Claves del derecho de redes empresariales. AAVV

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СКАЧАТЬ private codes claim validity for the members of the transnational corporations, public codes claim validity for the contracting states. The other is their different quality, as binding norm, on the one hand, and as mere normative recommendation, on the other. In terms of systems theory: The inner differentiation of the global legal system arises not through the emergence of a new kind of legal operations which would trigger an operative closure between the newly created subsystems. Rather the validity symbol is transferred in such a way that it creates boundaries between different legal orders. It brings about the structural closure by defining boundaries between different spaces of validity. Traditionally, the validity spaces are defined by territorial boundaries as in nation states, region or cities, in the transnational context they are of a issue-specific, functional or jurisdictional kind. Hence, one has to distinguish clearly between different forms of closure, operative and structural, which consequently also result in different ways how legal orders open up to each other. In this way, the private and public codes constitute two mutually closed legal orders, between which no transfer of validity takes place, but which influence each other in different ways.

      As I said at the beginning, in both legal spaces extensive normative networks have developed between different organizations, which then allows to understand the entire configuration as the relation of two different, mutually closed normative networks. The interrelation of these two closed code-networks certainly does not match the traditional relationship between private and public corporate constitutional norms. Often, it is therefore attempted to conceive the relationship itself as a single large network or even a network of networks, as a metanetwork between state and private actors.⁴⁶ This is not necessarily mistaken, but relevant differences disappear. The relation can be captured in more detail in the difference between “hypercycle” and “ultracycle”.⁴⁷ A hypercycle emerges when communicative operations within a closed network form cycles that are interlinked in a circular way. In contrast, an ultracycle emerges when a cycle of mutual perturbations is developed between closed networks. Within private codes of corporate networks, interlinkages are of a hypercyclical nature; between the cyclical legal operations, which connect to each other within different formal organizations (i.e., TNCs, their suppliers, and their sales organizations), interorganizational direct connections are developed. The validity symbols of private ordering are directly transferred via intraorganizational law and interorganizational contracts. Within this network of private legal operations, the private norms have a direct binding effect on participants and in instances of norm infringements, sanctions are ordered. In this way, a closed scope of private ordering emerges through the hypercyclical linkage of TNCs and other commercial enterprises.

      In an entirely different way, these mutually interlinked private codes are connected to public codes. For this kind of connection, unlike the model of the hypercycle, the ultracycle model is appropriate. Although public codes define certain politically desired obligations and establish the boundary between permitted and banned activities, they are only informal recommendations and mere appeals for certain conduct. They are also valid law, yet in a paradoxical form; they are law in force but without legal sanctions. This means that private codes, which present themselves as self-referentially closed validity circles, are not only entirely independent from public codes when it comes to their validity, but also that public codes cannot even connect normatively to private standardizations. They do not participate in the normative unity of the intra-corporate and intercorporate codes. Only from the outside, they can appeal, suggest, motivate, urge, or even compel, but they cannot command or suspend validity. They are only external irritations for the inner-validity cycle of private codes. The codes of the United Nations, the ILO, the OECD, and the European Union are mere constitutional impulses, which—certainly with great influence—international organizations send toward TNCs. Whether they indeed coagulate there into binding constitutional norms is not decided by the institutions of the state world but in the inner processes of private organizations.

3. Learning Pressures: Internal Self-limitations due to External Constraints

      If under certain circumstances, interrelations between the network codes emerge, then an ultracycle arises, a perturbation cycle between the public and private codes. In the usual descriptions of how private and public soft-law regimes are interrelated, the fundamental difference is concealed which exists between the hypercycle of private codes and the ultracycle of public and private codes. This should, however, not tempt one to dismiss ultracycles as mere political window dressing, as mere white noise of the state world, unable to affect the intra-company codices at all.⁴⁸

      What matters are learning pressures, i.e. internal changes induced by external constraints. Both elements have to be present in order to enable public and private codes to act in combination: an internal change of cognitive and normative structures and external pressure directed towards it. Otherwise ultracyclical linkages do not emerge, and public codes remain external impulses with no effects. Here, the above-mentioned special quality of mutual closure becomes apparent which makes possible a special quality of mutual opening. A transfer of validity between both is out of the question, instead learning pressures, that is other mechanisms of mutual opening, are developed.

      At this point, one of the most significant changes in the legal structure becomes visible, which occurs in the transition to world society. Niklas Luhmann described this change in the following way:

      “at the level of the consolidating world society, norms (in the form of values, regulations, purposes) do not anymore steer the pre-selection of the cognitive, rather vice versa the problem of adaptation through learning gains structural primacy and the structural conditions for the capability of all subsystems to learn have to be supported.”⁴⁹

      This means that the code-orders of the two networks do not simply communicate via the medium of law. The validity of normative expectations is not transferred from one network code to another via legal operations. Instead, learning processes of corporate legal codes are triggered, often even compelled, by non-legal media — by expertise, by political and societal power, by normative persuasion as well as by monetary incentives and sanctions. In this context, cognitive primacy does not mean that corporate codes lose their legal-normative quality and only function as mere cognitive expectation. It is only the relations between the two normative networks that become de-normativized. While the codes themselves remain normative orders, the relations between them switch to cognitive mechanisms.

      What does the first element of learning pressures — cognitive learning — consist of? The public codes only provide “templates”, behavioural models, principles, best practices, recommendations for the private codes. The ultracyclical linkage of both network codes triggers learning processes, which do not take place as validity transfer of rules within one legal order but run across the boundaries of mutually closed orders. Their particularity is that they do not amalgamate the involved orders into one unitary legal order with common legal operations, rather they are reconstructed via complex cognitive processes.⁵⁰ It is exactly this separation that makes possible a cognitive surplus value, which is generated when the sparks of perturbations jump across the boundaries between the involved codes. This may even lead to normative innovation. The ultracycle does not end their autonomy, rather it uses their autonomy to produce new norms, both of hard law in intra-company codes and of soft law in the codes of the state world.

      What makes the learning effect special? Corporate groups can use the public codes to gauge what societal expectations they face, without having to follow them completely. In this way the public codes counterbalance the tunnel vision developed by the private codes and provoke their re-orientation towards a transnational public policy. Public codes provide constitutional stimuli for learning similar to the normative demands placed on corporate networks by protest movements and civil society organizations.

      What does the second element — pressure — consist of? In this learning process, legal sanctions do not play a prominent role. Rather extra-legal mechanisms are responsible for the effect that corporate networks take public codes as compulsion for learning, and develop their own codes for their particular circumstances. In no way are these extra-legal mechanisms inferior СКАЧАТЬ