Soft Law Business as Usual? Fundamental labour standards in private and public commercial contracts

Publikation: Bog/antologi/afhandling/rapportPh.d.-afhandlingForskning

Since the 1990’s outsourcing and supply through transnational contractual supply chains have surged due to the deregulation of international trade. This development has led to a situation where companies and public entities may, through their participation in the market, come into contact with or contribute to violations of fundamental labour standards under international law - such as child labour and forced labour – in their contractual supply chains. Consequently, large companies - as a culmination of 40 years of voluntary self-governance – increasingly incorporate contractual clauses requiring compliance with the fundamental ILO Conventions and the International Bill of Human Rights (labour standard clauses: LSCs) of their suppliers. Since public entities procure from the same market, they face the same challenges. However, it is not until recently that the role of public entities has come into focus, and public entities have begun incorporating the same type of clauses in their commercial contracts. Due to the unique characteristics of LSCs and a relatively new and theoretical research field, there is much uncertainty about how the clauses should be dealt with under contract law. Therefore, the overall aim of this thesis is to contribute with a significantly better understanding of the clauses.
Current literature often engages sustainability clauses more broadly and take a top-down approach from a broad governance level to the individual clause. The thesis takes a significantly different approach than what has currently been practice, above all in deliberately peeling away abstractions. Thus, it departs from the individual bilateral contractual relationship with a narrow focus on the subtype of sustainability/CSR clauses that regulate worker conditions. Compensating for the many unknowns, the thesis strives for a more specific approach; firstly by engaging two different types of contracts where LSCs are applied to meet the same objective (respectively private and public commercial contracts); secondly, by reviewing LCS as they are laid down in contracts; thirdly, by exploring Scandinavian case law in areas of relevance to LSCs, and fourthly by examining the labour standards that underlie LSCs and providing examples of how they may (or may not) be established as specific contractual obligations. The project comprises an empirical study of 45 sampled private commercial contracts (standard terms and conditions), all including LSCs forming part of the legal analysis. Whereas previous studies have focused chiefly on interviews, company reporting, incorporated codes of conduct and only sporadically on contracts, the legal analysis of this thesis focuses on LSCs in their complete contractual setting.

As such, the present thesis examines 1) whether LSCs have a per se non-legal nature? 2) if not, then how they may be interpreted under contract law in view of their specific characteristics? And finally, 3) whether a comparative perspective on LSCs in respectively public and private commercial contracts reveal specific problems and/or opportunities due to increasing integration of the two spheres?
Overall, the thesis finds significant indications that LSCs may be developing towards a more commercial character than what has hitherto been assumed – with the possible implication that they should eventually be redefined.
ForlagDet Juridiske Fakultet
Antal sider305
StatusUdgivet - 12 okt. 2021

ID: 283133019