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

Cross-border social dialogue and agreements
law. But that does not mean that IFAs have no legal value. (For an analysis
of the legal nature of new types of norms, see Teubner, 1997.)
A first means of giving legal effect to IFAs is by integrating them in
other legally binding norms. Many companies include their IFA in contracts
with their subcontractors. The company can also refer to the IFA
in collective agreements made in each country or in each subsidiary,
which would reinforce local actors’ collective ownership. This would
give the IFA the legal effects of a collective agreement according to
national labour law. This would have the advantage of increasing legal
certainty.
The courts may also recognize the legal effects of an IFA even when
it is not incorporated into another legal obligation. The court may use
the idea of “customary rules” that come to engender legal effects if the
agreement has been applied over a certain time period. In many national
labour laws, customary rules guarantee to workers that social advantages
cannot be withdrawn unless a certain procedure is followed.
Courts may also rely on the concept of “unilateral commitments”.
This notion is used in consumer law, for example in the field of misleading
advertising (Sobczak, 2004). A company would be sanctioned if it
had used the IFA in its communication policy towards consumers and
then failed to respect its content. This idea was the basis for the decision
of the Supreme Court of California in the Kasky v Nike Case of May
2001, because the company had affirmed in communications towards
clients that information in the media on child labour in some factories of
Nike’s suppliers was false (Sobczak, 2002b).
Choosing misleading advertising as the basis to sanction non-compliance
with an IFA creates a shift from labour law to consumer law,
which has more than legal ramifications. First, the persons who are protected
by the law and who may go to court are not the workers whose
rights are infringed but the consumers who have bought a good (or service)
while believing in the company’s social responsibility. This transforms
the workers into objects of regulation whereas the underlying idea of IFAs
is to empower them as actors of social regulation. Furthermore, a shift
from labour law to consumer law risks introducing a distinction in regulations
between the sectors and companies concerned and between the
rights conferred, in so far as the consumers have to consider the issue sufficiently
important to go to court. Here again, this goes against the spirit
of IFAs, which aim to protect workers in all kinds of multinational
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