| The establishment of the company’s legal system stems from the needs of economic development itself.This system is undoubtedly a legal innovation across the ages.With the development of the global economy,multinational corporations undoubtedly play the role of linking the economic development of various countries.They have promoted the development of the world economy and have reshaped the global rules,policies,and value systems to a certain extent.This type of company has formed a force capable of confronting sovereign states.It has a network of resources all over the world,and it also has the power to influence global governance.At the same time,the development of multinational corporations has caused many problems such as environment,human rights,labor,corruption and so on.This kind of social and economic issues challenge the traditional theory of company system.The international community has paid attention to this phenomenon and focused on restricting its behavior through legal mechanisms.But until now,the international community has still failed to form a systematic hard law mechanism for multinational companies.How to deal with the negative problems caused by multinational companies in a pragmatic manner? Why does the autonomy of multinational companies fail? Is there a specific legal path to regulate multinational companies in each country?Is it possible to provide corresponding mechanisms under existing judicial channels? Thinking around these kinds of issues outlines the logic of this article.The failure of the governance of multinational corporations and the intervention of the authorities of various countries indicate that judicial intervention in the governance of multinational corporations has great theoretical significance and practical possibility.First,the internal complexity and interrelationship of multinational companies have caused their autonomy failures.The second is that there are some national experiences of judicial intervention in the governance of multinational companies that can be used for reference.Third,judicial intervention involves issues such as the reshaping of my country’s judicial service market,the improvement of judicial competitiveness,and China’s right to speak in international rulemaking.From corporate governance to transnational corporate governance,it is the product of company development to a certain degree.Multinational corporate governance includes not only a set of institutional arrangements aimed at realizing the company’s economic interests and balancing the internal governance activities of various stakeholders,but also the governance of global issues caused by multinational companies through external mechanisms.Such external governance activities are usually related to the host country and the home country,and also involve issues such as the social responsibility and human rights of multinational companies.The international community’s governance of multinational companies is mainly embodied as a soft law mechanism.Such as the "OECD Corporate Governance Principles";relevant resolutions of the Human Rights Commission and the Council such as the "United Nations Guiding Principles for Industry,Commerce and Human Rights" and so on.There are many reasons for the dilemma of multinational corporate governance.From the legal level,it mainly stems from the differences in laws and policies of various countries,the transnational nature of governance itself,and the lack of global cooperation mechanisms.Justice is a part of the national system,and judicial intervention is also a part of national activities.Judicial intervention is embodied in the proper judicial intervention,judicial supervision,and judicial relief.Judicial intervention in multinational corporate governance generally refers to entering corporate governance through external laws to promote the balance of interests of all parties,the company’s sustainable business development,the implementation of relevant international treaties,compliance with national laws,and performance of the company’s social responsibilities,etc.To a certain extent,it is a relief method for the failure of corporate governance,and it is also an important way for the national justice to participate in the formulation of international rules and interact with the justice of other countries.The number of cases involving multinational companies through unilateral legislation and judicial intervention has increased year by year.The concrete manifestation is that the relevant countries use unilateral legislation to promote the reality of judicial intervention.For example,in the criminal field,the judicial practice of the United States FCPA has successfully contributed to the OECD’s AntiBribery Convention,which in turn formed the United Nations Convention against Corruption as an example of judicial intervention in multinational companies.The reality of judicial intervention in the field of human rights includes the victim’s right to claim compensation against multinational companies under the "U.S.Alien Tort Act";the European Court of Human Rights cases involving multinational companies;the field of commercial espionage,such as the U.S."Economic Espionage Act".The private litigability in the field of environmental protection and the complexity in the field of labor protection indicate that the application of the law of multinational corporations has had an impact on traditional company law theories.The particularity of judicial intervention in the governance of multinational corporations lies in the conflict of jurisdiction,the recognition and enforcement of judgments,and the differences in judicial intervention from the perspective of the host country and the home country.The value concept of judicial intervention in the governance of multinational companies originated from the naive theory of state intervention in the economy.The inevitable failure of a company as a participant in the market economy stems from many reasons,including the profitseeking nature of capital,the limited rationality and ignorance of the company.Multinational companies are different from traditional companies.The decentralization of their legal entities and the integration of economic relations have caused multinational companies to easily circumvent national supervision.The judicial intervention of relevant countries on multinational corporations is distributed in various fields.For example,the "Foreign Company Accountability Act",the "Foreign Tort Law",and the Foreign Corrupt Practices Act all indicate that the concept of judicial intervention of multinational corporations requires systematic thinking and multi-level thinking.Judicial intervention and cross-border cooperation have important enlightening significance for my country’s judicial intervention in the governance of transnational corporations.The case law is about theories involving multinational corporations,transnational legal theories,national contract theories,and home country legislation theories.Although a certain level reflects the theoretical perspective of judicial intervention,it has not found a complete picture of the problem,including the specific path and implementation.The path of autonomy of multinational corporations cannot overcome the disadvantages of economic sovereignty and monopolistic competition.The path of state intervention includes administrative,industry standard,and judicial intervention.Judicial channels have inherent advantages and accumulated experience,and to a certain extent can standardize law enforcement channels.The goal of judicial intervention and the corresponding principles should be dialectical.Such as the goal of transnational judicial governance,the service business environment and the goal of improving competitiveness,and the goal of dynamically balancing the stakeholders of multinational corporations.The principle of economic security and judicial sovereignty,the principle of judicial initiative and neutral protection,the principle of transparency and diversity.The balance between the autonomy of multinational corporations and judicial intervention is the most critical value concept.The value concept of judicial intervention can be examined from the existing domestic laws of various countries and the soft law of the international society.But the most critical logic of judicial intervention in the governance of multinational corporations is the subjective perspective and the responsibility perspective.Ways and models of judicial intervention in multinational companies.Purely from the perspective of judicial intervention,it mainly includes the basic mode and the special mode.The former includes litigation mode and non-litigation mode.Judicial intervention in the litigation mode should be different according to the requirements of different sectors of law.Among them,different countries have great differences on the criminal liability of multinational corporations.At the level of the civil field,the perspectives of the host country and the home country are different.Under the non-litigation mode,the United States and Japan are the most representative,while my country has no similar regulations.It revolves around special models,including public interest litigation model,special procedure model,precedent,guiding case,similar case retrieval model,and international commercial court model.Based on the fact that the judicial intervention of multinational corporations cannot be accomplished by a country’s law,as a part of the national system,it should assume the judicial function of the country’s participation in international activities.On the macro level,the multilateral mechanism of global governance,the regional intervention mechanism,and the unique mechanism of our country,observe the ways of judicial intervention in these fields.Global governance mechanisms include judicial participation in the formulation of rules,expansion of jurisdiction,intervention in various disputes,and provision of judicial systems.Regional mechanisms are relatively rare,but related practices also exist or are being formed.Such as the "North American Free Trade Agreement" regulations on multinational companies and host countries,financial account information disclosure(CRS)for multinational companies,tax base erosion and profit shifting(BEPS).China’s mechanism is mainly based on the construction of judicial intervention mode under the "Belt and Road" mechanism.At the micro level,legal supply,judicial initiative,and legal diplomacy.The legislative framework is mainly related to the legislation of the United Kingdom,the United States,and Germany on multinational companies.The decentralized model in the United States lies in the tradition of American case law judges to make law to suit the needs of actual judgments.The German model is the opposite,emphasizing centralized legislation,and emphasizing the design of legal systems to solve the dilemma of group corporate governance.The British model takes the disregard of corporate personality as an exception,and it is more prudent to penetrate corporate personality by precedent.The other type of legal supply is based on the different fields of multinational corporations,to carry out sub-field legislation to provide a legal basis for judicial intervention.At the level of judicial initiative,judicial initiative can promote social reforms,and can also form part of the state’s functions to participate in transnational judicial dialogues.In terms of judicial initiative,the scope of cases should be broadened,the application of foreign law to resolve disputes,the introduction of diversified procedures,the implementation of the judicial concepts of major powers,and the optimization of the business environment.In the absence of legal norms for multinational corporations,through legal diplomacy,countries can reach a political consensus and promote international cooperation in the rule of law.The character of justice determines that judicial intervention should be limited.The limitation of judicial intervention is an inevitable requirement of company autonomy.The establishment of the corporate legal person system also provides a legal basis for company autonomy.However,corporate autonomy should also be limited to a certain extent,which is manifested in the social rationality of corporate autonomy,emphasizing that corporate autonomy must not harm the rights and interests of others.Corporate autonomy should ensure the independence and autonomy of legal persons rather than the rule of persons.There are doubts about the status of an independent legal person within a multinational company group.The main reasons for the limitation of corporate autonomy are the need to maintain fairness and justice,the need to promote the healthy development of the market economy,and the need to improve economic efficiency.Behind this kind of reason is the support of right limitation theory,justice theory,and incomplete contract theory.Judging from the judicial practice of corporate autonomy in various countries,the Anglo-American law system takes the intervention of corporate autonomy as an exception,and the continental law system draws on legislative techniques to solve the dilemma caused by corporate autonomy.Compared with corporations,the autonomy of multinational corporations is necessary.It is manifested in the lack of a unified and standardized mechanism for multinational companies.Multinational companies are more likely to violate company procedures to harm the interests of stakeholders.Multinational companies give birth to games between countries.The autonomy of multinational corporations is creating a path away from state intervention.The restrictions on the autonomy of multinational corporations affirm the necessity of judicial intervention.The reality of the expansion of judicial power in various countries inevitably intensifies judicial competition.The essence of the expansion of the judicial power of multinational corporations lies in the disputes between the sovereign interests of various countries.The limitation of judicial intervention does not oppose judicial initiative,but lies in the legal provisions of various countries and the consistent practice of judicial practice.The limits of judicial intervention are theoretically such as the theory of room for judgment,the theory of business judgment rules,the theory of hypothetical transactions,the theory of inconvenient courts,the theory of political behavior,the theory of exhaustion of local rights,and the theory of state immunity.Practical level: The theory of state immunity and the theory of political behavior have become the limits of judicial intervention,while the inconvenience of court theory,exhaustion of rights relief theory,and business judgment rule theory have judicial tensions.There are differences in the limits of judicial intervention from the perspective of the home country and the host country.First,the host country and the home country have different priorities for judicial intervention in multinational companies.Second,the legal logic of judicial intervention in the host country and the home country are different.Based on the territorial principle,there is no problem with the host country’s judicial intervention in multinational companies.However,the host country generally does not take the initiative to intervene in multinational corporations.This is reflected in its measurement of economic development and social justice,and it is also subject to the signing of relevant investment agreements.But when it harms the national public interest or violates mandatory regulations,the judiciary should intervene.Based on the reflection on the territorial principle,the direct intervention of the responsibility of multinational companies and the implementation of relevant human rights conventions,the home country’s judicial intervention in multinational companies has already had corresponding judicial practice.For example,the US "Foreign Tort Law" has developed judicial precedents against foreign companies.Another example is the duty of care of the parent company developed by the British Chandler Rules.The limit of judicial intervention in the home country is more dynamic,which is manifested in that the home country generally has a good legal environment and complete judicial procedures.China’s judicial intervention in multinational corporations is fundamentally based on the needs of the development of Chinese multinational corporations and the repositioning and functional reconstruction of Chinese judiciary in national functions.With the duality of China’s identity,it appears as a big country that attracts foreign capital and a big country that exports capital.China’s judicial intervention multinational companies are facing great challenges and opportunities.China’s judicial intervention multinational companies will face three main challenges.First,the construction of an extraterritorial application system includes the exploration of an extraterritorial jurisdiction system to protect the legitimate rights and interests of our multinational companies.The second is the supply of domestic legal supplies related to multinational companies to provide a legal basis for judicial intervention.The third is the consideration of judicial intervention for the social and human rights responsibilities of multinational companies.From the perspective of the home country of a multinational company.There are many problems with multinational companies in our country.The first is the question of market economy status overseas;the second is the lack of long-termism and the neglect of social responsibility and human rights responsibilities;the third is the lack of experience in the governance of multinational companies;the fourth is the repeated overseas judicial intervention and the lack of the use of foreign laws to defend rights and interests awareness.At the level of legal supply,my country’s Constitution and Company Law have provisions concerning multinational companies,but most of them stay at the level of oaths.Relevant laws lack extraterritorial provisions,and domestic company law does not have legislation on company groups.This has brought a dilemma for my country’s judicial intervention.The recognition and enforcement of judicial judgments in our country have problems such as insufficient coverage of judicial assistance treaties and insufficient reciprocity mechanisms.However,my country has signed the "Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments",which can solve the problem of recognition and enforcement of judgments by multinational companies in the future.China should systematically construct a mode of judicial intervention in the governance of multinational companies.One is to systematically improve the corporate governance mechanism.Including;expand the judicial intervention goals of the governance of multinational corporations,systematically promote dialogues on transnational judicial governance,appropriate supplementary legal supplies,and judicial guidance.The second is to improve the international judicial assistance mechanism.Construct active jurisdiction of multinational companies,attach importance to extraterritorial service,investigation and collection of evidence,judicial assistance in foreign law identification,and speed up the completion of the ratification process of the Convention on the Choice of Court Agreement and the Implementation Convention.The third is to optimize the judicial intervention mechanism of multinational companies.Including perfecting the judicial intervention procedural mechanism and perfecting the initiative of judges’ judicial intervention. |
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