International Corporate Personhood : Business and the Bodyless in International Law

This book tracks the phenomenon of international corporate personhood (ICP) in international law and explores many legal issues raised in its wake. It sketches a theory of the ICP and encourages engagement with its amorphous legal nature through reimagination of international law beyond the State, in service to humanity. The book offers two primary contributions, one descriptive and one normative. The descriptive section of the book sketches a history of the emergence of the ICP and discusses existing analogical approaches to theorizing the corporation in international law. It then turns to an analysis of the primary judicial decisions and international legal instruments that animate internationally a concept that began in U.S. domestic law. The descriptive section concludes with a list of twenty-two judge-made and text-made rights and privileges presently available to the ICP that are not available to other international legal personalities; these are later categorized into ‘active’ and ‘passive’ rights. The normative section of the book begins the shift from __what__ __is__ to __what__ __ought to be__ by sketching a theory of the ICP that – unlike existing attempts to place the corporation in international legal theory – does not rely on analogical reasoning. Rather, it adopts the Jessupian emphasis on ‘human problems’ and encourages pragmatic, solution-oriented legal analysis and interpretation, especially in arbitral tribunals and international courts where legal reasoning is frequently borrowed from domestic law and international treaty regimes. It suggests that ICPs should have ‘passive’ or procedural rights that cater to problems that can be characterized as ‘universal’ but that international law should avoid universalizing ‘active’ or substantive rights which ICPs can shape through agency. The book concludes by identifying new trajectories in law relevant to the future and evolution of the ICP. This book will be most useful to students and practitioners of international law but provides riveting material for anyone interested in understanding the phenomenon of international corporate personhood or the international law surrounding corporations more generally. This book tracks the phenomenon of international corporate personhood (ICP) in international law and explores many legal issues raised in its wake. It sketches a theory of the ICP and encourages engagement with its amorphous legal nature through reimagination of international law beyond the State, in service to humanity. The book offers two primary contributions, one descriptive and one normative. The descriptive section of the book sketches a history of the emergence of the ICP and discusses existing analogical approaches to theorizing the corporation in international law. It then turns to an analysis of the primary judicial decisions and international legal instruments that animate internationally a concept that began in U.S. domestic law. The descriptive section concludes with a list of twenty-two judge-made and text-made rights and privileges presently available to the ICP that are not available to other international legal personalities; these are later categorized into ‘active’ and ‘passive’ rights. The normative section of the book begins the shift from what is to what ought to be by sketching a theory of the ICP that – unlike existing attempts to place the corporation in international legal theory – does not rely on analogical reasoning. Rather, it adopts the Jessupian emphasis on ‘human problems’ and encourages pragmatic, solution-oriented legal analysis and interpretation, especially in arbitral tribunals and international courts where legal reasoning is frequently borrowed from domestic law and international treaty regimes. It suggests that ICPs should have ‘passive’ or procedural rights that cater to problems that can be characterized as ‘universal’ but that international law should avoid universalizing ‘active’ or substantive rights which ICPs can shape through agency. The book concludes by identifying new trajectories in law relevant to the future and evolution of the ICP. This book will be most useful to students and practitioners of international la Cover 1 Half Title 2 Title Page 4 Copyright Page 5 Dedication Page 6 Contents 8 Introduction: the status quo 14 1 The emergence of international corporate personhood 21 I. Definitions and distinctions 22 a. Definitions 22 b. Distinctions 24 II. The corporate trinity: state, Church, company 26 III. A brief history of corporate personhood in three phases 32 a. The Magistrate Charter Phase: pre-1850 32 b. The public charter phase: 1850–1945 35 c. The personhood phase: post-1945 39 IV. Three conceptions of the ICP 42 a. Para-individualist 42 b. Para-statist 43 c. Para-institutionalist 44 V. Three incarnations of the ICP 44 a. The organic or ‘real entity’ theory 45 b. The positivist or concession theory 46 c. The proxy or institutional theory 46 VI. The separation of ownership and control 47 VII. Discussion: a person composed of persons 48 2 The international corporate person in international law: judge-made law 57 I. Preface to the next two chapters 57 II. The ICP in international tribunals 57 i. Subjectivity of the corporation 58 ii. Substantive rights 60 iii. Criminal liability of corporations 61 iv. Alien Tort Statute 62 v. Human rights 66 vi. Environment 68 vii. Intellectual property 71 viii. Clean hands and corruption 72 ix. Importing rights through the New York Convention 73 III. Conceptualizing judge-made ICP obligations: erga omnes v. jus cogens 75 a. Erga omnes 76 b. Jus cogens 77 3 The international corporate person in international law: texts and practices 84 I. Exclusivity and the text 84 II. The ICP in international legal texts and practices 85 a. Business and Human Rights 85 i. The European Convention on Human Rights and the European Court of Human Rights 85 ii. The protect, respect, and remedy framework 86 iii. The OEIGWG draft binding instrument 88 iv. The Hague Rules on Business and Human Rights arbitration 91 b. International criminal law 93 i. The joint criminal enterprise and aiding and abetting 93 ii. Environmental harm as a crime against humanity 96 c. International anti-corruption texts and practices 98 i. Explicit international anti-corruption instruments 99 ii. Transfer pricing 103 iii. Tax havens 107 iv. Deferred prosecution agreements 108 d. Environmental law 109 i. Stockholm 110 ii. Rio and aftermath 110 e. International economic law 112 i. Legacies of the new international legal order 112 ii. ‘Development’ and the ICP 116 f. OECD guidelines for multinational enterprises 119 III. The modern ICP’s role in ‘authoring’ international law 120 a. ‘Consultant’ or ‘observer’ status 120 b. The WTO’s TRIPS agreement 122 c. CEO preferences and political spending 124 IV. No analogies: the ICP’s unique status under international law 126 4 Theorizing international corporate personhood 137 I. Conceptualizing the international corporate person 139 a. Corporate exceptionalism 139 b. Beyond state, individual, and institution 141 c. Human problems and corporate conceptions 142 II. Constituency and sovereignty as human problems 146 a. Constituency: IEL as a case study 146 b. Sovereignty as a strategy 153 III. The public–private delusion 157 a. Background 159 b. Insurance and SOEs: examples from international economic law 162 c. Sovereignty and the veil 165 IV. The ICP and a bundle of sticks 168 a. Duties: civil and criminal 169 b. The amorphous liability of corporate groups and networks 171 c. Hume and Hohfeld 173 V. Toward a theory of the ICP 174 VI. Changing gears: a summary thus far 177 5 Political bodies and the bodyless 188 I. Political bodies and the bodyless 188 II. Persons as disjointed things 189 a. The ICP and GVCs 189 b. The ICP and CSR 193 III. Things as disenfranchised persons 194 a. Nature 195 b. Animals and AI 196 IV. ‘The actual’: liability 198 a. Legal form and liability 198 b. Territory and liability 201 c. Liability in private normative orders 203 V. ‘The possible’: reform 204 a. Establishing new regimes: human rights and environment 205 b. Global economic law: taxation and wealth registration 206 c. Structural reform: governance and forbearance 208 Codetermination 208 Collective decision making 209 Keiretsu 209 d. Feminist political theory and the ICP 210 e. Anthropocentrism, sovereignty, and the ICP 211 Conclusion: beyond sovereignty, beyond the veil 219 Index 224 International,corporate,personhood;,Organic,theory;,Positivist,theory;,Proxy,theory;,Magistrate,phase;,Public,Charter,phase;,Personhood,phase;,Para-Individualist;,Para-Statist;,Para-Institutionalist International corporate personhood,Organic theory,Positivist theory,Proxy theory,Magistrate phase,Public Charter phase,Personhood phase,Para-Individualist,Para-Statist,Para-Institutionalist "This book tracks the phenomenon of international corporate personhood (ICP) in international law and explores a number of legal issues raised in its wake. It sketches a theory of the ICP and encourages engagement with its amorphous legal through reimagination of international law beyond the State, in service to humanity. The book offers two primary contributions, one descriptive and one normative. The descriptive section of the book sketches a history of the emergence of the ICP and discusses existing analogical approaches to theorizing the corporation in international law. It then turns to an analysis of the primary judicial decisions and international legal instruments that animate internationally a concept that began in US domestic law. The descriptive section concludes with a list of twenty-two judge-made and text-made rights and privileges presently available to the ICP that are not available to other international legal personalities; these are later categorized into 'active' and 'passive' rights. The normative section of the book begins the shift from what is to what ought to be by sketching a theory of the ICP that-unlike existing attempts to place the corporation in international legal theory-does not rely on analogical reasoning. Rather, it adopts the Jessupian emphasis on 'human problems' and encourages pragmatic, solution-oriented legal analysis and interpretation, especially in arbitral tribunals and international courts where legal reasoning is frequently borrowed from domestic law and international treaty regimes. It suggests that ICPs should have 'passive' or procedural rights that cater to problems that can be characterized as 'universal' but that international law should avoid universalizing 'active' or substantive rights which ICPs can shape through agency. The book concludes by identifying new trajectories in law relevant to the future and evolution of the ICP. This book will be most useful to students and practitioners of international law, but provides riveting material for anyone interested in understanding the phenomenon of international corporate personhood or the international law surrounding corporations more generally"-- Provided by publisher.