Erasmus Law Review

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Aflevering 3, 2022 Alle samenvattingen uitklappen

Access_open Why Can’t Stakeholder Theory Save the Planet and What Can Corporate Law Do Instead?

Trefwoorden stakeholder theory, corporate environmental sustainability, corporate reform, corporate interest, board of directors
Auteurs Seniha Irem Akin

    In the midst of a multidimensional crisis with economic, social and environmental aspects, corporations have become aware that the reality of our day necessitates that they must play a dual role both for their businesses and for the general public. A primary reason for the change in this perception is the alarming state of the environment and especially the potentially irreversible effects of the climate crisis. As a living and evolving entity within society, companies now take on the public duty to address the mounting concerns about the environment and adopt environmentally sustainable corporate strategies. While doing this, many of them refer to the stakeholder theory. Almost forty years ago, the stakeholder theory was introduced by Freeman as a management concept. Including environmental sustainability within the scope of the stakeholder theory is, therefore, a fairly new approach and raises the following question: Is the stakeholder theory the best tool to integrate environmental sustainability into corporate activity? This article will aim to demonstrate why the answer to this question should be ‘no’. Adding to this, it will then discuss how legal reform in the area of corporate law focusing on the key concepts of corporate interest and directors’ duties should be done instead.

Seniha Irem Akin
Seniha Irem Akin, LL.M., is PhD researcher at the Erasmus University Rotterdam in Rotterdam, the Netherlands.

Access_open Ecocide, Ecocentrism and Social Obligation

Trefwoorden climate, justice, duty of care, ecocentrism, ecocide, social obligation
Auteurs Frances Medlock en Rob White

    The cataclysmic consequences of climate change and biodiversity loss are revealed in the climate disruptions and escalating extinction of species around the globe. The causes of global warming are directly associated with carbon emissions, the result of the fossil fuel industry and deforestation. Species extinction stems from unfettered resource extraction and the contamination and modification of Nature linked to the growth imperatives of global capitalism. These are crimes of ecocide, crimes that involve foreknowledge, government-provided legitimacy and unprecedented harms to humans, ecosystems and non-human environmental entities such as rivers, mountains, trees, birds and koalas. This article synthesises ideas about ecocentrism, rights of Nature and ecocide within a general framework of criminal law (e.g. prohibition via criminalisation) and social obligation (e.g. prescription via a general environmental duty of care). How best to bring carbon criminals and environmental vandals to justice is the crucial question of our age. As with crimes of the powerful generally, there are profound difficulties in dealing with corporate criminality and state-corporate crime. And yet climate justice demands nothing less than transformative change in circumstance. An ecology-based general duty of care provides a framework whereby social obligation is entrenched in a manner that simultaneously reinforces the criminality of ecocide.

Frances Medlock
Frances Medlock, LLB, works at the Institution: Environmental Defenders Office (the largest environmental legal centre in the Australia-Pacific region), Melbourne, Australia.

Rob White
Robert White is Emeritus Distinguished Professor of Social Sciences at the Institution: University of Tasmania College of Arts Law and Education, Australia.

Access_open EU Competition Law and Sustainability

The Need for an Approach Focused on the Objectives of Sustainability Agreements

Trefwoorden EU competition law, sustainability agreements, efficiency gains, sustainability objectives, qualitative assessment
Auteurs María Campo Comba

    EU competition law potentially has a role to play in the pursuit of sustainability goals and the fight against climate change. The need to interpret the EU competition law provisions in a manner consistent with the sustainability objectives that the EU is committed to – the sustainable development goals (SDGs), and the EU Green Deal and derived policies – is emphasised in this article. While agreements between competitors are generally prohibited by Article 101 TFEU, cooperation agreements among market actors pursuing sustainability objectives (sustainability agreements) might in certain situations fall under the cartel exception of Article 101(3) TFEU. In recent years, there have been numerous calls to clarify conditions under which sustainability agreements can be allowed under EU competition law, especially under Article 101(3) TFEU, and there is a heated debate among academics, national competition authorities (NCAs) and the European Commission. After questioning whether the objectives and measures of the agreements are being properly assessed with the current trends (for example, with the willingness-to-pay method), this article will add to the debate another possibility involving a broad interpretation of Article 101(3) TFEU under which the pursuit of sustainability agreements will be facilitated. Such a possibility will largely depend on the objectives of the agreements themselves and may allow a proper consideration of the objectives of a sustainability agreement for certain cases, by focusing on agreements that pursue pre-established objectives derived from international or national standards or concrete policy objectives that are not previously mandatory for the companies involved.

María Campo Comba
María Campo Comba is a postdoctoral researcher at the Erasmus University Rotterdam in Rotterdam, the Netherlands.