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Looking for Law in Unusual Places: Cross-Border Diffusion of Environmental Norms

Published online by Cambridge University Press:  06 May 2018

Natasha Affolder
Natasha Affolder*
Affiliation:
Allard School of Law, University of British Columbia, Vancouver, BC (Canada). Email: affolder@allard.ubc.ca.
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Abstract

Scholars of environmental law are gaining comfort with looking for law in unusual places. As a result, lists and maps of the environmental content of contractual provisions are emerging. What these lists and maps largely miss, however, is the powerful dynamic of how legal norms move across borders through contract. This article argues that contractual provisions operate as critical platforms for the migration of legal norms, ideas and technologies between project and transactional settings. Three dynamics of how this movement takes place (transfer from contract to contract, migration from contract to legislation, and entrenching private standards through contract) are explored – each revealing how contractual practices reproduce selective visions of what counts as the ‘environment’ worth protecting.

Keywords

Environmental contractsNorm diffusionIndigenous agreement makingPrivate environmental governanceLegal transfersInterview and participant data
Type
Article
Information
Transnational Environmental Law , Volume 7 , Issue 3 , November 2018 , pp. 425 - 449
Copyright
© Cambridge University Press 2018 

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Footnotes

I am grateful to the Social Science and Humanities Council of Canada for funding this research, to all those who generously agreed to be interviewed, to the TEL anonymous reviewers for their helpful insights and comments, and to Nicholas Healey for his superb research assistance.

References

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3 Witness the growth of climate change practice groups engaged in transnational carbon contracting, of natural resource agreement advising, of supply chain contracting-related legal work, and of commercial, insurance and regulated industry transactional environmental practice. For a discussion of the ‘contract transformation’ in United States (US) land-use regulation see Selmi, D.P., ‘The Contract Transformation in Land Use Regulation’ (2011) 63(3) Stanford Law Review, pp. 591–645 Google Scholar.

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6 Salacuse usefully introduces the ‘contractual’ as a legal space alongside the ‘national’ and the ‘international’ in describing legal frameworks governing international investment law: Salacuse, J.W., The Three Laws of International Investment: National, Contractual, and International Frameworks for Foreign Capital (Oxford University Press, 2013)Google Scholar.

7 It draws on a rich history of international legal scholarship that seeks to identify and problematize spaces that have been previously assumed to be unproblematic: see Johns, F., Non-Legality in International Law: Unruly Law (Cambridge University Press, 2013), p. 1 Google Scholar (problematizing ‘non-legality’); Stewart, J.G. & Kiyani, A., ‘The Ahistoricism of Legal Pluralism in International Criminal Law’ (2017) 65(2) American Journal of Comparative Law, pp. 393–449 CrossRefGoogle Scholar, at 402–3 (problematizing legal pluralism).

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11 The interviews upon which this research draws took place over a 10-year period and proceeded under the University of British Columbia’s Behavioral Research Ethics Board Certification. While not all of those interviewed requested anonymity, to protect the identity of those who did I refer to interview subjects here by a description of their role and the date and location of the interview. In the case of the study of the Ekati Mine, this involved a dozen interviews by the author with those involved in the drafting, negotiating and implementing of the Environmental Agreement (n. 32 below) and the institutions that evolved out of this contract. In the case of the Phoenix Islands Protected Area agreement, targeted interviews involved five individuals who were active in shaping this agreement and its wider legal and funding infrastructure. Each interview took place over at least an hour, involving a ‘snowball sampling’ approach where interview subjects identified others whose participation in the study they saw as essential for a complete understanding of the contractual experience. Full transcripts of the interviews are on file with the author.

12 A particular manifestation of this transfer of experience from the study of the Ekati Mine Environmental Agreement (n. 32 below) was my co-authoring of a report on environmental oversight to inform the environmental assessment process governing the Giant Mine Remediation: N. Affolder, K. Allen & S. Paruk, ‘Independent Environmental Oversight: A Report for the Giant Mine Environmental Assessment’, Feb. 2011, available at: http://reviewboard.ca/upload/project_document/EA0809-001_Independent_Environmental_Oversight_Report_1328898833.PDF. Walker makes the more general point that ‘global lawyers and jurists are primed to play a powerfully self-reinforcing part in the construction of the new normative space of global law’: Walker, N., Intimations of Global Law (Cambridge University Press, 2015), pp. 53–54 CrossRefGoogle Scholar.

13 OneCle is a legal research firm providing access to executed US business contracts and other legal documents. Its collection is available at: http://www.onecle.com.

14 EDGAR, the Electronic Data Gathering, Analysis, and Retrieval system, ‘performs automated collection, validation, indexing, acceptance, and forwarding of submissions by companies and others who are required by law to file forms with the US Securities and Exchange Commission (SEC)’, available at: https://www.sec.gov/edgar/aboutedgar.htm.

15 Vandenbergh, n. 1 above.

16 Cafaggi draws on the contents of a small number of contracts by Barilla and some other Italian producers: F. Cafaggi, ‘Transnational Governance by Contract: Private Regulation and Contractual Networks in Food Safety’, 29 Mar. 2011, available at SSRN: https://ssrn.com/abstract=1874749.

17 Mitkidis, n. 1 above, pp. 70–2 (considering standard form contracts of Telecom Italia, British Telecommunications, and Mondelez International available online, rather than executed contracts).

18 Danielsen, D., ‘How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and Governance’ (2005) 46(2) Harvard International Law Journal, pp. 411–425 Google Scholar, at 416.

19 Mulhall, R.A. & Bryson, J.R., ‘The Energy Hot Potato and Governance of Value Chains: Power, Risk, and Organizational Adjustment in Intermediate Manufacturing Firms’ (2013) 89(4) Economic Geography, pp. 395–419 CrossRefGoogle Scholar, at 397–8.

20 See, e.g., Coale, M.T.B., ‘Stabilization Clauses in International Petroleum Transactions’ (2002) 30(2) Denver Journal of International Law and Policy, pp. 217–237 Google Scholar.

21 Rosenblum, P. & Maples, S., Contracts Confidential: Ending Secret Deals in the Extractive Industries (Revenue Watch Institute, 2009)Google Scholar, available at: https://www.opensocietyfoundations.org/sites/default/files/contracts_20090915.pdf; Witness, Global, Heavy Mittal? A State Within a State: The Inequitable Mineral Development Agreement between the Government of Liberia and Mittal Steel Holdings NV (Global Witness, 2006)Google Scholar, available at: https://www.globalwitness.org/documents/.../mittal_steel_en_oct_2006_low_res.pdf.

22 Lin, L.-W., ‘Legal Transplants Through Private Contracting: Codes of Vendor Conduct in Global Supply Chains as an Example’ (2009) 57(3) The American Journal of Comparative Law, pp. 711–744 CrossRefGoogle Scholar; Mitkidis, n. 1 above, p. 71 (considering codes by Vodafone and Heineken). McBarnet and Kurkchiyan draw on interview-based studies to document this translation of corporate code of conduct commitments into contractual obligations: McBarnet, D. & Kurkchiyan, M., ‘Corporate Social Responsibility through Contractual Control? Global Supply Chains and “Other Regulation”’, in D. McBarnet, A. Voiculescu & T. Campbell (eds), The New Corporate Accountability: Corporate Social Responsibility and the Law (Cambridge University Press, 2007), pp. 59–92 Google Scholar.

23 For some thoughtful methodological questions on case study selection see Linos, K., ‘How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics’ (2015) 109(3) The American Journal of International Law, pp. 475–485 CrossRefGoogle Scholar.

24 Legally binding agreements between indigenous communities and mining companies are now negotiated in relation to almost all new mining projects in Canada and Australia, and are increasingly concluded in the US, New Zealand and, with growing frequency, a range of developing countries: O’Faircheallaigh, C., ‘Aboriginal-Mining Company Contractual Agreements in Australia and Canada: Implications for Political Autonomy and Community Development’ (2010) 30(1–2) Canadian Journal of Development Studies, pp. 69–86 CrossRefGoogle Scholar, at 79–80.

25 Craik and his co-authors identify that the Victor Diamond Mine impact benefit agreement (IBA) ‘consistent with other IBAs … contains chapters that provide for education and training, employment and business opportunities, social and cultural wellness programs, including specific chapters on women, elder care and youth, as well as environmental and resource protection chapters’: Craik, N., Gardner, H. & McCarthy, D., ‘Indigenous–Corporate Private Governance and Legitimacy: Lessons Learned from Impact and Benefit Agreements’ (2017) 52 Resources Policy, pp. 379–388 CrossRefGoogle Scholar, at 381 (emphasis added).

26 See Gibson, G. & C. O’Faircheallaigh, IBA Community Toolkit: Negotiation and Implementation of Impact Benefit Agreements (Walter & Duncan Gordon Foundation, 2015)Google Scholar, available at: http://gordonfoundation.ca/app/uploads/2017/03/IBA_toolkit_web_Sept_2015_low_res_0.pdf; O’Faircheallaigh, C. & Corbett, T., ‘Indigenous Participation in Environmental Management of Mining Projects: The Role of Negotiated Agreements’ (2005) 14(5) Environmental Politics, pp. 629–647 CrossRefGoogle Scholar.

27 For a description of these localized legal spaces and their relevance for scholars see Affolder, N., ‘Why Study Large Projects? Environmental Regulation’s Neglected Frontier’ (2011) 44(3) University of British Columbia Law Review, pp. 521–555 Google Scholar.

28 Craik, Gardner & McCarthy, n. 25 above, p. 386.

29 Le Meur, P.-Y., Horowitz, L.S. & Mennesson, T., ‘“Horizontal” and “Vertical” Diffusion: The Cumulative Influence of Impact and Benefit Agreements (IBAs) on Mining Policy-Production in New Caledonia’ (2013) 38(4) Resources Policy, pp. 648–656 CrossRefGoogle Scholar, at 655.

30 Commercial lawyers have been highlighting similar legal transfers in other contexts for some time. See Zumbansen, P., ‘Law & Society and the Politics of Relevance: Facts and Field Boundaries in “Transnational Legal Theory in Context”’ (2014) 11 No Foundations, pp. 1–37 Google Scholar, at 3.

31 Kielland, N., Supporting Aboriginal Participation in Resource Development: The Role of Impact and Development Agreements (Library of Parliament of Canada, 2015), p. 1 Google Scholar.

32 Environmental Agreement dated as of 6 January 1997 between Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development and the Government of the Northwest Territories as represented by the Minister of Resources, Wildlife and Economic Development and BHP Diamonds Inc., available at: http://www.monitoringagency.net/environmental-agreement.

33 Craik, Gardner & McCarthy, n. 25 above, pp. 379–80 (emphasis added).

34 Scholars often feel compelled to ‘give back’ in some way to communities where they have spent time conducting interviews, so this long-term participation is quite typical, although perhaps not well documented in legal scholarship. For an explanation of how advocacy evolves out of research relationships with communities see Kirsch, S., ‘Anthropology and Advocacy: A Case Study of the Campaign Against the Ok Tedi Mine’ (2002) 22(2) Critique of Anthropology, pp. 175–200 CrossRefGoogle Scholar, at 193.

35 Affolder, N., ‘Rethinking Environmental Contracting’ (2010) 21 Journal of Environmental Law & Practice, pp. 155–180 Google Scholar.

36 Interview with participant in agreement negotiations (Yellowknife, NWT (Canada), 16 July 2009).

37 The Canadian Environmental Law Association held a workshop in Lima (Peru) to review agreements between mining companies and Aboriginal communities in Canada. The North-South Institute in Canada published a case study of the Lutsel K’e Dene’s experience with the Ekati Mine: Weitzner, V., Dealing Full Force: Lutsel K’e Dene First Nation’s Experience Negotiating with Mining Companies (The North-South Institute & Lutsel K’e Dene First Nation, 2006)Google Scholar, available at: http://www.nsi-ins.ca/wp-content/uploads/2012/10/2006-Dealing-full-force-Lutsel-ke-Dene-first-nations-experience-negotiating-with-mining-companies.pdf.

38 See the Panel Presentation on Suriname and the Lutsel K’e Dene First Nation in Mining in or near Ancestral Lands in the Americas: Summary Report (The North-South Institute & Assembly of First Nations, 2005), available at: http://www.nsi-ins.ca/content/download/Summary_Report_Oct5_Eng.pdf.

39 Thus, in a conflict in Botswana over claims of the displacement of indigenous people of the Kalahari, BHP cited the Ekati example as a model of their successful relationship with indigenous peoples and their desire to negotiate with local communities: T. Price, ‘Kalahari Bushmen Take on Mining Titan over Right to Land’, Business Day, 8 Oct. 2004, available at: http://allafrica.com/stories/200410080435.html.

40 Mackenzie Valley Review Board, ‘Report of Environmental Assessment and Reasons for Decision: Giant Mine Remediation Project’, EA-0809-001, 20 June 2013, pp. 84–6, available at: http://reviewboard.ca/upload/project_document/EA0809-001_Giant_Report_of_Environmental_Assessment_June_20_2013.PDF.

41 Interview with participant in agreement negotiation (Vancouver, BC (Canada), 26 Aug. 2009).

42 Ibid.

43 Interview with participant in agreement negotiation (Yellowknife, NWT (Canada), 22 July 2009).

44 While these agreements are sometimes lumped together with good neighbour agreements and non-indigenous community-company agreements in other environmental justice contexts, this transferability may have limits.

45 Interview with participant in agreement negotiation, n. 41 above.

46 This has been the experience with the Ekati, Diavik, and Snap Lake Mines.

47 Llewellyn, D. & Tehan, M., ‘“Treaties”, “Agreements”, “Contracts”, and “Commitments”: What’s in a Name? The Legal Force and Meaning of Different Forms of Agreement Making’ (2005) 7 Balayi: Culture, Law and Colonialism, pp. 6–40 Google Scholar.

48 O’Faircheallaigh discusses the benefit of forming coalitions between ‘local actors’ and experts as a means to confront the technical problems of agreement making: O’Faircheallaigh, C., ‘Shaping Projects, Shaping Impacts: Community-Controlled Impact Assessments and Negotiated Agreements’ (2017) 38(5) Third World Quarterly, pp. 1181–1197 CrossRefGoogle Scholar, at 1191.

49 Practices differ with respect to confidentiality in Canadian and Australian agreements. While the same multinational mining companies operate in both jurisdictions and may thus have access to the contents of agreements, restrictions on community access to information on negotiation of proposed agreements is rare in Australia, yet a common practice in Canada: O’Faircheallaigh, n. 24 above, pp. 79–80.

50 O’Faircheallaigh’s work stands out in this regard based on the author’s large-scale study of commercial negotiations between mining companies and Aboriginal communities emerging out of the author’s role as a negotiator: ibid., p. 70.

51 Le Meur, Horowitz & Mennesson, n. 29 above, p. 655.

52 Drawing on two case studies of mining projects in New Caledonia, Le Meur and his co-authors point to examples of ‘positive productive horizontal diffusion’ through communities sharing strategic modes of engagement with other communities and to peer-to-peer learning pushing companies to comply with ‘best practices’: ibid., p. 654.

53 Gibson & O’Faircheallaigh, n. 26 above.

54 Australian Government, ‘Community Engagement and Development: Leading Practice Sustainable Development Program for the Mining Industry’, Sept. 2016, available at: https://industry.gov.au/resource/Documents/ LPSDP/LPSDP-CommunityEngagement.pdf.

55 Environmental Resources Management, ‘Mining Community Development Agreements: Practical Experiences and Field Studies: Final Report for the World Bank’, June 2010, available at: http://www.sdsg.org/wp-content/uploads/2011/06/CDA-Report-FINAL.pdf.

56 International Council on Mining and Metals (ICMM), Good Practice Guide: Indigenous Peoples and Mining (ICMM, 2015), available at: http://www.icmm.com/website/publications/pdfs/9520.pdf.

57 Rio Tinto, ‘Why Agreements Matter’, Mar. 2016, available at: http://www.riotinto.com/documents/Rio_Tinto_ Why_Agreements_Matter.pdf.

58 E.g., the Inuit Tuttarvingat used Australian agreements as a model to set out the common elements of impact and benefit agreements: C. Knotsch & J. Warda, ‘Impact Benefit Agreements: A Tool for Healthy Inuit Communities? Executive Summary’, Mar. 2009, pp. 21–2, available at:. https://ruor.uottawa.ca/bitstream/10393/30211/1/2009_IBA_Summary.pdf.

59 Tehan, M. & Godden, L., ‘Legal Forms and their Implications for Long-Term Relationships and Economic, Cultural and Social Empowerment’, in M. Langton & J. Longbottom (eds), Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom (Routledge, 2012), pp. 111–132 Google Scholar, at 116–8.

60 Two distinct sources of impact and benefit models that one might expect to have little overlap are those authored by Continuing Legal Education British Columbia (in Canada) and the Greenland Bureau of Minerals and Petroleum. A cursory examination of these models reveals that essentially all the headings of sections containing provisions, if out of order and with some variation, are present in both, and that there are no apparent ways in which the models diverge or contradict one another. Cf. P. Wilson, C. Hiller & Continuing Legal Education Society of British Columbia, ‘Drafting Impact Benefit Agreements’, 22 Nov. 2011, available at: https://www.cle.bc.ca/PracticePoints/ABOR/12-DraftingIBAs.pdf; with Greenland Bureau of Minerals and Petroleum, ‘Guidelines for Social Impact Assessments: For Mining Projects in Greenland’, Nov. 2009, p. 13, available at: https://www.govmin.gl/images/stories/ petroleum/SIA_guidelines.pdf.

61 For a valuable analysis of what the study of private legal transplants adds to the existing literature on legal transplant and diffusion, see Short, J.L., ‘Transplanting Law in a Globalized World: Private Transnational Regulation and the Legal Transplant Paradigm’, in F. Bignami & D. Zaring (eds), Comparative Law and Regulation: Understanding the Global Regulatory Process (Edward Elgar, 2016), pp. 430–436 CrossRefGoogle Scholar.

62 On the tendency to reduce the study of law’s circulation to discourses of ‘success’ and ‘failure’ see Nelken, D., ‘The Meaning of Success in Transnational Legal Transfers’ (2001) 19 Windsor Yearbook of Access to Justice, pp. 349–366 Google Scholar, at 349.

63 An example of this dynamic is the experience of Conservation International in Peru, which required a change in Peruvian law to allow for conservation concessions. In this case the Peruvian government was keen to channel foreign direct investment into forest protection rather than exploitation, and was thus willing to involve US conservation experts in drafting the new Forestry and Wildlife Law, which was passed in 2000. Changing the law governing forest concessions to allow for non-use was partially to accommodate Conservation International’s conservation concession plan: Interview with Conservation Economist (Cambridge, MA (US), 3 July 2012); Interview with Conservation Agreement Negotiator (Washington, DC (US), 12 Oct. 2014).

64 Interview with Conservation Contract Legal Counsel (Washington, DC (US), 21 Oct. 2014).

65 Interview with Conservation Economist, n. 63 above.

66 Interview with Conservation Agreement Negotiator (Seattle, WA (US), 3 Aug. 2011).

67 Interview with Conservation Economist, n. 63 above.

68 Interview with Conservation Contract Legal Counsel, n. 64 above.

69 Interview with Conservation Agreement Negotiator, n. 66 above.

70 Conservation Finance Alliance, ‘Practice Standards for CTFS’, available at: http://www.conservationfinancealliance.org/practice-standards-for-ctfs. These emerged out of the work of commissioned consultants and from two large multi-stakeholder meetings in Washington, DC (US).

71 Interview with Conservation Contract Legal Counsel, n. 64 above.

72 Shelley, P., ‘Contracting for Conservation in the Central Pacific: An Overview of the Phoenix Islands Protected Area’ (2012) 106 Proceedings of the Annual Meeting of the American Society of International Law, pp. 511–516 CrossRefGoogle Scholar, at 512–4.

73 Tong, A., ‘Foreword’, in G.S. Stone & D. Obura (eds), Underwater Eden: Saving the Last Coral Wilderness on Earth (University of Chicago Press, 2013), pp. i–x Google Scholar, at ix.

74 Republic of Kiribati, Phoenix Islands Protected Area Conservation Trust Act 2009 (No. 1 of 2009).

75 Acting under this new authority, the Phoenix Islands Protected Area Regulations 2008 were introduced, enacting a new legal framework for the PIPA. For a detailed description of the genesis of the partnerships and legal developments underlying this project see Rotjan, R. et al., ‘Establishment, Management, and Maintenance of the Phoenix Islands Protected Area’ (2014) 69 Advances in Marine Biology, pp. 289–324 CrossRefGoogle ScholarPubMed, at 294–6.

76 E. Niesten & P. Shelley, ‘Protecting Paradise’, in Stone & Obura, n. 73 above, pp. 107–21, at 119.

77 Ibid., p. 116.

78 Clinton Global Initiative, ‘PIPA Marine Conservation Model for Economic Development’, available at: https://www.clintonfoundation.org/clinton-global-initiative/commitments/pipa-marine-conservation-model-economic-development.

79 Rotjan et al., n. 75 above, p. 290.

80 Clinton Global Initiative, n. 78 above.

81 PIPA MELAD, ‘PIPA In-Brief Issue 8’, available at: http://www.phoenixislands.org/pdf/23%20August%2013%20Issue%208.pdf.

82 Conservation International, ‘Pacific Oceanscape’, available at: https://www.conservation.org/where/Pages/pacific-oceanscape.aspx.

83 Secretariat of the Pacific Regional Environment Program, Marine Protected Areas Agreement between New Caledonia and the Cook Islands, available at: https://www.sprep.org/biodiversity-ecosystems-management/marine-protected-areas-agreement-between-new-caledonia-and-the-cook-islands.

84 Ibid.

85 L. Mitchell, ‘Governing Large Marine Protected Areas: Insights from the Remote Phoenix Islands Protected Area’ (MA thesis, University of Guelph, ON (Canada), May 2017), p. 149.

86 Ibid., p. 145.

87 On the significance of mountains in the Māori worldview see Ruru, J., ‘Indigenous Peoples’ Ownership and Management of Mountains: The Aotearoa/New Zealand Experience’ (2004) 3(1) Indigenous Law Journal, pp. 111–137 Google Scholar, at 114.

88 Wai, R., ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ (2002) 40(2) Columbia Journal of Transnational Law, pp. 209–274 Google Scholar.

89 Dauvergne, P., Environmentalism of the Rich (The MIT Press, 2016)Google Scholar.

90 The Equator Principles, e.g., while framed as a leading example of private standards for project finance, derived much of their substantive content and procedural approach of risk rating from the International Monetary Fund (IMF) Performance Standards: Equator Principles III, 2013, available at: http://equator-principles.com/wp-content/uploads/2017/03/equator_principles_III.pdf. The Food and Agriculture Organization of the United Nations (FAO) co-mingles private and public standards for sustainable food systems in its list of voluntary standards: Meybeck, A. & Redfern, S. (eds), Voluntary Standards for Sustainable Food Systems: Challenges and Opportunities (FAO & United Nations Environment Programme (UNEP), 2014), pp. 114–117 Google Scholar, available at: http://www.fao.org/3/a-i3421e.pdf.

91 Contracts are invisible in many accounts of the governance of global value chains: see, e.g., Ponte, S. & Sturgeon, T., ‘Explaining Governance in Global Value Chains: A Modular Theory-Building Effort’ (2014) 21(1) Review of International Political Economy, pp. 195–223 CrossRefGoogle Scholar; Nadvi, K., ‘Global Standards, Global Governance and the Organization of Global Value Chains’ (2008) 8(3) Journal of Economic Geography, pp. 323–343 CrossRefGoogle Scholar. A welcome exception is Verbruggen, P., ‘Private Regulatory Standards in Commercial Contracts: Questions of Compliance’, in H.-W. Micklitz, R. van Gestel & R. Brownsworth (eds), Contract and Regulation (Edward Elgar, 2017), pp. 284–322 CrossRefGoogle Scholar.

92 Baars, G. & IGLP Law and Global Production Working Group, ‘The Role of Law in Global Value Chains: A Research Manifesto’ (2016) 4(1) London Review of International Law, pp. 57–79 Google Scholar, at 58; Sobel-Read, K.B., ‘Global Value Chains: A Framework for Analysis’ (2014) 5(3) Transnational Legal Theory, pp. 364–407 CrossRefGoogle Scholar. An early study of the environmental provisions in supply chains identified this phenomena as the ‘New Wal-Mart Effect’: Vandenbergh, M. P., ‘The New Wal-Mart Effect: The Role of Private Contracting in Global Governance’ (2007) 54(4) UCLA Law Review, pp. 913–970 Google Scholar.

93 Mitkidis, K.P., Sustainability Clauses in International Business Contracts (Eleven International, 2015), p. 6 Google Scholar.

94 Ibid., pp. 237–42.

95 Ibid., p. 161.

96 N. Affolder, ‘Transnational Carbon Contracting: Why Law’s Invisibility Matters’, in Cutler & Dietz, n. 5 above, pp. 215–36, at 222–3.

97 See, e.g., Lin, n. 22 above, pp. 715–6.

98 McBarnet & Kurkchiyan, n. 22 above, pp. 61–2.

99 Conference Board of Canada, ‘Sustainability Practices, 2012 Edition’, 30 July 2012, available at: http://www.conferenceboard.ca/e-library/abstract.aspx?did=4973.

100 Mitkidis, n. 93 above, p. 14.

101 Verbruggen, n. 91 above, p. 301.

102 Poncibò, C., ‘The Contractualisation of Environmental Sustainability’ (2016) 12(4) European Review of Contract Law, pp. 335–355 Google Scholar.

103 But see Vytopil, L., ‘Contractual Control and Labour-Related CSR Norms in the Supply Chain: Dutch Best Practices” (2012) 8(1) Utrecht Law Review, pp. 155–169 CrossRefGoogle Scholar; Mitkidis, n. 93 above, pp. 175–6.

104 See, e.g., Organisation for Economic Cooperation and Development (OECD), ‘Codes of Corporate Conduct: Expanded Review of their Contents’, OECD Working Papers on International Investment, 2001/06, May 2001, p. 8, available at: https://www.oecd-ilibrary.org/finance-and-investment/codes-of-corporate-conduct_206157234626.Google Scholar

105 Power, M., The Audit Society: Rituals of Verification (Oxford University Press, 1999)CrossRefGoogle Scholar.

106 For an example of such an ethnography, see Welker, M., Enacting the Corporation: An American Mining Firm in Post-Authoritarian Indonesia (University of California Press, 2014), pp. 3–6 CrossRefGoogle Scholar.

107 Mundlak, G. & Rosen-Zvi, I., ‘Signaling Virtue? A Comparison of Corporate Codes in the Fields of Labor and Environment’ (2011) 12(2) Theoretical Inquiries in Law, pp. 603–663 CrossRefGoogle Scholar, at 620.

108 Ibid., p. 621.

109 Ramus, C. & Montiel, I., ‘When Are Corporate Environmental Policies a Form of Greenwashing?’ (2005) 44(4) Business & Society, pp. 377–414 CrossRefGoogle Scholar, at 409; Perez-Battres, L.A. et al., ‘Stakeholder Pressures as Determinants of CSR Strategic Choice: Why do Firms Choose Symbolic Versus Substantive Self-Regulatory Codes of Conduct?’ (2012) 110(2) Journal of Business Ethics, pp. 157–172 CrossRefGoogle Scholar.

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112 In the Walmart Standards for Suppliers the only standard that actually references the natural environment is a provision relating to compliance with applicable law: Walmart, ‘Standards for Suppliers’, p. 6, available at: https://cdn.corporate.walmart.com/bc/8c/97ac8c9b43229f17480057fd684e/standards-for-suppliers-english-updated-6-30.pdf.

113 Swarovski, ‘Code of Conduct for Suppliers’, p. 6, available at: http://www.swarovskigroup.com/S/ aboutus/CoC_for_suppliers_English_01102013.pdf.

114 Vytopil, n. 103 above, p. 168.

115 Ferrando, T., ‘Private Legal Transplant: Multinational Enterprises as Proxies of Legal Homogenisation’ (2014) 5(1) Transnational Legal Theory, pp. 20–59 CrossRefGoogle Scholar.

116 L.C. Backer, ‘Theorizing Regulatory Governance within its Ecology: The Structure of Management in an Age of Globalization’, 16 Dec. 2016, p. 3, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2783018.

117 Riles, A., ‘From Comparison to Collaboration: Experiments with a New Scholarly and Political Form’ (2015) 78(1&2) Law & Contemporary Problems, pp. 147–183 Google Scholar, at 149.

118 See, e.g., Risse, T., Ropp, S.C., & Sikkink, K., The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press, 1999)CrossRefGoogle Scholar.

119 Gregory Shaffer offers similar observations with respect to conceptions of the ‘Environment’ at work in World Trade Organization (WTO) trade and environment committee meetings: Shaffer, G., ‘New Legal Realism and International Law’, in H. Klug & S.E. Merry (eds), The New Legal Realism: Studying Law Globally, Vol. II (Cambridge University Press, 2016), pp. 145–159 CrossRefGoogle Scholar.

120 P. Zumbansen, ‘How, Where and for Whom? Interrogating Law’s Forms, Locations, and Purposes’, 28 Apr. 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2786698.

121 See Heyvaert, V., ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6(2) Transnational Environmental Law, pp. 205–236 CrossRefGoogle Scholar, at 211.

122 Ruggie, J.R., ‘Reconstituting the Global Public Domain: Issues, Actors, and Practices’ (2004) 10(4) European Journal of International Relations, pp. 499–531 CrossRefGoogle Scholar, at 503.

123 I draw here on Dezalay and Garth’s idea of the ‘abstraction of international law’: Dezalay, Y. & Garth, B., Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1996), p. 3 Google Scholar.