Regulating Multinational Corporations — Trends, Challenges and Opportunities

In prior work, I suggested the way in which private enterprises have been developing coherent systems of governance that draw on but are autonomous of law and state based legal systems. In this essay I suggest the challenges to the erection of a similar coherent system of legal regulation by or through states. This essay has two objectives. The first is to examine the difficulties of current approaches to use law and legal frameworks to manage MNEs through law. The second is to examine the way that current contradictions impede efforts act developing coherent regulatory models and on that basis to sketch out alternatives beyond the quite limited and repetitive discursive approaches to the regulations of MNEs through law. The fundamental impediment to the legal regulation of the MNE, then, may well be the conceptual cage within which this use of regulation is constrained. As long as the “problem” of MNEs is understood as an institutional problem, that is as a problem of managing something that can be conceived at some level of generality as an institution, an appropriate regulatory response will be elusive. And it will be elusive precisely because the object of regulation cannot focus on the regulation of an object (the MNE as enterprise), but the management of a system (production chains beyond and within the state). For that enterprise, the traditional tools available to states and exercised on “things” will continue to increasingly elaborate legal interventions produce failure