subject that is typically neglected outside of Business Schools. And indeed, the first time I taught the course was in the School of International Affairs. Only later was it possible to offer the course in a law school (which considering the usual indifference of legal academics to courses that are not traditionally doctrinal in traditional ways was to some extent a surprise).
However, that first effort at a syllabus proved disappointing. It was an academic's syllabus; but it worked less well for students. So about 3 weeks into the course I effectively abandoned the syllabus--or at least a rigid effort to follow its logic. Some lessons learned: First, students preferred, and I found it much easier to teach, from the lived experience of the key CSR actors. Teaching through the enterprise rather than through articles and cases proved much more effective in producing good discussion and better learning. Second, original sources proved to be a better source for generating discussion and forcing analysis, than heavier reliance on secondary materials. It is true enough that academics are good at analysis, and that is why we provide that analysis (mostly as a convenience I suspect) to our students. But students must learn analysis as well, and they proved eager to learn. Third, comparison provides a rich basis for learning. Comparisons among enterprises, among institutions, and among states, proved quite useful in drawing insights that students found profitable.
So, with these insights I went back to the drawing board. And now I have produced my CSR Syllabus 2.0, which draws on the lessons I hoped I learned. The syllabus, relevant portions of which follow, including a Concept Note and a Statement of Course Content and Structure, remains a work in progress. Comments and suggestions gratefully appreciated. The full syllabus may be accessed HERE. I will report form time to time on the course.
COURSE SHORT DESCRIPTION:
This course provides an introduction to the law and policy of corporate social responsibility (CSR). The focus is on CSR (1) as a subject of legal regulation within states, (2) as a matter of international law and compliance beyond the state, and (3) as a tool and methodology for privatizing regulation through the enterprise itself operating in global production chains. The emphasis is on the study of the legal and regulatory frameworks. These frameworks include those existing and emerging within states, in international institutions, and within production chains and the apex corporations that manage them. The course begins with issues of definitions and of variations in approaches to legal and other governance mechanisms in the U.S. and among major commercial jurisdictions. It then turns to the existing law of CSR, focusing specifically on charitable giving and disclosure regimes. It then considers the rise of CSR regulatory regimes as privatized law making that uses the mechanisms of contract to regulate conduct throughout a production chain. It then considers the emergence of international standards as they inform regulatory efforts in states and enterprises and as normative standards in their own right. It ends with a consideration of key trends and developments going forward.
* * *
STATEMENT OF LEARNING OUTCOMES AND ASSESSMENT
Learning Outcomes:
The “Course Concept
Statement” is included below at the beginning of the Syllabus. Students are
expected to acquire a working knowledge of the following.
1. Identify the legal
framework within which the regulation of corporate social responsibility is
framed within the United States, within international organizations, and among
corporate actors.
2. Examine the
relationship between corporate law in states and corporate social
responsibilities, understanding their overlap and distinguishing scope.
3. Demonstrate
familiarity with the legal regulation of CSR in the United States and selected
other states, with a focus on the law of charitable giving and the emerging
disclosure and reporting laws
4. Demonstrate
familiarity with third party certification frameworks.
5. Identify the
structures, legal and regulatory effects of corporate CSR self-regulation
systems.
6. Demonstrate
familiarity with the substantive content and application of a selection of
international normative standards such as the 2011 United Nations Guiding
Principles for Business and Human Rights, and OECD Guidelines for Multinational
Enterprises, among others.
7. Develop a working
familiarity with the U.S. Alien Tort Claims Act and its relevance to CSR
related litigation.
8. Identify the relationship between CSR
regimes and the regulation of corruption, enterprise liability and
environmental sustainability objectives.
9. Consider the role of fiduciary duty and
monitoring and due diligence obligations of enterprises in light of changing
jurisprudence.
Learning Outcomes Assessment:
Student achievement in all learning outcomes will be measured in a final examination that may be undertaken in one of two ways. Students may choose to (1) take a 24 hour take home final examination, or (2) submit a paper. Learning Outcomes will be monitored through student participation in the weekly discussion of problems that build on readings.
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SYLLABUS
This Syllabus consists of a (1) Course Concept Statement, (2) Statement of Course Content and Structure, (3) Summary Syllabus (With Weekly Discussion Themes), and (4) Detailed Syllabus With Problems and Assigned Readings.
Course Concept Statement:
I am delighted to be teaching a course on Corporate Social
Responsibility (CSR). Like the subject itself, the course is a hybrid. CSR is inherently hybrid in its nature,
character, and as manifested as both law and policy. Its governance
trajectories touch on the essence of law and the lawyer's craft in a changing
world in which the authority and character of law is itself changing. Its normative trajectories speak to
politics, ethics and morals, as well as to the fundamental organization of
cultures of human interactions in the economic sphere in a changing world in
which the desire to institutionalize social and moral systems across borders is
growing.
To begin framing CSR, it might be useful to start by
considering two questions that dominated a century-long debate about the
economic, social, and political role of economic actors operating in corporate
form: (1) Whom must corporations serve?
And (2) to what extent should the regulation of corporations be left to the
market, to private ordering (contract law) among corporate stakeholders, or to
public regulation by the state? Both
of these questions reflect an even more fundamental question, the answer to
which remains unresolved: What is the essential nature of the corporation? Is
it an autonomous community, like a nation-state? Is it the sum of contractual
relations among some of the people with stakes in the joint enterprise? Or is
the corporation merely property, a complex commodity? And to these must be
added the fundamentally transforming questions necessary in the wake of the establishment
and dominance of the structures of globalization on economic, political, and
social activities: (1) do corporations
stand at the center of the regulatory structures of economic activity or are
there better objects through which regulatory objectives can be met? (2) To
what extent does law serve effectively to manage the behaviors that in the
aggregate comprise organized economic activity, or even that of the market, and
if not what role for private ordering?
The first set of questions remained highly contested
through the end of the twentieth century. They formed the kernel around which
the conceptualization of CSR, and regulatory initiatives, were developed. With respect to these, and early on, Western
states seemed to reach an uneasy stalemate about the contours of the debate
regarding corporate social responsibility. That stalemate was famously
memorialized in the great academic debates of mid-century and the grudging
legalization of a small element of the field.
That small legalization then, ironically, dominated and displaced the
rest. During that time, it was fashionable (and for academics expected among
their peers) to argue, mostly among themselves, about the nature, character,
and purpose of the corporation beyond those limits of discourse enforced by the
practice community. But influence leaders among the academic intelligentsia
(within the law schools at least) knew enough not to stray too far if they
wanted to retain their academic reputations.
But these accommodations and the premises underlying them,
gave way quickly to the second set of questions after 2000. It was about at that time that the realities
of globalization, with its effectively free movement of goods, investment and
capital, appeared to explode onto the consciousness of influential people
inside the academy, government, civil society and enterprises. With
globalization (however understood, and there was little consensus on an
orthodox understanding of globalization) as the perceived dominant driver of
global economic, and then political and societal, forces, the concept of CSR
changed as well. The original stalemate, and its accommodation of corporate
charity, no longer seemed to serve the interests of powerful regulatory forces. These forces now worried about the inability
of any state or group of states to effectively manage economic activity, or the
activities of enterprises operating or domiciled in states, in a context in
which the scope of the appetite for regulation had grown to include the effects
of economic activity on the social, political and environmental spheres. Yet,
these expanding ambitions, targeting a regulatory territory that spilled over
national borders, created substantial governance gaps that implicated the value
of traditional state-based law systems.
But what to use in place of law? And with respect to what
were these additional or supplemental regulatory systems to apply? With respect
to the first question there was already a number of answers. National movements
towards cultures of assessment and accountability suggested the possibility of
privatization of governance within enterprises or systems around which economic
activity was coordinated. A movement toward internationalization of norms
appeared to drove the creation of regulatory standards from states to public
international organizations. At the same time, states resisted the creation of
international law. Instead, international standards were viewed as a complement
to the growing importance of regulatory governance and the reliance on markets
to manage behaviors of economic actors. Regulatory governance and the move
toward markets as behavior regulators complemented the growing cultures of
accountability and self-governance, adding to it cultures of good governance
and risk avoidance. These then intertwined with developments in states that saw
in enterprise self-governance a means, not just of deputizing the enterprise,
but of holding the enterprise to account for violations of rules the
responsibility for the enforcement of which had devolved to the enterprise. In
corporate law, for example, the interpretation of the duty of care to include a
duty of self-monitoring, the conduct of which might be made available to state
prosecutors seeking to enforce law. The relationship could as easily be used to
manage the economic behaviors of enterprises as it might be used to devolve the
enforcement of other statutory provisions. All of these movements occurred as
globalization, and the changing demand for regulation, broadened the scope of
the expectations for conduct by actors in the course of their economic
activities beyond charity. But how far?
These are the questions that are currently the subject of
wide ranging debate among law and policy makers, lawyers, civil society and
enterprises. The way these questions are being answered are finding their way
into national lawmaking and regulatory systems, into the self-regulatory
systems of enterprises, and into the efforts of non-governmental organizations
to hold others (and ultimately perhaps themselves at least) to account. This is
the context within which influential actors have sought to provide a definition
for CSR. In the dynamic context within
which CSR is now considered, efforts at definition have appeared to become much
more prescriptive (normative) than descriptive (in the sense of seeking to
explain). It also follows that there is little consensus around
definition. Where definition is vested
with a political character, and where the political objectives of major actors
are quite diverse and contradictory, it is unlikely that any orthodoxy of
meaning is possible. Among the definitions with some influence are those that
speak to CSR as a commitment to contribute to economic development (World
Business Council for Sustainable Development); a comprehensive set of values
and principles grounded in legal compliance (International Chamber of
Commerce); a framework for protecting enterprise long term profitability
(British Standards Institute); a commitment to take into account social,
economic and environmental impacts of business operation along with financial
implications (Australian Government); management
practices that minimize negative impacts and maximize positive impacts of
company management practices (Canadian Center for Philanthropy); a process of
managing the costs and benefits of business activity to all stakeholder (World
Bank); responsibility for impacts of
business decisions on society and the environment through transparent and
ethical behavior (ISO 26000:2010); the responsibility of enterprises for their
impacts on society (European Commission, 2011); and a commitment to international
public human rights principles enforceable through law (Amnesty International).
Emerging theorists, like Birgit Spiesshofer (2018) has
characterized the contemporary search for infusing the term CSR with meaning
amounts to its reconstruction as a set of guiding principles or leitmotif, the object of which is to
guide thinking rather than to set of specific principles and conduct rules. That leitmotif, though, might perhaps have
three distinct strands.
The
first and most well-known is that of corporate philanthropy. Much of what passes for CSR is sourced in the
concepts of charity. Charity remains a
strong driver of CSR related activity in many states, especially in Asia.
Indeed, in some places, charity is itself the language if implementation of
other CSR relate normative objectives,
or the means by which CSR breaches might be remediated.
The
second are human rights related obligations. The shift toward globalization, and the
internationalization of trade produced governance gaps, and the need for
accountability. But accountability to
what standards? Increasingly the central standards, at the international level,
were seen as grounded in the human rights systems and norms that had been
developed with increasing sophistication within international institutions.
Human rights normative structures increasingly were understood as providing the
baseline behavior norms to which enterprises ought to conform, whether they
operated. Thus, if human rights provided the norms, philanthropy provided a
means.
Lastly are the emerging principles of
sustainability and environmental harm. Once understood as largely apart from the business of
enterprise conduct, the last decade has seen the growing consensus of the
responsibility of enterprises for their actions with environmental
effects. More important, as the
challenges of global warming and climate change have accelerated, and in the face of the growing privatization
of governmental responsibilities, sustainability objectives have come to be
seen as important societal objectives of economic activity. By 2018,
international institutions began to view the right to a clean, and safe,
environment, along with sustainability practices for the protection of the
planet for the enjoyment of future generations as much a duty of states as a
responsibility of economic actors.
From the perspective of its manifestations—CSR, then,
appears to be an aggregation of behavior frameworks grounded in enterprise
responsibility for philanthropy, for the respect of human rights in their
activities, and for sustainability. For states and international organizations,
these three clusters of objectives represented both a systematization of
behavior norms as well as a framework for structuring compliance. For
enterprises, philanthropy, human rights and sustainability could be understood
as obligation and methodology. That is,
these three strands of CSR take on the characteristics of compliance, of risk
management, and of methods of remediation. Accountability, compliance, risk
management and objectives based decision making are concepts that enterprises
understand. But they are also concepts
that, for organizations that viewed conformity to law and human rights especially
as inviolable, and sort of approach to CSR that permitted risk management and
balancing might pose a challenge to their conception of the nature of the
responsibility of enterprises.
Nonetheless, the three strand understanding of CSR, then,
serves as its objectives and methodological core. That core can be expressed in
law, in social norms, and in the private arrangements of parties disciplined by
markets. For our purposes, then, it is
important to understand this wide spectrum of meaning, without the necessity of
choosing among them. Within very wide parameters of law, social norm and the
operational constraints of risk and compliance in business behaviors, the
normative character of CSR can be understood within three quite broad
conceptual categories. These are the
categories through which the three key areas of CSR—charity, human rights, and
sustainability—may be expressed:
First, it focuses on enterprises--that
is on institutions organized for the purpose, principally, of economic
activity. In a sense, CSR has outgrown its traditional
starting point—the aggregation of capital within Western style corporations
which became ubiquitous by the beginning of the First World War in Europe, and
the Western Hemisphere. Globalization has to some extent transformed the
“corporate” part of CSR, shifting the focus from the corporation to two
distinct but related objects. The first
is the enterprise (in whatever form
organized). Enterprises refer both to constituted legal entities and to the
networks of enterprises that create coordinated economic activity (usually
understood as the transnational or multinational enterprise). The second is the
process of production, especially
production across borders. The process of production can be understood as a
chain of connected activity (the production, value, or supply chain, for
example), or it can be understood as the system within which production occurs,
with respect to which enterprises contribute and. Top some extent (along with
the state and other actors) manage. Collectives and collective activities,
then, are at the center of the “corporate” s field. It focuses on the individual within a
collective that is not the state. As such, also embedded within it are those
organizations and institutions that operate within or in relation to that
sphere. At its limit, it touches on all
organizations other than the state
Second, CSR focuses on the societal role of enterprises--that is on the structures and
frameworks within which non-state organizations (and specifically enterprises)
order themselves in and of themselves that are found outside the formal
structures of state and government. That has been one of the greatest points of
difficulty for the study of CSR by lawyers (at least). It is hard enough to conceptualize the
application of a legal system to aggregations, processes and systems that are
themselves not precisely recognized in law.
Traditionally that meant that lawyers (and the educational sectors
designed to train/socialize them) effectively ignored CSR, except to the extent
that law was involved. CSR was relegated
to the social sciences and the business schools. To some extent that is still true. In most jurisdictions CSR was of interest to
traditional jurists only to the extent of the law’s interest in the regulation
of corporate charity; in many jurisdiction it still does mean only that. Again,
globalization has helped transform the “societal” part of CSR. In this case, an
increased focus on societal roles also suggested a legal basis for such
conduct. Thus, from early in the 2000s
one saw a movement, especially ay the international level, to transform the
societal sphere into legal obligation—at the national or international
level. Yet simultaneously, the drive
toward markets based regulation also suggested that the societal be
institutionalized and made obligatory, but outside the traditional mechanism of
the public sector. That tension in
approach is compounded where the structures of regulation are themselves not
centered in law either. One speaks here of those direct relations between the
enterprise/system and its communities; those relations are sometimes within and
sometimes beyond the state and sometimes in a space ceded by the state. But
these societal relations can have regulatory effect; and the state may well
seek to legalize some to all of those societal relations.
Third, CSR focuses on responsibility. Here on speak to the responsibility of
enterprises or of the systems or processes of production within the societal
sphere, that is on the autonomous obligation of enterprises to embed itself
within the regulatory structures through which it engages in the communities
where it operates. Responsibility is to be differentiated from obligation. It
touches on an obligation for which one is accountable—accountable to oneself or
to others. These are acts which one is expected to do; that expectation arising
from others or form oneself, the accountability for which is embedded in the
relationships between the parties. These are responsibilities that oblige
action and create consequences. These
interactions are neither dependent on nor necessarily connected with the
impositions of law. That is, these are
responsibilities that exist autonomously of law, even if they are incorporated
into law. They have a life of their own—in the way that natural law or
religious obligation might be understood to exist in relation to law but not as
something that proceeds form law. It follows that the societal responsibilities
of enterprises are not to be confused with the mandatory obligations to obey
the command of law of a government with the authority to subject its object to
its authority. And yet the societal responsibilities of enterprises share with
law the notion of authority and leadership, of accountability and of autonomy
embedded within the strictures of the norms that frame responsibility.
CSR, then, occupies a conceptual space between the social
and the legal, and between the moral and legal order. Such a conceptual space is inherently
unstable, especially in the context of globalization that at once appears to
shift public regulatory power to state collectives (energizing a robust sphere
of public international law), even as it also appears to shift regulatory power
to the private sphere. This instability thus manifests itself in contests for
control of regulatory space--through robust projects of legalization and
judicialization of the societal sphere in general, and the obligations of
enterprises specifically--or through the privatization of the legal sphere as
enterprises themselves are deputized to undertake the role once reserved to
states. It is at this point that corporate social responsibility becomes
interesting to the law--the lawyer, to the legislator, to the administrator and
the courts. Yet that convergence also reveals the vibrancy of governance beyond
the control of law, and of the state.
It is to these issues that the course is directed. This course provides an introduction to the law and
policy issues that touch on the responsibility of enterprises for their business
activities. It provides an overview of corporate social responsibility (CSR), as
a subject of legal regulation within states, as a matter of international law
and compliance beyond the state, and as a tool and methodology of corporate
governance and finance with governance effect through contract. It focuses on
the contemporary interplay between large corporations and governments, intergovernmental institutions, investors
and non-governmental organizations (NGOs).
Over the past several decades,
economic actors, and especially those operating as enterprises, have seen the
development of efforts to impose on them certain responsibilities for the
consequences of their decisions and to change the way that corporations view
the scope and character of their obligations to inside and outside
stakeholders. These efforts have produced both law at the domestic level and
norms and structuring principles at the international level. During its
evolution, CSR has progressed from legally tolerated traditional philanthropy
and a consignment of the issues to the “social sphere” of moral and ethics, to encompass
a much broader palette of actions and objectives. CSR now encompasses not only
what companies do with their profits, but also how they make them in virtually
every respect of their operations. Through their stakeholder relations and
business models, companies can develop policies and practices to respect human
rights and help address environmental and social concerns. These developments
have occurred at the local and national level through law and the adoption of
principles and expectations of conduct, they have also seen a strong growth in
international soft law standards touching on corporate responsivities to
respect human rights, for sustainable business practices and for the protection
of the environment.
There are many factors that have
contributed to increased
expectations for corporations to adopt CSR programs as governments have changed
the scope and thrust of their regulatory and ownership roles, and as regulatory governance
principles that favor of market-based approaches have become more compelling for
many states. Companies have been encouraged
through law and governance mechanisms to identify opportunities for innovative
products, technologies and business models aimed at proactively solving social
or environmental challenges. Many enterprises have developed internal
governance structures that embed a governance framework for CSR within their
international corporate governance.
As global production chains become
more important, these internal enterprise governance systems begin to have
profound effects throughout the entire production process, affecting workers
and other partner enterprises in many states. CSR has also become a tool for
investors, to mitigate emerging social, environmental and governance risks and
to identify opportunities for aligning financial performance with social,
environmental and governance (ESG) performance. In addition, CSR has become a
lever for civil society organizations to influence corporate practice and
public policy.
Advocates have seen CSR as a cluster of premises, which when
institutionalized within the governance structures of economic actors can serve
as a means of addressing governance gaps where government is weak. In contrast, critics have
seen CSR as an intrusion
of corporate interests
in the public sphere where government is strong.
More recently critics have seen in internationalism of CSR a profound and
direct attack on state sovereignty in the service of the objectives of
autonomous multilateral institutions that do not reflect local wishes. At the same time, the limits of voluntary CSR measures as a transformative agent are also becoming clearer,
and are raising questions about the need for a recalibration between
the public and private domains.
This course focuses on
large multinational enterprises and on global systems of production. The MNE are complex organizations are
composed of one or more organizations woven together through ownership or
contract and creating a set of business relationships that span production
chains—the integration of the process of economic activity overseen usually by
a corporate enterprise that serves as the apex of global production chains, but
has application to enterprises throughout supply chains. The enterprise,
embedded in global production within and outside the state serves, in turn, as
the object of regulation, including (but not limited to) conventional systems
of law. At its limit, of course, the relationship between the MNE and the
production chain can be inverted. That
is, production chains are complex organizations of economic activity that
aggregate all of the steps necessary to draw together material and
technological processes to produce objects for sale in markets that exist at
every stage in the production process, the management and operationalization of
which requires the organization of capital and labor. The emphasis of this
course, then, is on the study of the legal and regulatory frameworks, both
existing and emerging within states, in international institutions, and within
production chains and the apex corporations that manage them. The course
surveys the literature and examines topical examples drawn from today's US and
global experiences. The object will be to begin to develop a conceptual and “as
applied” basis for approaching key questions in CSR law in context: What has
worked, what hasn't, and why? What are CSR's limits? What is the future of CSR?
Statement of Course Content and Structure
This course will examine
these and related developments with a view to informing students, who may
become lawyers or policy makers or who may work at enterprises (public and
private), of their responsibilities to their clients and employers (or to their
enterprises) in relation to CSR duties, obligations and responsibilities in
ways that matter to clients and to institutions with authority to affect
business behavior. For lawyers, policymakers,
and advocates that means examining CSR for its potential mechanisms for
business accountability respecting important substantive norms. For future government lawyers that means
studying CSR for its relationship with and to legal regulatory tools. For
future leaders of public and private enterprises that means understanding the
impact of CSR in the cultures of their enterprises and in the role of CSR in
economic decision-making. The course provides case studies, conceptual frameworks and tools to help students understand
and assess different
components of corporate
social responsibility and different models of interaction between corporations, governments, intergovernmental organizations, investors and non-governmental organizations. It combines lectures, case studies,
class discussions and practical assignments.
The course will be taught
in a modified seminar style. Each week’s
discussion will be built around a group of materials that suggest the central
themes to be discussed. That discussion, in turn, is built around problems.
Each of the problems serves to center discussion of the materials
assigned. Students will spend the bulk
of the class discussing approaches to the issues suggested by the problems for
which the readings may offer insight. Each student will be assigned an enterprise
(For the most part an apex corporation heading up a global production chain).
The student will learn CSR through its application by the assigned enterprise.
The object is to teach “law and policy in action” at the operational level, and
to avoid, to the extent possible, too great an emphasis on abstract concepts
detached form the real world in which they are being applied, and through this
application, changed.
The course is divided in
five Parts. Part I serves as introduction. Students will consider a core
hypothetical around which most of the issues encountered in CSR can be
applied. That will set the tone for the
course, one in which the student will be asked to apply abstract knowledge to
the concrete problems of enterprises. To
that end, students will be broken up into small groups. Each will be assigned an enterprise. This enterprise will serve as the focus of
the CSR work for the semester. During
the term, students will produce four
reports in which the issues studied will be applied. Students will be asked to compare the way in
which these different enterprises respond to the challenges of CSR. Lastly, the introductory materials will deal
with issues of definition.
Part II unpacks the
corporate in corporate social responsibility. It introduces the student to the
baseline concepts in law and economics of the corporation, the enterprise, and
systems of production. It also considers
the policies, including regulatory principles and policies under which these
are regulated. Also considered will be the range of enterprises and systems of
production that are covered by CSR regimes—either as legal or societal matters.
Part II ends with student presentations discussing the organization of the
enterprises which they have been assigned.
This provides the baseline knowledge necessary for deeper CSR study.
Part III considers the
“societal” in CSR. These materials serve as the conceptual heart of the course.
Philanthropy and the legal regulation of social responsibility is first considered.
Students will consider the legal framework in the U.S. and other states
focusing on philanthropy and the notions of corporate waste. Next, students
will examine CSR and human rights regimes. Special attention will be drawn to
the development of human rights based normative systems for the regulation or
management of economic activity. Lastly, students will consider the evolving
systems of sustainability based CSR responsibilities. Students will cap this
study with a presentation in which they will map CSR within their enterprise
and its production chains.
Part IV draws students to
a study of the nature of responsibility in CSR.
This part focuses examination on
regulatory structures in national, international and private governance
systems. Students will be introduced first
to responsibility as transparency. These
include emerging national law based disclosure regimes. But it also includes
the use of markets driven management of behavior, the use of transparency and
compliance systems by government to monitor and hold enterprises accountable. Students next consider
enterprise self-regulation and third party certification, along with its legal
effects. The trend toward data driven
compliance systems is also introduced. Students
will then make their third presentation—an examination of how enterprises
incorporate CSR into their management and decision making.
Part V ends our
examination of principal trends in CSR. It examines remedy. Students are first
introduced to international and soft law
approaches—with a focus on the mechanisms in the OECD Guidelines for Multinational
Enterprises and its NCP system, Students then consider the legal effects of CSR
Codes. Lastly students consider the issues of home state remedies and
extraterritorial application of law. The course ends with a last student
presentation, examining enterprise grievance mechanisms, anti-corruption
efforts and assessments of reporting. The presentations will then be used as
the basis for student final papers.
Summary Syllabus (With Weekly Discussion Themes)
NOTE: THESE MAY BE SUBJECT TO CHANGE DUE TO CONSTANTLY EVOLVING NATURE OF THE FIELD and STUDENTS ARE ADVISED TO CHECK THE ASSIGNMENTS PAGE EACH WEEK
Summary Syllabus:
Part I Course Introduction
Week 1: Course Introduction—Concepts, Law and Policy Baselines: Introduction to the course; CSR definitions and approaches, and the evolution of the field.
Part II Unpacking the Corporate in Social Responsibility
Week 2: The Corporate in CSR; corporations, enterprises, and systems; baseline concepts in law and policy.
Week 3: Entities and Relationships: What sort of Entities, systems or relationships are covered under CSR provisions; and Group Presentation 1 (The Organization of the Responsible Enterprise).
Part III: The Societal in Corporate Social Responsibility
Week 4: Philanthropy and the legal regulation of social responsibility: Considering the legal framework in the U.S. and other states focusing on philanthropy and the notions of corporate waste.
Week 5: CSR and Human Rights: the development of human rights based normative systems for the regulation of corporate economic activity.
Week 6: CSR and Sustainability: the broadening of corporate responsibility from philanthropy and human rights to sustainability, understood both as respect for environment and resource management for the long term.
Week 7: Group Presentation 2: Mapping CSR in the Enterprise and its Production Chains.
Part IV: The Nature of Responsibility in CSR—Focusing on Regulatory Structures: National, International and Private
Week 8: Responsibility as Transparency: disclosure regimes in national law and the use of market driven management of behavior; the use of transparency and compliance systems by the government to monitor and hold enterprises accountable for violations of law.
Week 9: Self-Regulation; Third Party Certification, and its Legal Effects: Corporate Social Responsibility Codes; what are they and how do they operate; third party certification, legal and social effects; CSR and social credit.
Week 10: Group Presentation 3: From Conception to Operation; How Enterprises Enforce CSR
Part V: Remedy
Week 11: International Soft Law Approaches: the U.N. Guiding Principles for Business and Human Rights; OECD Guidelines for Multinational Enterprises.
Week 12: Legal Effects of CSR Codes: Recent litigation and future strategies with a focus on veil piercing, mutuality of contract, and 3rd party beneficiary defenses.
Week 13: Home state remedies: Remedy from the international perspective; Extraterritoriality and Corruption.
Week 14: Group Presentation 4: Grievance mechanisms, anti-corruption efforts and assessment of reporting
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Detailed Syllabus With Problems and Assigned
Readings:
Part I
Course Introduction
Week 1
Course Introduction—Concepts, Law and
Policy Baselines:
Introduction to the course; CSR definitions and approaches, and the evolution
of the field.
Readings:
Problem
1 (Megamart)
(1) Background: Sheehy, "Defining CSR: Problems and Solutions,"
Journal
of Business Ethics, 131 (2015): 625-648. READ 625-636.
(2)
Public Sector Definitions:
--Communication
From The Commission To The European Parliament, The Council, The European
Economic And Social Committee And The Committee Of The Regions: A
renewed EU strategy 2011-14 for Corporate Social Responsibility
(Brussels, 25.10.2011 COM(2011) 681 final)
-- China Chamber of Commerce of Metals, Minerals
& Chemicals Importers
& Exporters,
"Guidelines for Social Responsibility in Outbound Mining Investments," available
at http://www.srz.com/files/upload/Conflict_Minerals_Resource_Center/CCCMC_Guidelines
for_Social_Responsibility_in_Outbound_Mining_Operations_English_Version.pdf.
--
Embassy of Sweden, “A Study on Corporate Social Responsibility Development and
Trends in China” (2015), http://www.csr-asia.com/report/CSR-development-and-trends-in-China-FINAL-hires.pdf
(3)
Towards definition in the private sector:
Fasken
Martineau: http://www.fasken.com/en/corporate-social-responsibility-law/
Foley
Hoag: http://www.csrandthelaw.com/
Baker
& McKenzie: http://www.bakermckenzie.com/globalcsr/
Corporate
Watch: http://www.corporatewatch.org.uk/?lid=2670
Amnesty
International: http://www.amnesty.org/en/business-and-human-rights
International
Corporate Accountability Roundtable: http://accountabilityroundtable.org/
Klippensteins: http://www.klippensteins.ca/our-practice-areas
Part
II: Unpacking the Corporate in Social Responsibility
Week 2:
The Corporate in CSR; Corporations, enterprises, and systems;
baseline concepts in law and policy.
Readings:
(1)
U.S.
(A) Dodge v. Ford Motor Co., 204 Mich.
459, 170 N.W. 668 (1919);
(B)
Friedman, "The Social Responsibility of Business Is to Increase
Its Profits," New York Times Sunday Magazine, September 13, 1970;
(C)
Robé, "Being Done with Milton
Friedman," Accounting,
Economics, and Law, 2 (No. 2, 2012);
(2)
U.K.:
(A)
Salomon V. Salomon & Co [U.K. 1897]
available http://corporations.ca/assets/Salomon%20v%20Salomon.pdf.
(B)
Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC
307 available http://unisetca.ipower.com/other/cs2/19162AC307.html.
(3) Peter Muchlinski, Multinational Enterprises and the Law (2nd Ed.; Oxford: Oxford
University Press, 2007). PP. 3-8; 33-43.
(4) Backer, Larry Catá, Regulating the
Multinational Enterprise as Entity, as a Network of Links and as a Process of
Production (February 20, 2018). Available at SSRN: https://ssrn.com/abstract=3126866
or http://dx.doi.org/10.2139/ssrn.3126866
(5) U.S.
v. Best Foods, 524 U.S. 51 (1998); or here
(6) Daimler AG
v. Bauman, 571 U.S. ___ (2014).
__________
Week 3
Entities and Relationships: What sort of Entities, systems or
relationships are covered under CSR provisions; and Group Presentation 1 (The
Organization of the Responsible Enterprise).
Readings:
(1) OECD Guidelines on Corporate Governance of State-Owned Enterprises, 2015
Edition; available here.
(Optional; OECD Guidelines for SOEs in
Southern Africa (Nov. 2014).
(2) Report
of the Working Group on the issue of human rights and transnational
corporations and other business enterprises, “State Owned Enterprises must lead
by Example,” A/HRC/32/45 (4 May 2016).
(A) Larry Catá Backer, Between
State, Company, and Market: A Preliminary Engagement with the 2016 Report of
the Working Group on Business and Human Rights and the Issue of State Owned
Enterprises (SOEs) (Novem,ber 2016.)
(3) OECD Guidelines for
Multinational Enterprises (2011 Edition)
(4) Backer, Larry Catá, The Corporate
Social Responsibilities of Financial Institutions for the Conduct of Their
Borrowers: The View from International Law and Standards (April 16, 2017).
Lewis & Clark Law Review, Vol. 21, 2017; Penn State Law Research Paper No.
8-2017. Available at SSRN: https://ssrn.com/abstract=2953738
(5) Sarah Labowitz and Dorothée
Baumann-Pauly, Business
as Usual is Not an Option (NYU Stern Center, 2014).
(6) U.N. Global Compact; https://www.unglobalcompact.org/.
GROUP PRESENTATION 1: A discussion of the
organization and business of assigned MNEs (legal and economic organization,
products and services, location of operation, description of network of
enterprises through which business is organized).
__________
Part
III: The Societal in Corporate Social Responsibility
Week 4
Philanthropy and the legal regulation of
social responsibility:
Considering the legal framework in the U.S. and other states focusing on
philanthropy and notions of corporate waste and corporate compliance.
Readings:
(1)
AP Smith Mfg. Co. v. Barlow, 26 N.J. Super. 106, 97 A.2d 186 (1953)
(2)
Theodora Holdings Corp v. Henderson, 257 A.2d 398 (Del.Ch. 1969)
(3) Kahn v. Sullivan , 594 A.2d 48 (Del
1991)
(4)
Group Assigned Readings: Each group will be assigned one of the readings below;
each is to prepare a 2 page executive summary and then be prepared to discuss
in class.
(A)
The Benefit Corporation: Hiller, J.S., “The Benefit Corporation and Corporate
Social Responsibility,” J Bus Ethics
118: 287-301 (2013).
(B)
Conference Board, Corporate Philanthropy in China (2012) https://www.avpn.asia/wp-content/uploads/2013/01/Corporate-Philanthropy-in-China.pdf
(B)
Jenny Hasrrow, “Contested Perspectives on Corporate Philanthropy,” in Corporate
Social Responsibility: A Research Handbook 234-254 (Kathryn Hayne, Alan Murray
s and Jesse Dillard, Routledge 2013).
(D)
H. Wells, “The Life (and Death?) of Corporate Waste,” Washing and Lee Law
Review 74 (2017). Available https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878091
(E)
Richard Welford, “Corporate Social
Responsibility in Europe, North America and Asia: 2004 Survey Results,” The Journal of Corporate Citizenship 17:
33-52 (2005), available http://search.proquest.com/openview/2ce2cf3adcff4e7341c482facb64333f/1?pq-origsite=gscholar&cbl=43079.
(F)
Amaeshi, Kenneth M. and Adi, A.B. C. and Ogbechie, Chris and Amao, Olufemi O.,
Corporate Social Responsibility in Nigeria: Western Mimicry Or Indigenous
Influences? (2006). Available at SSRN: https://ssrn.com/abstract=896500
or http://dx.doi.org/10.2139/ssrn.896500
(G)
Jingchen Zhao, “The Harmonious Society, Corporate Social Responsibility and
Legal Responses to Ethical Norms in Chinese Company Law,” Journal of Corporate Law Studies 12(1):163-200 (2012)
__________
Week 5
CSR and Human Rights: the development of human rights based
normative systems for the regulation of corporate economic activity.
Readings:
(1) U.N., The U.N. Guiding Principles on
Business and Human Rights, An Introduction (2011) available http://www.ohchr.org/Documents/Issues/Business/Intro_Guiding_PrinciplesBusinessHR.pdf.
(2) UNOHCHR, The Corporate Responsibility
to Respect Human Rights, An Interpretive Guide (HR/PUB/12/02; 2012) available http://www.ohchr.org/Documents/Issues/Business/RtRInterpretativeGuide.pdf pp. 1-25
(3) Surya
Deva, Regulating
Corporate Human Rights Violations: Humanizing Business (London/New York: Routledge, 2012)
(4) Florian Wettstein, “CSR and the Debate
on Business and Human Rights: Bridging the Great Divide,” Business Ethics Quarterly 24(4):730-770 (2012).
(5)
Government of Canada: CSR: An Implementation Guide for Canadian Business (2014)
available https://www.ic.gc.ca/eic/site/csr-rse.nsf/vwapj/CSRImplementationGuide.pdf/$file/CSRImplementationGuide.pdf.
(6)
European Union: EU Commission, “A Renewed EU Strategy 2011-2014 for Corporate
Social Responsibility,” Brussels 25.10.2011 COM(2011) 681 final http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011DC0681&from=EN
__________
Week 6
CSR and Sustainability:
the broadening of corporate responsibility from philanthropy and human
rights to sustainability, understood both as respect for environment and
resource management for the long term.
Readings: :
(1) U.N General Assembly, Transforming our
world: the 2030 Agenda for
Sustainable Development A/RES/70/1 (21
Oct. 2015) available http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E;
U.N. Sustainability Development Goals (https://sustainabledevelopment.un.org/?menu=1300)
(2) (A) U.N. Development Programme Press
Release: Global CEOs sign on to new UN Goals at United Nations Private Sector
Forum (26 Sept. 2015) available http://www.undp.org/content/undp/en/home/presscenter/pressreleases/2015/09/26/-global-ceos-sign-on-to-new-un-goals-at-united-nations-private-sector-forum.html; (B) Impact 2030, Global Goals, available http://impact2030.com/global-goals/.
(3) Seck, S., “Home State
Regulation of Environmental Human Rights Harms as Transnational Private
Regulatory Governance”, (2012) 13 German Law Journal 1363-1385: https://www.germanlawjournal.com/index.php?pageID=11&artID=1492.
(4) John Knox, Report
of the Special Rapporteur on the issue of human rights obligations relating to
the enjoyment of a safe, clean, healthy and sustainable environment
A/HRC/37/59 (24 Jan. 2018).
(5) John Knox, Report
of the Independent Expert on the issue of human rights obligations relating to
the enjoyment of a safe, clean, healthy and sustainable environment,
Compilation of good practices, A/HRC/28/61 (3 Feb. 2015).
(6) John Knox, Framework
Principles on Human Rights and the Environment (2018).
__________
Week 7
Group Presentation 2: Mapping CSR in the Enterprise and its
Production Chains. Each Group will make a detailed presentation on the forms
and character of the CSR activities of their assigned enterprises, including
CSR related activities at every level of the production chain controlled by or
through the apex entity.
__________
Part
IV: The Nature of Responsibility in CSR—Focusing on Regulatory Structures:
National, International and Private
Week 8
Responsibility as Transparency: disclosure regimes in national law and
the use of market driven management of behavior; the use of transparency and
compliance systems by the government to monitor and hold enterprises
accountable for violations of law.
Readings:
(1)
California Transparency in Supply Chains Act of 2010 California Civil Code § 1714.43
(3) Barber v. Nestlé USA,
Inc. No. SACV
15-01364-CJC(AGRx) 9 Dec. 2015 http://www.csrandthelaw.com/wp-content/uploads/sites/2/2016/01/Nestle-dismissal.pdf
(2)
Dodd
Franck ¶1502Conflict Minerals (2010)
(A) National Ass 'n of Mfrs. v. SE.C., 800
F.3d 518, 530 (D.C. Cir. 2014) en banc court of appeals determined that
requiring a company to make a statement in an SEC filing posted to its website
that its products were “not found to be ‘DRC conflict-free.’”
(3)
UK Modern
Slavery Act
(2015) U.K. 2015 c. 30
(4)
France:
Supply Chain Due Diligence Law (2017) [24 March 2017: Constitutional
Council removed the €10 to €30 million civil penalty attached,
liability continues to apply when companies default on their duty of vigilance
obligations, including failing to publish a vigilance plan or faults in its
implementation.]
(5)
Proposal for a Regulation of the European Parliament and of the Council setting
up a Union system for supply chain due diligence self-certification of
responsible importers of tin, tantalum and tungsten, their ores, and gold
originating in conflict-affected and high-risk areas–Outcome of the European
Parliament's first reading (Strasbourg, 13 to 16 March 2017); http://data.consilium.europa.eu/doc/document/ST-7239-2017-INIT/en/pdf;
Press release http://www.consilium.europa.eu/en/press/press-releases/2017/04/03-conflict-minerals/
(6) Corporate Compliance: Fraud Section of the
Criminal Division, U.S. Department of Justice, updated guidelines for the
“Evaluation of Corporate Compliance Programs,” in February, 2017 available https://www.justice.gov/criminal-fraud/page/file/937501/download.
(7)
Group Assigned Readings: Each group will be assigned one of the readings below;
each is to prepare a 2 page executive summary and then be prepared to discuss
in class.
(A) Shift, "Mapping the Provisions of the Modern
Slavery Act Against
the Expectations of the UN Guiding Principles on Business and Human Rights," available at
http://shiftpro ject.org/sites/default/files/Shift_Mapping%20Modern%20Slavery%20Act%
20Against%20UNGPs%20Note_July2015.pdf;
(B) Howitt,
"The EU law on non-financial reporting-how we got here," available at http://www.theguardian.com/sustainable-business/eu-non-financial-reporting-how
richard-howitt?CMP=twt_gu;
(C) Ghuliani,
"India Companies Act 2013: Five Key Points
about India's 'CSR Mandate'," available
at http://www.bsr.org/en/our-insights/blog-view/india-companies-act-2013-five key-points-about-indias-csr-mandate'
(D) L. Backer, “From Moral Obligation to
International Law: Disclosure Systems, Markets and the Regulation of
Multinational Corporations” Georgetown
Journal of International Law, Vol. 39, 2008; L. Backer, “Transparency and
Business in International Law: Governance Beyond Norm and Technique,” in Transparency
in International Law 477-501 (Andrea Bianchi and Anne Peters, eds.,
Cambridge U. Press, 2013).
__________
Week
9
Self-Regulation; Third Party
Certification, and its Legal Effects: Corporate Social Responsibility Codes;
what are they and how do they operate; third party certification, legal and
social effects; CSR and social credit.
Readings:
(1) Backer, Economic
Globalization and the Rise of Efficient Systems of Global Private Law
Making: Wal-Mart as Global Legislator, University of Connecticut Law Review (Vol. 39(4), 2007): 1739-1784.
(2) Supplier Codes of
Conduct. Each group will be
assigned one of the readings below; each is to prepare a 2 page executive
summary and then be prepared to discuss in class:
--Toyota, Supplier CSR
Guidelines https://www.toyota-global.com/sustainability/society/partners/supplier_csr_en.pdf
(3) Each group will be assigned one of the
readings below; each is to prepare a 2 page executive summary and then be
prepared to discuss in class
(A) Etilé, Fabrice and
Teyssier, Sabrina, Signaling Corporate Social Responsibility: Third‐Party
Certification Versus Brands (July 2016). The Scandinavian Journal of Economics,
Vol. 118, Issue 3, pp. 397-432, 2016. Available at SSRN: https://ssrn.com/abstract=2801361
or http://dx.doi.org/10.1111/sjoe.12150
(B) Errol Meidinger, “Forest Certification as a Global Civil Society Regulatory
Institution;” and “Forest Certification as Environmental Law Making by Global Civil
Society.”
(C) Fair Labor
Association, http://www.fairlabor.org/
(D) Backer, L. C.
"Transnational Corporations’ Outward Expression of Inward
Self-Constitution: The Enforcement of Human Rights by Apple, Inc." Indiana
Journal of Global Legal Studies, vol. 20 no. 2, 2013, pp. 805-879. Project
MUSE, muse.jhu.edu/article/538447.
(E) Fair Trade, http://fairtradeamerica.org/en-us/for-business/ways-of-working-with-fairtrade?gclid=CMycwMvOi9MCFdSIswodlNkEuQ.
(F) Teubner, G., Self-Constitutionalizing
TNCs? On the Linkage of "Private" and "Public" Corporate
Codes of Conduct
(4) Backer, Larry Catá, Next Generation Law:
Data Driven Governance and Accountability Based Regulatory Systems in the West,
and Social Credit Regimes in China (July 7, 2018). Available at SSRN: https://ssrn.com/abstract=3209997
or http://dx.doi.org/10.2139/ssrn.3209997
_________
Week 10
Group Presentation 3: From Conception to Operation; How
Enterprises Enforce CSR. Each Group will
make a presentation analyzing in detail the enforcement of CSR, looking
especially toward the use and effectiveness of supplier codes of conduct, third
party certification, Human Rights Due Diligence; programs for internal
grievance and mitigation, for transparency and stakeholder consultation.
__________
Part V Remedy
Week 11
International Soft Law Approaches: the U.N. Guiding
Principles for Business and Human Rights; OECD Guidelines for Multinational Enterprises.
Readings:
(1) OECD
Guidelines for Multinational Enterprises (2011 Edition); procedural
guidance.
(2) Cases:
(A) Araya v. Nevsun
Resources Ltd., Supreme Court of British Columbia 2016 BCSC 1856; https://drive.google.com/file/d/0B5JyyTlmKnOfcVhiMjhFbFl1UGc/view.
(B) Angelica Choc v.
Hudbay Minerals Inc., HMI Nickel Inc. and Compañía Guatemalteca de Níquel
S.A.
(22 July 2013)
(3)
Group Assigned Readings: Each group will be assigned one of the readings below;
each is to prepare a 2 page executive summary and then be prepared to discuss
in class.
(A) Backer, L., 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 258-307 (2009).
(B) Specific Instance
between USW; Sindicato Nacional de Trabajadores Mineros, Metalurgicos,
Siderurgicos y Similares de la Republica Mexicana (Mineros); and Grupo Mexico
and its U.S. subsidiary, ASARCO, LLC for conduct in the United States; https://www.state.gov/documents/organization/261119.pdf.
(C) Specific Instance
between the International Union of Food, Agriculture, Hotel, Restaurant,
Catering, Tobacco and Allied Workers' Associations (IUF) and Starwood Hotels
& Resorts Worldwide for conduct in the Maldives and Ethiopia (2016); https://www.state.gov/documents/organization/257322.pdf.
(D) USNCP Final Statement
on the Specific Instance Between the International Union of Food, Agricultural,
Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) and
PepsiCo, Inc. in India (2016); https://www.state.gov/documents/organization/256049.pdf.
(E) Santner, A., “A Soft
Law Mechanism for Corporate Responsibility: How the Updated OECD Guidelines for
Multinational Enterprises Promote Business for the Future”, 43 Geo. Wash. Int'l L. Rev. 375 (2011).
_________
Week 12
Legal Effects of CSR Codes: Recent litigation and future strategies
with a focus on veil piercing, mutuality of contract, and 3rd party
beneficiary defenses.
Readings
(1) Gibson, Dunnn,
“Corporate Social Responsibility Statements: Recent Litigation and Avoiding
Pitfalls” (2017).
(2) Bondali v.
Yum! Brands, Inc., 620 Fed. Appx. 483, 489 (6th Cir.
2015).
(3) Sud v. Costco
Wholesale Corporation, No. 4:15-cv-03783, 2017 WL 345994, at *5 (N.D. Cal. Jan.
24, 2017).
(4) Hodson v. Mars,
Inc./Mars Chocolate North America, LLC, No. 15-cv-04450, 2016 WL 627383, at *6
(N.D. Cal. Feb. 17, 2016)
(5) Jane Doe I et al. v.
Wal-Mart Stores Inc., No. 08-55706 (9th Cir., 2009) http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1214&context=globaldocs.
Optional Background: Katherine
E. Kenny, Code or Conduct: Whether Wal-Mart's Code of Conduct Creates a
Contractual Obligation between Wal-Mart and the Employees of Its Foreign
Suppliers, 27 Nw. J. Int'l L. & Bus.
453 (2006-2007)) http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1652&context=njilb. U.S: Chamber of Commerce brief on
appeal--http://www.chamberlitigation.com/sites/default/files/cases/files/2006/Doe%2C%20et%20al.%20v.%20Wal-Mart%20Stores%2C%20Inc.%20%28NCLC%20Brief%29.pdf.
(6) U.K:;
(A) Chandler
v Cape PLC [2012] EWCA Civ 525
(B) Lubbe and Others and
Cape Plc. and Related Appeals [2000] UKHL 41 (20th July, 2000) available http://www.bailii.org/uk/cases/UKHL/2000/41.html;
(C))
(7) Anna Beckers, Enforcing Corporate Social Responsibility
Codes: On Global Self-Regulation and National Private Law (Hart, 2015).
(8) Backer, L., "A Lex
Mercatoria for Corporate Social Responsibility Codes Without the State?: A
Critique of Legalization Within the State Under the Premises of Globalization,"
Indiana Journal of Global Legal Studies 24(1):115-146 (2017)
__________
Week 13
Home state remedies: Remedy from the international
perspective; Extraterritoriality and Corruption
Readings:
(1) Report of the Working Group on the issue of
human rights and transnational corporations and other business enterprises, All
Roads Lead to Remedy,” A/72/162 (18 July 2017)
(A) Larry Catá Backer, “All
roads to remedy”: Reflections on 2017 Report of the Working Group on the issue
of human rights and transnational corporations and other business enterprises
(A/72/162) (Links to an external site.)Links to an external site.
(2)
Extraterritoriality; Kiobel v. Royal
Dutch Petroleum Co., 133 S.Ct. 1659 (2013)
(2) Jesner v.
Arab Bank, No. 16-499 (2018),
(A)
Larry Catá Backer, Brief
Thoughts on Jesner v. Arab Bank, PLC, 584 U.S. — (2018): The State of Judicial
Remedies for Corporate Liability for Human Rights Violations, CPE
Working Paper 4/3 (April 2018). Download HERE: Brief
Thoughts on Jesner v
(3)
Extraterritoriality Group Assigned Readings: Each group will be assigned one of
the readings below; each is to prepare a 2 page executive summary and then be
prepared to discuss in class.
(A) Extraterritoriality
and the constraints of national jurisdiction: Surya Deva, “Corporate Human Rights Violations: A Case
for Extraterritorial Regulation’” in Christoph Luetge (Editor-in-Chief), Handbook
of the Philosophical Foundations of Business Ethics (Springer, 2012), pp.
1077-1090.
(B) Sara L. Seck, “Conceptualizing the
Home State Duty to Protect Human Rights”, in Corporate Social And Human Rights Responsibilities: Global Legal And
Management Perspectives (Karin
Buhmann, Lynn Roseberry, Mette Morsing, eds., Macmillan, 2010), available https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729930.
(C) Larry
Catá Backer, “Extraterritoriality and
Corporate Social Responsibility:
Governing
Corporations, Governing Developing
States.” Law at the
End of the
Day. (Thursday, March
27, 2008) Available at http://lcbackerblog.blogspot.com/2008/03/extraterritoriality-and-corporate.html.
(D)
Daniel Augenstein and David Kinley, “Beyond the 100 Acre Wood: In which
international human rights law finds new ways to tame global corporate power,” International
Journal of Human Rights 19(6):828-848 (2015).
(4)
Corruption; Group Assigned Readings: Each group will be assigned one of the readings
below; each is to prepare a 2 page executive summary and then be prepared to
discuss in class.
(A) Foreign Corrupt
Practices Act 15 U.S.C. § 78dd-1, et seq.
(B) SEC v. Eli Lilly No.
12-2045 (D.D.C. 2012) https://www.sec.gov/litigation/complaints/2012/comp-pr2012-273.pdf
(C) Joel M. Cohen &
Daniel P. Harris, Gibson, Dunn & Crutcher LLP, “Coerced Corporate Social
Responsibility and the FCPA,” The
International Comparative Legal Guide to Business Crime 2016: A practical
cross-border insight into business crime (6th Edition 2016) http://www.gibsondunn.com/publications/Documents/Cohen-Harris-Coerced-Corporate-Social-Responsibility-and-the-FCPA-GLG-Oct-2015.pdf.
(D) Amol Mehra and Ajoke
Agbool, "The Corporate Responsibility to Prevent
Corruption." Forbes.com
(July 1, 2011). https://www.forbes.com/sites/csr/2011/07/01/the-corporate-responsibility-to-prevent-corruption/#41bb9e2dae0c.
(E) Joel M. Cohen &
Daniel P. Harris, Gibson, Dunn & Crutcher LLP, “Coerced Corporate Social
Responsibility and the FCPA,” –
(F) Backer, Larry
Catá, The
Evolving Relationship between TNCs and Political Actors and Governments Research
Handbook on Transnational Corporations, Alice de Jong and Roman Tomasic, eds.,
Edward Elgar Publishing Limited, 2015
(G) Brodie, D., Enterprise Liability and the Common Law
(Cambridge U. Press 2010).
(H) Seck, S., “Conceptualizing the Home State Duty to
Protect Human Rights”, in Karin Buhman, Mette Morsing, & Lynn Roseberry,
eds., Corporate Social and Human Rights
Responsibilities: Global Legal and Management Perspectives, (Palgrave
Macmillan, 2010) 25-51.
(I) Richard Meeran,
“Access to Remedy: The United Kingdom Experience of MNC Tort Litigation for
Human Rights Violations,” in Human Rights Obligations of Business: Beyond the
Corporate Repsonsibility to Respect (Surya Deva and David Bilchitz, eds.
Cambridge 2013) pp. 378-402.
__________
Week 14
Group Presentation
4: Grievance mechanisms, anti-corruption efforts and assessment of reporting.
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