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46 Harv. Int'l L.J. 411 (2005)
How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and Governance

handle is hein.journals/hilj46 and id is 417 raw text is: VOLUME 46, NUMBER 2, SUMMER 2005 How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and Governance* Dan Danielsen** It would seem to be a relatively uncontroversial claim among scholars, activ- ists, and policymakers that corporations are significant contributors to the shape and content of national and transnational regulation and that their con- tributions have significant effects on social welfare.1 Yet, despite this general consensus, scholars have focused little attention on explicating the precise mechanisms through which corporations contribute to transnational regula- tion and governance or the extent to which the social welfare effects of regu- lation and policy may be attributable to corporate activity.2 In this Article, I suggest the broad contours of a methodology for begin- ning to think about the question, How do corporations govern in the transna- tional arena? In so doing, I explore how scholarly attention to the role of corpo- rations in transnational regulation and governance can contribute to the de- velopment of a richer understanding of the functioning and effects of the exist- ing transnational governance regime. At the same time, through an analysis of some examples drawn from twelve years of practice as a transnational busi- ness lawyer, I suggest how an understanding of transnational governance, en- riched through a focus on corporate activity and decisionmaking, can expose new sites for political contestation and new strategies for intervention by regula- * Ideas for this Article were developed in connection with several academic presentations, including a panel presentation at the Wisconsin/Harvard Workshop on International Economic Law and Transnational Regu- lation at the University of Wisconsin Law School in November 2004, a presentation to the Byse Workshop on Transnational Identity, Governance and Law at Harvard Law School in November 2004, a lecture at the University of Sydney, Faculty of Law in June 2004, a panel presentation at the International Law and Its Others conference of The Melbourne Legal Theory Workshop, University of Melbourne, Faculty of Law in June 2004 and the Rethinking Strategy and Ideology: Progressive Lawyering, Globalization and Markets conference at Northeastern University School of Law in November 2003. I am grateful to all the participants in these workshops and events for their helpful comments and support. I am particularly grateful to David Ken- nedy for his encouragement and invaluable comments on prior drafts. ** Associate Professor of Law, Northeastern University School of Law. 1. In this Article, I focus on businesses operating in some manifestation of the corporate form. I do not mean to suggest by this focus that other forms of business entities are not important to transnational regulation and governance or that some of the analysis in this Article might not also be applicable to other forms of business entities. 2. One notable exception is JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION (2000).

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