24 Indiana Journal of Global Legal Studies 15 (2017)
This contribution advances the argument that global self-regulation through corporate social responsibility codes can and should be enforced under domestic private laws. Corporate social responsibility codes are defined as unilateral corporate commitments that indicate a corporation's willingness to take on a global regulatory role in the absence of a global political government-a phenomenon that is difficult to grasp from the perspective of traditional private law categories. The contribution thus starts by discussing the aspects in which private corporate codes and private law categories seem not to fit, and points to recent developments in substantive private law that could change this situation, namely case law, statutory reform, and the novel contract designs used by private actors to effectuate their corporate social responsibility codes, which private law can rely upon. This contribution argues that these developments provide sufficient ground to assume a gradually evolving readiness within substantive private law to provide for the enforcement of these corporate social responsibility codes. Subsequently, the contribution focuses on the normative side of the argument. From a sociolegal perspective, the main reason in favor of enforcement is identified in the specific social potential and the risks created through these corporate codes for a globalized society that private law has to help mitigate. Based on this argument, the contribution continues by discussing the possible actors that could realize enforcement. First, it identifies domestic courts as important actors to enforce this type of global self-regulation, and, in this context, analyzes how, in order for domestic courts to pursue such an enforcement strategy on the basis of substantive private law, private international law equally requires a transformation. Second, the contribution considers international arbitral tribunals as additional institutions that could be entrusted with the enforcement if related changes in domestic arbitration laws can safeguard the function of domestic courts to monitor this enforcement role of arbitrators.
"Legalization Under the Premises of Globalization: Why and Where to Enforce Corporate Social Responsibility Codes,"
Indiana Journal of Global Legal Studies: Vol. 24:
1, Article 2.
Available at: https://www.repository.law.indiana.edu/ijgls/vol24/iss1/2