Trends in the Social [Ir]responsibility of American Multinational Corporations: Increased Power, Diminished Accountability

The purpose of this invited essay is to assess the future of the CSR performance of American multinationals in light of several ongoing trends. These trends include companies’ voluntary CSR programs and the global self-regulatory standards for responsible company activities that are developing in almost every industry. Moreover, the decade-long project at the United Nations to identify multinational companies’ responsibilities with respect to international human rights, ultimately spearheaded by Special Representative John Ruggie, has for the first time established global expectations of responsible corporate activity. At the same time, however, legal developments in the United States may be trending in the opposite direction, toward increased power and diminished accountability for corporations. Two legal developments that highlight this counter-trend will frame this discussion. The first, the Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) recognizes a constitutional right for corporations to give financial support to a wide range of electioneering activities, including by using corporate funds to pay for and broadcast advertisements for specific candidates for office. The effect is to allow American companies to further consolidate their already substantial political power. The second, the opinion by the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), reh’g en banc denied, 642 F.3d 379 (2011), aff’d, 569 U.S. __ , 133 S. Ct.1659(Apr. 17, 2013), denied the possibility of corporate liability under the Alien Tort Statute for Royal Dutch Shell’s employees’ alleged violations of Nigerian community members’ international human rights. A 2-1 majority held instead that violations of international law could only be asserted against natural persons or nations. The Supreme Court granted certiorari and in a decision handed down on April 17, 2013, the Court unanimously affirmed the judgment of the Second Circuit. The five-Justice opinion of the Court held that the ATS cannot be used to redress violations of the law of nations that occur outside the territory of the United States, except in exceptional circumstances not found in Kiobel. Neither the majority opinion nor the concurrence addressed the corporate liability issue, which means that the Second Circuit’s ruling on that issue remains the law of the Second Circuit — an important outcome, given the significance of the Second Circuit as a venue for ATS cases. Taken together, the overall effect of the Second Circuit’s rejection of corporate liability for human rights violations and the Supreme Court’s rejection of exterritorial application of the ATS to any defendant, corporate or otherwise, is the substantial evisceration of companies’ legal accountability for international human rights violations under the ATS. On a theoretical level, these decisions send mixed messages about corporate personhood and identity. But on a practical level, the two decisions work in unfortunate concert to increase the already considerable political power of U.S. corporations at home, even as they reduce the risk of legal accountability for their actions abroad. By doing so, they shrink the shadow of the law — the threat of hard legal regulation — that has been an important incentive to the adoption of voluntary, soft-law CSR standards. Thus, these legal developments, though ostensibly unrelated to the voluntary pursuit of CSR activity, may in fact act as a disincentive to that activity

The Emerging Personality of the American Corporation

Reviewing Eric W. Orts, Business Persons: A Legal Theory of the Firm, and Robert E. Wright, Corporation Nation

Climate Change Is Very Real - And So Is the Risk of Litigation

According to a recent analysis, close to 900 climate-change cases have been filed in “24 countries and in the European Union, with 654 cases filed in the U.S. and over 230 cases filed in all other countries combined,” as of March 2017. So far, many of these cases have been filed against government entities, either for their failures to regulate consistent with their rhetoric in international negotiations, or for failing to protect their citizens’ health and future prospects according to long-standing, common law public trust doctrines

‘Troubling Incrementalism’: Is the Canadian Pension Plan Fund Doing Enough to Advance the Transition to a Low-carbon Economy?

The Canada Pension Plan (CPP) is one of the world’s largest public pension funds, with $409.5 billion in assets under management as of March 31, 2020. The mandate of the CPP Investment Board (CPPIB) is to manage the funds of the CPP in the best interests of Canadian Pension Plan contributors and beneficiaries, and to maximize investment returns without undue risk of loss. As CPP Investments CEO and President Mark Machin has recently observed, “our investment mandate and professional governance insulate our decision-making from short term distortions and gives us license to help shape the long-term future.” (In 2020, CPPIB rebranded itself CPP Investments. Since CPPIB is the legal entity with the statutory authority to manage CPP assets, and since many of the quotes in this report or actions being described were taken prior to the rebranding, we will continue to use the term CPPIB in those quotes and in discussing those actions. We will use the term CPP Investments if we are specifically quoting from the 2020 Annual Report, where CPPIB uses the term CPP Investments, or if we are specifically referring to actions taken in 2020. Both “CPPIB” and “CPP Investments” refer to the asset management entity that has the statutory authority to invest CPP assets under the CPP Investment Board Act.) Our view is that CPP Investments should be, and could be, making a substantial contribution to Canada’s future economy by supporting new technologies, new companies, and the just transition to a low-carbon economy. We argue that doing so would be more consistent with its statutory mandate to manage the assets of the CPP Fund in the best interests of the twenty million Canadian contributors and beneficiaries than is its current approach. It would also be more consistent with its common-law fiduciary duties, which require intergenerational equity. Thus, we urge CPP Investments to fundamentally re-evaluate its role in Canada in order to make that contribution

The Global Reporting Initiative, Transnational Corporate Accountability, and Global Regulatory Counter-Currents

In this essay, the Author provides an overview in Part I of some initiatives to require or encourage companies to produce specific ESG data, authored both by governments and by private standard-setters. In Part II, one disclosure initiative in particular will be discussed as an example of a transnational legal order (TLO), as defined by Professors Shaffer and Halliday,13 and that is the Global Reporting Initiative, which has become the benchmark corporate social disclosure framework. Part III identifies a number of significant questions about our knowledge of the real power of information strategies to change corporate behavior, as the GRI seeks to do, as well as questions about the efficacy of self-regulation generally. Part IV then asserts that the “legality” aspect is a centrally-important element of the TLO framework advanced by Shaffer and Halliday. Particularly regarding transnational corporate responsibility, reliance has been placed almost exclusively on “new governance” initiatives, which are generally non-binding, voluntary, collaboratively developed standards for responsible behavior. New governance standards have fascinated academics from a wide range of fields, including this author, leading to an explosion of literature on the cognate topics over the last ten to fifteen years. Yet, during this same period of time, Bi-lateral Investment Treaties (BITs) and free-trade agreements, such as the North American Free Trade Agreement (NAFTA), have been negotiated throughout the world. These treaties generally permit private companies to challenge any government action—legislative, regulatory, or judicial—that is alleged to reduce the company’s future profits. These challenges are heard by private arbitrators and are not subject to judicial review.The contrast is stark between new governance forms of collaborative, often industry-led, voluntary standards for responsible action, and the limits on sovereign regulatory authority being developed as a result of the expansion of the investorstate system for arbitration pursuant to BITs and trade agreements, leading this author to remember the line in the movie the Wizard of Oz: “pay no attention to the man behind the curtain.” To badly mix literary references, we may have fixed our collective attention on the construction of a transnational regulatory Potemkin village even as the man behind the curtain progressively undermines the capacity of the strong form of regulation, that of sovereign domestic law. It is in emphasizing the importance of legality and how transnational norms “touch down” in binding processes, court proceedings, contracts, or public proceedings that Shaffer and Halliday’s theory of Transnational Legal Orders reorients our thinking in a productive, and important, direction. Part V concludes

Disclosure of Information Concerning Climate Change: Liability Risks and Opportunities

The Commonwealth Climate and Law Initiative (CCLI) has published two legal research papers on Canadian fiduciary duties and disclosure obligations in the climate change context. In Obligations in Business and Investment: Implications of Climate Change, legal analysis by Dr Janis Sarra, Presidential Distinguished Professor and Professor of Law University of British Columbia, shows that directors, officers and pension fund trustees must identify and address climate-related financial risk or they may be personally liable for breach of their fiduciary obligation or duty of care. In Disclosure of Information Concerning Climate Change: Liability Risks and Opportunities, Cynthia A. Williams, Osler Chair in Business Law, Osgoode Hall Law School, considers the Canadian legal framework for corporate disclosures and reporting of climate risk, current disclosure practices of companies and expectations of investors, and the liability risks to companies for misleading disclosures relating to climate change. These papers formed the basis of Directors\u27 Liability and Climate Risk: Canada - Country Paper, published in April 2018 as part of the series of national reports which were the first comprehensive legal assessments of the discharge of directors’ duties in the climate context