Recently, public health advocates struck a blow against tobacco companies by barring them from bringing challenges under some international trade deals. In this Article, I explain why other governments should adopt similar tobacco “carve-outs.” Specifically, I argue that it is mainly the industry’s aggressive litigation tactics—not the hazardous nature of this consumer product—that justifies treating it in an exceptional manner for the purposes of international litigation. To illustrate my point, first, I explain the nature of the carve-out in relation to a topology of legal forms used to exclude policy areas, economic sectors, and particular industries from obligations stipulated in international economic agreements. I follow with a case study of Phillip Morris International to explain how the industry, by relying on litigation before international courts and tribunals, has aimed at delaying, preempting, and weakening harmonized anti-smoking regulations. I finish by proposing modest ways to refine “Multinational Enterprise or MNE theory,” which aims at understanding the choices of extending control over subsidiaries operating abroad. In particular, I argue for increasing the recognition of international legal capacity and adjudicatory options in conceptualizing ownership, location, and internalization advantages.
This article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. Specifically, this article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector companies comply with government demands to disclose user data or to conceal information users seek. Specifically, it explores the controversial role of transnational ICT corporations in state censorship and surveillance practices. The article explains how conflicts over corporate complicity in alleged abuses served to catalyze change and lead to the creation of the Global Network Initiative, a private multi-stakeholder project, and the Ranking Digital Rights Initiative, an industry independent market-based information effort. Both aim to promote more responsible business practices in the social media industry sector. In conclusion, the article argues that regulating corporate reporting of information relevant to assessing the potential for adverse human rights impacts is necessary.