Implementing and Enforcing Corporate Social Responsibility: The Potential of Unfair Competition Rules in International Law
The paper explores the potential of unfair competition rules contained in Article 10bis of the Paris Convention on the Protection of Industrial Property (Paris Convention) as incorporated in the Agreement on Trade-Related Aspects of Intellectual Property Rights of the WTO (TRIPS Agreement). It is submitted that these provisions offer implicit disciplines on private standards and conduct. Today, commitments made by multinational companies (MNCs) under corporate social responsibility (CSR) are at best considered to be part of soft law, short of mandatory compliance. Strategies have largely depended upon voluntary compliance, reporting, naming and shaming and public pressure. We submit that while formally soft law, CSR instruments may develop binding effects in terms of unilateral promises to consumers which render companies liable under rules of unfair competition law. In other words, States and MNCs are bound by the principle of good faith and the protection of legitimate expectations upon which unfair competition rules and the emerging law on labelling rely. These disciplines form part of WTO law and provide the basis for enforcing appropriate rules on CSR vis-à-vis Members of the Organization.