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An Inquiry Into Responsible Business in a Neoliberal Age

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An Inquiry Into Responsible Business in a Neoliberal Age An Inquiry into Responsible Business in a Neoliberal Age Fachbereich Philosophie Technische Universität Darmstadt Zur Erlangung des Grades eines Doktors der Philosophie (Dr. phil.) genehmigte Dissertation von Alicia Hennig M.A. aus Darmstadt 1. Prüfer: Prof. Dr. Petra Gehring 2. Prüfer: Prof. Dr. Thomas Pogge Tag der Einreichung: 18. November 2014 Tag der mündlichen Prüfung: 29. April 2015 Darmstadt 2017 D17 Contents Preface IIIV Acknowledgements X Abbreviations XI 1 Introduction 1 2 Responsible Business: Theories, Approaches & Implementation 6 2.1 The Emergence of Responsible Business and CSR 6 2.2 Defining the Corporation 9 2.3 Legal Business Responsibility 11 2.4 Voluntary Business Responsibility 12 2.4.1 Theories and Approaches in Social Responsibility 12 2.4.2 Theories and Approaches in Environmental Responsibility 21 2.5 Implementation of Voluntary Business Responsibility 23 2.5.1 Guidelines and Principles 24 2.5.2 Initiatives 27 2.5.3 Certificates 30 2.5.4 Memberships 35 2.5.5 Ratings and Indices 37 2.5.6 Guidelines, Principles and Initiatives for the Financial Sector 39 2.6 Chapter Summary 40 2.7 Explaining Differences in CSR Approaches 42 2.8 Critical Analysis 43 2.8.1 Critique of the Theory of CSR 44 2.8.2 Critique of the Implementation of CSR 45 2.8.3 Overall Critique of CSR 48 References 3 Responsible Business in Practice: Case Studies 57 3.1 Case Study Methodology 57 3.2 Business Activities across the World 59 3.3 Case One: HSBC 62 3.3.1 Corporate Responsibility Strategy 63 3.3.2 Business Reality 66 3.3.2.1 Governance Issues 68 3.3.2.2 Environmental Issues 72 3.3.2.3 Social & Human Rights Issues 77 3.3.3 Communication Analysis 78 3.3.4 Voluntary Commitments & Standards Analysis 79 3.3.5 Case Conclusion 82 3.4 Case Two: JPMorgan 82 3.4.1 Corporate Responsibility Strategy 83 3.4.2 Business Reality 86 3.4.2.1 Governance Issues 87 3.4.2.2 Environmental Issues 92 3.4.2.3 Social & Human Rights Issues 99 3.4.3 Communication Analysis 101 3.4.4 Voluntary Commitments & Standards Analysis 102 3.4.5 Case Conclusion 104 3.5 Case Three: Hewlett Packard 104 3.5.1 Corporate Responsibility Strategy 105 3.5.2 Business Reality 107 3.5.2.1 Governance Issues 109 3.5.2.2 Environmental Issues 109 3.5.2.3 Social & Human Rights Issues 111 3.5.3 Communication Analysis 114 3.5.4 Voluntary Commitments & Standards Analysis 115 3.5.5 Case Conclusion 116 3.6 Case Four: Walmart 117 3.6.1 Corporate Responsibility Strategy 117 3.6.2 Business Reality 119 3.6.2.1 Governance Issues 120 3.6.2.2 Social & Human Rights Issues: Supply Chain 121 3.6.2.3 Social & Human Rights Issues: Walmart Stores 125 2.6.2.4 Environmental Issues 127 3.6.2.5 Other Issues – Product Issues 129 3.6.3 Communication Analysis 130 3.6.4 Voluntary Commitments & Standards Analysis 132 3.6.5 Case Conclusion 133 3.7 Case Five: Chevron 134 3.7.1 Corporate Responsibility Strategy 135 3.7.2 Business Reality 136 3.7.3 Communication Analysis 148 3.7.4 Voluntary Commitments & Standards Analysis 151 3.7.5 Case Conclusion 152 3.8 Case Study Summary 153 References 4 Corporations & Liability: History, Theories and Application 182 4.1 History 182 4.2 Corporations & Corporate Personality 185 4.2.1 The Corporation as a Legal Person 185 4.2.2 Corporate Personhood: A US Controversy 188 4.3 What is Corporate Liability? 189 4.4 Conceptualising Corporate Personality 191 4.4.1 Fiction Theory 192 4.4.2 Reality Theory 193 4.5 Corporate Liability in Practice 198 4.5.1 Liability Types 199 4.5.2 Examples of Corporate (Criminal) Liability 201 4.5.3 Corporate Criminal Liability at Court 202 4.6 Corporate Criminal Liability in Comparison 204 4.6.1 Corporate Criminal Liability in the US 205 4.6.1.1 The Common Law Model & Respondeat Superior 206 4.6.1.2 US Prosecution in Practice 207 4.6.1.3 Summary 213 4.6.1.4 Critique & Alternatives 214 4.6.2 Corporate Criminal Liability in the European Union 217 4.6.2.1 EU Criminal Law 218 4.6.2.2 EU Policies and Regulations 218 4.6.2.3 Summary 221 4.6.2.4 Corporate Criminal Liability in the Member States 222 4.6.2.5 Summary 227 4.6.3 Corporate Liability in Germany 228 4.6.3.1 Legal Situation 229 4.6.3.2 Recent Developments 232 4.6.3.3 Corporate Criminal Liability in Germany? 233 4.6.3.4 Summary 234 4.6.4 Comparing Corporate Liability in the US and in Germany 234 4.7 Chapter Conclusion 236 References 5 Global Politics & The Economy: Analysing the Status Quo 246 5.1 CSR, Sustainability and Sustainable Development 246 5.2 Current Legal Practice 252 5.3 International Politics and the Economy 257 5.3.1 The Emergence of Neoliberalism 258 5.3.2 Globalisation 264 5.3.3 Neoliberal Hegemony at Work? 268 5.3.4 State Autonomy under Threat? 272 5.4 What are the Alternatives? 273 5.4.1 Taxing Externalities 274 5.4.2 Closed Loop Approaches 280 5.4.3 Creating Shared Value 281 5.4.4 Inclusive Capitalism 283 5.4.5 Section Summary 284 5.5 The Question of Corporate Power 286 5.5.1 Corporate Tax Dodging 287 5.5.2 Corporate Wealth Grab 290 5.5.3 Corporate Usurpation 294 5.6 Chapter Conclusion 300 References 6 Conclusion: The Future of Responsible Business 311 References Curriculum Vitae 324 Preface This dissertation concentrates on responsible business in the neoliberal era. The reader is guided from a narrow perspective on responsible business – presented by corporate social responsibility (CSR) concepts and current CSR strategies applied by businesses – to the legal aspects of responsible business and finally to the bigger picture resulting from a closer examination of the prevailing political and economic conditions of our time. The version at hand presents a revised and updated version of my doctoral dissertation submitted to the department of philosophy at Technische Universität Darmstadt, Germany in November 2014. After my master thesis on morality and integrity in business submitted in 2008, I was interested in exploring the wider context of responsible business. The initial starting point was the question of human rights infringements by businesses. It was only later, in the course of researching and writing the case studies presented in chapter three that I learnt that most of the violations by businesses actually occur in the area of national legislation. This insight led to a fundamental turn from a focus on human rights to a focus on legal aspects of responsible business conduct. The new focus on legal aspects further led to complex issues: whether and to what extent a corporation could be perceived as a ‘person’, and how it came about that a corporation could be held liable for violations. These two fundamental questions related to responsible business conduct are addressed in this thesis. Examining various voluntary and legal measures in the context of responsible business left me somewhat discontent. Neither of these measures appeared to effectively promote responsible ways of doing business, except perhaps at the inception of voluntary business responsibility when this concept definitely presented a significant turn. Now, after 20 years of voluntariness the achievements so far with regard to business responsibility in social and environmental terms are not very convincing in view of stagnating initiatives by businesses. As many CEOs today feel a certain profitability and growth pressure they often pursue business strategies that frequently collide with corporate social responsibility initiatives. Meanwhile, the landscape of voluntary measures such as principles, guidelines, standards, and certificates has grown intensively. This led to the result that the many options available today potentially create confusion rather than clear guidance and direction among businesses VIII supposed to implement and apply these guidelines. Customers and consumers on the other hand are confronted with a vast number of different eco and fair trade standards or labels and initiatives and memberships touted by corporations they find more and more difficult to trust. Another inspiration for this thesis comes from my own professional work experience related to CSR. For more than two years during my PhD I worked for Deutsche Bank AG in Frankfurt at Group Sustainability. This department next to the Corporate Citizenship department (both linked with Deutsche Bank’s CSR department) is responsible for environmentally and socially responsible business conduct. So far, my work has equipped me with valuable insights into the actual application of these voluntary measures and the corporate strategy behind it. The empirical research in this thesis was particularly inspired by this working experience. Realising a potential gap between corporate communication on a company’s efforts regarding responsible business and its actual business practice inspired me to closely examine five companies’ approaches to corporate responsibility. In brief, this dissertation has been inspired by both theory and practice and aims to provide the reader with a more comprehensive perspective on the importance – but also the limitations of – responsible business today. IX Acknowledgements I would like to thank my supervisor Thomas Pogge from Yale University, Connecticut, United States for his excellent supervision of my thesis. Without frequent discussions on specific issues and his critical comments this thesis could not have developed the way it eventually did. Also, I would like to thank my supervisor Petra Gehring from the department of philosophy at Technische Universität Darmstadt, Germany, where I have submitted my thesis in November 2014.
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