Private law and social justice: the case of contractualization in global supply chains

Due to a wide range of impediments which are intrinsic to public international law when it comes to the regulation of global supply chains, an alternative for ensuring an adequate level of environmental and human rights protection by transnational corporations has emerged among legal scholars. The «contractualization approach» includes the conversion of social and environmental responsibility standards into legal obligations through their incorporation into contractual clauses. Their observation would be characterized as mandatory for the parties, who would be allowed to invoke the termination of the contract in the event of a breach of these clauses by one (or more) of the contracting parties. This paper aims at shedding light on the interaction between international and national law in the context of environmental protection and social justice in global supply chains. In particular, the employment of international law in global supply chains through contract law has led to the hybridization of a governance system promoting corporate social responsibility in which public, private, hard and soft law interact; and to the limited indirect promotion of public social justice goals of private law. The incorporation of social and environmental responsibility standards within contracts de facto pursues public policy goals, going beyond the pure function of private law as facilitator of private relationships to the pursuit of public international objectives. However, the limited enforcement of social and environmental responsibility clauses and the exclusion of commonly affected third parties both from the contract and from the eventual compensation for damages significantly limits the possibility of enhancing social justice purposes through private law.