This chapter discusses the gaps in the conceptual foundations of responsible supply chain management. It tends to be explained under various corporate social responsibility (CSR) theories that do not account for the territorial and ‘self-interested’ behaviours that exist inside large companies. We’ll then discuss how firms reconcile core business drivers like cost competitiveness versus normative goals like protecting human rights. Finally, the chapter addresses the ongoing tensions around managing supply chains in host countries where corruption is endemic and institutional capacity is weak and fragmented due to a confluence of political, economic and social factors.

This chapter chronicles an unnoticed aspect of the intellectual history of the “contractarian” paradigm, the descriptive claim that firms are best characterized as nexus of contracts. Although the paradigm’s rise in the 1980s in the corporate world is well known, little has been said about its success in rewriting both theory and doctrine in charitable and not-for-profit law. The contract paradigm has reshaped the questions that not-for-profit scholarship attempts to answers, and it is tightly linked to developments in not-for-profit doctrine and practice. Key examples include the growth of donor standing—the notion that not-for-profits have a fiduciary duty to their donors, and that donors may bring suit for breaches—and the growing obsession with “donor intent” throughout the not-for-profit sphere. I contrast contractarianism with an institutionalist “public trust” conception of charities, which was the prevailing intellectual paradigm for most of the 20th century.

In 2006, the Japanese law of nonprofits underwent a major reform. Notably, the reform involved a shift in the governance mechanism from external governmental oversight to a structure that emphasizes internal fiduciary governance. As the Japanese law in this area has historically been marked by various strands of fiduciary rules derived from different sources, the event presents a valuable case study on how the shift to a fiduciary governance approach can impact the operation of those entities that are subject to the reform. This chapter will begin with a historical account of the evolution of Japanese nonprofit law that involves complex interactions among the indigenous nonprofit tradition, the civil law influence, American fiduciary principles, and the English-style charity commission. After discussing the major components of the 2006 reform against the backdrop of major events that created the reform momentum, this chapter will use available empirical evidence to critically examine the reform’s achievements and consider any remaining issues that pose ongoing challenges.

The regulation of mutual funds in the United States arguably contains the world’s most extensive system of fiduciary protection, buttressed by elaborate liability rules and a host of procedural protections and mandatory disclosure requirements designed to facilitate investor protection and choice. The intensity of this regulatory structure is a subject of perennial debate, as officials and analysts attempt to balance the cost of compliance and oversight against benefits to investors. Government officials have made numerous accommodations to ameliorate the system’s costs and facilitate industry innovations. But, the burdens of this enhanced system of fiduciary protections for mutual funds remain significant and have encouraged industry participants to evade these legal requirements in a number of ways, such as the creation of alternative vehicles for collective investments and the imbedding of regulated mutual funds into other legal structures that escape the full application of the enhanced system of fiduciary protections for mutual funds. This chapter suggests areas where aspects of mutual fund regulation might appropriately be extended to functionally similar investment vehicles.

This chapter examines two modalities of equitable intervention in corporate governance in cases of shareholder conflict. The first involves the extension of fiduciary duties to controlling shareholders, and the second judicial review on the grounds of oppression. Both forms of intervention are intended to be responsive to pathologies inherent in majoritarian governance in organizations featuring enfranchised members. Notwithstanding long-settled authority in Delaware and other American states for the proposition that controlling shareholders are fiduciaries of minority shareholders, I argue that fiduciary regulation is an inapt modality of equitable intervention given the nature of the problems generated by majority rule in corporations. By comparison, the oppression remedy—favored in commonwealth jurisdictions—enables more apt and effective tailored responses to these problems. The choice between these modalities of intervention implicates a choice between equity’s supplemental contributions to first-order law and its corrective, second-order intervention in first-order law. The chapter concludes with some general reflections on the place of equity in contemporary law.

This chapter describes the moral and psychological ‘dilemmas’ of politicians, legal practitioners (like WTO lawyers, investment arbitrators) and businesses, driven all too often by self-interested utility maximization rather than by ‘inclusive, public reason’ accepting moral responsibility for reconciling all public and private interests on the basis of mutually agreed ‘principles of justice’ and human rights. It further illustrates these dilemmas by the US Trump administration’s neo-liberal, business-driven assault on UN and WTO law. It argues that power-politics and interest-group-politics underlying both neo-liberal and state-capitalist regulatory approaches undermine protection of human rights in IEL. It further describes the pragmatic ‘judicial common law approaches’ in WTO jurisprudence and investment adjudication, which focus on governmental rights to protect PGs (like public health, indigenous peoples’ rights, public morality, public order) and on agreed ‘constitutional principles of justice’ rather than on human rights. It concludes that Europe’s multilevel constitutionalism has better succeeded in ‘constitutionalizing’ common market law, the European Union’s (EU) external relations law and economic adjudication by protecting civil, political, economic and social rights within a ‘social market economy’ (article 3 of the Treaty on European Union [TEU]) embedded into ‘multilevel democratic constitutionalism’ and multilevel human rights law and adjudication.

Business is an essential part of human society, and the right to livelihood is a fundamental human right. Business can impact human rights, for better or worse. Recognition of this has led to a legal regime focused on preventing business-related human rights violations. The impact of these violations depends partly on a person’s place in society. Several cases may be used to illustrate how business can have differentiated impacts based on gender. For example, while maternity protection has been recognised in international labour law since 1919, a century later both pregnancy and breastfeeding discrimination, and maternity and paternity inequalities continue. The many gender-differentiated impacts of business on human rights require a gender-responsive business and human rights (BHR) framework. This chapter begins by defining key terms and the theoretical underpinnings of a gender-responsive approach to BHR. Next, it outlines international human rights law (IHRL) and policy relevant to gender, business, and human rights. It concludes that the current BHR regime does not provide adequate protection to those suffering gender-based rights violations. Nevertheless, there are ample legal and related texts presently available with which to begin to remedy this problem.

A robust global legal regime holds business firms accountable for engaging in corruption. This chapter explicates that regime. This chapter also puts forth a business case for not engaging in corruption. Corruption imposes real costs on businesses, and degrades the quantity and quality of relationships into which they might enter. The chapter concludes with a discussion of measures that all businesses should take to mitigate the likelihood that persons associated with them will engage in corruption. Before discussing any of these topics, however, this chapter first discusses the definition of corruption and describes the harms corruption inflicts.

This introduction traces aspects of the history of fiduciary duties in business law and scholarship. Despite fiduciary law’s centrality to business law, the chapter describes how the contractarian revolution of the 1980s contributed to the marginalization of fiduciary duties, both in theory and doctrine. However, subsequent developments, both in case law and in scholarship, have questioned some of the core assumptions of the early wave of contractarian theory. The introduction outlines three critiques that scholars have levied against the early contractarians’ view of fiduciary duties, and connects these critiques to the eighteen chapters in the volume. The introduction also provides a roadmap of our contributors’ arguments.

The ongoing convergence of the various corporate governance systems in the world is reflected by the increasingly important institute of the independent director. Even legal systems, like Germany, which require a dualistic board structure and thus have no or less need for independent directors have introduced independent directors. The paper examines the approach taken in Delaware and Germany and compares them. The comparison shows that while the concept of the independent director is the same in both jurisdictions, it has been implemented rather differently. The legal comparison may, thus, provide suggestions for improving the determination of independence of directors.

This chapter examines corporate responsibilities and accountability to anticipate and redress human rights violations relating to the environment in their spheres of operations. After this introduction, section 2 examines the drivers and contours of the growing recognition of corporate accountability relating to environmental damage. Section 3 unpacks the key scope and content of emerging human rights obligations of corporations to protect the environment. These obligations are as follows: participation, accountability, non-discrimination and equality, empowerment and legality (the PANEL principles). By implementing the PANEL principles in the design, approval, finance and implementation of their operations and projects, business enterprises can proactively anticipate and tackle environmental risks across their entire business value chain. Section 4 highlights practical challenges that must be addressed by national authorities and business enterprises in order to fully translate these norms to reality. Section 5 is the concluding section.

Courts, practitioners, and academics alike have long considered corporate officers and directors to be fiduciaries of the public corporation and its shareholders. As corporate law has evolved, however, with the business judgment rule strengthening, the duties of care and loyalty narrowing in scope, and executive compensation schemes further introducing self-interest into corporate decision making, the fiduciary paradigm is no longer an accurate description of the nature of the relationship between corporate managers and the corporation. Corporate officers and directors have significant latitude to make decisions that take into consideration their self-interest while still satisfying their duties to the corporation. Further, the “best interests” of the corporate entity and its multitude of stakeholders are highly variable and often ill-defined, such that it would be impractical to pursue those interests as a singular goal. This Article argues that corporate officers and directors are not governed by fiduciary duties in the truest sense of the term. This misconceptualization inhibits an accurate understanding of the dynamics underlying corporate decision

In this Chapter, we survey the common law’s adventures with creditor protection over the course of American history with a special focus on Delaware. We examine the evolution of the equitable doctrines that judges have used to answer a question that arises time and again: What help, if any, should the common law be to creditors that suffer losses due to the purported carelessness or disloyalty of corporate directors and officers? Judges have struggled to answer that question, first deploying Judge Story’s “trust fund doctrine” and then molding fiduciary duty law to fashion a remedy for creditors. This reached a high point in the early 2000s as judges flirted with recognizing a “deepening insolvency.” Delaware’s judges effectively abandoned this project in a series of important decisions around the time of the financial crisis. In this “third generation,” judges told creditors to look to other areas of law to protect themselves from opportunistic misconduct, such as bankruptcy law, fraudulent transfer law, and their loan contracts. The question has arisen time and again and today’s “settled” law is unlikely to represent the end of history in creditor protection.

The chapter critically examines and classifies the main approaches to the relationship between WTO law and international human rights law (IHLR). In so doing, it shows why none of these can be considered able to adequately manage this relationship. Thereby, the chapter goes on to examine the rise and consequences of the sustainable development goals (SDGs) and the affirmation of the MS principle in the international legal arena. And this is in order to develop in its last part a new alternative approach to the WTO-human rights relationship grounded on a combined use of the MS principle, the SDGs and their related targets.

This chapter explores the extent to which businesses have assimilated in their practice the internationally recognized standards of responsible business conduct and the SDGs framework in an integrated and mutually reinforcing way in an effort to contribute as partners to the realization of sustainable development. To this end, the UN Guiding Principles on Business and Human Rights (UNGPs) will be under focus for two reasons: first, they are cited in Agenda 2030; second, they constitute the most authoritative source among global standards of expected conduct by businesses to address and prevent the negative implications of their activities on the dignity and welfare of affected individuals and communities. Human rights pertain to all three aspects of development as put forward by the SDGs, whereas the latter are suffused with language that reflects clearly the substance and underlying norms of human rights law. Hence, the interplay between the two regimes, i.e. human rights and development, cannot be refuted. As such, the UNGPs are the predominant, until such time as the proposed Business and Human Rights Treaty is adopted, ‘normative’ roadmap for businesses to achieve the SDGs.