CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

Cross-border social dialogue and agreements
2002a). Such codes suffer from a lack of legitimacy in continental Europe
where national labour laws have always aimed at limiting the unilateral
powers of the employer (Supiot, 1989) and have favoured regulation
either imposed by public authorities or negotiated between the social
partners. Furthermore, codes of conduct often have a limited content and
do not always refer to the International Labour Organization (ILO),
instead concentrating on issues that have a high impact in the media,
such as child labour (Gordon and Miyake, 1999). Finally, these codes do
not always pay enough attention to their implementation, and are thus
often considered as “window-dressing”, and seen as part of the companies’
public relations strategies.
IFAs seem to be a more legitimate form of social regulation than
other CSR instruments and provide a better guarantee of effectiveness.
They generally have a more comprehensive and precise content and contain
detailed provisions on monitoring and implementation. Emerging
from social dialogue, they conform to the European social model (Daugareilh,
2006). This is highlighted by the fact that companies that have
signed IFAs almost exclusively have their headquarters in the European
Union (EU).
However, IFAs are at odds with the different legal categories of
labour law at national and international levels. They correspond to a new
form of social regulation created by the social partners without a precise
legal framework, thus leaving open many questions as to their legal nature
and impact. Nevertheless, the lack of a specific legal framework does not
mean that these texts exist independently from the national and international
legal environment. That environment necessarily has an impact on
the legal nature of IFAs and should not be ignored by the social partners.
An in-depth analysis of the different legal aspects of IFAs is thus
useful not only for the social partners that have signed these texts or plan
to do so, but also for international organizations that may have a role to
play in the development of a legal framework for IFAs, and more generally
for transnational collective bargaining. The present chapter provides
such an analysis, and in three main sections deals with the questions
raised by the powers of IFA signatories; with the scope of these texts; and
with their legal value.
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