This chapter reveals the gap between the legal assumption that corporations and governments are formally separated and the reality of deep interdependence between governments and corporations in colonial settings, analyzing how this situation provided private business corporations with the legal infrastructure they needed to leverage their position to thrive in the colonization of Africa. It then explores related doctrines of international law – —diplomatic protection, human rights, and investment protection – —as additional aspects of the the international legal infrastructure that protected corporate actors from responsibilities while granting them significant benefits as individual rights bearers. This chapter chronicles the lingering presence and influence of international law on the regulatory options available for corporations operating both within and outside state borders.

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.

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.

This chapter concretizes this book’s theoretical and analytical arguments by analyzing two transformations in the political history of the English East India Company (EIC). First, I show that key to the EIC’s success were public/private hybrid relations ranging from contractual, institutional, and shadow configurations. Contractual hybridity was visible through formal and frequent charter negotiations and public exchange of forced loans and other fiscal extractions. Institutional hybridity was evident through the EIC benefiting from insider rules and the rise of MP-Directors as well as more sophisticated informal lobbying. Shadow hybridity materialized through side payments and the presence of back channels through the Secret Committee. Second, the EIC’s self-understanding of sovereign authority shifted from a privilege understood within Idealized Sovereignty to a self-possessed right from extensive enactments of Lived Sovereignty. Meanwhile, the EIC’s sovereign awakening revealed problems with mutually inclusive and nonhierarchical early modern sovereignty that were thus far ignored.

This chapter illustrates the forms and dynamics of contractual hybridity in American wars using the case of Blackwater. Blackwater’s contractual hybridity was visible in its formal contracts with public funding. Contractual relations created power payoffs by deploying a contractor force for American wars and raised Weberian legitimacy dilemmas from limited contractor oversight and distributed accountability. Security contractors also disturb civilmilitary relations by posing as “civilian combatants” or “unlawful combatants,” depending on the preferred definition under international law. The chapter also follows bureaucratic debates on defining "inherently governmental functions" given contracting, which reveal the effort it takes to balance Idealized and Lived Sovereignty. By being attentive to formalized and publicized hybrid relations, the chapter thus wrestles with unique problems in sovereign governance that challenge the legitimacy of a sovereign authority that contracts itself.

This chapter uses as a case study of the French National Railways (SNCF) and its multiple identities in German occupied France during World War II. During the war and the eight decades that followed, the SNCF has been storied multiple ways. The company perceived itself as a victim during the occupation, but for the first fifty years after the war was storied as a national hero because of the role some railway workers played in the resistance. Then, in the 1990s, the company found itself storied as a perpetrator for its role in transporting over 75,000 deportees crammed in merchandise cars towards concentration camps. Which identity is true? All of these positions can be argued without contorting history. Rather than trying to find the true story, this study considers these identity transformations as reflective of societal power shifts. Until we make the narrative framework behind the role ascription visible, we remain bound to cycles of intolerance and violence. The efforts of peacebuilding then involve increasing our comfort with overlapping roles.

This chapter examines institutional hybridity in the International Chamber of Commerce’s (ICC) regulatory prowess as the primary organized business interlocutor for intergovernmental bodies in global commerce. The empirics follow various ways in which the ICC embeds itself in global institutions through issue-definition, agenda-setting, and rulemaking. Institutional linkages allow the ICC to organize international markets while boosting the privilege of global corporate elites to reap the benefits of trade and investment at the expense of others. Balancing the legitimacy blowbacks to this elitism is at the core of the politics of institutionalizing rules for global commerce. Moreover, the study of the ICC helps us see that “transnational private authority” need not necessitate a retreat of the state, but rather a recomposition of what it means to regulate across borders. The ICC’s Lived Sovereignty relies fundamentally on the Idealized Sovereignty of governments to keep its institutional status.

It is generally accepted that bodies corporate are, at the least, partial subjects of international law and enjoy a measure of international legal personality when they are party to an armed conflict, as that notion is understood by international humanitarian law. It is further unquestioned that the members of a private corporation may be held individually responsible under international criminal law for international crimes they have committed in the course of their work. This was made clear in judgments in the Nuremberg Military Tribunals that followed the end of the Second World War. Bodies corporate are also bound by jus cogens human rights norms, including the prohibition on arbitrary deprivation of life and on enforced disappearance.

The broad vision of wealth creation and human rights developed in Part One and Two is now applied to the ethics of business organizations, which is called “corporate responsibility.” Based on Walter Schulz, the concept of responsibility is defined as a relational concept: the subject of responsibility (who is responsible), the content of responsibility (for what one is responsible) and the addressee (toward whom one is responsible). It involves an inner pole (“self-commitment originating out of freedom”) and an outer pole (“in a worldly relationship”) in critique of Max Weber’s separation of the ethics of convictions versus the ethics of responsibility. In an analogous sense, responsibility characterizes the ethics of business organizations, which is the same term used by the UN Guiding Principles on Business and Human Rights. The chapter develops several ethical explications of the Guiding Principles and concludes with the concept of “corporate responsibility” adopted in this book.

A radically new understanding of the ethics of business enterprises, or “corporate responsibility,” in the global context is offered that combines wealth creation in a comprehensive sense with the respect for human rights by strengthening the UN Guiding Principles on Business and Human Rights. The chapter provides an introduction to this new understanding and an overview of the following chapters. After delineating the global context with globalization, sustainability and financialization, Part One explicates the seven features of wealth creation: the substantive contents of natural, economic, human and social capital; public and private wealth; the productive and distributive dimensions of the process of creating wealth; material and spiritual aspects; sustainability in terms of human capabilities; creating as making something new and better; and self- and other-regarding motivations. Part Two conceives human rights as public goods in wealth creation; it accounts for all 30 internationally recognized human rights based on the UN Framework and Guiding Principles on Business and Human Rights, defines them as minimal ethical requirements needed in the global and pluralistic context and offers cost-benefit considerations about human rights. Part Three develops the implications of Part One and Two for the conception of “corporate responsibility.”