From politics to popular culture, the corporation has become one of the most critical economic, political, and cultural institutions of the modern era. It has also been one of the most controversial. Despite the normative and often unquestioned languages with which it is discussed, most questions about the origin and nature of the corporation have hardly been settled. Are corporations people, societies, or even governments? Do they have rights? If so, what are their civic, social, ethical, and political responsibilities?
If such questions are vexing within municipal and national contexts, they have been downright confounding for international legal regimes. Though born of varying forms of domestic law, many corporations have a global footprint and influence on our conceptions of sovereignty and governance, the functioning of international markets, the nature of interstate relations, wealth distribution, international development, and, at a basic level, the lives of people around the world. Yet modern international law has generally been understood to apply almost exclusively to states and to touch only lightly on corporate institutions, with profound consequences for everything from human rights to the global environment. We still lack the robust and extensive concepts and languages to comprehend their jurisdictionally ambiguous and spatially diffuse nature, as well as corporations’ relationships to individuals, states, and other non-state actors in a world filled with various independent or semi-independent political agents besides the nation-state.
Our proposed Sawyer Seminar will bring together an interdisciplinary community of scholars to wrestle with these complex issues about the past, present, and future of the global corporation. If our understanding of the modern multinational or supranational corporation has been blinkered by pervasive assumptions about the nature of the modern state and international regimes, that understanding has also often been provincialized by disciplinary boundaries, not only within the humanities but also among the humanities, social sciences, and professional discourses, such as law and business management. Though interest in the corporation cuts across a range of fields, those perspectives are very rarely placed into dialogue with one another. This is especially true for the relationship between business and legal scholarship, on the one hand, and historical approaches, on the other. The former two fields, so often concerned with prevailing practices concerning corporate rights and behavior — what is, rather than what ought to be — can be greatly enriched by a critical engagement with historical approaches that deal by nature with what has been. In particular, the capacity to reach back beyond the twentieth century allows us to see beyond the confines of our own assumptions about the centrality, even exclusivity, of national frameworks in shaping corporate law and behavior. Historians, on the other hand, can often be stymied by the contemporary implications of their subjects of study. Some resist engaging those implications at all, while others might draw analogical connections between the past and present that are frequently far too linear, simplified, or detached from the kinds of day-to-day concerns that inform international and global legal and business regimes. Moreover, both these approaches—the historical and the legal—are productively interrogated by a range of other analytical lenses, including those from geography, political science, economics, anthropology, and literature, among others.
In other words, whether envisioned as a person, society, or culture, the corporation begs for broad interpretations from the humanities and interpretive social sciences, in direct dialogue with the immediate concerns of business, law, and policy making. The opportunity to frame a Sawyer Seminar around these themes, and with such a comparative approach, is also timely, given both the constant concerns raised by corporations in the contemporary world but also the growing but largely uncoordinated body of scholarship about them. Such a seminar would galvanize and concentrate an already robust scholarly community at Duke and in the wider Research Triangle area. In the process, we hope to encourage compelling new research agendas and collaborations about the evolving role of the corporation in international law and its impact on such fundamental modern concepts as “free” trade, good governance, human rights, and sovereignty. Linking analysis of the past, present, and future, Corporate Rights and International Law explores the host of possibilities for how we might imagine the way corporations themselves ought and should govern, and be governed, in an ever-globalizing world.
Central Themes and Comparative Case Studies
Corporations and International Law is conceptualized along three lines of comparison: chronological, methodological, and spatial. First, the seminar will interrogate historical perspectives on the development of the corporation, primarily concerned with tracing the genealogy of contemporary legal, economic, social, ethical, and political issues that surround it as well as the use (and abuse) of historical examples for understanding those contemporary problems. The second, very much related, approach will be to juxtapose varying disciplinary approaches, considering the implications of differing conceptions of evidence and method on how we even frame questions about the nature of the global corporation. How, for example, might a legal scholar’s notion of a corporate “person” differ, for example, from that of an anthropologist? What happens when an historian’s conception of the development of corporate power over time is put up against a geographer’s conception of its development over space? How do issues that seem fairly straightforward in law — limited liability or fiduciary responsibility, for example — appear when seen through the history of political thought, which has radically different perspectives on problems such as culpability or the nature of social compacts? Finally, we will look at these questions on a variety of scales and across geographical space, considering the ways in which transnational corporations are constituted from the very local to the broadly global. In this sense, we also hope the seminar will serve as a meditation not only on what but where it is, when seen in historical, interdisciplinary, and global context.
Corporations and International Law will be designed to thread these three comparative lenses throughout the seminar, as we move through the discussion of four central problems: (1) the nature and constitution of corporate power generally, as both a legal individual and a collective society; (2) corporate commercial prerogatives to engage in global trade and investment; (3) corporate political roles as forms of governance, authority, and jurisdiction over people, places, and things; and, (4) finally, corporate moral, legal, and political responsibilities for global human rights. Our approach will be to cultivate and frame this conversation in various registers, ranging from broader themes to case studies, and in diverse formats, including lectures, workshops, roundtables, seminars, and more informal social events.
We will begin our seminar by investigating the evolution of concepts about the nature of the corporation, over time and in a range of geopolitical contexts. We will investigate the ways in which the idea of the commercial corporation developed out of various other forms of corporate identity, such as medieval Christian church governance, universities, as well as urban municipalities. We will also raise questions about the corporation’s history in comparative contexts—such as the Muslim Mediterranean and China—where scholars continue to debate whether or how ideas of corporate organization developed. We will trace these histories through the development of the joint-stock corporation, its role in shaping European empire, the shift from specific to general incorporation in the nineteenth century and the simultaneous emergence of distinctions between “public” and “private” corporations, and the introduction of the multidivisional, multinational corporate firm in the twentieth century. Readings and discussion will focus on competing ideas across disciplines about the nature of associational and corporate life, and engage questions that have been raised about the corporation generally but which take on an even more complex aspect when seen in international and global context: when did the “corporation” emerge? What is the particular legal geography of the corporation, compared to other institutional forms? Are transnational corporations a uniquely Western concept? Are they to be regarded as fictional persons or real societies? Is a corporate “family” of subsidiaries a business arrangement or a kinship network? Do corporate persons possess gender? Can they commit crimes, apart from their members? Do they have souls?
Rights to Trade
Having considered the historical and comparative definition of corporations, the seminar will proceed to think about their development as commercial enterprises in interstate and international arenas. The emergence of joint-stock corporations in sixteenth- and seventeenth-century Europe had the explicit purpose of facilitating trade both within the bounds of Christendom and then, eventually, into the wider world. Out of the medieval and early modern lex mercatoria (law merchant) and jus gentium (law of peoples, or nations) emerged various ideas about the rights of both merchants and corporate bodies to trade, travel, and traffic in extra-European space, which in turn helped produce some of the most fundamental issues in modern international law, such as the rights of strangers, the immunities of diplomats, and the nature of sovereignty on the sea. Indeed, the corporation’s engagement with colonial and global trade raised all sorts of issues about the rights of merchants, from the propriety of trading with “infidels” to the political economy of monopoly. A comparative approach to the use of corporations in shaping European encounters with the East Indies, the Americas, and Africa from the seventeenth through the nineteenth centuries will illuminate the importance of the early history of European colonialism in shaping our modern ideas about the nature of corporations and their rights and responsibilities in a global context.
Our seminar will put this historical experience in dialogue with concerns of the modern era, as expanding corporate rights to access foreign markets continue to produce conditions that seem to enhance the corporation’s nature as jurisdictionally diffuse, uneven, and slippery. What does it do to our conception of the corporate person, for example, when we recognize that global trade has spawned a world filled with holding or shell corporations: that is, legal persons that have, in essence, no people within them? Moreover, the proliferation of global trade has produced a growing web of international law, institutions, and agreements, such as the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO), which have lowered barriers to trade and demanded that countries treat imports the same as national goods with respect to regulation and taxation.
Far less well known than the WTO, however, are the global network of bilateral and multilateral investment agreements that explicitly give corporations the right to invest in foreign states, the right to fair and equitable treatment, and most notably the power to sue sovereigns for alleged breaches or “undue” burdens posed by state regulations. Such concerns have recently come to a dramatic head, for example, in the suit brought by Philip Morris against the Australian government concerning its Plain Packaging law. Though the law, which aims to reduce smoking by requiring tobacco products be sold in plain brown cartons, has already been approved by Australia’s Supreme Court, Phillip Morris nonetheless could receive compensatory and punitive damages if international arbitrators find that the law does not adequately respect corporate property rights. Such international agreements challenge what would seem to be the prerogative of a sovereign state to legislate on issues of public health, while potentially extending legal standing to corporations in the international arena that perhaps even exceeds the rights enjoyed by signatory states.
Rights to Governance
A long history of the transnational commercial rights of corporations challenges the conventional understanding of corporations as somehow subordinate to or confined by national states, but, as raised in our first section, corporations are not — and never have been — purely commercial bodies. The very origin of the corporate concept derives not from financial institutions but forms of governance: in the church, in the city, of the associational life of civil society. This module will thus investigate different approaches to how corporations have and should govern themselves and others, within and outside of national and municipal legal frameworks. We will probably return here again to examine in this context instruments of mercantile self-government, such as the lex mercatoria, as well as the ways in which various corporations, particularly in the context of European colonial expansion, emerged as forms of government in their own rights, sometimes (as in the case of European East India Companies) in competition with or even to the exclusion of state power. Though always controversial, such institutions came under increasing attack in the late eighteenth and early nineteenth centuries. As figures like Adam Smith helped redefine certain forms of corporate governance and behavior as “corruption,” the corporation was transformed by various attempts at “reform” from the 1830s through the 1870s, and beyond. Yet, models of corporate governance hardy disappeared, and in fact resurged in the late nineteenth century, whether in the form of railway companies in “opening” the American West, German, French, English, Belgian, and other companies that drove the so-called “scramble” for Africa, or companies like United Fruit that emerged in early twentieth-century Latin America.
Many modern corporations similarly exist in interstitial and interstate spaces, thriving in the cracks within and among national legal regimes. Public-private partnerships, military contractors, state-owned corporations, production sharing agreements, and other legal instruments and institutional behaviors leave many corporations around the world in charge of many of the functions we normally associate with states: policing, management of territory, managing economic and social life, and controlling the movement of people and goods. Whether exerted in micro-geographical spaces — say, for example, the corporate control in the environs of a mine, an oil-pipeline, or a railway corridor — or sometimes on much larger territorial or extraterritorial scales, corporations frequently test our assumptions about which institutions actually perform the business of public governance. Though we often see such corporate governance as derivative of or delegated from state sovereignty, it is quite often the other way around: corporations, with their fiscal and political capacities for governance, in fact sometimes produce the conditions for sovereignty that are only latterly claimed by state institutions.
Corporations thus expose the limits of both state sovereignty in two senses: corporate governance thrives in places and spaces where states dare not go, even if they may claim the theoretical right to do so; in turn, quite often the ability of corporations to evade and avoid culpability for their behavior reveals the inadequacies of municipal legal regimes to comprehend the public nature of global corporate power. Moreover, regimes of global self-governance have emerged, such as the Extractive Industries Transparency Initiative (EITI), that attempt to regulate the societal impacts of oil and gas extraction through membership and an executive board that consists not only of governments, but also companies, international organizations, and representatives of “civil society.” Our seminar will engage ongoing debates about the distinctions between self-regulation and external governance, as well as whether regulatory regimes such as these have proven successful in protecting the environment, labor rights, and public health, or whether they are inherently limited by the ways in which corporations that operate across borders and in liminal legal spaces possess a particular form of sovereign power in themselves.
Our seminar concludes by considering the ways in which the corporation’s history and present can help us to consider its rights and responsibilities to protect and preserve human rights — especially given the dilemmas raised earlier in our discussion about whether the corporation itself should be treated as a form of person possessing rights that states are bound to respect. Early modern debates over the global corporation’s rights and responsibilities focused this debate largely on questions of religion: that is, what role were European corporations supposed to play in preserving Christian souls abroad? How did the law of nations regard their responsibilities, compared to, for example, the responsibilities of monarchs or republics, particularly with respect to the right to wage war and make treaties of peace? Much of this discussion will inevitably involve the relationship between the emergence of the European corporation and evolving European ideas about responsibilities (or lack thereof) to non-European, non-Christian peoples, as well as the power corporations exerted over Europeans in the extra-European world. Of course, the discussion here will return to the outsize role corporations played in producing colonial regimes around the globe, and the debates raised in the process about civilizing mission, “protection,” and economic development. We will also discuss the role corporations have played in driving and supporting colonial expansion and warfare across the globe, through the era of the two World Wars and beyond.
As the definition of human rights—not to mention the definition of both “rights” and the “human”—evolved over the modern period, so too did questions over the responsibilities of corporations, exposing the limits of national and municipal laws to prosecute claims against corporate violations of human rights. In addition to the well-known public relations campaigns promoting awareness of human rights claims in global supply chains, there is a more formal role for international law in domestic human rights litigation. The U.S. Alien Tort Statute, for example, permits suits against corporations that either directly violate human rights or abet those who do. Yet, this litigation was significantly limited recently in the Kiobel v. Royal Dutch Petroleum case, in which the US Supreme Court found that the statute jurisdiction was territorially restricted. The question, however, is hardly settled, as other cases, such as Doe v. Nestlé et al, wind their way through the US federal courts, querying the relationship between territorial sovereignty and the reach of domestic law to corporations that operate globally. How or where should wronged parties find remedy for human rights abuses of corporations? Multinational corporations can be at once everywhere through their subsidiaries and agency relationships, and yet beyond the grasp of regulators due to corporate law theories that identify subsidiaries as separate individuals and legal doctrines that limit extraterritorial claims. The development of jurisprudence on this question (in the Alien Tort Statute and other statutes, such as the Foreign Corrupt Practices Act) allows us to explore when governments, particularly courts, are willing to use the power of the state to give force to developing international legal principles. In turn, this raises the fundamental question at the heart of this seminar: if state power is often inadequate to the task of governing international corporate behavior, what kinds of ethical, legal, legal, political, social, and economic concepts of the corporation—and what forms of international law and institution— are in fact appropriate to comprehend corporate rights in a global context?