Symposium Papers

Below are links to draft papers presented at the symposium. All the papers posted here are working drafts. Final versions will be published in the Santa Clara Journal of International Law in fall 2010. Abstracts of some of the papers are included below.

José E. Alvarez, Are Corporations “Subjects” of International Law?

Adefolake Adeyeye, The Role of Global Governance in CSR

Charles H. Brower, II, Corporations as Plaintiffs Under International Law: the Quest for Narratives About Investment Treaties

Douglas M. Branson, Holding Multinational Corporations Accountable? An Achilles Heel in Alien Tort Claims Act Litigation

Larry Catá Backer, The United Nations’ “Protect-Respect-Remedy” Project : Operationalizing a Global Human Rights Based Framework for the Regulation of Transnational Corporations

The United Nations’ "Protect, Respect, and Remedy” Human Rights Project: On Operationalizing a Global Framework for the Regulation of Transnational Corporations

Larry Cata Backer

The advent of contemporary economic globalization has substantially altered the field and regulatory environment in which economic enterprises operate. Once wholly creatures of the states that recognized and regulated their existence, economic enterprises today are increasingly capable of arranging their activities beyond the regulatory scope of any state or groups of states. That gap between operational and regulatory capacity has produced a sustained reaction. At the national level, efforts have been made to extend the reach of national law beyond the territorial borders of states, to revamp corporate law principles to reach overseas operations of domestic corporations, to make jurisdiction over foreign related entities easier to attain and to impose some form of enterprise liability. At the same time substantive standards have been emerging at the national and international level. In the form of corporate social responsibility, disclosure and reporting, sustainability, corporate citizenship and similar approaches, state and non-state actors have sought to create substantive rules for the regulation of global operations of transnational corporations and related entities. At the international level, the United Nations famously sought to draft a set of Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. The abandonment of that attempt at supra-national governance served to reframe international efforts. This paper examines one of the more important efforts to elaborate a transnational regulatory framework for transnational corporations and other business enterprises—the "protect, respect, and remedy” framework developed by John Ruggie, the Special Representative Of The Secretary-General On The Issue Of Human Rights And Transnational Corporations And Other Business Enterprises. The three parts of the framework—the state obligation to protect, the corporate obligation to respect and the duty to remedy—posits a system in which national legal orders incorporate and apply national and international human rights norms as enterprises implement global systems of institutionalized social norms, and both provide mechanisms for remedy of breaches of these overlapping but not identical legal and governance systems within their respective jurisdictions. The conceptual grounding of the framework is first explored on its own terms. The framework’s viability as a transnational autonomous regulatory soft law system is then explored. The resulting issues of implementation under the framework are then examined, as national systems transpose international legal obligations in the governance of enterprises that are themselves independently subject to global systems of social norms, both of which are bound up in a remedial matrix. The paper ends by examining the implications for the regulation of corporations raised by the proposed construction of this polycentric multilevel law-governance system.

The Role of Global Governance in CSR

Adefolake Oyewande Adeyeye

Global governance aims to address common global concerns through the activities of governments, intergovernmental networks and non-state actors. These actors are involved in interactive decision making and considerations of multiple policies and practices in the creation of instruments to address global concerns. Such global concerns include the elimination of corruption, human rights and environmental abuses. Global governance gives legitimacy to the multiple actors on the global scene who ordinarily will have no international legal personality. Global governance can therefore be seen as a means of by-passing some of the structural problems of international law in relation to non-state actors. International law is evolving to include global governance and its multitude of players. In the pursuit of profit, corporations encounter social and ethical problems. These problems include corrupt giving, human rights and environmental abuses. They have brought Corporate Social Responsibility (CSR) to the forefront and placed it firmly under global governance. CSR attempts to regulate corporate behavior to ensure corporations carry out their activities in consideration of multi-stakeholder interests and the impact such activities have on the social, political, economic and developmental aspects of society. This paper will consider whether global governance is leading merely to a multiplicity of rules for corporate responsibility or a convergence of such rules; and whether global governance is leading to improvements in CSR. Is the bigger role non-state actors are playing in global governance impacting CSR? What role does global governance play in the regulation of international business for social responsibility?

Corporations as Plaintiffs Under International Law:
The Quest for Narratives to Guide the Application of Investment Treaties

Chip Brower

When talking about corporations as defendants under international law, the narrative and the legal framework seem clear even if the outcome does not. According to the narrative, multinational corporations involved in mineral extraction collaborate with repressive governments to terrorize populations, instituting forced labor, attacking those who resist, and spoiling the environment in ways that destroy traditional cultures and, perhaps, the conditions that support human life. Relying on the Alien Tort Statute, victims invoke the jurisdiction of federal courts to pursue remedies for state-sponsored injuries committed abroad against aliens, often by foreign corporations. Although the results may vary from case to case, the storyline and the analytical template encompass familiar terrain. In other words, while the conclusion remains unpredictable, one knows how to begin and to proceed with a discussion of corporations as defendants under international law.

For discussions of corporations as plaintiffs under international law, only the point of departure seems clear: investment treaties represent the most prominent gateway into an international legal process that affords corporations wide opportunities to assert rights and to seek remedies for sovereign acts harmful to investments in foreign states.  Having recognized their potential significance, however, one struggles to find appropriate narratives to explain the function and, thus to guide the application of investment treaties.  Moving beyond analogies to international commercial arbitration, inter-state arbitration, and the law of sovereign immunity (which tend to emphasize procedural issues), one finds at least three templates that promise to explain the functions of investment treaties.  First, drawing on domestic jurisprudence, one might regard investment treaties as elaborate choice-of-law and forum-selection clauses designed to promote autonomy and certainty in international business.  Second, drawing on scholarship, one might describe investment treaties as the functional equivalent of human rights treaties designed to protect foreign investors from malfeasance by host states.  Third, drawing on journalism, commentary, and the campaigns of advocacy groups, one might finally portray investment treaties as dangerous tools that empower foreign corporations to intimidate governments or to neutralize the economic consequences of regulation.  While plausible up to a point, each comparison requires a level of exaggeration that becomes impossible to maintain.  However, by pushing each comparison to the point of failure, one reveals a different and comparatively modest narrative about the proper role of investment treaties.

The Achilles Heel of Alien Torts Claims Act Litigation

Douglas Branson

Beginning with Doe/Roe v. Unocal, filed in California courts, citizens of many nations (aliens) have come to U.S. courts seeking redress for torts committed against them at various locations around the world.  Defendants need not be U.S. citizens either, although some (Exxon, Chevron, Dole, Chiquita) are while others (Nestle, Royal Dutch, Rio Tinto) are not.  The only necessary is gaining territorial jurisdiction in the U.S. over the defendant, which may be satisfied by so-called transient jurisdiction.  Congress originally enacted the Alien Tort Claims Act as part of the Judiciary Act of 1789 to enable victims of piracy on the high seas (many times aliens) and ambassadors (aliens by definition) to bring tort claims in the U.S. courts.  For nearly 200 years, the statute sat dormant until the Filartiga case in the Second Circuit.  Now the statute has been discovered as one of the broadest grants of subject matter jurisdiction existent.  There are now pending approximately 40 Alien Tort Claims Act cases in the U.S. courts, many against multinational corporations accused of using as security forces Third World nations’ army contingents or police.  The claims consist of human rights violations (forced labor, rape, murder) as well as environmental torts.  The author, a noted corporate law scholar, served as consultant to and expert witness for plaintiffs in Unocal.  He will describe not only the Alien Tort Claims Act aspects of this litigation but the less obvious but necessary corporate law aspects, such as corporate disregard, parent-subsidiary relationships, enterprise liability, and agency and joint venture theory.  These are aspects plaintiffs’ attorneys seldom analyze before bringing suit attempting to hold multinational corporations accountable.