Enforcing Corporate Social Responsibility Codes: On Global Self-Regulation and National Private Law

Cover
Half-title
Title
Copyright
Preface
Contents
List of Abbreviations and Symbols
1. Introduction
	1.1. From New York to Bangladesh: The Changing Societal Role of Companies
	1.2. Corporate Social Responsibility and the Law
		1.2.1. The Past: Corporate Social Responsibility and Legal Obligations
		1.2.2. Recent Transformations: Globalisation and the Rise of Transnational Corporations
		1.2.3. Evolving Global Regulation: Public and Private Codes of Conduct
			1.2.3.1. Public Codes of Conduct
			1.2.3.2. Private Codes of Conduct
	1.3. Taking Corporate Codes Seriously: Unfolding the Argument
Part I: Linking Corporate Codes and National Private Law
	2. Comparative Sociological Jurisprudence: A Method for Linking Global Self-regulation and National Private Law
		2.1. Global Self-regulation and Functionally Differentiated Private Law
		2.2. Global Self-regulation and Territorially Fragmented Private Law
	3. Enforcing Corporate Codes by Private Law: The Role of National Contract Law
		3.1. Corporate Codes as Enforceable Obligations
			3.1.1. The Easy Case: Incorporation into Contracts
				3.1.1.1. Supplier Contracts
				3.1.1.2. Customer Contracts
				3.1.1.3. Contracts on Social and Environmental Compliance
			3.1.2. The Comparably Easy Case: The Ancillary Documents
				3.1.2.1. General Terms and Conditions
				3.1.2.2. Umbrella Agreements
				3.1.2.3. Conclusion
			3.1.3. The Difficult Case: Public Declarations as Contract Terms
				3.1.3.1. A Controversial Case: Doe v Wal-Mart Stores
				3.1.3.2. Public Declarations in Contract Interpretation and Supplementation
			3.1.4. Taking the Debate to the Next Level: Enforcing Publicly Declared Codes
				3.1.4.1. Public Declarations as Contracts
				3.1.4.2. Public Declarations as Relied-upon Unilateral Promises
			3.1.5. Conclusion
		3.2. The Enforceable Obligation and Applicable Remedies
			3.2.1. Setting the Scene: University of Wisconsin Madison v Adidas
			3.2.2. The Default Rules on Sales Contracts
				3.2.2.1. Corporate Codes and Product Characteristics
				3.2.2.2. Applicable Sales Law Remedies
				3.2.2.3. Conclusion: Corporate Codes and Sales Law
			3.2.3. Third Party Rights in Contracts
				3.2.3.1. Corporate Codes and Third Party Benefits
				3.2.3.2. Applicable Remedies for Contracts with Third Party Benefits
				3.2.3.3. Conclusion: Corporate Codes and Contractual Third Party Rights
			3.2.4. Corporate Codes as Regulatory Contracts
			3.2.5. Conclusion
		3.3. Overall Conclusion: Corporate Codes Under Contract Law
			3.3.1. The Status of Publicly Declared Codes
			3.3.2. The Code Obligation and Applicable Remedies
	4. Liability for Breaching Corporate Codes: The Role of National Civil Liability Rules
		4.1. The Influence of Corporate Codes on Legal Liability
			4.1.1. Contractually Enforceable Corporate Codes
				4.1.1.1. English Law: Negligent Performance of a Service
				4.1.1.2. German Law: Contracts with Protective Effect Towards Third Parties
				4.1.1.3. Interim Conclusion
			4.1.2. Publicly Declared Corporate Codes
				4.1.2.1. The Public Declaration as the Basis of Liability
				4.1.2.2. Non-compliance as the Basis of Liability
				4.1.2.3. Conclusion: Liability for Publicly Declared Codes
			4.1.3. Conclusion
		4.2. The Code Obligation and the Applicable Remedies
			4.2.1. Corporate Codes as a Duty of Care
				4.2.1.1. The Standard of Taking Reasonable Care
				4.2.1.2. Individual Components
				4.2.1.3. Industry Self-regulation and Practice
				4.2.1.4. Interim Conclusion
			4.2.2. Applicable Remedies
		4.3. Overall Conclusion: Corporate Codes Under Civil Liability Rules
	5. Corporate Codes and Unfair Trading Behaviour: The Role of Unfair Commercial Practices Law
		5.1. The Comparative Approach to Unfair Commercial Practices Law
		5.2. The Scope of Unfair Commercial Practices Law
			5.2.1. Setting the Scene: From Kasky v Nike to Europe
			5.2.2. The Environmental and Social Content of Corporate Codes
			5.2.3. Corporate Codes as Commercial Practices
				5.2.3.1. Public Communication on Corporate Codes
				5.2.3.2. Non-compliance with Corporate Codes
		5.3. Corporate Codes as Unfair Commercial Practices: From Kasky V Nike to Verbraucherzentrale Hamburg V Lidl
			5.3.1. Regulating Communication on Corporate Codes
				5.3.1.1. Communication on Products and Corporate Performance
				5.3.1.2. Communication on Social and Environmental Engagement
				5.3.1.3. Interim Conclusion
			5.3.2. Taking Lidl Further: Regulating Non-compliance with a Corporate Code
				5.3.2.1. Codes of Conduct in European Unfair Commercial Practices Law
				5.3.2.2. German Law: Controversy Over Codes of Conduct
				5.3.2.3. English Law: Self-regulation as Specifying the Fairness Standard
			5.3.3. Conclusion
		5.4. Applicable Remedies
			5.4.1. Collective Enforcement
			5.4.2. Individual Enforcement
				5.4.2.1. English Law: Misrepresentation and Recent Reform
				5.4.2.2. German Law: Private Law Remedies
		5.5. Overall Conclusion: Corporate Codes Under Unfair Commercial Practices Law
Part II: Theorising Corporate Codes and National Private Law
	6. Comparative Sociological Jurisprudence: A Normative Method for Theorising Global Self-regulation and National Private Law
		6.1. A Need for Theory on Corporate Codes in National Private Law
			6.1.1. The Status of Public Declarations in Private Law
			6.1.2. The Status of Corporate Regulation in Private Law
		6.2. Comparative Sociological Jurisprudence and Corporate Codes
			6.2.1. The Social Responsiveness of the Law
			6.2.2. The Eigen-normativity of the Law
	7. Firm Commitments: Theorising Public Declarations in National Private Law
		7.1. Elements to Create a Binding Effect
			7.1.1. Revisiting the Debate on Intention, Declaration and Reliance
			7.1.2. Towards a Combined Approach
				7.1.2.1. The Intention Component
				7.1.2.2. The Reliance Component
		7.2. The Socially Binding Effect of Publicly Declared Codes
			7.2.1. The Declaration: Corporate Codes as Binding Promises
				7.2.1.1. Observing the Content of Corporate Codes
				7.2.1.2. Theorising the Content as Promissory Language
			7.2.2. The Intention: Corporate Codes as Deliberate and Strategic Promises
				7.2.2.1. Observing Motives behind Adopting and Publishing Codes
				7.2.2.2. Theorising the Motives as an Interaction Between Intention and Language
			7.2.3. Reliance: Social Effects of Code Promises Contextualised
				7.2.3.1. Observing the Social Context of Corporate Codes
				7.2.3.2. Theorising Corporate Codes as Differentiated Social Communication
			7.2.4. Conclusion
		7.3. Private Law Enforcement of Code Promises
			7.3.1. From Socially to Legally Binding Effect
			7.3.2. Corporate Codes in Market Relations
				7.3.2.1. Corporate Codes as Enforceable Contracts?
				7.3.2.2. Corporate Codes as Enforceable Terms in Contracts
				7.3.2.3. Corporate Codes as Enforceable Promises
				7.3.2.4. Conclusion: Enforcement of Publicly Declared Codes in Market Relations
			7.3.3. Public Trust in Code Promises
				7.3.3.1. Protecting Public Trust in Promises by Enforcement?
				7.3.3.2. Reliance Liability in Tort and Unfair Commercial Practices Law
			7.3.4. Towards Conceptualising Publicly Declared Codes in Private Law
	8. Corporate Efforts to Do Just Business: Theorising Public/Private Regulation in Private Law
		8.1. Corporate Codes as Regulatory Contracts and Commitments
		8.2. Political Regulation by Economic Relations
			8.2.1. Economic Sociology: Corporate Codes as Re-embedding Economic Relations
				8.2.1.1. The ‘Embeddedness’ of Markets in Society
				8.2.1.2. Civil Society and Market Pressure as Counter-movements
				8.2.1.3. The Process of Re-embedding
				8.2.1.4. Conclusion
			8.2.2. Social Differentiation: The Political Difference in Corporate Codes
				8.2.2.1. Political Regulation Under Conditions of Social Differentiation
				8.2.2.2. Corporate Codes and Politics
				8.2.2.3. A New Understanding of the Political
			8.2.3. Conclusion
		8.3. Private Law Enforcement of Political Regulation by Corporate Codes
			8.3.1. Re-conceptualising the Public/Private Divide
				8.3.1.1. The ‘Traditional’ Autonomy of Private Law
				8.3.1.2. Public Policy in Private Law
				8.3.1.3. Corporate Codes: Neither Intervention nor Autonomy
				8.3.1.4. A New ‘Publicness’ in Private Law
			8.3.2. Consequences for Contractual and Promissory Enforcement
				8.3.2.1. Towards a Duty to Regulate
				8.3.2.3. Third Party Rights
				8.3.2.4. Conclusion
			8.3.3. Consequences for Legal Liability
	9. Conclusion: The Prospects and Limits of Enforcing Corporate Social Responsibility Codes
		9.1. Realising Private Law Enforcement
		9.2. Towards Private Law Enforcement of Corporate Codes: Legal Policy Proposals
			9.2.1. Contract Law
				9.2.1.1. Towards the Enforcement of Publicly Declared Corporate Codes
				9.2.1.2. Corporate Regulation in Contract Law Doctrine
			9.2.2. Civil Liability Rules
				9.2.2.1. Reliance Liability
				9.2.2.2. Individual Standards of Reasonable Care
			9.2.3. Unfair Commercial Practices Law
				9.2.3.1. Regulating Corporate Code Marketing
				9.2.3.2. Regulating Non-complying Behaviour
		9.3. Enforcement of Corporate Codes in Perspective
			9.3.1. Social and Legal Prerequisites
			9.3.2. Global Self-regulation and Fragmented National Legal Systems
			9.3.3. Future Challenges
Bibliography
Index