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Corporate codes of conduct and contract law: a doctrinal and normative perspective

A Handbook on New Methods of Law Making in Private Law

Anna Beckers

This chapter focuses specifically on corporate social responsibility codes of conduct and argues that they can be described as a phenomenon of genuine regulation initiated by corporations. As a consequence, private law as the applicable legal framework itself needs to become more regulatory. The chapter starts by proffering an explanation of why corporate codes have only recently started to interest contract law scholars. It continues analysing the way in which corporations use (and do not use) contracts and contract law in developing and practising their codes, and how contract law doctrine perceives this strategy. Subsequently, a normative argument is developed and contextualized in favour of a stronger role for contract law in enforcing and regulating corporate codes. The chapter concludes with a discussion of the need for contract law to become regulatory in a novel sense: contract law needs to be responsive to codes of conduct, specifying clear rights and obligations that corporate regulators assume when developing a code of conduct. Keywords: Corporate social responsibility, codes of conduct, contract law, Varieties of Capitalism, contract governance

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Contract and Regulation

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

Contract and Regulation: A Handbook on New Methods of Law Making in Private Law sheds light on the darker side of contracts. It begins by exploring the ‘regulatory space’ in which projects are planned, deals are done, and goods and services are consumed, then shows how a ‘bottom-up’ approach can be adopted in order to view this transactional space through the eyes of contractors. The expert contributors explore modes of governance that do not fit nicely into traditional contract theory, paying special attention to three key examples: governance and codes of conduction, networks and relations, compliance and use.
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Conclusions

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

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Common law remedies

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers common law remedies available to an employee. While the law provides that where a party sustains a loss by reason of a breach of contract they are, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed, in fact the employee’s position in terms of damages is grossly unsatisfactory. Addis v Gramophone continues to constitute a barrier; and the measure of damages where wrongful dismissal is concerned fails to recognize the full extent of the employee’s interest in the employment relationship. The position in respect of equitable orders also leaves a great deal to be desired despite the fact that the courts now recognize that the employee’s interest in employment relations should not be seen as purely pecuniary. Keywords comparative employment law, contract of employment, remedies, damages, Addis v Gramophone

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Gordon Anderson, Douglas Brodie and Joellen Riley

The contract of employment provides in many jurisdictions the legal foundation for the employment of workers. This book examines how the development of the common law under the influence of contemporary social and economic pressures has caused this contract to evolve.
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Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers the challenges faced by the courts and legislatures in an era where modes of employment and the economic and legal distance between workers and the beneficiaries of that work are changing at an accelerating rate. The labour market has witnessed a large growth in the number of agency workers and the ranks of the self-employed as well as arrangements such as franchises. The extent to which workers are genuinely providing their services through a vehicle other than employment is open to question especially when terms and conditions are inferior to those available to employees. The challenge of how to deal with this question poses ongoing problems for the courts. Keywords comparative employment law, employee, contract of employment, independent contracts, ‘gig’ economy, sham contracts

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Emily B. Laidlaw

When an individual goes online and makes a comment that causes offence it can be framed in a variety of ways. It can be framed as hate speech, defamatory speech, an invasion of privacy, terrorism-supporting speech, or bullying, obscene or offensive speech. The common defence of such posts is that it was just a silly joke. The question for speech regulation is how to treat such purported jokes. Are these jokes simply pushing boundaries; distasteful, but the price we pay for our freedom of expression? The banter and jokes that take place on social media are often spontaneous and imperfectly executed. The problem is that some of these jokes can cause serious harm, particularly to traditionally marginalised groups which tend to be the targets. The response of Western countries is varied, with the United Kingdom, for example, struggling with over-criminalisation of such comments, while that is not the case in Canada or the United States of America. Most complaints about content fall to be privately regulated through the hosts. Through the lens of what is a joke, this chapter maps the path of a complaint about speech on social networks, focusing on the ways that the law, industry measures and voluntary policies by the hosts interwork and intersect. This mapping will then be used to highlight the difficulty in drawing a line between offensive speech requiring regulation and jokes. Keywords: free speech; offence; industry regulation; criminal speech; intermediaries; terms of service

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Andrew Scott

Whether online intermediaries should be liable in respect of defamatory material authored by others has become a pressing issue in jurisdictions around the world. In English law, analogies with traditional publishing contexts have seen liability extended through an expansionist conception of ‘publication’. While this tendency proffers easy access to redress for those aggrieved by online publication, it carries with it potentially profound impacts on free speech and the socio-political potential of the internet. Intermediaries have been induced to act as censors, taking down content irrespective of its accuracy or importance. In response, courts and policy makers have been forced to devise a complicated array of mitigating defences and jurisdictional exclusions for intermediaries. This process can be seen as the haphazard crafting of an unwholesome legal layer cake. The complexity of the area has been exacerbated by the advent of data protection law that is applicable to the same questions. This chapter suggests that the expansion of the concept of publication beyond primary authors, editors and publishers has been a profound misstep in the development of the law. Absent a broad conception of publication, defamation law might easily offer alternative means by which aggrieved parties could secure adequate redress. The alternative means proposed would not extend liability to intermediaries and therefore would not place such persons in the role of censor. Moreover, the existing regime may already have become superfluous in the context of the expanding remit of data protection law. Effective rules in the defamation context, however, might avoid the field being ceded entirely to this new legal technology which currently offers only blunt and inadequate means of balancing the individual and social interests in reputation and free speech. Keywords: defamation; data protection; intermediaries; freedom of speech; reputation; internet

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Edited by David Mangan and Lorna E. Gillies

This content is available to you

Edited by David Mangan and Lorna E. Gillies