Thursday, March 26, 2015

Arato: Corporations as Lawmakers

Julian Arato (Columbia Univ. - Law) has posted Corporations as Lawmakers (Harvard International Law Journal, forthcoming). Here's the abstract:
This Article argues that the multinational corporation has acquired the power to create primary rules of international law, at stark cost to the state’s regulatory autonomy. It is widely recognized that states have granted private business corporations significant capacities to act on the international stage, including the capacity to bear international legal rights and even to directly enforce their rights through compulsory international adjudication. But what has gone relatively unnoticed is the corporation’s emergent capacity to directly and formally author its international legal rights, by agreement with sovereign states, via an “internationalized” power of contract. This Article explains how this power of contract amounts to something more than a mere commercial power to engage foreign sovereigns in private legal agreements. It represents no less than the capacity to author meaningful and enforceable international legal norms, with priority over the domestic law of the state party – facially limited to the economic sphere, but with dramatic ripples throughout all domains of public life. I argue that this power arises out of the confluence of three seemingly disparate doctrinal shifts in international investment law and human rights jurisprudence, concerning: the legal status of state contracts; the theory of transnational property; and the law of corporate nationality. Finally, I turn a critical eye to these developments, drawing theoretical insights from domestic private law and public international law. I conclude that international legal doctrine has gone too far in empowering multinationals against the state, while remaining too hesitant to demand any form of corporate accountability.