Corporate Social Responsibility and MNCs: An Appraisal from Investment Treaty Law Perspective

Recent investment treaties recognize corporate social responsibility (CSR) as a mechanism for regulating corporate behavior concerning the protection and promotion of human rights, social and environmental standards. These treaties often include a universally recognized soft law version of CSR developed by the International Labor Organization (ILO) and the Organization for Economic Co-operation and Development (OECD), considered prominent sources of CSR voluntary standards. This study analyzed significant advances in including such voluntary standards in investment treaty law, which led to implementing globally agreed norms regarding sustainable development into action. In addition to the inclusion of CSR standards in legally binding documents, this study argued that the practical issues involved in implementing the CSR standards should be addressed from the perspective of capitaldependent developing countries. To this end, this study adopted the due diligence test to apply CSR standards in cross-border investments better. For this purpose, theoretical analysis that combined descriptive and analytical approaches based on the available primary and secondary sources best suited current research. The study showed that applying CSR standards in capitaldependent developing countries was only possible when corporate, home state, and the host government took appropriate actions at the policy level. It concluded that such additional measures were needed to effectively implement CSR standards emphasizing prevention was better than cure and ensuring the appropriate due diligence process by the relevant parties.


I. INTRODUCTION
MNCs are the main actors in foreign direct investment. They can influence the future, drive innovation, develop technology, uphold corporate social responsibility (CSR), and reshape policy to suit their priorities and capabilities. 1 In addition, CSR connects sustainability and development. For instance, the 2030 Agenda is a powerful framework to encourage businesses to implement CSR. 2 In terms of foreign direct investment, CSR lays down procedures for MNCs to follow and provides guidelines to be followed by host states, home states, and civil society, in line with sustainable development. At the same time, strong wording of the CSR clause in an investment treaty and breach of such standard may increase liability. Dubin elaborates on the direct and indirect versions of CSR in investment agreements and argues that although direct CSR clauses are ambiguous, they are useful to the host country to use when resolving conflict with foreign investors. 3 For developing countries, foreign investment is a significant source of economic growth. It is unlikely to go against MNCs' initiatives or bring in unfriendly foreign investment laws. Consequently, the object of the CSR clause should not only be considered a defensive mechanism but also to ensure best practice in doing businessmore precisely to ensure prevention is better than cure.
In this case, the implementation is significant, and it is the overall effort of the host state, home state, and MNCs. Then, this study provides a

II. METHODS
Given the nature of the research, an in-depth analysis covering the laws and attitudes of the key actors of foreign investment was required, namely, the host state, home state, and MNCs. For this purpose, theoretical analysis that combined descriptive and analytical approaches based on the available primary and secondary sources best suited current research. The data was collected through an extensive literature survey, library research, and internet search. While emphasizing the overall efforts of actors in preventing human rights and environmental impacts, the author used comparative legal analysis to recommend the effective implementation of CSR standards as a mandatory requirement. To this end, the author relied on soft laws, investment treaties between countries, statutes, reports, databases, and various government and non-government documents.

III. AN OVERVIEW OF CSR VOLUNTARY STANDARDS
The concept of CSR emerged to regulate the behavior of companies by considering the social, human rights, and environmental aspects of development in their ethics or codes of conduct and, ideally, to make legally binding commitments. Christian Aid defines CSR as 'an entirely voluntary, corporate-driven initiative to promote self-regulation as a substitute for regulation at either the national or international level.' 6 Though companies form their business ethics, the concept of CSR has come under broad and intense study in recent years due to the increased awareness of sustainable development norms. In 1980, the UN brought out the International Code of Conduct on Transnational Corporations (UNCTC), 7 but it was never approved. 8 The UNCTC covered a range of 6 Christian Aid, "Behind the mask: the real face of corporate social responsibility | Eldis," online: <https://www.eldis.org/document/A14595>.  E/1983/17/Rev.1 (New York, 1983. 8 Christian Aid, supra note 6.

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MNC duties in the host state, such as respect for national sovereignty, adherence to economic and development goals, technology transfer, consumer protection, environmental protection, and disclosure of information. 9 The 1992 Earth Summit in Rio de Janeiro explicitly endorsed voluntary approaches and considered modern CSR's birth. 10 CSR is now recognized as a universal principle since it is embedded in international declarations and agreements. The ILO's Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (ILO MNE Declaration) 11 and the OECD's Guidelines for Multinational Enterprises (OECD Guidelines) 12 are the two most prominent sources of CSR standards.
The ILO MNE Declaration is based on a tripartite consensus elaborated and adopted by governments, employers, and workers worldwide. The Declaration encourages multinational enterprises' positive contribution to economic and social progress, believing that MNEs can play an essential part by efficiently utilizing capital, technology, and labor. 13 It includes parent companies and local entities. It sets out voluntary principles that all the parties should adhere to on general issues and specific issues related to 9 United Nations Commission on Transnational Corporations, supra note 6. 10 Christian Aid, supra note 6. Christian Aid and own and control activities in several countries. 21 MNCs, also referred to as MNEs and TNCs, are assessed based on the multi-nationality of their foreign affiliates and subsidiaries; the number of countries in which they operate; total assets, revenues or profits; international nature of their employees, stockholders, owners, and managers; and the oversees nature of their operations. 22 They have the most direct influence on the structure and effects of FDI. 23 The diffusion of technology through FDI is one of the factors supporting the classical theory of investment, which holds that foreign investment is wholly beneficial to develop economies. This theory focuses on the liberalization of the economy in developing countries.

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Report 2017/2018 stressed the significance of MNCs in meeting the objectives of sustainable development. 28 The report highlighted that "foreign investors are becoming increasingly prominent players in delivering global public goods, addressing climate change, improving labor conditions, setting global industry standards and delivering infrastructure to local communities." 29 The environmental management strategies of MNCs may also influence the host government's and local businesses' environmental management. For instance, leading companies routinely publish environmental data in annual reports, conduct environmental audits of overseas facilities, seek third-party certification of their environmental management systems and go beyond mere compliance with regulations. 30 The best practices of MNCs, such as management of skills, new ideas, and technological modernization, may guide local firms and personnel towards better environmental management and may influence the government to make environmental reforms. Shao identified such two possible aspects of MNCs in developing countries: MNCs tend to improve resource efficiency to abate environmental pollution problems of host states' domestic enterprises, and they support the development of host countries' environmental protection technology through knowledge diffusion, technology spillover, transfer of funds and other actions. 31 There are criticisms of the negative behavior of MNCs in developing countries, particularly with environmental management and human rights abuses. Nevertheless, MNCs are the most prominent actors in foreign investment and are described as engines of development in developing countries. However, it is also generally accepted that these corporations can also harm the host states they operate. 32 Human rights abuses can be categorized as either soft or hard violations of human rights. Soft violations include poor employment conditions and environmental degradations, while complex violations include child labor, murder, torture, and conspiring with an oppressive regime. 33 Rubin stated: Even in the national arena, the corporation has sometimes exacerbated fears. The aggregation of economic power that the device permits has often been viewed as powerful and not always responsive to popular concepts of the 'best interest' of the general public. 34 The report on 'Development for all, or a privileged few? Business & Human Rights in Southeast Asia' indicates the alarming patterns of human rights violations in Southeast Asia by foreign companies, which states that there were 289 human rights violations over the past ten years. 35 The report also indicates that this will weaken laws to reduce pollution, ensure safe workplaces, and protect indigenous rights. 36 MNCs' profit-earning motives neglect the other aspects of development such as poverty, inequality, and unemployment alleviation -these were largely unnoticed by MNCs. 37 Further to, in some cases, MNCs fail to take adequate measures to clean up environmental effects caused by their business even when the government requests they clean up.

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In some cases, when the adverse consequences of their actions are criticized, the MNCs plead that they are simply following the law: but such defenses are disingenuous, for they often work hard to make sure that the law is the law that suits them well and maximizes their profits. 39 Powerful MNCs also take advantage of limited liability to avoid excessive burdens. 40 The characteristics and nature of MNCs and those of host states and home states make it very easy to achieve their objectives. For instance, the size and power of MNCs allow them to create a favorable environment in capital dependent developing countries; 41 influence of their home government to get better terms in international treaties; 42 lack of administrative capacities and technical experts in host states work in favor of MNCs; 43 and sometimes MNCs, and the governments of the advanced industrial countries who represent their interests, take advantage of power and information asymmetries. 44 For these reasons, capital receiving developing countries are usually unable to regulate or make demands of MNCs, including that they observe development goals or comply with sustainable development norms. In most instances, developing countries agree to standard terms on investment protection in legally binding commitments and agreements. This influences 39 See further discussion on why foreign multinationals escape from environmental responsibility, Ibid at 16. 40 Ibid at 16. 41 As of December 2005, the retail giant Wal-Mart had 1.3 million employees and earned USD191.4 billion in revenue-more than the combined GDP of sub-Saharan Africa. PetroChina's market value is larger than the GDP of South Africa, a G-20 country. The profits of Russian oil company Gazprom equal the GDP of Jordan. These corporations are not only rich but politically powerful. If host governments decide to tax or regulate them in unfavorable ways, they can threaten to relocate-there is always another country that entices them with several incentives. See Aswathappa, supra note 37. 42 For example, see Stiglitz, supra note 38. at 16-8 cites a US drug company successfully pressuring the US Government to pressure a foreign country to issue a compulsory license, even when the issuance is within the framework of the WTO. 43 Ibid at 16-19. 44 The US Government has bargained with dozens of countries on behalf of corporations. As a result, it knows likely and sensitive clauses or provisions that can significantly affect corporations, either benefits or costs. See Ibid.
MNCs to choose developing countries for operations because their governments readily agree to such terms because of MNCs' enormous size and power. Thus, the behavior of MNCs is appreciated and criticized throughout the literature on environmental conservation and uphold human rights values. Nonetheless, the significance of MNCs for the promotion of sustainable development cannot be underestimated, as they are capable of upholding best practices and helping to implement laws in developing countries. Thus, they need to be regulated to derive the total benefit from foreign investment initiatives. To a certain extent, a few host governments have imposed measures to control unfriendly investment projects through their local laws and by including provisions related to non-economic objectives in their respective BITs. 50 However, these mainly cover entry-level regulation of foreign investment. Regulating the behavior of MNCs primarily relates to the operational stage of investment projects, and their behaviors are monitored annually throughout an investment contract. Capital-dependent developing countries may not be able to monitor or follow up MNCs due to a lack of courage, resources, and experts and the power and size of MNCs.

A. Host State in Regulating MNC's Conduct
Regarding the inability to control MNCs, every country regulates people and property within its territory-the 'territorial principle.' Additionally, the host government has an essential role in creating a 'level playing field' to regulate MNC behavior. It should ensure provisions regulating MNCs are included in its laws, treaties, and binding contracts. 51 Host governments must be able to adopt mechanisms to monitor and enforce social and environmental compliance.
Generally, it would only be possible to regulate MNCs' behavior through legally binding instruments in developing countries. This is because most such as BITs and investment contracts. This would recognize the accountability of contracting parties to uphold social, human rights, and environmental protections, provide better voluntary codes than MNCs' internal policies and produce a more balanced treaty. In addition, this would make MNCs accountable for violating voluntary principles, give them responsibilities, and most notably, influence arbitrators' decisions in dispute settlement processes, particularly when deciding the legality of expropriation and associated compensation.

B. Due Diligence Test
As previously discussed, including comprehensive CSR standards in investment treaties is essential to promote foreign investment for sustainable development. CSR standards demarcate the responsibilities of all actors in promoting responsible investment in the host country. The implementation of CSR standards depends on the due diligence test from a corporate, home, and host government perspective. From the corporate perspective, due diligence is generally understood as investigating the conduct of business to identify and manage commercial risks. 54 Accordingly, the corporate perspective on due diligence is generally understood as confirming facts, data, and representations involved in a commercial transaction to determine the value, price, and risk of such transactions, including the risk of future litigation. 55 According to Ruggie, due diligence is a process whereby companies ensure compliance with national laws and manage the risk of human rights harm to avoid it. 56  From a host state perspective, a due diligence test is a crucial tool for measuring state responsibility for preventing or responding to abuses committed by businesses. 60 The test highlights the duties of capitalreceiving states. Accordingly, a State must have taken severe or reasonable steps to prevent or respond to abuse by a private actor, including investigating and providing a remedy such as compensation. 61 The most significant aspect of due diligence in developing standards is acknowledging how international and state practices can move from voluntary to normative standards. 62 For instance, the OECD's work has focused on promoting policy coherence to responsible business conduct in the economic, environmental, and social spheres. 63 Further, the OECD observes that in the context of global challenges concerning climate, poverty, and sustainable development, governments are increasingly committed to designing and implementing a robust policy framework that supports and promotes responsible business conduct. 64 Without having such mechanisms at the domestic level, it is challenging to ensure MNC behavior that supports responsible business practices. However, the vulnerability of developing countries creates uncertainty that such regulatory directives will be observed by MNCs unless adopted universally or regionally.

C. Legalization of CSR Standards
In most cases, voluntarism is not working for developing countries, as their laws are too fragile to monitor the behavior of powerful MNCs, and, often, powerful commercial interests clash with CSR standards. 74  The misconduct of MNCs in developing countries reaffirms the urgent need for legally enforceable mechanisms and norms to prevent recurrences. 80 In these cases, one can argue that MNCs have not only breached their voluntary commitments in favor of their commercial interest but have also breached their professional standards. Pendleton observed that in these cases, each company was not accused of contravening domestic laws but of failing to meet its own ethical, voluntary professional standards. Therefore, voluntarism can hold them accountable. 81 However, the power of MNCs needs to be constrained by laws and regulations at the domestic and international levels to curb irreparable damage to the environment and social wellbeing.
The international community has attempted to bring in a non-voluntary code to make companies directly liable for their harmful conduct, but this was unsuccessful.

VIII. LEGAL COHERENCE AND COORDINATION A. National Laws of Foreign Investment: A Way Forward
The inclusion of sustainable development norms in domestic foreign investment laws has been gaining considerable attention to ensure policy coherence and space for the right to regulate. Accordingly, some countries leveraged their own comprehensive domestic foreign investment laws to avoid vagueness and provide legal certainty, thereby meeting sustainable development norms encompassing sustainable development language similar to modern/third-generation BITs. 88 Domestic foreign investment laws are evolving to achieve the current needs of development. They coexist with national policies and international standards on sustainable development norms, intuit MNCs to uphold voluntary standards seriously. 89 For instance, Investment Law No 72 of 2017 (Egypt) Article 15 explicitly refers to CSR standards, 90 and ensures foreign investors comply with domestic legislation. 91 National foreign investment laws further also pledge to refuse investments that lead to environmental degradation. The Namibia Investment Promotion Act (2016) details criteria for investment approvals. Approval mainly considers contributions to redressing social and economic imbalances, 92 contribution to minimizing negative impacts and enhancing environmental benefits. 93 Domestic foreign investment laws of some developing countries have understood that the significance of encompassing responsible behavior is somewhat impressive.

B. Contextualizing CSR Standards in the BITs: A New Approach
Since the failure of attempts to bring internally binding instruments on the conduct of MNCs, the recent BITs and Model BITs contain clauses outlining the responsibilities and duties of contracting parties. For instance, agreeing not to lower environmental standards, uphold human rights and workers' rights, and comply with the domestic law are a few CSR accountability needs to be ensured within the relevant local legal framework. As previously discussed, developing countries' lack of resources and technical expertise poses difficulties in regulating MNCs in sustainable development and internationally adopted codes of conduct. Adherence to expanded CSR standards could promote socially responsible MNC behavior and prevent harm to the environment and social wellbeing of the developing world. However, individual companies and enterprises should also be encouraged to draft their investment strategies that comply with RBP and responsible investments. A few international organizations encourage MNCs to comply with social and environmental norms and ensure accountability and partnership. For example, the UN-supported PRI provides steps for crafting investment strategies, particularly for asset owners (see below Figure 1). 108

Figure 1: Crafting an Investment Strategy 109
The implementation guidance strategies embodied in these five steps should be followed conscientiously by individual enterprises as a selfregulation mechanism in compliance with internationally recognized voluntary standards. 110 The developing world agrees that MNCs and other business enterprises are responsible for respecting human rights, protecting the environment, and promoting sustainable development. 111 The efficacy of voluntary standards mainly depends on whether MNCs regard them as equally important as legally binding commitments.
Accordingly, MNCs' commitment to promoting sustainable development norms depends on adopting, acknowledging, and accepting CSR standards as strict internal policies and encouraging business partners, agencies, and supply chains to uphold best business practices in capital-receiving developing countries. Contracting parties adopting appropriate new clauses in BITs and investment agreements to outline the rights and obligations of MNCs for the promotion of sustainable development would be a considerable shift from voluntarism to mandatory standards. However, there is a general lack of acceptance of CSR in foreign investment laws of some developing countries because they are with first/second generation treaties, and often, CSR remains a voluntary standard in these countries.

C. Non-Corporate Reporting: An Inevitable Commitment
Non-corporate reporting systems aim to confirm the corporate social activities that enterprises have undertaken to establish good practices in promoting social and human rights and environmental protection. This reporting includes more than the financial aspects of an enterprise. For example, the Inter-Agency Working Group on the Private Investment and Job Creation Pillar of the G20 Multi-Year Action Plan on Development states that reporting has become a common expectation placed on companies that want to be viewed as socially responsible. 112 They request that companies publish an annual report on corporate issues. In a few countries-Denmark, Sweden, the Netherlands, Norway, and France-the law mandates publishing an annual report, while in other countries, this remains voluntary. 113 If countries have a tradition of acknowledging CSR as a voluntary standard, companies, and enterprises in those countries should communicate their CSR pledges through annual non-corporate reporting to relevant stakeholders. It is the only report that communicates companies' performance regarding CSR voluntary standards and is considered a powerful communication tool by legitimacy theory, decision usefulness theory, and communication theory. 114 The basic idea of these theories is that companies should disclose all their information on social and environmental impact, so the public can be aware of this performance and observe whether companies have undertaken various socially desirable commitments in compliance with CSR standards. If a company has failed to meet agreed social and environmental norms, society can act against the company. Moreover, this ensures company survival, rewards environmental and social performance, and ensures transparency. 115 Non-corporate reporting is also called sustainability reporting as defined in the Sustainability Reporting Guidelines. 116 Voluntary standards on CSR, due diligence, and non-corporate reporting are primarily meant to ensure responsible business practices by all actors in foreign investment and are crucial to promoting responsible investment. In addition, they all help develop norms and standards on sustainable development, ensure good governance of natural resources, promote transparency and, thus, uphold the rule of law.
The OECD Guidelines encourage MNEs to provide information on a broader set of topics such as internal company performance measures, timely and accurate disclosure of all corporate information related to their financial situation, performance, ownership, and governance, including remuneration plans and incentive schemes, and non-financial reporting. This ensures disclosure of social, environmental, and risk reporting related to greenhouse gas emissions and biodiversity 117 and extends to subcontractors and suppliers of joint ventures to ensure all partners monitor environmentally harmful activities. 118 By complying with the OECD Guidelines' requirements, companies demonstrate socially acceptable practices, which is crucial to promoting sustainable development. 119 Domestic law should also impose legal requirements for non-corporate reporting or sustainability reporting to ensure that MNCs adhere to voluntary CSR standards on social and environmental protection. This requirement should be extended to private and public companies alike.

D. Remedial Mechanism: Home State as A Competent Forum
Besides extraterritorial home state statutes, plaintiffs can also use home state courts because of a lack of resources to sue the parent company domestically (in the host state). These are generally known as forum conveniens cases decided in the home state courts where the parent company is domiciled. Lubbe v Cape plc 120 and Chandler v. Cape plc 121 are significant in this regard.
The Lubbe case succeeded with its plea of forum non-conveniens. Lubbe was an employee at the asbestos manufacturing, South African subsidiary company of UK parent company Cape plc. Cape plc was a public limited company incorporated in England that owned several subsidiary companies in South Africa engaging in mining, processing, and selling asbestosrelated products. Lubbe was injured by exposure to asbestos and related products in South Africa. The plaintiff's central allegation against the parent company was a failure to adopt appropriate mechanisms to ensure the safety and health of employees of its subsidiaries and people living in the vicinity. The parent company breached a duty of care towards its subsidiary company employees in South Africa. 122 The main plea of the defendants was forum non-conveniens. In the first instance, it was held that South Africa was the appropriate forum. 123 However, on appeal, the Court of Appeal concluded that the defendant had not clearly and distinctly proved that South Africa was the most appropriate forum and, therefore, allowed the plaintiff's appeal. 124 This was one of 3,000 similar claims against Cape plc, and all these cases proceeded as a group action. 125 The defendant applied for a stay of all the proceedings against it. Buckley J decided that South Africa was clearly and distinctly the more appropriate forum for the trial of this group action. There were no sufficient reasons for nevertheless refusing a stay. 126 The claimants then appealed to the House of Lords, which did not doubt at all that the defendants had discharged the burden of showing that South Africa was clearly and distinctly the more appropriate forum for the trial of these claims. 127 The forum non-conveniens plea further can be scrutinized by analyzing Lord Kinnear's judgment in Sim v Robinow, 128 he stated that the plea could never be sustained unless the court is satisfied that another Tribunal has competent jurisdiction. The case may be tried more suitably for the interests of all the parties and the ends of justice. 129 In this case, the court adopted the Spiliada test to ensure forum convenience. In the Spiliada case, 130 it was stated: The basic principle is that a stay will only be granted on the ground of forum non-conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e., in which the case may be tried more suitably for the interests of all the parties and the ends of justice. 131 Chandler v. Cape plc was one of the first cases where the Court of Appeal imposed liability on a parent company for breach of its duty of care to an employee of its subsidiary. 132 The Court of Appeal judgments address the possibilities of seeking damages in tort claims from a parent company. In this case, the claimant worked as a brick loader in the defendant company and suffered from asbestosis due to migrating dust from asbestos production. As a result, the claimant brought a claim against the parent company, alleging that it owed a direct duty of care to the employees of its subsidiary company to advise on or to ensure a safe system of work for them. 133 The court examined the relationship between the parent and subsidiary company to see whether the parent company should be held responsible for the health and safety of its subsidiary company's employees. The court found no need for absolute control by a parent company of its subsidiary to find a duty of care. However, the law might impose such a duty on a parent company for the health and safety of employees of its subsidiary. 134 The court found that the businesses of the two companies were in a relevant respect the same. The parent company had superior knowledge of a relevant aspect of its subsidiary's health and safety protocols. It knew about the subsidiary's unsafe work system and should have ensured that its employees used that superior knowledge for their protection. 135 The court held that it had assumed a duty of care either to advise the subsidiary on what steps it had to take to provide employees with a safe work system or to ensure that those steps were taken. In those circumstances, the defendant owed a direct duty of care to employees of the subsidiary company. There had been an omission to advise on precautionary measures that had resulted in injury to the claimant. 136 The BHP lawsuit 137 is another example of extraterritorial jurisdiction for tort claims on environmental degradation. The case was successfully lodged in the Victorian courts against Australian-based corporation BHP for environmental degradation committed in the territory of Papua New Guinea. In 1996, BHP and the plaintiffs agreed to a settlement for approximately A$40 million as compensation and dredging tailings from the river to limit further damage through an out-of-court settlement. the Akpan case 142 involved a breach of the duty of care by the Shell parent company and its Nigerian subsidiary. The court concluded that the court held that in this instance, Nigerian law did not allow for the parent corporation to be liable. Nevertheless, the rulings indicate that such claims could be brought in civil law legal systems. 143 The court observed a more limited approach than Chandler. 144

IX. CONCLUSION
Applying CSR standards in capital-dependent developing countries was only possible when corporate, home state, and the host government took appropriate actions at the policy level. Although internationally recognized voluntary standards for self-regulation should be incorporated into the internal policies of MNCs, the lack of legal commitment and the dubious implementation of such standards hinders this approach. It argued for a legally binding mechanism to improve CSR standards and suggested that incorporating an expanded form of CSR standards into an investment treaty and the domestic foreign investment laws of the host states would make it possible to provide accountability and move from voluntarism to mandatory standards. The domestic foreign investment laws of the host states would make it possible to provide accountability and move from voluntarism to mandatory standards. It highlighted the importance of the due diligence test that emphasizes the role of actors in implementing CSR standards to overcome practical difficulties. Additionally, applying extraterritorial jurisdiction by home state laws may enable recourse for damages or compensation from MNCs, primarily through tort claims, including convenient forum actions that prevail in US laws, UK common law, and European civil law. These will help reduce severe environmental and human rights violations by MNCs in capital-dependent host countries, but the future application of such laws remains uncertain.