Law and Responsible Supply Chain Management: Contract and Tort Interplay and Overlap

195 Pages·2019·3.134 MB·English

by  Vibe Ulfbeck (editor), Alexandra Andhov (editor), Kateřina Mitkidis (editor)

Law and Responsible
Supply Chain Management
Corporate social responsibility (CSR) has for long been on the agenda in the
businessworldandrecently,ithasalsobecomeapoliticalagendaintheEuropean
Union.Focusingoninternationalsupplychainsandtheir controlbasedonstudies
of law in several European jurisdictions, this book aims to advance the discussion
on the application and enforcement of CSR. Drawing parallels to US and Cana-
dian law, the book explores to what extent private law tools can be used as an
enforcement device and it ultimately asks if what we are witnessing is the forma-
tion of a new area of law, employing the interplay of contract and tort – a law of
“production liability”, as a corollary of the concept of “product liability”.
Vibe Ulfbeck is a professor of private law at the Law Faculty at the University of
Copenhagen.
Alexandra Andhov (JUDr., LL.M., S.J.D.) is an assistant professor of corporate
law at the University of Copenhagen, Faculty of Law.
Katerˇina Mitkidis is an associate professor at the Department of Law, Aarhus
University.
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Law and Responsible Supply Chain Management
Contract and Tort Interplay and Overlap
Vibe Ulfbeck, Alexandra Andhov and Katerina Mitkidis
Law and Responsible
Supply Chain Management
Contract and Tort Interplay and Overlap
Edited by
Vibe Ulfbeck, Alexandra Andhov and
ˇ
Katerina Mitkidis
Firstpublished2019
byRoutledge
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Contents
List of tables vii
List of contributors viii
Preface xi
1 Introduction 1
ˇ
VIBEULFBECK,ALEXANDRAANDHOVANDKATERINAMITKIDIS
PARTI
CONTRACT LAW 13
2 From international law to national law: The opportunities and limits
of contractual CSR supply chain governance 15
KASEYMCCALL-SMITHANDANDREASRÜHMKORF
3 Contractual enforcement of CSR clauses and the protection of weak
parties in the supply chain 46
VIBEULFBECK,OLEHANSENANDALEXANDRAANDHOV
4 Enforcement of sustainability contractual clauses in supply chains by
third parties 65
ˇ
KATERINAMITKIDIS
PARTII
TORT LAW 89
5 Direct and vicarious liability in supply chains 91
VIBEULFBECKANDANDREASEHLERS
6 Liability for “greenwashing”?: On unfair commercial practices, the
legal duty to be transparent and the case for a “safe harbor” 110
LOUISEA.VYTOPIL
vi Contents
PARTIII
INTERPLAY AND OVERLAP OF CONTRACT AND
TORT LAW 131
7 Interplay between contract and tort in the supply chain 133
VIBEULFBECKANDOLEHANSEN
8 Developing supply chain liability: A necessary marriage of contract
and tort? 146
JAAKKOSALMINENANDVIBEULFBECK
Index 175
List of tables
2.1 Sectors and business areas of the 30 companies 18
2.2 Frequency of incorporation/referenceto international CSR standards 18
List of contributors
Alexandra Andhov (JUDr., LL.M., S.J.D.) is assistant professor of corporate law
at the University of Copenhagen, Faculty of Law. Alexandra holds an S.J.D. in
International Business Law from the Central European University (2015) and an
LL.M in International Business Law. She has been a visiting researcher at Cornell
LawSchool(2014)andOxfordLawSchool(2013).BeforejoiningtheUniversity
of Copenhagen, she was a research fellow at the Center for Integrity in Business
and Government at the CEU Business School (2012–2015) and she worked with
CMS Cameron McKenna in Budapest on their litigation and white-collar crime
team. Alexandra’s main areas of research are corporate law, corporate social
responsibilityandcapitalmarketlaw.Onthesetopics,shehaspublishedarticlesin
numerous European and US law journals and reviews.
AndreasEhlersisassociateprofessoroftortlawattheUniversityofCopenhagen,
Faculty of Law. He obtained his master’s degree from the University of Copen-
hagen in 2004 and subsequently worked for the law firm Kromann Reumert. In
2006, he was awarded the Sir Gerrard Brennan Scholarship at the University of
Queensland (Australia), where he obtained an LL.M. degree in 2007. In 2011,
Andreas published his PhD thesis on the doctrine of adequacy in torts. In 2017,
Andreas published an LL.D. thesis on causation and personal injury. Moreover,
Andreas has published several articles on tort law and related issues in Danish and
foreign law journals.
Ole Hansen is a professor of private law at the Law Faculty at the University of
Copenhagen. He is a co-founder and a member of the research centre the Centre
for Enterprise Liability (CEVIA). His area of research is general contract law with
a special emphasis on long term contracts and the interplay between public law
andprivatelawandlegalaspectsofprivategovernance.Hisdoctorateworkwason
construction law contracts and he is currently heading a research project on the
digitalization of construction law.
Kasey McCall-Smith is a lecturer in public international law and the director of
the LLM in Human Rights at the University of Edinburgh Law School. Her
research and publications examine reservations rules in the law of treaties and, in
particular, the way in which human rights obligations and treaty body outputs are
List of contributors ix
implementedandinterpretedinnationallegalsystems.Mostrecentlytheselinesof
enquiry have focused on the incorporation of human rights treaties, US detention
operations in Guantanamo Bay and modern slavery in global supply chains. She is
currently the executive chair of the Association of Human Rights Institutes.
Katerˇina Mitkidis is an associate professor at the Department of Law, Aarhus
University.Katerˇina’sresearchfocusesonthepracticeofusingprivatelawtoolsto
advancepublicinterests,especiallyintheCSRandenvironmentalregulationareas.
She has published a book on this topic, titled Sustainability Clauses in Interna-
tional Business Contracts, focusing on the interplay between sustainability goals
andinternationalcontractlaw(ElevenInternationalPublishing,2015).Kateˇrinais
also interested in the ways law and legal tools are designed and used to steer
behaviour in socially and environmentally sound and responsible directions. She
was a visiting scholar at Duke University (2016) and Vanderbilt University
(2012). Before joining academia, Katerˇina worked as legal trainee for Baker &
McKenzie, Prague office, and as a junior lawyer in Hájek & Zrzavecký, Czech
Republic.
Andreas Rühmkorf is a Lecturer in Commercial Law at the University of Shef-
field,UK.AndreashasaPhDfromthesameinstitutionandheisalsoadmittedto
the bar in Germany (Rechtsanwalt). His research interests are the legal regulation
ofCSRinglobalsupplychains,focusingonthedevelopinglawsinthisareainthe
home states of transnational corporations as well as company law and corporate
governance. Andreas is the author of the monograph Corporate Social Responsi-
bility, Private Law and Global Supply Chains (Edward Elgar Publishing, 2015).
Andreas has authored several articles and book chapters about CSR in global
supply chains.
Jaakko Salminen (LL.D., LL.M., M.A.) has focused on researching the role of
law in enabling, structuring and governing global value chains. Focusing on a tri-
fecta of comparative private governance, private law and transnational regulation,
Jaakko’s interests range from the theories, typologies and practices of governance
through contract to debating the amount of liability companies should have over
the environmental and labour contingencies of their transnational production
chains and through which legal means. Jaakko has lectured extensively in parti-
cular at the University of Turku Faculty of Law, presented his research at
numerous international conferences and participated in several externally funded
research projects. In 2017, he received his doctorate for the manuscript From
National Product Liability Regimes towards Transnational Production Liability:
Conceptualizing the Relationship of Law and Global Production.
Vibe Ulfbeck is a professor of private law at the Law Faculty at the University of
Copenhagen. She has an LL.M from the University of Cambridge, UK, and her
doctorate work was on the topic of privity of contract, for which she received the
Jorck’s Prize for excellent research. She is head of the research centre the Centre
for Enterprise Liability (CEVIA), of which she was one of the founders. She spe-
cializes in contract law and tort law with a special interest in private governance