1.6.1 By governments

Documentgegevens:

Mr. T.E. Lambooy, datum 17-11-2010

Datum: 17-11-2010
Auteur: Mr. T.E. Lambooy
JCDI: JCDI:ADS370629:1
Vakgebied(en): Ondernemingsrecht (V)

Governments have enacted many laws addressing the roles of business actors. Besides traditional environmental, labour and criminal laws, there are also laws inspired by CSR. For example, in Indonesia natural resources companies are required by law required to apply CSR' to their activities and to assess the potential environmental and social impacts.1

The trade in illegally harvested timber is one of the urgent concerns of the EU and the US government. In the US, in 2008, a prohibition on the import, trade and sale of illegally harvested timber was enacted in the Lacey Act including a due diligence duty for companies to ascertain that they do not source timber from illegal sources.2 In the EU, the EP and the Commission are deliberating a Directive concerning illegal timber, also including a similar due diligence obligation for companies.3

Another example is the EU Directive on sustainable energy, which prescribes targets to governments thereby stating that biofuels only count towards compliance with the target if they are produced in a sustainable way.4 As neither biofuel production nor the import thereof is a government task, this clearly implies an obligation on companies to ensure the sustainability factor in the production thereof. Furthermore, in the US, the Waxman-Markey Bill has been approved by the House of Representatives. It will - if the Senate approves it - establish a cap-and-trade plan for carbon to address climate change similar

to the EU plan.5

On another subject, anti-corruption legislation has been introduced in many countries over the last decade pursuant to the anti-corruption treaties mentioned in section 1.5, usually by qualifying the paying of bribes as a criminal offence. Finally, many States have adopted legislation prescribing companies to disclose information in annual reports about environmental and social aspects of their international activities.6

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See also the definition of CSR quoted in section 1.2.2 supra. On CSR, Article 74 of the Indonesian Company Law no. 40/2007 states: 'Companies conducting business activities in the field of and/or related to natural resources have the obligation to carry out Social and Environmental Responsibility. Social and Environmental Responsibility as referred to in paragraph (1) is the company's obligation, which is budgeted for and calculated as a cost of the company, and which is implemented with attention to appropriateness. Companies which do not carry out their obligation as referred to in paragraph (1) shall be subject to sanctions according to the provisions of laws and regulations.' This provision is in line with the new Indonesian Investment Law No. 25/2007. Article 15B states: 'Every investors is obliged to: 'apply good corporate governance; conduct the Corporate Social Responsibility; make a report of their investment activities and send the report to Investment Coordinating Board; respect all the cultural tradition in the society in the area of the investment activities; comply with all the rules of law.'

The Farm Bill re Food, Conservation and Energy Act of 2008 amended the Lacey Act (Pub. L. 110-234, 122 Stat. 923, enacted on 22 May 2008, H.R. 2419, also known as the '2008 U.S. Farm Bill'.

Draft EU Directive COM (2008) 644 final; EU News, Policy Positions & EU Actions online, at www.euroactiv.com, visited on 15 December 2009.

Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC Text with EEA relevance, Official Journal L 140, 05/06/2009 P. 0016-0062. Article 17 concerns sustainability criteria for biofuels and bioliquids.

The American Clean Energy and Security Act of 2009 is an energy bill. It was approved on 26 June 2009 and is being considered in the Senate. See: http://www.opencongress.org/bill/111-h2454/actions_votes, accessed on 23 May 2010. See also the explanation of the EU Greenhouse Gas Emission Trading System, supra, note 52.

This subject will be addressed in chapters 4 and 6 of this study.