Claves del derecho de redes empresariales. AAVV

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СКАЧАТЬ but at the same time also to the economic code. It therefore subjects to reflection all economically binary coded operations of the corporation, whether they comply with the principles of the public responsibility of the corporation or not.

      The constitutional meta-coding is therefore a hybrid. It serves as a fictional unity for two different constitutional reviews within the corporation. It is, on the one hand, placed hierarchically above the legal and, on the other hand, above the economic binary code. Therefore, it assumes a different meaning depending on whether it reviews the economic or the legal code. In economic contexts, it serves for reflecting the social responsibility of the company and seeks to identify strategies for environmentally friendly economic activities. In the context of corporate law, it introduces the distinction between simple and constitutional law and reviews simple legal acts for their compliance with the values and principles established in the corporate constitution. The meta-coding triggers the re-entry of fundamental principles of economic organization into the law as constitutional principle and vice versa the re-entry of law in the corporate organization.

Thesis # 4: Constitutional Institutions: Private and Public Codes in an Ultracycle

      Even if in this way constitutional functions and structures can be identified, it remains still difficult to capture the institutional structure of corporate codes in more theoretical detail. Some authors describe them as the “new sovereignty” of transnational corporate networks and stress thereby their unrestrained self-regulation.³⁸ However, this does not do justice to their numerous normative dependencies on the environment; because the currently relevant corporate codes emerge from the conflicts between three groups of actors —, civil society groups, transnational corporations plus their delivery and distribution organizations and supranational institutions — whose mutual relations remain however unclear.

1. The Inversion of Nation State Hierarchies

      Other authors try to model these relations as “governance triangles”.³⁹ This is, however, similarly inadequate for grasping the social embedding of the codes. It suggests mistakenly that a transnational equivalent emerges to the state-organized neo-corporatist triangle of the European welfare states. In comparison to the nation states, one is here however confronted with a totally different constellation in the relation between these three social forces. Also the model of “multi-level-governance” is hardly appropriate for capturing the peculiar interplay of the two transnational types of code.⁴⁰ In the nation state, corporate constitutions could certainly be conceived as a multi-level arrangement of constitutional norms, legal and judicial rules, on the one hand, and intra-organizational private ordering on the other. But its transfer to global corporate constitutions is mistaken. The different conditions of the transnational as well as the results of the first wave of societal constitutionalization, especially the high autonomy of transnational corporations, have fundamentally changed the relations between public and private collective actors compared to the corporate constitutions of the nation state. In the drastic words of an observer:

      “Contract replaces law; networks of relationships replace a political community; interest replaces territory; the regulated becomes the regulator.”⁴¹

      In the corporate constitutions of European nation states, as is well known, the linkage between public and private norms took place in hierarchical formations. The corporate constitution was based on a clear primacy of the state in the form of constitutional, statutory and judicial norms. The private ordering of corporations remained clearly subordinate to state law; it remained limited to those spaces of autonomy state law had left. This hierarchy of norms can be captured in the conceptual pair hard law / soft law.⁴² The state enacts hard law in company law, in the law of co-determination and in regulation law in the form of binding and sanction-reinforced norms. In contrast, intra-corporate norms are only a kind of soft law. As a manifestation of private autonomy they are not recognized as genuine legal norms, because their obligatory nature and enforcement depend on state recognition, and because they are subject to the review of state courts, whose results often repeal and change them.

      In comparison to this traditional hierarchy, one can detect significant changes in the transnational codes which do not match the standard categories. In the interplay of the two corporate codes, a downright inversion of the hierarchy between state law and private ordering can be observed. A dramatic reversal takes place especially in the hard-law / softlaw quality of the public and private corporate codes: Now, it is the state norms that feature the quality of “soft law”, while the mere private ordering of transnational corporate networks emerges as new forms of “hard law”.

      The norms under international public law, which, for instance, the UN enacted in the Codes of Conduct for Transnational Corporations, are not comparable with the binding norms passed for the corporate constitution by parliaments and constitutional courts of the nation states. Although it was initially planned in the 2003 “Draft Norms on the Responsibilities of Transnational Corporations” that a supranational regulatory body should directly regulate the conduct of transnational corporations with the help of sanction-reinforced norms binding under international law,⁴³ the massive resistance of influential nation states and of the corporate lobby marked a turning point. The finally passed version contained merely “soft law”: non-binding recommendations whose implementation cannot be enforced by legal sanctions.⁴⁴

      On the other hand, intra-corporate network codes are merely non-state private ordering, but in fact they are the governing law of the land with a high degree of binding force and effective sanctions. Private law doctrine still contests vehemently their genuine legal character, since it insists upon the state deduction of normative validity claims and does not recognize private ordering as law. And it is only gradually that economically and sociologically inspired concepts of law emerge, which assign legal character to the normative orders of private transnational actors — under particular circumstances.⁴⁵ Intra-company and inter-company codes are directly binding for the actors involved, and they are equipped with effective sanctions, which are executed by newly created compliance departments.

      In this way intra-corporate and inter-corporate organizational law seals itself off from the state law. In direct opposition to the usual norm-hierarchical relation between state and private law, public codes do not work as the constitutional basis for the authorization of the private codes. They produce their own validity from the linkage of primary and secondary norms in the realm of private ordering. They constitute a closed non-state system of legal validity, which is itself structured hierarchically. As already mentioned above, the top level encompasses the general principles of the corporate constitution, the middle level regulates enforcement and monitoring, the lowest level includes concrete rules of conduct. They thus generate their authorizing foundation themselves by their own constitutive rules. And intra-company rules, which regulate conduct according to the legal code, are reviewed themselves according to the constitutional code.

2. Hypercycle and Ultracycle

      Inversion of hierarchy does still not go far enough. While there is a clear factual and normative primacy of the private over the public codes, the primacy is of no hierarchical nature. Rather more appropriate is the exclusion of the public by the private. State norms are not subordinated to private norms, rather they are banished from the interior of norm setting into the corporate environment. With this, the notion of a unitary legal space of state and private rules becomes obsolete. Instead, two independent legal spaces develop, an autonomous, privately ordered, coercive inner law of corporations and a state regulated ensemble of normative recommendations of conduct.

      While it seems obvious that they form two mutually closed legal spaces it is not easy to determine what constitutes their closure. In any case, it is not the operative closure of social systems in the strict sense that separates them. Their closure is not based on the difference between their operations, as both code-orders are processed by the same type of operations — legal acts. Rather, it is a mutual structural closure that arises from two differences. One is the strict limitation СКАЧАТЬ