Evaluating today’s multi-dependencies in digital transformation, corporate governance and public international law triad

Abstract

The rapid digital transformation of contemporary societies has produced a collision of relationships between government institutions, private companies and the rules of public international law. As a result, a new type of homonymy has emerged based on emerging causality, connections and their intermingling in the legal environment across the world. Analysing technological evolution in relation to the responsiveness of organisations to digital change has opened up new avenues for corporate governance, which is why attention is being focused on the influences of digital tools and technologies in particular. These emergences are putting pressure on the doctrine to seek and develop new qualities in the same absolutely spontaneous and unpredictable way. The focus is on how these rules may or may not adapt to the new digital realities and how states and international organisations in particular are acting. Our assessment of multidependencies revolves around the question: will they permeate the codification of international law norms and if so, to what extent? On the basis of these assessments, the article puts forward a series of findings and proposals for improving the coherence and effectiveness of regulation now on the battlefield between digital transformation, corporate governance and public international law.

Keywords:

• Corporate governance
• public international law
• digitisation
• technology
• legislative adaptation

JEL Codes:

• G30
• K33

Reviewing Editor:

• Heng Choon (Oliver) Chan, Department of Social Policy, Sociology, and Criminology, University of Birmingham, Birmingham, UK

Subjects:

• Public Law
• International Law - Law
• Regulation

1. Introduction

Our paper aims to test the hypothesis that the rapid and extensive digital transformation of contemporary society has created a network of interdependent relationships between governmental institutions, private companies and public international law norms. Furthermore, these emerging interdependencies prompt a re-evaluation of how these three domains influence each other, leading to conclusions that highlight the necessity for developing new rules or adapting existing ones to address the new digital realities. The focus is on the dynamics of international law and the potential future development of a new branch of law called international law of corporate governance. Although there is no ‘international law of corporate governance’ in the traditional sense, there exists a robust framework of international principles and standards that guide corporate governance globally. These are promoted and implemented by various international organisations and are essential for promoting transparency, accountability and fairness in corporate conduct worldwide. A number of substantial linkages between the components of this triad can be said to be ongoing, particularly in terms of the interference of digital transformations with transnational business, society and the environment. These have all today formed a mechanism for which precision is required and which could not function optimally without one of its components. If until now the analysis has been more bipolar: digitisation-corporate governance¹ or digital transformations in public international law,² we can now easily deduce that digitisation and technological developments, in general, are the strongest link between the cardinal points of our triad.

Corporate governance is no longer so far removed from international law, but is in the midst of legal, political and societal phenomena of visible interference. Corporate governance is increasingly influenced by international regulations and standards, such as those issued by the OECD, IFRS,³ and other international bodies. It is also affected by treaties, through compliance standards that companies must adhere to, particularly concerning human rights, environmental protection and anti-corruption measures, being closely linked to various branches of international law, including international trade law, environmental law and human rights law. International political decisions impact corporations, as do the policies of national governments that implement and comply with international agreements. Political phenomena, such as sanction regulations or trade policies, directly affect how companies are governed. Societal pressures, including demands for corporate social responsibility (CSR) and sustainability, are now integrated into corporate governance strategies. Civil society and consumer expectations for greater transparency and accountability are part of the new paradigms of corporate governance. A corporation’s actions can have significant repercussions beyond national borders.

Global initiatives, such as the UN Global Compact, emphasise the necessity of adhering to responsible and ethical corporate governance principles. These initiatives form part of the legal, political and societal landscape in which companies operate.

At the same time there is a shift from political to legal language. The prognosis is for the solidification and formalisation of our triad structure at an early stage. Here, the pace of development of new technologies will set the pace for the certification of this meeting: digitisation-corporate governance-international law.

‘Technological development and the growth of the digital economy have profoundly changed the character of corporations, capital markets and indeed the structure of the global economy in general. Naturally, this has implications for corporate governance’.⁴ Examples are increasingly tangential to extensions such as: the use of technology to improve market surveillance and enforcement of company law, corporate governance requirements and disclosure efficiency; digital tools to facilitate remote and hybrid participation in general meetings of shareholders (GSM); digital security risks and the role of the board in managing them; and how digitisation can encourage the development of digital primary public share markets. Corporate governance is presented as one of the many sectors that will see an explosion of digitisation triggered by the COVID-19 pandemic. Only by following this line of thinking do we arrive at the need to establish necessary safeguards against exacerbating digital security risks such as cyber attacks. Furthermore, adequate protection against these cross-border risks cannot be configured outside public international law.

Another example of linkages relates to the respect of human rights and environmental standards by multinational companies, specificities that arise, of course, from public international law. If we were to exemplify, we would point to the existence already of numerous international conventions governing technological change, workers’ rights and environmental standards, as well as international agreements aimed at preventing corruption and promoting transparency in business. Corporate governance - as currently discussed - is the fuel for promoting sustainable development, which in turn is an important objective of public international law. In the spirit of this model, companies will be required to comply with the principles of corporate social responsibility (CSR), such as considering environmental impacts in their business decisions and promoting sustainable development in the communities in which they operate. The explanations in this material focus on the seemingly neglected connection between international law and corporate governance, whether this is due to technological transformations or as a pre-existing link. However, we find public international law in the setting of corporate governance standards globally, through bodies such as the United Nations and the World Trade Organisation, organisations that can promote best practice such as transparency and accountability in the conduct of international business.

In this landscape, international investors in particular are naturally turning to public international law standards complemented by these good corporate governance practices in their business decisions. International investors rely on public international law standards and good corporate governance practices in their business decisions, because if their investment is protected by treatment standards, their chances of being covered by treaties increase. This is relevant since investment treatment standards form the largest and most important part of the body of investment treaties. Currently, investment treaties include standards for the protection of international investments such as ‘fair and equitable treatment’ (FET), national treatment (NT), most-favoured-nation (MFN) clause, absolute right to compensation in certain circumstances, minimum standard of treatment (MST), or specific treatment standards that refer to particular aspects of an investment, such as the prohibition of performance requirements (which are, in reality, means of selecting foreign investors), monetary transfers, expropriation and investor rights during periods of war, revolution, or civil unrest.⁵ To protect foreign investors against the political risk arising from placing their assets under the jurisdiction of a host state, investment treaties impose obligations on host states regarding the treatment they must accord to covered investments and investors.⁶

In accordance with public international law, domestic regulations must be correlated with the minimum set of rights recognised to foreigners. It can be argued that the economic sovereignty of states is a combination of the opportunities they have in making individual decisions regarding issues related to the development of their own economies, as only a sovereign state can protect its national and economic interests, as well as the interests of its citizens both at home and abroad. In reality, all states act, to a greater or lesser extent, as intermediaries between global and national economies.

Looking at technological developments, we observe the need for new, modern standards of protection and legal treatment afforded to foreign investments. The identification of new standards leads to the adaptation of existing investment treaties or the drafting of new treaties to address emerging and disruptive technologies. Our focus is on international law as the only branch that could help fill regulatory gaps universally.

We know that investment treaties do not yet contain provisions or standards of treatment that are explicit in relation to new technologies. Work on such codifications is currently underway with two possibilities in mind: adapting existing treaties or drafting new ones with a very specific subject matter relating strictly to emerging and disruptive technologies, for example. If we look at the 1968 Vienna Convention on Treaties, in respect of the interpretation of the object and purpose of a treaty, it seems more optimal to move towards new treaties. Otherwise, we may burden the interpretation of existing treaties.⁷ For corporate governance there is a theoretical application of extraterritoriality designed to encourage national or international companies to adopt corporate governance practices more in line with the OECD Guidelines (and even to implement them).

Extraterritoriality refers to the application of laws and regulations of a state beyond its own borders. In the context of corporate governance, this means that the standards and governance regulations of a particular jurisdiction can influence or be applied to companies operating in other jurisdictions as well. The aim of applying extraterritoriality to corporate governance standards is to create a more uniform and responsible business environment globally. The OECD (Organisation for Economic Co-operation and Development) has developed a set of principles and guidelines for corporate governance that are internationally recognised (best practices for transparency, accountability and shareholder rights). Applying extraterritoriality in this context means that countries and companies are encouraged to adopt these guidelines even if they are not directly obligated to do so by their national legislation. Multinational companies, for example, are subject to pressures to adhere to international standards because they operate in multiple jurisdictions and must manage the varied expectations of investors, regulators and other stakeholders. They may be motivated to adopt these standards to access international markets, attract global investors and benefit from a better reputation. Along this line of logic, failure to comply with these standards can lead to sanctions, difficulties in accessing international markets, or loss of investor trust. The emphasis is on uniformity of responsibility and transparency in business.

The analysis may start, for example, from the role that an international financial centre asserts in inherent influences across borders and converge on how the systems used might influence the set of corporate governance laws and practices of a foreign jurisdiction: ‘the mere potential to exercise such a jurisdiction teaches us about the expanding and fascinating use of international law’.⁸ In this light more and more theorists are launching discussions about the globalising market versus international rules in this dynamic.⁹

2. Materials and methods

For this article, a comparative research method was used, which allows a meta-analysis of relevant arguments that can lead to effective reasoning. Mainly primary sources were used, which were complemented by secondary sources. Our mode of analysis and the chosen research topic itself are relevant and scientifically novel because they contribute to a better and realistic understanding of the international context, identify risks and opportunities, aim to optimise corporate governance, bring to the fore the need for compliance with international legal norms, develop policies and regulations and promote corporate responsibility.

We have deepened the investigation of the current multi-dependencies within this triad by combining critical state-of-the-art analysis, relevant literature, some case studies and elements of international legal theory for the broadest possible outline of the intricate interactions and relationships between these fundamental spheres. The search for and establishment of the multidependencies but also the known boundaries of these fields brings clarity by providing vital information to the decision-making process not at national but at international level. On the basis of this information, discussions and analyses can be continued and appropriate strategies can be developed, with an awareness of the existence of these legal phenomena as a prerequisite for concrete international legal relations. The arguments of this paper centre on the fact that digitalisation and technological development have profoundly changed the nature of corporations, capital markets and the structure of the global economy.¹⁰ Corporate governance is no longer so distant from international law, now being integrated into interconnected legal, political and social phenomena. The question arises as to whether and to what extent these connections, which form the triad under our evaluation, will influence the codification of international law norms. At another level, there is a need for a more adapted correlation between the respect for human rights, environmental standards and corporate governance with public international law norms.

3. Discussions and results

3.1. Multi-dependencies

To date, the role of international organisations in certain corporate governance regulations has been evident, an example being the Principles of Corporate Governance formulated by the OECD,¹¹ assessed by the World Bank through the ROSC process.¹² In exercising their specific powers, there has been a tendency for international organisations to make the Principles more palatable to a wider range of stakeholders by giving them a general interest orientation, in line with a proceduralist definition of the public interest.¹³ This was one of the ways in which it was established that at the international level, standards enhance transparency. At the same time, they are a prerequisite for the evolution of related digital regulations. They identify weaknesses that can contribute to digital, economic and financial vulnerability; they foster market efficiency and discipline; and at the national level, standards provide benchmarks to identify vulnerabilities and guide policy reform. As the World Bank Reports on the Observance of Standards and Codes (ROSC) indicate, to best achieve these two objectives, the scope and application of these standards must be assessed in the context of a country’s overall development strategy and they will be tailored to individual circumstances. It was against this background that the World Bank and the International Monetary Fund (IMF) launched the joint ROSC initiative, covering a set of twelve internationally recognised core standards and codes relevant to economic stability and private and financial sector development.¹⁴

These interactions have been joined over time by others, especially in the field of communications and new technologies, so that we can talk about international corporate governance. The use of artificial intelligence has led, for example, to governments adopting SupTech solutions and changing the behaviour of companies, making them more accountable. In concrete terms, companies (or even government authorities) will ‘adjust’ the information they publish when it is generated or managed by AI systems.¹⁵ Just as we can now discuss an international public law and an international public law,¹⁶ similarly, we can discuss both an international law of corporate governance and international corporate governance law. Like there are distinctions and interconnections between public international law and international public law, we can conceptualise two distinct yet complementary approaches regarding global corporate governance: the emergence of an international law of corporate governance based on the development and establishment of global norms; and international corporate governance law that already exists and is based on the implementation and enforcement of specific norms in various national and corporate contexts. In other words, the international law of corporate governance is more theoretical and normative, focusing on the development and promulgation of global standards. In contrast, international corporate governance law is applicative and operational, focusing on how these standards are implemented and adhered to in diverse jurisdictions.

This dichotomy, already observed in theory, leads us to understand how the public-private divide, with all its problems, nevertheless provides an important stock of knowledge for elaborating these differences. Of course, there are attempts to construct global legal regimes, in particular the legal regime of foreign investment (in new technologies e.g.) or through the use of human rights. However, even if some aspects of human rights apply directly to private institutions, we can still discuss both international human rights law and many differentiations.¹⁷ All this is possible because of the multidimensional nature of corporate governance. In order to arrive at a result it is necessary to identify the main concepts and paradigms explaining diversity between states. As noted in the theory, we must start from the fact that comparative corporate governance has been and is understood from four different academic perspectives: economics and management, culture and sociology, legal and political paradigms and, most recently, the paradigm of new technologies and international law. These aspects obviously lead to the idea of inter- or multi-disciplinary research.¹⁸ Corporate governance is essentially about balancing the interests of a company’s many stakeholders, such as shareholders, executives, customers, suppliers, financiers, government and the community.¹⁹ When we turn our attention to multidisciplinary or even transdisciplinary research that is better suited to discovering what lies between and beyond current disciplines, as would be good for regulating new technologies, we see that these very methods are considered complex and are rarely if ever used in practice.²⁰ New technologies, such as artificial intelligence, biotechnology, or blockchain, have multiple implications that cannot be efficiently researched from a single disciplinary perspective. Regulating them requires understanding not only technical aspects but also ethical, legal, economic and social ones. Multidisciplinary and transdisciplinary methods are built upon coordination, effective communication and a detailed understanding of various disciplinary aspects. Despite their evident benefits, they are rarely used in practice, often due to logistical and administrative difficulties, lack of resources or adequate funding, institutional and cultural barriers that favour traditional disciplinary research and insufficient training of researchers. However, future research is structured upon the call for the development and promotion of more integrated and collaborative research methods. Therefore, something needs to change in research methods as well.

Following the logical thread highlights the importance of multi- and transdisciplinary study of the relationships between the three areas and the development of the arguments identified below. Digital transformations are redefining the way organisations operate, with significant implications for corporate governance and public international law. Technologies such as cloud computing and data analytics are changing the way decisions are made, where the impact on international relations is analysed in the light of digital change. Public international law, meanwhile, regulates relations between states in the context of digital globalisation and is affected by how international agreements and treaties adapt to new digital mixes, such as data protection, cyber security, or the ethical and legal issues generated by evolving digital technologies. Here the focus turns to treaties and their malleability in the face of this dynamism.²¹ The modification of treaties or their susceptibility to successive modifications may affect the interpretation of their object and purpose, making them vulnerable to the violation of a provision essential to the realisation of the object or purpose of the treaty or even to the emergence of situations that may thwart their implementation. In order to eliminate as far as possible problems of interpretation, we consider that it is more favourable to create new treaties whose purpose is merely to codify with precision the rules that are thirstily required by the triad that is the subject of our material. To sum up, we can say that decisions in one area may have repercussions on the others. What is certain is that today’s ‘maps’ of international law are becoming heavily influenced by technology and may include both ‘global’ digital cities and continents full of the edifices of this field. As a result, the focus will be on adopting international, especially regional, rules that are as clear, appropriate, adapted and applicable as possible without problems of interpretation.

All these mutations reconfigure the conceptual boundaries of the discipline and research to include new territories of technologies.²² ‘Geography and technology are dynamic because new technologies can change the political and strategic implications of geography’.²³ At the macro scale of geopolitical connection with international environmental law we can point to the case of Akademik Lomonosov, a nuclear power plant operating as an autonomous energy facility in the form of an unpowered tugboat, owned by Russia’s Rosatom State Atomic Energy Corporation. It has been characterised as essential for powering the Arctic, which has propelled Russia’s geopolitical strategy of being a major power on the international stage.²⁴ We have given just one example that highlights the relevance of connections such as those at the heart of our article: environmental law, peace and security, sovereignty or international politics. Discussions can go on about economic capacity, technologies, territory, or population as essential prerequisites for any state and military power, more precisely everything we understand by power.

Another particular example is the public-private partnerships in international business and the joint initiative ‘Build Back a Better World’ launched by G7 leaders in June 2021, when they met in Cornwall in the UK to promote infrastructure in developing countries. ‘The G7 and other like-minded partners will coordinate in mobilising private sector capital in four focus areas - climate, health and health security, digital technology and gender equity and equality - with catalytic investments from developing financial institutions’.²⁵ Once again it is demonstrated that the existence of community interests has motivated and continues to motivate states to engage in the development of specific multilateral treaties.²⁶ For the accuracy of our work we will not delve into all these cases or sides of the multidimension but will keep identifying and demonstrating their existence in order to trace the coordinates of the zero point where we are today.

3.2. Link or interference?

In a carousel where data is becoming the currency, corporate governance must integrate effective cybersecurity strategies to protect sensitive company information and maintain investor confidence. In this space, decision-making processes are being reshaped by advanced data analytics, demanding an adaptive response from corporate governance structures. As a triad, the interference between corporate governance, digitalisation and public international law can be identified in different contexts, including in this setting. Horizontally, corporate governance refers to the set of rules, practices and processes by which companies are governed and controlled. We discuss here the responsibility of the board of directors and other decision-makers for making strategic decisions, implementing policies and monitoring company performance. We see how corporate governance, while appearing to be more of an internal matter for companies, is nevertheless regulated vertically through national laws and international standards.

On the other hand, public international law as a set of rules governing relations between states and other international entities such as intergovernmental organisations and foreign natural and legal persons operates by breathing international conventions. In terms of the interference between corporate governance and public international law, we find a multitude of situations in which companies have to take into account and even comply with the rules and norms of public international law, such as companies operating in more than one state having to comply with the legal and administrative regulations of each individual state, including human rights, environmental protection and other international standards. In these circumstances, the World Trade Organisation or the International Labour Organisation have issued international standards for corporate governance that aim to be integrated by companies, especially transnational companies.

As the binding element of the triad, digital technologies influence relations between states and the body of international law. Public international law is metamorphosing and acquiring new powers in the face of technological change, from data protection to cyber security, culminating in state responsibility. Issues such as digital border control and cyber threat management are becoming critical topics on the public international law agenda. The specialised literature knows discussions about new instruments of international law, or about their review and adaptation to respond to these multi-dependencies, all underlining the need for a set of uniform international rules in managing the technological effects on society.²⁷ Even the responsibility of states - treated with great caution until now - will be reassessed and developed in this atmosphere.

Corporate governance can no longer be viewed singularly, isolated from the context of international law, but it only functions normally through a standardised adaptation to international law. Nor is international law any longer statocentric but is carried by constructivism towards universality.

The interactions are woven into a web in which decisions made at the corporate governance level can influence regulatory practices globally, threads that intertwine with legislative changes in international law that can shape organisations’ approaches to managing emerging and disruptive technologies.²⁸ We consider the example that in the context of Russia’s technological advancement, a level at which China is reported to be at, the United States has made the development of hypersonic weapons a top Pentagon priority. The Defense Department’s main contractor is Lockheed Martin, which is running several programmes in parallel with budgets of several billion dollars, including the Tactical Boost Glide Vehicle, the Hypersonic Conventional Strike Weapon and Arrow for the air force and the Intermediate-Range Conventional Strike Weapon System for the navy. Hypersonic weapons development programmes are also being carried out by other major companies, such as Boeing and Raytheon, or by a consortium of Aerojet Rocketdyne, Sierra Nevada Corporation and Exquadrum formed under the aegis of the special OpFire programme. Corporate governance policies on social responsibility and more are needed to run such businesses. This laboratory of economic activity is primarily about bringing companies into line with international human rights and environmental standards. Discussions are not just taking place in the court of international economic law, but in the wider sphere of international business. Secondly, the above examples also show the relevance of developing strong standards in the field of international peace and security, an area which today more than ever is intertwined with new technologies manufactured by private companies. Take Raytheon UK, for example, which is a technology company focused on defence, aerospace, cyber and intelligence, with offices in the UK, England, Scotland and Wales. According to its website, it is a wholly owned subsidiary of Raytheon Technologies (formerly Raytheon Company) of the United States and has been active in the UK in one form or another for over 100 years.²⁹ Raytheon collaborates with other smaller companies, research and academic forums. At the micro level, its entire activity is under the banner of new technologies. Its case is not unique, so global legislative pressures have emerged (first in data protection for example, privacy being a centrepiece) that are causing organisations to review their governance practices to comply with international rules. Corporate governance is thus becoming more sensitive to the failure to respect fundamental principles of international law.

Even without precise demonstrations, it can be seen how the analysis of these areas in isolation is no longer feasible. Therefore, only by integrating aspects of governance, technologies and international legislation could we achieve the shaping of a sustainable and ethical ‘tomorrow’ for society. Another example is the right to privacy. Like the whole range of fundamental rights and freedoms closely related to technologies, developments have been marked by relevant case law. In this way, human rights have been brought back to the forefront of discussions within the international community and the United Nations (Cambridge Analytica). The United Nations, the international community and international law have moved towards a standardisation or alignment of human rights practices in the modern digital age.³⁰

But to discuss the triad that is the subject of our study, we should underline what is meant by ‘governed by public international law’. We know that international law is divided into two main branches: public international law, which governs international relations between states and other states or international organisations and private international law, which governs legal relations with foreign elements arising between natural persons in a conflict of laws. In turn, European Union (EU) law,³¹ by its characteristics, confers uniformity on the domestic law of the Member States, including in terms of corporate governance. The issues of this chapter will be analysed in the light of normative differences in the international legal order. We already know that EU law occupies a special place because of the specific characteristics that the European Union, as an international organisation, possesses.

The legal order is a set of distinctive rules to which is attached a set of original instruments of interpretation. Both in the EU Member States and in the countries of the world that have adopted a monist legal system, international law (and Union law for the Member States) takes precedence over national law.

According to Article 2(l)(a) of the 1969 Convention on the Law of Treaties, ‘the expression treaty means an international agreement concluded in writing between States and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation’. All States have special laws relating to international law. More specifically, a treaty is a legal act, however named or in whatever form, which records in writing an agreement at State, governmental or departmental level to create, modify or extinguish legal or other rights and obligations, governed by public international law and embodied in a single instrument or in two or more related instruments. Among the most important names for treaties, in addition to the main name of ‘treaty’, are the following: convention, agreement, pact, protocol, statute, declaration, compromise, general act, exchange of notes, joint communications, modus vivendi, joint and solemn declarations, arrangement, amendment, concordat, cartel, gentlemen’s agreement. These would therefore be the instruments through which international standards can be established and through which we can obtain a codification of the rules necessary for the proper functioning of our triad.

There is more than a link between public international law, technologies and corporate governance: there is an interference mainly due to the evolution of international law subjects, in which transnational companies have become important actors. In an 1860 textbook, Introduction to the Study of International Law, Theodore Woolsey began his definition of international law by stating

nations or organized communities of men differ from the individual men of a state, in that they are self-governing, that no law is imposed on them by an external human power, but they retain the nature of moral responsibility which lies at the foundation of a single society.³²

Over time, these concepts addressed by Woolsey evolved and became more explicit, growing into a set of doctrines, rules and norms known as public international law. Today they are more topical than ever when it comes to ethics and practice. Indeed, there are some influential papers on how international organisations attempt to influence corporate governance³³ and on how corporations influence the development of international law.³⁴ Or, it is precisely the latter that marks the road to codification.

So by ‘being governed by public international law’, we mean being governed by that body of law created by the interactions between nations or by the conduct of states and their relations with other states and, to some extent, their relations with individuals, business organisations and other legal entities. Nations adhere to the concepts of international law through treaties, customs and interpretations given both by their own domestic courts and by international tribunals. This operation of accession forms the very interface between public international law, digitisation and corporate governance. Because we have brought justice and tribunals into the discussion, it has been argued in theory that ‘fundamentally, courts cannot decide in which area of law they should look for answers, be it public international law, goodwill, domestic constitutional law or private international law’.³⁵

Without detailing current developments in the doctrine of recognition of public international law, the assumption has arisen that the act of recognition no longer constitutes, but merely declares, the sovereignty of a state in its statehood. Some problems have arisen only at the jurisprudential level, in the area of the foreign act doctrine. In this case it was noted that since states do not have an inherent right to have their laws recognised and enforced by other states, there is no obligation to recognise and enforce foreign legislative or executive acts without assessing their validity or legality.³⁶

However, of interest to this study is the normative level of interference between international law and corporate governance, which is a starting point for our theory, without which we cannot reach effective conclusions.

Good corporate governance vis-à-vis technologies implies the assumption of a coherent system of structures, rules and practices, based on statutory documents and corresponding internal documents (regulations, procedures, resolutions), whereby: - defining responsibilities, powers, roles and decision-making powers in the management of the company (between the General Meeting of Shareholders, the Board of Directors and the Directors); - regulating the constitution and functioning of the management structures; - ensuring the functioning of an efficient risk management and internal control system; - establishing and communicating, in a transparent manner, the elements of remuneration of the members of the management; - ensuring a transparent, continuous and complete flow of useful information to the actual and potential investors of the company. All of these are found in almost all corporate governance codes. Thus, more and more companies have adopted their own codes or guidelines aiming at building a corporate governance system that ensures not only the application of the relevant legislation, but also of the principles of the corporate governance codes of the related stock exchanges and of best practices in its field of activity. They must act in a manner appropriate to their stage of development and with the objective of building the long-term confidence of shareholders, potential investors, business partners and all other stakeholders. There are still many solutions to be identified because while ethics are more easily brought to the fore, trust and trustworthiness are not reflected in international law on digital technologies. So is international communications law. Recently the literature has propelled these discussions where the concept of trust appears branched into: developer responsibility, power relations between users and developers of artificial intelligence systems, suitability to administrative conditions and benefits associated with the use of artificial intelligence systems.³⁷ In this process, companies, for example, have their own corporate governance codes that are based on specific national legislation, principles developed by the Organisation for Economic Co-operation and Development (OECD) and national and international best practices on corporate governance.³⁸ However, the alignment or standardisation mentioned above requires international standards recognised by international law. In countries with a monist system, the priority of international law over domestic law gives greater force and importance to the triad analysed in this material.

All these coexist within the same international or national framework, including by reference to constitutional provisions.³⁹ If we also consider public law, we see that it harmoniously complements our theory, as it is inextricably intertwined with public policy and politics and the virtually universal use of proportionality analysis within it.⁴⁰

Our observation comes against the background of several views that the distinction between public and private international law does not reflect an organic, natural or inevitable separation, although this public/private distinction provided the ideological conditions for the emergence of liberal market economies and, in law, formed the foundation of territorially individualised state authority. If we look at the set of international tax reforms or the set of conditions for the standardisation of co-corporate governance, we see how these developments reconfigure the private and public spheres and contribute to the empirical decline of the distinction.⁴¹ In theory, the ‘decline’ of these distinctions has been observed, based on the blurring of the separation between private and public authority in the current conditions of globalisation and privatisation. Thus a corporate/legal/governmental elite has been consolidated and opportunities and resources for private actors to create and enforce international technology trade rules have been increased, conditions in which we are witnessing a reconfiguration of the relationship between public and private authority.⁴² To some extent, the differences between public and private international law operate at two levels: 1) as a separation of academic disciplines; and 2) as a separation of legal doctrines. But whenever we consider new possibilities for codification, we can consider the similarities, differences and interferences of the two.

At the same time, the current debates on corporate governance bring to the fore issues such as the temptation to develop and use codes, sanctions and procedures that will help encourage and support wise policies and good practices. In this spectrum, debates appeared about the internalisation but also about the internationalisation of values and objectives.⁴³ In reality, these trends represent two poles that are attracting each other and will chart future directions of development.

4. Conclusions

We have seen that public international law deals with matters relating to states, international organisations and, to a very limited extent, corporations and individuals who raise ‘an international legal interest’.⁴⁴

However, some differences between private and public international law remain to be explored and developed, especially as they are particularly relevant in the constitution of identity in the global digital political economy. Differences exist from episode to episode, depending on specific standards and limitations.⁴⁵ These analyses, in order to be useful to our research, are specifically directed towards international trade relations and international communications and new technologies law. Conflict of laws issues are now subject to an increasingly tight web of national, supranational and international provisions and there is a need for a clearer delineation or delimitation of the notion of regulation in the relationship between private international law and global or/and international law, with emphasis on public policy to protect global goods or common interests such as natural resources, employee health or competition. Inherently there will always be or be gaps in specific legal provision, but these could be compensated for by reference to general principles and minimum standards in public international law and transnational norms constructed from comparative law. Jurisprudence can unify its ‘forces’ and contribute to the emergence of a global minimum standard, which would outlaw the most egregious behaviour in the cross-border context. These trends have been seen in theory as developments rather than revolutions that make improvements at certain points to accommodate the need for global cooperation and governance. The focus needs to be on the application of international regulatory rules that promote what we mean by global governance.⁴⁶

All the current reforms and developments in technology and in various complementary areas of corporate governance are definitely leading us into a new era of corporate governance and accountability⁴⁷ in which the responsibility of the states, above all, will be more and more visible. We are witnessing the formation of a new type, a new form. We are in the presence of a hybrid form but with a very specific character, based on the balance between their economic mission and their social and even military mission. The way in which the difference between uniformity and the preservation of specificities will be managed is directly proportional to the future cooperation of the economic and legal environment, through the involvement of the academic environment. Within this framework, inter- and multidisciplinarity, along with even transdisciplinarity, have the quality of providing the most appropriate research methods for this subject.

In conclusion, the interdependencies analysed in our article have a profound impact on business, society, the environment and even international peace and security, highlighting the need for careful attention and effective management. In this field, a continuous normative adaptation is required, emphasising the importance of corporate social responsibility linked to the responsibility of states, with the basis of an appropriate codification of these metamorphoses.

Author contributions

Conceptualisation, C.E.P.T. and C.S.S.; methodology, C.E.P.T.; software, C.E.P.T. and C.S.S.; validation, C.E.P.T. and C.S.S.; formal analysis, C.S.S.; investigation, C.E.P.T.; resources, C.E.P.T. and C.S.S.; writing-original draft, C.E.P.T.; writing-review & editing, C.E.P.T. and C.S.S.; visualisation, C.E.P.T.; supervision, C.E.P.T. and C.S.S.; project administration, C.E.P.T. and C.S.S. All authors have read and agreed to the published version of the manuscript.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

Data are contained within the article. Share on reasonable request which means that we agree to make data and materials supporting the results or analyses presented in our paper ‘available on reasonable request’.

Additional information

Funding

This research did not receive external funding.

Notes on contributors

Cristina Elena Popa Tache

Cristina Elena Popa Tache is a researcher member of CIRET - Center International de Recherches et Études Transdisciplinaires Paris, associate professor at the Bucharest University of Economic Studies and Faculty of Psychology, Behavioral and Legal Sciences of the “Andrei Șaguna” University in Constanța, Romania.

Cătălin Silviu Săraru

Cătălin Silviu Săraru is associate professor Faculty of Law, Bucharest University of Economic Studies; associate member of the Romanian Academy of Scientists, Romania.

Notes

1 See OECD (2022).

2 See generally Golia et al. (2022).

3 IFRS stands for International Financial Reporting Standards. These are accounting standards developed by the International Accounting Standards Board (IASB) to provide a global framework for how public companies prepare and disclose their financial statements.

4 See OECD (2022).

5 See UNCTAD (2007, p. 28). For a comprehensive analysis, see Popa Tache (2021a).

6 See Calamita (2020, p. 51).

7 For example, Article 41 of the Convention on Treaties concluded at Vienna on 23 May 1969 - Agreements relating to the modification of multilateral treaties only in relations between certain parties, states very clearly that: ‘1. Two or more parties to a multilateral treaty may conclude an agreement to modify the treaty only in their mutual relations; (a) if the possibility of such modification is provided for in the treaty; or (b) if the modification in question is not prohibited by the treaty, provided that: (i) it does not affect either the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; and (ii) it does not affect a provision from which derogation is not possible without being incompatible with the effective execution of the object and purpose of the treaty as a whole’.

8 See Michael et al. (2020).

9 See Kim (2002). Globalization of markets refers to the phenomenon whereby economic markets become increasingly interconnected at a global level, particularly in terms of international trade, cross-border investments, and the mobility of capital and labour. In contrast to the increased competition, accelerated innovation, and expanded access to global markets, issues such as economic inequalities, unfair trade practices, and negative externalities (e.g., pollution) may arise. International rules established through treaties, conventions, standards, and regulations are accepted and applied by multiple countries to govern international economic and trade relations, such as agreements of the World Trade Organization (WTO), OECD rules, and regulations issued by international financial organizations. On one hand, market globalization necessitates rules that are flexible enough to adapt quickly to economic and technological changes. On the other hand, international rules tend to be more rigid and require time for negotiation and implementation. All this is compounded by the subtle tension between the national sovereignty of states, which seek to maintain control over their economies, and the need for international rules to ensure a fair and functional global market. Increased interdependence, in turn, requires harmonization of international regulations to prevent social and environmental dumping and to ensure fair competition.

10 Responsibility and corporate governance must be promoted and optimised, and in this context, the use of technology enhances market oversight and the enforcement of corporate legislation. For instance, digital tools facilitate remote participation in general shareholders’ meetings and manage digital security risks.

11 OECD is the acronym for Organisation for Economic Co-operation and Development.

12 The overview of the Reports on Observance of Standards and Codes (ROSC) examines the objectives and applied methodology of the ROSC Accounting and Auditing (ROSC A&A) programme, and in particular its role in the wider context of the international financial architecture exercise. See for more details: https://cfrr.worldbank.org/sites/default/files/2019-11/419550WP0ROSC11iew0321443B01PUBLIC1.pdf, accessed 24.02.2023.

13 See, for some examples, Baker (2012).

14 According to the documents, the 12 standards were: data dissemination, fiscal transparency, monetary and financial policy transparency, banking supervision, securities market regulation, insurance supervision, payments and settlements, anti-money laundering, corporate governance, accounting, audit and insolvency, and creditors’ rights. Source is “The World Bank Reports on the Observance of Standards and Codes (ROSC),” 2004.

15 See Cao et al. (2023) and di Castri et al. (2020). Another example is when considering the use of RegTech by companies and its disclosure implications, and the relevance of Principle V of the G20/OECD Principles.

16 See for details, see von Bogdandy et al. (2017).

17 See Teubner (2012, pp. 82–85); Viellechner (2013, pp. 287–290); Uwe Kischel (2015, p. 101), at von Bogdandy et al. (2017).

18 See Aguilera and Jackson (2010).

19 See for “Inter- and multidisciplinary Links of the Concept of Corporate Governance,” 2023.

20 See Popa Tache and Săraru (2023).

21 See Popa Tache (2023, pp. 81–90).

22 See Pearson (2008).

23 See Zhengyu (2018).

24 In June 2019, Rosenergoatom, a subsidiary of Rosatom, secured a licence from the Federal Environmental, Industrial and Nuclear Supervision Service (Rostechnadzor) to operate the floating nuclear plant for 10 years, until 2029. See Melchiorre (2022).

25 See The White House Press Release (2021).

26 See Lo Giacco (2023).

27 See Wu (2021).

28 According to the definitions identified, disruptive military technology is an improved or completely new technology capable of producing fundamental changes to traditional security and defence models.

29 See Raytheon UK company website available here: https://www.raytheon.co.uk/who-we-are/about, accessed 02 February 2024.

30 See Humble (2021).

31 EU is the acronym for European Union.

32 See Woolsey (1872, pp. 28–31).

33 See Pargendler (2021).

34 See Arato (2015).

35 See Ti-Chiang (1951, pp. 146–147); Talmon (2005); and Mann (1943).

36 See Teo (2020).

37 See Rochel (2023).

38 This covers a wide range of activities: publication of annual and summary reports, newsletters, sending press releases and organising events, organising and participating in meetings with counterparts from international companies in the field and potential investors or funders, participating in events organised in the field (nationally and internationally), developing its own website and updating documents and information thus published.

39 See Sweet and Mathews (2019); Săraru (2015); and Popa Tache (2021b).

40 See Jakab et al. (2017, pp. 782–791).

41 See Claire Cutler (1997).

42 See for the beginnings of these discussions: Fredric (1991).

43 See Terry Editor (1996).

44 See Paul Joel (1988).

45 See Kritsiotis (2012).

46 See for similar theoretical developments see Symeonides (2014); Kegel and Schurig (2004); Mayer and Heuzé (2004); and Lehmann (2020).

47 See Temouri et al. (2022).