Contractual Control in the Supply Chain On Corporate Social Responsibility, Codes of Conduct, Contracts and (Avoiding) Liability Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel: 1-800-944-6190 (toll-free) Fax: +1 503 280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. The commercial edition of this book is published by Eleven International Publishing ISBN 978-94-6236-591-9, © 2015 Louise Vytopil | Eleven International Publishing Cover picture © Julia Vytopil Layout Klaartje Hoeberechts, Utrecht University This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands Contractual Control in the Supply Chain On Corporate Social Responsibility, Codes of Conduct, Contracts and (Avoiding) Liability Contractuele controle in de handelsketen Over maatschappelijk verantwoord ondernemen, gedragscodes, contracten en (het vermijden van) aansprakelijkheid (met een samenvatting in het Nederlands) Proefschrift ter verkrijging van de graad van doctor aan de Universiteit Utrecht op gezag van de rector magnificus, prof.dr. G.J. van der Zwaan, ingevolge het besluit van het college voor promoties in het openbaar te verdedigen op vrijdag 26 juni 2015 des avonds te 6.00 uur door Anna Louise Vytopil geboren op 1 januari 1982 te Nijmegen Promotoren: Prof.dr. A.L.M. Keirse Prof.dr. M.L. Lennarts Acknowledgements This thesis would not have existed if it had not been for the following people, who deserve a word of thanks. First of all, my two supervisors: prof. Anne Keirse and prof. Loes Lennarts. They both enabled me to find my place at the Molengraaff Institute for Private Law, allowing me to develop my own research area, and gave me guidance and moral support whenever I needed it. I owe them much. Secondly, those who were willing to serve as members of the reading committee: Professors Willem van Boom, Adriaan Dorresteijn Ivo Giesen, Nicola Jägers and Martijn Scheltema. They invested their time and provided me with valuable comments. Peter Morris, Klaartje Hoeberechts and Titia Kloos not only helped me make this dissertation “camera-ready” and publishable; they also managed to point out a few oversights on my part and therefore I am very grateful. Moreover, a number of scholars and lawyers aided me when writing this dissertation. Professor Katherine Stone from UCLA School of Law deserves a special mention. She not only allowed me to participate at the School of Law as a visiting researcher but also to use her office during the summer. I will always have fond memories of my time in Los Angeles, not just because of the beautiful weather and campus, but also because of the warm (academic) welcome I received during this time. Professor Hugh Beale was willing to meet with me during my stay in England and discuss my theories of English law and codes of conduct with him. Rich Samp from the Washington Legal Foundation offered to read parts of my manuscript and did so meticulously, correcting any inaccuracies. Peter Morris from Utrecht University read and edited my manuscript, for which I am grateful. Any errors or oversights are mine alone. Thirdly, my colleagues at the Molengraaff Institute for Private Law (notably my colleagues from the second floor: Sandra, Ingeborg, Ingrid, Sanne-Roos, Hannah and Sonja) are an absolute joy to work with and make working at the Molengraaff a pleasure. Two colleagues who assisted me in the research and writing of this dissertation also deserve a special mention: Marjoleine Bosma, who helped me with the set-up of this research, and Freke Streng, who assisted in the concluding phase of writing this book. v Contractual control in the supply chain Fourthly, I would like to thank all those who were willing to be interviewed as part of this research. Your (combined) insights have lifted this research to a higher level and made my work ever so much more interesting. Finally, my friends and family. Paranymph Claartje, who was my running-mate during weekly runs in the Westerpark, and understood the frustrations (both major and minor) of the PhD-process better than anyone else; paranymph Anne-Marieke, who wrote a novel while I wrote my book and who has been one of my eldest friends. My sister Julia was a great help in the final stage of producing this book, by creating the artwork for the cover. My parents deserve special thanks. I will never forget how realistic my father was when I contemplated starting PhD-research in the summer of 2009; he advised me to see it as a job, rather than a life goal of some kind, and said that I would be sure to hate the book and research at times and that the prime task then would be to simply get it done and finish the research. I believe this greatly enabled me to see it as a job that I wanted to complete, thereby not allowing it to grow any bigger than necessary. Finally, my own family: Martijn, Stella, Alex and Quint. Martijn, thank you for being by my side literally and figuratively speaking, coming along to London and Los Angeles, and never complaining when I once more asked you to read something that you needed to fight your way through. You’re the best friend I could ask for. vi Table of contents Acknowledgements v Definitions and abbreviations xv Chapter 1 Introduction 1 1.1 Rana Plaza 1 1.2 Research 2 1.3 Structure of this book 4 1.4 Reading guide 6 Chapter 2 Research design and methodology 7 2.1 Introduction 7 2.2 Aim 7 2.3 Research questions 8 2.4 Research method 10 2.4.1 Jurisdictions: reasons and delimitation 10 2.4.2 Research design 12 2.4.3 Which companies were approached? 16 2.4.3.1 The Netherlands 16 2.4.3.2 England 17 2.4.3.3 California, United States 17 2.5 Model 17 2.6 Limitations and delimitations of the research 20 2.6.1 Limitations 20 2.6.2 Delimitations 21 2.7 Relevance of the research 23 vii Contractual control in the supply chain Chapter 3 CSR and the supply chain: setting the stage and identifying issues 25 3.1 Introduction 25 3.2 Setting the stage 25 3.2.1 Introduction 25 3.2.2 The rise of corporate social responsibility 28 3.2.3 Why CSR? 30 3.2.4 CSR: the current ((semi-)legal) status 34 3.2.5 Conclusion 35 3.3 The supply chain 35 3.3.1 Introduction 35 3.3.2 Supply chain strategy theory 35 3.3.3 Case study supply chain: Nike 37 3.3.4 Supply chain contracting and CSR 38 3.3.5 CSR in the supply chain 39 3.4 Conclusion 41 Chapter 4 Private international law 43 4.1 Introduction 43 4.2 The Netherlands and England 44 4.2.1 Jurisdiction 44 4.2.2 Applicable Law 45 4.2.2.1 Contracts 45 4.2.2.2 Pre-contractual phase 46 4.2.2.3 Torts 47 4.3 California 47 4.3.1 Jurisdiction 47 4.3.1.1 Jurisdiction in contract cases 50 4.3.1.2 Jurisdiction in tort cases 51 4.3.1.3 Alien Tort Statute 51 4.3.1.4 Other procedural aspects: class actions 53 4.3.2 Applicable law 55 4.3.2.1 Contracts 55 4.3.2.1 Pre-contractual phase 57 4.3.2.2 Torts 57 4.4 Final notes 59 viii Table of contents Chapter 5 Legal qualification of contracts, general terms and conditions and codes of conduct 61 5.1 Introduction 61 5.1.1 Contracts 61 1 5.1.1.1 Sources of contract law and contract formation 62 5.1.1.2 Content of the contract: requirements and interpretation 62 5.1.1.3 Rights and obligations for third parties 62 5.1.2 General terms and conditions 63 5.1.3 Pre-contractual questionnaires 63 5.1.4 Codes of conduct 64 5.1.4.1 Bindingness for the multinational 65 5.1.4.2 Bindingness in the supply chain 65 5.2 The Netherlands 66 5.2.1 Sources and principles of contract law 66 5.2.2 Contract formation 67 5.2.3 Content of a contract: requirements and interpretation 68 5.2.4 Pre-contractual questionnaires and content of the contract 70 5.2.5 General terms and conditions 70 5.2.5.1 When do general terms and conditions apply? 70 5.2.5.2 Regulation of content of general terms and conditions 70 5.2.5.3 Battle of the forms 71 5.2.6 Rights and obligations of third parties 72 5.2.6.1 Rights 72 5.2.6.2 Obligations 72 5.2.7 Codes of conduct 73 5.2.7.1 Bindingness of codes of conduct for the MNC in general 73 5.2.7.2 Bindingness of codes of conduct in supply chains 76 5.3 England 77 5.3.1 Sources and principles of contract law 77 5.3.2 Requirements for contract formation 78 5.3.3 Content of a contract: requirements and interpretation 81 5.3.4 Pre-contractual questionnaires 83 5.3.5 General terms and conditions 84 5.3.5.1 When do general terms and conditions apply? 84 5.3.5.2 Regulation of content of general terms and conditions 85 7 5.3.5.3 Battle of the forms 86 5.3.6 Contracts and the rights and obligations of third parties 87 5.3.6.1 Rights 87 5.3.6.2 Obligations 88 5.3.7 Codes of conduct 89 5.3.7.1 Bindingness of codes of conduct for the MNC in general 89 5.3.7.2 Bindingness of codes of conduct in supply chains 90 9 ix Contractual control in the supply chain 5.4 California, United States 91 5.4.1 Sources and principles of contract law 91 5.4.2 Contract formation 94 5.4.3 Content of a contract: requirements and interpretation 98 5.4.4 Pre-contractual questionnaires 100 5.4.5 General terms and conditions