Beruflich Dokumente
Kultur Dokumente
Jan M. Smits
FACULTY OF LAW
MAASTRICHT UNIVERSITY
SEPTEMBER 2016
This paper can be downloaded without charge from the Social Science Research
Network at http://www.ssrn.com
Electronic copy available at: http://ssrn.com/abstract=2831584
THE EXPANDING CIRCLE OF CONTRACT LAW
Jan M. Smits
Maastricht University
jan.smits@maastrichtuniversity.nl
Abstract
People and corporations are increasing held liable in private law for the external
effects of their actions, in particular in cases that involve some fundamental aspect of
“justice” such as severe violations of labour standards or threats to the environment.
These public interests are traditionally guarded by the state, but are now
increasingly enforced by private individuals, in particular in cross-border situations
where the injustice takes place in a “far-away” country. This contribution explores
what is the potential of contract law in dealing with this “private law justice across
borders.” It asks whether the doctrine of privity of contract should be traded in for
an approach that better takes the externalities of contracts into account. It is argued
that current contract law is ill-suited to deal with this challenge and should adopt
new techniques to expand the circle of people contract law seeks to protect.
Keywords: Contracts and third parties; Privity; Voidability; Private law justice;
Corporate Social Responsibility; Foreign direct liability claims; Externalities; “far-
away” countries
2
Jan M. Smits
1 Introduction
However, the sanctity of the dogma of privity does not mean that contracts do not
affect third parties. On the contrary, if one looks beyond legal doctrine at the reality
of contract practice, it becomes abundantly clear that individual contracts can affect
other people in many different ways. If I buy the etching entitled “Echoes and
Shadows” and hang it on my wall, I am depriving many others from enjoying it. In
the same vein, my decision to buy a Volkswagen will make pollution increase to the
detriment of others. Similarly, when two business partners agree to open a
restaurant, they are likely to lure customers away from existing eateries in the area.
The law usually does not consider these side effects of exchange as relevant. Yet the
question gaining importance in present-day society is whether this approach to
privity is still the right one and whether contract law should not expand the circle of
people it seeks to protect. This explorative contribution offers some thoughts on
1 See e.g. Hein Kötz European Contract Law I (1997) 245 ff.
2
Widely accepted in civil law jurisdictions, as reflected in art 6:110 of the Principles of European
Contract Law (PECL).
3
Fr example recognised in French law, on which Kötz European Contract Law 254, but not in all
o
jurisdictions.
4
Cf Michael J Trebilcock The Limits of Freedom of Contract (1993) 58 ff.
In April 2013, the world was shocked by the collapse of the Bangladesh Rana Plaza
garment factory killing more than 1100 workers. The factory mostly produced
garments for international clothing companies, including Benetton, Mango, JC
Penney, Primark and Wal-Mart. Interestingly, victims and their relatives filed a class
action in an American court against (inter alia) the American retailers, claiming that
5
the defendants were aware of the unsafe conditions at the place of work and failed
to inspect the building properly, thus violating both international human rights
6
standards and the American law of torts. Such a so-called foreign direct liability
claim aims to hold a wealthy party located in the United States liable for a wrong
committed by one of its suppliers or sub-suppliers in another country. One can
readily see why such a claim is brought: not only is it likely that the multinational
company has deeper pockets than the local employer, also as a matter of policy it
seems not so odd to consider the local supplier as part of a supply chain that reaches
all the way from the local employee to the multinational clothing company that
profits from the use of cheap labour.
1:2015cv00619 <pdfserver.amlaw.com/nlj/RahamanRanaPlazacomplaint.pdf>.
6
See eg Liesbeth FH Enneking “Crossing the Atlantic? The Political and Legal Feasibility of European
Foreign Direct Liability Cases” (2009) 40 Geo Wash Int'l L Rev 903 903-938.
7
Lubbe v Cape PLC [2000] UKHL 41 (HL), subsequently settled. For an overview of other cases, see
<www.business-humanrights.org/en/law-lawsuits>.
4
8
Kiobel v Royal Dutch Petroleum in which oil company Shell was sued (albeit
unsuccessfully) in the US courts for oil spills in the Nigerian Ogoni River Delta. 9
Such cases can also aim to protect the environment in general. A recent example is
the much publicised 10 Dutch Urgenda case in which a non-governmental
organisation together with 886 individual claimants sued the State of the
Netherlands, arguing that its climate policy was wrongful against them and future
11
generations. The district court ordered the State to ensure a reduction of carbon
emissions to 25% of the level of 1990. A direct claim against an energy company
before a German court is envisaged by the Peruvian farmer Saúl Luciano Lliyua. He
claims that German company RWE, as a major emitter of greenhouse gases, is
causing global warming and that he is directly threatened by this as a glacier close to
his home in Huaraz is likely to melt and cause repeated flooding. The claimed
12
damages of € 20 000 would allow Lliyua to install a glacial flood early warning
system. In much the same way as in the previously mentioned labour cases, these
claims aim to establish a legally relevant link between the party that benefits from a
certain activity (in these cases oil companies and carbon emitters) and the person
who is suffering damage as a result.
These examples show the increasing wish to hold people liable in private law for
the external effects of their actions, in particular in cases that involve some
fundamental aspect of “justice” like the above severe violation of labour standards
or threats to the environment. These are to a large extent public interests that are
traditionally guarded by the state, but which private individuals now increasingly
seek to enforce themselves. This does not come as a surprise as it is highly difficult
for a state to enforce its norms legally through public law across the borders of its
Court The Hague 30 January 2013 ECLI:NL:RBDHA:2013:BY9854 (Akpan and Milieudefensie v Royal
Dutch Shell), appeal is pending.
10
See eg Arthur Neslen “Dutch Government ordered to Cut Carbon Emissions in Landmark Ruling”
5
own country, and the vacuum must be filled by individual parties relying on private
law 13 They seek what could be called “private law justice across borders.”
.
However, the mere fact that these claims are increasingly made does not imply
that they will also succeed. Apart from issues of international jurisdiction, 14
are so closely and directly affected by the act of the multinational company that the
latter ought reasonably to have had them in contemplation as being so affected. In
other words, must Benetton, Royal Dutch Shell, and RWE regard a Bangladeshi
worker, an Ogoni fisherman and a Peruvian farmer as their neighbour in law? This
seems difficult to construe in the present law, even though the need is increasingly
felt to regard them as such.
Contract law provides another potential basis for liability. Benetton, Shell and
RWE must conclude a great variety of contracts with other parties (including
producers, suppliers and consumers) before they are even able to damage the
interests of the mentioned plaintiffs. As indicated in section 1, these are interests that
the present law usually considers as external to the contract and therefore as
irrelevant. This is not only true in international cases, but also in the typical domestic
16
situation of two parties in a distribution network who agree on a certain price or
quality, which will subsequently affect the downstream and upstream parties in the
chain. Existing contract law does not consider this worrying in any way, but here
too the question is whether this is indeed the right approach in present-day society.
13 See in more detail Jan M Smits “Het privaatrecht van de toekomst” (2015) 52 Tijdschrift voor
Privaatrecht 517-547.
14
The case of Kiobel v Royal Dutch Petroleum Co. 133 S.Ct. 1659 (2013), failed already on this ground.
15
Donoghue v Stevenson [1932] AC 580 (HL).
16
Roger van den Bergh “Private Law in a Globalising World: Economic Criteria for Choosing the
Optimal Regulatory Level in a Multilevel Government System” in Michael Faure & André J Van der
Walt (eds) Globalization and Private Law: The Way Forward (2010) 83.
6
There is one specific way in which contract law is relevant to the above cases. In
practice, companies tend to make unilateral declarations about their commitment to
the environment, fair labour and respect for human rights. They usually do so by
declaring that they will comply with voluntary codes for corporate social
responsibility. These Corporate Social Responsibility (“CSR”) Codes, including the
2009 King Code of Governance Principles for South Africa (“King18III”), 17 the 2011
United Nations Guiding Principles on Business
19 and Human Rights and the British
2014 Ethical Trading Initiative Base Code, contain guidelines for socially sensitive
businesses. Such codes may considerably raise the potential for claims. 20 If, for
example, multinational garment company A states that it will observe a CSR Code
that ensures safe and hygienic working conditions in the manufacturing of the
apparel it sells, but its suppliers or sub-suppliers do not provide for a safe working
place for their employees, many parties within the supply chain have an interest in
enforcement because they all share one another’s reputational risks. Thus, potential
claimants could range from the end-consumer to A ’s retailers, and any other
suppliers or sub-suppliers and their employees within the chain. 21
This does not mean that all these parties can in fact make a successful claim based
on the violation of a CSR Code. The scarce case law shows that the closer the
relationship between the claimant and the defendant, the higher the chances of
success. For example, the claim by the University of Wisconsin for breach of contract
against its direct contracting partner Adidas for not complying with anti-sweatshop
provisions, requiring Adidas to provide certain benefits to workers producing
college-branded apparel, led Adidas – settling in the shadow of the law – to pay
17 Institute of Directors King Code of Governance Principles for South Africa (2009).
18
Business and Human Rights Resource Centre “ U N Guiding Principles” (2015) Business and Human
the Disciplining Power of Legal Doctrine” (2016) 23 Ind J Global Legal Stud forthcoming.
7
22
The question that remains is therefore whether, despite the current reluctance to
allow claims in the above cases, emerging societal views about the importance of
corporate social responsibility have not developed in such a way that a claim must
be allowed in case of severe cross-border violations of labour standards or threats to
the environment. It may not matter too much whether the basis for this claim lies in
tort or contract because in both instances the ultimate question is which interests
private law must protect: only the interests of a victim who stands in a “direct”
relationship with the potential tortfeasor or of another contracting party, or also the
interests of people who are further away? Put differently: which relationship is
sufficiently close to be relevant for the law? My focus in the remainder of this
contribution is on contract law, for which I wish to phrase the question in terms of
externalities: which side effects of an individual contract must the law take into
account? Put differently: should contract law expand the circle of people it wants to
protect? It is impossible to answer this question without a small survey of the
current way in which externalities are dealt with by contract law and on what view
22 University of Wisconsin v Adidas claim filed on 13 July 2012 in the US federal court, settled in April
2013: see <www.business-humanrights.org/en/adidas-lawsuit-re-university-of-wisconsin#c18941>.
23
Doe v Wal-Mart Stores 572 F.3d 677 (2009).
8
of contracts this is in fact based (section 3). This leads me to explore an alternative
view and its consequences in section 4. Section 5 concludes.
It was seen in the above sections that contracts could have many external
consequences, but that the law does not always consider these. This section looks at
when the current law does still do so, and on which underlying view of contracts
this is based.
The focus of present-day contract law is almost entirely on what the contract
implies for the parties. Exceptions to the doctrine of privity are preferably seen as
consistent with the rule that only the parties can derive rights and obligations from
their agreement. This explains why the topic of unfair contracts or terms is seen as
24
being about unfairness in the direct relationship between the two parties.
Contractual fairness is at best a matter of applying doctrines such as good faith or
unconscionability. Parties need, to a certain extent, take into account each other’s
25
interests, not those of others who may also be affected by the contract.
This does not mean that the side effects of free exchange are never considered.
They are, but mostly through the doctrine of prohibited contracts. Underlying the
reasons for illegality – violation of a statute or of national public policy and good
morals (boni mores) – lies not only the wider interest of society in general, but often
also the wish to protect people who are not a party to the contract. This explains
why, in a previous26age, this overriding public interest curtailed the pernicious effects
of the industrial revolution, while today it still puts limits on a wide variety of
contracts including cartel agreements, discriminatory contracts, and contracts in
restraint of trade. A Dutch case provides a good example of how the interests of
third parties can inform the notion of good morals. In Club 13, a brothel was
purchased by a defendant who relied on making profits by renting out rooms to
prostitutes. The Dutch Hoge Raad considered this a contract that could be contrary to
25
26
24
9 On which eg Jan M Smits Contract Law: A Comparative Introduction (2014) 136.
For a European perspective: Kötz European Contract Law 124 ff.
See also Stephen A Smith Atiyah’s Introduction to the Law of Contract 6th ed (2005) 20 ff.
good morals if its foreseeable consequences
27 consisted of facilitating exploitation of
third parties such as prostitutes.
28
The true question is therefore not whether contract law considers externalities, but
which external effects it considers relevant and how it protects these as a matter of
29
legal technique. The answer that the present-day law gives is not optimal in view of
facilitating plaintiffs in “far-away” countries.
First, when it comes to the type of externalities taken on board, the current law
reasons that the more harm suffered by others as a result of contracting is taken into
account, the more freedom of contract would be curtailed. This is clearly in line with
30
the classical liberal view that contracting parties must be given full autonomy in
setting their own rights and obligations. The more externalities must be taken into
account, the less autonomy exists. This may explain why current contract law has no
well-defined concept of externalities: liberal political theory lacks a convincing
theory of how to accommodate harm done to others through contracting. 31 Defining
32
a practice as immoral if “the thought of it makes the man on the Clapham omnibus
sick” is all nice and well, but it is too open-ended for assessing whether contracts
leading to a severe violation of norms of corporate social responsibility must be
prohibited.
Economists may argue that these costs are preferably internalised, but are not able to
say in which cases this must happen, leaving open when the multinational company
Frontiers: A Capabilities Perspective on Externalities and Contract Law in Europe (2013) 95.
29 32
30 33
31
F his term: AJP Taylor “Far-Away Countries ” The New York Review of Books (06-06-1968). See for
o an overview of contract theories eg Robert A Hillman The Richness of Contract Law (1997). See
r Trebilcock Limits of Freedom 58 ff.
Lord Devlin’s view, as described by HLA Hart The Morality of the Criminal Law (1964).
t
See eg Richard A Posner Economic Analysis of Law 6 ed (2003) 71.
10
must bear the costs of bad labour practices or environmental damage suffered in
other countries. This means that the current law is in need of a new theory of when
the effects of contracts outside of the direct circle of the parties must be taken into
account.34
Even if one would be able to apply a more international version of public policy
and good morals, a second difficulty emerges. If we assume that certain types of
corporate behaviour violate public policy and good morals, it is doubtful whether
this leads to the desired legal effect. Following the maxim ex turpi causa non oritur
34 Tjon Soei Len The Effects of Contracts offers a theory based on Martha Nussbaum’s capabilities
approach to minimum justice.
35
See in a comparative perspective, Kötz European Contract Law 154.
36
Cf Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A).
37
Cf H-P Haferkamp “§138” in M Schmoeckel, J Ruckert & R Zimmerman (eds) Historisch-kritischer
Kommentar zum BGB Band I (2003) 708. Even though there is discussion about the question whether
public policy and good morals can also refer to a specific part of society and not only to society as a
whole.
38
Tjon Soei Len The Effects of Contracts 152 probably reaches a different outcome.
11
39
The conclusion from this section is that current contract law assesses externalities
of individual contracts mainly through the doctrine of prohibited contracts. This is in
line with a classical view of contracting that gives pride of place to the autonomy of
the parties in setting their own rights and obligations. However, this approach
suffers from the disadvantage that the doctrine of illegality is not particularly suited
to accommodate either a substantive norm on international corporate behaviour or
the consequences of violating this norm. This prompts the question whether an
alternative approach is possible.
12
43
what the law should be, and the instruments it uses, cannot change. This section
therefore aims to do two things. First, it explores whether any signs exist that today’s
societal views are changing with regard to the need to do justice in the type of cases
discussed in section 2. Second, it asks how these potentially changing views are best
realised within the current legal framework.
Any potential answer to the first question must start with asking about the effects
of globalisation on society. There is an increasing amount of literature that looks at
what it means for interpersonal relationships that the world is becoming ever more
connected in terms of communication,44commerce, and culture and in facing crises
45
such as migration and global warming. This literature explains that globalisation is
affecting our mode of thinking about ethics and law. Alan Fairnington has coined
46
the term selfish altruism, which would denote a break with the egoistic
consumerism of the past. He argues that the twenty-first century society will see
the rise of a new global morality with consumers who still want the best for
themselves, but not at the cost of others. They wish to avoid collateral damage in
their consumption pattern. Fairnington argues that this change in perspective is
caused by increasing sensitivity of people to the cost of consumption as a result of
issues like global warming, carbon footprints 47
and business scandals. Companies will
have to answer to this need for “real values.” On this view, ethical behaviour is no
48
longer opposed to self-interest: it is simply not in our interest to ignore ethics
because it will lead to global injustice and environmental catastrophe.
43 On this in the context of public policy David Ibbetson A Historical Introduction to the Law of
Obligations (1999) 213: Courts have always moulded their ideas of social needs and interests.
44
Jürgen Habermas The Divided West (2006) 175 describes globalisation as: “[T]he cumulative
processes of a worldwide expansion of trade and production, commodity and financial markets,
fashions, the media and computer programmes, news and communications, networks, transportation
systems and flows of migration, the risks generated by large-scale technology, environmental damage
and epidemics, as well as organised crime and terrorism.”
45
Cf Jeremy Rifkin The Empathic Civilisation (2010).
46
Alan Fairnington The Age of Selfish Altruism (2010).
47
Fairnington Selfish Altruism. See also John H Dunning (ed) Making Globalization Good: The Moral
Challenges of Global Capitalism (2003).
48
Peter Singer “The Drowning Child and the Expanding Circle” New Internationalist Magazine (April
1997).
13
49
If people were indeed becoming “do-gooders”, this would be in line with what
William Lecky referred to as “moral progress.” He wrote already in 1869:
“ A t one time the benevolent affections embrace merely the family, soon the circle
expanding includes first a class, then a nation, then a coalition of nations, then all
humanity.” 50
Now, the crucial point is whether this rise of ethical consumerism must also be
reflected in the law. Does tomorrow’s reasonable person have to take into account
the interests of third parties at far away locations? The problem here is not so much
the existence of a general legal norm that prescribes to do so. Many will accept that
there must be an enforceable obligation to avoid labour exploitation and
environmental damage, but the real problem is against whom this norm can be
enforced. It is impossible to give an answer without considering the exact
relationship at hand. When it comes to the liability of the multinational company vis-
à-vis the local employees in another country, 54 I have already hinted at arguments
that speak in favour of extending the scope of liability. If the multinational company
profits from the use of cheap labour within the supply chain, it could be argued that
49 Larissa MacFarquhar “Extreme Altruism: should you care for strangers at the expense of your
14
it must also be responsible for the working circumstances of the labourers employed
by its subcontractors. This argument is even stronger if the company adheres to a
CSR Code containing committing
55 language about the intention to comply with
acceptable labour standards. Another argument is that the multinational company
is better able to insure against the risk of disaster than the local employer. However,
much depends on the exact circumstances and I do not believe that a general legal
norm against violations of corporate social responsibility has already matured. 56 The
55 Much depends on how the CSR-Code is formulated: see Smits (2016) Ind J Global Legal Stud.
56
See for this cautious approach Smits (2016) Ind J Global Legal Stud and for a cautious opposite view
Hugh Collins, “Conformity of Goods, the Network Society, and the Ethical Consumer” (2014) 22
European Review of Private Law 619 619-640. Beckers Enforcing Social Responsibility Codes argues in favor
of legislative intervention to regulate third-party rights.
57
See in more detail Jan M Smits “What is legal doctrine? On the aims and methods of legal-dogmatic
research” in Rob van Gestel, Hans Micklitz & Edward L. Rubin (eds) Rethinking Legal Scholarship
(2016) forthcoming.
58
For opposing views of the role of distributive justice in private law see Ernest J Weinrib Corrective
Justice (2012) and Martijn W Hesselink CFR and Social Justice (2008).
15
externalities into account. Theoretically, we may then enter a field that lies in
between the private and the public, and the corrective and the distributive.
The legal instrument best geared towards doing such private law justice across
borders would allow a party to seek redress that not only satisfies his own interest,
but also contributes to achieving the wider collective goal of preventing the same
type of damage to occur in the future. In the contractual setting of a party able to
rely on a CSR Code (which, as we saw, will depend on the exact wording of the code
and the relationship between the parties), the action to be brought would ideally
consist of forcing the company to perform its proclaimed policy in the future. This
necessarily entails a shift from damages claims towards injunctions. A claim in tort
law will also preferably consist in preventing someone from causing damage instead
of in compensating losses already suffered. In brief, the shift necessary to deal with
the externalities identified in this contribution is a shift from compensation towards
prevention. This naturally requires a judge who is willing to take up this more
political role.
One firm conclusion can be drawn from this section – externalities of contracts
need not only be dealt with through the unpolished technique of declaring a contract
unenforceable. The interests of third parties such as labourers and farmers in far-
away countries can also be protected by other means. However, expanding the circle
of contract law in this way does require a moving away from contractual autonomy.
Privately enforced injunctions avoid that negative externalities will occur at all.
5 Instead of a conclusion
This contribution is in many ways an exploration. The nice thing about exploring a
new area is that one is likely to find new things; the bad thing is that one is not sure
how to deal with the newly found. Is it really a new species or only an existing one
in disguise? The claim made in the above is that we are indeed facing a new
challenge in private law. In our increasingly interconnected world, courts are
increasingly confronted with cases in which some type of cross-border justice is
sought for violation of labour standards or environmental damage. This invokes the
need in both the law of delict and contract to reflect upon the externalities that are to
16
be taken into account. The traditional solution of contract law is to do this primarily
by declaring contracts unenforceable, but this is not the optimal solution. Instead, we
are in need of private law remedies that prevent a party from doing wrong. This
means that a public goal is partly achieved through private law means. Future
contract law may therefore no longer be just a matter of the doing of “simple
59 justice
between man and man”, as the South African court once called it, but also of
including the interests of third parties. With this, the circle is indeed expanding.