Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann
Chapter 20: Treaty law and multinational enterprises: More than internationalized contracts?
The relationship between international law and the multinational enterprise (MNE) has always been uneasy. MNEs, private legal entities operating across national boundaries and wielding staggering economic power, do not readily square with a State-centric perception of international law. Faced with the emergence of the multinational corporate phenomenon throughout the second half of the twentieth century, international law doctrine struck an ambivalent position, most aptly summarized in the Barcelona Traction judgment. There, the ICJ stressed that ‘international law is called upon to recognize institutions of municipal law that have an important and extensive role in the international field. This does not necessarily imply drawing an analogy between its own institutions and those of municipal law’. A similar assessment of the situation was later made in the third US Restatement of Foreign Relations Law, according to which ‘the multinational enterprise or corporation … is an established feature of international economic life, but it has not yet achieved special status in international law or in domestic legal systems’. The root of this ambivalence resides perhaps in the actual workings of these enterprises, which grow ever more complex. Yet, some argue that exactly because MNEs ‘are engaged in vast and complex international operations, which involve them in manifold contracts with different governments … the problem of their international status cannot be so simply dismissed’. In other words, the modalities of MNEs’ operations militate both for and against weaving them into the fabric of public international law.
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