At first blush, transnational law’s engagement with TNCs reflects the situational and ad hoc approach of the transnational law project. Transnational law tends to focus on the TNC as an actor apart, like the state, within transnational law situational processes. Like the state, TNCs are governance singularities into which law can be poured, extracting coherent action. It moves the TNC from the construction of a category to consequential instrumentalism But is this relationship between TNCs and transnational law construct TNCs too restrictively? Does it fail to describe the reality of TNCs (the problem of definition)? Should we consider TNCs as a transnational legal order in its own right (the systems issue)? Should we consider TNCs instead as the constitution of production chains (the conflation issue)? Presented at “Jessup’s Bold Proposal: Engagements with 'Transnational Law’ after Sixty Years” Transnational Law Institute, The Dickson Poon School of Law, King’s College, London, Friday-Saturday 1-2 July 2016

1. Transnational Law and the Multinational Enterprise:
From Legal Concept/Method Framework to Systemicity
in Global Polycentric Governance Orders
Larry Catá Backer
Coalition for Peace & Ethics
Foundation for Law and International Affairs
W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs,
Pennsylvania State University
“Jessup’s Bold Proposal: Engagements with ‘Transnational
Law’ after Sixty Years”
Transnational Law Institute, The Dickson Poon School of Law, King’s
College, London, Friday-Saturday 1-2 July 2016

2. Context
• Jessup’s Big Bang
• “What, then, is the general problem:
This planet is peopled with human
beings whose lives are affected by
rules.”
• External interplay of legal orders by, for
and on its individual subjects and
objects.
• Reticence about a positive definition
• Focus on the transnational “situation”
• Identify individuals who participate
• Rules bearing on the situation
• Creating ordered networks for action
(legal, extralegal and metajuridical)
Fernand Leger The Acrobat and His Partner 1948 Tate Modern

3. What Happens after the Big Bang?
• Jessup’s framework and the structure of analysis
continues to shape thinking about the transnational.
Stabilizing projects
• Transnational Legal Orders; transnational legal process
• Networked communities
• Legal pluralism
• Running Codes
• Societal constitutionalism
• Stabilizing projects fleshing out and framing the ad
hoc
• Building beyond Jessup is not really on the agenda.
• The “situation” still dominates a discourse
grounded in interplay of actors, networks,
process
• Building blocks— Actors
• Building with blocks— Networks
• Building block assembly instructions— Process
Rebecca Horn Arm Extensions 1968,
Tate Modern (exploring limits and
possibilities of human anatomy by
changing its relationship to
surrounding space

4. From Vision—Anarchos?
• Jessupian and Post-Jessupian
transnational law then, is situational and
ad hoc.
• Not a field but a method, an identification
formula, and a process for application.
• People—natural and bodies corporate who
live in a world in which a singular rule order
has passed
• Law which has been transformed from
monocultures of consumable crops (the
law-state) to wild fields of hyper hybridized
consumable vegetation
• Identification Context—principles for
organizing context in a local and
authoritative form; the context cookbook
from which people cook up this gathered
law and concoct a meal to suit the situation
• Process—orderly logical arrangement
usually in steps of people and law in
context; such “meals” are contingent,
dynamic and malleable but the people,
food stocks, kitchen, and the need to eat,
remain constant.
Tony Cragg, Stack (1975) Tate Modern (Random
accumulation of miscellaneous objects ordered into a
solid structure)

5. From the Transnational to the TNC
• The power of this template and its
multiple current manifestations is felt
strongly when speaking to the TNC.
• Curious parallel interplay between
TNCs and transnational law
• Definitional ambiguity: (1) does it exist?;
(2) how is it constructed in (a) Law; (b)
Sociology; (c) Politics
• Transnational law both constructs and
deploys the TNC to suit its situational
and ad hoc focus.
• And transnational law is in turn
constructed from this deployment of the
TNC
Banks of the Thames June 2016

6. Problem
• At first blush, transnational law’s engagement
with TNCs reflects the situational and ad hoc
approach of the transnational law project
• Tends to focus on the TNC as an actor apart,
like the state, within transnational law
situational processes.
• Like the state, TNCs are governance singularities
into which law can be poured, extracting
coherent action.
• Move from the construction of a category to
consequential instrumentalism
• But is this relationship between TNCs and
transnational law construct TNCs too
restrictively?
• Does it fail to describe the reality of TNCs (the
problem of definition)?
• Should we consider TNCs as a transnational legal
order in its own right (the systems issue)?
• Should we consider TNCs instead as the
constitution of production chains (the conflation
issue)? Malangatana Ngwenya Untitled 1967 Tate Modern depicting
violence and suffering of people of Mozambique during the war
of independence

7. The TNC Within and As Transnational Law
• Objective
• To focus on TNCs within transnational
law (as object) and as transnational law
(as subject).
• What can transnational law tell us about
TNCs; what can TNCs tell us about
transnational law?
• To that end it might be useful to apply
the Actor-Network-Process framework
inward within and to the TNC.
• TNC as object external to law
• TNC as autonomous system internalizing
framework for law
• TNC as reconstitution of production
chain and the object of the chain itself.
• Proceed from the most orthodox to
the least conventional perspective
Mixed vegetable and pork dumpling, London 2016

8. TNC as object external to law
• The traditional construction of the
enterprise in transnational law.
• The enterprise and its partners
• Feudal view: the King and his vassals
• A site through which transnational law
can be sourced and applied
• Disclosure regimes
• CSR
• UNGPs
• OECD Guidelines/NCP Process
• Ignores or reconstructs legal basis
for enterprise organization; layered
over or through national legislation
• Instrumental use of veil piercing
• The rise (and fall) and rise again of
enterprise liability
• Fiduciary duty (monitoring and
mediation) in corporate and contract
relations
Georges Braque Mandora 1909-10 Tate Modern (analytical cubism--
characterized by a fragmentary appearance of multiple viewpoints
and overlapping planes)

9. TNC as autonomous system
• A regulating object emerging variant in 2
forms
• (1) Unpacks the TNC
• Structural dimension (subsidiaries; contract
relations)
• Governance dimension (TNC as a self reflexive
legal universe).
• Preserves its unity as against outside law and
reveals its inter-systemic quality for internal
governance.
• (2) TNC as the apex corporation, an active regulatory
object objectifying its downstream components
• Serves as a site of legal tension
• Extraterritoriality (national law embedded in the
TNC)
• Good governance (grounded in systemic effects)
• Law/standard maker (incorporated into the
administrative state—regulatory delegation)
• Governance capacity recasts TNC as a site
for the privatization of law
• Means of hardening soft law (Rabobank-Dutch NCP)
– privatizing IFI behaviors
• Mechanics of human rights due diligence
• Non judicial remedies
Womb World Mandala Japan 1600s, British Museum -- a
microcosmos

10. TNC as Reconstitution of Production Chains
• TNCs fall away as an object or self
constituted system
• TNC becomes the objectification of
production chains
• a factor in the constitution of production
chains
• Part of, or transposed into, production
systems themselves
• TNC as a site for the privatization of
politics.
• As a mediating form through which
multilateralism can be effectively privatized;
• The Accord and Alliance in Rana Plaza
• The Rabobank agreement to adopt Round
Table for Responsible Palm Oil (RSPO)
• The Norwegian Sovereign Wealth Fund
governance architecture
Fragment Temple of Beit el-Wali Lower Nubia c 1250 BC
British Museum (Egypt receiving the spoils of Africa)

11. Conflations and Intermeshing
• How does one study two abstractions that
also constitute and impact each other?
• Formal Response: One can try to fit these
abstractions into ancient systems of
classifications;
• but Jessup reminds us that these are no longer
relevant
• A lesson that is hard to internalize
• For both TNCs and transnational law this means:
• Functional Response: One can move toward a
mediating approach
• For both TNCs and transnational law this means:
• Bridging device (legal coordination)
• Coordinating device (Conflicts of law)
• Signaling device (Choice of Law)
• Instrumentalism
• Transforming Responses
• Back to definition—the uncharted terrain
• From a constituting rather than from a
transactional foundation
• But what is being constituted
• For the TNC—the production chain
• For transnational law—the disposition of law
Jean-Pierre Yvaral Ambiguous Structure No. 92 (1969) (the forms
can be seen to project and recede from the baseline surface
confusing our perception of depth)

12. Summing Up
• Both TNCs and transnational law have
been constructed and used as ad hoc and
situational methodologies
• TNCs are objects of transnational law
production
• TNCs are sources of transnational law
production
• TNCs are mutually dependent sites for the
resolution of transnational situations
• TNCs are transnational law systems
• Is transnational law the law of or through
bodies corporate—the enterprise, the
state, the institutions of religion, of
indigenous peoples, of peoples without a
state, and of other human communities?
• Have we come far but not moved very
much?
• The answer may lie not in process and
method
• but in the institutionalization of a
normative ordering of rule producing
entities.
Photo High Court of Punjab and Haryana 1965 Kings
College London

13. Thanks!