Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations

Abstract:     
The enforcement framework for the MNE Guidelines has long been the subject of criticism, especially by representatives of private and public actors. But two recent cases have suggested the ways in which enforcement actions arising from civil society efforts to utilize the national contacts points complaint system may be slowly influencing the emerging discourse of corporate behaviour in ways that will have substantial effect. Beyond evidence of a more muscular institutional transnational enforcement structure for soft law codes, the cases serve to outline a framework for the interaction of transnational and national systems of corporate regulation. The multilateral system for governing multinational corporate behaviour will affect not only that behaviour but also the rules through which corporations may be governed as to their internal affairs and with respect to the character of their legal personality. This essay first briefly describes the institutional and regulatory framework within which the cases arose. It then reviews the cases themselves, drawing out the more relevant arguments. Lastly, it contextualizes those arguments and positions within national and transnational corporate and international legal regimes. The cases illustrate the way in which advances in governance issues are being crafted, step-by-step, from out of a system that, while formally non- binding, is increasingly developing the characteristics of a binding governance system. The cases suggest the parameters within which the MNE Guidelines are beginning to serve as the focal point for the construction of an autonomous transnational governance system that, in turn, is meant to serve as the touchstone for corporate behaviour in multinational economic relationships.

Keywords: Rights And Accountability In Development (Raid) V Das Air, Global Witness V Afrimex, Transnational Law, OECD, Guidelines for Multinational Corporations, soft law, Multinational Corporations, Global Compact

JEL Classifications: K22, K33, K42, M14, O19, O57

Accepted Paper Series