Summary by Ahnaf Razzak
The conference began with a panel focused on the nuanced interactions between public international law, corporations, and emergent sustainability frameworks. The first panel, featuring Peter Muchlinksi (SOAS), Sundhya Pahuja (Melbourne), and Barnali Choudhury (Osgoode), was brought into session by the panel chair, Galit Sarfaty (Toronto).
Sustainability as a Corporate Fiduciary Duty
Peter Muchlinksi opened the session by exploring the reformation of corporate law to incorporate a directors’ fiduciary duty of care to address human rights. Muchlinksi noted that the viability of this reform is dependent on the corresponding inquiry of whether companies should purely pursue profit maximization or be responsible for the externalities created. He noted that a balancing act must be performed between the two approaches. He argued that an appropriate articulation of the above duty of care would openly outline ESG considerations to both regulate and direct the interaction of human rights and corporate interests (whilst simultaneously functioning as a business loss liability shield for directors).
Muchlinksi advised that such a duty of care needs to go beyond remedies and would thus consist of four components: initial identification of human rights/impacts, assessment of their risks, avoidance and mitigations of those risks, and remediation of those human rights risks. This formulation of the duty of care would be continuous and the breach of one component would be a breach of the cumulative duty. Complications arise, however, when this duty spans a complex supply chain with unrestricted foreseeable risks. Muchlinksi noted that stakeholders and experts need to be comprehensively engaged to define the limits and compliance measures of this duty of care. Though the judiciaryhas generally deferred to corporations when it comes to commercial decisions, Muchlinksi stipulated that a standard approximating the tort standard would apply given the intermeshing of business interests with the public interest. He concluded that though concerns surrounding the ease of discharge could arise, an unambiguous fiduciary duty of care framework remains a promising approach toward corporate sustainability.
Naturalization of the Corporate Personality
Sundhya Pahuja examined corporate sustainability from a historical perspective to dissect the contemporary relationship between international law and corporations. She stated that the very inception of international law was influenced by corporations and, conversely, the development of international law has been instrumental in the centralization of those corporations. Pahuja inverts the classical view to instead inquire how international law has facilitated the institutionalization of the corporate form, and how corporations have enshrined a Eurocentric version of international law.
Pahuja tended to this query by demythologizing key moments in the Western legal tradition to identify underlying interactions with corporations. This approach exposes the legal field’s tendency to naturalize corporations as being distinct exogenous actors. She argued that this naturalization allowed corporations to “travel”, thereby problematizing the view that corporate personalities recognized in one state can exist in another. She postulated that international “soft” laws, reinforced by tropes of empire and mirror legislation, protected the establishment and property rights of global-North corporations within non-European states. Thus, colonization of the global-South was by and large facilitated by the symbiosis of international law and multinational corporations. Pahuja remarked that the significance of these findings lie in the legal field’s capacity to disabuseitself of the notion of corporations as behemoths to be controlled by international law, and instead focus on the amalgamation of ideas that propagate contemporary corporate law.
An Interconnected Approach to Corporate Sustainability
Finally, Barnali Choudhury discussed how the current apparatus of international law has largely been ineffective in promoting corporate sustainability and curtailing corporate violations of foreign investment law. Choudhury cautioned against a siloed approach to this complex problem, arguing that an interconnected approach between corporate law, foreign investment law, and public international law (i.e., the “silos”) is required to foster an appropriate solution.
Choudhury argued that pockets of regulation gaps allow corporate entities to commit corporate abuses. She contextualized her position by first discussing how the three silos individually fare with corporate sustainability. She then discussed how the three silos interconnect to form a regime which facilitates these abuses. In effect, she argued that the financial goals model of corporate law are exported to host states when corporations become MNEs, with the financial ethos being insured by robust corporate property rights under foreign investment law. MNEs are also rarely regulated by international law as foreign operations are conducted through distinct local subsidiaries. Finding these interconnections between the three areas, Choudhury concluded that any potential solution must view the complex issues surrounding corporate sustainability through this interconnected lens.
In essence, the panel members put forward a nuanced dialogue on the intricate dynamics produced by the interaction of public international law and corporate sustainability. Their profound perspectives drew from both historical and contemporary developments in the corporate sustainability landscape to bolster critically underserved areas of legal scholarship. This first session brought forth essential questions surrounding the shortcomings in international law’s current approach to regulating MNEs, thereby laying the contextual groundwork for the remainder of the conference.