Accueil  > Numéros précédents  > Numéro 22  > DOCTRINE (Fabrizio Marrella. BERETE Mohamed.)


Towards "contractualised Human" Rights ?


Fabrizio Marrella

Introduction

-  Traditionally, adressees and bearers of human rights obligations have been, under international law, nation States. Transnational corporations have been able to hide behind the “State veil” (l’écran étatique in Dominique Carreau’s words[2]) thanks to classical international law doctrines denying legal personality to non State actors[3]. Indeed, the attention in the human rights community has been always focused on State behavior rather than on multinational corporations international legal standing. This is not to say that States have ceased to commit human rights abuses. Rather, the obsession to build up any legal reasoning on such matters under a governmental or intergovernmental schemes may result in a certain myopia on transnational relationships and their legal effectiveness. Certainly, today we have well developed models of international responsibility of the territorial State - be it the host or the home State of a TNC, and new attempts to find legal grounds for international liability of corporate directors or corporations per se. An important question remains yet to be answered : are there further methods of regulation of transnational corporations that can be placed between the two extreme approaches of le droit de l’hommisme[4] and total self-regulation of markets ? Is international commercial law isolated from human rights[5] ?

I. The meaning and the importance of CSR

The most important actors of economic globalisation are not Governments but corporations. As it is well evidenced by the UNCTAD World Investment Report[6], annual budgets of TNCs indicate that they represent almost half of the top one hundred world economic powers. TNCs nowadays employ about 54 million people (some authors estimate even 90 million people) with a significant percentage of them in developing countries[7]. Recent corporate scandals,[8] have shown that TNCs are borderless : each TNC is a single economic unity operating simultaneously in all countries where its branches are located.

Corporate social responsibility (hereinafter CSR) thus, ultimately adds a new dimension to human rights protection since it applies to activities carried out in each and every State where TNCs operate. It also means that a multinational company, through CSR, may go beyond the minimum legal requirements stemming from human rights law in force (or effectively applied) in each State where the company operates.

According to the 2001 European Commission Green Paper, CSR is ‘a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis’.[9] This concept has been re-iterated both in the July 2, 2002, Communication from the European Commission[10] on CSR as a “business contribution to sustainable development” as well as in the March 22, 2006, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee aimed at defining the framework to make Europe “a pole of excellency on CSR”[11]. When CSR is written in codes of conducts, reference should be made to two sets of instruments : Codes of Conduct produced at the inter-governmental or even governmental level (that which I call ‘ CSR from above’, part II of this article) and Codes of Conduct produced directly by the business community or single TNC (i.e. what I have called ‘CSR from below’, part III of this article).

II. CSR ‘from above’ : Codes of Conduct of inter-governmental or governmental origin

1. Global level

Since the 1960s, there have been many attempts to regulate TNC activities via Codes of Conduct issued by intergovernmental organisations (IGOs) and Governments. Stronger forms of regulation have been frequently advocated in specialised literature, especially during the 1970s, with a reborn impetus nowadays.[12] The UN Conference on Trade and Development (UNCTAD) had charged a group of eminent persons with the task of studying the role (and possible form of regulation) of multinational corporations in world trade.[13] As a result a Draft Code of Conduct for Transnational Corporations[14] was produced, covering many different issues such as labour, consumers, women, the environment, corruption, and restrictive business practices. The first generation of Codes of Conduct culminated in the 1977 International Labour Organisation (ILO) Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy.[15] Although its rules were conceived in the light of political claims coming from developing countries for a New International Economic Order (NIEO),[16] it nonetheless touched on some human rights of workers and implementation of this instrument has been voluntary. In practice, it is hard to find recorded cases of full implementation by businesses or even by courts.

Similarly, the UN Conference on Environment and Development (UNCED), which was held in Rio de Janeiro in June 1992, developed twenty-seven ‘Rio Principles’, the Rio Declaration on Environment and Development,[17] in which sustainable development is linked to environmental protection and a new global partnership involving ‘new levels of cooperation among States, key sectors of societies and people’.[18] Those principles have been re-affirmed in the Johannesburg Summit[19].

A new philosophy of governance has been advanced by the UN Secretary-General, in Davos in January 1999. The Secretary General of the most important inter-governmental organization, Kofi Annan, has addressed, for the first time, the transnational business community as a whole in order to identify a set of universally agreed values and principles in the areas of human rights, labour standards and environmental protection called the ‘Global Compact for the 21st Century’.[20] Relevant (business) NGOs such as the ICC - that is the most important non governmental organization in the trade law field - have welcomed Annan’s challenge, and various initiatives are underway between the UN, ICC, and other business organisations. On 26 August 2003 and along the same ‘soft law’ line, the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights have been adopted.[21] Their effectiveness in application, as well as that of the 1998 ILO Declaration on Fundamental Principles and Rights at Work,[22] will be verified in the years to come.

2. Regional level

At a regional level, the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises[23] have been developed and reviewed as an Annex to the Declaration on International Investment and Multinational Enterprises (2000).[24] However, its rules, recalling the Universal Declaration on Human Rights, are recommendations to comply with local laws, safeguarding consumer interests, abolition of child labour, fighting bribery, environmental protection. Its implementation mechanism is based on national contact points charged with promoting the Guidelines and handling enquiries, as is general in OECD practice. On the European Union level, after the European Business Declaration against Social Exclusion[25] and the 2000 Lisbon European Council Summit,[26] extensive consultation has led to the 2001 CSR Green Paper to which reference has already been made.[27] Once again, it is recommended to TNC’s to adopt a Code of Conduct embodying CSR, and taking into account international instruments such as ILO conventions, OECD guidelines, the UN ‘Global Compact’, etc., and to adopt compliance mechanisms. In practice, no ‘hard law’ rules have been created, and the issue of CSR enforcement is left to TNCs’ discretion, or to voluntary mechanisms.

III. The importance of CSR ‘from below’

CSR ‘from below’ consists of all Codes of Conduct generated directly at business community level. Perhaps, the starting point of the development of business Codes of Conduct may be traced back to the so-called ‘Sullivan Principles’ restated as the ‘Global Sullivan Principles for CSR’ in 1999 in order to ‘encourage companies to support economic, social and political justice wherever they do business’.[28] A company wishing to be associated with these Principles is expected to provide information, support for universal human rights, equal opportunities, respect for freedom of association, given levels of employee compensation, training, health and safety, sustainable development, fair competition and to work in partnership to improve quality of life. Compliance has to be assessed by independent auditors, demonstrating corporate commitment to such rules. The Principles aim to be applicable to companies of any size, operating in any part of the world, and have been endorsed and implemented by a number of business councils, campaigning NGOs, local authorities, companies, and representative organisations. To date, 189 companies have signed up to them.[29] In the 1990s, after various scandals,[30] a new wave of Codes of Conduct was instituted, leading some important TNCs to formulate their own unilateral codes, on their own initiative[31].

Levi Strauss, for example, indicated that it will favor business partners sharing their commitment ‘to contribute to improving community conditions’ and added significantly that it ‘may withdraw production from [any factory that violates these standards] or require that a contractor implement a corrective action plan within a specified time period’[32].

Moreover, some corporations (i.e. Unilever, Danone and Nestlé) are developing websites where they publish updated information on how they comply with CSR obligations.[33] In the case of ‘collective codes of conduct’[34]. the compilation of rules of CSR is done directly by the business associations, of which companies are members. Examples of such codes are, from the ICC, its Business Charter for Sustainable Development ;[35] Rules of Conduct on Extortion and Bribery in International Business Transactions,[36] and various marketing and advertising codes ;[37] and, from elsewhere, for example, the ‘Responsible Care’ programme of the chemical industry.[38] Typical clauses addressed in codes of conduct concern child labour, forced labour, health and safety, freedom of association, freedom from discrimination, disciplinary practices, work hours, and compensation. But these clauses are derived from principles expressed in the Universal Declaration on Human Rights, the UN Convention on the Rights of the Child[39] and in relevant ILO Conventions, such as Nos. 29 and 105 on forced labour ;[40] No. 87 on freedom of association ;[41] No. 100 on equal remuneration ;[42] No. 111 on employment discrimination ;[43] No. 138 on workers’minimum age.[44]

IV. Taking “voluntary” CSR more seriously

The issue of the applicability and concrete application of TNCs’ Codes of Conduct has been the subject of wide debate since the creation of ‘first generation’ codes in the 1970s.[45] For most authors, the term ‘CSR’ corresponds to vague statements with no legal value. The term of soft law is widely used by them showing little or no knowledge of the full meaning and implications of soft law instruments in international law. For other authors, the idea that corporations voluntarily give up to profitable opportunities in order to respect human rights without some governmental constraints simply seems absurd.[46] This argument has been advocated mainly by Milton Friedman and the ‘Chicago School’ of economics, according to whom the social responsibility of business entities is only to maximize profits for the benefit of all their stakeholders.[47]

However, nowadays the degree of ‘voluntary compliance’ by TNCs to Codes of Conduct, is higher and higher. TNCs pay attention to human rights because it is prudent from a business perspective.

First of all CSR reduces ‘enterprise global risk’. Introducing rules of CSR has become a marketing tool providing better performance in sales, avoidance of consumer boycott actions, better access to financing and better corporate identity for workers[48]. Hence, in order to increase external communication of compliance with CSR (i.e. CSR Reporting in the business accounting literature), certification programmes have been established by independent auditors. The Worldwide Responsible Apparel Production Certification Program (WRAP),[49] the SA8000[50] and ISO 14000[51] Certification Schemes, and the Kimberley Process Certification Scheme[52] are examples of non-governmental human rights implementation control mechanisms through external auditing.

Moreover, one should not underestimate the pressure from above, that is by regulators at governmental and intergovernmental level. Without a serious turn on enforcing CSR rules by business operators themselves, there will certainly be tougher sanctions ‘from above’, both by increasing civil and criminal liabilities, and by strengthening the courts’ inquisitorial powers. For instance, in July 2003, in the aftermath of the Enron and Worldcom scandals, the UK Government has announced changes in company law. Among these changes, all large companies must publish every year an Operating and Financial Review including sections on ‘policies and performance on environmental, community, societal, ethical and reputational issues, including compliance with relevant laws and regulations’.[53] In this context, the Companies Audit Investigation and Community Enterprise Bill has been passed in the House of Commons with the aim of restoring confidence in companies and financial markets, as well as promoting social enterprise.[54]

V. From CSR to international commercial arbitration

The fact that Codes of Conduct embodying CSR are directly framed by business associations (the “business NGOs”), and then recommended to their own corporate members, endows such instruments with peculiar legal meaning. Codes may become binding if adopted by competent governing bodies of each association and imposed on all its business members, including any new member asking for accession. CSR codes, then, become new ‘rules of the game’ for the market[55]. Legal effects may derive, inter alia, from applicable contract law. Freedom of action is a fundamental liberty. However, it is a freedom subject to limits, one of them being ‘good faith’. Let us consider two basic situations : one in which a Code of Conduct is only mentioned during the formation of a contract, without specific reference in the final contract ; and another one in which the code is part of the agreement.

When companies declare they follow a CSR code of conduct, they generally assume an obligation to carry it out in good faith. Other businesses concerned have reason to expect such compliance and rely on it. In other words, a declaration concerning CSR to another business entity is governed by the principle of good faith. In most legal systems, good faith requirements must be generally present in the formation of the contract, in its interpretation, and in the performance stage. There is an immense literature,[56] as well as case law,[57] on good faith (and fair dealing) requirements in contract law but, in essence, it amounts to re-balancing individual interests with the ‘rules of the game’. In this sense, reference is made not to the state of mind of single contractors (the concept of subjective good faith) but to objective rules of behaviour.[58]

Good faith should be present in the course of negotiation of a contract, meaning that each party must act honestly and sincerely when making, rejecting, or accepting offers. Hence, the argument making Codes of Conduct without legal meaning amounts only to finding that individual Codes of Conduct are statements not supported by the will of its author to make them binding. However, it is equally clear that the same argument may be discarded by the doctrine of legitimate expectations which is particularly important in international business law[59]. According to this doctrine, a unilateral statement becomes binding if and insofar as it has determined a legitimate expectation (or expectation interest) on the other contractor that it is a serious statement. In other words, (individual) codes of conduct, as any other unilateral statement, become legally binding if the other party proves that without fault he or she has considered such declaration as serious. Thus, an expectation that the code will be applied may be formed and protected under the applicable law. As a consequence, one of the parties may terminate a contract and even claim damages if it proves that the information on the enforcement of the Code of Conduct was considered essential to determine its consent to be bound.

Business parties may go further and declare that a specific Code of Conduct is incorporated into their contract. In this case, there can be no doubt that ‘soft law’ provisions of the code are transformed into legally enforceable contract clauses. Thus, gross violations of the CSR Code of Conduct may lead to termination of the contract. An example of such a situation may be found in the 1998 Code of Labour Practices for the Apparel Industry including Sportswear,[60] where it is stated that :

[C]ontractors, subcontractors and suppliers must as part of their agreement with the company agree to terminate any contract or agreement for the supply or production of goods by any contractor, subcontractor or supplier that they engage not fully observing the code or they must seek and receive approval from the company to institute a procedure with fixed time limits to rectify situation where the code is not being fully observed. Where there is repeated failure to observe or to ensure observance of the code by a particular contractor, subcontractor, supplier or licensee, the agreement should be terminated.[61]

Concerning the interpretation of contracts, CSR Codes of Conduct may be taken into account within the meaning of Article 8(1) of the 1980 UN Convention on the International Sale of Goods (CISG),[62] which states that : ‘For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was’.[63] Conversely, no express reference to human rights issues or CSR can be found in the 2004 revised version of the Unidroit Principles of International Commercial Contracts. However, when the Unidroit Principles are applicable, they contain rules on contract interpretation such as Article 4(2), on interpretation of statements and other conduct, providing a solution converging with the one offered by the CISG :

The statements and other conduct of a party shall be interpreted according to that party’s intention if the other party knew or could not have been unaware of that intention. If the preceding paragraph is not applicable, such statements and other conduct shall be interpreted according to the meaning that a reasonable person of the same kind as the other party would give to it in the same circumstances.

Hence, two corporations may enter into litigation because one of them has cancelled a transnational contract arguing that non-performance of CSR Code of Conduct rules is a breach of the contract. In the law of international trade, it is not domestic courts but arbitration tribunals which are the most common fora for dispute resolution. Since the most important method for transnational business dispute resolution is arbitration, the door for business to business human rights litigation before arbitration tribunals is open.[64] As a result, and unexpectedly, arbitration may turn out to be a new and unusual forum for human rights litigation. Arbitral case law, in its turn, may contribute to shaping the scope of CSR, and, finally, to the application of human rights standards in the law of international trade.

Conclusion.

The present trend in CSR involves translating certain human rights rules and principles into Codes of Conduct, and making these codes binding by contract. We are faced, then, with a new phenomenon : the ‘contractualisation’ of human rights. In a world divided into States having different levels of human rights protection given by different treaties and applicable laws, human rights ‘contractualisation’ may have the effect of promoting uniformity. In fact, highly globalised TNCs may establish, via their transnational contracts, a network of ‘contractualised’ human rights that may set standards going beyond those provided by the host State (or even the home State) where the company operate. And since CSR translates into a system of contractual clauses whose violation may lead to termination of a transnational contract, it follows that international commercial arbitration may become a new and unexpected forum for litigating “contractualised” human rights issues in a business-to-business context. Of course one should not expect too much from such a protection since the means to resolve transnational business disputes (i.e. mediation and other ADR techniques, also including awards by consent in arbitration) are not specifically conceived to serve human rights purposes, but rather to end potential or actual disputes quickly and concretely. But this is just a further transnational mechanism that, together with the other systems of promotion and protection of human rights established by intergovernmental cooperation, will increase accountability and reduce impunity for human rights gross violations.

— — --

Fabrizio Marrella : LLD Paris I Sorbonne and Bologna Universities (honors), Dipl. The Hague Academy of International Law. Professor of International Law, University « Cà Foscari » Venice (Italy). Member of the Board of directors of the European Inter-University Center for Human Rights and Democratisation (http://www.eiuc.org).

[2] See D. Carreau, Droit international, Paris, 2004.

[3] In this respect see V. Lowe, Corporations as international actors and international law makers, in Italian Yearbook of International Law, 2004, at 23.

[4] See A. Pellet, "La mise en oeuvre des normes relatives aux droits de l’homme", in CEDIN (H. Thierry & E. Decaux), Droit international et droits de l’homme. La pratique juridique française dans le domaine de la protection internationale des droits de l’homme (Paris : Montchrestien, 1990) p.126, as well as by the same author « Droits de l’hommisme et droit international », in http://www.droits-fondamentaux.org/article.php3 ?id_article=27 (accessed : 18 April 2006).).

[5] For a detailed study see F. Marrella, Human rights, arbitration and CSR in the law of international trade, in Benedek, De Feyter, Marrella, Economic globalisation and human rights, Cambridge University Press, 2007. See also F. Galgano, F. Marrella, Diritto del commercio internazionale, 2nd ed., Padua, Cedam, 2007 which, at my knowledge is the first textbook on international commercial law containing a chapter on “international commercial law and human rights”.

[6] http://www.unctad.org/Templates/Page.asp ?intItemID=1465

[7] These figures are presented by Schaffer, Earle, Agusti, International Business transactions and its environment, 6th ed., West, 2005, p.18.

[8] L. E. Mitchell, Corporate Irresponsibility. America’s Newest Export (New Haven :Yale University Press, 2001), p. 19 ff.

[9] COM(2001) 366 final. Compare the report by the International Council on Human Rights Policy, Beyond Voluntarism : Human rights and the developing international legal obligations of companies, Geneva, 2004, available at http://www.cleanclothes.org/ftp/beyond_voluntarism.pdf (accessed : 1 February 2006).

[10] COM (2002) 347 final.

[11] COM (2006) 136 final.

[12] See : M. Virally, ‘Les codes de conduite, pour quoi faire ?’, in J. Touscoz (ed.), Transferts de technologie, sociétés transnationales et nouvel ordre international (Paris : PUF, 1978) ; H. W. Baade, ‘The legal effect of Codes of Conduct for multinational enterprises’, in N. Horn (ed.), Legal problems of Codes of Conduct for multinational enterprises (Antwerp/Boston : Kluwer-Deventer, 1980), p. 390 ; P. Sanders, ‘Codes of Conduct and sources of law’, in P. Fouchard, A. Lyon-Caen and P. Kahn (eds.), Le droit des rélations économiques internationals : Etudes offertes à Berthold Goldman (Paris : Litec, 1982), p. 281 ; S.A. Metaxas, Entreprises transnationales et codes de conduite (Zurich : Schultless Verlag, 1988) ; A. Fatouros, ‘Les principes directeurs de l’OCDE à l’intention des entreprises multinationales : perspectives actuelles et possibilités futures’, in C. Dominicé, R. Patry and C. Reymond, Etudes de droit international en l’honneur de Pierre Lalive (Basel : Helbing & Lichtenhahn, 1993), p. 231. See also R. Mares, Business and human rights : A compilation of documents (Boston : Martinus Nijhoff, 2004).

[13] J. Braithwaite, P. Drahos, Global Business Regulation, (Cambridge : CUP, 2000), p.192.

[14] U.N. Code of Conduct on Transnational Corporations, 23 I.L.M. 626 (1984). See also A. Giardina and G. L. Tosato, Diritto del commercio internazionale : Testi di base e note introduttive (Milan :Giuffré, 1995), pp. 427 et seq., and comments of A. Di Blase.

[15] ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 17 ILM (1978) 422.

[16] See in particular the Declaration and Programme of Action on the Establishment of a New International Economic Order proclaimed by the General Assembly in its resolutions 3201 (S-VI) and 3202 (S-VI) of 1 May 1974, U.N. Doc. A/9548 (1974), reprinted in 13 I.L.M. 715 (1974) ; the Charter of Economic Rights and Duties of States adopted by the General Assembly in its resolution 3281 (XXIX) of 12 December 1974, 29 U.N. GAOR Supp. (No. 31) at 51, U.N. Doc. A/9946 (1974), reprinted in 14 I.L.M. 251 (1975).

[17] See http://www.unep.org/Documents.multilingual/Default.asp ?DocumentID=78&ArticleID=1163 (accessed : 18 April 2006).

[18] Ibid., Principle http://www.unep.org/Documents.Multilingual/Default.asp ?DocumentID=78&ArticleID=1163 (accessed : 26 December 2005). See I. Bantekas, ‘CSR in International Law’, Boston University International Law Journal 22 (2004), 309 at 318.

[19] http://www.johannesburgsummit.org/ (accessed : 18 April 2006).

[20] See http://www.unglobalcompact.org/ (accessed : 18 April 2006).

[21] E/CN.4/Sub.2/2003/12/Rev.2. Approved August 13, 2003, by the UN Sub-Commission on the Promotion and Protection of Human Rights resolution 2003/16, UN Doc. E/CN.4/Sub.2/2003/L.11 at 52 (2003).

[22] http://www.ilo.org/public/english/standards/decl/declaration/text/index.html (accessed : 26 December 2005).

[23] 40 ILM 237 (2001).

[24] DAFFE/IME/WPG(2000)9.

[25] http://www.csreurope.org/aboutus/socialexclusion_page393.aspx(last visited : April 18, 2006).

[26] http://www.csreurope.org/whatwedo/printpage/CSREuropeandtheEU_page410.aspx, (last visited : April 18, 2006).

[27] Above, note 92.

[28] See http://www.thesullivanfoundation.org/gsp/default.asp, (accessed : 18 April 2006).

[29] See however critical view by D. Pink, ‘The Valdez Principles : Is What’s good for America Good for General Motors ?’, Yale Law & Policy Review, (1990), 180 at 189.

[30] See for an overview L. E. Mitchell, Corporate Irresponsibility. America’s Newest Export (New Haven :Yale University Press, 2001), p. 19 ff.

[31] OECD, Making Corporate Codes of Conduct Work : Management Control Systems and Corporate Responsibility, Paris, no. 2001/3 ; OECD, Codes of Corporate Conduct : expanded review of their contents, Working Papers on International Investment, no.6, Paris, 2001 (http://www.oecd.org/dataoecd/45/29/1922806.pdf) ; World Bank Group, Company Codes of Conduct and International Standards : an analytical comparison, Washington, 2003 (http://info.worldbank.org/etools/docs/library/114195/Company%20Codes%20of%20Conduct%20and%20International%20Standards%20-%20Part%20I%20-%202003.pdf, accessed : 18 April 2006).

[32] Reported by R. Steinhardt, ‘Corporate Responsibility and the International Law of Human Rights : The new Lex mercatoria’, in P. Alston (ed.), Non-State Actors and Human Rights (Oxford : OUP, 2005), p. 183.

[33] See, for example, (give name of the paper/report), http://www.unilever.com/environmentsociety/socialreporting/overview (accessed : 26 December 2005).

[34] Marrella, La nuova lex mercatoria, 783.

[35] See http://www.iccwbo.org/home/environment/charter.asp (accessed : 18 April 2006).

[36] See http://www.iccwbo.org/id904/index.html ?cookies=no (accessed : 18 April 2006).

[37] See for example the ICC international advertising code (1997) (http://www.iccwbo.org/policy/marketing/id905/index.html) as well as the ICC International Code of Sales Promotion ; ICC International Code of Practice on Direct Marketing ; ICC Code on Environmental Advertising ; ICC Code on Sponsorship ; ICC/ESOMAR International Code of Marketing and Social Research Practice, all available at http://www.iccwbo.org/policy/marketing/ (accessed : 18 April 2006).

[38] See http://www.icca-chem.org/. (accessed : 18 April 2006).

[39] See http://www.unhchr.ch/html/menu3/b/k2crc.htm.

[40] Forced labour convention, 10 June 1930, 39 UNTS 55 ; Abolition of forced labour convention, 25 june 1957, 320 UNTS 291.

[41] Freedom of association and protection of the right to organize convention, 9 July 1948, 68 UNTS 17.

[42] Equal remuneration convention, 29 June 1951, 165 UNTS 304.

[43] Discrimination (employmen and occupation) convention, 25 June 1958, 363 UNTS 31.

[44] Minimum age convention, 26 June 1973. See the text in http://www.ilo.org/ilolex/english/convdisp1.htm (accessed : 26 December 2005).

[45] See the contribution by F. Francioni, in this volume.

[46] For an account of such a debate see, inter multos, M. Addo (ed.), Human rights standards and the responsibility of Transnational Corporations, (The Hague : Kluwer, 1999) ; P. Spiro, “Globalization, International Law and the Academy’, 32 New York University Journal of International Law & Politics, 567 (2000) ; C. Mc Crudden, Human Rights Codes for Trasnational Corporations : the Sullivan and Mac Bride Principles, in D. Shelton, Commitment and compliance, (Oxford : OUP, 2000), 418-448 ; J. Dine, Companies, international trade and human rights (Cambridge : CUP, 2005) and especially R. Mullerat ; D. Brennan (eds.), CSR : the corporate governance of the 21st Century, (The Hague : Kluwer, 2005).

[47] See M. Friedman, ‘The Social Responsibility of Business is to Increase its Profits’, The New York Times Magazine, 13 September 1970. His view on CSR had been expressed in M. Friedman, Capitalism and Democracy, (Chicago : Chicago University Press, 1962). See also David Henderson, Misguided Virtue. False Notions of CSR (London : Institute of Economic Affairs, 2001), pp. 17-18 ; C. Crook (ed.), ‘The good Company : A Sceptical Look at CSR’, The Economist, 20 January 2005, vol 374 n° 8410.

[48] See Harvard Business Review on Corporate Responsibility, (Boston : Harvard Business School Publishing, 2003), ICC Business in Society : making a positive and responsible contribution (7 May 2002) accessible at http://www.iccwbo.org/policy/society/id1188/index.html, as well as the vast literature on “cause related” marketing ; R. Liubicic, ‘Corporate Codes of Conduct and Product Labelling Schemes : The limits and possibilities of Promoting International Labor Rights Standards through Private Initiatives’, Law and Policy in International Business , 30 (1998), 111.

[49] http://www.wrapapparel.org/ (accessed : 18 April 2006).

[50] See http://www.sa-intl.org (accessed : 26 December 2005).

[51] See http://www.iso.ch (accessed : 26 December 2005).

[52] http://www.kimberleyprocess.com:8080/site/ ?name=kpcs (accessed : 18 April 2006).

[53] See http://www.dti.gov.uk (accessed : 26 December 2005). Similar rules may also be found in the French Nouvelle régulations économiques of 15 May 2001 (Article 116) ; in the Italian Codice di Autodisciplina (July 2003) of the Italian Stock Market ; in the German Regierungskommission Deutscher Corporate Governance Kodex, Berlin, 21 May 2003 and in the USA, the Sarbanes-Oxley Act of 2002 (http://www.sarbanes-oxley.com, accessed:26 December 2005). Here it should be remarked that the debate on CSR links with the one on corporate governance.

[54] See http://www.dti.gov.uk/cld/companies_audit_etc_bill (accessed : 26 December 2005).

[55] See in this respect G. Farjat, ‘Réflexions sur les codes de conduites privés’, in Fouchard, Lyon-Caen and Kahn (eds.), Le droit des rélations économiques internationales, Etudes offertes à B. Goldman, p. 47, observing that (61 et seq) Codes of Conduct may be the source of trade usages so that progressive transformation into private customary rules eventually enrich the bulk of transnational public policy ; R. B. Ferguson, ‘The legal status of non statutory codes of practice’, Journal of Business Law (1988), 12 et seq. ; F. Osman, ‘Avis, directives, codes de bonne conduite, recommendation, éthique, etc. : réflexions sur la dégradation des sources privées du droit’, Revue Trimestrielle de Droit Civil 1995, 509 et seq. ; G. Farjat, ‘Nouvelles réflexions sur les codes de conduite privés’, in J. Clam and Gilles Martin (eds.), Les transformations de la régulation juridique, (Paris : LGDJ, 1998), p. 151. And especially P. Kahn, ‘Les réactions de milieux économiques’ in P. Kahn and C. Kessedjian (eds.), L’illicite dans le commerce international, (Litec : Paris, 1996), pp. 477 et seq. (esp. 491).

[56] See, amongst a huge literature, P. Atiyah, The Rise and Fall of Freedom of Contract (Oxford : OUP, 1985) as well as Nygh, Autonomy in international contracts ; R. Zimmermann and S. Whittaker, Good faith in European Contract Law, available at http://assets.cambridge.org/052177/1900/sample/0521771900wsc00.pdf (accessed : 26 December 2005) ; U. Magnus, ‘Remarks on good faith : the United Nations Convention on Contracts for the International Sale of Goods and the International Institute for the Unification of Private Law, Principles of International Commercial Contracts’, Pace International Law Review 10, (1998), 89-95.

[57] See e.g. M. Hesselink, The concept of good faith, in Hartkamp, Hesselink, Hondius, Du Perron, Veldman, Towards a European Civil Code, 3rd ed., (The Hague : Kluwer, 2004), pp. 471-498

[58] Examples of these requirements may be found in national law ; ex multis in Articles 1175, 1337, 1338, 1366, and 1375 of the Italian Civil Code, and in those codes which have followed the model of § 242 BGB (in full) [in force up to 31 December 1999], that is Leistung nach Treu und Glauben, i.e. performance according to good faith, according to which : ‘Der Schuldner ist verpflichtet, die Leistung so zu bewirken, wie Treu und Glauben mit Rücksicht auf die Verkehrssitte es erfordern.’ [‘The debtor is bound to effect performance according to the requirements of good faith, giving consideration to common usage’]. Similar requirements are included in the Unidroit Principles for international commercial contracts (2004) : see in particular Article 1(7). (Each party must act in accordance with good faith and fair dealing in international trade. The parties may not exclude or limit this duty.).(http://www.unidroit.org/english/principles/contracts/principles2004/blackletter2004.pdf , accessed : 18 April 2006)).

[59] See E. Gaillard, ‘L’interdiction de se contredire au détriment d’autrui comme principe géneral de droit du commerce international’, Revue de l’arbitrage (1985), 241. This doctrine is today embodied in the 2004 Unidroit Principles of international commercial contracts, Article 1(8), on ‘Inconsistent behaviour’ according to which : ‘A party cannot act inconsistently with an understanding it has caused the other party to have and upon which that other party reasonably has acted in reliance to its detriment’.

[60] Clean Clothes Campaign, Code of Labour Practices for the Apparel Industry including Sportswear, February 1998, reproduced in R. Mares, Business and human rights : A compilation of documents (Boston : Martinus Nijhoff, 2004), 167-178.

[61] Id. At 174.

[62] http://www.uncitral.org/pdf/english/texts/sales/cisg/CISG.pdf (accessed : 18 April 2006). See Ph. Kahn, Les réactions des milieux économiques, in Kahn, Kessedjian, L’illicite dans le commerce international, Paris, 1996, pp.477-494.

[63] Article 8 of the CISG offers, further, the following rules : ‘If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. -(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties’. See the comment by A. Junge in P. Schlechtriem (ed.), Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford : OUP, 1998), pp. 69-80.

[64] Two remarkable (although controversial) cases evidencing such a trend may be found in ICC award No. 5617 (1989), Journal de droit international, 1994 at 1041 (contract of sales of human glands obtained from cadavers for production of drugs) ; ICC award No. 3493 (1983) in 23 ILM 1048 (1984) (“Pyramids arbitration” : international construction contract in the area of Egyptian pyramids).

 

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