BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Corporations and their social power It seems appropriate to illustrate the process of constitutionalisation of private law on legal relations between an individual and a corporation because, in reality, corporations are not and never actually have been equal to individuals. 9 Formal equality of these subjects before the law is based on a fiction similar to that when a state enters into a private law transaction with an individual. The fiction of equality corresponds to the liberal conception of the state which shall not limit people’s private domain (we may also refer to the German notion of Nachtwächterstaat – night-watchman state). The antipode to this idea represents a total state, a conception developed namely during the Nazi era in Germany which means that a state takes control over most aspects of life in a society. 10 Nowadays this idea of state has been fully abandoned. An intermediate position represents the post-war notion of regulatory or welfare state, which reflects the development of socio-economic rights (from which new entitlements flow for the individuals) as well as technological developments, environmental protection and many other tasks that states have been acquiring since the end of World War II. 11 Current debates about the role of corporations vis-à-vis individuals usually mention their economic strength. The evidence of this fact may be found in the vast amount of academic literature. In 2014, the gross national income (GNI) of the Czech Republic, a State withmore than 10.5million inhabitants, approximately equalled the foreign assets of Vodafone Group plc, and foreign assets of the companies Volkswagen or Anheuser- Busch even exceed the GNI of the Czech Republic. 12 This ‘financial strength’ of juristic persons results in what is described in scholarly literature as social power, 13 which is used by corporations in accordance with their primary aim, which is to maximise their profit. According to Olivier de Schutter , concrete evidence of the economic power of corporations may be illustrated by their ability to threaten governments with closing businesses and moving to a different country. If the corporation leaves, it usually causes unemployment and other negative social impacts in the impacted state. 14 Governments therefore are inclined to offer certain incentives to corporations, in order to persuade them to continue their business activities in the territory of their respective states. Other states may try to offer better conditions for doing business which may start a spiral of reduced working conditions, environmental protection, tax exemptions etc. 9 KÜHN, Z.: Lidská práva v zajetí dvě stě let starých doktrín [Human Rights Imprisoned in 200 Years Old Doctrines]. In: AGHA, P. (ed.) a kol.: Budoucnost státu? [ The Future of State? ]. Prague: Ústav státu a práva AV ČR, Nakladatelství Academia, 2017, p. 158. 10 FORSTHOFF, E.: Der Totale Staat . Hamburg: Hanseatische Verlagsanstalt, 1933, p. 7. 11 AARNIO, A.: The Legitimacy Crisis in the Post-Industrial Society. An Outline for a Future Society. Rechtstheorie, Beiheft 13 , 2000, pp. 281ff. 12 ONDŘEJKOVÁ, J., ONDŘEJEK, P.: Globalizace, stát a právo [Globalization, State and Law]. In: KYSELA, J., ONDŘEJEK, P. (eds.): Kolos na hliněných nohou? K proměnám státu a jeho rolí [ Giant with Feet of Clay? Transformations of a State and Its Roles ]. Prague: Leges, 2016, p. 137. 13 ISENSEE, J.: Anwendung der Grundrechte auf juristiche Personen. In: ISENSEE, J., KIRCHHOF, P. (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band V. Allgemeine Grundrechtslehre . 2 nd ed., Heidelberg: C. F. Müller, 2000, p. 610. 14 DE SCHUTTER, O.: The Accountability of Multinationals for Human Rights Violations in European Law. In: ALSTON, P. (ed.): Non-State Actors and Human Rights . Oxford: Oxford University Press, 2005, p. 314.

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