What’s So Special About Multinational Enterprises?: A Comment on Avi-Yonah

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Reuven Avi-Yonah’s provocative article published in the preceding issue of this Journal, National Regulation and Multinational Enterprises, establishes a comprehensive framework for determining which governmental institutions should regulate behavior occurring within multinational enterprises (“MNEs”). Using this framework, Avi-Yonah divvies out regulatory responsibility between host and home countries with respect to several kinds of MNE behavior. He also concludes that there are areas where national regulation does not work, leaving MNEs subject to too little law. He proposes correcting this deficiency through creation of a world investment organization (“WIO”). MNEs have clearly grown to play a huge role in the world economy. In my view, however, this development does not necessarily require the large legal reconceptualization that Avi-Yonah proposes. Nor, at this point at least, does it call for the creation of a WIO. This having been said, Avi-Yonah’s article deserves credit for shining a spotlight on a number of regulatory issues relating to MNE behavior and doing so in a fresh way that provokes needed new attention. My analysis of the legal challenges posed by the growth of MNEs is based on an examination of a number of the examples used by Avi-Yonah to illustrate the working of his framework: piercing the corporate veil for mass torts (as in the Bhopal toxic chemical release), bribery, bankruptcy, child labor and antitrust. My approach focuses on the ways in which MNEs are special. To what extent do particular forms of behavior occurring within MNEs raise regulatory problems similar to problems raised by the same behavior occurring within other institutional arrangements, and to what extent does it raise problems that are different? Failure to ask these questions risks having the mere fact that a behavior occurs within an MNE obscure the most fundamental features of the question of who should decide whether and how to regulate the behavior. Only where the involvement of an MNE raises special problems is the application of MNE law even potentially justified.