Shooting in the Dark: A Critical Analysis of Historical Approaches Aimed at Regulating Multinational Enterprises by Host and Home States

Aaliya Waziri comments on why should Multinational Enterprises be regulated in the first place.

INTRODUCTION

Prior to deciphering the role played by Home States in regulating Multinational Enterprises (hereinafter referred to as MNEs), it might be prudent to unpack the contents of that very statement. To do so, let us begin with the most rudimentary question - why would we want to regulate MNEs in the first place? While some might say the answer to that question lies in understanding the pivotal role MNEs play in the global economy, it is argued that that might be amount to gross oversimplification. An OECD report, in the year 2021, finds that the “top 100 MNEs generated over $11 trillion in revenues, equivalent to the combined GDP of Germany, France, Italy and Spain”¹.

Philip C. Jessup² in one of his seminal articles talks about who are the ‘subjects’ and ‘objects’ of international law. The former is, most definitively, according to Jessup, the State and the latter is the recipient of the State’s will and power. Referring to Jessup’s work, Erika R. George elucidates that the distinction between subjects and objects hinges on “the capacity to protect its rights by bringing international claims against other subjects and the capacity to meet its international obligations.”³ Following this trail of logic, it is common knowledge that a company has juridical personhood by virtue of the legal conjecture known as ‘limited liability’.⁴ Furthermore, an MNE can also bring claims against another state due to the highly controversial mechanism Investor State Dispute Resolution (ISDS), now set to undergo serious reform. Hence, it argued that the thin line demarcating the pre-existing notions of ‘subject’ and ‘object’ of international law can be cast aside so as to accept that MNEs operate as both, simultaneously.

ASSESSING THE NEED TO REGULATE MNEs

MNEs have often been dubbed “a great polycentric space” given their peculiar structure that allows them to slide through the cracks of governance and regulation, by Host state or Home State or even through international normative frameworks.

Prima facie, deconstructing the alleged moral or ethical grounds for regulating MNEs⁵, we find that the State, either Host or Home, can only regulate to the extent that it is willing to. Historically, the reason attributed to the growth of MNEs includes their contribution to employment and increasing technological know-how, boosting economic development in the Host country, via foreign direct investment. And yet, as we have witnessed in the last few decades, these perfunctory and largely neoliberal advantages to little to hide the collateral blemishes that MNE’s leave behind in their pursuit of building a free economy. Some of the collateral damages incurred by, mostly Host countries, include but are not limited to labour law violations, adverse environmental and ecological impacts such as deforestation and large scale pollution of air, water and land, and most importantly - human rights violations that strike the very core of responsible business conduct.

An argument can be made on behalf of the Host State that if the cost of protecting the environment or human rights means a loss in foreign investment, it would not be unreasonable to deduce that the Home State may choose not to lower its threshold for human rights and environmental violations. Similarly, the Host States’ capacity to regulate is also an element that further skews the dynamic between the former and an MNE with a turn over of billions. This must be seen in light of various reports affirming that most Home States are countries in the Global South that are either under-developed or somewhere in the lower end of spectrum of what can be considered “developing”. Such middle income countries cannot be reasonably assumed to posses a legal system sturdy enough to place an MNE on trial.

At the same time, often prosecuting MNEs may carry reputational costs that may further discourage prospective investors from investing a Host countries that depends on foreign funding.⁶ At the same time, it is not disputed that most MNEs hail from the Global North with the top companies registered in USA, China, Japan, Germany , UK, Switzerland etc.⁷ It has been proposed that by virtue of “place of effective control”, the Home country has a comparatively stronger position when it comes to regulating MNEs given most of them are developed countries with a minimum threshold of compensation commensurate to the extent to violations committed by the MNE.⁸

But historically, this has not always worked out. The ghastly tragedy that occurred in Bhopal at the hands of Union Carbide is a classic illustration of these circumstances. Union Carbide India Limited (UCIL), jointly owned by Government of India and Union Carbide and Carbon Corporation (UCC), headquartered in Texas, USA, operated a pesticide plant in the city of Bhopal, Madhya Pradesh in India. In December 1984, a cloud of the highly toxic gas (methylisocyanate) leaked from this plant as a result of which 3000⁹ people died in the most gruesome manner.¹⁰ Generations of local Bhopali citizens have carried with them the effects of ingesting the poisonous gas borne by their ancestors.¹¹

Thousands continue to suffer from chronic liver, kidney and lung diseases and are unable to earn a livelihood owing to their deficient heath. When the Indian government moved the federal courts in USA claiming damages against UCC, on the ground that UCIL’s parent company was within the territorial jurisdiction of its courts, Judge Keenan is famously quoted to have dismissed said claims on the grounds of “forum non conveniens”, as was pleaded by UCC.¹²

The Indian government had pleaded that its judicial system was inadequate to assess and adjudicate on the magnitude of damages claimed. As a result of which, the victims and survivors of the worst industrial disaster the world, lost billions in compensation. Buttressing the allegations of bias, twenty eight years later, Judge Keenan acquitted the chairperson of UCC of environmental damage claims filed by the residents of Bhopal.¹³

The Bhopal Gas tragedy is only such example of mass corruption and arm-twisting tactics employed by MNEs against Host countries so as to evade facing the consequences of their actions. The decision rendered in Kiobel v. Royal Dutch Petroleum Co.¹⁴ by the Supreme Court of the United States ruled against the principle of extraterritoriality¹⁵ thereby refusing to hear allegations of extra judicial killings and tortue committed by an entity based in the USA.¹⁶

THEORTICISING REGULATION

Let us now focus on why regulating MNEs has been a challenge disguised in a conundrum. The answer lies in its nature. The entity that emerged post the second world war was one that was located in one country but operated in various countries. It is this pervasive nature of MNEs that has proven elusive for States to regulate.

One of the most well-know attempts made at regulating MNEs can be found in the form of the United Nations Guiding Principles¹⁷ (hereinafter referred to as UNGPs) pivoting on the three pillars of - Protect, Respect and Remedy. While the UNGPs were published in 2011, the architect of these principles, John Gerald Ruggie¹⁸, defended his work through an rather insightful article written by him in 2015. In his work, he contextualises that the UNGPs must viewed as a first transnational attempt to regulate MNEs that “governments did not negotiate themselves”.¹⁹ Ruggie’s well-intended but inherently facile principles are reproduced below:

1. The state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication;
2. An independent corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved;
3. Greater access by victims to effective remedy, judicial and non-judicial.²⁰

The third pillar, although seemingly well-intentioned, merits an enquiry. The commentary annexed to the UNGPs affirms that while States are not required to regulate extraterritorial actives of MNEs, they are not precluded from doing that either. Justifying the latter, the commentary politely urges Home States to initiate some form of oversight into the business activities of MNEs domiciled within its territory. This may well be the first documented, soft recognition of a Home State’s power to regulate MNEs exercising extraterritorial jurisdiction. Yet, as we have seen in the aftermath of the promulgation of UNGPs, access to remedy via approaching courts in the Home State has not always been as straight forward as Ruggie might have imagined.²¹

In trying to understand the conundrum that extraterritorial jurisdiction posses, we find that it focuses onto entities the obligations that ought to be imposed on them. The MNE is an object of regulatory convenience rather than a transnational object of law. It is as much about the construction of such entities as it is about the specific legal obligations sought to be applied. And again, there is nothing that approaches an all-around effort at regulation. States attempt to reach MNEs through a jumbled mess of regulation that touches economic activity but not the MNE itself.

CONDONING LIABILITY UNDER THE GARB OF REGULATION

Weighing in the balance, it is argued that Host countries may not always be predisposed to regulating MNEs and the curious case of Vedanta Limited is a classic example of it. Vedanta Limited, an Indian subsidiary of Vedanta Resources Limited, a multinational mining company, founded by an Indian business headquartered in London, began bauxite mining in the state of Orissa in 1999. Orissa is one of the most impoverished and backward states in India with a largely tribal population. Ever since 2004, Vedanta has been embroiled in scandals concerning blatant environmental degradation, loss of life and unsafe working conditions.²² It has been claimed by many local villagers and tribal leaders that Vedanta’s plan to continue further mining activities would severely ruin “73 types of trees, 21 varieties of grasses, 20 varieties of mammals and number of reptiles, birds and amphibians”²³ displacing the inhabitants of nearly 50 villages.

Vedanta has been taken to domestic courts by Indian environmental NGOs, activists and lawyers as early as in 2004 and yet the company has succeeding in gaining a mining license that allows it to continue its operations unperturbed.²⁴ Hundreds of students and civil rights activists have been taking to the street protesting against the glaring collusion between Orissa state officials and Vedanta for it to have only fallen on deaf years. In 2010, a government panel set up by the Ministry of Environment and Forests is quoted to have stated in its report:

The Vedanta Company has consistently violated the Forest

Conservation Act [FCA], the Forest Rights Act [FRA], the Environment Protection Act [EPA] and the Orissa Forest Act in active collusion with the State officials ... Allowing mining ... by depriving two primitive tribal groups [residing in the region] of their rights over the proposed mining site to benefit a private company would shake the faith of the tribal people in the laws of the land.²⁵

The same year, in a peculiar act of solidarity, The role played by the parent entity of said MNE (Vedanta Resources Limited), in this case being the United Kingdom, of Vedanta is rather interesting given that the Church of England sold of its shares in the company expressing disapproval of the company’s refusal to back down from its extensive mining plans that pose a significant threat to the lives of Dongria Kondh tribe, indigenous to Orissa.²⁶

At this juncture, the originally noble but now corrupted mechanism known as “Environmental Impact Assessment” is introduced. Promulgated in 1994 and in consonance with the Rio Declaration, the Indian government intended for EIA to be a clearance necessarily obtained by prior to any type of operation or construction. Colloquially it may be understood as a preemptive, precautionary and critical appraisal, by government officials, of whether the activities to be carried out by the proposing entity could have a potentially negative impact on the environment. Armed with a committee of experts with appropriate knowledge in the matter, EIA was meant to include the populace, that would bear the direct impact of a proposed project, in its decision-making process. Public consultations were meant to sit at the very heart of EIA ensuring accountability and transparency.²⁷ Under the garb of streamlining the process of obtaining clearances, the government began diluting the core elements of EIA as a result of which, the mechanism today allows post-facto clearance and delegation of granting clearance to state governments in addition to the power retained by the Central governmental.

The most recent draft regulations of 2020²⁸ have been criticised for being overtly deferential to companies at the cost of irreversible damages to the ecosystem and displacement of hundreds of locals all across the country. Curiously, public consultations have been steadily sidelined in the new draft notifications which led to environmental activists claiming the most recent public hearing against Vedanta to be a farce and “arbitrary procedure”.

A report by Amnesty International claims that the “Indian government failed to fulfil its duty to protect the human rights of people who are and who will be affected” in assessing Vedanta’s mining and mineral extraction proposals across different states in the country.²⁹ Accepting high-risk impact assessment statements, by Vedanta, that were riddled with “systemic deficiencies” and deliberate omissions with regard to necessary information on the socio-economic impact of its activities on livelihood of affected communities is only one of the many allegations imputed to the Indian government by environmental and human rights watchdogs worldwide.³⁰

Moved by the impetus to increase GDP during the pandemic, the Indian government is said to have unfastened the already loose grip EIA seemed to have on corporations looking to increase profits. A deeply incisive and detailed report by OCCRP elaborates on how Vedanta ‘lobbied’ to weaken the very laws applicable to it in terms of obtaining permits and licenses under the EIA.³¹

ATTEMPTING (AND FAILING) TO REGULATE MNEs

One example of States regulating MNEs is through Bilateral Investment Agreements (BITs). Risen from the ashes of embedded liberalism to have emerged as a conduit of “hyper globalisation”, MNEs have been taking Host States to arbitration, by virtue of dispute resolution clauses in BITs, for decades now. Criticised by many as an instrument to “weaken the state’s capacity to protect the public interest”³², ISDS has faced stiff resistance from TWAIL³³ thinkers.³⁴ Scholars have pointed out that first generation BITs favoured a minimalist Host State (while offering a wide array of investment incentives to MNEs) that was a direct continuation of the uneven economic distribution of capital between the Global North and Global South.³⁵ However, it is only recently that countries like India and Brazil have chosen to either terminate to significantly modify its BITs asserting their right to regulate on the grounds of state sovereignty.³⁶

There are other examples of soft law that have emerged as a by-product of an lukewarm consensus, in the form of guidelines, by States that MNEs are expected to adhere to. The “OECD Guidelines for Multinational Enterprises on Responsible Business Conduct”³⁷ are aimed to “address adverse impacts associated with business activities on people, planet, and society”. Said guidelines have been in force since 1976 and have been updated periodically with the most recent streamlining to have taken place in 2023. What cannot be stressed adequately is the fact that soft law, as the name suggests, is not binding on its subjects.

Some example of soft laws employed to steer the conduct of MNEs in a positive direction include the OECD Guidelines for Multinational Enterprises and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy. The former³⁸ is an exhaustive list of measures, expected to be adopted by MNEs, such as filing disclosure statements, protecting consumer interests, respecting sustainable development in addition to the platitudes on protecting the environment and carrying out human rights due diligence.³⁹ The latter is a labour oriented code of conduct focusing on issues of employment, working conditions, wages etc.⁴⁰

At best, these guidelines, along with other codes of conduct propounded over time, can be said to have persuasive value. These may be termed as, the distinction often used in interpretation of statutes, discretionary in nature, as opposed to being mandatory. What this means is that the lack of adherence to such soft-laws does not carry with it a penalty or consequence of breach. It is argued that in light of all measures, soft and hard laws, deliberated to regulate the conduct and actives of MNEs, none has yielded the desired effect.

Tracing the periphery of what ought to be regulated with regard to MNEs, transfer pricing and digital taxation stand out. For the longest time, digital taxation proved to be a major hurdle for States to find consonance with.⁴¹ MNEs like Google and Facebook used Ireland as a tax haven for base erosion and profit shifting (BEPS) practices, violating the arms length principle, that resulted in loss of revenue⁴² for Home and Host countries worldwide.⁴³ Similar conflicting and unilateral measures undertaken by States aimed at taxing tech giants proved counter productive until OCED released its two-pillar solution in 2021.⁴⁴

Conclusively, there can be no strait jacket formula that will suffice in so far as monitoring MNEs is concerned for their nature/form significantly varies from one another. In light of the cases studies mentioned herein above, it is argued that perhaps the reason why States have failed at regulating recalcitrant MNEs in the manner befitting it is because they are trapped in a cycle of repeating past mistakes by refusing to concede to a mutually beneficial law that is both mandatory and enforceable against MNEs. Akin to how DTAAs and the Two-Pillar solution, both multilateral normative frameworks, emerged as a solution to BEPS and digital taxation, we must look for a harmonised, coherent set of rules that can take the bull that MNEs by its horns and hold it accountable for its negligence. What is of utmost importance is ensuring that MNEs comply with the rules formulated. This can only be achieved by enforcing some form of punitive action. Furthermore, what may make this normative instrument more robust is an international body to supervise its functioning. The OECD, UNCTAD,⁴⁵ and WTO⁴⁶ have been offered as potential candidates.⁴⁷ With that said, we possess the apparatus to bring change, all we need is consensus for a drastic shift in global power dynamics.

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