Rights, Responsibilities and Regulation of International Business

1、rights, responsibilities and regulation of international businesssol picciotto*sol picciotto is director of research and of the postgraduate programme in international business and corporate law at the lancaster university law school. he has previously taught at the university of warwick school of l

2、aw and the faculty of law, dar es salaam, and has been a visitor at nagoya university and the european university institute, florence. he is a member of the editorial committee and was a founding editor of social & legal studies, and the author of international business taxation, and numerous edited

3、 books and journal articles on various aspects of international business regulation.this essay discusses the paradox of the emergence of corporate codes of conduct in the 1990s, following pressures from consumer and labor activism, in a period of more general liberalization of international investme

4、nt leading to deregulation. it suggests that the advantages of flexibility and adaptability to specific circumstances offered by such codes are counterbalanced by their self-selected content and inadequate enforcement. rejecting the assumption that there is a sharp distinction between voluntary stan

5、dards and binding law, the essay analyzes various ways of grounding codes in legal obligations. it proposes that a safer and more dependable environment for international investment could be provided by a framework agreement, which would link binding standards for corporate social responsibility in

6、key areas, such as combating bribery and cooperation in tax enforcement, with traditional investor rights based on investor protection and liberalization rules.i.introductionover the past decade, there has been an intriguing dual movement in the development of the forms of regulation of business in

7、the global economy. since the 1980s the dominant trend has been liberalization, i.e., the relaxation or removal of national controls on international capital movements. it seemed to many that business firms and investors were close to attaining the goal of a world market, in which they could be free

8、 to manage their assets and activities globally without hindrance from state legal requirements. this neo-liberal form of economic globalization was hailed by its advocates and excoriated by its critics.however, by at least the mid-1990s, it was becoming apparent that the processes at work were more

9、 complex. although liberalization has generally entailed the removal of barriers to market access and the ending of direct forms of state intervention, it has frequently been accompanied or succeeded by the development of new forms of regulation or regulatory reform. the result has been the creation

10、 of a complex and multi-layered regulatory framework for the governance of global economic activity. as i have argued elsewhere,.see sol picciotto, networks in international economic integration: fragmented states and the dilemmas of neo-liberalism, 17 nw. j. intl l. & bus. 1014 (1996/97); sol picci

11、otto, linkages in international investment regulation: the antinomies of the draft multilateral agreement on investment, 19 u. pa. j. intl. econ. l. 731 (1998) hereinafter picciotto, linkages. these new forms of management of the world economy signal the breakdown of the classical liberal internatio

12、nalist system, based on national sovereignty and coordinated by a loose framework of international rules and intergovernmental organizations. there has been a transition to denser and more fragmented regulatory networks with new types of linkages, including combinations of formal and semi-formal leg

13、al arrangements (“hard” and “soft” law). yet, far from constituting a smooth transition to a neo-liberal order, these forms are contested and conflict-ridden processes. the institutional and legal frameworks for managing and legitimating economic activities are an important focus of this contestatio

14、n.this essay analyzes the interaction between the development of international legal provisions for investment protection and liberalization and the emergence of codes of conduct for international business. the recent proliferation of corporate social responsibility (“csr”) codes and standards has b

15、een matched only by the boom in writings on the subject.see, e.g., virginia haufler, a public role for the private sector: industry self-regulation in a global economy (2001); corporate responsibility and labour rights (rhys jenkins et al. eds., 2002) hereinafter corporate responsibility. this essay

16、 will focus mainly on the interaction between these codes and formal legal requirements, at national and international levels. it starts from the perspective that the recent spate of voluntary corporate codes for transnational corporations (“tncs”) must be understood in the context of the changing e

17、nvironment for foreign direct investment (“fdi”), including shifting patterns of national and international regulation. hence, although corporate codes have a legitimate place in helping to ensure compliance with standards through corporate networks, this essay suggests that they should be more firm

18、ly anchored within a broader regulatory framework that establishes obligations as well as rights for business. such a framework could be based on new approaches to combining binding hard law with non-binding soft law standards through a framework convention.the author does not discuss here the appro

19、priate institutional location for the negotiation or implementation of such a convention. the world trade organization (“wto”) working group on the relationship between trade and investment has conducted some initial discussions on a possible investment treaty, although many developing countries con

20、sider the wto to be an inappropriate forum for such a treaty. they have also pointed out:the proponents of a multilateral framework on investment in the wto have been seeking binding rights of foreign investors that the host member governments should agree to provide. however, not much discussion ha

21、s taken place in the working group on what could be the obligations on the part of foreign investors or the home governments. see working group on the relationship between trade and investment, communication from china, cuba, india, kenya, pakistan and zimbabwe, para. 10, wt/wgti/w/152 (nov. 19, 200

22、2). it would certainly go far beyond the mandate of the wto as it now stands to take responsibility for the more comprehensive framework proposed here.ii.transnational corporations and international law: a brief reviewinternational business has a long history, and even the currently dominant form of

23、 the tnc goes back to the end of the nineteenth century. however, it is only since the 1960s that there has been an increasing tension between the global reach and visibility of tncs and the dualist hierarchy of national and international law established in the classical liberal period. this dualism

24、 regards corporations as formally private legal persons, and hence subjects of national law, but not international law, which directly binds only states. however, the size and importance of tncs made them a prime target for regulation, in both home and host states. this prominence exposed them to mu

25、ltiple and sometimes conflicting regulatory requirements, which came to the fore in the 1960s. in a period of lively debate, a variety of proposals were advanced. perhaps most radically, george ball, formerly a u.s. under-secretary of state and united nations (“u.n.”) representative and currently th

26、e chairman of lehman brothers international, proposed the “denationalization” of tncs.george w. ball, cosmocorp: the importance of being stateless, 2 colum. j. world bus. 25, 2829 (1967) hereinafter ball, cosmocorp. see generally global companies: the political economy of world business (george w. b

27、all ed., 1975); charles p. kindleberger, a gatt for foreign investment: further reflections (1980). he argued that a supranational citizenship for tncs should be provided by treaty, since, in his view, the pragmatic policy followed by tncs of obeying local laws in each country where they operate wou

28、ld not resolve the “inherent conflict of interest between corporate managements that operate in the world economy and governments whose points of view are confined to the narrow national scene.”.ball, cosmocorp, supra note 4, at 28.balls proposal remained an abstract one, and instead, a more pieceme

29、al approach was adopted through international organizations. pressures to adopt global standards of responsibility for tncs were generally channeled into the formulation of non-binding guidelines or codes by intergovernmental organizations.many of these are conveniently gathered together in united n

30、ations conference on trade and development, international investment instruments: a compendium (1996). some had a broad scope, such as the international labor organization (“ilo”) tripartite declaration of 1977,.international labour organization, tripartite declaration of principles concerning multi

31、national enterprises and social policy, 17 i.l.m. 422 (nov. 16, 1977). the 1976 guidelines of the organisation for economic co-operation and development (“oecd”),.the oecd guidelines for multinational enterprises have been reissued and amended following reviews in 1979, 1982, 1984, 1991 and 2000. se

32、e organisation for economic co-operation and development, directorate for financial, fiscal and enterprise affairs, committee on international investment and multinational enterprises, the oecd declaration and decisions on international investment and multinational enterprises: basic texts at 20, oe

33、cd doc. daffe/ime/(2000) (2000). and the aborted u.n. code of conduct for tncs.draft united nations code of conduct on transnational corporations, u.n. escor, spec. sess., supp. no. 7, annex ii, u.n. doc. e/1983/17/rev.1 (1983). others had a more specific regulatory focus, such as the set of princip

34、les for the control of restrictive business practices of 1980.the set of multilaterally agreed equitable principles and rules for the control of restrictive business practices, u.n. conf. on restrictive business practices, 35th sess., u.n. doc. td/rbp/conf/10 (1980). or the world health organization

35、s (“whos”) international code of marketing of breast-milk substitutes of 1981,.world health assembly, international code of marketing of breast-milk substitutes, u.n. doc. a34/vr/15 (1981). which was aimed at specific industry practices.see judith richter, holding corporations accountable: corporate

36、 conduct, international codes and citizen action ch. 4 (2001). for a collection of articles on codes for international business, see generally regulating international business: beyond liberalization (sol picciotto & ruth mayne eds., 1999) hereinafter regulating international business.not surprising

37、ly, the impact of these instruments greatly depended on the effectiveness of the mechanisms for monitoring and ensuring compliance, and especially on the strength of social pressures brought to bear mainly through civil society organizations, such as trade unions and other social movements. too ofte

38、n the fact that these codes were not legally binding was used to justify failure or even refusal to back them up with adequate procedures for monitoring compliance or dealing with alleged violations.despite pressures from its trade union advisory committee (“tuac”), the oecds committee on internatio

39、nal investment and multinational enterprise (“ciime”) insisted that the oecd guidelines should remain non-binding and that the ciime should not reach conclusions on the conduct of individual enterprises. the ciime wanted to avoid being seen as a “judicial or quasi-judicial forum.” see org. for econ.

40、 co-operation & dev., international investment and multinational enterprises: review of the 1976 declaration and decisions para. 84 (1979) hereinafter review of the 1976 declaration and decisions. at most, the ciime was willing to use the details of specific cases as illustrations of problems arisin

41、g under the oecd guidelines and issue “clarifications” where appropriate. id. for an account and discussion of the early operation of the oecd guidelines, see r. blanplain, the oecd guidelines for multinational enterprises and labour relations 19761979: experience and review (1979) hereinafter exper

42、ience and review; r. blanplain, the oecd guidelines for multinational enterprises and labour relations 19791982: experience and mid-term report (1983). thus, “non-binding” was assumed to mean “aspirational,” which is not at all the same thing.the ciime described the oecd guidelines as “an efficient

43、and realistic framework for further encouragement of the contribution which multinational enterprises can make to economic and social progress and for the reduction and resolution of the difficulties to which the operations of multinational enterprises may give rise.” review of the 1976 declaration

44、and decisions, supra note 13, para. 7.in the meantime, states sought to define and assert their sovereignty to regulate economic activities taking place within their national jurisdiction. capital-importing host states, especially developing countries (many of which had recently gained political ind

45、ependence), sought to attain economic independence by asserting their right to control foreign investment.see, e.g., rahmatullah khan, the right of a state to choose its social and economic system, in international law and development 31 (paul de waart et al. eds., 1988); subrata roy chowdhury, perm

46、anent sovereignty over national resources: substratum of the seoul declaration, in international law and development, supra, at 59. this desire was most clearly expressed in the charter of economic rights and duties of states (“cerds”) of 1974.charter of economic rights and duties of states, g.a. re

47、s. 3281, u.n. gaor, 29th sess., supp. no. 31, at 50, u.n. doc. a/9631 (1975) hereinafter cerds. article 2(a) of the cerds asserts the primacy of national jurisdiction and denies the existence of any obligation to grant preferential treatment to foreign investment.id. art. 2(a). this charter expresse

48、d the formal right of states to assert total regulatory power over economic activity within their borders, including acquiring or limiting ownership rights.id.not surprisingly, international investors and their home states became wary of the intentions of host states. bilateral investment treaties (

49、“bits”) emerged as a means of providing basic guarantees.see jeswald salacuse, bit by bit: the growth of bilateral investment treaties and their impact on foreign investment in developing countries, 24 intl law. 655, 65960 (1990). however, on the whole, they did not restrict the direct regulatory po

50、wers of host states. most bits permit the host state to regulate entry, to impose ownership limitations or conditions, and to specify performance requirements.for a general analysis, see r. dolzer & margrete stevens, bilateral investment treaties (1995). for coverage of more recent growth, see unite

51、d nations conference on trade and development, bilateral investment treaties in the mid-1990s (1998) hereinafter unctad. indeed, one analyst has described them as embodying “nationalism behind the liberal faade.”.kenneth j. vandevelde, the political economy of a bilateral investment treaty, 92 am. j

52、. intl l. 621, 635 (1998). see generally kenneth j. vandevelde, investment liberalization and economic development: the role of bilateral investment treaties, 36 colum. j. transnatl l. 501 (1998). hence, developing countries, including many in east asia, have been willing to negotiate such agreement

53、s, even though these countries continued to consider controls over inward investment important to ensure that it contributed to economic development.see unctad, supra note 20, at 6.however, during the 1980s, pressure grew for countries wishing to attract investment to adopt a completely “open-door”

54、policy, and to abandon access controls, ownership restrictions, and performance requirements.see andrew t. guzman, why ldcs sign treaties that hurt them: explaining the popularity of bilateral investment treaties, 38 va. j. intl. l. 639, 64142, 65556 (1998). this stance was embodied in the u.s. mode

55、l bit,.united states prototype treaty concerning the reciprocal encouragement and protection of investments, in u.n. centre on transnational corp., bilateral investment treaties 123 (1988). which required pre-entry national treatment, although this was subject to specific exclusions in the actual tr

56、eaties.thus, for example, the bit signed by the u.s. with egypt provided that:notwithstanding the preceding provisions of this article, each party reserves the right to maintain limited exceptions to the standard of national treatment otherwise required concerning investments or associated activitie

57、s if such exceptions fall within one of the sectors listed in the annex to this treaty. both parties hereby agree to maintain the number of such exceptions to a minimum. in addition, each party shall notify the other party of any specific measures which constitute exceptions to the standard of natio

58、nal treatment provided herein. in no event, however, shall the treatment to be accorded pursuant to any exception be less favorable than that accorded in like situations to investments and associated activities of nationals or companies of any third country. moreover, no exception, within the sector

59、s contained in the annex, introduced after the date of entry into force of this treaty shall apply to investments of nationals or companies of the other party existing in that sector at the time the exception becomes effective.treaty concerning the reciprocal encouragement and protection of investments, sept. 29 1982, egypt-u.s., art. ii(3), 21 i.l.m.