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Quid iuris? Festschrift Universitäre Fernstudien Schweiz 10 Jahre Bachelor of Law Universitäre Fernstudien Schweiz (Hrsg.) GROWTH PUBLISHER LAW BibliograZsche Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen National bibliograZe; detaillierte bibliograZsche Daten sind im Internet über http://dnb.dnb.de abrufbar. Alle Rechte, auch die des Nachdrucks von Auszügen, vorbehalten. Jede Verwertung ist ohne Zustimmung des Verlages unzulässig. Dies gilt insbesondere für Vervielfältigungen, Übersetzungen, MikroverZlmungen und die Einspeicherung und Verarbeitung in elektronische Systeme. © Growth Publisher Law, Bern 2015 ISBN 9783906235042 (Growth Publisher Law) www.growthpublisherlaw.ch Marc Amstutz In the Web of World Law: On the Evolution of European Corporate Social Responsibility Table of contents Seite I. A Legal Non-Subject? 1 II. On the Genesis of European Corporate Social Responsibility A. Normative Webs B. Corporate Social Responsibility: European Style C. European Corporate Social Responsibility: Cognitive Resources, Operative Links, Civil Society Governance 5 5 5 III. European Corporate Social Responsibility as a Form of World Law A. European Corporate Social Responsibility as Law B. Cognitive Resources as a Legal Concept C. The Construction of World Law: Recursive Constitutionality D. European Corporate Social Responsibility as the Global Law of the MNEs E. Enforcement of European Corporate Social Responsibility 10 10 10 11 13 14 IV. Coda 16 Bibliography I. 8 17 A Legal Non-Subject? The question whether or not the responsibility that large enterprises bear towards society is a matter of law remains a subject of controversy. The uncertainty of the legal situation is reflected quite clearly in the terminology used to circumscribe the issue: the catchphrase of Corporate Social Responsibility (CSR) – which figures under the heading of „Governance“ on most of the corporate websites on which it appears – is conspicuous particularly for its ambiguity. For the degree to which a large enterprise respects the principles of CSR is treated as something entirely voluntary, as a sort of business decision on the part of a corporate enterprise to act in a manner that goes beyond what the law demands.1 This understanding of CSR as a voluntary decision is ubiquitous and is evident in virtually all treatments of the subject: in the OECD 1 Cf. MCBARNET, 9 ff.; KERR/JANDA/PITTS, 559 ff.; PORTER/KRAMER, Strategy, 78 ff.; MAHMUDUR RAHIM, 47 ff.; EGLER, 16 f.; from a more critical point of view, KOCHER, 33 ff. 2 | I. A Legal Non-Subject? Guidelines for Multinational Enterprises2; in the Communications of the European Commission on CSR, issued in 2002, 2006 and, most recently, in 2011;3 in the UN Global Compact;4 etc.5 In this sense, the existence of a connection between CSR and European corporate law, as suggested by the title of this paper, would appear to be somewhat tenuous, at best: if CSR is understood simply as a set of obligations that go beyond what is demanded by the law, then it makes little sense to frame the issue as a legal matter. There are a number possible ways of dealing with this finding. On the one hand, one can continue to treat CSR (as has often been done in the past) as a subject of concern to economists, to sociologists and to various other social scientists – just not to students of the law.6 Alternatively, one can interpret this phenomenon as a reminder – either of the good in man, as an exemplification of his philanthropic tendencies,7 or of the evil, as an egoistic attempt at deception (in the form of greenwashing or bluewashing)8 – but without any legal relevance. It is also possible to see CSR as a step towards utopia, in the sense that it would appear to be diametrically opposed to 2 3 4 5 6 7 8 The OECD Guidelines are recommendations for responsible business conduct, addressed by the 33 member states to the multinational enterprises based or operating on their territory; cf. OECD Guidelines for Multinational Enterprises: http://www.oecd.org/. Cf. DILLARD, 205 ff. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A renewed EU strategy 2011-14 for Corporate Social Responsibility, COM(2011) 681 final; In keeping with existing policy the new Communication states explicitly that, „Corporate social responsibility concerns actions by companies over and above their legal obligations towards society and the environment“ (p. 3); cf. also the earlier Communications COM(2002) 347 final, and COM(2006) 136 final. In 2013, the Commission helped CSR stakeholders publish (voluntary) „Principles for Better Self- and Co-Regulation“, see https://ec.europa.eu/digital-agenda/en/communities/better-self-and-co-regulation. A report on the implementation of the Commission’s 2011-2014 strategy is to be published on its website in 2014. United Nations Global Compact Office, Corporate Citizenship in The World Economy, October 2008, http://www.unglobalcompact.org/: „Launched in July 2000, the UN Global Compact is a both a policy platform and a practical framework for companies that are committed to sustainability and responsible business practices. As a leadership initiative endorsed by chief executives, it seeks to align business operations and strategies everywhere with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption.“ Cf. DILLARD, 207 ff.; TRICKER/TRICKER, 68 ff. See the list of sector-specific initiatives in BESCHORNER ET AL., 297-319. An illuminating analysis of the issue from an economic point of view is provided by Schwartz and Carroll; cf. SCHWARTZ/CARROLL, 503 ff. (in particular, the diagrams on pp. 509 and 524). Caroll’s earlier (1991) pyramid model was based on the economic and legal foundations of CSR; cf. CARROLL, 39 ff. The evolution of philanthropic values is outlined by Porter and Kramer; cf. PORTER/KRAMER, Philanthropy, 121 ff.; PORTER/KRAMER, Competitive, 56 ff. The philanthropic notion still informs the more recent theory of „Corporate Citizenship“; cf. MELÞ, 68 ff.; TRACEY/PHILLIPS/HAUGH, 327 ff. „Greenwashing“ is a form of public relations employed by companies to enhance their image as environmentally aware and responsible. „Bluewashing“ is a term connected with the potential advantages of association with the UN Global Compact. The UN seal of approval carries with it the suggestion that a company is mindful of human rights. The stated objectives of the Compact, in which participation is voluntary, are sustainable production and fair trade. Cf. FLEMING/JONES, 1 f., 9 ff., 40 ff. In the Web of World Law Marc Amstutz |3 Adam Smith’s conception of the double contingency of social relations.9 For the realization of utopian ideals, however, the law can hardly be seen as the means of choice. Indeed it would appear that CSR, regardless of how it is construed, is a legal nonsubject.10 There is, however, no reason to simply accept this understanding of CSR. The fact that the discussion surrounding CSR has continued to intensify in recent years is not without consequences for the law.11 Quite the contrary: the ongoing debate makes it increasingly evident that, as far as the law is concerned, the various disciplines involved have allowed a categorical misconception to obscure their thinking. And the category that has been misconceived is that of the law itself – at least as it has been defined in the tradition of the past two centuries. In a nutshell: (1) The classic definition of law takes as its point of departure the function of the law in national states. This means that it relies on the presence of static structures or – what comes down to the same thing – on the existence of an interweave of expectations, which remain constant, and with the task of the law being to maintain the stability of those structures, or those expectations, over time. Despite the fact that the role of national states is being increasingly impinged upon by the process of globalization,12 the prevailing notion of law today continues to be based on the continued stability of the existing national structures. The function of law is still seen as consisting primarily in shielding expectations from the need to make all too many adjustments. By this means, it is intended that the law will contribute to the overall stability of society.13 9 10 11 12 13 A description of the workings of double contingency was given succinct formulation by ADAM SMITH, 34 f.: „Every individual . . . generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.“ A part of the literature has adopted this invisible hand approach to argue a „business case“ for CSR (cf., DE SCHUTTER, 217 ff.; CARROLL/KAREEM, 85 ff.), suggesting that if successfully employed, CSR would make sense even in the context of a market economy. Contrary to the point of view here expressed, MILTON FRIEDMANN has argued, in his well-known article „The Social Responsibility of Business is to Increase its Profits,“ (New York Times Magazine, September 13, 1970), that CSR is a non-subject altogether, as business has no responsibility towards society at all and there is no need for government intervention in a self-regulating market economy; cf. also WATTER/SPILLMANN, 102 ff. Cf. KERR/JANDA/PITTS; MCBARNET, 9 ff; MAHMUDUR RAHIM, 95 ff. Cf. also art. 135 of the Indian Companies Act 2013 which requires companies of a certain size to „constitute a Corporate Social Responsibility Committee of the Board consisting of three or more directors“ which has to „formulate [ . . .] a Corporate Social Responsibility Policy“ and „ensure that the company spends, in every financial year, at least two per cent of the average net profits of the company [ . . .] in pursuance of its Corporate Social Responsibility Policy“. See below, p. 13. Cf. LUHMANN, Gesellschaft, 124 ff. 4 | I. A Legal Non-Subject? (2) What is central to CSR, however, is not the stabilization of relatively static structures. CSR is, essentially, a product of globalization. It did not develop in the context of the world order that was based exclusively on national states existing side by side; it came into its own only with the emergence of a global, world society.14 This is a society of a different order, and the function that it requires of the law is different from what a nationally segmented society demands: world society has no need for a system to stabilize structures whose nature is fundamentally static, since it is largely devoid of such structures. Rather, the structures that predominate in the formation of world society are, for the most part, highly dynamic, constantly evolving, in a state of perpetual metamorphosis.15 The question this poses then, is this: What is the function that should be assigned to the law vis--vis the highly dynamic structures and concomitant expectations of world society? (3) The function of law in the globalized world is to provide support for the reorientation of regularly changing – or dynamic – expectations.16 In keeping therewith, the goal of CSR (as the expression of such a global legal system, a system of world law) is to channel the evolution of expectations in world society in such a way that those expectations do not become factors of social difference in the global environments. In other words, CSR performs the function of law in a very specific manner: What is expected of the multinational enterprises (MNE) is that they „adjust“ to the values in force in the various regions, sectors, or industries in which they are active, even as those values constantly evolve.17 These values can take on many different forms: they can be represented by cultural, economic, political, social or even legal norms. What we are dealing with, in discussing CSR, is thus a form of „global pluralism“:18 How can the MNEs be induced to differentiate their internal structures in such a way as to enable their innumerable subsidiaries to adjust themselves, individually, to the respective social environments in which they operate?19 A company such as Shell should conduct itself in Nigeria not according to the standards that apply in the Netherlands, but in keeping with Nigerian values.20 Novartis should guide its operations in Switzerland according to different standards than those that apply in northeastern Brazil or the southwest Indian state of Kerala, where the local values of those regions should be respected. 14 15 16 17 18 19 Cf. BACKER, Multinational, 287 ff. See below, p. 11. Cf. AMSTUTZ, Boundaries, 258 ff. Cf. LUHMANN, Weltgesellschaft. Cf. SCHERER/PALAZZO/MATTEN, 328; ZERK, 7 ff.: contra, BACKER, Multinational, 287 ff. HERBERG, Interlegality, 17 ff.; GLINSKI, 41 ff. On the motto „Think global, act local!“ and the issues associated therewith, see the following: ASONGU, 84 ff.; HOPKINS, 201 ff.; PORTER/KRAMER, Strategy, 90; EMESEH/AKO/OKONMAH/ OGECHUKWU, 236; COOPER/HICKEY, 223 ff. 20 Cf. MAHMUDUR RAHIM, 62; FLEMING/JONES, xiii; DILLARD, 199. In the Web of World Law Marc Amstutz |5 In a word: CSR is a means for furthering a highly differentiated strategy for integrating the MNEs into the environments in which they are active. This is to be achieved by making available legally instrumentalized mechanisms to aid in the search for those particular „values“ that are specific to the regions, sectors or industries in which they operate and which are to be applied respectively by their many subsidiaries when they carry out those operations. CSR may be considered as a form of global law in the sense that the objective behind it is to stimulate cognitive processes that are of importance for world society. In keeping therewith, what is essential for CSR is not so much the actual creation of statutory law at the national level, but rather the generation of learning effects, in the context of what Parker refers to as „meta-regulation,“21 at the global level. II. On the Genesis of European Corporate Social Responsibility A. Normative Webs The description of CSR as a form of global law demands first a clarification of the distinction that is being drawn between global law and traditional law, as it has developed in the context of the nation-state.22 Law at the global level can no longer be understood as a collection of norms proclaiming rules of public conduct, a listing of provisions intended as a means of directly influencing behavior. Rather, law at the global level is network law, that is, a relational context that creates connections between norms originating in any number of different environments and of the most highly variegated descent. World law is interlegality.23 In support of this thesis, rather than an abstract argument, I would like to offer an example taken from actual practice. Such an example is provided by the CSR efforts of the European Union (EU),24 which illustrates the main features of what is meant by the term world law. B. Corporate Social Responsibility: European Style The development of European CSR can be broken down into three phases:25 the first phase was the commencement of a European dialogue on CSR. It was opened with the publication in 2001 of the European Commission’s „Green Paper“ on the social responsibility of corporations.26 There, the interested parties were called upon „to ex21 22 23 24 25 26 Cf. PARKER, 210 ff. Cf. MUCHLINSKI, Corporate, 431 ff.; SCHERER/PALAZZO, 422 ff. Cf. AMSTUTZ, Zwischenwelten; SANTOS, 237. Cf. VOICULESCU, 365 ff. Cf. DE SCHUTTER; PHILLIPS; WOUTERS/CHANET. European Commission, Green Paper: Promoting a European framework for Corporate Social Responsibility, COM 366 final (hereinafter: Green Paper, COM 366 final). Cf. MUCHITSCH, 3 ff., 67 f. 6 | II. On the Genesis of European Corporate Social Responsibility press their views on how to build a partnership for the development of a new framework for the promotion of corporate social responsibility, taking account of the interests of both business and stakeholders.“27 The main objective in this first phase was, „to raise awareness and stimulate debate on new ways of promoting corporate social responsibility,“28 whereby the addressees were public authorities, international organizations, enterprises, social partners and interested individuals.29 Despite the fact that the European Commission consciously declined to provide a concrete definition of CSR, it nevertheless took pains to emphasize the voluntary nature thereof.30 In the second phase, the Commission, in a Communication dated 2 July 2002,31 furnished an overview and analysis of the commentaries it had received on the Green Paper. The outcome of the consultation process was seen as sobering. The Commission could only take note that the interested parties were deeply divided: While the multinationals were unreserved in their support of maintaining the voluntary character of CSR, the unions and civil society organizations were equally emphatic in their conviction that voluntary measures would not be sufficient for the protection of citizen rights.32 Most importantly, however, the Commission decided to depart from a proposal by the European Parliament in the matter:33 While the latter had favored an international CSR regulatory authority, the Commission resolved instead upon the formation of an open forum (European Multi-Stakeholder Forum on CSR = CSR EMS-Forum),34 which would institutionalize only the ongoing CSR dialogue between the interested parties – some 40 European organizations representing workers, employers, consumers, civil society groups, trade associations and corporate networks. The aim of the CSR EMS Forum was defined as the promotion of „transparency and convergence of CSR practices and instruments.“35 The primary means for achieving this aim was to be the exchange of experiences and of good practices, to be conducted between the parties at the EU level.36 The third phase began with the commencement of activities by the CSR EMS Forum. These continued, all together, 27 Green Paper, COM(2001) 366 final, 25. 28 Green Paper, COM(2001) 366 final, 25. 29 Green Paper, COM(2001) 366 final, 4. Cf. FIFKA, 5 ff., and BOURASSA/CUNNINGHAM, 75 ff., on stakeholder dialogue. 30 See below, p. 15. 31 European Commission, Communication from the Commission concerning Corporate Social Responsibility: A business contribution to Sustainable Development (COM 347 final; hereinafter, CSR Communication 2002). Cf. MUCHITSCH, 5 f., 68 ff. 32 CSR Communication, COM(2002) 347 final, 4. 33 European Parliament resolution on the Commission Green Paper on Promoting a European framework for Corporate Social Responsibility (COM(2001) 366 – C5-0161/2002 – 2002/ 2069(COS)), 18. 34 See, http://ec.europa.eu/enterprise/policies/sustainable-business/corporate-social-responsibility/multistakeholder-forum/index_en.htm. 35 CSR Communication 2002, COM(2002) 347 final, 19. 36 CSR Communication 2002, COM(2002) 347 final, 19. See above, p. 2. In the Web of World Law Marc Amstutz |7 for a period of about two years.37 In its Communication dated 22 March 2006, the Commission noted, somewhat ambivalently: „The Forum succeeded in achieving a measure of consensus among participants, but is also revealed the significant differences of opinion between business and non-business stakeholders“.38 The real problem with the underlying concept of the CSR EMS Forum, however, was identified by one of the Forum’s participants: „What the experience of the Forum showed . . . are the limits of a method which consists in bringing together a range of stakeholders with so different views, in the hope that they will arrive at a consensus through discussions facilitated, but in no way pre-empted or directed, by the Commission. This method, which in theory might be praised for its openness, leads in fact to a situation where any final agreement will be based, not on the outcome of a rational discussion based on the law of the best argument . . . but rather on the few items on which the participants can agree, without betraying the mandate of their respective constituencies“.39 With that, the experiment with the CSR EMS Forum has, if nothing else, at least served to demonstrate that the „ideal-speech-situation“ model, as hypothesized in discourse theory, is not overly productive when dealing with global issues (such as that of CSR). That, in any case, was the opinion of the Commission: in its Communication dated 22 March 2006, it resolved upon a change of course, signaled by the establishment of a new forum, to which it gave the name „European Alliance for Corporate Social Responsibility.“40 The decisive difference in the new approach taken by the Commission lies in the fact that there is no longer any attempt to bring all of the interested parties together under the same roof;41 instead, the new forum is set up as an alliance made up – exclusively – of members of the European business community: „This is an open Alliance for enterprises sharing the same ambition: to make Europe a Pole of Excellence on CSR in support of a competitive and sustainable enterprise and market economy.“42 This change is remarkable for a number of different reasons. 37 During this period, two plenary sessions were held, in December 2002 and in July 2003, respectively, as well as four discussion rounds on specific themes, held between 2003 and 2004. The CSR EMS Forum presented its final report on 29 June 2004, 38 European Commission, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, Implementing the Partnership for Growth and Jobs: Making Europe a Pole of Excellence on Corporate Social Responsibility, COM  136 final: 6; hereinafter Communication, COM(2006) 136 final). Cf. MUCHITSCH, 6 ff., 76 ff. 39 Cf. DE SCHUTTER, 215, who reports the statement by the participant in question. 40 CSR Communication 2006, COM(2002) 136 final, 6 ff. and 12 ff. Cf. GRAYSON/NELSON, 230. 41 Cf. MUCHITSCH, 78 ff. While the CSR EMS-Forum still exists, it has not held any plenary meetings since the year 2010, see http://ec.europa.eu/enterprise/policies/sustainable-business/corporate-social-responsibility/multi-stakeholder-forum/index_en.htm. 42 CSR Communication 2006, COM(2006) 136 Final, 11; critical thereof, DE SCHUTTER, 216 ff; WOUTERS/CHANET, 41. Cf. GRAYSON/NELSON, 230, 233 f. 8 | II. On the Genesis of European Corporate Social Responsibility C. European Corporate Social Responsibility: Cognitive Resources, Operative Links, Civil Society Governance (1) To begin, it is worth noting that the Commission’s decision to disband the CSR EMS Forum was a consequence of the realization that that experiment had never succeeded in developing into something more than a mere assortment of uncoordinated random interactions.43 By reconfiguring the composition of the European Alliance (as a new incarnation of the CSR Forum),44 it set the foundations for a coherent normative discourse. This discourse, which is structured as the activity of an organization – that is, in the institutionalized form of a „Forum“ (however that is to be understood) – is intended as a means of promoting, generating, and naming cognitive resources for the MNEs, in order to achieve the following objectives: „(i) increasing knowledge about the positive impact of CSR on business and societies in Europe and abroad, in particular in developing countries; (ii) developing the exchange of experience and good practice on CSR between enterprises; (iii) promoting the development of CSR management skills; (iv) fostering CSR among SMEs; (v) facilitating convergence and transparency of CSR practices and tools . . .“.45 Without the organizational restructuring of the Alliance, the production of these cognitive resources would not have been possible. For this, the fate of the CSR EMS Forum (as a „sea“ of isolated interactions) provides ample evidence. (2) In the global society, these cognitive resources play a very specific role: They function as normative supports for creating the structural conditions necessary for enhancing the learning capacity46 of globally operative actors. In other words, the MNEs make use of the cognitive resources produced by the European Alliance for CSR as a means of scouting out the global social context in which they move.47 The ultimate aim of the learning process that European Commission seeks to further among the MNEs is thus to identify the legal, proto-legal and, above all, the social norms in place in the environments in which the MNEs conduct their activities, so that they can do that in a manner that is appropriate to those environments.48 In this way, ope43 GRAYSON/NELSON, 230. 44 Cf. European Alliance for Corporate Social Responsibility (CSR), http://www.businesseurope.eu/content/default.asp?PageID=606. The European Business Network for CSR provides a further, dedicated platform for the MNEs: http://www.csreurope.org/. 45 NEAL, 466; cf. AMSTUTZ/KARAVAS, 647 ff. Other available cognitive resources include such things, e.g., as the International Reporting Standards suggested by the Global Reporting Initiative (GRI); see http:// www.globalreporting.org/. 46 Cf. LUHMANN, Weltgesellschaft, 78 f. 47 On the question of the incentives for the multinationals to take advantage of the cognitive resources placed at their disposal, see below, 16 f. 48 There is a growing number of academies that have begun to specialize in CSR workshops for businesses; cf., e.g., the Corporate Responsibility Academy in Great Britain http://www.bitc.org.uk/cr_ academy/, or, in the Netherlands: http://www.csr-academy.com/; the European Academy of Business in Society (EABS) has also extended its portfolio activities to include CSR management. In the Web of World Law Marc Amstutz |9 rative links are established between European organizational norms (European Alliance for CSR), world law (normatively supported learning by the MNEs), and local legal, proto-legal and social norms.49 (3) Finally, the transition from the CSR EMS Forum to the European Alliance for CSR also brought to light a last, indispensable component of world law, a phenomenon that can be described as a process of differentiation. The exclusion of stakeholders who had originally been admitted to the dialogue in the Forum caused them to realign themselves into an informal authority, which can be qualified as a civil society governance mechanism. Their expulsion transforms their role, from that of an „insider“ to that of an external monitor that functions as a kind of – admittedly very loose and lightweight – equivalent to Weber’s „coercion agents.“50 There are two main reasons why the traditional forms of enforcement known to nation-states would not be feasible. The first is of a purely practical nature: there are quite simply no comprehensive extraterritorial enforcement mechanisms available at present. But secondly (and more importantly), there is that fact that global law – understood, as here defined, as a normative support for cognitive expectations – is not amenable to enforcement by the means traditionally deployed for that purpose. It is for this reason that taking recourse to more informal means of control, such as market forces, public pressure, threat of scandal, and the like, would appear to be the most sensible alternative.51 In this sense, the European preference for non-compulsory CSR is easily understood: to have chosen otherwise would have been tantamount to a return to the logic of the nation-state, and the attempt to transpose that logic onto global law would thus, in any case, have ultimately been doomed to failure. The foregoing observations raise a number of issues requiring further clarification. 49 This interweave of norms originating in highly divergent sources, often termed interlegality, is, in fact, the most salient identifying feature of world law; see on this question, below, 15. 50 WEBER, 17. 51 The suggestion of using informal, voluntary control mechanisms has been met with some skepticism. Cf., e.g., EMESEH/AKO/OKONMAH/OGECHUKWU, 243. More generally, see MAHMUDUR RAHIM, 50 f.; MURRAY/HAYNES, 343; HUBER ET AL., 50 ff., 81 f.; DEN HOND/DE BAKKER, 281 ff. Cf. also TRICKER/ TRICKER, 39 ff., demonstrating the role scandals and collapses have played in the evolution of business ethics. 10 | III. European Corporate Social Responsibility as a Form of World Law III. European Corporate Social Responsibility as a Form of World Law A. European Corporate Social Responsibility as Law The first question to be examined concerns the extent to which it is possible to attribute to CSR a legal character.52 As a point of departure, it is worth recalling that the Commission’s actions with regard to CSR constitute an element of the social dialogue foreseen in the first paragraph of article 151 of the TFEU as an objective to be promoted. There are, to be sure, no formal rules for the structuring of this dialogue, in the sense that the social partners are not accorded any specific rights to be heard (TFEU art. 154) or to conclude contractual agreements (TFEU art. 154 para. 4 and art. 155). Despite the fact that this informal social dialogue is not made subject to any explicit rules in art. 151 ff. of the TFEU, the prevailing opinion in the literature is that it falls under the authority of the Commission.53 The Commission can thus be said to have resolved upon the measures governing the organization of CSR practices on the basis of the unwritten but recognized authority vested in it by the Treaty. And it exercised that authority in its Communication dated 22 March 2006 by initiating a highly specific process for producing law. This process merits closer examination: B. Cognitive Resources as a Legal Concept With the European Alliance for CSR, the Commission gave birth to a legal institution for generating cognitive resources. What this suggests is that cognitive mechanisms are being built into what was considered, until now, to be the fundamentally normative structure of legal systems.54 These modifications in the design of law also bring about a shift in its function: its operational success depends less on the degree to which it ensures compliance with positive legal norms than on its ability to solve problems.55 Because of the predominance, in the global setting, of dynamic, and thus of cognitive, constantly evolving expectations, the role of law there lies, above all, in providing global actors with means for enhancing their capabilities for identifying and adapting to those changes. In other words, the production of cognitive resources at the level of territorially segmented systems (at the EU level, for example, or by the nation-states themselves), creates opportunities that can be taken up by the structures specific to world society.56 In and of themselves, however, these resources have no im52 53 54 55 56 MCBARNET, 9 ff. KREBBER, Art. 151, at 3. Cf. LUHMANN, Rechtssoziologie, 340 f. Cf. LADEUR/VIELLECHNER, 72. The likelihood of spontaneous self-regulation on the part of the multinationals is held to be highly doubtful by EMESEH/AKO/OKONMAH/OGECHUKWU, 243 and 253 ff., who take the recent and ongoing financial crisis as a case in point. In the Web of World Law Marc Amstutz | 11 mediate effects. By promoting consciousness-raising and the exchange of models for the enhancement of social capital, supporting multi-stakeholder initiatives, developing lifelong learning concepts, etc., the European Alliance for CSR does nothing more than make certain resources available, which, in order to have any impact, must first be put to use by the MNEs.57 These resources represent a potential that awaits realization in the global space. But they do not, by themselves, constitute global law. The question then is: how precisely can the CSR efforts at the European level become incubators for the hatching of a form of world law? A somewhat cryptic response can be found in Luhmann: „Global structural complexes and the problems they give rise to, interactional relationships and their disequilibria, ,govern‘ regionally applied positive law not in the form of a comprehensive normativization, of a higher ranking supranational, and thus supra-positive law, but rather, by virtue of the fact that the dynamism of world society provides learning occasions, possibly even exerts learning pressures and prefigures a certain non-randomness of problem solutions.“58 What does Luhmann mean when he says that the structures of world society ,govern‘ regionally applied positivized law? How is the notion, implied by Luhmann, of world law as „non-comprehensive“ normativization, as „non-supranational“ or „non-supra-positive“ law, to be construed? As abstruse as Luhmann’s formulation may appear, one aspect of his thesis is clear: the process that we are dealing with is symbiotic in nature. World law constructs itself by means of a dynamic interlinkage with the laws of nation-states.59 But how? C. The Construction of World Law: Recursive Constitutionality What we are dealing with is a situation of reciprocal stimulation by two separate normative systems.60 On the one hand, there is the European legal system, or, more concretely, the CSR dialog – as set in motion by the European Commission by virtue of the tacit authority vested in it by the EC Treaty – which produces cognitive resources, and by that means places its „normative capital“ at the disposal of world society for use in constructing its own – global – system of law.61 Conversely, there is also a re57 See the references given in Fn. 51. 58 LUHMANN, Rechtssoziologie, 340 f.: „Weltweite Strukturbildungen und deren Folgeprobleme, Interaktionszusammenhnge und deren Unbalanciertheiten, ,regieren‘ das regional in Geltung gesetzte positive Recht nicht in der Form einer Åbergreifenden Normierung, eines hÇherstufigen Åberstaatlichen und damit Åberpositiven Rechts, sondern dadurch, dass der Dynamismus der Weltgesellschaft Lernanlsse setzt, vielleicht Lernpressionen ausÅbt und eine gewisse Nicht-Beliebigkeit von ProblemlÇsungen vorzeichnet.“ 59 Cf. HERBERG, Umweltrecht, 112. 60 Cf. MAHMUDUR RAHIM, 106 ff. 61 As a possible counterpoint, the less binding OECD Guidelines for Multinational Enterprises (cf. Fn. 2) and the soft law of the UN Global Compact may be cited (cf. Fn. 4). The global application of these sources of normativity is hindered, however, in particular, by difficulties in enforcement; on this question, see above, 11. 12 | III. European Corporate Social Responsibility as a Form of World Law cursive process at work, by which world law links back up with the operations of European CSR law in its constant efforts to adapt its production of cognitive resources to developments in the structures of world society. In this way a particular form of network is created that links the two spheres: Although there can be no direct interference in the world legal system by European law or in the European legal system by world law – the communications of the European legal system are not automatically incorporated into world law and vice versa – each of the two systems constitutes a „portion of necessary environment“ for the other.62 In other words, without the participation of European CSR law, there can be no world law (in that sector), and without the participation of world law, there can be no development of European CSR law. The two legal systems are thus partners in a process of co-evolution. In this sense the relationship between them resembles what may be termed a recursive constitutional loop.63 But what is it precisely that takes place when European law penetrates interactively into world law? What becomes of the cognitive resources that the European CSR dialogue generates? I have already noted that what matters for the structures of world society is not (or at least not primarily) the stabilization of normative expectations, but the enhancement of the capacity of normative expectations to learn and adapt. This new function of law in world society results from the highly dynamic nature of communication in that society, which is better dealt with by deploying cognitive processes than by clinging to existing expectations.64 In order to perform this function, world law must operate as a medium of conversion: It must find a way to adapt broadly formulated, and intentionally general cognitive resources in such a way as to enable them to cushion the concrete disappointments that arise in global society. In other words, it must make use of the cognitive resources as the raw material with which to „quickly and surely construct new expectations“ in situations where disappointments typically occur in global social communications.65 One of the possible means by which it can perform this function is by transforming the cognitive resources used by European law into relatively simple models for use in world law – as a means of helping the structures of world society to adjust more efficiently to changes in the fabric of the globalized world. An illustration of this process may be seen in the operations of world law in connection with the MNEs. 62 BARALDI/CORSI/ESPOSITO, 86. 63 Cf. AMSTUTZ/KARAVAS, 663 ff. 64 LUHMANN, Weltgesellschaft, 79; similarly SLAUGHTER, 10: „ . . .we need global rules without centralized power but with government actors who can be held to account through a variety of political mechanisms.“ 65 LUHMANN, Weltgesellschaft, 72. In the Web of World Law Marc Amstutz D. | 13 European Corporate Social Responsibility as the Global Law of the MNEs The multinational enterprises have a dual structure, which is itself a reflection of the structure of world society. They are localized (established and registered) within the existing national or regionally segmented systems, but function, at the same time as structures specific to world society. At the global level, they are capable of building ephemeral substructures, as circumstances require, adapting their internal structures, or creating new ones (mergers and demergers of subsidiaries), to meet needs that arise locally. This rearrangement of their own internal structures also has consequences for the outside world. Each new stage in this never-ending process of restructuring results in changes in the relationship of the MNEs with the various local environments in which they are active. In this way it is possible to ensure that the observational awareness of the MNEs is able to keep pace with the evolution of the local environments in which those enterprises operate.66 The objective of world law is then to induce the MNUs into „learning“ from their dealings with those environments. Or, more precisely: its purpose is to promote the full use of those cognitive opportunities that arise out of the ongoing regeneration of relationships between the MNEs and their environments. But how is this to be accomplished? An examination of the way in which European CSR law has penetrated world law reveals the use of a very subtle strategy: the instruments of CSR produced in the European social dialogue give rise to cognitive models of world law that bring about a previously unknown level of transparency in the structures of world society, thus transforming the underlying logic of their dealings with the world from something static (obligatory) to something dynamic (observational).67 In order to elaborate on this notion, we must first briefly analyze the logic of the transparency strategy itself. The question to be answered is: Why transparency (as a central objective of world law)? The overall purpose of CSR law, as a kind of triple bottom line,68 is to motivate the MNEs to conduct themselves in a manner that is appropriate to their respective social environments. Those environments, in each case, are the local surroundings in which the various subsidiaries of the multinationals run their operations. But these environments normally have no part in the social, political, cultural or economic image that the MNEs have of themselves, their corporate identity, which is decidedly global in conception. Novartis, Wal-Mart, Vodafone,69 and the others of their ilk, tend to see themselves, and to comport themselves, in keeping with the Western conception of 66 Cf. ZERK; contra, BACKER, Governing. 67 See above, 4. 68 Cf. etwa ELKINGTON, 2: „Increasingly, we think in terms of a ,triple bottom line‘, focusing on economic prosperity, environmental quality and – the element which business has tended to overlook – social justice.“ 69 Cf. SNIDER/HILL/MARTIN, 175 ff. 14 | III. European Corporate Social Responsibility as a Form of World Law business culture, which not seldom places them on a collision course with local customs, values and standards of behavior in Asia, South America, Africa and elsewhere.70 Wherever there is a constellation of circumstances that may give rise to such conflicts, there is a need for CSR instruments that can serve to promote the formation of a network between corporate and local cultures;71 for this to take place, however, transparency in the circumstances that prevail in the social environments where the MNEs operate is not sufficient. And it is precisely here that world law comes into play: by functioning as a network, linking the legal and proto-legal, or social, norms of the nationally or regionally segmented systems from which the MNEs originate, with the corresponding norms of the local environments in which they develop their activities. In order to produce this weave of interlegality, world law must bring about a very special kind of transparency: transparency that is capable of setting in motion mechanisms of self-reflection within the structures of world society. This conception of transparency is founded on the notion that the cognitive models of world law are constructed in such a way as to stimulate operations of observation in the MNEs – operations that induce them to take cognizance of the relationship between the legal, proto-legal or social norms of the MNEs’ respective countries of origin and those of the local environments in which their subsidiaries conduct business. By stimulating such operations of observation in the MNEs (or, more generally, in the structures of world society), world law is able to influence their reflexive operations in such a way as to raise the level of their responsiveness to the multitude of environments in which they operate. E. Enforcement of European Corporate Social Responsibility One question remains (and it is, of course, by far the most difficult issue in CSR): why should the multinationals even bother to react to the cognitive models world law places at their disposal?72 This is the central focus of the criticism leveled at the voluntary approach to CSR law taken by the European Commission, and from which it has thus far shown no intention of wavering. Some critics have seen in this evidence of „a loss in the relevance of classic state orders.“73 Also from a purely practical point of view, the difficulties of enforcement are all too obvious. Why should the multinationals respect world law (as I have defined it here)? There is nothing that even comes 70 See above, 4. 71 Cf. Fn. 52; see also, LOGSDON/WOOD, 55 ff., on the global interpenetration of voluntary codes of ethical conduct. 72 One attempt to come to terms with the issue is the notion of Corporate Social Performance, which attempts to link economic efficiency with sustainable productivity; cf. MELÞ, 49 ff.; WOOD, 691ff. Recent studies on Socially Responsible Investment (SRI) have shown that it is, in many cases, economically worthwhile for the MNEs to follow the CSR trend. 73 LUHMANN, Gesellschaft, 581. In the Web of World Law Marc Amstutz | 15 close to resembling a world society enforcement authority currently in place – or even on the horizon.74 Nevertheless, there is one essential point that critics have failed to consider: world law is civil society law! It is not the product of any (state or other) organizational will, but the fruit of blind evolution, what Hayek terms a spontaneous order.75 World law grows wildly, unplanned, in the maelstrom of world society communications. And because of this, it is dependent upon the forces of world society for its enforcement. A comprehensive discussion of those forces is obviously not possible here.76 Briefly, however, the essential points can be summarized as follows: The complex web of relationships that arises between territorially segmented structures and world society structures leaves the latter open to a number of social influences that can have a disciplinary effect on their behavior.77 In the case of the MNE’s (as world society structures) there is a wide range of occasionally more, occasionally less diffuse civil society forces to which they are subject.78 First, there is the market, which – as tellingly analyzed by Polanyi in his theory of the countermovement – contributes to the growth of social forces that constantly seek to reconstruct the „protective cover of cultural institutions.“79 Also to be considered is the issue of product reputation, which presently depends upon a large number of social factors (and, not lastly, upon such innovations as quality control labels, seals of approval, consumer rankings, etc.).80 Public opinion – in particular as driven by the mass media – is another social force that can in many cases have a disciplinary effect on corporate behavior. Mention must also be made in this context of the threat of scandal, which has often been particularly effective in focusing greater attention on human rights issues in the world81 a complete list of all such disciplinary forces cannot, of course, be provided here. For present purposes, however, there are two essential points to be noted: The first is that these social considerations are capable of exerting sufficient pressure on the MNEs to ensure that they do, in fact, make use of the cognitive models furnished to them by world law. Similarly, the fact must be underlined that this pressure is exerted by global society, and is, as such, fully congruous with the nature of world law. In this sense, 74 75 76 77 78 79 80 MUCHLINSKI, Multinational, 123 ff. HAYEK, 58. Cf. BACKER, Globalization; BACKER, Governing, 503 ff. Cf. FOUCAULT; DEN HOND/DE BAKKER, 289 f. Cf. fn. 51. POLANYI, 76. The effects of reputational issues are increasingly preponderant in the mediatized world of today; it is with this in mind that the PR strategies of the multinationals attempt to draw greater attention to their various CSR measures. Cf., on this, the risk management study by KYTLE/RUGGIE 2005. The question as to whether a corporation could permit itself to ignore the then incipient trend toward social responsibility was raised as early as the 1960s; cf. DAVIS, 70 ff.; TRICKER/TRICKER, 59. 81 LUHMANN, Menschenrechte, 222. Cf. also KARP, 16 ff.; FIFKA, 10. 16 | IV. Coda the forces referred to (market, reputation, public opinion, etc.)82 are, in essence, civil society governance mechanisms.83 The development of such mechanisms is the purpose behind the strategy being pursued by the European Commission with the help of the European Alliance for CSR.84 By excluding certain stakeholders from the social dialogue through this platform, the Commission has helped bring about a differentiation of social forces that otherwise would most likely have remained largely paralyzed in that dialogue. Anticipating the objection that the civil society governance mechanisms just described are far less certain than the traditional instruments of law enforcement, I would reply, with Luhmann: „One may lament that, as the product of a highly developed legal culture, which informs our expectations, this is an inadequate response to the problem. It has, however, often been noted that the world legal order is more similar in form to those of tribal societies, such that it is obliged to make do without organized punitive authority and genuine definitions of legal offenses based on known rules.“85 The oblique strategy underlying European CSR also demonstrates another truism: less can sometimes be more – even when it comes to the law. An absence of statutory norms need not be synonymous with lawlessness. IV. Coda To summarize my main points: (1) While up until the 1970s, CSR was seen primarily as a subject for economics, business management, sociology and, to a certain extent, political science, it has since that time also come to be recognized as a potential subject for law, as well. The legal analysis of CSR encounters certain difficulties, however, which cannot be resolved if the orthodox understanding of law is maintained. (2) For this reason, it must be underscored that CSR is largely a product of globalization. In this way it becomes clear that CSR can only be understood in legal terms by abandoning the notion that the function of law is tied to the political construct of the nation-state, where its role is to stabilize expectations. In world society, the law takes on a new function, which consists in the providing of direction for cognitive processes. 82 Cf., on the „business case“, DE SCHUTTER, 217 ff.; CARROLL/KAREEM, 85 ff.; ZERK, 33 ff., 152; cf. also Fn. 9; contra, KOCHER, 32 f. 83 Cf. AMSTUTZ/KARAVAS, 668 ff. 84 See above, 6 ff. 85 LUHMANN, Menschenrechte, 222. In the Web of World Law Marc Amstutz | 17 (3) The European efforts to promote CSR furnish a concrete illustration of the way in which law performs its function in world society. 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