1. STUDENT NO: 1332100
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HOW CAN THE INTEREST OF STAKEHOLDERS SUCH AS HOST
COMMUNITIES/SOCIETY BE PROTECTED UNDER THE CORPORATE
GOVERNANCE FRAMEWORK? (USING NIGERIA AS A CASE STUDY)
Thesis Submitted for the Degree of International Commercial Law
BY
Ogbomo Osaze Ighoetin
Supervised By: Dr. Olufemi Amao
This dissertation is submitted for the degree of LLM of Brunel University 2015. This
dissertation is entirely my own work and all material from other Sources, published or
unpublished, has been duly acknowledged and cited.

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-------------------------------- -------------------------
(Signature of Student) (Date)
Acknowledgement
All Praises and thanks be to God almighty.
First of all sincere thanks should be expressed to my parents for their constant support and their
endless prayers to achieve my LLM. Also, I would like to thank my sisters for their support and
patience during my master’s program.
However, I would like to express special thanks to a number of people because their advice was
helpful for my academic achievement. Special thanks to my friend Ibukunoluwa Owoyele for
helping me proof read my thesis.
Also, special thanks to my supervisor Dr. Olufemi Amao for his guidance and encouragement

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Abstract
Good corporate governance is essential to ensure business success and sustainability. It involves the
management of various relationship actors who have direct or indirect interest of the business
organisation. In corporate governance they are known as stakeholders. The purpose of this thesis is
to examine how the interest of stakeholders such as host communities can be protected under the
corporate governance framework using Nigeria as a case study. Also, it is established that MNCs
through their activities have a huge impact on the environment and the society. Bad corporate
management may result in corporate misbehaviour and there is the need to monitor and control
MNCs. This study proposed law as a means of providing remedies on stakeholder protection in
Nigeria. This is because stakeholders play a very important role in the successful business operation
of the company and a proactive stance on their protection backed by law can bring about better
results.

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Title Page……………………………………………………………………………………..1
Acknowledgement…………………………………………………………………………….2
Abstract………………………………………………………………………………………..3
Table of Contents
Chapter1: Introduction............................................................................................................7
1.1. Research question............................................................................................................7
1.2. Methodology ...................................................................................................................7
1.3. Structure ..........................................................................................................................8
1.4. What are Multinational Corporations?............................................................................8
1.5. Multinational Corporations & States.............................................................................10
1.6. The European Union & Corporate Social Responsibility .............................................14
1.7. Emergent State Practice on the Creation & Practice of Standards on Corporate Social
Responsibility...................................................................................................................……16
1.8. Corporate Governance Framework in Multinational Corporations…………………...18
1.8.1 Theories of Corporate Governance Framework…………………………………..…….18

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1.8.2. The simple finance mode……………………………………………………………...18
1.8.3. The stewardship model….…………………………………………………………….20
1.8.4. The stakeholder model…………………….…………………………………………..21
1.8.5. The political model………………….………………………………………………...22
Chapter 2: The Control of Multinationals in Developing Countries with a Focus on Nigeria 24
2.1. Corporate Social Responsibility (CSR) as a tool of Corporate Governance.................24
2.2. Multinational Corporations and Corporate Social Responsibility In Nigeria ...............26
2.3. Nigerian Company Law and The Control of Multinational Corporations ....................28
2.3.1. A brief understanding of the history of company law of Nigeria..............................28
2.3.2. The strategy for control is local incorporation..........................................................29
2.4. The problem of Corporate Restructuring (who monitors the monitors) .......................30
2.5. The problem of regulation of the internal framework of Corporate Governance .........32
2.6. Workers Protection and Multinational Corporations ....................................................35
2.6.1. Workers’ right in Nigeria ..........................................................................................36
2.7. Multinational Corporations and Human Rights In Nigeria ...........................................38
2.8. Multinational Corporations and Anti-Corruption Laws................................................39
2.9. Controlling Multinationals Under Host State Law: Possibilities In Nigeria.................42
2.10. Summary....................................................................................................................44
Chapter 3: Stakeholder Interest & The Law: How Should The Law Respond to the
Stakeholder Concept?............................................................................................................45
3.1. Stakeholder Interests In The Context of Developing Countries ...................................45

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3.2. Stakeholder Concept and The Law: How Should The Law Respond to The Stakeholder
Concept.....................................................................................................................................46
3.3. Understanding the emerging responsibilities of modern corporations a social contract
approach...................................................................................................................................52
3.4. What questions does stakeholder’s interest raise for law? ............................................53
3.5. Some suggestions for reform in Nigeria and the corporate social responsibility
Bill………………....................................................................................................................54
Conclusion...............................................................................................................................56
Bibliography ...........................................................................................................................58

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Chapter1: Introduction
Whilst the primary task of multinational corporations (MNCs) is to earn revenue, they also have
moral obligation towards society and social causes. Along with their profit making agenda, the
corporations are capable of contributing towards social causes and therefore, the concept of
corporate social responsibility (CSR) should be integrated as proactive corporate governance stance
into the mainstay business strategy and operations of the corporations. The focus of this thesis will
be on the Corporate Governance framework in multinational corporations, corporate behaviour and
its relationship with host communities. This thesis adopts a proactive Corporate Governance stance
of monitoring corporate behaviour towards its host communities/society taking Nigeria as a case
study and thereby proposing law reforms by depicting how regulations in developing countries
especially Nigeria can be improved. Furthermore, this thesis seeks to explore the description of an
emerging norm and corporate stance on corporate social responsibility with special reference to
developing countries and particularly Nigeria.
1.1. Researchquestion
The research questions addressed in this thesis are (1) How can the interest of stakeholders such as
‘host communities/society’ be protected under the Corporate Governance framework using Nigeria
as a case study (2) How should the law respond to the stakeholder concept in understanding the
emerging responsibilities of modern corporations?

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1.2. Methodology
This Thesis will be based on the secondary data method. Primary sources on Corporate Governance,
Multinational corporations, corporate social Responsibilities like statutes, UN resolution,
conventions, treaties, rules and secondary sources like journals, newspaper articles, published books,
internet sources, academic commentaries, reports and expert opinion on the topic will be examined
to improve the understanding about the topic. Also, the thesis examines the legal trend in
developing countries and particularly Nigeria. The research uses some degree of sociological
approach to look at the impact of the corporate behaviour of MNCs on host countries.
1.3. Structure
The Thesis is structured as follows: introductory chapter discusses the meaning of multinational
corporations, its relationship with states. It highlights CSR in EU as well as emerging economies.
Also, the corporate governance framework in multinational corporations is discussed. The second
chapter discusses CSR as a tool of corporate governance and corporate social responsibility in
Nigeria. Furthermore, the second chapter deals exclusively with the control of multinational
corporations in developing countries with a special focus on Nigeria. It also addresses the issue of
multinational corporations in relation to human rights, worker protection and anti-corruption laws in
Nigeria. The third chapter addresses the issue of stakeholder interests and the law in the context of
developing countries. Also, the chapter highlights the Nigerian corporate social responsibility bill
with some suggestions for reform in Nigeria. Finally in the conclusion, a summary of this thesis
will be illustrated.
1.4. What are Multinational Corporations?
With the advent of service and knowledge-intensive industries, service and technology ventures,
global trade and commerce is spreading out. Simultaneously, intercontinental mergers and
acquisition and foreign investment has grown bigger. While multinational corporations are thriving
in recent times due to speedy globalisation, lenient foreign direct investment policies of several

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countries and serious endeavours of emerging markets to attract international funds for growth and
development.1 Multinational corporations are portrayed by some as a catalyst to boost the welfare
of people around the world and others see it as “dangerous agents of imperialism”.2 Economist and
financial professionals have given diverse connotation to Multinational Corporation making it
difficult to carve a consensual and precise definition of Multinational Corporation.
Nevertheless, a multinational corporation (MNC) is understood as an entity that is incorporated in
one country but carries out operations in multiple countries by assigning corporate capital,
possessions and expertise in different location irrespective of domestic frontiers.3 However, a MNC
can own and regulate production and services in more than one country but their head quarter is
based in the home country being the country where they are incorporated. A corporate entity turn
into multinationals whereby a parent company fund companies set up in foreign countries (host-
nation) to expand their activities for instance; manufacturing companies may set up subsidiaries in
foreign countries to produce raw materials for the continuity of their manufacturing process or to
capture foreign markets for sale of their products. Some of them turn multinationals to expand their
export markets or take advantage of lower costs of production in the foreign countries.
Muchlinski(2007) observed that the features of MNCs allow them to affect international allocation
of productive resources and consequently may create distinct problems in the development of
economic policy in the states where they operate.4
According to the United Nations, a multinational corporation is an enterprise which owns or
controls production or service facilities outside the country in which it is based. 5 Jacques
1Karl P Sauvant, Maschek A Wolfgang and McAllister Geraldine, (Foreign Direct Investment By Emerging Market Multinational Enterprises The
Impact Of The Financial Crisis And Recession And Challenge, 2009) <http://www.oecd.org/investment/globalforum/44246197.pdf> accessed 5
March 2015.
2UnitedNations Department of EconomicandSocial Affairs,‘Multinational Corporationin World Development’(UN,NewYork, 1974) 12.
3OECD, (Guidelines for Multinational Enterprises,2011) <www.oecd.org/daf/inv/mne/48004323.pdf> accessed5 March2015.
4Olufemi Amao, ‘Mandating Corporate Social Responsibility: Emerging Trends In Nigeria’ (2008) 6(1) Journal of Commonwealth Law and legal
Education 77.
5United Nations, ‘Norms on the responsibilities of transnational corporations andother business enterprises with regardto human rights’ (Definition
of Multinational Corporation, 2003)<http://www1.umn.edu/humanrts/links/norms-Aug2003.html> accessed29March2014.

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Maisonrouge, President of IBM World Trade Corporation, defines the multinational corporation as
one which: “(a)operates in many countries; (b) carries out research, development and manufacturing
in those countries; (c) has a multinational management; and (d) has multinational stock
ownership”.6
1.5. Multinational Corporations & States
One way in which MNCs interact with host communities is through corporate social responsibility
(CSR) initiatives such as charitable ventures, social reporting etc. According to the International
Labour Organisation (ILO), “for some, multinational companies are an invaluable dynamic force
and instrument for wider distribution of capital, technology and employment, for others, they are
monsters which our present institutions, national or international cannot adequately control”. 7
Though MNCs contribute a great deal in terms of economic resources, technical knowhow, and
employment opportunities it is often said that multinational corporations function in an environment
where domestic statutes are inadequate and ineffective to monitor or regulate its affairs and
administration. Therefore, MNCs are in a position of misusing their power through their core
business practices and operations in terms of labour practices, social and environmental policies,
relationship with consumers and the Government.8 Further, in the global front, international laws
are not binding on multinational corporations directly.9 Therefore, if one correlates it suffices to say
that multinational corporations have an edge over state.
In Nigeria for instance, the Companies and Allied Matters act (CAMA),10 provides that foreign
companies with an intention to carry on business in the country are to take necessary steps to be
incorporated as a separate entity in Nigeria. This has broadened the application of the legal
6Nasrollah Saifpour Fatemi, Thibaut De Saint-Phalle andWilliams W. Gail, Multinational Corporations (A.S. Barnes andCo Inc, 1975)66.
7 International Labour Organisation, (Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy 2006)
<http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/-multi/documents/publication/wcms_094386.pdf> accessed5 March2015.
8Marion Weschka, ‘human rights and multinational enterprises: how can multinational enterprises be held responsible for human rights violations
committedabroad? (2006)<http://www.zaoerv.de/66_2006/66_2006_3_a_625_662.pdf> accessed25 March2015.
9 Jan Wouters and Anna-Luise Chané, multinational corporations in international law (2013)
<https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp121-130/wp129-wouters-chane.pdf> accessed5 March 2015 and Jennifer
Zerk, Multinationals andCorporate Social Responsibility Limitations andOpportunities in International Law(Cambridge UniversityPress, 2011) 23.
10Companies andAlliedMatters Act 1990 (LFN.)s.54.

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personality doctrine as set out in the case of Salomon v. Salomon & co. ltd.11 This has made it
possible for a parent company as shareholder in a subsidiary firm able to avoid liabilities while
exercising control. The managers of these firms wield influential authority over corporate affairs
because of their mandate to maximise profit for its shareholders. The actions and activities of these
internal players of corporate governance sometimes may lead to corporate misbehaviour. In Foss v.
Harbottle,12 it was held that a minority shareholder who seeks redress in court for conduct of
corporate affairs is in principle a weak one because only a company can bring an action not its
shareholders. The company’s representation to bring an action is made through its directors who are
subject to majority shareholders. How can minority shareholder interest be protected proactively in
a multinational corporation? This is one of many questions that the concept of corporate social
responsibility tries to answer.
The affiliation between multinational corporations and states were visible during the 17th and 19th
centuries13where companies owned and regulated by monarchs were started. British East India
Company is a good example which operated trans-border under different names for more than 200
years. These types of corporation were representatives of state colonialism and were semi-
government in nature therefore, the state had control over it. Gradually laissez faire and
privatisation resulted in an economic system where private entities could transact freely without any
interference and restriction from the state.
The developing countries or the emerging economies perceived multinational corporations as
representatives of the developed country.14 After the Second World War, USA and British investors
suffered expropriation and nationalisation of their multinational corporations in Algeria, Argentina,
11Salomonv. Salomon& Co. Ltd (1897)AC 22.
12Foss v. Harbottle (1843) 67ER 189.
13Inayatullah, Sohail,‘Multnational Corporations’ (2009) 1 Global transformations andworldfutures:EconomyandSociety 1-8.
14 Olufemi Amao,Corporate Social Responsibility, Human Rights and the Law: Multinational Corporations in Developing Countries(Taylor &
Francis, 2011) 115.

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Bolivia, Brazil, Burma, Ceylon, India, Indonesia, Iran, Iraq, Libya, Nigeria, Peru, Somalia, South
Yemen, Sudan, Syria, Tanzania, Uganda and the United Arab Republic. When many multinational
corporations started to establish their affiliates or subsidiaries in the Southern countries, attempts
were made by the states to negotiate their economic and legal relationships with the multinational
corporation. Attempts were also made to regulate MNCs by adopting multinational code of conduct
for MNCs at the international level but it was not successful.15
The cold war and the battle for allies between the west and the east played a significant role in
growth and development of the southern countries as they were receiving the much needed financial
support from both sides involved in the cold war. However, when the cold war ended, the financial
support also reduced considerably. 16 At the same time some of the southern states due to their
inability to repay their debts stopped receiving funds from international bank.
Consequently, the only opportunity left to the southern countries was to welcome foreign
investment and to promote open market which fundamentally aimed at obliging the multinational
corporations. Sooner or later, the southern countries realised that their financial welfare and security
is unconditionally related with foreign direct investments from the North. As a result, the balance of
power shifted to Multinational Corporation from developed countries as they could provide foreign
investment. Southern countries had to formulate and amend domestic laws to attract multinational
corporations and sometimes even turn a blind eye to the violations of domestic laws. Multinational
corporations had edge and thus set the terms of the relationship with the south through various
15Güler Aras andDavidCrowther, ‘What Level ofTrust Is NeededforSustainability?’ (2007)3(3) Social ResponsibilityJournal 60-68.
16European Commission,‘GeneralisedSystemof Preferences’ (2004)
<http://trade.ec.europa.eu/doclib/docs/2004/march/tradoc_116448.pdf> accessed 1 February 2015.

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contracts and agreements. Moreover, development aid, loans and other international incentives were
conditional upon free trade and investments in the south.
Since both the host nation and the multinational corporation have to co-exist, states are co-operating
with each other and with other stake holders to strengthen the international legal and policy
framework in which business is conducted. Therefore, in this regard, ILO Tripartite Declaration of
Principles concerning Multinational Enterprises and Social Policy was adopted by the Governing
Body of the International Labour Organization in 1977 as amended in November 2000. The ILO-
Declaration addresses governments, workers’ organizations, employers’ organisations and MNCs,
to whom it offers detailed guidelines in the fields of employment, training, conditions of work, life
and industrial relations.
The OECD Guidelines for Multinational Enterprises, 1976 as amended in June 2000 is a code of
conduct containing recommendations by the thirty OECD member states and 9 non-member
countries17 that have adhered to them. OECD Guidelines cover a broad range of areas, such as
human rights, disclosure of information, employment and industrial relations, environment,
combating bribery, consumer interests, science and technology, competition and taxation.
The United Nations Global Compact was introduced at the World Economic Forum in Davos in
January 1999 and launched its operational phase together with 50 business leaders in July 2000 at
the UN Economic and Social Council. The United Nations Global Compact is a voluntary initiative
open to businesses, which strives to promote ten principles through dialogue, learning and projects.
The principles cover the areas of human rights, labour rights, the environment and corruption.
17Non-member OECD countries are Argentina, Brazil, Chile, Estonia,Israel,Latvia, Lithuania,RomaniaandSlovenia.

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Professor John G. Ruggie a Special Representative of the UN Secretary-General on business &
human rights drafted the UN Guiding Principles on Business and Human Rights, which was
approved by the UN Human Rights Council on 16th June 2011. This is the first corporate human
rights responsibility initiative to be endorsed by the United Nations. The UN Guiding Principles on
Business and Human Rights are an international benchmark for checking and tackling the peril of
harmful effects of corporate action in the human rights context.
1.6. The European Union & Corporate Social Responsibility
Multinational Corporations in European Union per se are not obligated to adopt CSR policies or to
report on them as there is no binding EU statute on the subject. CSR as a corporate governance
stance is regarded as a voluntary act. Voluntary actions such as the European Employment Strategy,
EU Ecolabel, and the Eco-Management and Audit Scheme endeavour to foster conscientious
business for public good.
The idea of CSR in Europe began with the publication of the “Manifesto of Enterprises against
Social Exclusion” which created a platform for sharing and network among various stakeholders on
CSR. This led to the formation of the European Business Network in 1995. Thereafter in 2000 at
the Lisbon Summit, CSR was the highlight of the political discourse under the sustainable
development framework.18 Following this, the European Commission published a Green Paper on
Corporate Social Responsibility 19 with an objective to encourage debate on CSR within the
European context. Thereafter, EU published two Communications namely, (1) the “Communication
18 European Union Commission on Employment and Social Affairs, ‘CSR: New Commission Strategy to Promote Business Contributions to
Sustainable Development’ (2002) <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2002:0347:FIN:en:PDF> accessed 1 February
2015.
19EC, ‘Commission Green Paper on Promoting a European Framework for Corporate Social Responsibility’ (COM, 2001) <http://www.csr-in-
commerce.eu/document_library.php/en/717/green-paper-quotpromoting-a-european-framework-for-corporate-social-responsibilityquot-com2001366-
fi>accessed 1February 2015.

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on the E.U. role in promoting human rights and democratisation in developing countries”20 and (2)
the “Communication on Promoting Core Labour Standards and Improving Social Governance in the
context of Globalisation”21 in the year 2001. Other initiatives such as the European Union’s
Generalised System of Preferences gives incentive such as trade liberalisation to EU nations that
adhere to the minimum social and environmental standards and impose sanctions such as preference
withdrawal on those nations which breach ILO and basic labour benchmark.22 Thereafter in 2003
Accounts Modernization Directive addressed the subjects on corporate accounting and reporting
(both financial and non-financial) which suggested some obligation in terms of information relating
to environment and employees to be mentioned in the annual report including the affairs of the
corporation internationally. 23 The European Commission has come out with a communication
report during October 2011 laying down EU strategy on CSR.24
EU nations like, Denmark, France, Germany, Netherland, Sweden and UK have formulated rules
and regulations pertaining to social reporting and communication. In Netherlands, “Raadvoor de
Jaarverslageving” or the Council for Annual Reporting has formulated guidelines in consonance
with the Directive which includes suggestions on supply chain disclosure and due diligence. Also,
publicly listed corporations in the stock market have to adhere to the provisions mentioned in the
“Code Tabaksblat” (the Dutch corporate governance code) which requires the Executive board to
report regarding CSR in their annual report.25 Similarly, the UK Companies Act, 2006 states that
20European Commission, The European Union’s Role in Promoting Human Rights and Democratisation in Third Countries (COM 252 May 8, 2001)
<http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52001DC0252> accessed1 February 2015.
21European Commission, Promoting Core Labour Standards and Improving Social Governance in the Context of Globalisation (COM 416 July 18,
2001) <http://aei.pitt.edu/37816/1/com2001_0416en01.pdf> accessed1 February 2015.
22 European Commission, ‘Generalised System of Preferences’ (2004) <http://trade.ec.europa.eu/doclib/docs/2004/march/tradoc_116448.pdf>
accessed1 February 2015.
23Parliament and Council Directive L 178/16, Amending Directives 78/660/EEC, 83/349/EEC, 86/635/EEC and 91/674/EEC on the annual and
consolidated accounts of certain types of companies, banks and other financial institutions and insurance undertakings, (2003) OJ L178/16
<http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:178:0016:0022:en:PDF> accessed1 February2015.
24Communication fromthe Commission tothe European Parliament,the Council, the EuropeanEconomicandSocial Committee andthe Committee
on the Regions, (COM, 2011)<http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52011DC0681&from=EN> accessed1 February
2015.
25Principle II.1.2Dutchcorporate governance code, (2008)<http://commissiecorporategovernance.nl/download/?id=606> accessed1 February 2015.

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the listed Companies have to mention non-financial issues related to their business in their annual
reports. The UK Financial Reporting Council's Stewardship Code demands information regarding
compliance with the UN Principles for Responsible Investing from asset owners and managers.
In Germany, Corporations have to mention non-financial indicators that influence their operation.
In France listed companies are required to report on social and environmental issues in their annual
reports under the New Economic Regulations Act, 2001 including the environmental impact of
foreign subsidiaries. In Sweden, state-owned companies have to come out with an annual
sustainability reports as per the Global Reporting Initiative. In Denmark corporations who have a
policy on CSR are required to report on the execution and the impact of such policy and those that
do not have a policy on CSR have specific reasons for not formulating a policy on CSR. Denmark
brought out an Action Plan for Corporate Social Responsibility in 2008 making it mandatory for
MNCs and institutional investors to report on CSR. Institutional investors were suggested to follow
the UN Principles for Responsible Investing and that MNC were suggested to join the UN Global
Compact in Denmark.
1.7. Emergent State Practice on the Creation & Practice of Standards on Corporate Social
Responsibility
Emerging markets present both opportunities and challenges for MNCs. Most MNCs are focusing
on emerging markets to generate profits as consumption capacity and customers in emerging
markets indicate enormous market prospect for them. At the same time, it is relatively risky to
operate in emerging countries in terms of security, environment, health, political instability, missing
public transparency, corruption, poor records on human rights, poverty and inequality.26 There have
always been worries regarding the conduct of MNCs in relation to human rights, social welfare and
26Jane Nelson, ‘Leadership, Accountability, and Partnership: Critical Trends and Issues in Corporate Social Responsibility’ (Kennedy School of
Government Corporate Responsibility Initiative 2004) <http://www.hks.harvard.edu/m-
rcbg/CSRI/publications/report_1_Launch%20Summary%20Report.pdf> accessed25 March 2015.

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the environment. Therefore, corporations are facing greater vigilance and scrutiny of their
performance on an international scale. As a result, emerging market economies are rapidly
becoming aware of CSR issues and are taking steps to become good corporate citizens.
The notion is that CSR rules and norms are led or introduced by western MNCs in emerging
markets via their subsidiaries as the CSR policies of domestic companies are not carefully planned
or strategised. Nevertheless, emerging economies are changing and structuring CSR policies, to
take advantage of globalisation. Brazil’s adoption of a national ‘Corporate Sustainability Index’ in
2002 to profile vanguard firms and the Indian Industry Confederation’s adoption of sustainability
and integrity as two of its core themes in 2006 are good CSR initiatives. According to Dr. Wayne
Visser, Indonesia, Brazil and South Africa are instances of how emerging markets are highly
proficient at carrying out the ‘triple bottom line of sustainability’ via balanced and integrated social,
economic and environmental benefits as in emerging markets economic development almost
inevitably results in social upliftment and environmental improvement, and vice versa.27
It is a known fact that MNCs cannot be directly subjected to international law therefore global CSR
principles was developed, resulting in soft law framework.28 Soft laws are not binding however;
they often develop into binding instrument by treaty or formation of common practices which later
develop into customary international law.29 According to the European Union, “Five instruments
together make up an evolving and increasingly coherent global framework for CSR.”30 The five
instruments are (1) the Organisation for Economic Co-operation and Development’s Guidelines for
Multinational Enterprises, (2) the ten principles of the United Nations Global Compact, (3) United
27Wayne Visser, ‘CSR Myths: Popular Misconceptions on Corporate Sustainabilityand’ (2008) No.4. CSR International Inspiration Series 1-2.
28Pierre Marie Dupuy, ‘Soft LawandtheInternational Lawof the Environment’(1991) 12MichiganJournal ofInternational Law420.
29Herbert M Morais, ‘The Quest for International Standards, Global Governance v. Sovereignty’ (2002) 50 University of Kansas Law Review 779-
781.
30 EU, ‘CSR guidelines and principles’ (Com 2011) <http://ec.europa.eu/enterprise/policies/sustainable-business/corporate-social-
responsibility/index_en.htm> accessed1 February 2015.

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Nations Guiding Principles on Business and Human Rights, (4) the International Labour
Organisation’s (ILO) Tripartite Declaration of Principles concerning Multinational Enterprises on
Social Policy and the ISO 26000 Guidance Standard on Social Responsibility. These instruments
are universally accepted among States as international standards on CSR. These instruments are
significant as ways of “testing attitudes, developing consensus around an issue and shaping future
norms.”31 These standards are equally applicable to emerging economies. State participation in
formulating CSR rules could result in constitution of new state practice that could become
customary international law in the future. Hence, some scholars are of the opinion that the
incorporation of CSR norms, standards and values cannot be taken for granted and has to be well
thought out.
1.8. Corporate Governance Framework in Multinational Corporations
Corporate social responsibility (CSR) is a by-product of corporate governance (CG) and is a
‘management tool’ used by managers of MNCs to interact with host communities. It could be for
philanthropic or business reasons, however, both CSR and CG will be dealt with in more details in
subsequent chapters. Moreover, it is important to examine the theories of CG adopted by MNCs to
understand how they function.
1.8.1. Theories of Corporate Governance Framework.
Whenever corporate governance and corporate control has been discussed, it has not been easy to
arrive at a consensual definition of the term. Therefore, there are numerous theories of corporate
control propounded by scholars from different countries. However, most of the scholars on the
subject have acknowledged that there are primarily four corporate governance theories namely (1)
The Simple Finance Model (2) The Stewardship Model (3) The Stakeholder Model and (4) The
Political Model which are elaborated hereunder:
31 Jennifer Zerk, Multinational and Corporate Social Responsibility: Limitations and Opportunities in International Law (CUP 2006)243.

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1.8.2. The simple finance model also known as the Principal – Agent model is one of the most
vital theories of the corporate governance. In this theory, the bond between the proprietors and the
executives working for the corporation is viewed as Principal and Agent where, the owner is the
principal and the executives are the agents employed by the principal to carry on some services
including handing over of some decision-making power to the executives. According to this theory,
the crucial issue in corporate governance is to create internal policies to match the conduct of the
manager or agent as per the expectations of the owner or principal. The internal policies are those
policies which are formulated by the corporation and not any regulation or legal provisions under
the law of the host nation. It is postulated that for the personal and individual benefits of the
executives, they represent themselves accordingly before the shareholders.
In countries like Australia, USA and the UK bulk of the shares in multinational corporations are
owned by institutional investors. In such a scenario investment managers become fiduciary agents
of the actual owners which create a circumstance of agents standing on behalf of the agents.32
Investors in listed MNCs spend time in monitoring and bonding with managers to serve the
shareholders better. Agents representing agents increases the agency costs.33 The agency costs is
calculated as the sum of (a) the cost of monitoring the agent (Executives), (b) bonding the agent to
the principal and (c) residual losses.
The future eventualities cannot be predicted and illustrated in employment contracts between the
Agent and the Principal therefore it is difficult to list out their specific role and profit share and it is
impractical to craft a complete contract technically. 34 Hence, managers get decision making
authority that are not expected or written in the contract under debt or equity finance.35
32 Oxford Analytica Firm, Board Directors and Corporate Governance: Trends in the G7 Countries over the Next Ten Years (Oxford Analytica Ltd
1992) 29.
33Micheal Jensen and William Meckling, ‘Theory of the Firm: Managerial Behaviour, Agency Costs and Ownership Structure’ (1976) 3Journal of
Financial Economics 305.
34Andrei Shleifer andRobert Vishny, ‘A Survey ofCorporate Governance’ (1997) 52(2)Journal ofFinance 734.
35Oliver Hart andJames Moore, ‘PropertyRights andthe Nature ofthe Firm’ (1990) 98 Journal of Political Economy 1119.

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20
Due to the nature of ownership corporate control becomes tricky leading to problems more
particularly in Anglo countries like Australia, Canada, UK and USA where ownership is divided
with no supervisory board or a 'relationship investor' to monitor.36 Even if there is mismanagement
or misappropriation, it would be difficult for a small shareholder to track the same as in some
countries, the law does not allow shareholders to form associations to control the management or
replace them. Further, the insider trading laws bars shareholders from gathering information to
monitor and supervise management. Above all, most of the shareholders have marginal interest
therefore it is not worth it to spend time and money to monitor the executives or the management
individually.
1.8.3. The stewardship model is a model where management is regarded as a steward whose
responsibility is to be the custodian of the corporation and ensure high returns to the shareholders or
make huge profit for the corporation.37 Company regime requires the directors of the corporation to
render a fiduciary duty to the shareholders of the corporation. The fact that directors of the
corporation are conferred with fiduciary duty implies that they are reliable to perform the function
of stewards to manage the funds and assets of the corporation. Therefore, on this assumption, in
Anglo countries, the duties of the directors are rooted in the stewardship theory. The responsibility
under the stewardship theory is superior to that of Principal-Agent theory as the steward here has to
work like a principal and not as a representative.38
36Robert Monks, ‘RelationshipInvesting’ (1994)2(2) CorporateGovernance: AnInternational Review58.
37 Lex Donaldson and James Davis, 'Boards and Company Performance – Research challenges the Conventional Wisdom’ (1994) 2 Corporate
Governance: AnInternational Review151.
38 Robert Ian Tricker, Pocket Director (The Economist Books, 1996)45.

21. STUDENT NO: 1332100
21
Stewardship theory could be traced in firms around the “Mondragon system” which functions
without independent directors. Most of the board members are either managers or stakeholders.39
The firms in the Mondragon system are regulated by three or more boards or councils that have
divided the authority with proper checks and balances. In this model, the managers are seen to be
self-motivated, achievement oriented and responsible towards their company, in such cases the
manager places the company before one’s personal life. Such people are referred to as a “company
man” in Japan.
1.8.4. The stakeholder model underscores that the function of the Corporation should be greater
than just shareholder’s interest.40Some commentators have argued that it is legitimate for people in
the business community to spend time worrying about their strategy for stakeholders because
stakeholders can affect the accomplishment of business goals and plans.41 Stakeholders such as
customers, employees, vendors and local communities of the host nation who are significant in the
corporation’s long-standing accomplishment, should be considered while determining the
corporation’s purpose and activities. The Corporation’s objective should be to build capital or value
for all its stakeholders by channelising their investments into ‘goods and services.’42 The executives
of the corporation should focus on creation of long term assets and wealth for the corporation and
therefore, they have to give incentives to individuals who play important role or are in charge of
decisive and extraordinary contributions for the prosperity of the corporation. The interests of all
stakeholders have to be matched with the interests of remote, inactive shareholders.43
39Shann Turnbull, ‘Innovations in CorporateGovernance:The MondragónExperience’(1995) 3 Corporate Governance: An International Review167.
40AndrewCrane et al (Eds.), The Oxford Handbook of Corporate Social Responsibility (OUP 2009) Chapter4.
41Kathleen.Hale, ‘Corporate lawandStakeholders: MovingBeyondStakeholderStatutes’(2003) 45Arizona LawReview836.
42Max Clarkson, ‘A Risk BasedModel of Stakeholder Theory’ (The Centre for Corporate Social Performance & Ethics, University ofToronto, 1994)
76.
43Margaret Blair, OwnershipandControl (The Brookings Institution, Washington, 1995)880.

22. STUDENT NO: 1332100
22
According to the American Law Institute, “the modern corporation by its nature creates
interdependences with a variety of groups with whom the corporation has a legitimate concern, such
as employee, customers, suppliers, and members of the communities in which the corporation
operates'. 44 Therefore, it is advantageous to Corporation to consider the interests of all the
stakeholders.
Furthermore, the Organization for Economic Co-operation and Development (OECD) principles of
Corporate Governance45 advanced the issue of stakeholders to include a wide range of parties like
shareholders, employees, creditors, suppliers, government and host community. It allowed for
increased stakeholder participation through protection of rights, disclosure and monitoring of
corporate management. Although, it provides stakeholders with an opportunity to seek redress when
rights are violated, it failed to offer a forum where remedies can be sought. As compelling as its
provisions are it is not a binding legal instrument. However, it does acknowledge that law has a role
to play in preserving and protecting stakeholder interest.
1.8.5. The political model identifies that the distribution of authority, benefits and earnings of
the corporation amongst proprietor, managers and various other stakeholders is based on the
Government’s goodwill and support towards their activities in different areas. Early to 19th century,
state wrote charter laws and actual charters to limit corporate authority, and to ensure that when a
corporation caused harm, they could revoke the charter. However, it is said that in late 19th century,
corporations undermined state governments and ‘bought over governments’.46
According to Pound the 'political model of governance' is an approach, “... in which active investors
seek to change corporate policy by developing voting support from dispersed shareholders, rather
44American LawInstitute, Principles of Corporate Governance: Analysis and Recommendations (American LawInstitute Publishers 1994) 455.
45Organisation for Economic Co-operation and Development (OECD) principles of Corporate Governance (OECD Publishing 2004) chapter iv-vi
<http://www.oecd.org/corporate/oecdprinciplesofcorporategovernance.htm>accessed14 April 2014.
46Lawrence Friedman,A History of AmericanLaw (Simon& Schuster, NewYork, 1973)66.

23. STUDENT NO: 1332100
23
than by simply purchasing voting power or control...” He further goes to state that “this new form
of governance based on politics rather than finance will provide a means of oversight that is both far
more effective and far less expensive than the takeovers of the 1980's”.47 The political model also
addresses the issues such as trading off investor voice to investment exit, and institutional agents
monitoring corporate agent, i.e. watching the watchers.48
However, it is evident that bad corporate management can lead to corporate misbehavior which can
affect host communities and its environment negatively. Hence, there is a need to monitor MNCs in
order to protect stakeholders and reduce the damage of environmental degradation. Also, there is a
need to remedy those wrongs caused by MNCs and for that reason CSR and stakeholder protection
are vital in this regard. It suffices to say that sometimes it is inevitable to control corporate activity
in an almost perfect state and not damage the environment or act negligently. In this thesis an
argument will be made positing that the law can provide a solution in this debate especially in a
developing country such as Nigeria. The various laws on CSR and stakeholder protection in Nigeria
will be examined, whether they are adequate enough to provide sufficient remedy for victims of
corporate misbehavior? These are some of the contentious issues that will be examined in
subsequent chapters of this thesis.
47John Pound, ‘The Rise of thePolitical Model of Corporate GovernanceandCorporate Control’(1993)68 NewYork University LawReview1003.
48Robert Monks and Neil Minow, Watching the Watchers: Corporate Governance for the 21st Century (1st edn, Wiley, John & Sons, Incorporated
1996) 89-100.

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Chapter 2: The Control of Multinationals in Developing Countries with a Focus on Nigeria.
2.1. Corporate Social Responsibility (CSR) as a tool of Corporate Governance.
According to literature CSR is considered as a policy adopted by businesses to use some of their
profits for the communities where they are situated and do business49. Any organisation that fails to
meet these commitments is considered irresponsible and could face consequences. According to
scholars50 in the year 1950 CSR evolved and developed in the year 1970 but it was well established
within business literature in the year 1990s. It has been suggested by Bowen 51 that it is the
obligation of businessmen to follow those policies and make decisions or maintain certain lines of
activities which are enviable in terms of the company’s objectives and values. Similarly, a six year
research conducted at the Stanford University Graduate School of Business by Collins and Porras
on some of the world’s leading MNCs, showed that successful MNCs built a reputation for
themselves not necessarily on charismatic leadership but on integrating stakeholder interest in its
49 Amaeshi Kenneth M., et al. ‘Corporate Social Responsibility in Nigeria: Western Mimicry of Indigenous Influences:’ (2006) 24 Journal of
Corporate Citizenship83-99.
50 Carrol Archie,‘Corporate social responsibility evolution ofa definitional construct.’(1991) 38(3) Business andSociety268-295.
51 Bowen Howard, Social Responsibilities of the Businessman (NewYork: Harper &Row, 1953) 44-49.

25. STUDENT NO: 1332100
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code of conduct. 52 The study will help us understand how stakeholders and communities are
benefited because of different CSR activities undertaken by different multinational companies with
special emphasis on Nigeria as part of corporate governance.
Both CSR as well as Corporate Governance (CG) according to definition looks as an agenda that is
part of the company’s management practices and thus gets confused with each other. The question
that usually arises is that whether CSR and CG are the same for the organisation’s management or
they have different perspectives. It has been the center of debate whether CSR is a part of CG or
vice versa. It is known to all that the base of CSR is on the principles of self-regulations which is
connected to the external and internal environment of the company. On the other hand CG is
considered as a part of the organisation’s governance and issues related to the management.53
The view of Winberg and Randolph54 is highly noteworthy about the distinction between CSR and
CG. They mentioned that though in many cases CSR and CG are interrelated and sometimes
overlaps with each other but both concepts are distinct. Corporate governance is about control of
directors and the internal management of a corporation while corporate social responsibility (CSR)
is much broader than that. Programs that are governance based are more or less internally focused
and in most cases are based on rules which may attract sanctions when breached. Whereas CSR is
more outwardly focused and more or less value based. CSR is a part of corporate governance which
mainly is softer and voluntary in nature. Litigation and compliance with legal provisions are
involved when enforcing mandatory governance issues. It may involve stakeholder’s pressure,
boycotts while enforcing softer social issues which have code of conduct for self-regulations.55
52James Collins andJerry Porras, Built To Last:Successful Habits of Visionary Companies (Random House 2005)Chapter 10.
53Ahmed Uddin and Mohammad Yousuf, ‘Corporate governance, competition and performance’ (1997) Journal of Law and Society 152-
154.
54 Danette WinbergandPhillipRandolph, ‘Corporate Social Responsibility: What every In-House Council ShouldKnow’ (2004) ACC Docket 72.
55 Dennis Leonard and Rodney McAdam, ‘Corporate Social Responsibility in A Total Quality Management Context: Opportunities for Sustainable
Growth’ (2003)3(4) Corporate Governance: The International Journal of Business in Society 36-45.

26. STUDENT NO: 1332100
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However, it has been observed that several multinational oil companies located in the Niger Delta
region of Nigeria have ignored their CSR commitments and have become socially irresponsible.
Also, the fact that government sometimes could connive with MNCs to perpetuate human rights
abuse just like in the case of Ogoni56 is just one of many cases from that region. Furthermore,
MNCs sometimes take advantage of weak labour laws of less developed countries which has led to
poor working conditions and human rights abuse. This was the case in Kasky v. Nike,57 where Nike
had to settle out of court for US$1.5million and also undertook to strengthen workplace monitoring
and support factory worker programmes.
It suffices to say that companies are making efforts through charitable activities in order to maintain
a balance to resolve conflict and fulfil the demands of society, government, other stakeholders and
even pressure groups. It has been argued that business organisations play a vital role in the
economic development of a nation. They should be responsible for the improvement of the
environment and society where these companies operate.58
2.2. Multinational Corporations and Corporate Social Responsibility in Nigeria.
Nigeria is considered among scholars as one of many interesting nations to explore the significance
and application of CSR for several reasons. Being the most populous black-country in the world
and highly influential both within sub Saharan Africa and the global economy. This is because of
her proven ability of her internal dealings to strengthen the international oil market. In reality, a
never-ending political unrest inside the nation is not separated from the social and environmental
issues that are there at the center of CSR dispute. The complication of poverty in the middle of all
other problems such as environmental degradation, government and political corruption along with
56Fons Coomans, ‘The Ogoni case before the African Commission on Human and Peoples Rights’(2003) 52(3) International and Comparative Law
Quarterly 749.
57Kasky v. Nike, Inc., 45 P.3d243,248(Cal. 2002).
58Dennis LeonardandRodney McAdam(n 55).

27. STUDENT NO: 1332100
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that of the multinational oil companies add to the woes of the country. Several studies carried out
till date has highlighted the negligence of these multinational companies in Nigeria.59
The motivation of MNCs to get involved into different CSR activities are diverse which includes
globalisation, consumers, market forces and pressure from the civil society etc. Due to the global
reach of these companies their CSR activities are visible. The companies get higher incentives to
defend their brands and CSR investments. But the pressure to get engaged in different CSR
activities may not be applicable for the home grown firms in Nigeria. For example the local
Nigerian companies don’t have multinational operations and less than 20% of these registered firms
are publicly quoted. Majority of the local companies in Nigeria are small or medium enterprises,
they are privately held, owned and operated by families.60
The Niger Delta region of Nigeria dominated by MNCs in the oil sector is looking for social justice
and protection of the environment but there are uncanny politics prevailing which is guided by
powerful groups like the government and oil companies.61 It has to be noted that the oil sector in
Nigeria is mostly dominated by subsidiary MNCs with their parent companies oversea. These
MNCs in order to make up for governance failure by the Nigerian government and to protect their
business interests are getting involved with CSR activities on a regular basis. ‘Organised CSR’
activities in Nigeria can be traced in the history to be practiced by oil and gas companies which are
mostly MNCs of the West. For example, Shell has described their different CSR activities for
various purposes in order to match their planned strategies in Nigeria every time, which includes
sustainable development, investment for the community etc. The main aim of CSR activities in the
59Ali Quazi and Dennis O’Brien, ‘An empirical test of a cross‐national model of corporate social responsibility’ (2000) 25(1) Journal of Business
Ethics 33‐51.
60 Hamann Ralph, et al., ‘Universalizing corporate social responsibility? South African challenges to the international organization for
standardization’s newsocial responsibility standard’ (2005)110(1)Business andSociety Review1‐19.
61Uwem Ite, ‘Multinationals and corporate social responsibility in developing countries: a case study of Nigeria’ (2004) 11(1) Corporate Social
Responsibility andEnvironmental Management 1‐11.

28. STUDENT NO: 1332100
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Niger Delta region of Nigeria are mainly initiatives on remedying the effects of oil extraction
activities on local communities done by the company. The MNCs operating in this region have
provided pipe-borne water, schools for education, hospitals etc. It has been observed that majority
of these provisions are mostly ad hoc and in most cases are not in a sustainable manner. Studies
showed that some of the social amenities like schools; hospitals etc. provided by MNCs in Nigeria
have been neglected or did not fulfill the requirements of the communities that they were supposed
to maintain. It has been pointed out in several articles that the government of Nigeria has constantly
reneged on its commitments that it becomes more or less impractical for the investments done by
MNCs in CSR activities to have a positive contribution towards the Nigerian community.62
2.3. Nigerian Company Law and the Control of Multinational Corporations.
In most cases it has been said that a nation controls its local and foreign corporations by means of
its domestic company laws.63 So it is important to study the provisions of the Nigerian company law
to understand the regulatory framework by which it controls the MNCs that operates in Nigeria
2.3.1. A brief understanding of the history of company law of Nigeria.
The regulatory framework for the control of MNCs in Nigeria began, in the nineteenth century.
Nigeria saw the abolition of slave trade and British authority was formally established as the nation
saw a steady rise in trade both internally as well as externally.64 The companies that were doing
business in Nigeria were mostly based in Britain. By virtue of British authority present at the time,
colonial statutes enacted between the year 1876 and 1922 such as common law, the doctrine of
equity and statutes of general application in England as of 1st January 1900 including other later
statutes that were applicable were used to control companies in Nigeria. For instance, the common
62Fig David, ‘Manufacturingamnesia: corporate social responsibilityin South Africa’(2005)81(3)International Affairs 599‐617.
63Olufemi Amao, ‘Corporate Social Responsibility, Multinational Corporations and the Law in Nigeria: Controlling Multinationals in Host States’
(2008)52 Journal ofAfrican Law95.
64Ola Orojo, Company law in Nigeria (3rd
ednMbeyi&Associates 1992)1.

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law concept which involves treating companies as independent and separate legal personalities as
established in Salomon v Salomon& co. Ltd. was incorporated into the Nigerian company law and
ever since has been a part of it.65 Nevertheless, with the continuous growth in trade the colonial
ruling class felt it was necessary that laws must be promulgated in order to develop local business.
In 1912, the Company Ordinance became the first Nigerian company law which was a local
enactment from the English Companies (Consolidation) Act of 1908. This law gradually
metamorphosed to become the Companies and Allied Matters Act, 1990 (CAMA) and is modelled
largely on the basis of the 1948 Company Act of the UK.
2.3.2. The strategy for control is local incorporation.
The first step taken in order to control MNCs was directly introduced in the Companies and Allied
Matters Act of Nigeria. This Act introduced the obligation of local incorporation with the intention
of bringing MNCs under the context of the Nigerian Company Law and to make them comply with
the requirements of the Act such as revealing of accounts, regulation of directors and shareholders.
The provision is at present a part of the company law in Nigeria. The Companies and Allied Matters
act (CAMA),66 provides that foreign companies with an intention to carry on business in the
country are to take necessary steps to be incorporated as a separate entity in Nigeria. Pursuant to
sections 54 of the Act provides that all companies which were incorporated before or after this Act
outside the country of Nigeria shall undertake all the required steps in order to get incorporated as a
separate entity in Nigeria until this step has been taken no companies are allowed to carry on
business within the country. Also, they cannot exercise any power within the nation as a registered
company and they will not be allowed to have a business place i.e. they will not have an address or
place for any other purpose within Nigeria except receipts of notice which is preliminarily required
65 Abel Guobadia, ‘Protecting Minority and Public Interests in Nigeria Company law: The corporate Affairs Commissions as a Corporations
Ombudsman’ (2000)1 International Corporate lawAnnual 79.
66Companies andAlliedMatters Act 1990 (LFN) Chapter3, ss.54-59.

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for incorporation is obtained. It must be mentioned here that this provision is unique to Nigerian
Company law.
Moreover, the United Kingdom Companies Act from which CAMA was modelled does not have
any such provision. Conversely, the usefulness of this provision has been challenged.67An annoying
context to this provision is that the parent companies of these subsidiaries of MNCs avoid liabilities
whenever any adverse conditions arise as they are legally incorporated as Nigerian organisations. A
suit was filed against the company Mobil and its parent company with its headquarter in the United
States because of its avoidance of responsibility in a community in the Niger Delta region of
Nigeria. Another implication of this provision may be that it might hinder the ability of Nigerians
seeking rectification from MNCs to approach the home authority of the parent companies.68
2.4. The problem of Corporate restructuring (who monitors the monitors).
Restructuring is the corporate management term for the act of reorganising, the legal, ownership,
operational, or other structures of a company for the purpose of making it more profitable, or better
organised for its present needs. It is a crucial strategy adopted by corporations in order to remain
relevant in the world of business. Researchers describes the concept of restructuring as a set of
distinct significant measures taken in order to boost the competitiveness of the venture and thus
improve its worth or performance. In majority of the cases corporate restructuring takes place to
improve productivity and reduce its cost.
However, it is common knowledge that most companies want to maximise profits for its
shareholders and directors are given the responsibility to manage business affairs for that purpose.
67Eddy Wymeersch, ‘The Transferof the Company’s Seat in EuropeanCompanyLaw’ (2003) 40CommonMarket LawReview661.
68Mobil producing (NIG.)Unltd. v. Monokpo (2003) 18 NWLR (Pt 852) 346. This distinction was also employed by the Court of Appeal in grantinga
stay of execution of a judgment in favor of an oil community which judgment was against Shell for gas flaring in Shell Petroleum Development
Company (SPDC)of Nigeria v. Dr. Pere Ajuwa andHonourable Ingo Mac-Etteli Court of Appeal, Abuja Division, no. CA/A/209/06, 27May 2007.

31. STUDENT NO: 1332100
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This pressure on directors may result in negligent acts that can affect stakeholder interests. Also,
directors may breach their responsibility by acting fraudulently thereby undermining stakeholder
protection. The Enron scandal, revealed in October 2011, eventually led to the bankruptcy of the
Enron Corporation, an American energy company based in Texas. It was a world leader in
transportation and traded in natural gas, electricity and internet bandwidth. It was declared by
Fortune’s magazine, ‘America’s most innovative company’ and was listed among the top
companies to work at the time. In 2001, Enron revealed that it has overstated profits over the last
five years and equity per share capital had dropped considerably. It soon filed for bankruptcy after
futile attempts to save the company failed. The lawsuit that was filed after the company’s stock
price fell showed that it was the minority shareholders who suffered the most. In the Enron case, the
misfortune of minority shareholders who lost their jobs with their families depending on it did not
stop top executives of the defunct corporation to go home with fat pay checks. Presently, there is no
regulatory framework at the international level for corporate social responsibility. This has become
a contentious issue at the global level on MNCs.
The concept of corporate governance is more or less new in Nigeria and stakeholders of institutions
have put forward all their efforts to set up sound corporate governance practices, the situation of
Nigeria remains abysmal. Possibly the transformed interest in corporate governance is because of
the change in rule from military to civilian in the year 1999, which brought along with it a new
sentiment in the political environment of Nigeria. A section of the population started expecting
progress in the primary human rights of Nigerians, the judicial system and the socio-economic
situation as a whole.69 It has been observed that the pitiable corporate governance framework of
Nigeria has been subjugated by the senior management of companies at the cost of other
stakeholders. In the recent down turn the major shock was that the Nigerian Stock Exchange which
also brought some of these practices in front by the operators of the capital market. The
69Hashima Bulus and Ango Nuhu, ‘Multinational Companies Corporate Social Responsibility Performance in Lagos State, Nigeria: A Quantitative
Analysis’ (2012) 5(1)EuropeanJournal of GlobalisationandDevelopment Research248.

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development of the code of conduct of corporate governance practice in Nigeria in the year 2003
was heartily welcomed by the people. The code of conduct thus formed mostly stressed on the
management and board of directors’ role, rights of the shareholders and privileges and above all the
role of audit committee in corporate governance process.70 But before the formation of the code of
conduct for corporate governance in Nigeria, the Company and Allied Matters Act used to exist and
it has been used in order to monitor the relation between the board, the management and the
shareholders which also included the stakeholders of the company. CAMA did not achieve much
acknowledgement in nurturing flawless corporate governance in Nigeria.
The main source of capital in Nigeria and the world over is Oil. It is the main contributor to
Nigeria’s economy even at the expense of agriculture although the country suffered with “Dutch
disease” as a result of oil exploration in its region. Over the years it has been proved that the oil and
gas industry has taken a prominent position in Nigeria by the end of the Nigerian Civil War.71 The
major role of these two sectors is to contribute for the economic growth and development of the
nation while they also satisfy their shareholders by providing good returns on their investments.72
The ‘back gold’ has become an important mainstay in the Nigerian economy as it contributes major
public revenue. More than 85% of the foreign reserve of Nigeria is earned from the oil industry.
This industry also includes participants from upstream and downstream sectors. These participants
are vital as they provide strategies that should be incorporated in order to make the industry
competitive and buoyant in profit earnings. Corporate restructuring in these industries are thus vital
in order to make the economy of Nigeria grow with time.73
70 John Okpara, ‘Corporate Governance in a Developing Economy: Barriers, Issues, and Implications for Firms’ (2011) 11(2) Corporate Governance:
The international journal of business in society184-199.
71 Suleiman, L. A., ‘Does restructuring Improve performance? An Industry Analysis of Nigerian Oil and Gas Sector’ (2012) 3(6) Research Journalof
Finance andAccounting55-62.
72Oloyede J. A. and Sulaiman L.A., ‘A Comparative Analysis of Post Restructuring Performance of Firms in Financial and Real Sectors in Nigeria’
(2013)3(1) AsianJournal OfEmpirical Research62.
73 Ismail Tariq, Abdou Abdulati and Annis Radwa, ‘Review of Literature Linking Corporate Performance to Merger and Acquisitions’ (2011) 1The
Reviewof Financial andAccountingStudies 89-104.

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2.5. The problem of overregulation of the internal framework of Corporate Governance.
The current statutory regime for corporate governance regulation in Nigeria has not been effective
and thus there has been repetition of failures in both public and government owned corporations. In
Nigeria, there are a plethora of laws in place governing stakeholders’ interests besides CAMA but it
has not achieved the desired results. In subsequent sub-chapters some of these laws and their effects
will be examined. The notion of effective corporate governance practice is poised on protecting the
interests of shareholders, investors, stakeholders and government in all continents since the year
2001. Corporate governance has become a matter of concern globally especially in developing
nations and bodies such as Organisation for Economic Co-operation and Development (OECD) has
developed certain vital principles of corporate governance which represents the moral agreement of
the global communities.74
After the collapse of some MNCs such as Enron in 2001 and recession hitting the global economy,
the quality of control over corporations and its management paid to manage its affairs was again
brought to question.75Recently, a United States panel concluded that the companies involved in the
Gulf of Mexico oil spill made decisions to cut costs and save time that contributed to the disaster.76
In the case of the BP oil spill at the Gulf of Mexico, though a huge amount was doled out in
compensation. The vexed question that comes to mind is was that money enough to mitigate
environmental degradation? How can one put a price on the ecosystem? Another question that
comes to mind is how do you regulate the nexus or network of MNCs worldwide? Should they be
subjected to international law? These are some of the issues this thesis addresses.
The corporate landscape in Nigeria has been desperately trying to survive sincethe 80s and 90s and
at present the financial anguish worldwide is still seen to haunt the financial sector of the country.
74 In USA the Sarbanes-Oxley Act, 2002 was enacted; while the UK amended its Code of Corporate Governance and the Securities Exchange
Commission CorporateGovernance Code,2003was adoptedin Nigeria.
75Companies andAlliedMatters Act (CAMA),CAP C20, Laws of the Federationof Nigeria, 2004, Sections 63 and64.
76Deepwater, The gulf oil disaster andthe future of offshore drilling: Report to the President-National Commission on the BP Deepwater Horizon Oil
Spill and Offshore Drilling (2011) <http://www.gpo.gov/fdsys/pkg/GPO-OILCOMMISSION/pdf/GPO-OILCOMMISSION.pdf> accessed 14 April
2014.

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Nigeria experienced corporate failures in recent time because of macroeconomic volatility resulting
from sudden and huge capital inflow from the oil sector. It has not been able to managecorporate
governance failure, lack of investors and no provision for consumer protection. There are
insufficient disclosure and lack of transparency about the financial status of the companies.77 It has
been observed that there are gaps in the regulatory outline and laws prevailing within Nigeria.
Supervision and enforcement have not been consistent while an amorphous governance and
management system coupled with lack of adequate security in the country leads to improper
corporate governance and control over the MNCs.78
The SEC Code of Conduct for corporate governance for MNCs in Nigeria is not actually intended
to be a very rigid set of rules but it is a dynamic document that mentions minimum standards of
corporate governance that is expected from MNCs with listed securities in Nigeria. 79 It has
commendable recommendations that are designed to improve the effectiveness of corporate
governance in Nigeria. The SEC Code’s voluntary and self-compliance nature poses huge difficulty
on execution and enforcement. The 2011 SEC code addressed three key areas of corporate
governance which includes Board of directors of companies, the shareholders and the audit
committee.80
Another big challenge to achieving and implementing a proper corporate governance structure in
Nigeria is corruption. Corrupt practices by office holders are not at all unknown in the country. In
the year 2008 the global corruption report published by Transparency International reported that
Nigeria ranks 121st as one of the most corrupt nations of the world. It is interesting to note here that
77Boniface Ahunwan.‘Corporategovernance in Nigeria’(2002)37 Journal ofBusiness Ethics 267-287.
78Obodo Chimere, ‘Globalisation and Corporate Governance Challenges in Nigeria: A Regulatory and Institutional Perspective’ (2014) 4(2) African
Journal of Sciences 58.
79Ya’u M Damagum and Emmanuel Ib. Chima, ‘An Empirical Analysis of Corporate Governance Codes: Accountability Vs Enterprise. Ev idence
from Nigeria’ (2014)3(1) International Journal ofFinance andAccounting16.
80 Article 1.3 Securities and Exchange Commission (Code of Corporate Governance 2011)
<http://www.sec.gov.ng/files/CODE%20OF%20CORPORATE%20GOVERNANCE_web%20optimized.pdf> accessed2 March2015.

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there is no provision on dealing with corruption in the Codes and CAMA which suggests that the
regulators have immense pressure to reassure, lure and win the confidence of investors in the capital
market of Nigeria.81Corruption is a cankerworm that is gradually frustrating the effects of the
current statutory regime from achieving its objectives. The Nigerian justice system needs to be
strengthened so that issues of stakeholder interests such as environmental degradation can be
addressed in court. The Nigerian constitution82 which provides that the state shall preserve and
protect the environment has not been effective because there are few cases about environmental
degradation brought to court and most of them have been unsuccessful.
2.6. Workers Protection and Multinational Corporations.
Workers or employees are an essential part of the stakeholder concept and it is important to
examine how they are protected in Nigeria. Neo-liberalism is a political philosophy that illustrates
the significance of economic development, that social justice is maintained at best by minimum
government intervention from operation of free market. However, there have been a number of
determined efforts at both national and international level to determine standards to develop the
framework which hinders the labour regulation between the employees and employers in Nigeria.
This would grant certain rights to workers once contract of employment has been given. In the year
1919 the International Labour Organisation (ILO) was established as part of the League of Nations
in order to protect the right of workers. Subsequently, the League of Nations failed and the United
Nations incorporated ILO. As a result, the protection of workers’ rights was adopted by the UN.
This is supported by the Universal Declaration of Human Rights established in the year 1948 which
also forms the base of the International Covenant on Economic, Social and Culture. 83 The
81Gedeon Rossouw, ‘Business ethics andcorporategovernancein Africa’ (2005) 44(1) Business andsociety101.
82Constitution ofthe Federal Republic ofNigeria 1999(LFN.),s.20.
83 Oginni Yemi and Adesanya Segun, ‘The Workers’ Rights in Nigeria: Myth or Reality’ (2013) 2(1) International Journal of Business and
Management Invention101.

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International Covenant on Economic, Social and Cultural Rights provides some protection for
employees such as:
The right to employment which clearly defines the opportunity for every individual to expand
their living by freedom of choice or
Acceptance of employment, prevention of discrimination at place of work and there must be
guaranteed access for the underprivileged and forced labour or child labour is prohibited (Article 6).
Also, there should be fair wages and equal pay for everyone
In case of equal work, adequate wages should be provided to the workers and their family for a
decent living; working condition should be safe, they must get equal opportunity in the work place,
they must have sufficient time for leisure and rest, working hours should be limited and they must
get paid holidays (Article 7).
They have the right to join or form trade unions in order to protect their right and even go on strike.
This is restricted to some form of workers such as the police, armed forces, government
administrators and in some nations such as Nigeria, workers who are meant for delivering of
essential services.84
The above mentioned provisions are equally reinforced in the United Nations Universal Declaration
of Human Rights (Article 23 and 24)85 and the Nigerian Constitution.86
2.6.1. Workers’ right in Nigeria.
The law that regulates and guides employees and employers relationship in Nigeria is termed the
Labour Act87 and it is supported by the Constitution of the Federal Republic of Nigeria 1979.88 The
constitution ensures that:
84 International Covenant on Economic, Social and Cultural Rights (Adopted and Ratified by the UN General Assembly in 1966)
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> accessed3 March 2015.
85UnitedNations (Universal Declarationof Human Rights 1948) <http://www.un.org/en/documents/udhr/> accessed3 March 2015.
86Constitution ofthe Federal Republic 1999, s. 34.
87Labour Act of Nigeria, Cap.193(LFN.) 1990.
88Constitution ofThe Federal Republic of Nigeria 1979,s.7(3).

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Discrimination is prohibited and all citizens are given equal opportunity for having sufficient
means of livelihood as well as enough opportunities to have continuous employment
The workers must have proper and humanitarian work condition and they must have adequate
amenities for leisure, religious, social and cultural life
The safety, welfare and health of all the employed workers must be safeguarded and must not be
abused to endangered
 There should be sufficient facilities for medical and health for all the person
 Equal pay for equal work must be maintained without having equality on account of sex, or any
other ground
Exploitation against children, young and old people must be prevented and should be considered
as moral and material neglect and
There are provisions made for deserving cases to get public assistance or in any other
circumstance if needed.89
However, the provisions mentioned above are not clear enough and that is why supplementary
legislations have been enacted for employees’ protection which ranges from Wages Board and
Industrial Council Act in the year 1990. In the same year other laws such as the Labour Act CAP
193Laws of the Federation (LFN.), National Minimum Wage Act CAP 267 (LFN.) 1990, Trade
Dispute Act CAP 432 (LFN.) 1990, Employee Housing Scheme (Special provision) Act CAP 107
(LFN.) 1990, Workmen’s Compensation Act CAP 470 (LFN.) 1990, National Housing Fund
Decree No.3 of 1993and Nigeria Social Insurance Trust Fund Decree No. 73 of 1993have been
enacted. The above mentioned provisions have been enacted in order to ensure fair, safe and healthy
work conditions so that activities related to work can be performed in a less tensed and grudge free
89Oginni Yemi andAdesanya Segun (n 83) 102.

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atmosphere. These are all applicable for MNCs willing to do business in Nigeria.90 In spite of the
regulations governing labour relations and worker’s right in Nigeria, there is a need to have a
specific law catering for stakeholder interests. This can help provide some clarity on stakeholder
protection from the current statutory regime.
2.7. Multinational Corporations and Human Rights in Nigeria.
In 1956 after the discovery of oil in the Niger Delta region of Nigeria91 reports of environmental
degradation began to surface. It affected the lives of the local community adversely especially
ethnic groups such as the Ijaw and Ogoni. The environmental damage and pollution caused by
multinational oil companies have resulted in the violation of laws related to right to life and healthy
environment in Nigeria. It also affected the right of the local people to maintain a particular
standard of living and their ability to earn a proper living by working for thousands of people in
Nigeria.92
However, the need for stakeholder protection has been brought to the attention of the government
and corporations by two international organisations so that they can demonstrate a certain level of
responsibility towards the society. The World Industry Council for the Environment (WBCE) and
Business Council for Sustainable Development (BCSD) that later became World Business Council
for Sustainable development (WBCSD) in the year 1995 comprises of 140 international companies
90Ibid.
91Section 1 of the Petroleum Act provides that; “The entire ownership and control of all petroleum in, under or upon any lands to which this section
applies (i.e. landin Nigeria, under the territorialwaters of Nigeria or formingpart of thecontinental shelf)shall be vestedin the state.”
92 C.O. Opukri andIbaba Samuel Ibaba, ‘Oil Induced Environmental Degradation and Internal Population Displacement In The Nigeria’s Niger Delta’
(2008)10(1)Journal of Sustainable Development in Africa 174.

39. STUDENT NO: 1332100
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who are responsible for driving CSR activities globally.93 CSR activities as defined by WBCSD
mainly focus on Human rights, employees’ rights, community development, environmental
protection, developing and monitoring suppliers’ relations. Companies can be evaluated on their
CSR performance through the above mentioned CSR issues. Environmental groups accuse oil
companies of operating double standards, of allowing practices in Nigeria that would never be
permitted in North America or Europe.94
A famous case about Shell Petroleum Development Company (SPDC) will be delineated upon to
understand the condition of human rights and the different CSR activities carried out by MNCs in
Nigeria. Among the top oil companies doing business in Nigeria only Shell is a member of WBCSD.
The company’s former chief executive officer in Nigeria between the year 1991 to 1994 and the
managing director of Royal-Dutch/ Shell Group, Mr. Phil Watts, is an executive member of
WBCSD. Hence, it can be expected that this company will practice good CSR activities in host
countries and communities such as the Niger Delta region. 95 Although, SPDC is a recognised
member of WBCSD and highly aware of environmental guidelines in Nigeria which are established
by the Department of Petroleum Resources (DPR) and the Federal Environmental Protection
Agency (FEPA), yet the company has witnessed a large number of protests which is more than
other oil companies operating in the Niger Delta region. Arguably, it cannot be said to be the
inability of the Nigerian government to enforce environmental laws, because the environmental
regulations and standards set by the DPR and FEPA in Nigeria can be compared to advanced
countries such as Canada and the United States. The major challenge in Nigeria is at the level of
implementation of its laws. A possible reason for this is corruption and complicity of the Nigerian
government and oil corporations. As a result of these limitations major oil companies have not
93Frynas George, “Corporate andstate responses toanti-oil protests in theNiger Delta” (2001) 100(398) AfricanAffairs 27-54.
94Bronwen Manby, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities (Human
Rights Watch1999) 56.
95Osita Agbu, “Oil andthe National Questionin Nigeria: theExternal Dimensions” (2000) 26(1)NigerianJournal ofInternational Affairs 99.

40. STUDENT NO: 1332100
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addressed the issues of environmental safety and impact affected by oil production on its host
community at a satisfactory level. On the other hand, it has been observed that most of these
companies’ claim sabotage as a reason for oil spill even when it is evident that their actions may be
the result of negligence.
2.8. Multinational Corporations and Anti-Corruption Laws.
In a contemporary enterprise and organisational culture, many companies are increasingly willing to
increase their profits and gain competitive advantages through indulgence in bribery, corruption,
money laundering and other anti-social practices that show little regard for social obligations and
laws.96 Companies usually pride on their reputation by being socially responsible observing ethical
conduct, but the evidence in practice proves otherwise. MNCs have used the political elite in
developing countries to seek to advance their global earnings and maintain a competitive edge by
offering bribes and other inducements to secure government contracts in Nigeria. Some writers have
associated corruption with the recurring misuse of public office for private financial gain.
Conversely, it is not exclusively so because corruption also exists in both small and large
enterprises with its gains gotten from fraud, bribery, exploitation, embezzlement, human rights
abuses and conflicts of interest. Its outcome are associated with loss of taxes, public revenues,
economic decline, lack of investment in public goods, the emergence of gangs and private armies, a
loss of faith in the law and institutions, low standard of living and a decline in the average life
expectancy.97
Developing countries, often some of the poorest nations in the world, receives around $120 million
in foreign-aid from G20 countries, but the average person is estimated to be living below $1 and
$1.6 per day. As a result of corrupt practices, African countries have been estimated to be losing
96Prem Sikka, ‘Smoke andMirrors: Corporate Social ResponsibilityandTax Avoidance’(2010)34 AccountingForum153-168.
97Prem Sikka and Mark Hampton., ‘The Role of Accountancy Firms in Tax Avoidance: Some Evidence and Issues’ (2005) 29(3) Accounting Forum
325-343.

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$500 billion (£270 billion) a year in revenue.98 Corruption and the transfer of illicit funds have
therefore contributed to capital flight from Africa, with more than $400 billion having been looted
and stashed away in foreign countries. The former Chairman of the Economic and Financial Crimes
Commission (EFCC), Nuhu Ribadu, disclosed that pervasive corruption in Africa bleeds the
Continent of $148 billion each year, representing 25 per cent of its gross national product (GNP).99
It is also estimated that ‘African political elites hold somewhere in the range of $700 to $800 billion
in accounts outside the continent.100 Corrupt practice is continually depriving the African economy
of sums large enough to make a real difference in social investment in education, transport,
pensions, housing, healthcare and freeing people from poverty and squalor.
In Nigeria, successive governments have sought to combat corruption by enacting a wide variety of
laws since independence. Prior to 1966, the Criminal Code was the primary source of law dealing
with anti-social practices in Nigeria. However, due to the limited nature of the Criminal Code in
dealing with corruption, it was replaced by the Criminal Justice (Miscellaneous Provision) Decree
in 1966. In 1975, the Corrupt Practices Decree No.38 of 1975 was enacted to deal with corruption.
These provisions, however, failed to curb corruption, and little success was recorded in the fight
against corrupt practices. On return to civilian rule in 1979, the various military decrees dealing
with corrupt practices were replaced with a Code of Conduct and these were enshrined in the 1979
Constitution to address the major problems arising from the unprincipled government sectors. The
review of the Laws of the Federation from 1990 to 2006 showed that 11 different Acts were enacted
after independence for the purpose of combating corruption-related practices in Nigeria. The
plethora of laws seems to have failed to control or reduce corrupt practices. A renewed effort to
stamp out corruption was made in the year 2000 by then President Chief Olusegun Obasanjo. He set
98Prem Sikka, ‘Smoke andMirrors: Corporate Social Responsibility andTax Avoidance’(supra).
99Olatunde Julius Otusanya, ‘Corruption as An Obstacle to development in developing countries: a review of literature’ (2011) 14(4) Journal of
Money LaunderingControl 387.
100 World Bank, Stolen Asset Recovery (STAR) Initiative: Challenges, Opportunities and Action Plan, World Bank (2007)
<http://siteresources.worldbank.org/NEWS/Resources/Star-rep-full.pdf> accessed25 March2015.

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up the Independent Corrupt Practices and Other Related Offences Commission (ICPC) chaired by a
retired judge and in 2004 the Economic and Financial Crimes Commission (EFCC) was established
to investigate and prosecute cases of corrupt and other anti-social practices. This institution was
complemented by other structures, such as the Budget Monitoring and Price Intelligence Unit
(BMPIU) and the principle of ‘due process’. Despite the positive nature of these developments, and
subsequent arrest and indictments, it has been argued that too many high-ranking officials were
either not prosecuted or were merely fired.101
Furthermore, it has been argued that MNCs through their activities can improve economic growth.
This is because its actions can affect the economy and its host community. It is surprising that both
the EFCC102 and ICPC103 Acts have not recorded any successful case for corporate officers and
MNCs even though there are penalties stipulated in those Acts that MNCs can be indicted for.
2.9. Controlling Multinationals under Host State Law: Possibilities in Nigeria.
Controlling MNCs in Nigeria can be better managed if challenges such as its laws on stakeholder
protection are revised by having a specific law for CSR. Also, MNCs should improve
communications with host communities and find ways to engage in community capacity building.
Corruption is the consequence of the problems Nigeria has and not the cause of her problem. The
causes of desperation and vulnerability lie in the very lack of infrastructure. Hence, there is a need
for more developmental oriented investment by both the government and the private sector to make
life more meaningful and bearable for people is the better way to tackle corruption.
101Tekena N Tamuno and William D Graf, ‘The Nigerian State:Political Economy, State Class andPolitical System in the Post-Colonial Era’ (1992)
62(3) Africa: Journal of theInternational African Institute450.
102EconomicandFinancial Crimes Commission(Establishment)Act, 2004, s. 18.
103Corrupt Practices andOtherRelatedOffences Act, 2000,ss. 8, 20 and66.

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Oil production does generate significant wealth in Nigeria. However, this wealth is not distributed
equitably. The federal government owns the mineral resources in Nigeria and as a result, Nigerian
landowners do not directly benefit from oil development. Rather, the federal government receives
all oil revenues and then distributes a portion of those revenues to state and local governments, to
make matters worse; corruption within the federal government prevents state and local governments
from getting their fair share. According to a recent Nigerian government report, government
corruption has cost Nigeria $35 billion over the past 10 years.104
While the current administration is actively fighting corruption, according to Transparency
International, in 2012, Nigeria was still the thirty-fifth most corrupt country in the world.
Corruption still harms Nigerians because it ensures that Nigerians do not benefit from oil
production. In addition, government corruption is positively correlated with economic inequality
and Nigeria measures high on inequality indexes. In 2001, the World Bank estimated that over
seventy percent of Nigerians live on less than one dollar per day and according to the United
Nations Development Program, the average quality of life has actually decreased since oil was
discovered. Over the past decade, the Nigerian government has continued to promote an end to
natural gas flaring.105 However, because the Nigerian government has failed to provide either
monetary support or an enforcement mechanism, the government’s words and promises have led to
few concrete results. For example, the Nigerian government set December 31, 2008 as a deadline by
which to end flaring, but the deadline passed and flaring continues. In 2009, the Nigerian
government developed a Gas Master Plan that promotes gas-fired power plants to help reduce
flaring and provide electricity generation, but progress is limited. Most recently, the Nigerian
legislature is debating another bill, the Petroleum Industry Bill, which is designed to reform the
104Olufemi Amao,’ Corporate Social Responsibility, Multinational Corporations and the Law in Nigeria: Controlling Multinationals in Host States’
(2008)52(1)Journal of AfricanLaw95.
105Malumfashi Garba, ‘Phase-out of Gas Flaring in Nigeria by 2008: The prospects of multi-win project’ (2007) 4(2) Nigerian Gas FlaringPetroleum
Journal 2.

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entire oil and natural gas sector and the deadline to eliminate unnecessary flaring was extended to
December 2012.
There are several MNCs operating in Nigeria and specifically as of 2008, Anglo Dutch Royal Shell
(“Shell”) controlled over forty percent of Nigeria’s oil production. Two U.S. corporations,
ExxonMobil and Chevron/Texaco, controlled approximately thirty-eight percent of Nigeria’s oil
production. Some additional U.S. corporations producing oil in Nigeria are Ashland, Sun Oil, and
ConocoPhillips etc. Finally, France’s Total, Italy’s Agip International, Norway’s Statoil, and South
Africa’s Sasol also produce oil in Nigeria.106 Due to the inadequate regulatory framework and the
inability of the judiciary to make an impact, these MNCs have been left to control flaring
voluntarily. Moreover, to date, this has been unsuccessful. CSR programs in Nigeria have
historically focused on improving communities, mainly through cash payments, and not on
improving the communication between the MNCs and the communities. Moir opined that, in the
debate on stakeholder protection it would be necessary to examine corporate communication.107
Corporations can and should, attribute legitimacy to their own impacted stakeholders and their
claims.108 Nonetheless, in an increasingly, global society characterised by interdependencies and
interconnectedness, those claims begin to merge and many of those concerns affect us all.
2.10. Summary
The main aim of this chapter is to highlight the legal framework of Nigeria, how it protects the local
community and its environment from MNCs doing business in Nigeria. Since Nigeria is rich in
petroleum and it is its main source of revenue. It has been posited that MNCs have embarked on
different CSR initiatives as part of their business strategies but have struggled to implement them in
Nigeria because of lack of legal infrastructure and need for earning extra revenue. Also, it has been
106KennethOmeje, Highstakes andstakeholders: oilconflict and security in Nigeria (AshgatePublishingLtd, 2006)40.
107Olufemi Amao (n 14) 79.
108Istemi Demirag(Ed.), Corporate Social Responsibility, Accountability and Governance: Global Perspectives (GreenleafPublishing2005) 122.

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posited that the government of Nigeria is trying its best to adopt different policies in order to stop
corruption and protect its local community from the exploitation of foreign multinational companies.
In some cases there are too many laws or provisions that are poorly implemented with flaws in them
which make MNCs take advantage of them by not paying taxes and other benefits to the host
country which they are obliged to.
Chapter 3: Stakeholder Interest & The Law: How Should The Law Respond to the
Stakeholder Concept?
3.1.Stakeholder interest in the context of developing countries.
Stakeholder interest in developing countries is a critical area of scholarly enquiry, driven by the
legacy of colonialism and apartheid, the human needs of the continent in the face of widespread
poverty, and the trend towards improved social responsibility by multinationals in a globalising
economy.109 Despite this growing importance, very little research has been done on stakeholder
interest in developing countries. In most countries, laws and regulations are enforced on MNCs in
part by market regulators in part by courts and in part by market participants themselves. Mark Roe
believes that political conditions affect whether ownership of MNCs can easily separate from
control.110 He alleged that, if the political configuration is not conducive, ownership does not
separate from control. Visions of what makes for a good society differ and those differing visions
lead to differing corporate organisation. Hence, the strength of a country’s statutory regime depends
on the cogency of its social democracy.
In Africa for instance, stakeholder interest has its own unique features distinctive from other regions
in the world. Rossouw posited that there are three areas that characterise business ethics in Africa
which are: (1) on the macro level, the influence of Africa’s colonial and neo-colonial past; (2) on
109Wayne Visser, Malcolm McIntosh and Charlotte Middleton (Ed.), Corporate Citizenship in Africa: Lessons from the past; Paths to the future
(Greenleaf Publishing2006) 18.
110Mark Roe (Ed.), Corporate Governance:Political and Legal Perspectives (EdwardElgar Publishing2005)39.

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the meso level, the moral responsibility of business towards the reconstruction of African societies;
(3) on the micro level, the way in which individual racism, sexism and economic exclusion.111
Furthermore, in Nigeria the way in which MNCs have catered for stakeholder interest have evolved
over time. In the past, oil companies approach was to help or appease its host communities
whenever the need arose. More recently, they have adopted a more proactive and thoughtful
approach to community assistance. This initiative has led to the emergence of a community
relations department in these companies. During interviews of senior managers in Nigeria, it was
confirmed that community relations departments were created solely to meet local needs and
situational politics in host communities.112 However, because of weak institutions and insufficient
social provision in developing countries compared to developed countries stakeholder interest may
be more important in the context of the former than the latter.
3.2.Stakeholder Concept and the Law: How Should the Law Respond to the Stakeholder
Concept?
It is evident from the above discussion that stakeholder interests in developing countries are
philanthropic in nature. This has made MNCs engage in charitable activities such as providing
scholarship for residents of its host communities, access to drinking water and other social
amenities that can improve the lives of the people. In Nigeria, the debate whether CSR should be
catered for by law or one that should be left to individuals and organisations has long been disputed.
This is because law is a coercive order seeking to bring about a specific mode of human conduct
through sanctions or fines while morality is a persuasive system appealing to one’s conscience. This
debate which can be traced back to the 1920s between Professors Berle and Dodd is premised on
the argument whether CSR should be made mandatory by law or left voluntary at the discretion of
111Gedeon Rossouw, ‘Out of Africa: An Introduction’ (2000)9(4) Business Ethics: A EuropeanReview225-228.
112 Gabriel Eweje, ‘Multinational Oil Companies, CSR Initiatives in Nigeria. The scepticism of stakeholders in host communities’ (2007) 49
International Journal ofLawandManagement 225.