Michaels, Ralf; Hennebel, Ludovic --- "Informal codes: Nike v. Kasky" [2019] ELECD 140; in Muir Watt, Horatia; Bíziková, Lucia; Brandão de Oliveira, Agatha; Fernandez Arroyo, P. Diego (eds), "Global Private International Law" (Edward Elgar Publishing, 2019) 161

Book Title: Global Private International Law

Editor(s): Muir Watt, Horatia; Bíziková, Lucia; Brandão de Oliveira, Agatha; Fernandez Arroyo, P. Diego

Publisher: Edward Elgar Publishing

ISBN: 9781788119221

Section: Chapter 8

Section Title: Informal codes: Nike v. Kasky

Author(s): Michaels, Ralf; Hennebel, Ludovic

Number of pages: 20

Abstract/Description:

As non-State norms (codes, industry standards, various sources of transnational soft-law) multiply to fill the gaps left by the limited reach of national laws, the question arises as to how to give self-regulation ‘teeth’. The answer may be easier in the context of arbitration. The courts, however, are usually constrained by the Westphalian paradigm which still governs private international law: they will only recognise as legal the laws of other nation-States. It is difficult to imagine a set of criteria with which to assess the legitimacy of normative claims by various groups or communities: Western legal systems adhere to political, not legal pluralism. Thus, a corporate code of conduct does not qualify formally as law-making under a State-centred methodology. However protective it is (or claims to be) of the rights of sub-contractors and stakeholders in far-away places, its ‘private’ origin has meant (at least until recently) that such a code does not provide grounds for contractual liability before the courts, nor does it serve as a legal foundation for tort liability. The lack of ‘legal bite’ of this code explains its very success among corporate manufacturers relocating industry to foreign environments.