The Facade of Neutrality: Uncovering Gender Silences in International Trade

International trade policies have traditionally been measured in terms of net economic benefit and market-based criteria. For the most part, these policies have largely ignored any of the societal effects that a liberalized trade regime may cause. Recently, however, the environmental, health, and labor impacts of trade agreements have slowly gained recognition as areas of concern. This recognition has led to an overall growing trend towards acknowledging the linkages between trade and non-trade issues. One area that has been relatively untouched by any new developments is the issue of gender. Trade theories proceed from the premise that trade agreements are gender neutral. As a result, the texts of trade agreements do not address any differential impacts on women. The object and purpose of many trade agreements is to raise standards of living and to promote sustainable development. As gender inequality has been recognized as an impediment to the promotion of economic development, it must also negatively impact opportunities to increase living standards and sustainable development. Accordingly, if international trade agreements are to meet their stated objectives, gender inequality must be addressed. By exploring the underpinnings of the exclusion of gender issues from international trade, challenging the presence of a rights-based discourse within international trade, and viewing the construct and institutions of international trade through the lens of feminist theories, this article seeks to illustrate the reasons for the reluctance of trade bodies to examine linkages between trade and gender. It also examines three examples of the linkages between trade and gender as a means of exploring the gendered context of trade and the social and cultural conditions under which trade can affect men and women differently. Finally, the article examines possible methods for uncovering and alleviating gender silences in international trade

Recapturing Public Power: Is Investment Arbitration\u27s Engagement of the Public Interest Contributing to the Democratic Deficit?

Globalization has changed the way sovereign states regulate their societies. The effect of globalization has been the creation of several international agreements that transfer decision-making from the national to the international level. An important subset of these agreements is international investment treaties; an estimated 2,500 of these treaties have been entered into worldwide by a number of states, especially in the last ten to twelve years. As these agreements almost always contain arbitration clauses, the number and scope of arbitrations handling disputes under these investment agreements have grown exponentially. Arbitrators governing these disputes are now regularly reviewing domestic public interest issues due to their expanded role. In fact, in some cases arbitrators are effectively striking down national regulations. The breadth of the regulatory powers of arbitrators in their review of national state decisions, regulations, and legislation has even caused some scholars to characterize investment arbitration as part of the evolving concept of global administrative law. Concerns also arise with investment arbitration\u27s curtailment of democratic expression through its ability to counter a state\u27s sovereign decision-making authority. This Article seeks to address these issues, initially by positing that the efficacy of investment arbitration decisions on public interest issues is limited by the lack of public participation. The Article identifies in greater detail the features of investment arbitration, the elements of democracy and the democratic deficit, and the process and outcomes of investment arbitration that have implicated public interest issues. It then explores suggested solutions to increase public participation in and accountability for the investment arbitration process, and to infuse non-investment related concerns into the outcomes of the traditionally private domain of investment arbitration

Climate Change as Systemic Risk

Hindsight tells us that COVID-19, thought by former President Trump and others to have come out of nowhere, is more aptly labelled a “gray rhino” event, one that was highly probable and preventable. Indeed, despite considerable evidence of the impending threats of pandemics, for the most part, governments failed to prepare for the pandemic, resulting in wide-scale social and economic losses. The lessons from COVID-19, however, should remind us of the perils of ignoring gray rhino risks. Nowhere is this more apparent than with climate change, a highly probable, high impact threat that has largely been ignored to date. Despite those who deny climate change, there remains ample evidence of the increasing temperature of the earth. Moreover, like COVID-19, climate change has the potential not only to create public health emergencies, but also to create wide-scale, enormous adverse impacts on the economy. Indeed, the risks posed by climate change to the economy have the potential to be so far-reaching that climate change should–as this article argues–be termed a systemic risk. As such, the economic implications of climate change need to be mitigated in order to preserve economic stability. This is not only necessary for prudential and economic reasons, but also to protect citizens’ health and safety, and to ensure that business does not exceed the limits of the planet. While there has been some attention to addressing the economic implications of climate change at the global level, progress in the U.S. has been minimal. This is surprising for two reasons. First, because climate change has already caused unprecedented damage in certain parts of the country. Second, because to some extent, existing legislation and models may offer the tools to address the systemic risks of climate change. Drawing inspiration from the Dodd-Frank Act, SEC rules, and the FDIC model, among others, this article proposes regulatory approaches for mitigating the systemic risks of climate change in hopes that COVID-19 does not foreshadow our fate for climate change

Beyond the Alien Tort Claims Act: Alternative Approaches to Attributing Liability to Corporations for Extraterritorial Abuses

At one time, the only social responsibility of a business was to increase its profits. During this period, businesses prized dictatorships for their ability to provide stable environments and consumers were not concerned with either where or by whom the shoes they wore were made. However, the increase in globalization changed perceptions. Multinational corporations ( MNCs ) began to benefit immensely from globalization and those outside of the MNC environment started to realize that an MNC\u27s profit gains brought about a corresponding responsibility to manage any adverse effects of producing those gains . Suddenly, a company\u27s success was measured by factors other than its bottom-line. In addition, the reputation of a company thought to be involved in some form of human rights abuse could suffer irreparable damage and consumers began to demand detailed information on corporate activities

Enforcing International Human Rights Law Against Corporations

International human rights law is generally thought to apply directly to states, not to corporations since the latter is not a subject of international law. Some domestic courts are, however, enforcing these norms against corporations in domestic settings. Canadian courts have, for instance, recognized that corporations can be liable for breach of customary international law norms while UK courts have enforced international human rights norms indirectly against corporations relying on a combination of domestic corporate and tort law. At the same time, some states are choosing to enforce international human rights norms against corporations using regulatory initiatives. These initiatives, known as due diligence initiatives, vary in scope, but generally prescribe obligations for corporations in the respect of human rights. These initiatives offer greater promise than court enforcement of international human rights norms as states are often able to ex ante legislate the issues with which courts enforcing international human rights norms are struggling. Nevertheless, while due diligence initiatives offer greater promise than court enforcement of international human rights norms, they are far from a panacea. The initiatives often lack the necessary elements to make them a superior tool – that is, their scope, reach or enforcement possibilities may be limited – and they tend to focus on risks to business rather than risks to human rights, among other limitations. Given the complexities in addressing corporate abuses, adopting a plurality of approaches to mitigate corporate abuse of human rights is likely necessary. Court enforcement and due diligence initiatives are but two approaches, the latter more promising than the first, but neither offers an antidote to the malignancy of corporate abuse. For that, there is a need for greater transformation of the economy such that corporate harms of human rights and the environment are no longer business as usual

Corporations as International Economic Law Actors

Actors in international law are presumed to be states. Yet in the international economic law arena, the corporation is one of the most prominent non-state actors. Indeed, in some instances, the corporation may even be more influential than the state in some arenas of international economic law. This short piece examines three instances of this influence. First, it looks at the role of corporations in law-making; second, it examines corporations’ role in monitoring and compliance; and, third, it explores corporations’ legal personality in international economic law. Finding corporations’ immense influence on law-making and monitoring and compliance, combined with a robust legal personality, this piece concludes that not only are corporations actors in international economic law, but they are also part of the framework of global governance in the area

Corporate Law’s Threat to Human Rights: Why Human Rights Due Diligence Might Not Be Enough

The take-up of mandatory human rights due diligence (HRDD) initiatives by states is continuously gaining momentum. There are now numerous states adopting some form of HRDD laws. While corporations being duly diligent in respecting human rights is a positive step towards addressing problems of business and human rights, these HRDD initiatives on their own may only be a form of window-dressing, that is, enabling states to put a smart spin on their efforts to address business and human rights issues without addressing some of the root causes of that predicament. As a result, HRDD laws are likely to be a helpful, but insufficient tool for addressing corporate abuse of human rights. One reason for this is because the root cause of many business and human rights problems is the structural elements and goals of corporate law facilitates corporate violations of human rights. So long as states fail to transform the way in which corporations operate – in part, by reconceptualizing corporate law – even the best drafted HRDD laws will be inadequate to halt corporate harms

Stuck in Neutral? Reforming Corporate Purpose and Fiduciary Duties

After decades of corporate leadership based on shareholder wealth maximization, momentum is now gathering behind a shift towards the recognition of stakeholder interests. However, from voluntary actions by business to changes in soft and hard law, the steps taken thus far have been insufficient to result in meaningful changes. Instead, we are stuck in neutral. A more decisive push is needed to ensure that business contributes to tackling the most pressing societal issues of our times in a substantial and timely manner. The Canadian corporate landscape, although beginning to shift away from shareholder primacy, is still not settled and in many ways has stagnated since the Supreme Court’s decisions in People’s and BCE. The CBCA’s new section 122(1.1) codifies that case law and therefore cannot be expected to provide a new impetus. Drawing from the experience in the United Kingdom, which previously introduced legislation similar to the Canadian reforms, we suggest that more than minor tweaks to corporate law are necessary to achieve meaningful and timely change. Working along with regulation in other areas of the law, corporate law can help transform corporate acts away from a solitary focus on shareholder wealth maximization if it offers mandatory and tailored mandates that guide corporations to prescribed outcomes. We propose therefore legislative changes to re-define corporate purpose more broadly and implement a mandatory system of balancing of shareholder and stakeholder interests by corporate leadership, with an emphasis on protection and advancement of human rights and environmental considerations