Transnational Law and the Multinational Enterprise: From Legal Concept/Method

Framework to Systemicity in Global Polycentric Governance Orders

Larry Catá BackerCoalition for Peace & Ethics

Foundation for Law and International AffairsW. Richard and Mary Eshelman Faculty Scholar Professor of Law and International

Affairs, Pennsylvania State University

“Jessup’s Bold Proposal: Engagements with ‘Transnational Law’ after Sixty Years”

Transnational Law Institute, The Dickson Poon School of Law, King’s College, London, Friday-Saturday 1-2 July 2016

Context• Jessup’s Big Bang

• “What, then, is the general problem: This planet is peopled with human beings whose lives are affected by rules.”• External interplay of legal orders by, for

and on its individual subjects and objects.

• Reticence about a positive definition• Focus on the transnational “situation”

• Identify individuals who participate• Rules bearing on the situation• Creating ordered networks for action

(legal, extralegal and metajuridical)

Fernand Leger The Acrobat and His Partner 1948 Tate Modern

What Happens after the Big Bang? • Jessup’s framework and the structure of analysis

continues to shape thinking about the transnational. Stabilizing projects• Transnational Legal Orders; transnational legal process• Networked communities• Legal pluralism• Running Codes• Societal constitutionalism

•Stabilizing projects fleshing out and framing the ad hoc• Building beyond Jessup is not really on the agenda.• The “situation” still dominates a discourse

grounded in interplay of actors, networks, process• Building blocks— Actors• Building with blocks— Networks • Building block assembly instructions— Process

Rebecca Horn Arm Extensions 1968, Tate Modern (exploring limits and possibilities of human anatomy by

changing its relationship to surrounding space

From Vision—Anarchos?• Jessupian and Post-Jessupian transnational

law then, is situational and ad hoc.• Not a field but a method, an identification formula,

and a process for application. • People—natural and bodies corporate who live

in a world in which a singular rule order has passed

• Law which has been transformed from monocultures of consumable crops (the law-state) to wild fields of hyper hybridized consumable vegetation

• Identification Context—principles for organizing context in a local and authoritative form; the context cookbook from which people cook up this gathered law and concoct a meal to suit the situation

• Process—orderly logical arrangement usually in steps of people and law in context; such “meals” are contingent, dynamic and malleable but the people, food stocks, kitchen, and the need to eat, remain constant.

Tony Cragg, Stack (1975) Tate Modern (Random accumulation of miscellaneous objects ordered into a

solid structure)

From the Transnational to the TNC• The power of this template and its

multiple current manifestations is felt strongly when speaking to the TNC.• Curious parallel interplay between

TNCs and transnational law• Definitional ambiguity: (1) does it exist?;

(2) how is it constructed in (a) Law; (b) Sociology; (c) Politics• Transnational law both constructs and

deploys the TNC to suit its situational and ad hoc focus. • And transnational law is in turn

constructed from this deployment of the TNC

Banks of the Thames June 2016

Problem• At first blush, transnational law’s engagement with

TNCs reflects the situational and ad hoc approach of the transnational law project

• Tends to focus on the TNC as an actor apart, like the state, within transnational law situational processes.• Like the state, TNCs are governance singularities into

which law can be poured, extracting coherent action.• Move from the construction of a category to

consequential instrumentalism• But is this relationship between TNCs and

transnational law construct TNCs too restrictively? • Does it fail to describe the reality of TNCs (the

problem of definition)? • Should we consider TNCs as a transnational legal

order in its own right (the systems issue)?• Should we consider TNCs instead as the constitution

of production chains (the conflation issue)? Malangatana Ngwenya Untitled 1967 Tate Modern depicting violence and suffering of people of Mozambique during the

war of independence

The TNC Within and As Transnational Law

• Objective• To focus on TNCs within transnational law (as

object) and as transnational law (as subject).• What can transnational law tell us about

TNCs; what can TNCs tell us about transnational law?

• To that end it might be useful to apply the Actor-Network-Process framework inward within and to the TNC.• TNC as object external to law• TNC as autonomous system internalizing

framework for law• TNC as reconstitution of production chain

and the object of the chain itself.

• Proceed from the most orthodox to the least conventional perspective

Mixed vegetable and pork dumpling, London 2016

TNC as object external to law• The traditional construction of the

enterprise in transnational law.• The enterprise and its partners

• Feudal view: the King and his vassals

• A site through which transnational law can be sourced and applied• Disclosure regimes• CSR• UNGPs• OECD Guidelines/NCP Process

•Ignores or reconstructs legal basis for enterprise organization; layered over or through national legislation• Instrumental use of veil piercing• The rise (and fall) and rise again of enterprise

liability• Fiduciary duty (monitoring and mediation) in

corporate and contract relationsGeorges Braque Mandora 1909-10 Tate Modern (analytical cubism--characterized by a fragmentary appearance of multiple viewpoints and overlapping planes)

TNC as autonomous system• A regulating object emerging variant in 2

forms• (1) Unpacks the TNC

• Structural dimension (subsidiaries; contract relations)

• Governance dimension (TNC as a self reflexive legal universe).

• Preserves its unity as against outside law and reveals its inter-systemic quality for internal governance.

• (2) TNC as the apex corporation, an active regulatory object objectifying its downstream components

• Serves as a site of legal tension• Extraterritoriality (national law embedded in the TNC)• Good governance (grounded in systemic effects)• Law/standard maker (incorporated into the administrative

state—regulatory delegation)

• Governance capacity recasts TNC as a site for the privatization of law • Means of hardening soft law (Rabobank-Dutch NCP) –

privatizing IFI behaviors• Mechanics of human rights due diligence• Non judicial remedies

Womb World Mandala Japan 1600s, British Museum -- a microcosmos

TNC as Reconstitution of Production Chains

• TNCs fall away as an object or self constituted system

• TNC becomes the objectification of production chains • a factor in the constitution of production

chains• Part of, or transposed into, production systems

themselves

• TNC as a site for the privatization of politics.• As a mediating form through which

multilateralism can be effectively privatized;• The Accord and Alliance in Rana Plaza• The Rabobank agreement to adopt Round

Table for Responsible Palm Oil (RSPO) • The Norwegian Sovereign Wealth Fund

governance architectureFragment Temple of Beit el-Wali Lower Nubia c 1250 BC

British Museum (Egypt receiving the spoils of Africa)

Conflations and Intermeshing• How does one study two abstractions that also

constitute and impact each other?• Formal Response: One can try to fit these

abstractions into ancient systems of classifications; • but Jessup reminds us that these are no longer relevant• A lesson that is hard to internalize • For both TNCs and transnational law this means:

•Functional Response: One can move toward a mediating approach• For both TNCs and transnational law this means:

• Bridging device (legal coordination)• Coordinating device (Conflicts of law)• Signaling device (Choice of Law)• Instrumentalism

• Transforming Responses• Back to definition—the uncharted terrain• From a constituting rather than from a transactional

foundation• But what is being constituted

• For the TNC—the production chain• For transnational law—the disposition of law

Jean-Pierre Yvaral Ambiguous Structure No. 92 (1969) (the forms can be seen to project and recede from the baseline surface

confusing our perception of depth)

Summing Up• Both TNCs and transnational law have been

constructed and used as ad hoc and situational methodologies • TNCs are objects of transnational law production• TNCs are sources of transnational law

production• TNCs are mutually dependent sites for the

resolution of transnational situations

• TNCs are transnational law systems• Is transnational law the law of or through

bodies corporate—the enterprise, the state, the institutions of religion, of indigenous peoples, of peoples without a state, and of other human communities?

• Have we come far but not moved very much?• The answer may lie not in process and method • but in the institutionalization of a normative

ordering of rule producing entities. Photo High Court of Punjab and Haryana 1965 Kings

College London

Thanks!