This Chapter focuses on governmental use of private military and security companies (PMSCs) to evade the law of state responsibility, using offering as a case study of Russia’s deployment of a shadowy corporation known as the Wagner Group as a case study. The cChapter then suggests ways in which we might rethink the law of state responsibility in order to respond to the increasing threat of this sort of hybrid warfare. Drawing from scholarship on global legal pluralism, the cChapter argues for a less formalist and more functionalist analysis of the law of state responsibility. I I n the context of hybrid war, formalist conceptions of the state allow governments such as Russia to skirt state responsibility solely because there may be no formal contract between Russia and a PMSC such as the Wagner Group. One possible response then is to reinterpret Article 8 of the Articles of State Responsibility so that it looks at the real functional ties between a state actor and a PMSC, along with the “governmentality” of the function the PMSC performs.

As state ownership of private firms grows, morphs, and globalizes, states increasingly channel their influence through the financialized markets. The ensuing merger of the state’s commercial and sovereign roles suggests that state ownership is, again, becoming a vector of sovereign authority. This chapter analyzes the international legal system that has developed around surging state ownership. It suggests that the legal construction of distinctive “shareholder identities” in international economic law plays a key role in this complex regulatory matrix. Specifically, the chapter focuses on how arbitral tribunals adjudicating claims arising from international investment treaties use attribution, a doctrine of customary international law, in creating, maintaining, and disciplining state shareholders. Arbitral tribunals use the analytical category of the state shareholder in order to delineate and construct state and company identities and to understand the economic, political, and legal implications of those identities in the the global economy. Accordingly, the interactions between substantive international economic law and the law of state responsibility form important, but underappreciated, elements of this constitutive process, which comes to affect the institutional design of state shareholding and disincentivize hands-on control over state-owned entities.

Over the past hundred years, American law has gradually – —and controversially –— expanded the speech rights of corporations. O O ver the same period, corporate speech has become pervasive, and now dominates most major channels of communication. C C orporate speech ranges from anodyne commercial appeals to expressions of ethical values to campaign finance payments. W W hen a corporation “speaks,” who should we understand is the real speaker? T T his chapter explores issues of speech attribution for corporations, and argues that the best approach is for attribution to turn on the corporate governance that produces the speech.

This volume offers a new point of entry into enduring questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution allows the volume to consider together an array of questions about artificial entities that are usually divided into doctrinal siloes. These include questions about attribution of international legal responsibility to states and state-owned entities, transnational attribution of liabilities to firms, and attribution of identity rights to corporations. Taken together, the book highlights the artificiality of doctrines that construct firms and states, and therefore their susceptibility to change.

When corporations engage in misconduct, we rely on two types of sanctions to discipline them: legal and reputational. For various reasons, both types of sanctions have limitations. This chapter argues that a combination of legal and reputational sanctions for corporate misconduct can help to improve the effectiveness of blame attribution, deliver meaningful punishment for misconduct, and foster organizational change. For example, legal sanctions through lawsuits and government fines can trigger reputational sanctions that can unleash a subsequent wave of monetary costs because the publicity associated with the lawsuit or government fine can lead a corporation’s stakeholders to re-evaluate their relationship with it. Alternatively, legal rules can facilitate the operation of reputational markets by increasing information flows and thereby improving attribution of conduct to particular companies.

Attributing mental states to business entities requires law to embrace a double fiction. We must first deem these entities to “exist” even though they lack corporeal substance and are only described in documents. Then, we must somehow attribute mental states to these fictional entities – —not because we believe them to have minds but because we need to do it for the law to work. Unsurprisingly, courts struggle to attribute mental states to business entities and mostly default to respondeatrespondeat superior superior and attribute some human’s mental state to the entity. For entities with many diverse shareholders, members, officers, employees, subsidiaries, and affiliates, attributing some mental state to the entity poses a particular challenge. This chapter probes how we attribute mental states to business entities by focusing on how we attribute scienter or fraudulent intent to business entities in securities cases.

This chapter explores how multiple corporate structures in multinational enterprises operating in developing countries, and in Africa in particular, make determinations of responsibility among the members of such corporate families difficult. Specifically, this chapter challenges the assumption that the end of colonial rule and the founding of African states threw off the economic subordination that characterized colonial-era corporate activity in Africa. The end of colonial rule was accompanied by a desire on the part of multinational corporations to re-legitimize their activities in service of the newly independent governments through Africanization, which involved hiring African directors and officers as well as establishing domestic subsidiaries with African directors and officers. These strategies, together with the indigenization policies of post-colonial governments, in part account for the emergence and proliferation of multiple corporate structures in post-colonial African countries. Those complex structures, in turn, facilitate opportunistic behavior by transnational elites and complicate attribution of responsibility in the context of taxes and other financial liabilities.

As increasingly recognized, medieval and early modern corporations were influential models for the emerging European state. E E xisting scholarship documents the influence of the corporation’s constitutionalism on the constitutionalism of the state. T T his article documents the separate influence of the corporation in imparting “juridical personhood” to the state – —the capacity to own and contract as an individual. T T his is a feature of all modern states, regardless of constitutional order, that vastly augments their power and makes possible the current international state system. C C ontrary to reigning assumptions, it did not automatically follow from borrowing the corporation’s constitutional structure, but was a distinct historical development. J J uridical personhood passed from the (corporate) bishopric to the kingdoms of Europe via the medieval bishop–~king analogy. T T he chapter examines this history in England and the Continent, then relates how the American founders resolved the longstanding tension between state sovereignty and state juridicality, i.e.that is, that the state is sovereign yet is under the rule of law and, for example, bound by its contracts. T T he chapter also clears up some modern conceptual confusions regarding peoples, states, and governments.

In recent years, there has been increasing pressure on corporate entities to engage in moral or ethical decision- making. Given the immense economic and political power of modern corporate entities, it becomes critical to determine the origin point of these ethical decisions, both to ensure that corporations are held responsible for their moral choices and to tether corporate moral decision-making power to the appropriate group, or groups, of human beings. Determining to whom corporate morality should be attributed is not an easy task, however, and requires consideration not just of the people involved in the corporation but also of the role the corporation plays within a representative democracy. Ultimately, inquiry into the attribution of a corporation’s moral judgments may best be seen as fluid and context-dependent. That is, it should examine both the way the corporation is structured and the importance of representation for the moral choices of corporate stakeholders.

The corporation plays a special role in discussions over legal personhood. Whereas advocates for human rights have turned to personhood to offer protection to the vulnerable, corporate personhood confers privileges on already powerful institutions. Nonetheless, attempts to distinguish corporate persons from other persons are beset by problems. This chapter suggests that instead of trying to find the truth of persons, such that we can distinguish real flesh and blood humans from the persona ficta of the corporation, we should take seriously the fictional nature of corporate personhood. The chapter concludes by mapping out two different ways that corporate fictions operate, one in law and the other in literature.

The debate over whether corporate social responsibility should comprise soft law responsibility or legally binding obligations is inadequate to address the legal relationship between corporations and society. The corporate social responsibility movement addresses only an economic agency problem and overlooks a fundamental gap between economic agency and legal agency, or attribution. The former is the problem of potential divergence of interests between a principal and an agent, and the latter concerns the laws regulating the relationship between a person and his or her representative. Corporate social responsibility is meant to respond to the first of these— – the economic agency problem – —as scholars have analyzed at length. However, the legal structures needed to address attribution and legal accountability are still far from established. The chapter proposes an attribution framework that can appropriately address the legal agency problem, in other words, to address corporate social accountability. It suggests that creating a new form of fictitious legal entity could help address this problem by resolving collective action issues.

The doctrine of attribution in international law has been defined, in large part, by the International Law Commission’s (ILC) provisions on attribution of conduct in the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA). It is uncontroversial to note that despite the influence of the ILC’s rules on attribution, the regime of international responsibility remains underdeveloped. In addition to being underinclusive, the rules of attribution in ARSIWA are beginning to appear outdated. The central question, therefore, is whether the rules of attribution in ARSIWA are flexible enough to accommodate two disparate trends. On the one hand, we have witnessed an outsourcing of public functions to private actors in areas such as immigration, prison management, and education, whereby privatization has reduced state control and, consequently, potential state responsibility. On the other hand, there is a marked centralization of power in SOEs, some of which are now playing a global role as investors. This chapter assesses whether the default rules on attribution are flexible enough to manage both ends of the spectrum of state activity, which will be a crucial issue for regulators going forward.