de Red. Stiri HotNews.ro
Restrictiile de munca pentru cetatenii romani si bulgari se extind pana la sfarsitul anului 2013, a anuntat miercuri ministrul britanic al Imigratiei, Damian Green, citat de un comunicat al Ambasadei UK la Bucuresti. Cetatenii romani si bulgari care intentioneaza sa munceasca in Marea Britanie vor trebui, ca si pana acum, sa obtina in prealabil un permis de munca de la Agentia britanica pentru Frontiera (UK Border Agency).
Declaratia ministrului britanic pentru Imigratie, Damian Green:
Prin mentinerea restrictiilor dorim sa ne asiguram ca migratia aduce beneficii Regatului Unit si nu are un impact negativ asupra pietei britanice a muncii. Guvernul reformeaza radical sistemul de imigratie; a anuntat deja plafonul anual pentru vize de munca si noi reguli stricte pentru studenti, astfel incat migratia neta sa fie redusa de la sute de mii la zeci de mii.
Comitetul de Consiliere privind Migratia (Migration Advisory Committee - MAC) a explicat foarte clar de ce este necesara extinderea restrictiilor deja existente pentru romani si bulgari. De asemenea, Guvernul a specificat ca va impune controale in ceea ce priveste accesul la piata britanica a muncii pentru cetatenii tuturor eventualelor noi state membre ale Uniunii Europe.
Un raport recent al organismului independent Comitetul de Consiliere privind Migratia (Migration Advisory Committee - MAC) a analizat impactul pe care eliminarea restrictiilor l-ar avea asupra pietei britanice a muncii. Potrivit Ambasadei UK la Bucuresti, concluzia raportului a fost ca ridicarea restrictiilor actuale ar conduce la cresterea numarului de romani si bulgari care vin la munca in Marea Britanie. Acest lucru ar fi valabil in special in sectoarele unde se cauta forta de munca necalificata si unde exista un risc mai mare ca muncitorii rezidenti si salariile sa fie afectate.
Restrictiile de munca pentru romani si bulgari sunt in vigoare de la 1 ianuarie 2007. Acestea reglementeaza accesul la locuri de munca pentru care este nevoie de calificare sau care sunt in sectoare confruntate cu un deficit de forta de munca.
Muncitorii din Romania si Bulgaria au acces la locuri de munca in agricultura sezoniera, in cadrul programului Seasonal Agricultural Workers Scheme (SAWS). Cota anuala pentru acest program va continua sa fie de 21.250 locuri in 2012 si 2013, iar cota anuala pentru programul sectorial Sectors Based Scheme (SBS) va continua sa fie de 3.500 de locuri in 2012 si 2013.
Extinderea restrictiilor nu ii afecteaza pe cei care au deja drept de munca in Marea Britanie.
Conform legislatiei europene, actualele restrictii nu pot continua dupa sfarsitul anului 2013 si, in consecinta, vor fi ridicate in acel moment.
http://www.hotnews.ro/stiri-esential-10768031-ambasada-marea-britanie-mentine-restrictiile-munca-pentru-romani-bulgari.htm
Thursday, November 24, 2011
Friday, October 28, 2011
Obţinerea apostilei pentru documente britanice
Ministerul Afacerilor Externe informează cetăţenii români interesaţi că Biroul Legalizări din cadrul Ministerului Afacerilor Externe britanic (Foreign and Commonwealth Office) este singura autoritate britanică competentă să efectueze supralegalizări şi să emită apostilă pentru ca documentele emise de autorităţile acestui stat să poată fi folosite în străinătate.
În prezent, Biroul de Legalizări efectuează serviciul de apostilare pentru persoane fizice numai prin poştă la adresa:
The Legalisation Office
Norfolk House West
437 Silbury Boulevard
Milton Keynes
MK9 2AH
Fiecare solicitant are posibilitatea să completeze formularul de cerere şi să îl transmită la adresa sus-menţionată împreună cu documentele pentru care se solicită legalizarea.
Cererile de apostilare pot fi transmise inclusiv din străinătate, cetăţenii români având această posibilitate dacă din anumite motive nu au reuşit să îşi apostileze documentele pe perioada şederii în Marea Britanie. În acest sens, MAE recomandă cetăţenilor români să se adreseze, în nume personal, Ministerului Afacerilor Externe britanic în conformitate cu procedura descrisă la adresa următoare: http://www.fco.gov.uk/en/about-us/what-we-do/services-we-deliver/legal-services/Legalisation/030-Links/010-How-to-apply - trebuie completat formularul/cererea şi achitată taxa de 30£ (prin mijloace electronice – virament bancar).
Atenţie! Pentru reducerea timpului de aşteptare, cetăţenii români trebuie să se adreseze direct Biroului Legalizări din cadrul Ministerului Afacerilor Externe britanic. În acest sens, cetăţenii români sunt sfătuiţi să nu transmită actele, pentru intermediere, la Secţia Consulară a Ambasadei României la Londra.
Informaţii complete cu privire la noul serviciu poştal pot fi regăsite pe pagina web a Biroului legalizări din cadrul Ministerului Afacerilor Externe britanic: www.fco.gov.uk/Legalisation
Informaţii suplimentare
De ce este nevoie de apostilă şi ce este aceasta?
Pentru ca documentele sau actele emise de autorităţile britanice să fie recunoscute formal (sub aspectul autenticităţii) de autorităţile din România, precum şi de autorităţile altor state părţi la Convenţia de la Haga din 1961, pentru a produce efecte pe teritoriul acestora este necesară forma simplificată de supralegalizare pe care o reprezintă apostila.
În situaţia actelor emise de autorităţile din teritoriile britanice cu statut special (ex. Isle of Man, Isle of Jersey, Guernsey) sau din teritoriile britanice de peste mări (overseas territories – ex. Bermuda), aplicarea Apostilei Convenţiei de la Haga de către FCO se va face după ce semnăturile existente pe actele respective au fost confirmate/ legalizate de către autorităţile locale.
Cristina-Narcisa Nita
First Secretary
Media, PR & Politics
Embassy of Romania in the UK
Arundel House
4 Palace Green
London W8 4QD
Tel.: 0044 20 7937 8125
Fax: 0044 20 7937 8069
Mobile : 0044 75 00 55 88 44
e-mail: press@roemb.co.uk
www.london.mae.ro
În prezent, Biroul de Legalizări efectuează serviciul de apostilare pentru persoane fizice numai prin poştă la adresa:
The Legalisation Office
Norfolk House West
437 Silbury Boulevard
Milton Keynes
MK9 2AH
Fiecare solicitant are posibilitatea să completeze formularul de cerere şi să îl transmită la adresa sus-menţionată împreună cu documentele pentru care se solicită legalizarea.
Cererile de apostilare pot fi transmise inclusiv din străinătate, cetăţenii români având această posibilitate dacă din anumite motive nu au reuşit să îşi apostileze documentele pe perioada şederii în Marea Britanie. În acest sens, MAE recomandă cetăţenilor români să se adreseze, în nume personal, Ministerului Afacerilor Externe britanic în conformitate cu procedura descrisă la adresa următoare: http://www.fco.gov.uk/en/about-us/what-we-do/services-we-deliver/legal-services/Legalisation/030-Links/010-How-to-apply - trebuie completat formularul/cererea şi achitată taxa de 30£ (prin mijloace electronice – virament bancar).
Atenţie! Pentru reducerea timpului de aşteptare, cetăţenii români trebuie să se adreseze direct Biroului Legalizări din cadrul Ministerului Afacerilor Externe britanic. În acest sens, cetăţenii români sunt sfătuiţi să nu transmită actele, pentru intermediere, la Secţia Consulară a Ambasadei României la Londra.
Informaţii complete cu privire la noul serviciu poştal pot fi regăsite pe pagina web a Biroului legalizări din cadrul Ministerului Afacerilor Externe britanic: www.fco.gov.uk/Legalisation
Informaţii suplimentare
De ce este nevoie de apostilă şi ce este aceasta?
Pentru ca documentele sau actele emise de autorităţile britanice să fie recunoscute formal (sub aspectul autenticităţii) de autorităţile din România, precum şi de autorităţile altor state părţi la Convenţia de la Haga din 1961, pentru a produce efecte pe teritoriul acestora este necesară forma simplificată de supralegalizare pe care o reprezintă apostila.
În situaţia actelor emise de autorităţile din teritoriile britanice cu statut special (ex. Isle of Man, Isle of Jersey, Guernsey) sau din teritoriile britanice de peste mări (overseas territories – ex. Bermuda), aplicarea Apostilei Convenţiei de la Haga de către FCO se va face după ce semnăturile existente pe actele respective au fost confirmate/ legalizate de către autorităţile locale.
Cristina-Narcisa Nita
First Secretary
Media, PR & Politics
Embassy of Romania in the UK
Arundel House
4 Palace Green
London W8 4QD
Tel.: 0044 20 7937 8125
Fax: 0044 20 7937 8069
Mobile : 0044 75 00 55 88 44
e-mail: press@roemb.co.uk
www.london.mae.ro
Actiune in justitie- UK
Una dintre primele și principalele îngrijorări cu care se confruntă oricine dorește să inițieze o acțiune în justiție împotriva unei alte persoane sau instituții este legată de întrebarea: cum va plăti pentru aceasta? În ghidul care urmează vă vom explica principalele șase modalități prin care poate fi finanțată acțiunea în justiție.
Sistemul juridic al Angliei și Țării Galilor a permis pentru mult timp posibilitatea de a începe acțiuni în justiție fără vreun cost, de când Legea privind Accesul la Justiție din 1999 a extins raza de acțiune a acordurilor de plată condiționată ”conditional fee agreements”. Acestea au devenit cunoscute în limbaj popular drept ”no win no fee”, ceea ce înseamnă că dacă nu câștigați, atunci nu aveți nimic de plătit (cu condiția să fi respectat termenii acordului).
Acordurile de Plată Condiționată sunt probabil cele mai complexe dintre cele șase modalități de finanțare, dar fără îndoială cele mai atractive pentru majoritatea oamenilor. De aceea vom acoperi în trecere celelalte cinci metode înainte de a discuta despre Acordurile de Plată Condiționată (CFA). Rețineți că Acordurile de Plată Condiționată sunt disponibile numai în litigii, în cazul în care dați în judecată o persoană la tribunal. Pentru multe domenii, așa cum am menționat anterior, Acordurile de Plată Condiționată nu sunt valabile.
Indiferent de metoda de finanțare pe care o alegeți, principiul general în disputele în justiție este că cel care pierde plătește cheltuielile celui care a câștigat. De aceea, dacă câștigați, oponentul dvs. are de plătit o dublă factură – atât suma solicitată de dvs. cât și cheltuielile dvs. de judecată.
Plată onorariu (privat). Aceasta înseamnă că plătiți un onorariu direct avocatului. Dacă o să câștigați, nu îl puteți cere înapoi, însă dacă pierdeți trebuie să plătiți și cheltuielile celeilalte părți. Nu în mod surprinzător aceasta este cea mai puțin populară metodă de finanțare a acțiunilor în justiție. Cu toate acestea, este deseori singura opțiune atunci când Acordul de Plată Condiționată nu este disponibil. Așa cum vom vedea în câteva paragrafe, ruta Acordurilor de Plată Condiționată, în timp ce este cea mai atractivă pentru consumatori, poartă cele mai multe riscuri pentru avocați întrucât vor rămâne neplătiți dacă pierd cazul. De aceea, avocații vor efectua o ”analiză de risc” înainte de a se oferi să preia cazul pe baza unui Acord de Plată Condiționată. Aceștia analizează circumstanțele cererii, probabilitatea de a câștiga, realizează o estimare de cost și evaluează care este probabilitatea ca ei să-și recupereze atât cheltuielile cât și un ”onorariu de succes” de la cealaltă parte. Dacă riscul rezultat este prea mare, din păcate vă vor informa că pot accepta cazul numai cu plata unui onorariu. Acest lucru nu trebuie luat personal – nu este vorba de mai mult decât o evaluare profesională a diferiți factori.
Asigurare cheltuieli de judecată (cunoscută și sub numele de ”Before the Event” - Inainte de Eveniment). Multe polițe de asigurare, inclusiv auto, de locuință și pentru carduri de credit acoperă cheltuielile de judecată. Acestea sunt deseori limitate la anumite tipuri de cereri, însă dacă aveți o asemenea asigurare ar trebui să o folosiți întrucât este deja plătită, însă atenție – nu trebuie să folosiți avocații numiți de firma asiguratoare. Legislația europeană prevede în mod clar că aveți dreptul de a vă alege propriul avocat.
Membru de sindicat. Dacă sunteți membrul unui sindicat și plătiți o cotizație, atunci acesta de obicei vă va oferi consiliere juridică gratuită, și ar putea finanța acțiunea în judecată. De obicei sindicatele au parteneri juridici preselectați și insistă în utilizarea acestora la formularea acțiunii în judecată. Din nou, nu trebuie să folosiți avocații numiți de acestea. Legislația europeană prevede în mod clar că aveți dreptul de a vă alege propriul avocat.
Asistență juridică gratuită. Acesta este cazul în care cheltuielile dvs. de judecată vă sunt plătite de stat prin intermediul Comisiei de Servicii Juridice. Trebuie să vă încadrați în anumite criterii de venit și asistența gratuită nu este disponibilă pentru cererile de despăgubire pentru vătămare corporală (altele decât cele de neglijență medicală). De asemenea, mulți avocați nu acceptă să-și ofere serviciile pe această bază.
Onorariul de succes. Este situația în care avocatul dvs. este de acord să nu ceară un onorariu, însă în schimb primește o parte din suma obținută de dvs., dacă o să câștigați. Suma maximă cu care vă poate taxa este de 35% din totalul care vi s-a acordat. Onorariul de succes este foarte întâlnit în litigiile de muncă. În acest moment acesta nu este posibil în cazul cererilor pentru vătămare corporală, deși guvernul efectuează modificări pentru a permite acest lucru – acestea sunt schimbări semnificative ale sistemului juridic și vă vom ține la curent cu modificările.
Acorduri de Plată Condiționată (CFA). Un comunicat de presă al ministrului de finanțe din momentul intrării în vigoare a Legii privind Accesul la Justiție din 1999 arată că aranjamentele de plată condiționată extind accesul la justiție prin garantarea faptului că cheltuielile pentru procedurile de judecată sunt suportate de aceia care cauzează nevoia de litigii și garantând că orice sumă acordată de instanță este păstrată de persoana căreia i s-a acordat (prevenind avocații să-și ia o parte).
Pe scurt, un Acord de Plată Condiționată funcționează astfel:
• Avocatul nu vă taxează pentru timpul său. Acesta plătește pentru costurile care derivă din cazul dvs. din propriile fonduri, având grijă să le solicite de la oponentul dvs. în cazul în care câștigă procesul.
• Avocatul încheie o asigurare pentru plata cheltuielilor de judecată în favoarea dvs., numită ”After the Event” (După Eveniment) sau asigurare ATE. Aceasta acoperă cheltuielile de judecată ale oponentului dvs. și plățile dvs. proprii în cazul în care pierdeți procesul.
• Dacă veți câștiga, atunci avocatul dvs. va recupera de la oponentul dvs. trei tipuri diferite de sume:
suma care vi s-a acordat de instanță – pe care trebuie să o păstrați 100%;
cheltuielile pe care le-a susținut pe timpul procesului dvs. inclusiv costul asigurării ATE, și un onorariu pentru timpul dedicat;
un ”onorariu de succes”, exprimat într-un procent din onorariul pentru timpul dedicat și niciodată mai mult de 100%;
”Onorariul de succes” este un concept foarte interesant –guvernul a anunțat pe 29 martie că ar putea încerca să-l elimine (acesta este un subiect masiv de dezbatere și unul pe care îl vom acoperi din nou). În orice caz, va rămâne în vigoare o vreme – probabil cel puțin un an – așa că merită înțeles ce înseamnă. În esență prin onorariu de succes se înțelege că avocații vor câștiga unele procese iar pe altele le vor pierde. Onorariile de succes obținute în urma proceselor câștigate le permite să-și acopere pierderile avute în alte cazuri. Din punct de vedere tehnic, persoana care face cererea pentru plată este responsabilă pentru plata onorariului de succes, cu toate acestea onorariul este de obicei plătit de partea care pierde.
Tocmai din acest motiv, de obicei cealaltă parte va face o ofertă pentru soluționarea cazului înainte de a ajunge în instanță. În acest caz onorariul de succes va fi mai mic de 100%. Majoritatea onorariilor de succes sunt prestabilite de regulamentele instanțelor în funcția de cererea de plată care se efectuează.
Cu privire la costurile de bază pentru cazul dvs., dacă câștigați, acestea sunt de obicei plătite de cealaltă parte, cu toate acestea, dacă cealaltă parte consideră că sunt prea mari, instanța poate decide ca partea să nu plătească întreaga sumă. Dacă se întâmplă acest lucru, este posibil să trebuiască să plătiți diferența din suma care vi s-a acordat.
Uneori, un avocat poate fi de acord să vă taxeze numai pe dvs. indiferent de ceea ce obțineți de la cealaltă parte. Dacă este cazul, acest lucru trebuie specificat în acord.
În funcție de circumstanțe, și de înțelegerea pe care o aveți cu avocatul dvs., este posibil de asemenea să aveți sume de plătit dacă:
Avocatul dvs. vă recomandă să renunțați la proces și dvs. refuzați
Refuzați soluționarea cazului în afara instanței deși avocatul vă recomandă acest lucru • Cădeți de acord să soluționați cazul în afara instanței contrar recomandării avocatului • Refuzați să colaborați cu avocatul în vreun fel
Instanța dispune ca cealaltă parte să plătească dar aceasta nu-și poate permite
Poate fi foarte descurajant să vedeți în Acordul de Plată Condiționată care vi se cere să-l semnați, numeroase exemple de situații precum cele de mai sus în care ați putea fi răspunzător de plata costurilor. În orice caz, dacă angajați un avocat pe baza unui Acord de Plată Condiționată, trebuie să fiți conștient că avocatul nu-și va începe munca până nu va primi Acordul de Plată Condiționată semnat de dvs. În realitate, atât timp cât țineți cont de sfaturile avocatului dvs., este foarte puțin probabil să trebuiască să plătiți vreo sumă – din punct de vedere tehnic este posibil, însă puțini avocați vor dori să aibă reputația că-și taxează în mod incorect clienții în cadrul unui Acord de Plată Condiționată.
Sursa:
din: Ziarul Romanesc 27 oct 2011
Echipa Hamilton Brady
Sistemul juridic al Angliei și Țării Galilor a permis pentru mult timp posibilitatea de a începe acțiuni în justiție fără vreun cost, de când Legea privind Accesul la Justiție din 1999 a extins raza de acțiune a acordurilor de plată condiționată ”conditional fee agreements”. Acestea au devenit cunoscute în limbaj popular drept ”no win no fee”, ceea ce înseamnă că dacă nu câștigați, atunci nu aveți nimic de plătit (cu condiția să fi respectat termenii acordului).
Acordurile de Plată Condiționată sunt probabil cele mai complexe dintre cele șase modalități de finanțare, dar fără îndoială cele mai atractive pentru majoritatea oamenilor. De aceea vom acoperi în trecere celelalte cinci metode înainte de a discuta despre Acordurile de Plată Condiționată (CFA). Rețineți că Acordurile de Plată Condiționată sunt disponibile numai în litigii, în cazul în care dați în judecată o persoană la tribunal. Pentru multe domenii, așa cum am menționat anterior, Acordurile de Plată Condiționată nu sunt valabile.
Indiferent de metoda de finanțare pe care o alegeți, principiul general în disputele în justiție este că cel care pierde plătește cheltuielile celui care a câștigat. De aceea, dacă câștigați, oponentul dvs. are de plătit o dublă factură – atât suma solicitată de dvs. cât și cheltuielile dvs. de judecată.
Plată onorariu (privat). Aceasta înseamnă că plătiți un onorariu direct avocatului. Dacă o să câștigați, nu îl puteți cere înapoi, însă dacă pierdeți trebuie să plătiți și cheltuielile celeilalte părți. Nu în mod surprinzător aceasta este cea mai puțin populară metodă de finanțare a acțiunilor în justiție. Cu toate acestea, este deseori singura opțiune atunci când Acordul de Plată Condiționată nu este disponibil. Așa cum vom vedea în câteva paragrafe, ruta Acordurilor de Plată Condiționată, în timp ce este cea mai atractivă pentru consumatori, poartă cele mai multe riscuri pentru avocați întrucât vor rămâne neplătiți dacă pierd cazul. De aceea, avocații vor efectua o ”analiză de risc” înainte de a se oferi să preia cazul pe baza unui Acord de Plată Condiționată. Aceștia analizează circumstanțele cererii, probabilitatea de a câștiga, realizează o estimare de cost și evaluează care este probabilitatea ca ei să-și recupereze atât cheltuielile cât și un ”onorariu de succes” de la cealaltă parte. Dacă riscul rezultat este prea mare, din păcate vă vor informa că pot accepta cazul numai cu plata unui onorariu. Acest lucru nu trebuie luat personal – nu este vorba de mai mult decât o evaluare profesională a diferiți factori.
Asigurare cheltuieli de judecată (cunoscută și sub numele de ”Before the Event” - Inainte de Eveniment). Multe polițe de asigurare, inclusiv auto, de locuință și pentru carduri de credit acoperă cheltuielile de judecată. Acestea sunt deseori limitate la anumite tipuri de cereri, însă dacă aveți o asemenea asigurare ar trebui să o folosiți întrucât este deja plătită, însă atenție – nu trebuie să folosiți avocații numiți de firma asiguratoare. Legislația europeană prevede în mod clar că aveți dreptul de a vă alege propriul avocat.
Membru de sindicat. Dacă sunteți membrul unui sindicat și plătiți o cotizație, atunci acesta de obicei vă va oferi consiliere juridică gratuită, și ar putea finanța acțiunea în judecată. De obicei sindicatele au parteneri juridici preselectați și insistă în utilizarea acestora la formularea acțiunii în judecată. Din nou, nu trebuie să folosiți avocații numiți de acestea. Legislația europeană prevede în mod clar că aveți dreptul de a vă alege propriul avocat.
Asistență juridică gratuită. Acesta este cazul în care cheltuielile dvs. de judecată vă sunt plătite de stat prin intermediul Comisiei de Servicii Juridice. Trebuie să vă încadrați în anumite criterii de venit și asistența gratuită nu este disponibilă pentru cererile de despăgubire pentru vătămare corporală (altele decât cele de neglijență medicală). De asemenea, mulți avocați nu acceptă să-și ofere serviciile pe această bază.
Onorariul de succes. Este situația în care avocatul dvs. este de acord să nu ceară un onorariu, însă în schimb primește o parte din suma obținută de dvs., dacă o să câștigați. Suma maximă cu care vă poate taxa este de 35% din totalul care vi s-a acordat. Onorariul de succes este foarte întâlnit în litigiile de muncă. În acest moment acesta nu este posibil în cazul cererilor pentru vătămare corporală, deși guvernul efectuează modificări pentru a permite acest lucru – acestea sunt schimbări semnificative ale sistemului juridic și vă vom ține la curent cu modificările.
Acorduri de Plată Condiționată (CFA). Un comunicat de presă al ministrului de finanțe din momentul intrării în vigoare a Legii privind Accesul la Justiție din 1999 arată că aranjamentele de plată condiționată extind accesul la justiție prin garantarea faptului că cheltuielile pentru procedurile de judecată sunt suportate de aceia care cauzează nevoia de litigii și garantând că orice sumă acordată de instanță este păstrată de persoana căreia i s-a acordat (prevenind avocații să-și ia o parte).
Pe scurt, un Acord de Plată Condiționată funcționează astfel:
• Avocatul nu vă taxează pentru timpul său. Acesta plătește pentru costurile care derivă din cazul dvs. din propriile fonduri, având grijă să le solicite de la oponentul dvs. în cazul în care câștigă procesul.
• Avocatul încheie o asigurare pentru plata cheltuielilor de judecată în favoarea dvs., numită ”After the Event” (După Eveniment) sau asigurare ATE. Aceasta acoperă cheltuielile de judecată ale oponentului dvs. și plățile dvs. proprii în cazul în care pierdeți procesul.
• Dacă veți câștiga, atunci avocatul dvs. va recupera de la oponentul dvs. trei tipuri diferite de sume:
suma care vi s-a acordat de instanță – pe care trebuie să o păstrați 100%;
cheltuielile pe care le-a susținut pe timpul procesului dvs. inclusiv costul asigurării ATE, și un onorariu pentru timpul dedicat;
un ”onorariu de succes”, exprimat într-un procent din onorariul pentru timpul dedicat și niciodată mai mult de 100%;
”Onorariul de succes” este un concept foarte interesant –guvernul a anunțat pe 29 martie că ar putea încerca să-l elimine (acesta este un subiect masiv de dezbatere și unul pe care îl vom acoperi din nou). În orice caz, va rămâne în vigoare o vreme – probabil cel puțin un an – așa că merită înțeles ce înseamnă. În esență prin onorariu de succes se înțelege că avocații vor câștiga unele procese iar pe altele le vor pierde. Onorariile de succes obținute în urma proceselor câștigate le permite să-și acopere pierderile avute în alte cazuri. Din punct de vedere tehnic, persoana care face cererea pentru plată este responsabilă pentru plata onorariului de succes, cu toate acestea onorariul este de obicei plătit de partea care pierde.
Tocmai din acest motiv, de obicei cealaltă parte va face o ofertă pentru soluționarea cazului înainte de a ajunge în instanță. În acest caz onorariul de succes va fi mai mic de 100%. Majoritatea onorariilor de succes sunt prestabilite de regulamentele instanțelor în funcția de cererea de plată care se efectuează.
Cu privire la costurile de bază pentru cazul dvs., dacă câștigați, acestea sunt de obicei plătite de cealaltă parte, cu toate acestea, dacă cealaltă parte consideră că sunt prea mari, instanța poate decide ca partea să nu plătească întreaga sumă. Dacă se întâmplă acest lucru, este posibil să trebuiască să plătiți diferența din suma care vi s-a acordat.
Uneori, un avocat poate fi de acord să vă taxeze numai pe dvs. indiferent de ceea ce obțineți de la cealaltă parte. Dacă este cazul, acest lucru trebuie specificat în acord.
În funcție de circumstanțe, și de înțelegerea pe care o aveți cu avocatul dvs., este posibil de asemenea să aveți sume de plătit dacă:
Avocatul dvs. vă recomandă să renunțați la proces și dvs. refuzați
Refuzați soluționarea cazului în afara instanței deși avocatul vă recomandă acest lucru • Cădeți de acord să soluționați cazul în afara instanței contrar recomandării avocatului • Refuzați să colaborați cu avocatul în vreun fel
Instanța dispune ca cealaltă parte să plătească dar aceasta nu-și poate permite
Poate fi foarte descurajant să vedeți în Acordul de Plată Condiționată care vi se cere să-l semnați, numeroase exemple de situații precum cele de mai sus în care ați putea fi răspunzător de plata costurilor. În orice caz, dacă angajați un avocat pe baza unui Acord de Plată Condiționată, trebuie să fiți conștient că avocatul nu-și va începe munca până nu va primi Acordul de Plată Condiționată semnat de dvs. În realitate, atât timp cât țineți cont de sfaturile avocatului dvs., este foarte puțin probabil să trebuiască să plătiți vreo sumă – din punct de vedere tehnic este posibil, însă puțini avocați vor dori să aibă reputația că-și taxează în mod incorect clienții în cadrul unui Acord de Plată Condiționată.
Sursa:
din: Ziarul Romanesc 27 oct 2011
Echipa Hamilton Brady
Wednesday, September 14, 2011
Common Law
Globalisation
BACK
‘MNEs are the great beneficiaries of globalisation, enjoying all of its advantages but suffering none of its negative externalities. They sail between private and public law regulation, unassailable and largely unaccountable’.
Discussion, highlighting the main characteristics of existing regulation and proposals for improvement.
A discussion upon the multinationals’(MNCs) activities and their legality could be considered unsatisfactory if it resumes to the classical already accusations brought to them that they are the globalisation’s first beneficiaries by far and that their legal situation couldn’t be clearly determined whether under a regime or another- public or private , instead the discussion should be also on the advantages they bring to the economies and their legal frame having enough fairness. For a better approach most proper would be a close analysis of each word in part that brings a ‘truth’ at first sight and a real accusation without doubts behind it, when instead the researches have sometimes the lacks inherent of not being able to cover all the reality.
The negative effects of multinational companies …encounter issues such as (the accusation that) they are leaving the developing countries out in the cold and secondly effects on labour market that are noticed not just in least developed countries (LDCs) but also in the most developed ones. Thirdly, the freedom of these powerful poles will neglect the outcomes such as polluting the environment and the crisis in financial sectors with creating instability. (1)
As Jonathon Porritt noticed in ‘Capitalism as if the world matters’ the international trade and foreign direct investments (FDI) having developed on a global basis, the multinationals have been seen on one side as saviours of the global problems including poverty and have been accused as contributors to the things that weren’t sustainable under capitalism (2).
The literature is abundant in positive and negative effects of globalisation but the most significant bring to surface other aspects like the propagation of these effects to three levels : global one, national respectively cultural , and family level and the religious aspect as well, considering the institutional meaning of it as standing in some countries aside the political or legal poles. (3)
There are multiple negative effects in the different categories, emphasizing the one of women as affected directly by the decision making discriminatory process in the companies , or, the effects as seen by the citizens as being just at a superficial level , not a clear awareness induced by the different stages of the ample actions, taken with, say the campaigns around products or trade policies.
In attention of the public is the symbiosis between poverty and globalisation: the beneficiaries of the great opportunities may be related as well with the victims. With basis on the article of Michael R. Anderson (4), the globalisation’s lack in the area of making justice when bad events occur from industrial processes , has the meaning in the institutional frame and lawlessness and the not completely developed constitutional aspect as seen in the modern globalised business world .
The news constantly bring out this connection as a certain effect of globalisation: the UN special rapporteur on the right to food , declared ( 12 december 2008) that ‘current WTO agreements on agriculture treated food like other commodities instead of respecting the human right to food. As a result the number of hungry people had risen to 963 million today from 852 million in 2005’ (5) Same, presently there are 33 countries in need of food aid because of war, floods, crop failures or high domestic food prices.
Indeed the cases of Bhopal or Thor Chemicals are shameful traces in the big steps of globalisation’s development but are in the same way or even more unforgettable, the happenings of today – on the 12th of December 2008 the news revealed the case of Nigerian children poisoned by their own parents with medicines that were counterfeit drugs. These pills were meant to bring a profit to Indian and Chinese companies, of $75 billion in 2010. More than 30 children died because of these drugs and Nigeria is in the frontline in the global fight against them . (6)
The multinationals are not rarely mixing into the states’ economies creating a disequilibrium due to their economic power, competing with more fragile national companies and leading usually in the competition .The actors may change and sometimes are affected the different other categories. Other times , when the companies are in bankrupt they will bring down with them all the boundaries created in long time; in USA , most recently VeraSun Leaves Corn Farmers going through such fall, has affected the many farmers that depended of its activity and there is no way for them to ever get their money as to the contracts so that economy registers a big gap in this sector until things will settle down again and the prices will attain reasonable levels on the market.
Being given the world’s new complex situation meaning the American financial crisis, as in the frame of globalisation , it is worth to remember in this context the way how a recession extends presently affecting the economies and the multinational entities, instruments of global trade . The economists are not surprised by the chain of reactions that propagate in the global stage, from the most important financial poles going to the companies worldwide, and further in the usual way to the lower levels affecting finally the individuals : Walden Bello , founder of the Third World Network said that "given the globalization of national economies over the last two decades, the downturn is going to be a synchronic one, and there is going to be no decoupling of one region from another." (7)
Benefits …are certain for the multinationals and they are the reason for the big investments that are made by them in different countries. The MNEs tend to invest in LDS , developing countries as they furnish them with labour, resources for production and other advantages such as cheaper lands or profitable companies they might buy to extend. The unsaid advantages encounter the poorer legal system that protect them from the whole responsibility if are accusations against them, or even silence. The national
courts of the host countries are certainly slow and giving delayed responses to the requests of the complainers.
Towards regulation, public –private…the negative effects are not a sufficient argument against the MNEs and if once their activity was seen as a way to open the gates to economic development , later the foreign investment was seen as economic imperialism and time showed that attacks against them were in multiple ways such as, in 1950 Galbraith affirmed in ‘The Affluent Society ‘ that commercial exchanges were not effect of consumer’s sovereignty but his enslavement to advertising , and also Galbraith considered that the distinction between public and private was another threat as from the companies, these having sometimes many assets that would seem as of general concern and strong legal basis in both sides, so that they sail between public and private and lean on the both margins with almost an ensured way of keeping the advantages from this position. Therefore his opinion that state ownership included in MNEs assets should be amended by the society .
Further on the governments’ concern should be in avoiding such investments and rather have sufficiency from their own economies. In 1993 The Economist published the information that the biggest 100 multinationals in the world have 50% of the cross border assets, and the 16% from world’s productive assets so that it would be unsure to firmly say that the multinationals are the real governors of production at world’s level and instead we should give enough importance to other factors- the governments and their own assets and legal system that protects all the interests and the general one.
De Sousa Santos in his book ‘Toward a New Legal Common Sense ‘ is making an overview of the infusion of law in society at national and international level (8) and explains how private law is working , in concern of the capitalism , as
complimented by fiscal, monetary and financial measures , into building an autonomous market society.
The private law as the author well points, comes to cover those imperfections resulted from market failures , so that the MNEs have been in this context some of the benefiters of the governments’ policies or the laws in private sector, it regulating for instance the granting of land, the repression or protection of trade unions, granting of patents. In the context of liberal capitalism the society used to have own market regulations and when to answer to questions that arise from powerful industrialisation, the laws had to interfere the same in problems such as poverty, epidemics, unemployment, alcoholism. The legal framework is needed from many practical reasons, including the enforcement of the contracts . The socio-economic life in its entirety needs the guiding legal frame and the state’s intervention in crisis situations and this is made through the private law.
Further the intervention of state in trade has become less visible because of the more growing powerful capitalism and increasing industrialisation. The mix of private and public law was due to the stringent need of rules where the workers’ rights needed protection and were tangent to these the economic law, labour law, social law that have the mixed nature (10). The administrative law and constitutional law became more concerned of the changes that appeared from the multinationals’ activities bringing the new socio-economic rights to life, as a form of human rights, in the constitutions, and also the administrative law has faced the problem of better allocating the resources and the passing was needed from autonomy to decentralisation to can achieve better the new challenge brought by companies’ ownership.
The compromise is a key to better overcome the difficulties of the classic state authority facing the liberal market that demands different approach and cooperation with the multinationals in many aspects. Therefore the laws are more softer and not
tightening the commerce and the multinationals have the position of benefiting from the supletive rules, in the way that they can better negotiate in many issues their own interests without rigidity from the institutions and can sometimes avoid completion of the workers’ rights, and even leading to abuses because of the missing legal control in all areas needed. Is the case of Bhopal, or of Cape plc case (11) showing how a national court couldn’t finally judge a case that was in its own jurisdiction but instead it was judged overseas where the legal system could ensure a better protection of rights.
In Cape plc case, many people in South Africa suffered from asbestos that leads to lung cancer, because of the asbestos mines and millers. The problem existed along many years, since 1893 to 1989 therefore almost a century of exploiting work in doubtful conditions, thing that became more and more clear in the contemporary frame and in UK the first law for asbestos was introduced, and in Africa there were no such rules. In addition, the child labour was ordinary notice and apartheid was also an usual thing in the multinational’s agenda.
The financial crisis couldn’t afford the compensations asked through the courts. The legal aid system was insufficient. As a follow, the London High Court was the one to judge the case in 1997 – it means even more than a century since the problems existed…The company indeed used the host country’s internal legislation fully into its own interest and ignoring the outcomes of its activity.
The way how things evolve quickly explains also the consequences of companies’ activities in people’s lives with sometimes tragic events and nobody to can be clearly blamed in a net of so many participants with a certain amount of responsibility involved. The private law can’t overcome the happenings as shown in Bhopal case, because criminal prosecution of the responsible persons is very hard when multinationals are involved. The international level is usually the first step to can approach these cases
and the national level, as a first step, proved inefficiency, even more in the developing countries with a fragile legal system that is not enough empowered sometimes.
In fact, in Thor Chemicals case, the South Africa courts charged the three managers with culpable homicide, and the fine was of 37,000 $ indeed insufficient thinking at the victims- three workers dead and more other victims, and this after one year from the happenings.
In Cape plc case it was very hard to access the justice and the country was characterised by a crisis in legal aid system. An interesting thing is that Cape plc sought to create the impression that its South African operations were a discrete business run independently by the subsidiaries (12). Cape plc is a company not participant in the UN Global Compact. (13)
In Bhopal case the Indian Government sued the company and rejected the offer of $5 million for the 40,000 victims so far (14) , and finally after 5 years had to pay $470,000 and paid immediately, but the estimated number of victims was of 400,000 (15)
Regarding the national legal system , there is no sufficient basis into creating a source of security to the masses as the main participants in industrial work and they request an improvement in the problem of lawlessness related to poverty, and is not enough in this discussion to encounter the public or private law’s role in the multinationals’ question towards advantageousness but also the judicial problem because the courts ensure the quality of law’s appliance, so that is worthy to mention the need of a legal reform related especially to abuse of power by the companies (16) .
The World Trade Organisation (WTO) requests already the need of reform especially for the environmental protection. Also prima facie a good legal frame is a sign for ensuring the justice in the cases of multinationals but in fact the cases showed that inadequate legal representation was same important as the existence of the law that
protects the right , or the fact that justice delayed is justice denied , or the lack of access to legal information and literacy means only the insufficiency of the presumption that citizens know the laws and in consequence they should know what to do or not do in relation to the multinationals.
Public law instead brings the conventions that are signed by the states hosts or homes of the multinationals and made in a grade responsible , but, not more than the
companies themselves in front of these conventions, as is the case of OECD Guidelines for Multinational Enterprises 1977.
It has the role of providing a wide-ranging social responsibility in : environmental protection, child labour, forced labour, transparency, consumer protection, taxation, transfer of technology. However they will remain as a guidelines with a certain voluntary nature and therefore having no sufficient force to can be defined as a legislative act made for ruling the MNEs’ activity.
The OECD Guidelines states that they are : ‘ companies or other entities established in more than one country and so linked that they may coordinate their operations in various ways. While one or more of these entities may be able to exercise a significant influence over the activities of others, their degree of autonomy within the enterprise may vary widely from one multinational enterprise to another. Ownership may be private, state or mixed.’ (17)
Beside the role of defining a multinational, the Codes of Conduct must prove in practice their efficiency when applied and they should do this firstly by overcoming the negative effects of their activities mostly noticed in the developing countries.
Going back in time the most tumultuous period of debates and conflicting situations arisen between them was in the 1960s and 1970s if to remember the case of ITT Chile and the speech of President Salvadore Allende in the U.N. General Assembly
(1972), as he sees their activity as an acute violation of the environmental rules in the context of affecting the sovereignty of the host government: the company did sink ‘their claws into my country’ as he said (18). The intense and nevertheless prejudicial activity of these companies led Muchilinski to affirm about them that they are ‘a challenge to the nation state, a creature with no loyalties except to itself…’ (19)
The OECD Guidelines for Multinational Enterprises is bringing the basis of their activity, with principles, standards, including amendments in taxation, anti-corruption, human rights, labour relations , environment , consumer protection, all these being applied to the 40 states that adhered to the Act (20).
Important, the Guidelines are result of debates between states having a compulsory nature, they don’t override the states’ will or replace it , because the states are provided with their own legislation and probably that is the main weakness of them and same time the strength in calling to a cooperation through friendly influence and mutual confidence spirit.
The need of a more strong legal framework is needed where the effects have been of such a nature to be stopped. The past is quite rich in bad examples if to remember the Bhopal case or Thor Chemicals and also Cape plc. In Thor Chemicals, the drinking water for population had a mercury level of 1000 times more than the standards given by the World Trade Organisation, because of the gaps in the activities of recycling .
In fact(21), the water was toxic and poisoned to death three workers and poisoned other more victims, in 1992. In attempt to distinguish the effect of national regulations and international, there was an impossibility to solve the case at a national level and this is a good example of the MNEs not suffering from their negative externalities , even so comparing the two countries of litigation, England having a better legal basis could better overcome the procedures at court.
Demanding a protection of the environment, the regional Department of Water Affairs and Forestry proved no efficiency when the company organised a
commission with no results achieved, and protecting the company’s interests. In the mentioned case, in UK was mentioned the absolute need of an existing ‘duty of care’ as referring to the international relations of the country, and as extended to EU level, the European Parliament proposed the compulsory system of social reporting on the effects on environment and social level (22) and is worth to present the measure of the
Commission of the European Union – EU Green Paper (23) that is a call to the nations to add their opinions towards this subject and meant to launch an interactive debate on this concern with following proposals.
The concern in this context of further development should be on Corporate Social Responsibility and at the OECD Forum 2005 it was stated about the awareness needed towards this concept and this prioritizing into agenda everywhere especially when to remember the workers’ conditions, the negative effects of conducting business , worker rights , respecting the internationally agreed standards.
Is constantly needed to remember the direct effect of the MNEs’ activitied on people’s lives . Fortunately the companies do not stop providing this issue to the society and is concluded that this pro-active role of them will grow.
With regards to the opinion that negative effects of the MNEs are of a more concern that positive effects they have, there is still the remark to be made that in the stage of international trade, there are more important forces that are coming back on possible bad happenings, there are the trade unions, human rights activists, consumer groups or investors to keep a good control and mostly, the companies’ own codes of conduct that are covering the mentioned aspects altogether with the environmental one.
Anyway, the companies sometimes use their codes to improve their relations with the customers and also can’t be replaced an appropriate legislation with the Corporate Social Responsibility. Even if the Guidelines are not legally binding for
corporations they are binding for the governments that signed them and the next step into improving would be of the governments to make these recommendations effective.
Another improvement is surely the expansion of the Guidelines to more states , and when solving the cases brought by the trade unions there should imperatively be a shorter time needed to it.
In the idea that the Guidelines can not be an enforcing act for respecting its own rules, there would be needed an international convention on the accountability of the MNCs. It should be able to ensure that the corporations will respect its rules and will pay in an appropriate way their own mistakes and with no delays , so that the legal basis will have an effectiveness.
The Guidelines will be just a preamble of these enforcing rules that empower a Court to judge the different cases after each one’s gravity , in this way being avoided the long way from national courts to international conventions and having more than the meaning of a Commissions’ investigations, as the role of truth commissions should be seen as through their real results (23).
The specialised court is mostly prepared and available to judge in shortest time the cases. For a better implementation of the Guidelines , has already been proposed the system of ‘peer group pressure’ to review the company when adopting best practices and complying to the principles.
Could be mentioned the need of improving the long time that trade unions face when rising a case in the Guidelines’ frame, and has been proposed the more need of focus on National Contact Points (NCP)in dealing with such cases, they are departments at one or more governments level or tripartite, quadripartite and as seen at
their 2006 annual meeting, (24) throughout their experiences after the 6 years’ review, has been noticed expansion in activity and involvement through meetings, training courses , campaigns, is important the effort of the European Commission into pursuing promotion of Guidelines in its external trade agreements (EU-ACP Economic Partnership Agreements- Cotonou cooperation), so are indeed done significant steps from the Guidelines’ view and even if the character of it will still remain as compulsory, the enforcement of the conventions signed as already noticed is already of a serious concern for the governments that are signing the international legal instruments in this matter.
By emphasizing the way how Guidelines are being put into practice, can be reached the conclusion that the whole institutional frame is of same importance as the contents of them, with a reserve to their primary nature of just guiding the companies.
The OECD Development Centre has the role to monitor the activity of multinationals and bring ideas of improvement, in its working paper no.257, there was monitored the way how Foreign Direct Investment has transformed the LDCs’ economic level with the infusion of capital, the way how MNCs can achieve quick new markets, technologies and better international connections (25)
Another attempt of improvement starting from a European Union’s member state to an international level was of UK and US in the Voluntary Principles on Security and Human Rights (26) this time the concern was on the extractive and energy sectors.
Going further, at global level has been proposed by UN Secretary – General Kofi Annan , the UN Global Compact with a set of ten principles (27) and they are statements towards human rights protection, child labour abolition, no forced labour, no discrimination, freedom of association, the environmental approach, all having the character of rather setting goals than imposing ,and missing a proper detailed layout for the companies that need to put to practice.
The ‘vagueness and apparent failure to generate significant pressure upon corporations’ (28) was the lack of the Global Compact , though it was able to attract important corporate support.
The need of a new legal frame is a necessity due to the constant changes in the global economy, and this can be made by trying to change the old things that didn’t prove enough effectiveness with new ones adapted at the present’s context. The MNEs are a target for many critiques but maybe not all of them true, what should be underlined is their ability to bring economic advantages not just for themselves but also for the host states, and not in a way to eclipse the state’s economical power but to be just an important part in its development. The legal frame should be more than compulsory and the intensified international cooperation could bring more advantages to it and more strength.
Bibliography:
(1)…Global Economic Institutions – Willem Molle , page 37
(2) Capitalism as if the world matters Jonathon porritt 2005 page 88
(3) … One world or many? – Richard Triplordy page 181
(4) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html
3 …Globalisation , public opinion and the state – Takashy Inoghchi, Ian Marsh page 76
http://www.btinternet.com/~ibas/lka_cape_comp_forgn_pla_0303.htm
(5)http://www.globalenvision.org/breakingnews
(6)http://www.cnn.com/2008/WORLD/africa/12/18/nigeria.poison.drugs/index.html?eref=rss_topstories
(7)http://www.alternet.org/workplace/102379/recession_depression_how_deep,_how_far_and_what_can_be_done/
(8) Toward a New Legal Common Sense, De Sousa Santos ,2002, page 81
(9) idem, page 80
(10) idem, page 48
(11) www.id21.org/insights/insights43/insights-iss43-art08.html
(12) http://hesa.etui-rehs.org/uk/newsevents/files/CapeMiners.pdf
(13) http://www.business-humanrights.org/Categories/Individualcompanies/C/CapePLC
(14) www.american.edu/TED/bhopal.htm
(15) www.americanedu/TED/bhopal.htm
(16) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html page 25
(17) OECD Guidelines
(18) The Annual Corporate Managers Dinner 1997 , speech of Roger Kerr
EXECUTIVE DIRECTOR Auckland NEW ZEALAND BUSINESS ROUNDTABLE 5 March 1997-
http://www.nzbr.org.nz/documents/speeches/speeches-96-97/multinat.doc.htm
(19)
http://www.springerlink.com/content/v66202569010h882/fulltext.pdf?page=1
(20)
http://www.ausncp.gov.au/content/Introduction.asp?areaid=8
(21)
http://thanetonline.blogspot.com/2008/11/another-significant-chemical-pollution.html
(22)
http://minesandcommunities.org/Company/meeran3.htm
(23) Steiner and Alston – Int.Human Rights in Context 2007, pp 1350-2
(24)
http://europa.eu/documents/comm/green_papers/index_en.htm
http://www.oecd.org/dataoecd/23/33/37439881.pdf
(25) OECD Forum 2005 http://lysander.sourceoecd.org/vl=7809622/cl=13/nw=1/rpsv/cgi-bin/wppdf?file=5l4s00hb2gvh.pdf
(26)
http://www.state.gov/g/drl/rls/2931.htm
(27)
http://www.unglobalcompact.org/
(28)
Steiner and Alston – Int. Human Rights in Context, 2007, ch. 15 page 1396
BACK
‘MNEs are the great beneficiaries of globalisation, enjoying all of its advantages but suffering none of its negative externalities. They sail between private and public law regulation, unassailable and largely unaccountable’.
Discussion, highlighting the main characteristics of existing regulation and proposals for improvement.
A discussion upon the multinationals’(MNCs) activities and their legality could be considered unsatisfactory if it resumes to the classical already accusations brought to them that they are the globalisation’s first beneficiaries by far and that their legal situation couldn’t be clearly determined whether under a regime or another- public or private , instead the discussion should be also on the advantages they bring to the economies and their legal frame having enough fairness. For a better approach most proper would be a close analysis of each word in part that brings a ‘truth’ at first sight and a real accusation without doubts behind it, when instead the researches have sometimes the lacks inherent of not being able to cover all the reality.
The negative effects of multinational companies …encounter issues such as (the accusation that) they are leaving the developing countries out in the cold and secondly effects on labour market that are noticed not just in least developed countries (LDCs) but also in the most developed ones. Thirdly, the freedom of these powerful poles will neglect the outcomes such as polluting the environment and the crisis in financial sectors with creating instability. (1)
As Jonathon Porritt noticed in ‘Capitalism as if the world matters’ the international trade and foreign direct investments (FDI) having developed on a global basis, the multinationals have been seen on one side as saviours of the global problems including poverty and have been accused as contributors to the things that weren’t sustainable under capitalism (2).
The literature is abundant in positive and negative effects of globalisation but the most significant bring to surface other aspects like the propagation of these effects to three levels : global one, national respectively cultural , and family level and the religious aspect as well, considering the institutional meaning of it as standing in some countries aside the political or legal poles. (3)
There are multiple negative effects in the different categories, emphasizing the one of women as affected directly by the decision making discriminatory process in the companies , or, the effects as seen by the citizens as being just at a superficial level , not a clear awareness induced by the different stages of the ample actions, taken with, say the campaigns around products or trade policies.
In attention of the public is the symbiosis between poverty and globalisation: the beneficiaries of the great opportunities may be related as well with the victims. With basis on the article of Michael R. Anderson (4), the globalisation’s lack in the area of making justice when bad events occur from industrial processes , has the meaning in the institutional frame and lawlessness and the not completely developed constitutional aspect as seen in the modern globalised business world .
The news constantly bring out this connection as a certain effect of globalisation: the UN special rapporteur on the right to food , declared ( 12 december 2008) that ‘current WTO agreements on agriculture treated food like other commodities instead of respecting the human right to food. As a result the number of hungry people had risen to 963 million today from 852 million in 2005’ (5) Same, presently there are 33 countries in need of food aid because of war, floods, crop failures or high domestic food prices.
Indeed the cases of Bhopal or Thor Chemicals are shameful traces in the big steps of globalisation’s development but are in the same way or even more unforgettable, the happenings of today – on the 12th of December 2008 the news revealed the case of Nigerian children poisoned by their own parents with medicines that were counterfeit drugs. These pills were meant to bring a profit to Indian and Chinese companies, of $75 billion in 2010. More than 30 children died because of these drugs and Nigeria is in the frontline in the global fight against them . (6)
The multinationals are not rarely mixing into the states’ economies creating a disequilibrium due to their economic power, competing with more fragile national companies and leading usually in the competition .The actors may change and sometimes are affected the different other categories. Other times , when the companies are in bankrupt they will bring down with them all the boundaries created in long time; in USA , most recently VeraSun Leaves Corn Farmers going through such fall, has affected the many farmers that depended of its activity and there is no way for them to ever get their money as to the contracts so that economy registers a big gap in this sector until things will settle down again and the prices will attain reasonable levels on the market.
Being given the world’s new complex situation meaning the American financial crisis, as in the frame of globalisation , it is worth to remember in this context the way how a recession extends presently affecting the economies and the multinational entities, instruments of global trade . The economists are not surprised by the chain of reactions that propagate in the global stage, from the most important financial poles going to the companies worldwide, and further in the usual way to the lower levels affecting finally the individuals : Walden Bello , founder of the Third World Network said that "given the globalization of national economies over the last two decades, the downturn is going to be a synchronic one, and there is going to be no decoupling of one region from another." (7)
Benefits …are certain for the multinationals and they are the reason for the big investments that are made by them in different countries. The MNEs tend to invest in LDS , developing countries as they furnish them with labour, resources for production and other advantages such as cheaper lands or profitable companies they might buy to extend. The unsaid advantages encounter the poorer legal system that protect them from the whole responsibility if are accusations against them, or even silence. The national
courts of the host countries are certainly slow and giving delayed responses to the requests of the complainers.
Towards regulation, public –private…the negative effects are not a sufficient argument against the MNEs and if once their activity was seen as a way to open the gates to economic development , later the foreign investment was seen as economic imperialism and time showed that attacks against them were in multiple ways such as, in 1950 Galbraith affirmed in ‘The Affluent Society ‘ that commercial exchanges were not effect of consumer’s sovereignty but his enslavement to advertising , and also Galbraith considered that the distinction between public and private was another threat as from the companies, these having sometimes many assets that would seem as of general concern and strong legal basis in both sides, so that they sail between public and private and lean on the both margins with almost an ensured way of keeping the advantages from this position. Therefore his opinion that state ownership included in MNEs assets should be amended by the society .
Further on the governments’ concern should be in avoiding such investments and rather have sufficiency from their own economies. In 1993 The Economist published the information that the biggest 100 multinationals in the world have 50% of the cross border assets, and the 16% from world’s productive assets so that it would be unsure to firmly say that the multinationals are the real governors of production at world’s level and instead we should give enough importance to other factors- the governments and their own assets and legal system that protects all the interests and the general one.
De Sousa Santos in his book ‘Toward a New Legal Common Sense ‘ is making an overview of the infusion of law in society at national and international level (8) and explains how private law is working , in concern of the capitalism , as
complimented by fiscal, monetary and financial measures , into building an autonomous market society.
The private law as the author well points, comes to cover those imperfections resulted from market failures , so that the MNEs have been in this context some of the benefiters of the governments’ policies or the laws in private sector, it regulating for instance the granting of land, the repression or protection of trade unions, granting of patents. In the context of liberal capitalism the society used to have own market regulations and when to answer to questions that arise from powerful industrialisation, the laws had to interfere the same in problems such as poverty, epidemics, unemployment, alcoholism. The legal framework is needed from many practical reasons, including the enforcement of the contracts . The socio-economic life in its entirety needs the guiding legal frame and the state’s intervention in crisis situations and this is made through the private law.
Further the intervention of state in trade has become less visible because of the more growing powerful capitalism and increasing industrialisation. The mix of private and public law was due to the stringent need of rules where the workers’ rights needed protection and were tangent to these the economic law, labour law, social law that have the mixed nature (10). The administrative law and constitutional law became more concerned of the changes that appeared from the multinationals’ activities bringing the new socio-economic rights to life, as a form of human rights, in the constitutions, and also the administrative law has faced the problem of better allocating the resources and the passing was needed from autonomy to decentralisation to can achieve better the new challenge brought by companies’ ownership.
The compromise is a key to better overcome the difficulties of the classic state authority facing the liberal market that demands different approach and cooperation with the multinationals in many aspects. Therefore the laws are more softer and not
tightening the commerce and the multinationals have the position of benefiting from the supletive rules, in the way that they can better negotiate in many issues their own interests without rigidity from the institutions and can sometimes avoid completion of the workers’ rights, and even leading to abuses because of the missing legal control in all areas needed. Is the case of Bhopal, or of Cape plc case (11) showing how a national court couldn’t finally judge a case that was in its own jurisdiction but instead it was judged overseas where the legal system could ensure a better protection of rights.
In Cape plc case, many people in South Africa suffered from asbestos that leads to lung cancer, because of the asbestos mines and millers. The problem existed along many years, since 1893 to 1989 therefore almost a century of exploiting work in doubtful conditions, thing that became more and more clear in the contemporary frame and in UK the first law for asbestos was introduced, and in Africa there were no such rules. In addition, the child labour was ordinary notice and apartheid was also an usual thing in the multinational’s agenda.
The financial crisis couldn’t afford the compensations asked through the courts. The legal aid system was insufficient. As a follow, the London High Court was the one to judge the case in 1997 – it means even more than a century since the problems existed…The company indeed used the host country’s internal legislation fully into its own interest and ignoring the outcomes of its activity.
The way how things evolve quickly explains also the consequences of companies’ activities in people’s lives with sometimes tragic events and nobody to can be clearly blamed in a net of so many participants with a certain amount of responsibility involved. The private law can’t overcome the happenings as shown in Bhopal case, because criminal prosecution of the responsible persons is very hard when multinationals are involved. The international level is usually the first step to can approach these cases
and the national level, as a first step, proved inefficiency, even more in the developing countries with a fragile legal system that is not enough empowered sometimes.
In fact, in Thor Chemicals case, the South Africa courts charged the three managers with culpable homicide, and the fine was of 37,000 $ indeed insufficient thinking at the victims- three workers dead and more other victims, and this after one year from the happenings.
In Cape plc case it was very hard to access the justice and the country was characterised by a crisis in legal aid system. An interesting thing is that Cape plc sought to create the impression that its South African operations were a discrete business run independently by the subsidiaries (12). Cape plc is a company not participant in the UN Global Compact. (13)
In Bhopal case the Indian Government sued the company and rejected the offer of $5 million for the 40,000 victims so far (14) , and finally after 5 years had to pay $470,000 and paid immediately, but the estimated number of victims was of 400,000 (15)
Regarding the national legal system , there is no sufficient basis into creating a source of security to the masses as the main participants in industrial work and they request an improvement in the problem of lawlessness related to poverty, and is not enough in this discussion to encounter the public or private law’s role in the multinationals’ question towards advantageousness but also the judicial problem because the courts ensure the quality of law’s appliance, so that is worthy to mention the need of a legal reform related especially to abuse of power by the companies (16) .
The World Trade Organisation (WTO) requests already the need of reform especially for the environmental protection. Also prima facie a good legal frame is a sign for ensuring the justice in the cases of multinationals but in fact the cases showed that inadequate legal representation was same important as the existence of the law that
protects the right , or the fact that justice delayed is justice denied , or the lack of access to legal information and literacy means only the insufficiency of the presumption that citizens know the laws and in consequence they should know what to do or not do in relation to the multinationals.
Public law instead brings the conventions that are signed by the states hosts or homes of the multinationals and made in a grade responsible , but, not more than the
companies themselves in front of these conventions, as is the case of OECD Guidelines for Multinational Enterprises 1977.
It has the role of providing a wide-ranging social responsibility in : environmental protection, child labour, forced labour, transparency, consumer protection, taxation, transfer of technology. However they will remain as a guidelines with a certain voluntary nature and therefore having no sufficient force to can be defined as a legislative act made for ruling the MNEs’ activity.
The OECD Guidelines states that they are : ‘ companies or other entities established in more than one country and so linked that they may coordinate their operations in various ways. While one or more of these entities may be able to exercise a significant influence over the activities of others, their degree of autonomy within the enterprise may vary widely from one multinational enterprise to another. Ownership may be private, state or mixed.’ (17)
Beside the role of defining a multinational, the Codes of Conduct must prove in practice their efficiency when applied and they should do this firstly by overcoming the negative effects of their activities mostly noticed in the developing countries.
Going back in time the most tumultuous period of debates and conflicting situations arisen between them was in the 1960s and 1970s if to remember the case of ITT Chile and the speech of President Salvadore Allende in the U.N. General Assembly
(1972), as he sees their activity as an acute violation of the environmental rules in the context of affecting the sovereignty of the host government: the company did sink ‘their claws into my country’ as he said (18). The intense and nevertheless prejudicial activity of these companies led Muchilinski to affirm about them that they are ‘a challenge to the nation state, a creature with no loyalties except to itself…’ (19)
The OECD Guidelines for Multinational Enterprises is bringing the basis of their activity, with principles, standards, including amendments in taxation, anti-corruption, human rights, labour relations , environment , consumer protection, all these being applied to the 40 states that adhered to the Act (20).
Important, the Guidelines are result of debates between states having a compulsory nature, they don’t override the states’ will or replace it , because the states are provided with their own legislation and probably that is the main weakness of them and same time the strength in calling to a cooperation through friendly influence and mutual confidence spirit.
The need of a more strong legal framework is needed where the effects have been of such a nature to be stopped. The past is quite rich in bad examples if to remember the Bhopal case or Thor Chemicals and also Cape plc. In Thor Chemicals, the drinking water for population had a mercury level of 1000 times more than the standards given by the World Trade Organisation, because of the gaps in the activities of recycling .
In fact(21), the water was toxic and poisoned to death three workers and poisoned other more victims, in 1992. In attempt to distinguish the effect of national regulations and international, there was an impossibility to solve the case at a national level and this is a good example of the MNEs not suffering from their negative externalities , even so comparing the two countries of litigation, England having a better legal basis could better overcome the procedures at court.
Demanding a protection of the environment, the regional Department of Water Affairs and Forestry proved no efficiency when the company organised a
commission with no results achieved, and protecting the company’s interests. In the mentioned case, in UK was mentioned the absolute need of an existing ‘duty of care’ as referring to the international relations of the country, and as extended to EU level, the European Parliament proposed the compulsory system of social reporting on the effects on environment and social level (22) and is worth to present the measure of the
Commission of the European Union – EU Green Paper (23) that is a call to the nations to add their opinions towards this subject and meant to launch an interactive debate on this concern with following proposals.
The concern in this context of further development should be on Corporate Social Responsibility and at the OECD Forum 2005 it was stated about the awareness needed towards this concept and this prioritizing into agenda everywhere especially when to remember the workers’ conditions, the negative effects of conducting business , worker rights , respecting the internationally agreed standards.
Is constantly needed to remember the direct effect of the MNEs’ activitied on people’s lives . Fortunately the companies do not stop providing this issue to the society and is concluded that this pro-active role of them will grow.
With regards to the opinion that negative effects of the MNEs are of a more concern that positive effects they have, there is still the remark to be made that in the stage of international trade, there are more important forces that are coming back on possible bad happenings, there are the trade unions, human rights activists, consumer groups or investors to keep a good control and mostly, the companies’ own codes of conduct that are covering the mentioned aspects altogether with the environmental one.
Anyway, the companies sometimes use their codes to improve their relations with the customers and also can’t be replaced an appropriate legislation with the Corporate Social Responsibility. Even if the Guidelines are not legally binding for
corporations they are binding for the governments that signed them and the next step into improving would be of the governments to make these recommendations effective.
Another improvement is surely the expansion of the Guidelines to more states , and when solving the cases brought by the trade unions there should imperatively be a shorter time needed to it.
In the idea that the Guidelines can not be an enforcing act for respecting its own rules, there would be needed an international convention on the accountability of the MNCs. It should be able to ensure that the corporations will respect its rules and will pay in an appropriate way their own mistakes and with no delays , so that the legal basis will have an effectiveness.
The Guidelines will be just a preamble of these enforcing rules that empower a Court to judge the different cases after each one’s gravity , in this way being avoided the long way from national courts to international conventions and having more than the meaning of a Commissions’ investigations, as the role of truth commissions should be seen as through their real results (23).
The specialised court is mostly prepared and available to judge in shortest time the cases. For a better implementation of the Guidelines , has already been proposed the system of ‘peer group pressure’ to review the company when adopting best practices and complying to the principles.
Could be mentioned the need of improving the long time that trade unions face when rising a case in the Guidelines’ frame, and has been proposed the more need of focus on National Contact Points (NCP)in dealing with such cases, they are departments at one or more governments level or tripartite, quadripartite and as seen at
their 2006 annual meeting, (24) throughout their experiences after the 6 years’ review, has been noticed expansion in activity and involvement through meetings, training courses , campaigns, is important the effort of the European Commission into pursuing promotion of Guidelines in its external trade agreements (EU-ACP Economic Partnership Agreements- Cotonou cooperation), so are indeed done significant steps from the Guidelines’ view and even if the character of it will still remain as compulsory, the enforcement of the conventions signed as already noticed is already of a serious concern for the governments that are signing the international legal instruments in this matter.
By emphasizing the way how Guidelines are being put into practice, can be reached the conclusion that the whole institutional frame is of same importance as the contents of them, with a reserve to their primary nature of just guiding the companies.
The OECD Development Centre has the role to monitor the activity of multinationals and bring ideas of improvement, in its working paper no.257, there was monitored the way how Foreign Direct Investment has transformed the LDCs’ economic level with the infusion of capital, the way how MNCs can achieve quick new markets, technologies and better international connections (25)
Another attempt of improvement starting from a European Union’s member state to an international level was of UK and US in the Voluntary Principles on Security and Human Rights (26) this time the concern was on the extractive and energy sectors.
Going further, at global level has been proposed by UN Secretary – General Kofi Annan , the UN Global Compact with a set of ten principles (27) and they are statements towards human rights protection, child labour abolition, no forced labour, no discrimination, freedom of association, the environmental approach, all having the character of rather setting goals than imposing ,and missing a proper detailed layout for the companies that need to put to practice.
The ‘vagueness and apparent failure to generate significant pressure upon corporations’ (28) was the lack of the Global Compact , though it was able to attract important corporate support.
The need of a new legal frame is a necessity due to the constant changes in the global economy, and this can be made by trying to change the old things that didn’t prove enough effectiveness with new ones adapted at the present’s context. The MNEs are a target for many critiques but maybe not all of them true, what should be underlined is their ability to bring economic advantages not just for themselves but also for the host states, and not in a way to eclipse the state’s economical power but to be just an important part in its development. The legal frame should be more than compulsory and the intensified international cooperation could bring more advantages to it and more strength.
Bibliography:
(1)…Global Economic Institutions – Willem Molle , page 37
(2) Capitalism as if the world matters Jonathon porritt 2005 page 88
(3) … One world or many? – Richard Triplordy page 181
(4) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html
3 …Globalisation , public opinion and the state – Takashy Inoghchi, Ian Marsh page 76
http://www.btinternet.com/~ibas/lka_cape_comp_forgn_pla_0303.htm
(5)http://www.globalenvision.org/breakingnews
(6)http://www.cnn.com/2008/WORLD/africa/12/18/nigeria.poison.drugs/index.html?eref=rss_topstories
(7)http://www.alternet.org/workplace/102379/recession_depression_how_deep,_how_far_and_what_can_be_done/
(8) Toward a New Legal Common Sense, De Sousa Santos ,2002, page 81
(9) idem, page 80
(10) idem, page 48
(11) www.id21.org/insights/insights43/insights-iss43-art08.html
(12) http://hesa.etui-rehs.org/uk/newsevents/files/CapeMiners.pdf
(13) http://www.business-humanrights.org/Categories/Individualcompanies/C/CapePLC
(14) www.american.edu/TED/bhopal.htm
(15) www.americanedu/TED/bhopal.htm
(16) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html page 25
(17) OECD Guidelines
(18) The Annual Corporate Managers Dinner 1997 , speech of Roger Kerr
EXECUTIVE DIRECTOR Auckland NEW ZEALAND BUSINESS ROUNDTABLE 5 March 1997-
http://www.nzbr.org.nz/documents/speeches/speeches-96-97/multinat.doc.htm
(19)
http://www.springerlink.com/content/v66202569010h882/fulltext.pdf?page=1
(20)
http://www.ausncp.gov.au/content/Introduction.asp?areaid=8
(21)
http://thanetonline.blogspot.com/2008/11/another-significant-chemical-pollution.html
(22)
http://minesandcommunities.org/Company/meeran3.htm
(23) Steiner and Alston – Int.Human Rights in Context 2007, pp 1350-2
(24)
http://europa.eu/documents/comm/green_papers/index_en.htm
http://www.oecd.org/dataoecd/23/33/37439881.pdf
(25) OECD Forum 2005 http://lysander.sourceoecd.org/vl=7809622/cl=13/nw=1/rpsv/cgi-bin/wppdf?file=5l4s00hb2gvh.pdf
(26)
http://www.state.gov/g/drl/rls/2931.htm
(27)
http://www.unglobalcompact.org/
(28)
Steiner and Alston – Int. Human Rights in Context, 2007, ch. 15 page 1396
Sunday, September 11, 2011
Globalisation
Globalisation
BACK
‘MNEs are the great beneficiaries of globalisation, enjoying all of its advantages but suffering none of its negative externalities. They sail between private and public law regulation, unassailable and largely unaccountable’.
Discussion, highlighting the main characteristics of existing regulation and proposals for improvement.
A discussion upon the multinationals’(MNCs) activities and their legality could be considered unsatisfactory if it resumes to the classical already accusations brought to them that they are the globalisation’s first beneficiaries by far and that their legal situation couldn’t be clearly determined whether under a regime or another- public or private , instead the discussion should be also on the advantages they bring to the economies and their legal frame having enough fairness. For a better approach most proper would be a close analysis of each word in part that brings a ‘truth’ at first sight and a real accusation without doubts behind it, when instead the researches have sometimes the lacks inherent of not being able to cover all the reality.
The negative effects of multinational companies …encounter issues such as (the accusation that) they are leaving the developing countries out in the cold and secondly effects on labour market that are noticed not just in least developed countries (LDCs) but also in the most developed ones. Thirdly, the freedom of these powerful poles will neglect the outcomes such as polluting the environment and the crisis in financial sectors with creating instability. (1)
As Jonathon Porritt noticed in ‘Capitalism as if the world matters’ the international trade and foreign direct investments (FDI) having developed on a global basis, the multinationals have been seen on one side as saviours of the global problems including poverty and have been accused as contributors to the things that weren’t sustainable under capitalism (2).
The literature is abundant in positive and negative effects of globalisation but the most significant bring to surface other aspects like the propagation of these effects to three levels : global one, national respectively cultural , and family level and the religious aspect as well, considering the institutional meaning of it as standing in some countries aside the political or legal poles. (3)
There are multiple negative effects in the different categories, emphasizing the one of women as affected directly by the decision making discriminatory process in the companies , or, the effects as seen by the citizens as being just at a superficial level , not a clear awareness induced by the different stages of the ample actions, taken with, say the campaigns around products or trade policies.
In attention of the public is the symbiosis between poverty and globalisation: the beneficiaries of the great opportunities may be related as well with the victims. With basis on the article of Michael R. Anderson (4), the globalisation’s lack in the area of making justice when bad events occur from industrial processes , has the meaning in the institutional frame and lawlessness and the not completely developed constitutional aspect as seen in the modern globalised business world .
The news constantly bring out this connection as a certain effect of globalisation: the UN special rapporteur on the right to food , declared ( 12 december 2008) that ‘current WTO agreements on agriculture treated food like other commodities instead of respecting the human right to food. As a result the number of hungry people had risen to 963 million today from 852 million in 2005’ (5) Same, presently there are 33 countries in need of food aid because of war, floods, crop failures or high domestic food prices.
Indeed the cases of Bhopal or Thor Chemicals are shameful traces in the big steps of globalisation’s development but are in the same way or even more unforgettable, the happenings of today – on the 12th of December 2008 the news revealed the case of Nigerian children poisoned by their own parents with medicines that were counterfeit drugs. These pills were meant to bring a profit to Indian and Chinese companies, of $75 billion in 2010. More than 30 children died because of these drugs and Nigeria is in the frontline in the global fight against them . (6)
The multinationals are not rarely mixing into the states’ economies creating a disequilibrium due to their economic power, competing with more fragile national companies and leading usually in the competition .The actors may change and sometimes are affected the different other categories. Other times , when the companies are in bankrupt they will bring down with them all the boundaries created in long time; in USA , most recently VeraSun Leaves Corn Farmers going through such fall, has affected the many farmers that depended of its activity and there is no way for them to ever get their money as to the contracts so that economy registers a big gap in this sector until things will settle down again and the prices will attain reasonable levels on the market.
Being given the world’s new complex situation meaning the American financial crisis, as in the frame of globalisation , it is worth to remember in this context the way how a recession extends presently affecting the economies and the multinational entities, instruments of global trade . The economists are not surprised by the chain of reactions that propagate in the global stage, from the most important financial poles going to the companies worldwide, and further in the usual way to the lower levels affecting finally the individuals : Walden Bello , founder of the Third World Network said that "given the globalization of national economies over the last two decades, the downturn is going to be a synchronic one, and there is going to be no decoupling of one region from another." (7)
Benefits …are certain for the multinationals and they are the reason for the big investments that are made by them in different countries. The MNEs tend to invest in LDS , developing countries as they furnish them with labour, resources for production and other advantages such as cheaper lands or profitable companies they might buy to extend. The unsaid advantages encounter the poorer legal system that protect them from the whole responsibility if are accusations against them, or even silence. The national
courts of the host countries are certainly slow and giving delayed responses to the requests of the complainers.
Towards regulation, public –private…the negative effects are not a sufficient argument against the MNEs and if once their activity was seen as a way to open the gates to economic development , later the foreign investment was seen as economic imperialism and time showed that attacks against them were in multiple ways such as, in 1950 Galbraith affirmed in ‘The Affluent Society ‘ that commercial exchanges were not effect of consumer’s sovereignty but his enslavement to advertising , and also Galbraith considered that the distinction between public and private was another threat as from the companies, these having sometimes many assets that would seem as of general concern and strong legal basis in both sides, so that they sail between public and private and lean on the both margins with almost an ensured way of keeping the advantages from this position. Therefore his opinion that state ownership included in MNEs assets should be amended by the society .
Further on the governments’ concern should be in avoiding such investments and rather have sufficiency from their own economies. In 1993 The Economist published the information that the biggest 100 multinationals in the world have 50% of the cross border assets, and the 16% from world’s productive assets so that it would be unsure to firmly say that the multinationals are the real governors of production at world’s level and instead we should give enough importance to other factors- the governments and their own assets and legal system that protects all the interests and the general one.
De Sousa Santos in his book ‘Toward a New Legal Common Sense ‘ is making an overview of the infusion of law in society at national and international level (8) and explains how private law is working , in concern of the capitalism , as
complimented by fiscal, monetary and financial measures , into building an autonomous market society.
The private law as the author well points, comes to cover those imperfections resulted from market failures , so that the MNEs have been in this context some of the benefiters of the governments’ policies or the laws in private sector, it regulating for instance the granting of land, the repression or protection of trade unions, granting of patents. In the context of liberal capitalism the society used to have own market regulations and when to answer to questions that arise from powerful industrialisation, the laws had to interfere the same in problems such as poverty, epidemics, unemployment, alcoholism. The legal framework is needed from many practical reasons, including the enforcement of the contracts . The socio-economic life in its entirety needs the guiding legal frame and the state’s intervention in crisis situations and this is made through the private law.
Further the intervention of state in trade has become less visible because of the more growing powerful capitalism and increasing industrialisation. The mix of private and public law was due to the stringent need of rules where the workers’ rights needed protection and were tangent to these the economic law, labour law, social law that have the mixed nature (10). The administrative law and constitutional law became more concerned of the changes that appeared from the multinationals’ activities bringing the new socio-economic rights to life, as a form of human rights, in the constitutions, and also the administrative law has faced the problem of better allocating the resources and the passing was needed from autonomy to decentralisation to can achieve better the new challenge brought by companies’ ownership.
The compromise is a key to better overcome the difficulties of the classic state authority facing the liberal market that demands different approach and cooperation with the multinationals in many aspects. Therefore the laws are more softer and not
tightening the commerce and the multinationals have the position of benefiting from the supletive rules, in the way that they can better negotiate in many issues their own interests without rigidity from the institutions and can sometimes avoid completion of the workers’ rights, and even leading to abuses because of the missing legal control in all areas needed. Is the case of Bhopal, or of Cape plc case (11) showing how a national court couldn’t finally judge a case that was in its own jurisdiction but instead it was judged overseas where the legal system could ensure a better protection of rights.
In Cape plc case, many people in South Africa suffered from asbestos that leads to lung cancer, because of the asbestos mines and millers. The problem existed along many years, since 1893 to 1989 therefore almost a century of exploiting work in doubtful conditions, thing that became more and more clear in the contemporary frame and in UK the first law for asbestos was introduced, and in Africa there were no such rules. In addition, the child labour was ordinary notice and apartheid was also an usual thing in the multinational’s agenda.
The financial crisis couldn’t afford the compensations asked through the courts. The legal aid system was insufficient. As a follow, the London High Court was the one to judge the case in 1997 – it means even more than a century since the problems existed…The company indeed used the host country’s internal legislation fully into its own interest and ignoring the outcomes of its activity.
The way how things evolve quickly explains also the consequences of companies’ activities in people’s lives with sometimes tragic events and nobody to can be clearly blamed in a net of so many participants with a certain amount of responsibility involved. The private law can’t overcome the happenings as shown in Bhopal case, because criminal prosecution of the responsible persons is very hard when multinationals are involved. The international level is usually the first step to can approach these cases
and the national level, as a first step, proved inefficiency, even more in the developing countries with a fragile legal system that is not enough empowered sometimes.
In fact, in Thor Chemicals case, the South Africa courts charged the three managers with culpable homicide, and the fine was of 37,000 $ indeed insufficient thinking at the victims- three workers dead and more other victims, and this after one year from the happenings.
In Cape plc case it was very hard to access the justice and the country was characterised by a crisis in legal aid system. An interesting thing is that Cape plc sought to create the impression that its South African operations were a discrete business run independently by the subsidiaries (12). Cape plc is a company not participant in the UN Global Compact. (13)
In Bhopal case the Indian Government sued the company and rejected the offer of $5 million for the 40,000 victims so far (14) , and finally after 5 years had to pay $470,000 and paid immediately, but the estimated number of victims was of 400,000 (15)
Regarding the national legal system , there is no sufficient basis into creating a source of security to the masses as the main participants in industrial work and they request an improvement in the problem of lawlessness related to poverty, and is not enough in this discussion to encounter the public or private law’s role in the multinationals’ question towards advantageousness but also the judicial problem because the courts ensure the quality of law’s appliance, so that is worthy to mention the need of a legal reform related especially to abuse of power by the companies (16) .
The World Trade Organisation (WTO) requests already the need of reform especially for the environmental protection. Also prima facie a good legal frame is a sign for ensuring the justice in the cases of multinationals but in fact the cases showed that inadequate legal representation was same important as the existence of the law that
protects the right , or the fact that justice delayed is justice denied , or the lack of access to legal information and literacy means only the insufficiency of the presumption that citizens know the laws and in consequence they should know what to do or not do in relation to the multinationals.
Public law instead brings the conventions that are signed by the states hosts or homes of the multinationals and made in a grade responsible , but, not more than the
companies themselves in front of these conventions, as is the case of OECD Guidelines for Multinational Enterprises 1977.
It has the role of providing a wide-ranging social responsibility in : environmental protection, child labour, forced labour, transparency, consumer protection, taxation, transfer of technology. However they will remain as a guidelines with a certain voluntary nature and therefore having no sufficient force to can be defined as a legislative act made for ruling the MNEs’ activity.
The OECD Guidelines states that they are : ‘ companies or other entities established in more than one country and so linked that they may coordinate their operations in various ways. While one or more of these entities may be able to exercise a significant influence over the activities of others, their degree of autonomy within the enterprise may vary widely from one multinational enterprise to another. Ownership may be private, state or mixed.’ (17)
Beside the role of defining a multinational, the Codes of Conduct must prove in practice their efficiency when applied and they should do this firstly by overcoming the negative effects of their activities mostly noticed in the developing countries.
Going back in time the most tumultuous period of debates and conflicting situations arisen between them was in the 1960s and 1970s if to remember the case of ITT Chile and the speech of President Salvadore Allende in the U.N. General Assembly
(1972), as he sees their activity as an acute violation of the environmental rules in the context of affecting the sovereignty of the host government: the company did sink ‘their claws into my country’ as he said (18). The intense and nevertheless prejudicial activity of these companies led Muchilinski to affirm about them that they are ‘a challenge to the nation state, a creature with no loyalties except to itself…’ (19)
The OECD Guidelines for Multinational Enterprises is bringing the basis of their activity, with principles, standards, including amendments in taxation, anti-corruption, human rights, labour relations , environment , consumer protection, all these being applied to the 40 states that adhered to the Act (20).
Important, the Guidelines are result of debates between states having a compulsory nature, they don’t override the states’ will or replace it , because the states are provided with their own legislation and probably that is the main weakness of them and same time the strength in calling to a cooperation through friendly influence and mutual confidence spirit.
The need of a more strong legal framework is needed where the effects have been of such a nature to be stopped. The past is quite rich in bad examples if to remember the Bhopal case or Thor Chemicals and also Cape plc. In Thor Chemicals, the drinking water for population had a mercury level of 1000 times more than the standards given by the World Trade Organisation, because of the gaps in the activities of recycling .
In fact(21), the water was toxic and poisoned to death three workers and poisoned other more victims, in 1992. In attempt to distinguish the effect of national regulations and international, there was an impossibility to solve the case at a national level and this is a good example of the MNEs not suffering from their negative externalities , even so comparing the two countries of litigation, England having a better legal basis could better overcome the procedures at court.
Demanding a protection of the environment, the regional Department of Water Affairs and Forestry proved no efficiency when the company organised a
commission with no results achieved, and protecting the company’s interests. In the mentioned case, in UK was mentioned the absolute need of an existing ‘duty of care’ as referring to the international relations of the country, and as extended to EU level, the European Parliament proposed the compulsory system of social reporting on the effects on environment and social level (22) and is worth to present the measure of the
Commission of the European Union – EU Green Paper (23) that is a call to the nations to add their opinions towards this subject and meant to launch an interactive debate on this concern with following proposals.
The concern in this context of further development should be on Corporate Social Responsibility and at the OECD Forum 2005 it was stated about the awareness needed towards this concept and this prioritizing into agenda everywhere especially when to remember the workers’ conditions, the negative effects of conducting business , worker rights , respecting the internationally agreed standards.
Is constantly needed to remember the direct effect of the MNEs’ activitied on people’s lives . Fortunately the companies do not stop providing this issue to the society and is concluded that this pro-active role of them will grow.
With regards to the opinion that negative effects of the MNEs are of a more concern that positive effects they have, there is still the remark to be made that in the stage of international trade, there are more important forces that are coming back on possible bad happenings, there are the trade unions, human rights activists, consumer groups or investors to keep a good control and mostly, the companies’ own codes of conduct that are covering the mentioned aspects altogether with the environmental one.
Anyway, the companies sometimes use their codes to improve their relations with the customers and also can’t be replaced an appropriate legislation with the Corporate Social Responsibility. Even if the Guidelines are not legally binding for
corporations they are binding for the governments that signed them and the next step into improving would be of the governments to make these recommendations effective.
Another improvement is surely the expansion of the Guidelines to more states , and when solving the cases brought by the trade unions there should imperatively be a shorter time needed to it.
In the idea that the Guidelines can not be an enforcing act for respecting its own rules, there would be needed an international convention on the accountability of the MNCs. It should be able to ensure that the corporations will respect its rules and will pay in an appropriate way their own mistakes and with no delays , so that the legal basis will have an effectiveness.
The Guidelines will be just a preamble of these enforcing rules that empower a Court to judge the different cases after each one’s gravity , in this way being avoided the long way from national courts to international conventions and having more than the meaning of a Commissions’ investigations, as the role of truth commissions should be seen as through their real results (23).
The specialised court is mostly prepared and available to judge in shortest time the cases. For a better implementation of the Guidelines , has already been proposed the system of ‘peer group pressure’ to review the company when adopting best practices and complying to the principles.
Could be mentioned the need of improving the long time that trade unions face when rising a case in the Guidelines’ frame, and has been proposed the more need of focus on National Contact Points (NCP)in dealing with such cases, they are departments at one or more governments level or tripartite, quadripartite and as seen at
their 2006 annual meeting, (24) throughout their experiences after the 6 years’ review, has been noticed expansion in activity and involvement through meetings, training courses , campaigns, is important the effort of the European Commission into pursuing promotion of Guidelines in its external trade agreements (EU-ACP Economic Partnership Agreements- Cotonou cooperation), so are indeed done significant steps from the Guidelines’ view and even if the character of it will still remain as compulsory, the enforcement of the conventions signed as already noticed is already of a serious concern for the governments that are signing the international legal instruments in this matter.
By emphasizing the way how Guidelines are being put into practice, can be reached the conclusion that the whole institutional frame is of same importance as the contents of them, with a reserve to their primary nature of just guiding the companies.
The OECD Development Centre has the role to monitor the activity of multinationals and bring ideas of improvement, in its working paper no.257, there was monitored the way how Foreign Direct Investment has transformed the LDCs’ economic level with the infusion of capital, the way how MNCs can achieve quick new markets, technologies and better international connections (25)
Another attempt of improvement starting from a European Union’s member state to an international level was of UK and US in the Voluntary Principles on Security and Human Rights (26) this time the concern was on the extractive and energy sectors.
Going further, at global level has been proposed by UN Secretary – General Kofi Annan , the UN Global Compact with a set of ten principles (27) and they are statements towards human rights protection, child labour abolition, no forced labour, no discrimination, freedom of association, the environmental approach, all having the character of rather setting goals than imposing ,and missing a proper detailed layout for the companies that need to put to practice.
The ‘vagueness and apparent failure to generate significant pressure upon corporations’ (28) was the lack of the Global Compact , though it was able to attract important corporate support.
The need of a new legal frame is a necessity due to the constant changes in the global economy, and this can be made by trying to change the old things that didn’t prove enough effectiveness with new ones adapted at the present’s context. The MNEs are a target for many critiques but maybe not all of them true, what should be underlined is their ability to bring economic advantages not just for themselves but also for the host states, and not in a way to eclipse the state’s economical power but to be just an important part in its development. The legal frame should be more than compulsory and the intensified international cooperation could bring more advantages to it and more strength.
Bibliography:
(1)…Global Economic Institutions – Willem Molle , page 37
(2) Capitalism as if the world matters Jonathon porritt 2005 page 88
(3) … One world or many? – Richard Triplordy page 181
(4) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html
3 …Globalisation , public opinion and the state – Takashy Inoghchi, Ian Marsh page 76
http://www.btinternet.com/~ibas/lka_cape_comp_forgn_pla_0303.htm
(5)http://www.globalenvision.org/breakingnews
(6)http://www.cnn.com/2008/WORLD/africa/12/18/nigeria.poison.drugs/index.html?eref=rss_topstories
(7)http://www.alternet.org/workplace/102379/recession_depression_how_deep,_how_far_and_what_can_be_done/
(8) Toward a New Legal Common Sense, De Sousa Santos ,2002, page 81
(9) idem, page 80
(10) idem, page 48
(11) www.id21.org/insights/insights43/insights-iss43-art08.html
(12) http://hesa.etui-rehs.org/uk/newsevents/files/CapeMiners.pdf
(13) http://www.business-humanrights.org/Categories/Individualcompanies/C/CapePLC
(14) www.american.edu/TED/bhopal.htm
(15) www.americanedu/TED/bhopal.htm
(16) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html page 25
(17) OECD Guidelines
(18) The Annual Corporate Managers Dinner 1997 , speech of Roger Kerr
EXECUTIVE DIRECTOR Auckland NEW ZEALAND BUSINESS ROUNDTABLE 5 March 1997-
http://www.nzbr.org.nz/documents/speeches/speeches-96-97/multinat.doc.htm
(19)
http://www.springerlink.com/content/v66202569010h882/fulltext.pdf?page=1
(20)
http://www.ausncp.gov.au/content/Introduction.asp?areaid=8
(21)
http://thanetonline.blogspot.com/2008/11/another-significant-chemical-pollution.html
(22)
http://minesandcommunities.org/Company/meeran3.htm
(23) Steiner and Alston – Int.Human Rights in Context 2007, pp 1350-2
(24)
http://europa.eu/documents/comm/green_papers/index_en.htm
http://www.oecd.org/dataoecd/23/33/37439881.pdf
(25) OECD Forum 2005 http://lysander.sourceoecd.org/vl=7809622/cl=13/nw=1/rpsv/cgi-bin/wppdf?file=5l4s00hb2gvh.pdf
(26)
http://www.state.gov/g/drl/rls/2931.htm
(27)
http://www.unglobalcompact.org/
(28)
Steiner and Alston – Int. Human Rights in Context, 2007, ch. 15 page 1396
BACK
‘MNEs are the great beneficiaries of globalisation, enjoying all of its advantages but suffering none of its negative externalities. They sail between private and public law regulation, unassailable and largely unaccountable’.
Discussion, highlighting the main characteristics of existing regulation and proposals for improvement.
A discussion upon the multinationals’(MNCs) activities and their legality could be considered unsatisfactory if it resumes to the classical already accusations brought to them that they are the globalisation’s first beneficiaries by far and that their legal situation couldn’t be clearly determined whether under a regime or another- public or private , instead the discussion should be also on the advantages they bring to the economies and their legal frame having enough fairness. For a better approach most proper would be a close analysis of each word in part that brings a ‘truth’ at first sight and a real accusation without doubts behind it, when instead the researches have sometimes the lacks inherent of not being able to cover all the reality.
The negative effects of multinational companies …encounter issues such as (the accusation that) they are leaving the developing countries out in the cold and secondly effects on labour market that are noticed not just in least developed countries (LDCs) but also in the most developed ones. Thirdly, the freedom of these powerful poles will neglect the outcomes such as polluting the environment and the crisis in financial sectors with creating instability. (1)
As Jonathon Porritt noticed in ‘Capitalism as if the world matters’ the international trade and foreign direct investments (FDI) having developed on a global basis, the multinationals have been seen on one side as saviours of the global problems including poverty and have been accused as contributors to the things that weren’t sustainable under capitalism (2).
The literature is abundant in positive and negative effects of globalisation but the most significant bring to surface other aspects like the propagation of these effects to three levels : global one, national respectively cultural , and family level and the religious aspect as well, considering the institutional meaning of it as standing in some countries aside the political or legal poles. (3)
There are multiple negative effects in the different categories, emphasizing the one of women as affected directly by the decision making discriminatory process in the companies , or, the effects as seen by the citizens as being just at a superficial level , not a clear awareness induced by the different stages of the ample actions, taken with, say the campaigns around products or trade policies.
In attention of the public is the symbiosis between poverty and globalisation: the beneficiaries of the great opportunities may be related as well with the victims. With basis on the article of Michael R. Anderson (4), the globalisation’s lack in the area of making justice when bad events occur from industrial processes , has the meaning in the institutional frame and lawlessness and the not completely developed constitutional aspect as seen in the modern globalised business world .
The news constantly bring out this connection as a certain effect of globalisation: the UN special rapporteur on the right to food , declared ( 12 december 2008) that ‘current WTO agreements on agriculture treated food like other commodities instead of respecting the human right to food. As a result the number of hungry people had risen to 963 million today from 852 million in 2005’ (5) Same, presently there are 33 countries in need of food aid because of war, floods, crop failures or high domestic food prices.
Indeed the cases of Bhopal or Thor Chemicals are shameful traces in the big steps of globalisation’s development but are in the same way or even more unforgettable, the happenings of today – on the 12th of December 2008 the news revealed the case of Nigerian children poisoned by their own parents with medicines that were counterfeit drugs. These pills were meant to bring a profit to Indian and Chinese companies, of $75 billion in 2010. More than 30 children died because of these drugs and Nigeria is in the frontline in the global fight against them . (6)
The multinationals are not rarely mixing into the states’ economies creating a disequilibrium due to their economic power, competing with more fragile national companies and leading usually in the competition .The actors may change and sometimes are affected the different other categories. Other times , when the companies are in bankrupt they will bring down with them all the boundaries created in long time; in USA , most recently VeraSun Leaves Corn Farmers going through such fall, has affected the many farmers that depended of its activity and there is no way for them to ever get their money as to the contracts so that economy registers a big gap in this sector until things will settle down again and the prices will attain reasonable levels on the market.
Being given the world’s new complex situation meaning the American financial crisis, as in the frame of globalisation , it is worth to remember in this context the way how a recession extends presently affecting the economies and the multinational entities, instruments of global trade . The economists are not surprised by the chain of reactions that propagate in the global stage, from the most important financial poles going to the companies worldwide, and further in the usual way to the lower levels affecting finally the individuals : Walden Bello , founder of the Third World Network said that "given the globalization of national economies over the last two decades, the downturn is going to be a synchronic one, and there is going to be no decoupling of one region from another." (7)
Benefits …are certain for the multinationals and they are the reason for the big investments that are made by them in different countries. The MNEs tend to invest in LDS , developing countries as they furnish them with labour, resources for production and other advantages such as cheaper lands or profitable companies they might buy to extend. The unsaid advantages encounter the poorer legal system that protect them from the whole responsibility if are accusations against them, or even silence. The national
courts of the host countries are certainly slow and giving delayed responses to the requests of the complainers.
Towards regulation, public –private…the negative effects are not a sufficient argument against the MNEs and if once their activity was seen as a way to open the gates to economic development , later the foreign investment was seen as economic imperialism and time showed that attacks against them were in multiple ways such as, in 1950 Galbraith affirmed in ‘The Affluent Society ‘ that commercial exchanges were not effect of consumer’s sovereignty but his enslavement to advertising , and also Galbraith considered that the distinction between public and private was another threat as from the companies, these having sometimes many assets that would seem as of general concern and strong legal basis in both sides, so that they sail between public and private and lean on the both margins with almost an ensured way of keeping the advantages from this position. Therefore his opinion that state ownership included in MNEs assets should be amended by the society .
Further on the governments’ concern should be in avoiding such investments and rather have sufficiency from their own economies. In 1993 The Economist published the information that the biggest 100 multinationals in the world have 50% of the cross border assets, and the 16% from world’s productive assets so that it would be unsure to firmly say that the multinationals are the real governors of production at world’s level and instead we should give enough importance to other factors- the governments and their own assets and legal system that protects all the interests and the general one.
De Sousa Santos in his book ‘Toward a New Legal Common Sense ‘ is making an overview of the infusion of law in society at national and international level (8) and explains how private law is working , in concern of the capitalism , as
complimented by fiscal, monetary and financial measures , into building an autonomous market society.
The private law as the author well points, comes to cover those imperfections resulted from market failures , so that the MNEs have been in this context some of the benefiters of the governments’ policies or the laws in private sector, it regulating for instance the granting of land, the repression or protection of trade unions, granting of patents. In the context of liberal capitalism the society used to have own market regulations and when to answer to questions that arise from powerful industrialisation, the laws had to interfere the same in problems such as poverty, epidemics, unemployment, alcoholism. The legal framework is needed from many practical reasons, including the enforcement of the contracts . The socio-economic life in its entirety needs the guiding legal frame and the state’s intervention in crisis situations and this is made through the private law.
Further the intervention of state in trade has become less visible because of the more growing powerful capitalism and increasing industrialisation. The mix of private and public law was due to the stringent need of rules where the workers’ rights needed protection and were tangent to these the economic law, labour law, social law that have the mixed nature (10). The administrative law and constitutional law became more concerned of the changes that appeared from the multinationals’ activities bringing the new socio-economic rights to life, as a form of human rights, in the constitutions, and also the administrative law has faced the problem of better allocating the resources and the passing was needed from autonomy to decentralisation to can achieve better the new challenge brought by companies’ ownership.
The compromise is a key to better overcome the difficulties of the classic state authority facing the liberal market that demands different approach and cooperation with the multinationals in many aspects. Therefore the laws are more softer and not
tightening the commerce and the multinationals have the position of benefiting from the supletive rules, in the way that they can better negotiate in many issues their own interests without rigidity from the institutions and can sometimes avoid completion of the workers’ rights, and even leading to abuses because of the missing legal control in all areas needed. Is the case of Bhopal, or of Cape plc case (11) showing how a national court couldn’t finally judge a case that was in its own jurisdiction but instead it was judged overseas where the legal system could ensure a better protection of rights.
In Cape plc case, many people in South Africa suffered from asbestos that leads to lung cancer, because of the asbestos mines and millers. The problem existed along many years, since 1893 to 1989 therefore almost a century of exploiting work in doubtful conditions, thing that became more and more clear in the contemporary frame and in UK the first law for asbestos was introduced, and in Africa there were no such rules. In addition, the child labour was ordinary notice and apartheid was also an usual thing in the multinational’s agenda.
The financial crisis couldn’t afford the compensations asked through the courts. The legal aid system was insufficient. As a follow, the London High Court was the one to judge the case in 1997 – it means even more than a century since the problems existed…The company indeed used the host country’s internal legislation fully into its own interest and ignoring the outcomes of its activity.
The way how things evolve quickly explains also the consequences of companies’ activities in people’s lives with sometimes tragic events and nobody to can be clearly blamed in a net of so many participants with a certain amount of responsibility involved. The private law can’t overcome the happenings as shown in Bhopal case, because criminal prosecution of the responsible persons is very hard when multinationals are involved. The international level is usually the first step to can approach these cases
and the national level, as a first step, proved inefficiency, even more in the developing countries with a fragile legal system that is not enough empowered sometimes.
In fact, in Thor Chemicals case, the South Africa courts charged the three managers with culpable homicide, and the fine was of 37,000 $ indeed insufficient thinking at the victims- three workers dead and more other victims, and this after one year from the happenings.
In Cape plc case it was very hard to access the justice and the country was characterised by a crisis in legal aid system. An interesting thing is that Cape plc sought to create the impression that its South African operations were a discrete business run independently by the subsidiaries (12). Cape plc is a company not participant in the UN Global Compact. (13)
In Bhopal case the Indian Government sued the company and rejected the offer of $5 million for the 40,000 victims so far (14) , and finally after 5 years had to pay $470,000 and paid immediately, but the estimated number of victims was of 400,000 (15)
Regarding the national legal system , there is no sufficient basis into creating a source of security to the masses as the main participants in industrial work and they request an improvement in the problem of lawlessness related to poverty, and is not enough in this discussion to encounter the public or private law’s role in the multinationals’ question towards advantageousness but also the judicial problem because the courts ensure the quality of law’s appliance, so that is worthy to mention the need of a legal reform related especially to abuse of power by the companies (16) .
The World Trade Organisation (WTO) requests already the need of reform especially for the environmental protection. Also prima facie a good legal frame is a sign for ensuring the justice in the cases of multinationals but in fact the cases showed that inadequate legal representation was same important as the existence of the law that
protects the right , or the fact that justice delayed is justice denied , or the lack of access to legal information and literacy means only the insufficiency of the presumption that citizens know the laws and in consequence they should know what to do or not do in relation to the multinationals.
Public law instead brings the conventions that are signed by the states hosts or homes of the multinationals and made in a grade responsible , but, not more than the
companies themselves in front of these conventions, as is the case of OECD Guidelines for Multinational Enterprises 1977.
It has the role of providing a wide-ranging social responsibility in : environmental protection, child labour, forced labour, transparency, consumer protection, taxation, transfer of technology. However they will remain as a guidelines with a certain voluntary nature and therefore having no sufficient force to can be defined as a legislative act made for ruling the MNEs’ activity.
The OECD Guidelines states that they are : ‘ companies or other entities established in more than one country and so linked that they may coordinate their operations in various ways. While one or more of these entities may be able to exercise a significant influence over the activities of others, their degree of autonomy within the enterprise may vary widely from one multinational enterprise to another. Ownership may be private, state or mixed.’ (17)
Beside the role of defining a multinational, the Codes of Conduct must prove in practice their efficiency when applied and they should do this firstly by overcoming the negative effects of their activities mostly noticed in the developing countries.
Going back in time the most tumultuous period of debates and conflicting situations arisen between them was in the 1960s and 1970s if to remember the case of ITT Chile and the speech of President Salvadore Allende in the U.N. General Assembly
(1972), as he sees their activity as an acute violation of the environmental rules in the context of affecting the sovereignty of the host government: the company did sink ‘their claws into my country’ as he said (18). The intense and nevertheless prejudicial activity of these companies led Muchilinski to affirm about them that they are ‘a challenge to the nation state, a creature with no loyalties except to itself…’ (19)
The OECD Guidelines for Multinational Enterprises is bringing the basis of their activity, with principles, standards, including amendments in taxation, anti-corruption, human rights, labour relations , environment , consumer protection, all these being applied to the 40 states that adhered to the Act (20).
Important, the Guidelines are result of debates between states having a compulsory nature, they don’t override the states’ will or replace it , because the states are provided with their own legislation and probably that is the main weakness of them and same time the strength in calling to a cooperation through friendly influence and mutual confidence spirit.
The need of a more strong legal framework is needed where the effects have been of such a nature to be stopped. The past is quite rich in bad examples if to remember the Bhopal case or Thor Chemicals and also Cape plc. In Thor Chemicals, the drinking water for population had a mercury level of 1000 times more than the standards given by the World Trade Organisation, because of the gaps in the activities of recycling .
In fact(21), the water was toxic and poisoned to death three workers and poisoned other more victims, in 1992. In attempt to distinguish the effect of national regulations and international, there was an impossibility to solve the case at a national level and this is a good example of the MNEs not suffering from their negative externalities , even so comparing the two countries of litigation, England having a better legal basis could better overcome the procedures at court.
Demanding a protection of the environment, the regional Department of Water Affairs and Forestry proved no efficiency when the company organised a
commission with no results achieved, and protecting the company’s interests. In the mentioned case, in UK was mentioned the absolute need of an existing ‘duty of care’ as referring to the international relations of the country, and as extended to EU level, the European Parliament proposed the compulsory system of social reporting on the effects on environment and social level (22) and is worth to present the measure of the
Commission of the European Union – EU Green Paper (23) that is a call to the nations to add their opinions towards this subject and meant to launch an interactive debate on this concern with following proposals.
The concern in this context of further development should be on Corporate Social Responsibility and at the OECD Forum 2005 it was stated about the awareness needed towards this concept and this prioritizing into agenda everywhere especially when to remember the workers’ conditions, the negative effects of conducting business , worker rights , respecting the internationally agreed standards.
Is constantly needed to remember the direct effect of the MNEs’ activitied on people’s lives . Fortunately the companies do not stop providing this issue to the society and is concluded that this pro-active role of them will grow.
With regards to the opinion that negative effects of the MNEs are of a more concern that positive effects they have, there is still the remark to be made that in the stage of international trade, there are more important forces that are coming back on possible bad happenings, there are the trade unions, human rights activists, consumer groups or investors to keep a good control and mostly, the companies’ own codes of conduct that are covering the mentioned aspects altogether with the environmental one.
Anyway, the companies sometimes use their codes to improve their relations with the customers and also can’t be replaced an appropriate legislation with the Corporate Social Responsibility. Even if the Guidelines are not legally binding for
corporations they are binding for the governments that signed them and the next step into improving would be of the governments to make these recommendations effective.
Another improvement is surely the expansion of the Guidelines to more states , and when solving the cases brought by the trade unions there should imperatively be a shorter time needed to it.
In the idea that the Guidelines can not be an enforcing act for respecting its own rules, there would be needed an international convention on the accountability of the MNCs. It should be able to ensure that the corporations will respect its rules and will pay in an appropriate way their own mistakes and with no delays , so that the legal basis will have an effectiveness.
The Guidelines will be just a preamble of these enforcing rules that empower a Court to judge the different cases after each one’s gravity , in this way being avoided the long way from national courts to international conventions and having more than the meaning of a Commissions’ investigations, as the role of truth commissions should be seen as through their real results (23).
The specialised court is mostly prepared and available to judge in shortest time the cases. For a better implementation of the Guidelines , has already been proposed the system of ‘peer group pressure’ to review the company when adopting best practices and complying to the principles.
Could be mentioned the need of improving the long time that trade unions face when rising a case in the Guidelines’ frame, and has been proposed the more need of focus on National Contact Points (NCP)in dealing with such cases, they are departments at one or more governments level or tripartite, quadripartite and as seen at
their 2006 annual meeting, (24) throughout their experiences after the 6 years’ review, has been noticed expansion in activity and involvement through meetings, training courses , campaigns, is important the effort of the European Commission into pursuing promotion of Guidelines in its external trade agreements (EU-ACP Economic Partnership Agreements- Cotonou cooperation), so are indeed done significant steps from the Guidelines’ view and even if the character of it will still remain as compulsory, the enforcement of the conventions signed as already noticed is already of a serious concern for the governments that are signing the international legal instruments in this matter.
By emphasizing the way how Guidelines are being put into practice, can be reached the conclusion that the whole institutional frame is of same importance as the contents of them, with a reserve to their primary nature of just guiding the companies.
The OECD Development Centre has the role to monitor the activity of multinationals and bring ideas of improvement, in its working paper no.257, there was monitored the way how Foreign Direct Investment has transformed the LDCs’ economic level with the infusion of capital, the way how MNCs can achieve quick new markets, technologies and better international connections (25)
Another attempt of improvement starting from a European Union’s member state to an international level was of UK and US in the Voluntary Principles on Security and Human Rights (26) this time the concern was on the extractive and energy sectors.
Going further, at global level has been proposed by UN Secretary – General Kofi Annan , the UN Global Compact with a set of ten principles (27) and they are statements towards human rights protection, child labour abolition, no forced labour, no discrimination, freedom of association, the environmental approach, all having the character of rather setting goals than imposing ,and missing a proper detailed layout for the companies that need to put to practice.
The ‘vagueness and apparent failure to generate significant pressure upon corporations’ (28) was the lack of the Global Compact , though it was able to attract important corporate support.
The need of a new legal frame is a necessity due to the constant changes in the global economy, and this can be made by trying to change the old things that didn’t prove enough effectiveness with new ones adapted at the present’s context. The MNEs are a target for many critiques but maybe not all of them true, what should be underlined is their ability to bring economic advantages not just for themselves but also for the host states, and not in a way to eclipse the state’s economical power but to be just an important part in its development. The legal frame should be more than compulsory and the intensified international cooperation could bring more advantages to it and more strength.
Bibliography:
(1)…Global Economic Institutions – Willem Molle , page 37
(2) Capitalism as if the world matters Jonathon porritt 2005 page 88
(3) … One world or many? – Richard Triplordy page 181
(4) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html
3 …Globalisation , public opinion and the state – Takashy Inoghchi, Ian Marsh page 76
http://www.btinternet.com/~ibas/lka_cape_comp_forgn_pla_0303.htm
(5)http://www.globalenvision.org/breakingnews
(6)http://www.cnn.com/2008/WORLD/africa/12/18/nigeria.poison.drugs/index.html?eref=rss_topstories
(7)http://www.alternet.org/workplace/102379/recession_depression_how_deep,_how_far_and_what_can_be_done/
(8) Toward a New Legal Common Sense, De Sousa Santos ,2002, page 81
(9) idem, page 80
(10) idem, page 48
(11) www.id21.org/insights/insights43/insights-iss43-art08.html
(12) http://hesa.etui-rehs.org/uk/newsevents/files/CapeMiners.pdf
(13) http://www.business-humanrights.org/Categories/Individualcompanies/C/CapePLC
(14) www.american.edu/TED/bhopal.htm
(15) www.americanedu/TED/bhopal.htm
(16) Michael R.Anderson Access to Justice and Legal Process : Making Legal Institutions Responsive to Poor People In LDCs
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTMOVOUTPOV/0,,contentMDK:20196900~isCURL:Y~menuPK:2551169~pagePK:210058~piPK:210062~theSitePK:2104396,00.html page 25
(17) OECD Guidelines
(18) The Annual Corporate Managers Dinner 1997 , speech of Roger Kerr
EXECUTIVE DIRECTOR Auckland NEW ZEALAND BUSINESS ROUNDTABLE 5 March 1997-
http://www.nzbr.org.nz/documents/speeches/speeches-96-97/multinat.doc.htm
(19)
http://www.springerlink.com/content/v66202569010h882/fulltext.pdf?page=1
(20)
http://www.ausncp.gov.au/content/Introduction.asp?areaid=8
(21)
http://thanetonline.blogspot.com/2008/11/another-significant-chemical-pollution.html
(22)
http://minesandcommunities.org/Company/meeran3.htm
(23) Steiner and Alston – Int.Human Rights in Context 2007, pp 1350-2
(24)
http://europa.eu/documents/comm/green_papers/index_en.htm
http://www.oecd.org/dataoecd/23/33/37439881.pdf
(25) OECD Forum 2005 http://lysander.sourceoecd.org/vl=7809622/cl=13/nw=1/rpsv/cgi-bin/wppdf?file=5l4s00hb2gvh.pdf
(26)
http://www.state.gov/g/drl/rls/2931.htm
(27)
http://www.unglobalcompact.org/
(28)
Steiner and Alston – Int. Human Rights in Context, 2007, ch. 15 page 1396
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