|
|
Index
|
CONTROLLING CORPORATE WRONGS: THE LIABILITY OF MULTINATIONAL
CORPORATIONS
Legal possibilities, initiatives and strategies for civil
society
Report of the international IRENE seminar
on corporate liability and workers' rights
held at the University of Warwick, Coventry, United Kingdom,
20 and 21 March 2000
|
VI CONCLUSIONS AND PROPOSALS
1 Conclusions
- The current focus on MNCs is very new. But the issue of corporate
accountability is now 'in the air' - people in general are starting
to assume that corporations should bear responsibility for what
they do abroad.
- The growth of rules and regulations that has accompanied the
globalization of institutions means that people, and companies,
are more familiar and comfortable with rules and with ideas of
transboundary accountability. In fact, corporations prefer the
law, because it is clear, everyone knows where they stand. MNCs
can be regulated, should be regulated, and ultimately want to
be regulated.
- MNC accountability can be demanded either directly from the
corporations involved, or indirectly from the states where they
operate and especially from those where they are domiciled. Such
accountability can be demanded via legal action at the domestic,
regional or international level.
- However, there are a number of constraints on winning either
redress for past or ongoing abuses by MNCs or greater accountability
in the future. These include:
- Collusion between MNCs and states which are not willing
to enforce existing laws or which actively exempt MNCs from
their national legal systems, often under pressure from their
own economic needs;
- Laws, and models of legal system, emanating from the North,
where the companies have their HQs, thus weighting the system
towards the already powerful;
- 'Reverse forum-shopping', where the accused corporation
fights to have a case refused in a country favourable to the
complainants (usually the home country) and to get it returned
to a location favourable to itself (usually the host country);
- The 'corporate veil' or smokescreen - ambiguities in the
nationality of MNCs and the separation of identities of the
parent company and the subsidiaries, created by MNCs to enable
them to escape legal responsibility in any country where they
operate;
- WTO rules, which have little help to offer claimants and
are not really interested in labour issues;
- Limited access of civil society to WTO and other international
institutions;
- Internal codes of conduct, which allow corporations to
feel good while not imposing any legal obligations on them,
and which also do not address the claims of victims;
- Poor implementation mechanisms in most international regulatory
instruments;
- Counteroffensives by MNCs, e.g. libel cases against campaigners;
- The expense of legal actions, which can sometimes be crippling
even in the case of a victory, particularly where an NGO is
defending itself against a corporate counteroffensive.
- Lawyers, trade unionists and NGOs have a common goal - to minimize
the impunity of MNCs as their power increases with globalization.
Organizations don't have to take on MNCs on their own, but can
do it in coalition or collaboration, to optimize the use of funding
and the specific competences of different sectors, organizations
and people.
- Ultimately, what is needed is binding and enforceable legislation
at the international level to regulate MNCs' activities, and effective
international institutions to enforce it. The road to this goal
is long and fraught with difficulty and conflict, but there are
a number of steps on the way which are useful and practicable.
The following proposals indicate some of these.
2 Proposals
- Pool resources and knowledge to come up with ways of getting
evidence from victims or claimants and ways of applying them where
it matters most. Put resources into gathering evidence.
- Build coalitions; share information among victims/claimants
and experts in Northern legal systems, and systematize this into
written materials.
- Develop, with the help of lawyers, economists and accountants,
tools for analysing MNCs' activities and their impact, and for
keeping track of changes in corporate practice and structure.
- Research into applicable national and international legal instruments,
including competition law, law on mergers, and criminal liability
of MNC management.
- NGOs and academics shd work harder on getting more test cases
going in Europe.
- Build up a body of evidence around case law. This could be facilitated
by a reporting and advisory body where evidence could be accumulated,
taken with a common set of standards as a measure.
- Use the development of a body of norms as contained in codes
of conduct as a basis for reporting and cooperation with the UN
Subcommission on Promotion and Protection on Human Rights.
- Implementation, implementation, and implementation! Existing
international instruments will remain toothless and invisible
if they are not used. Write to local OECD NCPs, and if they do
nothing, this can be used to demonstrate that NCPs are incompetent
and press for reform of the system.
- Develop a different type of cooperation between Northern and
Southern NGOs, one in which Northern NGOs could advise Southern
ones on how to complain.
- Finally, get everyone talking to each other and sharing information.
As an initial step, a website on these issues has been set up,
and GLODIS/Department of International Law, SOMO and IRENE can
serve as a clearinghouse for information.
Colophon:
Report written by Mandy Macdonald
Organisers of the seminar:
Hilke Molenaar, Peter Pennartz, IRENE
This seminar is part of a series of development education activities
of IRENE on corporate social responsibility and workers' rights
and has been made possible with the support of the Fondation des
Droits de l'Homme au Travail, Oxfam-Magasins du Monde, the Scurrah
Wainwright Charity and the European Commission.
An electronic reader for this seminar has been produced by IRENE
available on request.
IRENE
Stations straat 39
5038 EC Tilburg
The Netherlands
tel. + 31.13.535.15.23.
fax: +31.13.535.02.53.
E-mail: peterpennartz@irene-network.nl
|
