The Conundrum of Corporate Social Responsibility: Reflections on the Changing Nature of Firms and States

The Trail Smelter Arbitrations of 1938 and 1941 still figure as landmark cases in International Environmental law, despite the fact that the debate continues what lessons ought best to be drawn from these proceedings. In the context of contemporary work in the area of transnational corporate activity, wrongful corporate behaviour such as environmental harm or human rights abuses, Trail Smelter can serve as a starting point for the study of effective regulation of trans-territorialized conduct of private actors. The paper highlights the challenges faced by both the persisting attempts to sue multinational corporations before domestic courts and those hoping for efficient outcomes resulting from corporate self-regulation, predominantly under the heading of corporate social responsibility (CSR). The paper places both discussions against the background of an emerging transnational law of corporate regulation, which is characterized by a mixture of domestic and international, public and private regulatory instruments. It is against this background that the lessons from Trail Smelter for the regulation of corporate conduct must be drawn with respect to the transformation of state regulation and the increasing reliance on private self-regulation