Dis-Incorporating Corporate Social Responsibility

Abstract

This work aims at answering a basic question for transnational corporate lawyers: based on the legal definition of what a corporation is in a transnational context, do actors other than shareholders have “per default” certain legal rights towards the corporation? Based on this premise, this work aims at demarcating the starting line by answering the question of whether, in today’s transnational law, a corporation can already be considered as socially responsible or whether corporate law has to be changed in order to make the transnational corporation (at least from a legal perspective) per definition a socially responsible economic organization.In order to perform this investigation and forward certain normative proposals, this work starts by sketching in Part One the situation concerning corporate social responsibility in the transnational context, in particular in relation to the regulation of corporate governance. Based on the commonly shared definition of corporation in a transnational legal context, corporate social responsibility cannot be considered “per default” as being part of the legal duties of a corporation, at least as the situation exists today. Part Two denotes one particular aspect that needs to be taken into consideration when dealing with transnational law in general: the latter is based more on legal principles to be weighed against each other than on specific and “either-or” rules. This particular feature of transnational law is fundamental in order to understand where and in which forms the normative proposals as to the corporate social responsibility for multinational corporations are going to have to operate. Part Three proceeds into the hard-core of this work: The offering to legal actors of possible strategies in order to insert the idea of corporate social responsibility as a necessary legal requirement for an economic organization to be called as corporation. Once the best strategy is identified, i.e. a mixture of hard and soft law measures, the final Parts Four and Five proceed in offering an example of how to introduce the interests of others than shareholders in the very core of the regulation of corporate governance, namely through the figure of an in-house corporate ombudsperson.