- Charles Duhigg and David Barboza, ‘In China, Human Costs are Built into an iPad' New York Times, 25 January 2012, www.nytimes.com/2012/01/26/business/ieconomy-apples-ipad-and-the-human-costs-for-workers-in-china.html?pagewanted=all&_r=1&.
- Reuters, ‘Work Conditions Said to Improve at Apple Supplier’ New York Times, 22 August 2012, www.nytimes.com/2012/08/23/technology/23iht-apple23.html.
- See Jennifer Bair and Florence Palpacuer, ‘From Varieties of Capitalism to Varieties of Activism: The Antisweatshop Movement in Comparative Perspective' (2012) 59(4) Social Problems 522.
- Lei No 12.663 sobre as medidas relativas à Copa das Confederações FIFA 2013, à Copa do Mundo FIFA 2014 e à Jornada Mundial da Juventude—2013, que serão realizadas no Brasil.
- According to the Brazilian government, the legal reform was due to the commitment assumed by the Brazilian president to secure the necessary legislative changes for the duration of the World Cup on the basis of the bidding agreement and the hosting agreement: http://export.gov/brazil/build/groups/public/@eg_br/documents/webcontent/eg_br_054867.pdf.
- The notion of enterprise differs from and goes beyond that of corporation. An enterprise can be seen as a network formed by a plurality of actors, including corporations, which exercise economic, political, legal, cultural etc power internally and externally to its formal scope. A shift from the restricted notion of the corporation to the broad idea of enterprise provides the intellectual means to better grasp the relevance and extension of private legal transplant as a silent phenomenon which is not limited to the closed sphere of corporations, but can affect third parties and also local communities. see Jean-Philippe Robé, ‘Multinational Enterprises: The Constitution of a Pluralistic Legal Order' in Gunther Teubner (ed), Global Law without a State (Dartmouth, 1997) 45–78; Jean-Philippe Robé, ‘L'Entreprise en droit' (1995) 29 Revue Droit et Société 117; Jean-Philippe Robé, ‘L'Entreprise au cœur du droit' (2010) 3 Les Cahiers de la Justice—Revue Trimestrielle de l'École Nationale de la Magistrature 111.
- The idea of the global production network was proposed by Ernst and Kim, who defined it as a production innovation which ‘combine[s] concentrated dispersion of the value chain across firm and national boundaries, with a parallel process of integration of hierarchical layers of network participants': Dieter Ernst and Linsu Kim, ‘Global Production Networks, Knowledge Diffusion and Local Capability Formation: A Conceptual Framework', paper presented at the Nelson & Winter conference, Aalborg, 12–15 June 2001, 1, www.druid.dk/conferences/nw/paper1/Ernst_and_Kim.pdf; Gary Gereffi, ‘The Organisation of Buyer-Driven Global Commodity Chains: How US Retailers Shape Overseas Production Networks' in Gary Gereffi and Miguel Korzeniewicz (eds), Commodity Chains and Global Capitalism (Praeger, 1994) 95; Jeffrey Henderson et al, ‘Global Production Networks and the Analysis of Economic Development' (2002) 9(3) Review of International Political Economy 436.
- See section IV on codes of conduct as sources of self-discipline.
- The effectiveness of the ‘transplant effect’ crucially depends on the mechanism selected to enforce the legal framework introduced within the special legal zone. In this paper I claim that the separation between the disciplinary body and the surrounding society creates a functional distance that reduces the possibility of a social, cultural, economic, etc, adaptation of the applicable law. Moreover, the disciplinary system of codes of conduct that I discuss in section IV and the de-territorialisation of investment arbitration represent sources of subtle power which enhance standardisation and respect for privately defined rules, to the detriment of legal singularity.
- In his book The New Imperialism, David Harvey expands the Marxist idea of ‘original accumulation’ and affirms that overaccumulated capital constantly needs to stretch its geographical or chronological scope, whether through the accumulation of unexploited cheap resources located within or outside the country of origin (minerals, land, labour, water, but also sub-prime mortgages with ballooning interest rates, pri vatisation of public services, etc), or through the shift from short-term to long-term investments (as in the case of the realisation of Keynesian policies focused on the creation of massive infrastructures). Once the transnational enterprise has created its global network of production by means of property and contract, it is interested in issuing codes of conduct that homogenise its activities everywhere, reduce transaction costs, concentrate control over peripheral areas of the network and increase its social and economic return. See David Harvey, The New Imperialism (Oxford University Press, 2003).
- See Alan Watson Legal Transplants: An Approach to Comparative Law (University of Georgia Press, 2nd edn 1993). See also Alan Watson, ‘Legal Transplants and Law Reform' (1976) 92 Law Quarterly Review 79; Alan Watson, ‘Comparative Law and Legal Change' (1978) 37 Cambridge Law Journal 313.
- See Naná de Graaff, ‘The Hybridization of the State–Capital Nexus in the Global Energy Order' (2012) 9 Globalizations 531; Bastiaan van Apeldoorn, Naná de Graaff and Henk Overbeek, ‘The Rebound of the Capitalist State: The Rearticulation of the State–Capital Nexus in the Global Crisis' (2012) 9 Globalizations 467;Bastiaan van Apeldoorn, Naná de Graaff and Henk Overbeek, ‘The Reconfiguration of the Global State–Capital Nexus' (2012) 9 Globalizations 471; Bastiaan van Apeldoorn and Naná de Graaff, ‘The Limits of Open Door Imperialism and the US State–Capital Nexus' (2012) 9 Globalizations 593.
- The concept of ‘legal singularity’ is amply discussed by Pierre Legrand, who is known in the world of comparative law for his stance against projects of legal ‘harmonisation’, ‘rationalisation’, ‘universalisation’, etc and in favour of law as a constellation of discourses that can never be the same as something that came before or that will come afterwards. In his work, Legrand discusses the dynamics between local law and meta-law, ie universal law or global law, and takes a bold stand against those ‘partisans of law-as-meta-law [who] readily refer to the transportability of law and, indeed, to the obviousness of the transportability of law’: Pierre Legrand, ‘On the Singularity of Law' (2006) 47(2) Harvard International Law Journal 517, 518. I do share Legrand's point on the local roots of any global phenomenon, including transnational enterprises, and I am concerned about the risk of homogenisation and rationalisation of law as a surrogate of a meta-law produced by non-democratic sources. See Pierre Legrand, ‘The Impossibility of “Legal Transplants”' (1997) 4(2) Maastricht Journal of European and Comparative Law 111; Bruno Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (Oxford University Press, 2006); Stephen Harrison et al (eds), Patterned Ground: Entanglements of Nature and Culture (Reaktion Books, 2004).
- Jedrzej George Frynas, ‘The False Developmental Promise of Corporate Social Responsibility: Evidence from Multinational Oil Companies' (2005) 81(3) International Affairs 581.
- See section IV below.
- Charles de Montesquieu, The Spirit of the Laws, Anne M Cohler, Basia Carolyn Miller and Harold Samuel Stone (eds) (Cambridge University Press, 1989).
- William Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants' (1995) 43(4) American Journal of Comparative Law 489, 503.
- See Watson, Legal Transplants: An Approach to Comparative Law (n 11).
- See Esin Örücü, ‘Law as Transposition' (2002) 51(2) International and Comparative Law Quarterly 205; Esin Örücü, ‘What is a Mixed Legal System: Exclusion or Expansion?' (2008) 12(1) Electronic Journal of Comparative Law, www.ejcl.org/121/art121–15.pdf.
- Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences' (1998) 61(1) Modern Law Review 11.
- See eg Legrand, ‘The Impossibility of “Legal Transplants”' (n 13) 113–14; Pierre Legrand, ‘Legal Traditions in Western Europe: The Limits of Commonality' in Rob Jagtenberg, Esin Örücü and AJ de Roo (eds), Transfrontier Mobility of Law (Kluwer Law International, 1995) 63, 68; David Nelken, ‘Towards a Sociology of Legal Adaptation' in David Nelken and Johannes Feest (eds), Adapting Legal Cultures (Hart Publishing, 2001) 7; Roger Cotterrell, ‘Is There a Logic of Legal Transplants?' in David Nelken and Johannes Feest (eds), Adapting Legal Cultures (Hart Publishing, 2001) 70; Roger Cotterrell, ‘Comparatists and Sociology' and David Nelken, ‘Comparatists and Transferability', both in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, 2003) 131 and 437 respectively.
- Halliday and Osinsky affirm that ‘[a]lthough often invisible and taken for granted, law is heavily implicated in the process of globalization. Economic globalization cannot be understood apart from global business regulation and the legal construction of the markets on which it increasingly depends …Law under writes economic globalization in all three of its institutional manifestations: in statutory forms by efforts to harmonize laws that will facilitate global trade, in regulatory forms by a vast enterprise of constructing transnational regulatory regimes to constrain global business, and in judicial or dispute resolution forms by the proliferation of forums to resolve disputes that occur in global trading regimes': Terence C Halliday and Pavel Osinsky, ‘Globalization of Law' (2006) 32 Annual Review of Sociology 447, 447 and 460.
- Boaventura de Sousa Santos, ‘Globalizations' (2006) 23(2–3) Theory, Culture & Society 393; Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (Cambridge University Press, 2002).
- See Watson, ‘Legal Transplants and Law Reform' (n 11).
- Martti Koskenniemi, ‘Empire and International Law: The Real Spanish Contribution' (2011) 61(1) University of Toronto Law Journal 1.
- See eg International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Art 1 (providing that ‘[a]ll peoples have the right to self-determination'); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 933 UNTS 3, Art 1 (‘All peoples have the right of self-determination’). For a recent discussion, see Dinah Shelton, ‘Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon' (2011) 105(1) American Journal of International Law 60, 60 (arguing that the right of self-determination is universal in scope, while noting no right to secession).
- Daniel Berkowitz, Katharina Pistor and Jean-Francois Richard, ‘The Transplant Effect' (2003) 51(1) American Journal of Comparative Law 163.
- Sally Falk Moore, ‘Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999' (2001) 7(1) Journal of the Royal Anthropological Institute 95.
- David Trubek, Diogo R Coutinho and Mario Schapiro, ‘Towards a New Law and Development: New State Activism in Brazil and the Challenge for Legal Institutions', University of Wisconsin Legal Studies Research Paper No 1207, http://ssrn.com/abstract=2144939.
- See section IV below.
- James A Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America (University of Wisconsin Press, 1981); Ugo Mattei, ‘A Theory of Imperial Law: A Study on US Hegemony and the Latin Resistance' (2003) 10(1) Indiana Journal of Global Legal Studies 383.
- Jonathan M Miller, ‘A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process' (2003) 51(4) American Journal of Comparative Law 839.
- See Gianmaria Ajani, ‘By Chance and Prestige: Legal Transplants in Russia and Eastern Europe' (1995) 43(1) American Journal of Comparative Law 93.
- See Heather Hughes, ‘Aesthetics of Commercial Law: Domestic and International Implications' (2007) 67(3) Louisiana Law Review 689.
- See Nuno Garoupa and Anthony Ogus, ‘A Strategic Interpretation of Legal Transplants' (2006) 35(2) Journal of Legal Studies 339; Anthony Ogus, ‘Competition between National Legal Systems: A Contribution of Economic Analysis to Comparative Law' (1999) 48(2) International and Comparative Law Quarterly 405; Ugo Mattei, ‘Efficiency in Legal Transplants: An Essay in Comparative Law and Economics' (1994) 14(1) International Review of Law and Economics 3.
- Elisabetta Grande, Imitazione e diritto: ipotesi sulla circolazione dei modelli (Giappichelli Editore, 2000). Grande provides an insightful example of legal transplant by imitation from and to core countries, and in particular between the United States, Germany and Italy.
- With the idea of ‘confusion’ I want to indicate the need for legal theory to move beyond the rigid separation among regimes, layers and orders. Neat fragmentation, both among nation states and among legal areas, is functional, I claim, to the expansion of capital as a force which is capable of profiting from gaps, conficts and competition, and of simultaneously operating in different places and on different levels of the legal spectrum.
- See Berkowitz et al (n 27).
- Michele Graziadei, ‘Legal Transplants and the Frontiers of Legal Knowledge' (2009) 10(2) Theoretical Inquiries in Law 723.
- John Agnew, ‘The Territorial Trap: The Geographical Assumptions of International Relations Theory' (1994) 1(1) Review of International Political Economy 53; Simon Reid-Henry, ‘The Territorial Trap Fifteen Years On' (2010) 15(4) Geopolitics 752.
- See Berkowitz et al (n 27).
- Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Instalment II of II)' (1991) 39(2) American Journal of Comparative Law 343.The author transplanted into law an idea originally formulated by the linguist Benjamin Lee Whorf in Language Thought and Reality (MIT Press, 1956).
- See Graziadei (n 39).
- For example, Graziadei's interesting opening to the micro-perspective on legal transplant does not look at the daily transplantation of law that takes place independently of its institutionalisation, nor does it offer a methodological approach capable of abandoning a state-based approach and of incorporating different actors. Rather, he refers to individual or collective ideology as ways to smooth legal change, but then he assumes that it replaces ‘prestige’ when it comes to selecting an external set of norms and transplanting it in the national legal context. See Graziadei (n 39).
- Adopting some of the existing vocabulary of legal transplant, it could be claimed that the content of an investment agreement and of a code of conduct may be determined by prestige and aesthetics rather than by the economic interest of the multinational actor. In particular, it can be said that codes of conduct, which tend to endorse different legislation and legal references just because of their public appeal or acceptance, are becoming a sort of legal patchwork with little coherence and internal organisation. Elsewhere, I look at the relationship between Europe-based extractive TNEs and codes of conduct, concluding that it is not possible to affirm that the ‘European origin’ of capital shapes the content of a particular code of conduct. see Tomaso Ferrando, ‘Codes of Conduct as Private Legal Transplant: The Case of European Extractive MNEs' (2013) 19(6) European Law Journal 799.
- Watson argues that legal transplant has characterised the history of any legal system, whether formalised into a state or not. However, when he considers the case of people-to-people circulation, he is not referring to a bottom-to-bottom transplantation that does not require the intervention of public authority. Watson, ‘Legal Transplants and Law Reform' (n 11) 21.
- See Jose Alvarez, ‘The New Treaty Makers' (2002) 25(2) Boston College International and Comparative Law Review 213.
- I am aware that the proposed shift from public transplant to private transplant does not take into consideration submerged forms of transplant, which operate via the transnational circulation of people on a global scale. For example, a strong legal pluralist approach would deny that law is exclusively produced and enforced by institutions, and would conceive migratory movements as proxies of legal transplant, as families and communities take their cultural and social relationships with them across borders and territories. However, this paper does not want to attempt a Copernican revolution; its aim is merely to expand the boundaries of the existing analysis without entirely defying its premises.
- See Frynas (n 14).
- Before the Lei da Copa was approved by President Rousseff, the Brazilian government had come under strong economic attack from FIFA, which indirectly threatened to withdraw the investment and to sue the state if it did not repeal the law and guarantee the ability to sell alcohol within the stadia. In particular, FIFA's General Secretary Jerome Valcke officially stated that beer had to be sold during the two football competitions, and that FIFA was going to have the ‘right to sell beer recognized in the law’. The arrogance of FIFA, underlined by many reporters and one of the reasons behind the protests at the 2013 Confederations Cup held in Brazil, was undoubtedly due to the multi-million dollar sponsorship agreement that would have been extremely costly to violate, and whose economic consequences would have been borne by the Brazilian state on the basis of the 2007 government guarantees signed by President Lula. see Matt Brooks, ‘FIFA: 2014 World Cup in Brazil Must Have Beer' BBC News Latin America, 19 January 2012; CNN, ‘World Cup Beer Battle Brewing between Brazil and FIFA', http://edition.cnn.com/2012/01/19/sport/football/football-brazil-alcohol-ffa/index.html.
- Philip Alston, ‘The Myopia of the Handmaidens: International Lawyers and Globalization' (1997) 8(3) European Journal of International Law 435.
- Yves Dezalay, Marchands de droit: la restructuration de l'ordre juridique international par les multinationales du droit (Fayard, 1992).
- See de Sousa Santos, ‘Globalizations' (n 23).
- Laura Näder, The Life of the Law: Anthropological Projects (University of California Press, 2002).
- See section IV below.
- I rely on the idea of ‘territoriality that deborders territory’ developed by Saskia Sassen, but apply the notion to the operations of private actors and to the construction of private legal territories within the public territory of recipient states. What I claim is that TNEs are capable of closing off some areas from the rest of the state territory, both legally and physically: not only are investments removed from legislative and judicial control of the public authority, but they are also separated from the rest of the area by means of fences, armed control, etc, which makes the areas inaccessible to the population. Saskia Sassen, ‘When Territory Deborders Territoriality' (2013) 1(1) Territory, Politics, Governance 21.
- Saskia Sassen, ‘Land Grabs Today: Feeding the Disassembling of National Territory' (2013) 10(1) Globalizations 25; Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (Columbia University Press, 1996); Harvey (n 10).
- The choice of the major multilateral investment banks, such as the World Bank and the European Bank for Reconstruction and Development, is to rely on multinational corporations for the realisation of infrastructure and development projects in developing countries. Consequently, we have witnessed rapid growth in the number of private agreements between TNEs and governments that aim at regulating investment and protecting private parties from the exercise of national sovereignty.
- A very interesting example is provided by Abigail Reyes, whose analysis focuses on the way in which the project for the Baku-Tbilisi-Ceyhan pipeline—realised by UK and US investors at the beginning of the century—produces national and international law throughout three states. Although the author does not present her argument from a ‘legal transplant’ angle, the creation and imposition of the principle of ‘freedom of transit of petroleum’ through the conclusion of three concession agreements and of an international convention can be read in this perspective. From a private legal transplant angle, the transnational corridor occupied by the pipeline becomes a special legal zone where the tailor-made concept of ‘freedom of transit of petroleum’ becomes binding law, and the conduct of states is subordinate to the economic interests of investors. See Abigail S Reyes, ‘Protecting the Freedom of Transit of Petroleum: Transnational Lawyers Making (Up) International Law in the Caspian' (2006) 24(3) Berkeley Journal of International Law 842.
- Tomaso Ferrando, ‘Legitimizing Accumulation by Dispossession: The State/Capital Nexus in Land-Related Investment Agreements' (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290022.
- Leo Panitch, ‘Rethinking the Role of the State' in J Mittelman (ed), Globalization: Critical Reflections (West-view, 1996) 78–94.
- See de Graaff, ‘The Hybridization of the State–Capital Nexus in the Global Energy Order' (n 12); van Apeldoorn, ‘The Rebound of the Capitalist State: The Rearticulation of the State–Capital Nexus in the Global Crisis' (n 12); van Apeldoorn, ‘The Limits of Open Door Imperialism and the US State–Capital Nexus' (n 12).
- 'Only the State is capable of taking charge of the management of space “on a grand scale” —highways, air traffic routes—because only the State has at its disposal the appropriate resources, techniques, and “conceptual” capacity’: Henri Lefebvre, State, Space, World: Selected Essays (University of Minnesota Press, 2009) 238. Expanding the argument advanced by the French sociologist and linking it with its positioning between capital and natural resources, it could be said that only the state has the authority to legitimately exercise its power over a territory in a way that transforms the rights of its people. See also Henri Lefebvre, De l'État (Union Générale d'Éditions, 1976); Neil Brenner and Stuart Elden, ‘Henri Lefebvre on State, Space, Territory' (2009) 3(4) International Political Sociology 353.
- See Sassen (n 57) (both references).
- Contractual commitments of states regarding guaranteeing access to water to investors probably represents one of the most underestimated problems relating to large-scale investment in agriculture. In countries already affected by severe drought, should a water shortage occur, government authorities would have to choose between guaranteeing priority to large projects backed by contractual commitments and providing for their population. Sovereignty as unlimited access to the country's natural resources will, once again, face a prisoner's dilemma, where lives and money are at stake. Moreover, as noted at point 6.4 of the environmental impact assessment of the Malian Projet Sucrier Markala, a higher number of large-scale projects will increase competition between private investors, creating human-made shortages where water is still largely available. see African Development Bank, ‘Mali: Projet Sucrier de Markala. Resumé exécutif de l'étude d'impact environnemental et social' (African Development Bank, 2009), www.afdb.org/fleadmin/uploads/afdb/Documents/Environmental-and-Social-Assessments/mali%20fr.pdf (stating ‘Aujourd'hui, il n'y a pas de problème de disponibilité en eau d'irrigation pour satisfaire les besoins en contre saison de l'ON. Des plaintes des utilisateurs situés à l'aval du barrage de Markala n'ont pas été observées. Toutefois, les effets cumulés des périmètres et des divers projets prévus par d'autres acteurs, pourraient conduire à des tensions dans la répartition des eaux pour les besoins des cultures en contresaison' [today, there is no problem concerning the availability of water to satisfy people's needs during the dry season. No complaint has been raised by the people living downstream from the Markala dam. However, the cumulative effects generated by the combination of the dam with other projects may lead to tensions in the distribution of water used for agriculture during the dry season'] (translation by the author)).
- Several investment agreements contain an obligation on the contracting state to provide the investor with fiscal exemptions and special fiscal treatment. In these cases, a preferential fiscal regime, in many respects similar to a fiscal haven, is introduced within the boundaries of the host state, and enforced by means of contract and bilateral investment treaties. Article V(a) of the 300,000 hectares concession agreement concluded in 1959 between the government of Liberia and the Liberian Agricultural Company provides that ‘[the] Corporation shall have the right, in accordance with Article VII …and except for documentary stamps taxes of general application, to import free of all customs duties and all other taxes, levies or free of any character, whether national or local, all materials, equipment and supplies which may be necessary in its operations under the Concession, including the Accessory Works and Installations …and to export free of all customs duties and all other taxes, levies or fees of any character, whether national or local, all the products and by-products resulting from its activities under the Concession, whether in crude or refined state'. In the same agreement is stated that ‘for the purpose of recovering its developing costs, the corporation is granted an income tax free period of fifteen (15) years'. See An Act Approving the Concession Agreement between the Republic of Liberia and Liberian Agricultural Corporation, signed in Monrovia 3 April 1959, published 18 February 1966 (document with author).
- Economic equilibrium clauses are extremely common in investment agreements concerning large-scale projects. They take into consideration the possibility that any improvements in social and environmental safeguards can adversely affect the economic equilibrium of an investment project. For example, Art 35.2 of the confidential draft of the land-lease agreement executed in 1987 by the government of Liberia and Cavalla Rubber Corporation Inc states: ‘[The] Government hereby undertakes and affirms that at no time shall the rights and the full and peaceful enjoyment thereof granted by it under Sections 20 [income taxation], 21 and 22 of this Agreement be derogated from or otherwise prejudiced by any law or the action or inaction of the Government, or any official thereof, or any other person whose actions or inactions are subject to the control of Government.' See Investment Agreement between the Republic of Liberia and Cavalla Rubber Corporation, signed 23 April 1987 (copy of document with author). It is interesting to notice that the contract is available on the internet, but sections 21 and 22 have been excluded.
- For example, sections 3.3(v) and 3.8 of the Cameroon–SG Sustainable Oil Cameroon (SGSOC) agreement introduce within the national boundaries of Cameroon a legal subsystem where the investor has the right ‘exclusively, within the Production Area, to take and use, subject to the limitations pursuant to Article 10, free of charge (but not to sell to any other Person without the written approval of Government), such water …as [the] Investor may consider necessary or useful for Investor Activities, without the need to obtain any further authorization or pay any further fees'.
- Olivier de Schutter, ‘How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investments in Farmland' (2011) 38(2) Journal of Peasant Studies 249; Olivier de Schutter, ‘The Green Rush: The Global Race for Farmland and the Rights of Land Users' (2011) 52(2) Harvard International Law Journal 503; Saturnino M Borras et al, ‘Towards a Better Understanding of Global Land Grabbing: An Editorial Introduction' (2011) 38(2) Journal of Peasant Studies 209; Saturnino M Borras, Jr and Jennifer C Franco, ‘Global Land Grabbing and Trajectories of Agrarian Change: A Preliminary Analysis' (2012) 12 Journal of Agrarian Change 34.
- Gregory S Alexander and Eduardo M Peñalver, Property and Community (Oxford University Press, 2010); Dhoya Snijders, ‘Wild Property and its Boundaries: on Wildlife Policy and Rural Consequences in South Africa' (2012) 39(2) Journal of Peasant Studies 503; Fouad Makki, ‘Power and Property: Commercialization, Enclosures, and the Transformation of Agrarian Relations in Ethiopia' (2012) 39(1) Journal of Peasant Studies 81; Eduardo M Peñalver and Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (Yale University Press, 2010).
- On the construction and use of strategic narratives like ‘wasteland’ and ‘marginal lands’, see Rachel A Nalepa, ‘Land for Agricultural Development in the Era of “Land Grabbing”: A Spatial Exploration of the “Marginal Lands” Narrative in Contemporary Ethiopia', Land Deal Politics Initiative (2013), www.plaas.org.za/sites/default/files/publications-pdf/LDPI40Nalepa.pdf.
- See eg Edella Schlager and Elinor Ostrom, ‘Property-Rights Regimes and Natural Resources: A Conceptual Analysis' (1992) 86(3) Land Economics 249; John Griffiths, ‘What is Legal Pluralism?' (1986) 24 Journal of Legal Pluralism and Unofficial Law 1; Sally Engle Merry, ‘Legal Pluralism' (1988) 22(5) Law & Society Review 869.
- See Establishment Convention by and between the Republic of Cameroon and SG Sustainable Oil Cameroon plc, dated 17 September 2009. SGSOC is a Cameroon based company fully owned by a US private equity fund, Herakles Fund. For more details, see Samuel Nguiffo and Brendan Schwartz, ‘Herakles' 13th Labour? A Study of SGSOC's Land Concession in South-West Cameroon', REseau de LUtte contre la FAim and Centre pour l'Environnement et le Développement (2012), www.relufa.org/documents/Herakles13THLabour.pdf.
- The formalist and consolidated interpretation of sovereignty, as proposed by Hobbes and Western scholars, implies that the name ‘sovereign’ applies to the representative (be it a single person or an assembly of persons) authorised to act on the part of the state, and yet that the powers exercised by this sovereign are the rightful possession, not of the representative who wields them, but of the state itself. See Thomas Hobbes, Leviathan, AP Martinich and Brian Battiste (eds) (Broadview Press, 2010).
- Evan Fox-Decent, Sovereignty's Promise: The State as Fiduciary (Oxford University Press, 2012).
- Liberia-Sime Darby Contract dated April 2009, Art 4.1(c).
- Human Rights Watch, ‘Waiting Here for Death: Forced Displacement and “Villagization” in Ethiopia's Gambella Region', www.hrw.org/node/104305; Nickolas Johnson, ‘Enough is Enough: Gambella, Ethiopia Update', Oakland Institute (1 October 2012), www.oaklandinstitute.org/enough-enough-gambella-ethiopia-update.
- See Nguiffo and Schwarts (n 73).
- The action of the Kenyan government, which authorised an investment in a non-titled area belonging to the Endorois community, was at the centre of a recent judgment delivered by the African Court of Human and People's Rights, which recognised the pre-eminence of the informal customary right over the formalised right attributed by means of state intervention. See ACHPR, The Endorois Welfare Council v Kenya, finding of 4 February 2010; Border Timbers, Border Timbers International, and Hangani Development v Republic of Zimbabwe (ICSID Case No ARB/10/25).
- Walter Hicks, ‘Tanzania's Troubling Trend of Land Rights Violations and Evictions', Ecology Global Net work, www.ecology.com/2012/09/10/tanzanias-land-rights-violations.
- Liz Alden Wily, ‘Looking Back to See Forward: The Legal Niceties of Land Theft in Land Rushes' (2012) 39(3–4) Journal of Peasant Studies 751.
- See Tomaso Ferrando, ‘Global Land Grabbing: A Tale of Three Legal Homogenizations' in Horatia Muir Watt and Diego Fernandez Arroyo (eds), Private International Law as Global Governance, Special Issue (Oxford University Press, forthcoming).
- I draw the notion of ‘legibility’ from sociological studies, and in particular from James Scott, who examined how state officials reinterpret diverse local societies in order to facilitate central state regulation and administration. In his analysis, he looks at the homogenisation and simplification that took place with the establishment of the administrative state. In particular, he affirms that ‘local practices of measurement and landholding were “illegible” to the state in their raw form. They exhibited a diversity and intricacy that reflected a great variety of purely local, not state, interests. That is to say, they could not be assimilated into an administrative grid without either being transformed or reduced to a convenient, if partly fictional, shorthand'. See James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1998) 24.
- See Saturnino M Borras, Jennifer C Franco and Chunyu Wang, ‘The Challenge of Global Governance of Land Grabbing: Changing International Agricultural Context and Competing Political Views and Strategies' (2013) 10(1) Globalizations 161.
- Peñalver and Katyal (n 70).
- An Act to Ratify the Amended and Restated Concession Agreement between the Republic of Liberia and Sime Darby Plantation (Liberia) Snc, approved 23 July 2009. Sime Darby, a leader in the sector of oil palm production, is a transnational company whose headquarters are located in Indonesia.
- In its Fast Track Initiative for Basic Education Resettlement, the Liberian State assumes obligations which are much more in favour of the local communities compared to the agreement concluded with Sime Darby. For example, the plan contains provision for ‘full replacement cost for houses and other structures, agricultural land of equal productive capacity, replacement of residential land at least of equal size and not less than 200 sq. m., dislocation allowance and transition subsidies, full compensation for crops, trees and other similar agricultural products at market value, and other assets, and appropriate rehabilitation measures to compensate for loss of livelihood'. See Republic of Liberia, Fast Track Initiative (FTI) Grant for Basic Education Resettlement Policy Framework, April 2011, http://mof.gov.lr/doc/Fast%20Track.pdf, Art 3.3.
- Art 4.3 of An Act to Ratify …(n 86).
- Stephan Schill, The Multilateralization of International Investment Law (Cambridge University Press, 2009).
- See Sassen (n 57) (both references).
- Horatia Muir Watt, ‘Private International Law Beyond the Schism' (2011) 2 Multinational Legal Theory 347.
- Pierre Mayer, ‘La Neutralisation du pouvoir normatif de l‘état en matière de contrats d’état' (1986) Journal du Droit International 12.
- There is little doubt that the legal and economic architecture that has been reproduced and expanded on a global scale determines asymmetry between the mobility of capital and the immobility of sovereign states. As underlined by Antony Anghie and other scholars of the Third World Approach to International Law, the difference of movement in both time and space, along with the ahistorical and artificial equality between sovereign states, has produced regulatory competition among sovereigns, which do not fear the investment but are scared to be left outside the global game of foreign direct investment. See Antony Anghie et al (eds), The Third World and International Order: Law, Politics and Globalization (Martinus Nijhoff, 2003); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2007).
- According to the notion of ‘pre-establishment rights’, foreigners can trigger a BIT and sue a country even before they have effectively undertaken an investment within that jurisdiction. This unilateral right of the investor derives from the introduction of national treatment clauses, according to which the economic activity of foreigners cannot be prohibited or limited only because of the fact of being foreigners. Therefore, a foreigner which is required to undertake performances or activities which are different, and more burdensome, than those required of national entrepreneurs (notwithstanding economic size etc) could trigger a BIT in order to force the host country to remove these protectionist barriers.
- Schill (n 89).
- Differently from national courts, investment arbitration generally follows private law rationales, such as party autonomy and confidentiality of proceedings, and focuses narrowly on the economic consequences of states' actions, rather than looking at their actions from a broader perspective. According to the thesis proposed by Van Harten, investment arbitration currently operates as a private form of judicial review of public choices, a form of regulatory adjudication where state conduct is measured vis-à-vis standards of review which submit states' sovereign conduct and lawmaking to evaluation by arbitrators: Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford University Press, 2007). On the notion of investment arbitration as a contemporary form of global administrative law, see Gus Van Harten and Martin Loughlin, ‘Investment Treaty Arbitration as a Species of Global Administrative Law' (2006) 17(1) European Journal of International Law 121 (arguing that ‘investment arbitration has emerged as a species of global administrative law' at 145, and reviewing the ‘scope and potency of this regime as a means of reviewing and controlling the exercise of public authority by the state' at 123).
- Border Timbers, Border Timbers International, and Hangani Development v Republic of Zimbabwe (ICSID Case No ARB/10/25, Procedural Order No 2, 26 June 2012). See Tomaso Ferrando, ‘Investment Arbitration: Restricted Area', Critical Legal Thinking (16 July 2012), http://criticallegalthinking.com/2012/07/16/investment-arbitration-restricted-area. For an alternative perspective on the Zimbabwean land reform, see Ben Chigara, ‘The Humwe Principle: A Social-Ordering Groundnorm for Zimbabwe and Africa?' in Robert Home (ed), Essays in African Land Law (Pretoria University Law Press, 2011) 311–15; Lionel Cliffe et al, ‘An Overview of Fast Track Land Reform in Zimbabwe: Editorial Introduction' (2011) 38(5) Journal of Peasant Studies 907; Marleen Dekker and Bill Kinsey, ‘Contextualizing Zimbabwe's Land Reform: Long-Term Observations from the First Generation' (2011) 38(5) Journal of Peasant Studies 995; Sam Moyo, ‘Changing Agrarian Relations after Redistributive Land Reform in Zimbabwe' (2011) 38(5) Journal of Peasant Studies 939;Ian Scoones et al, ‘Zimbabwe's Land Reform: Challenging the Myths' (2011) 38(5) Journal of Peasant Studies 967.
- Jan Nederveen Pieterse, ‘Globalization as Hybridization' in Mike Featherstone, Scott Lash and Roland Robertson (eds), Global Modernities (Sage, 1995) 45–69.
- Luis Eslava, ‘Corporate Social Responsibility & Development: A Knot of Disempowerment' (2008) 2(2) Sortuz: Oñati Journal of Emergent Socio-Legal Studies 43.
- Ronen Shamir, ‘Corporate Social Responsibility: Towards a New Market-Embedded Morality?' (2008) 9(2) Theoretical Inquiries in Law 371.
- See Teubner (n 6).
- See Miller (n 32).
- See Eslava (n 99).
- See Ferrando (n 45).
- Eni SpA, Repsol YPF, British Petroleum, Total SA. See Ferrando (n 45).
- Repsol YPF, Ethics and Conduct Code of Repsol Employees, www.repsol.com/imagenes/es_en/Repsol_Norma_Etica_Conducta_Folleto_A5_ing_V12_tcm11–127560.pdf, 9 (emphasis added).
- See Eslava (n 99).
- Eni SpA, Code of Ethics, Section II Art 4.2 ‘Suppliers and External Collaborators’, www.eni.com/en_IT/attachments/publications/corporate-responsability/general/Code-of-Ethics.pdf (emphasis added).
- According to Section IV Art 4 of Eni's Code of Ethics (ibid), in fact, ‘Respect of the Code's rules is an essential part of the contractual obligation of all Eni's People pursuant to and in accordance with applicable law. Any violation of the Code's principles and contents may be considered as a violation of primary obligations under labour relations or of the rules of discipline and can entail to the consequences provided by law, including termination of the work contract and compensation for damages arising out of any violation.'
- See Miller (n 32).
- Ibid, 847.
- According to BP's Code of Conduct: ‘We also seek to work with third parties who operate under principles that are similar to this Code. This includes making a contractual commitment where it is feasible to comply with the applicable laws and work in line with our Code. We expect all our contractors and their employees to act in a way that is consistent with our Code, and follow its principles. We will consider terminating contracts where we believe they have not met our standards or their contractual obligations'. See www.bp.com/content/dam/bp/pdf/code-of-conduct/bp_code_of_conduct.PDF, 8 (emphasis added).
- Ethics and Conduct Code of Repsol Employees (n 106) 13.
- Total SA, Code of Conduct, http://soudan.total.com/fchiers/mediaLibrary/SOUDAN/publications/Total_code_conduct_en2.pdf, ‘Suppliers and Service Providers’, 25.
- The notion of ‘discipline’ is borrowed from Michel Foucault's studies on the disciplinary society. In his book Surveiller et punir (Gallimard, 1975), the French ‘genealogist’ describes modern society as a ‘disciplinary’ society, where control is mainly exercised in physically non-violent ways, eg through means of hierarchical observation, normalising judgement and examination. I think that systems introduced by codes of conduct can be interpreted through the lens of the ‘disciplinary society’. Codes introduce a system of reciprocal observation among workers which requires each employee to denounce violations committed by other workers, but where they are also under the constant observation by internal bodies, such as human resources departments. They contribute to the transnational normalisation of workers' behaviours, with little or no concern for the singularity of society, working places or individuality. Finally, codes of conduct introduce ethics committees as a centralised system of examination, which not only combines knowledge with the exercise of power, but also situates individuals in a ‘field of documentation’. The results of internal disciplinary procedures (examinations) are recorded in documents that provide detailed information about the individuals examined and allow power systems to control whoever has been violating the norm. On the basis of these records, those in control can formulate categories, averages and norms that are in turn a basis for knowledge. See also Michel Foucault et al, Security, Territory, Population: Lectures at the Collège de France 1977–1978, Michel Senellart (ed), Graham Burchell (trans) (Palgrave Macmillan, 2009).
- Li Wen-Lin, ‘Legal Transplants through Private Contracting: Codes of Vendor Conduct in Global Supply Chains as an Example' (2009) 57(3) American Journal of Comparative Law 711, 713.
- See Foucault, Surveiller et punir (n 115).
- Significantly, the motto of BP's Code of Conduct is ‘We say what is true. We do what is right'.
- On this matter, George W Bush has been quoted as saying: ‘We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors …and you, all of you, will be left to just study what we do.' see Ron Suskind, ‘Faith, Certainty and the Presidency of George W Bush' New York Times, 17 October 2004, www.nytimes.com/2004/10/17/magazine/17BUSH.html?_r=0.
- Edward Said, Orientalism (Vintage, 1978); Teemu Ruskola, ‘Legal Orientalism' (2002) 101(1) Michigan Law Review 179.
- Repsol YPF, Eni SpA, British Petroleum and Total Sas. For a broader analysis of these codes, see Ferrando (n 45).
- As indicated by Frankenberg, Pierre Legrand's work on the feasibility of legal transplant ‘demonstrated how repetition is conditioned by a particular epistemological framework, by epistemic conventions and a specific mentalité, and how repetition, due to the historical-cultural context and power struggles, always involves the repression of alternatives': Günter Frankenberg, ‘1.0 Constitutions as Commodities. Notes on a Theory of Transfer' (2013) 4(1) Comparative Law Review 7. On my reading of codes of conduct, the global extension of the same legal framework, coupled with the introduction of centralised ethics committees and a system of continuous control, produces a change of mentalité which reduces the possibility of resistance and re-contextualisation, while favouring the repetition of conduct and therefore an effective, although hegemonic, transplantation. see Legrand, ‘The Impossibility of “Legal Transplants”' (n 13).
- See Ingebjorg Darsow, ‘Implementation of Ethics Codes in Germany: The Walmart Case' (2005), cited in Katherine Kenny, ‘Code or Conduct: Whether Wal-Mart's Code of Conduct Creates a Contractual Obligation between Wal-Mart and the Employees of its Foreign Suppliers' (2007) 27 Northwestern Journal of Interational Law & Business 453, reporting that in February 2005, Wal-Mart's German workers were given a 33-page code of conduct attached to their pay checks. In addition, all store managers were provided with a special poster regarding the company's code of conduct. The guidelines on ethics forced Wal-Mart's employees to adhere to rules on behaviour and their private and sexual relationships. One of the provisions of the company's code forbids intimate relationships among co-workers and requires employees to inform Wal-Mart via a telephone hotline if they suspect violations. The German workers' council filed suit against Wal-Mart Germany in protest at the controversial provisions. The Local Labour Court of Wuppertal ruled in favour of the employees, stating that provisions in the code violated the German Constitution and more specifically German law, which states that anything regulating the personal lives of employees should first be agreed upon between employers and workers. In addition, the court ruled that the code breached the right of co-determination because it required staff to report code violations via a so-called ethics hotline.
- SEFE v SGSOC, High Court of Ndian, Cameroon, Register No 90R02967 (1 August 2011), pp 6–7 (document with author).
- The two choices seem to be based on the possibility that codes of conduct are ‘improving’ existing standards. This is what I call the ‘bright side of private legal transplant’, ie the ability to use privately chosen law to raise the conditions of workers, indigenous communities, marginalised groups, etc. However, the decision to accept the content of a code as ‘better regulation’ is not only political, but also closely related to the idea of ‘superiority’ and ‘inferiority’ of legal orders. A final statement is thus very hard to provide, and the risk of hegemonic practices is always hiding around the corner. See Ferrando (n 45).
- It would be interesting to know what would happen in the case of an Eni production facility in Germany. Would Eni employees and ethics committees apply the code even when it could be contrary to German law, or would they run the risk of being condemned by an Italian judge for commission of an offence that could have been avoided by respecting the code?
- Repubblica Italiana, Legislative Decree no 231 of 8 June 8 2001, Section II, Arts 9–23, www.bo.cna.it/sites/default/files/Documenti/Decreto.pdf (translation by the author).
- Eni Code of Ethics (n 108), Section IV Art 2.1 ‘Guarantor of the Code of Ethics’.
- I am referring to the academic debate that erupted in the aftermath of three recent cases decided by the Supreme Court of the United States referring to the extraterritorial application of US law and jurisdiction: Kiobel v Royal Dutch Petroleum Co, 133 S Ct 1659 (2013); Goodyear Dunlop Tires Operations, SA v Brown, 564 US (2011); Morrison v National Australia Bank, 561 US (2010).
- See Weber Shandwick Worldwide v Reid, No 05 C 709, 2005 US Dist LEXIS 14482, at “1–13,** 8 (ND Ill 12 May 2005), cited in Kenny (n 123).
- Ibid.
- See Örücü (n 19) (both references).
- I am referring to the events that led to the death of more than 800 workers near Dhaka, Bangladesh in April 2013. Looking at foreign states' reactions, the EU urged European and international companies that do business in Bangladesh ‘to promote better health and safety standards in garment factories in Bangladesh in line with internationally recognized Corporate Social Responsibility guidelines': Joint Statement by EU High Representative Catherine Ashton and EU Trade Commissioner Karel De Gucht Following the Recent Building Collapse in Bangladesh, CONSILIUM, 30 April 2013. On the corporate side, three responses were proposed, none of which involve a call for stricter public controls over sweatshop operations, nor for more stringent public regulation. On the contrary, Wal-Mart decided to intensify control over respect for its internal code of ethics; H & M and other companies decided to continue applying their ethic codes, but created a collective fund to compensate the victims' families and contribute to the improvement of workers' working conditions; Disney decided to immediately terminate all operations in Bangladesh considering the country incapable of controlling its own territory. See Christopher Palmeri and Lindsey Rupp, ‘Disney Bangladesh Exit Pressure on Clothesmakers Who Stay', Bloomberg, 3 May 2013, www.bloomberg.com/news/2013-05-03/disney-bangladesh-exit-puts-pressure-on-those-who-may-stay-1-.html; Shelly Banjo, Ann Zimmerman and Suzanne Kapner, ‘Wal-Mart Lays Out Own Bangladesh Safety Plan' Wall Street Journal, 14 May 2013, http://online.wsj.com/news/articles/SB10001424127887324216004578483381921421300; Theresa Papademetriou, ‘European Union: Response to Factory Collapse in Bangladesh' Global Legal Monitor, 21 May 2013, www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403598_text; Krissy Clark, ‘Retailers Around the World React to Bangladesh Fire’ Marketplace.org, 15 May 2013, www.marketplace.org/topics/world/retailers-around-world-react-bangladesh-fire.
- Fiona McConnell, ‘The Fallacy and the Promise of the Territorial Trap: Sovereign Articulations of Geopolitical Anomalies' (2010) 15 Geopolitics 762.
- See section IV above.
- See Harvey (n 10).
- See Berkowitz et al (n 27).
- Sornarajah affirms that, ‘assuming that the state has become non-existent, corporate managers are enlightened, and workers, communities and activists are empowered, [corporate social responsibility] bestows TNEs with new authority across discontinuous terrains that were once within the jurisdiction of international development agencies and governments'. However, the enlightenment of TNEs determines the enforcement of a centrally produced set of principles, norms and behaviours, which can easily generate struggles and lead to the dismantling of legal singularity. See M Sornarajah, The International Law on For eign Investment (Cambridge University Press, 3rd edn 2010).
- Dina Rajak, ‘Theatres of Virtue: Collaboration, Consensus and the Social Life of Corporate Social Responsibility' (2011) 60 Focaal—Journal of Global and Historical Anthropology 9;see Eslava (n 99).
- See Miller (n 32); Sacco (n 42).
- As a matter of fact, the code could incorporate legislation or principles which do not belong to the legal order where the enterprise has its headquarters. This is, for example, the case with the International Labor Organization Indigenous and Tribal Peoples Convention of 1989, which is incorporated into some codes, but only recognised by a handful of countries.
- See Ersin Örücü, ‘A Synthetic and Hyphenated Legal System: The Turkish Experience' (2006) 1 Journal of Comparative Law 27. 143 See Legrand, ‘The Impossibility of “Legal Transplants”' (n 13).
- See Kenny (n 123).
- See BP's motto ‘We say what is true. We do what is right'.
- Eslava affirms that ‘[t]he openness necessary for a truly engagement with a community does not ft within the revenue structure of corporations and their managers. [Corporate social responsibility] is instead a complicated and “costly gesture” that mimics change without transforming the nature of the subject-the corporation—as a whole’: Eslava (n 99) 57.
- See Li Wen-Lin (n 116).
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