What\u27s So Special about Multinational Enterprises: A Comment on Avi-Yonah

My analysis of the legal challenges posed by the growth of MNEs is based on an examination of a number of the examples used by Avi-Yonah to illustrate the working of his framework: piercing the corporate veil for mass torts (as in the Bhopal toxic chemical release), bribery, bankruptcy, child labor and antitrust. My approach focuses on the ways in which MNEs are special. To what extent do particular forms of behavior occurring within MNEs raise regulatory problems similar to problems raised by the same behavior occurring within other institutional arrangements, and to what extent does it raise problems that are different? Failure to ask these questions risks having the mere fact that a behavior occurs within an MNE obscure the most fundamental features of the question of who should decide whether and how to regulate the behavior. Only where the involvement of an MNE raises special problems is the application of MNE law even potentially justified. Part I is devoted to an examination of Avi-Yonah\u27s Bhopal, bribery, bankruptcy, child labor and antitrust examples. It will employ the assumption that the governments of the countries involved act to maximize the welfare of their citizens when regulating purely domestic versions of the same behaviors. Part II briefly considers whether the rise in MNEs particularly undermines this assumption and how my conclusions might change if it were abandoned