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Johns, Fleur --- "Theorizing the Corporation in International Law" [2014] UNSWLRS 21

Last Updated: 21 May 2014

Theorizing the Corporation in International Law

Fleur Johns

Citation

This paper is forthcoming in Florian Hoffmann & Anne Orford (Eds), The Oxford Handbook of International Legal Theory (Oxford: Oxford University Press). This paper may also be referenced as [2014] UNSWLRS 21.

Abstract

The corporation has long been a feature of international legal practice and argument. However, relatively little by way of explicit theorization of the corporation has been done in international legal writing. Rather, this theorization has tended to take place as a dimension of practice, en route to some other scholarly or regulatory objective, and the corporate form has commonly been approached on the basis of its similarity to, or influence upon, some other feature or agent of the international legal order (or vice versa). This paper argues that the paragnostic way in which international lawyers have envisaged the corporation on the global plane has contributed to the sense of power, autonomy and coherence with which the corporation has been ‘naturally’ invested in much international legal writing, the promise the corporation is often deemed to hold for international legal renewal, and the influence that the corporate model has exerted as a benchmark for global decision-making across a range of settings. Through an oblique, analogical approach to corporations, international legal writing has kept alive the prospect of the corporate form delivering some regenerative supplement to the international legal order, even while routinely identifying the corporation with global legal dysfunction or deficiency. This chapter examines and compares patterns of thought along these lines in two areas of international legal doctrine, practice and scholarly work: international investment law and international human rights.

Introduction

At the signing of the Dutch–Spanish Peace of Münster in 1648—a critical moment in the modern international legal order’s creation story—corporations were already on the international legal scene.^[1] Negotiators may not have come to the table in Münster were it not for the ‘“glorious” deeds’ of the Dutch East India Company (the ‘VOC’) and West India Company (the ‘WIC’) in challenging Iberian power globally during preceding decades.^[2] These deeds had an explicit international legal dimension. The 1602 VOC Charter, for instance, empowered the corporation to ‘enter into commitments and enter into contracts with princes and rulers . . . in order to build fortifications and strongholds’.^[3] It charged the corporation with ‘keep[ing] armed forces, install[ing] Judicial officers and officers . . . so to keep the establishments in good order, as well as jointly ensure enforcement of the law and justice, all combined so as to promote trade’.^[4] The conduct of international legal affairs by or through such corporate entities was, nevertheless, already the subject of a ‘lively public debate’ in the seventeenth century.^[5]

If the corporation has long been a feature of international legal practice and argument, it is nonetheless one upon which public international lawyers have tended to look askance. It is a stock observation of international legal writing that the corporation is addressed only indirectly by public international law.^[6] International legal writings have often approached the corporate form on the basis of its similarity to, or influence upon, some other feature or agent of the international legal order (or vice versa). Relatively little by way of explicit theorization of the corporation has been done in international legal writing.^[7] Rather, this theorization has tended to take place as a dimension of practice, en route to some other scholarly or regulatory objective.

Theorization as a dimension of practice may be a feature of international legal work more broadly, reflective of international lawyers’ preoccupation with sustaining their discipline’s ‘move[ment] from theory to practice, from differentiation to regulation’.^[8] International lawyers’ relative inattention to the corporate form might also be traceable to historical cleavages between public and private international law, and tendencies to distinguish the professional sensibilities of lawyer-diplomats from those of merchants, or to divorce politics from economics.^[9] Whatever its provenance, in this instance, the tendency for theorization-while-focused-elsewhere appears to have had particular implications for the way that corporations have been characterised in international legal work. It has done so, especially, with regard to the power, autonomy and coherence with which the corporation has been ‘naturally’ invested in much international legal writing, the promise the corporation is often deemed to hold for international legal renewal, and the influence that the corporate model has exerted as a benchmark for global decision-making across a range of settings.

This chapter will redescribe this oblique theorization of the corporation in public international law. It will begin by outlining some generic characterisations of the corporation in international legal writing, before turning to two areas of international legal doctrine, practice and scholarly work: international investment law and international human rights. In both of these areas, the corporation has often been identified with potential dysfunction within, or subtraction from, the international legal order. International legal engagement of the corporation has, accordingly, been identified with the discipline’s corrective realignment, rejuvenation or augmentation.^[10] So figured, the corporation has been central to the maintenance of prospects of, and aspirations for, ‘governance fusion’ on the global plane.^[11] Precisely because of the paragnostic way it has been known to international law, the corporation has been a pivotal figure in international legal knowledge practice.

Soliciting the Corporation in International Law

Global competencies attributed by law to the corporation over many centuries span a considerable range of hybrid combinations.^[12] Nonetheless, public international lawyers tend to locate the corporation primarily in the context of relatively successful, large-scale, private commercial enterprise. Little attention has been paid to the role of municipal corporations in global legal affairs.^[13] Scant ink has been spilled on the significance of small- and medium-sized business corporations in the international legal order.^[14] Beyond doctrinal discussion in the field of investment and trade law and with regard to sovereign immunity, state-owned enterprises have not featured prominently in international legal analyses of global corporate power.^[15] Corporations that are facing insolvency or are otherwise in a condition of frailty do not commonly appear on the public international legal radar.^[16] Rather, when international law has turned its attention to global commercial activity, large, well-funded, non-state-owned multinational corporations and corporate groups have tended to fill its field of vision.

That this is the case may, itself, be unsurprising. The register of states commonly appearing in international legal debate is similarly selective, sovereign equality notwithstanding.^[17] The fact that international legal understandings of the corporation exhibit presumed limits and loadings is not so much noteworthy as the lack of any articulation or defence of those limits and loadings. In international legal writing, it is more or less taken for granted that everyone knows what we are talking about when we invoke ‘the corporation’. It is presumed, moreover, that the corporate form is power-laden. International legal language has tended to solicit the corporation as powerful and entitled relative to other figures of public international law.^[18] This chapter will do likewise, in so far as it takes as given that vast concentrations of capital enjoy corporate safe harbour around the world, with international legal support. Nonetheless, this chapter’s redescription is directed towards re-envisaging the corporation in international law in ways that do not necessarily elicit forbearance or submission.

Paraphrasing the Corporation in International Law

Across international legal fields of vision and work, the corporation has featured in three main ways: as a quasi-citizen or analogue to the individual, as a para-statal entity, and as a point of comparison or guidance for international institutions. In the first instance, the corporation is analogized to an individual and assimilated, for international legal purposes, to the legal order of one or more nation state(s). In the second, the corporation attracts international legal notice on the basis of its role in the re-routing or re-articulation of state power. In the third, the corporation registers as an archetype of international coordination . In particular, in this third instance, corporate conduct comes to serve as a powerful comparator and benchmark for the work and management of international organisations.

Para-individualism

Individualistic representations of the corporation proceed from the attribution of legal personality to the corporate entity—that is, its capacity to bear rights and responsibilities in its own name. As a ‘person’, read in the singular, the corporation’s primary hook into the international legal system is nationality. Through conferral of nationality, the task of both regulating and empowering the corporation is made to rest with the domestic legal order of one or more state(s). This is the corporation’s designated touchstone or point of lift-off for international legal purposes.^[19] Those who suffer from international legal wrongdoing committed by a corporate person must, accordingly, look to national legal orders for remedy.^[20] Likewise, the corporation itself, and those who hold equity in it, must usually appeal to the state under the laws of which the corporation is organised to pursue international legal grievances on its or their behalf, by exercising a right of diplomatic protection.^[21]

Where a corporation would opt in and out of national legal orders, for various reasons, it is in national laws governing contract, taxation, conflict of laws, and the like — harmonised, perhaps, by international agreement or international institutional influence — that the corporation is expected to seek and articulate that power of regulatory selectivity. Such ‘housing’ of global corporate activity in the legal order of one or more nation state(s) is acknowledged to be a matter of convenience or approximation, as is a corporation’s treatment as being equivalent to other nationalised persons.^[22] Nonetheless, the attribution of nationality to corporations has come to be seen by many as indispensable, for associated prospects of capital accumulation, regulatory competition, or claim, even as corporate nationality has remained controversial.^[23]

This purposive, methodologically individualist approach to corporate characterisation in international law may be linked to successive efforts, in Anglo–American corporate law doctrine, to theorise the corporation in ways consonant with individualism.^[24] Like corporate law, public international law has been pressed to integrate the corporate unit ‘with a wider legal fabric that assumes individual actors, makes them responsible, and seeks to facilitate their development’.^[25] As in corporate law theory, however, the identification of corporations with individuals has always been problematic, not least because of ‘the corporation’s inability to replicate exactly [any] individual economic actor’s profit-maximizing behaviour pattern’.^[26] In corporate law, this difficulty contributed to the popularity of managerialist conceptions of corporate structure prevalent throughout much of the twentieth century.^[27] In international law, individualist understandings of the corporation have persisted alongside continuing efforts to embed corporations in a state-centred governance structure.

Para-Statism

Para-statal characterisations of the corporation in international law focus on the corporation functioning more or less as a nation state on the international plane and thereby surpassing its legal subordination to nationality. Much is made of the fact that the revenue or market capitalization of some corporations outstrips the gross domestic product of many individual nations.^[28] Emphasis is placed, too, upon the corporate assumption of ‘foreign affairs functions’ or public powers traditionally identified with the state, through privatisation and contracting-out.^[29]

In light of their exercise of ‘state-like’ powers, multinational corporations are seen to merit direct international legal address. Even so, international legal account is taken of these phenomena primarily in terms of their distortion of the perceived normalcy of state-centred power (however embattled that normalcy might long have been).^[30] Accordingly, public international law’s policy responses to these phenomena are commonly framed around some re-affirmation of state power or state responsibility. Those policy responses presume clarity and consensus surrounding the state’s role.^[31]

Such understandings of the corporation, crafted with an eye to its para-statal role and affiliations, could perhaps be traced to historic notions—prominent in Anglo-American corporate law until the early nineteenth century—of the corporation as a creature of sovereign concession.^[32] Broadly speaking, this understanding of a corporation shares a provenance with modern public international law: both are ‘product[s] of the rise of the national state . . . its objection to imperia in imperio at a time when religious congregations and organizations of feudal origin (communes and guilds) were rivals of the claim of the national state to complete sovereignty’.^[33] International law’s quasi-statal theorization of the corporation might also be cross-referenced to later iterations of corporate law theory insistent on corporations’ public character, sometimes by analogy to governments.^[34] In both the international law and corporate law contexts, para-statal theorization of the corporation has been concerned with both taming and justifying corporate power. In international legal writing, the corporation is rendered state-like to justify its subjection to the constraints of public international law. The corporation’s very state-likeness, however, simultaneously justifies its autonomy, as may be seen in the human rights setting discussed below.

Para-institutionalism

Alongside these characterisations, the corporation also appears in international legal thought as competitor to, and comparator for, the practice of coordinating international endeavours through institutions. Drawing on traditions within social science or institutional economics of analysing corporations as organizational structures, or on conceptions of the corporation as a nexus of contracts, international legal writings have sometimes rendered the corporation as one among a number of possible expressions of ‘integrative transaction’ whereby common goals or ‘efficiencies’ may be pursued on a global scale.^[35] The guiding analogy for the corporation in this context is not to a state or to an individual, but to an international organization.

This international legal theorization of corporations with reference to international institutions has mutually constitutive effects. For the organizations concerned, corporate comparators become a basis for exhortation and critique. International institutions such as the United Nations are urged to become more efficient and deliver better value for members and stakeholders by learning from corporate practice in the private sector.^[36] International administrators may be encouraged, under the rubric of this comparison, to become better managers through mechanisms of indirect rule.^[37] For corporations, the analogy to international institutions may offer countering pressure. Once pressed into the mould of global integration, alongside international institutions, the corporation may seem a readier target for activist or governmental appeals for corporate social responsibility, transparency and the like, which corporations may or may not embrace.^[38] Elsewhere, the comparison seems to ramp up the sense of global corporate ordering exerting autonomous, constitutionalizing force.^[39]

I suggested above that analogies drawn between corporations or corporate groups, on one hand, and international organizations, on the other, might owe something to contractualist understandings of the corporation. Since the late twentieth century, corporate law scholarship has largely embraced an understanding of the corporation as a nexus of contracts (understood as voluntary relations among individual ‘factors of production’, directed towards exchange, delegation and transaction-cost-minimisation).^[40] International legal writings that juxtapose international institutions with corporate firms, explicitly or otherwise, similarly approach international organizations as the outcome of voluntary participation for the maximization of members’ net transactional gains.^[41] Unlike writing surrounding the ‘nexus of contracts’ corporation, however, international legal work does not manifest a clear rejection of managerialist conceptions of ordering.^[42] On the contrary, international law continues to place management at the strategic centre of international institutions and global ordering.^[43]

Theorizing Corporate Analogues

In none of the modes of likening that I have just characterised has the predominance of analogical reasoning—or the distribution of particular analogies—in international legal theorization of the corporation been the subject of explicit debate.^[44] A relative lack of reflexivity about corporate formations in international legal thought has allowed dissimilar configurations of these to flourish, without much by way of boundary patrolling or cross-referencing. Scholars have remarked on the importance of analogical reasoning to international law in general, and to international investment law in particular. ^[45] However, the analogies so remarked upon have largely been drawn among legal principles or legal regimes.^[46] Analogizing a corporation to a state, as opposed to an international institution or an individual, may certainly lead to the drawing of further analogical relations between particular legal regimes or doctrines (by, for example, making international investment law seem more public-law-like). Yet analogical understandings of the corporation also take effect non-doctrinally, as distinct trajectories for global political, social and economic change and divergent ways of living a life with international law.

International legal choices of one or other analogical counterpart to the corporation are material for the distinct intuitions that these analogies tend to foster.^[47] Likening the corporation to an individual may, for instance, favour an emphasis on activities of will-formation—both within the corporation and at other sites. The individualist analogy seems to predominate amid some international legal scholars’ discussions of foreign investment, which often revolve around the enablement and conditioning of corporate and governmental decision.^[48] Analogies between the corporation and the state might foster more of a focus on conduct and office or, in more conventional international legal terms, function. Consider, by way of illustration, international legal literature concerning private security firms, in which the corporation typically features as a ‘quasi-state’. International legal analysis in this domain tends to fixate on the delineation of official duties and the ambit of governmental activities.^[49] Recourse to an international institutional comparator for the corporation might, in contrast, direct attention towards matters of structure and system: towards, say, organizational cultures, orders or markets cultivated and inhabited globally.^[50]

Connections along these lines are, of course, not uniformly or consistently drawn. Theorization of the corporation in international law remains unsettled in respect of these associations and otherwise. Nonetheless, if international legal language has tended to solicit the corporation as powerful and entitled relative to other subjects of public international law, as I suggested above, it has also paired corporations with different analogical partners, each of which has lent related legal analyses a distinct set of reflexes and orientations.

Contending with Corporations in Two Areas of International Legal Doctrine

The analogies sketched above move through international legal doctrine and doctrinal scholarship with varying degrees of ease. As they do so, differences in emphasis emerge that have helped to shape the course of doctrinal development. Such divergence is apparent between corporations’ theorization in international investment law and in the field of business and human rights.

International investment law writing often evokes the sort of scenes of productive alignment with which this chapter opened: recall the VOC and WIC breaking bread, as it were, with those seminal sovereigns of 1648.^[51] Accounts of the corporation that predominate in the international investment law field stress corporations’ plasticity, hybridity and responsiveness; their capacity for ‘moving with the times’ in a pragmatic, need-meeting mode. This, in turn, has consequences for the range of doctrinal argument deemed tenable. Particular choices entrenched in investment treaties or otherwise tend to be cast as difference-splitting, moderate, almost inevitable. Doctrinal positions characterised as stark, inflexible or too ‘traditional’ appear out of step with a pattern of argument so cast.

In contrast, international legal scholarship on business and human rights has often begun with a presumption of antagonism between corporations and international legal order. Characterisations of the corporation in this field have emphasised its likenesses to the state, its assumption of public functions, and its re-routing or sapping of governmental power. This, again, has implications for doctrinal argument. Corporate collaboration in international legal work, or adoption of international legal language, are often taken, in the human rights field, as indicators of international law incrementally taking hold on global corporate affairs. Often, the task for international law has been rendered as reconquering the space of authority from which the corporation has usurped the state. This approach has, in turn, been folded back into the line of thinking advanced in international investment law. The more scholars in the business and human rights field have pushed for some wholesale repositioning of lawful authority in relation to corporations, drawing on statist analogies, the more ‘extreme’ – and therefore untenable – their arguments have appeared.^[52] For the time being, these two streams appear to have entered a choppy confluence in the work of John Ruggie, as explained below.

International Investment Law

Writings on international investment law trade in a story of maturation.^[53] In the first phase of the ‘system’ of international investment law, so the story goes, the corporation was identified with the individual under a diplomatic protection model. Capital-exporting states sought to promote corporations bearing their nationality by entering into treaties with capital-importing states that would shield those corporations from the latter in respect of an investment. Enforcement powers were delegated, by this means, to tribunals authorised under a further array of standing or ad hoc agreements. Corporate coordination served as a benchmark for the international institutions so created, allowing analogies across organizational cultures to exert influence. Institutions such as the International Centre for Settlement of Investment Disputes were, for example, to be ‘“depoliticized” in the sense that they [would avoid]...confrontation between home state and host state’ by following a transactional model of interaction.^[54] Statist analogies also played a role: corporate investors operating through the international investment regime were understood to be discharging responsibilities that capital-importing states could not fully bear, such as developing public infrastructure and technological capacity.

In the second (and now current) phase of this story, international investment law seems, at times, to prioritise the analogy of the corporation to the state. Emphasis is placed on the role that corporate investors play in allocating, developing or eroding public resources. Arguments are made, accordingly, for corporate investors’ susceptibility to the sorts of public law standards to which state actors are routinely held.^[55] At the same time, the benchmarking of international coordination to corporate comparators continues to exert influence: sustaining convictions that global policy development in the field can (and, in some accounts, should) take place through the more or less spontaneous efforts of managerial or entrepreneurial elites, trading in models, ‘best practices’ and voluntary principles.^[56] Envisioning the corporation through an individualist lens remains, nonetheless, a widespread and influential practice as well. In much international legal writing, the actions of a corporation tend to be ‘read’ through some attribution of the motives and interests of the individuals who form, invest or work within it; the corporation becomes a ‘portal’ for individual strategic intent, primarily that identified with shareholders.^[57]

International investment law has also moved beyond the realm of analogy to put forward quite ‘thick’ accounts of corporate structure. Doctrine surrounding the nationality of corporate investors and the protection of investments is illustrative. In these contexts, international investment jurisprudence makes available a number of different techniques for slicing and dicing the corporate form. Classically, if controversially, international investment law looked to a corporate entity—and that entity’s nationality, determined largely according to formal criteria—to define the ambit of investors’ rights on the international legal plane, absent special agreements between a state and private investors or other extenuating circumstances.^[58] However, ‘recent practice points towards the way of disregarding the corporate form and of looking for the true investor’.^[59] International investment law also permits majority and minority shareholders to gain recognition as international legal claimants in respect of their ‘investment’.^[60] Taken together, these doctrinal renderings of corporate structure configure the firm as a multidivisional and shifting site of power on which management has no unilateral purchase. Viewed broadly, they may bear the imprint of a conception of business, prevalent since the 1980s, which casts ‘the powerful business figure...not [as] the managerialist chief executive officer but [as] the capitalist deal maker—the financial entrepreneur or the investment banker’.^[61]

Different configurations of the corporation, in dynamic relation, thus help to sustain the international investment law regime and accounts of its ‘development’. Viewed through the lens of this analogical eclecticism, international investment law often appears to be surpassing, hybridizing or blurring otherwise entrenched divisions of discipline, culture or interest in the service of one or other ‘business concept’ and a multi-sectoral commitment to ‘the increased flow of foreign investment’.^[62] Typically, this overcoming has been rendered as difference-splitting, where the perceived starkness of an either/or helps to make the in-between that international investment law purports to occupy seem all the more palatable indeed necessary.^[63] The plasticity and restlessness with which the corporate form is invested in international investment law have been critical in sustaining a sense of that discipline’s trajectory as less a matter of choice than one of necessary adaptation to contemporary global conditions.^[64]

Business and Human Rights

International legal literature in the ‘business and human rights’ vein also bears the imprint of the analogies described above. Theorizations of the corporation in this field, however, typically revolve around a statist comparison. This is the case notwithstanding a widespread commitment among human rights scholars to developing international legal principle ‘that reflects the actual operations of business enterprises’, as in Steven Ratner’s oft-cited 2001 article.^[65] In that article, corporate analogies to the state, and vice versa, nonetheless predominated. International legal recognition of corporations depended, in Ratner’s account, on corporations’ operation as agents of a state, corporate complicity with state wrongdoing, or the subordination of states or government personnel to corporate control. Operation ‘under [colour] of corporate authority’ was proposed as a basis for attribution of responsibility to a corporation, much as a state might bear legal responsibility for action under the colour of national law.^[66] While corporations were noteworthy for their ‘proximity...to individuals’ in this account, the application of ‘individual accountability standards’ to corporate structures was deemed ‘inappropriate’.^[67] Comparisons between global corporate enterprises and the work of international organizations were little in evidence in Ratner’s writing, although international human rights institutions have elsewhere been cast as ‘norm entrepreneurs’ under a business analogy.^[68] Rather, Ratner showed a preference for an approach which ‘views the business enterprise, like the state, as a unit engaged in a particular function, with its own internal structures’.^[69]

Seeing the corporation like a state in the international legal order has been the preference of other scholars in the business and human rights field as well.^[70] International human rights scholars and advocates have sought to generate something akin to international investment law’s ‘business concept’ as an anchorage for corporate enterprise—a global ‘business case’ for human rights.^[71] Yet the plasticity this would require has not been much in evidence in international legal understandings of the corporation in this field. Rather, in the human rights field, corporations have most often been envisioned as bearers of overweening rule in ways that mirror a state universalised under a ‘brutally integrative vision of the republican tradition’.^[72] This outlook has guided perceptions of corporate operation and regulatory opportunity. It has also enabled international lawyers to move from an expectation of corporate negation of international legal order to one of corporate involvement in—indeed, reinvigoration of—international law’s traditional architecture.^[73]

Just as a state is defined in international law with reference to governance of a population (both internally and in its external relations), so scholars in the human rights field have characterised the corporation with reference to governance: interest group representation, conflict resolution and social protection.^[74] In this mode, a corporation ‘must consider the needs not only of internal stakeholders, such as the shareholders, managers and employees, but also the external stakeholders, such as customers, suppliers, competitors, and other special interest groups’.^[75]

Under this governance-oriented account of corporate order, it seems natural that international regulatory initiative and responsibility should come to rest with corporations as such, more or less interchangeably with states. It seems natural, too, to emphasise generic structures of corporate order as a parallel to ‘government’, with an emphasis on more or less well-functioning versions of both.^[76] Human rights scholars continue to encourage states to pursue ‘control’ over multinational corporations via bilateral, regional and multilateral legal avenues.^[77] Nonetheless, corporations are commonly vested with juridical authority over corporate conduct in the human rights field, typically through a management-centred and bounded sense of responsibility rendered as ‘corporate social responsibility’ or in other ‘soft’, voluntarist forms.^[78]

The work of the United Nations Special Representative on the Issue of Human Rights, Transnational Corporations and Other Business Enterprises, John Ruggie, has signalled some ambivalence about statist analogies for corporations in the human rights field, perhaps in deference to the reflex disdain for such ‘traditional’ positions fostered by international investment law. Ruggie has counselled against viewing corporations as akin to ‘democratic public interest institutions’ or ‘making them, in effect, co-equal duty bearers for...human rights’.^[79] Nevertheless, the framework that Ruggie proposed in 2008 emphasised the ‘entangle[ment]’ of companies’ responsibilities with those of states (albeit while acknowledging companies’ ‘unique’ role).^[80] Both this framework and the Guiding Principles which Ruggie presented in 2012 have been founded on the centrality of states’ responsibility for the protection of individuals from human rights abuse and the parallel, yet distinguishable responsibility of business enterprises to respect human rights.^[81] The state and state government remain central comparators for corporations in Ruggie’s work, inspiring a focus on protective responsibility. Ultimately, however, the state analogy is downgraded to one among many: ‘[s]tate agencies are simply cast in a long line of other actors whose relationships with [transnational corporations] may create adverse human rights impacts’.^[82]

Ruggie’s work maintained a state analogue for corporate conduct, while relativizing that relation. In this respect, it fits quite well with a broader international legal project of ‘consolidat[ing] and integrat[ing] the practices of executive rule’ with appeals to protection as their grounds for authority.^[83] It also affirms a widely held conviction, among human rights scholars and advocates, that ‘corporations are controlling the rules of the game and will continue to do so’.^[84] This is a conviction to which Ruggie’s Principles offer an update, with an ethical loading presumed commensurate with international legal order: ‘What I’ve said to the companies is . . . take the game over and stop being reactive, and become proactive, and drive the agenda’.^[85]

Business and human rights scholarship ostensibly fixated on surpassing a statist model of global order thus proves utterly preoccupied with generic understandings of state politics and their analogues. International law’s habitual relation to the ‘prince’—or to embodiments of political and economic power cast as international law’s touchstones—is restaged, in this context, as a relationship of counsel and guidance to corporate executives presumed to be effective rulers of a dispersed and variegated set of relationships and constituents. By this means, international law is reframed in meaningful proximity to generic representations of dispersed or fragmented forms of power in and around the state system. Concerns about that system’s ‘relevance’ are thereby assuaged and promises of effectiveness maintained; collaborative ‘new governance’ promises to succeed where public international law has failed.^[86] Arguments which smack of the flexible, hybrid, demand-answering moderation with which the corporation has been invested by international investment law appear to fare best in contemporary scholarship on business and human rights. As in the seventeenth century, it is to ‘glorious deeds’ on the part of corporations that international lawyers look to reboot conventional understandings of international legal order.

Conclusion

Theorization of the corporation is typically presented as an incidental, sideline activity for international legal work. Far from undermining the resulting theorizations’ potency, this routing has proven tremendously productive. Through an oblique, analogical approach to corporations, international legal writing has kept alive the prospect of the corporate form delivering some regenerative supplement to the international legal order. In the international investment law context, for example, corporations are understood to have bequeathed to international legal work the plasticity and sweep of a global ‘business concept’ to which states, international institutions and individuals alike may submit. In the business and human rights setting, drawing in part on this ‘business concept’, corporations figure as bearers of newly cogent and legitimate practices of rule from which states, especially, are invited to learn.

In their haste to gain corporate succour for their professional projects, however, international lawyers may routinely overestimate the coherence, exceptionalism and self-reliance of corporate power. Against this sense of corporate ‘special[ness]’, this chapter has emphasised the extent to which international legal impressions of the corporate form rest on analogies to forms of power located elsewhere and structured otherwise.^[87] The variable analogies in which international legal writing regularly trades recall the dissimilar understandings, locales, techniques and personas that corporations rarely if ever hold together in unalloyed consensus, either within multinational corporate structures or along corporate supply chains. Theorizations of the corporation in international law solicit figures of entitlement and might, but also figures of dependence, analogically and otherwise. It could be that international lawyers’ payment of closer attention to those dependencies – and international law’s role in structuring and sustaining them – might generate new routes for the actualisation of lawful relations globally, through, within or around the corporate form.

^[1] The phrase ‘creation story’ is from S Pahuja Decolonising International Law: Development, Economic Growth and the Politics of Universality (OUP Oxford 2011) at 111 (‘. . . the myth of Westphalia . . . is habitually told as the creation story of a new world system of rule . . .’). However, the characterisation of the Peace of Westphalia (the series of treaties signed at Osnabrück and Münster in 1648)—and its purported origination of the modern international legal order—as mythical has been developed across a body of literature spanning several disciplines: see eg S Beaulac The Power of Language in the Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Martinus Nijhoff Leiden 2004); B Teschke The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (2nd edn Verso London 2009).
^[2] C Schnurmann ‘“Wherever Profit Leads Us, to Every Sea and Shore . . .”: The VOC, the WIC, and Dutch Methods of Globalization in the Seventeenth Century’ (2003) 17 Renaissance Studies 474–93. On the companies’ accomplishments in countering Iberian power, see PC Emmer ‘The First Global War: The Dutch versus Iberia in Asia, Africa and the New World’ (2003) 1 E-Journal of Portuguese History article 2 1–14; J Glete Warfare at Sea 1500–1650: Maritime Conflicts and the Transformation of Europe (Routledge London 2002) at 165–77.
^[3] A Translation of the Charter of the Dutch East India Company (Verenigde Oostindische Compagnie or VOC): Granted by the States General of the United Netherlands, 20 March 1602 (R Gerritson ed and P Reynders trans) (Australia on the Map Division of the Australasian Hydrographic Society Canberra 2009) at 6 <http://rupertgerritsen.tripod.com/pdf/published/VOC_Charter_1602.pdf> . Also available in E Gepken-Jager, G van Solinge, and L Timmerman (eds) VOC 1602–2002: 400 Years of Company Law (Kluwer Deventer 2005) 17–38.
^[4] ibid.
^[5] ‘“Wherever Profit Leads Us”’ (n 2) 476. See also E Thomson ‘The Dutch Miracle, Modified. Hugo Grotius’s Mare Liberum, Commercial Governance and Imperial War in the Early-Seventeenth Century’ (2009) 30 Grotiana 107–30 at 112–21; N De Marchi and P Harrison ‘Trading “in the Wind” and with Guile: The Troublesome Matter of the Short Selling of Shares in Seventeenth-Century Holland’ in N De Marchi and M S Morgan (eds) Higgling: Transactors and Their Markets in the History of Economics (Duke University Press Durham 1994) 47–65.
^[6] See eg CM Vázquez ‘Direct vs Indirect Obligations of Corporations under International Law’ (2005) 43 Columbia Journal of Transnational Law 927–59 at 930.
^[7] For important counter-examples, see Dan Danielsen ‘How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and Governance’ (2005) 46 Harvard International Law Journal 411–425; Dan Danielsen ‘Corporate Power and Global Order’ in Anne Orford International Law and its Others (Cambridge University Press Cambridge 2006) 85–99.
^[8] D Kennedy ‘A New Stream of International Law Scholarship’ (1988) 7 Wisconsin International Law Journal 1–49 at 38.
^[9] See generally JR Paul ‘The Isolation of Private International Law’ (1988) 7 Wisconsin International Law Journal 149–178; A Mills ‘The private history of international law’ (2006) 55 International and Comparative Law Quarterly 1–50. With respect to diplomats’ traditional disaffiliation from (overt) commercial pursuits, Donna Lee and David Hudson observe that ‘the dominant view of diplomacy found in the canon of diplomatic studies’ includes ‘structural inferences [as to] the separation of politics and economics’. Lee and Hudson emphasise, nevertheless, that widespread practices of commercial diplomacy have long coexisted with this disciplinary outlook: D Lee and D Hudson ‘The Old and New Significance of Political Economy in Diplomacy’ (2004) 30 Review of International Studies 343–360 at 345. On international lawyers’ inclination to divorce politics from economics, see D Kennedy ‘Law and the Political Economy of the World’ (2013) 26 Leiden Journal of International Law 7–48.
^[10] See eg D Kinley and J Tadaki ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law’ (2003– 2004) 44 Virginia Journal of International Law 931–1023 at 1021.
^[11] LC Backer ‘Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board, and the Global Governance Order’ (2011) 18 Indiana Journal of Global Legal Studies 751–802 at 757.
^[12] P Muchlinski ‘Corporations in International Law’ in R Wolfrum (ed) Max Planck Encyclopaedia of International Law (2010), http://opil.ouplaw.com/home/epil.
^[13] By way of exception, consider Y Blank ‘Localism in the New Global Legal Order’ (2006) 47 Harvard International Law Journal 263–81; Y Blank ‘The City and the World’ (2006) 44 Columbia Journal of Transnational Law 875–939.
^[14] Contra NC Rougeux ‘Legal Legitimacy and the Promotion of Small Business in Sarajevo’ (2002) 37 Texas International Law Journal 177–202. The work of the International Labour Organization’s Small Enterprises Unit also represents an exception to this statement. Note also the crucial role shown to be played by small enterprise in global supply chains in the garment sector in Sarah Labowitz and Dorothée Baumann-Pauly, Business As Usual Is Not an Option: Supply Chains and Sourcing after Rana Plaza, (April 2014), http://www.stern.nyu.edu/cons/groups/content/documents/webasset/con_047408.pdf
^[15] For a counter-example, see PT Muchlinski Multinational Enterprises and the Law (2nd edn OUP Oxford 2007) at 70–2. For illustrative discussion of state-owned enterprises in the investment and trade law contexts, see P Blyschak ‘State-Owned Enterprises and International Investment Treaties: When are State-Owned Entities and their Investments Protected?’ (2011) 6 Journal of International Law and International Relations 1–52; LC Backer ‘Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State-Owned Enterprises, and the Chinese Experience’ (2010) 19 Transnational Law and Contemporary Problems 3–144; JY Qin ‘WTO Regulation of Subsidies to State-Owned Enterprises (SOEs) – A Critical Appraisal of the Chinese Accession Protocol’ (2004) 7 Journal of International Economic Law 863–920. For an example of state-owned enterprises’ discussion with respect to sovereign immunity, see A Dickinson ‘State Immunity and State-Owned Enterprises’ (2009) 10 Business Law International 97–127.
^[16] Richard Gitlin and Evan Flaschen identified, in 1987, a ‘void’ on the international plane in the regulation of multinational corporate bankruptcies: RA Gitlin and ED Flaschen ‘The International Void in the Law of Multinational Bankruptcies’ (1987) 42 The Business Lawyer 307–26. This perceived ‘void’ is one which comparative legal scholars hastened to fill, but not in the register of public international law: see eg DT Trautman, JL Westbrook, and E Gaillard ‘Four Models for International Bankruptcy’ (1993) 41 American Journal of Comparative Law 573–625; LM LoPucki ‘Cooperation in International Bankruptcy: A Post-Universalist Approach’ (1998) 84 Cornell Law Review 696–762.
^[17] G Simpson Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (CUP Cambridge 2004).
^[18] This effect could be compared to the scripting of would-be rapists as powerful, and the ‘commonplace sense of paralysis’ induced by their threat, in linguistic practice surrounding rape: S Marcus ‘Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention’ in J Butler and J Scott (eds) Feminists Theorize the Political (Routledge New York 1992) 385–403 at 390. I am indebted to Anne Orford for drawing the connection to Sharon Marcus’ argument.
^[19] Robert Wai ‘Transnational Liftoff and Juridicial Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ (2002) 40 Columbia Journal of Transnational Law 209–74.
^[20] Such a remedy may, nonetheless, be expressed in terms that transcend that legal order, as was the case in the US jurisdiction afforded by the Alien Tort Claims Act. See IB Wuerth, ‘The Supreme Court and the Alien Tort Statute: Kiobel v Royal Dutch Petroleum Co’ (2013) 107 American Journal of International Law 601–21.
^[21] Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (Judgment) [1970] ICJ Reports 3, [70] (‘In allocating corporate entities to States for purposes of diplomatic protection, international law is based, but only to a limited extent, on an analogy with the rules governing the nationality of individuals. The traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office. These two criteria have been confirmed
by long practice and by numerous international instruments’). See also International Law Commission, Draft Articles on Diplomatic Protection (2006) UN Doc A/61/10 arts 9–12.
^[22] The reference to nation states ‘housing’ corporations is drawn from E Engle ‘Extraterritorial Corporate Criminal Liability: A Remedy for Human Rights Violations?’ (2006) 20 St John’s Journal of Legal Commentary 287–337 at 300. For illustrative acknowledgement of the limits of any analogy of corporations to individual persons, see JE Alvarez ‘Are Corporations “Subjects” of International Law?’ (2011) 9 Santa Clara Journal of International Law 1–36 at 4.
^[23] See eg S Sassen Globalization and Its Discontents: Essays on the New Mobility of People and Money (New Press New York 1998) at 1–26 (discussing the embeddedness of globalization in a ‘global grid of strategic sites’ engaging the nation state); RS Avi-Yonah ‘International Tax as International Law’ (2004) 57 Tax Law Review 483–502 (discussing the importance of nationality-based jurisdiction for tax law worldwide); JP Trachtman ‘Economic Analysis of Prescriptive Jurisdiction’ (2001) 42 Virginia Journal of International Law 1–79 at 72 (discussing the conferral of nationality as a mechanism for promoting ‘greater clarity of entitlement’ and ‘regulatory competition’). On controversies surrounding corporate nationality, see LA Mabry ‘Multinational Corporations and US Technology Policy: Rethinking the Concept of Corporate Nationality’ (1999) 87 Georgetown Law Journal 563–674.
^[24] WW Bratton Jr ‘The New Economic Theory of the Firm: Critical Perspectives from History’ (1989) 41 Stanford Law Review 1471–1527 at 1483–4 and 1502–6. This tendency in international law should be distinguished from any position-taking in debates surrounding the ‘real’ or ‘fictional’ nature of corporate personality, and the status of ‘group-persons’, ongoing in European, British and American social and legal thought until the late 1920s: see J Dewey ‘The Historic Background of Corporate Legal Personality’ (1926) 35 Yale Law Journal 655–73. These debates have nonetheless had an afterlife in international and comparative law: see eg K Iwai ‘Persons, Things and Corporations: The Corporate Personality Controversy and Comparative Corporate Governance’ (1999) 47 American Journal of Comparative Law 583–632; RF Hansen ‘The International Legal Personality of Multinational Enterprises: Treaty, Custom and the Governance Gap’ (2010) 10(1) Global Jurist (Advances) article 9.
^[25] ‘New Economic Theory’ (n 24) 1482.
^[26] ibid 1493.
^[27] ibid 1475–6 and 1487–98. One of the most influential accounts of the management corporation’s rise and operation was written by institutional economists: AA Berle and GC Means The Modern Corporation and Private Property (1933 rev edn Harcourt, Brace & World 1968).
^[28] See eg SM Hall ‘Multinational Corporations’ Post-Unocal Liabilities for Violations of International Law’ (2002) 34 George Washington International Law Review 401–34 at 405; K Greenfield, ‘Ultra Vires Lives! A Stakeholder Analysis of Corporate Illegality (With Notes on How Corporate Law Could Reinforce International Law Norms)’ (2001) 87 Virginia Law Review 1279–1379 at 1370 n 273.
^[29] LA Dickinson, ‘Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law’ (2005) 47 William and Mary Law Review 135–237 at 138; A McBeth ‘Privatising Human Rights: What Happens to the State’s Human Rights Duties When Services are Privatised?’ [2004] MelbJlIntLaw 5; (2004) 5 Melbourne Journal of International Law 133–54.
^[30] On recurrent rejection of the logic of sovereignty in international legal scholarship, see DW Kennedy ‘A New World Order: Yesterday, Today, and Tomorrow’ (1994) 4 Transnational Law & Contemporary Problems 329–75.
^[31] See eg R McCorquodale and P Simons ‘Responsibility beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 Modern Law Review 598–625; ‘Privatising Human Rights’ (n 29).
^[32] ‘Corporate Legal Personality’ (n 24) 666–7; ‘New Economic Theory’ (n 24) 1483–84.
^[33] ‘Corporate Legal Personality’ (n 24) 666.
^[34] See eg E Freund The Legal Nature of Corporations (University of Chicago Press Chicago 1897); D Millon ‘Theories of the Corporation’ [1990](2) Duke Law Journal 201–62; ‘New Economic Theory’ (n 24) 1497–8; WW Bratton, Jr ‘The “Nexus of Contracts” Corporation: A Critical Reappraisal’ (1989) 74 Cornell Law Review 407–65 at 438–9.
^[35] JL Dunoff and JO Trachtman ‘Economic Analysis of International Law’ (1999) 24 Yale Journal of International Law 1–60 at 41.
^[36] See eg P Utting and A Zammit ‘United Nations–Business Partnerships: Good Intentions and Contradictory Agendas’ (2009) 90 Journal of Business Ethics 39–56 at 44 (‘it is often claimed that the UN can benefit by drawing on private sector resources, skills and core competencies to achieve UN development objectives more effectively and efficiently’).
^[37] A Orford International Authority and the Responsibility to Protect (CUP Cambridge 2011) at 199–205.
^[38] See eg ‘Private Actors and Public Governance’ (n 11); P Muchlinski ‘The Changing Face of Transnational Business Governance: Private Corporate Law Liability and Accountability of Transnational Groups in a Post-Financial Crisis World’ (2011) 18 Indiana Journal of Global Legal Studies 665–705.
^[39] G Teubner ‘Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?’ in C Joerges, I-J Sand and G Teubner (eds) Transnational Governance and Constitutionalism (2004) 3–28.
^[40] See ‘The “Nexus of Contracts” Corporation’ (n 34). Such a theory of the corporation is typically traced to MC Jensen and WH Meckling ‘Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure’ (1976) 3 Journal of Financial Economics 305–60.
^[41] See eg JP Trachtman ‘The Theory of the Firm and the Theory of the International Economic Organization: Towards Comparative Institutional Analysis’ (1996– 1997) 17 Northwestern Journal of International Law & Business 470–555 at 473–4.
^[42] For a discussion of the relationship between ‘nexus of contracts’ thinking and management-centred conceptions of the firm, see ‘The “Nexus of Contracts” Corporation’ (n 34) 415–17 and 451–7.
^[43] International Authority (n 37).
^[44] Contrast this with legal scholarly practice outside the international law field, as reflected in E Sherwin ‘A Defense of Analogical Reasoning in Law’ (1999) 66 University of Chicago Law Review 1179–97; D Hunter ‘Reason is Too Large: Analogy and Precedent in Law’ (2001) 50 Emory Law Journal 1197–1264.
^[45] See eg M Paparinskis ‘Analogies and Other Regimes of International Law’ in Z Douglas, J Pauwelyn, and JE Viñuales (eds) The Foundations of International Investment Law: Bringing Theory into Practice (OUP Oxford forthcoming 2014) http://ssrn.com/abstract=2312308; A Roberts ‘Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System’ (2013) 107 American Journal of International Law 45–94.
^[46] ibid.
^[47] Anthea Roberts makes a similar point in relation to the drawing of analogies between legal disciplines: ‘Clash of Paradigms’ (n 45) 49.
^[48] F Johns ‘Performing Party Autonomy’ (2008) 71 Law & Contemporary Problems 243–71.
^[49] See eg JC Zarate ‘The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder’ (1998) 34 Stanford Journal of International Law 75–162; PW Singer ‘War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law’ (2004) 42 Columbia Journal of Transnational Law 521–49. See also International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries (2001) at 43 [5] (discussing Draft Article 5) http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
^[50] See eg ‘Theory of the Firm’ (n 41); G Teubner ‘The Corporate Codes of Multinationals: Company Constitutions beyond Corporate Governance and Co-Determination’ in R Nickel (ed) Conflict of Laws and Laws of Conflict in Europe and Beyond: Patterns of Supranational and Transnational Juridification (ARENA Oslo 2009) 261–76.
^[51] This is not universally the case, however. Consider K Tienhara ‘Regulatory Chill and the Threat of Arbitration: A View from Political Science’ in Evolution in Investment Treaty Law (n 58) 606–27 (on the threat of arbitration by private investors as a disincentive to governments adopting regulatory measures).
^[52] See eg John Ruggie’s criticism of the ‘central conceptual flaws’ embedded in the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights developed under the auspices of the United Nations in 2003: JG Ruggie ‘Business and Human Rights: The Evolving International Agenda’ (2007) 101 American Journal of International Law 819–40 at 822–27. For strident criticism of Ruggie’s work, in response, see eg D Bilchitz ‘A Chasm between “is” and “ought”? A Critique of the Normative Foundations of the SRSG’s Framework and the Guiding Principles’ in S Deva and D Bilchitz (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge University Press Cambridge 2013) 107-135.
^[53] See eg ‘Clash of Paradigms’ (n 45) 75–93.
^[54] R Dolzer and C Schreuer Principles of International Investment Law (2nd edn OUP 2012) at 9.
^[55] See eg B Kingsbury and SW Schill ‘Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—The Concept of Proportionality’ in SW Schill (ed) International Investment Law and Comparative Public Law (OUP Oxford 2010) 75–104.
^[56] See eg J Zhan, J Weber and J Karl ‘International Investment Rulemaking at the Beginning of the Twenty-First Century: Stocktaking and Options for the Way Forward’ in JE Alvarez and KP Sauvant (eds) The Evolving International Investment Regime: Expectations, Realities, Options (2011) 193–210. Note, however, that the ICJ has explicitly rejected the cogency of any analogy between a national entering into the service of an international organization and a national investing in a multinational corporation, for purposes of interpreting international legal doctrine on nationality: Barcelona Traction (n 21) [53].
^[57] See eg ‘International Legal Personality’ (n 24) 38; A Telesetsky ‘A New Investment Deal in Asia and Africa: Land Leases to Foreign Investors’ in C Brown and K Miles (eds) Evolution in Investment Treaty Law and Arbitration (CUP Cambridge 2011) 539–69. The identification of corporate intent with individual shareholder identity is mirrored in the attention paid to the allegiances and career trajectories of individual arbitrators for purposes of interpreting arbitral rulings: see eg ‘Clash of Paradigms’ (n 45) 87–8.
^[58] Principles of International Investment Law (n 55) 47–52 and 56–60; Barcelona Traction (n 21) [50]–[52] and [90]–[92]. For an indication of the contentiousness of this approach, see C McLachlan ‘Investment Treaties and General International Law’ (2008) 57 International & Comparative Law Quarterly 361–401 at 365–369 (setting international investment law’s development against the backdrop of ‘failure to reach multilateral agreement on an acceptable content of investors’ rights’).
^[59] M Burgstaller ‘Nationality of Corporate Investors and International Claims against the Investor’s Own State’ (2006) 7 Journal of World Investment & Trade 857–81 at 859.
^[60] U Kriebaum and C Schreuer ‘The Concept of Property in Human Rights Law and International Investment Law’ in S Breitenmoser, B Ehrenzeller, M Sassoli, W Stoffel and B Wagner Pfeifer (eds) Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber (2007) 743–762. See also SA Alexandrov ‘The “Baby Boom” of Treaty-Based Arbitrations and the Jurisdiction of ICSID Tribunals: Shareholders as “Investors” and Jurisdiction Ratione Temporis’ (2005) 4 The Law and Practice of International Courts and Tribunals 19–59.
^[61] ‘New Economic Theory’ (n 24) 1523.
^[62] Principles of International Investment Law (n 55) 12, 21, 27.
^[63] See generally D Kennedy ‘Strategizing Strategic Behaviour in Legal Interpretation’ [1996] Utah Law Review 785–825. See eg A Lowenfeld ‘Investment Agreements and International Law’ (2003-2004) 42 Columbia Journal of Transnational Law 123–130 at 124 (situating the proliferation of bilateral investment treaties within a ‘wide chasm – one would have said the unbridgeable chasm – between the developed countries on one side and the developing and socialist countries on the other’).
^[64] See eg ‘Investment Agreements and International Law’ (n 65) 130 (arguing that ‘the [bilateral investment treaty] movement has grown to the point where one can speak of consensus’ producing ‘something like customary law’ which – to the extent that it does not fit ‘the traditional definition of customary law’ renders that ‘traditional definition’ either ‘wrong’ or ‘incomplete’).
^[65] SR Ratner ‘Corporations and Human Rights: A Theory of Legal Responsibility’ [2001] YaleLawJl 32; (2001) 111 Yale Law Journal 443–545 at 496.
^[66] ibid 497–506 and 524.
^[67] ibid 508 and 523.
^[68] HH Koh ‘How is International Human Rights Law Enforced?’ (1998) 74 Indiana Law Journal 1397–1417 at 1409; K Sikkink, ‘Transnational Politics, International Relations Theory, and Human Rights’ (1998) 31 PS: Political Science and Politics 517–23.
^[69] ‘Corporations and Human Rights’ (n 67) 524 (emphasis added).
^[70] See eg ‘Direct vs Indirect Obligations’ (n 6) 944 (emphasising that ‘corporations bear a stronger resemblance than individuals to the classic addressees of international law (states); like states, corporations are artificial “persons” comprising groups of natural persons’).
^[71] PT Muchlinski ‘Human Rights and Multinationals: Is There a Problem?’ (2001) 77 International Affairs 31–47 at 38.
^[72] P Bourdieu ‘Rethinking the State: Genesis and Structure of the Bureaucratic Field’ in G Steinmetz (ed) State/Culture: State-Formation after the Cultural Turn (Cornell University Press Ithaca 1999) 53–75 at 62.
^[73] See eg ‘Changing Face’ (n 38) 666–705 (moving from a depiction of ‘transnational corporate groups [enjoying] . . . free choice of means in their global operations’ to one of corporations having been ‘resocializ[ed] . . . at the national and transnational levels’).
^[74] On the former, see the Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December [1936] LNTSer 9; 1934) 165 LNTS 19, art 1.
^[75] ‘Changing Face’ (n 38) 700.
^[76] Contra WW Bratton and JA McCahery, ‘Comparative Corporate Governance and the Theory of the Firm: The Case against Global Cross Reference’ (1999) 38 Columbia Journal of Transnational Law 213–97 (emphasising the diversity of governance systems and the trade-offs they embody and arguing against accounts of global convergence or ‘hybrid best practice’).
^[77] See eg Multinational Enterprises (n 15) 117–21.
^[78] On the taking-for-granted of stockholder interests and objectives in corporate social responsibility debates, see IB Lee, ‘Corporate Law, Profit Maximization, and the “Responsible” Shareholder’ (2005) 10(2) Stanford Journal of Law, Business & Finance 31–72. For a representative survey of regulatory devices and opportunities in the business and human rights field, see Multinational Enterprises (n 15) 110–21.
^[79] UN ESCOR ‘Promotion and Protection of Human Rights, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’ (2006) UN Doc E/CN.4/2006/97.
^[80] Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’ (2008) UN Doc A/HRC/8/5 para 6.
^[81] Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises ‘Guiding Principles on Business and Human Rights’ (2011) UN Doc A/HRC/17/31 at 6–14.
^[82] JM Amerson ‘“The End of the Beginning?”: A Comprehensive Look at the UN’s Business and Human Rights Agenda from a Bystander Perspective’ (2012) 17 Fordham Journal of Corporate & Financial Law 871–941 at 926.
^[83] International Authority (n 37) at 209 and 212.
^[84] ‘“The End of the Beginning?”’ (n 84) 933, noting that this is something that ‘[m]ost human rights activists believe’.
^[85] ibid 933, quoting an interview by John Sherman with Professor John Ruggie.
^[86] KW Abbott and D Snidal, ‘Strengthening International Regulation through Transnational New Governance: Overcoming the Orchestration Deficit’ (2009) 42 Vanderbilt Journal of Transnational Law 501–78.
^[87] On the notion of corporations as ‘special’, see eg Ruggie’s emphasis on their being ‘specialized organs, performing specialized functions’: ‘Business and Human Rights’ (n 53) 827.