Papers by Benedict Sheehy
. John's J. Legal Comment., Jan 1, 2006
In contradistinction to the traditional soldier of fortune contemporary Private Military Firms (P... more In contradistinction to the traditional soldier of fortune contemporary Private Military Firms (PMFs) do not fit the conventional image of private security services as being sold mainly by gang leaders, mafias, or war lords and by (foreign) individuals or mercenaries-. PMFs however range from well-established firms with thousands of years of collective experience in war zones, to start-ups that did not exist before the end of the Cold War but mushroomed as a result of the vacuums created by states downsizing their militaries. Although in form resembling their antecedents, PMFs have developed a modus operandi compatible with the needs and strictures of the post-Cold War, State-based international system leading to both implicit and explicit legitimacy. Firstly, they are serious players, recognized within international business circles and markets. Secondly, their legitimacy is bolstered by strong personal and professional links to the governments and militaries of their respective home States. This article has as its modest aim an exploration of the thorny legal issues raised by the commodification of force. It discusses the nature of the contemporary PMF noting that it bears vestiges of yester year mercenaries. It then grapples with their uncertain status under international law despite the fact that they potentially pose problems for state authority and the direct control of states over the use of force. At the heart of the argument is the reality that PMFs maintain the ability to inflict violence on a scale previously reserved to sovereign nations and the real potential to violate humanitarian norms. Yet, they are largely inadequately regulated under existing domestic and international frameworks thus bear hazy legal liability and sanction.
The on-going challenge in economic development and globalization, particularly for developing cou... more The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict - namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China's impressive economic record is threatened to some extent by the increasing inequality in Chinese society and the enormous environmental costs of its economic growth. The Fair Trade movement seeks to address these larger and ultimately more important issues by changing the trade concerns from their narrow, traditional and highly questionable economic rationalist presuppositions to the broader societal implications of increased trade. This paper will address these broader issues, crucial for China's stability, and offer a model for Fair Trade.
Using Aristotle's Rhetoric as providing the model for effective argument, this thesis analyses th... more Using Aristotle's Rhetoric as providing the model for effective argument, this thesis analyses the arguments of the neo-platonist Macarius Magnes. It supports the approach by examining the socio-historical context to argue that Macarius' work has been misunderstood and as a result undervalued in terms of its contribution to the pagan-Christian dialogue.
The interaction between corporate social responsibility (CSR) obligations and directors' legal du... more The interaction between corporate social responsibility (CSR) obligations and directors' legal duties is underexamined. This article addresses that void by examining directors' duties in case law and legislation across the major commonwealth countries and the U.S.A. It provides an analysis of leading cases and examines how they deal with directors' duties, the doctrine of shareholder primacy, corporate legal theory and CSR. The article reviews fi duciary relations and duties and analyzes the directors' duties to exercise power in the best interests of the company as a whole and for proper purposes. The article concludes that CSR is well within the accepted range of directors' duties and, in some instances, mandates.
Abstract: The ubiquity of the term CSR threatens its carrying any distinctive meaning. Despite it... more Abstract: The ubiquity of the term CSR threatens its carrying any distinctive meaning. Despite its long history no consensus has been developed among the industry participants, academics or other interested parties. After a careful review of the complications and complexities of the CSR debate and distinct disciplinary definitions, the article turns to approach the problem of definition using the philosophy of science. It applies a scientific definitional approach of genus, differentia and species to arrive at a definition of CSR as international private business self-regulation. The article provides an overview of the implications of this definition on CSR as a field of study, a management practice and an approach to improving the dialogue concerning the social contribution of business.
ABSTRACT: This article examines the role of the corporate vehicle in the creation of social costs... more ABSTRACT: This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s largest corporation, WAL-MART, Inc. It next examines the relation of social costs and corporate legal structure. It concludes with some recommendations for corporate reform.
ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Alt... more ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going.
The Australian Government's Clean Energy Legislative Package includes the legislative infrastruct... more The Australian Government's Clean Energy Legislative Package includes the legislative infrastructure for a carbon tax which came into full effect in July 2012. Although the legislation is comprehensive, we argue that it lacks a mechanism that adequately deals with the competing policy objectives of: (a) achieving reductions in greenhouse gas emissions; (b) not impairing national economic growth; and (c) ensuring that international obligations regarding response measures, such as a carbon tax, do not adversely affect developing countries. The potential policy frictions between these objectives might have been reduced had the Government included a well-known trade mechanism which could have provided a more coherent interface for these competing policy objectives. That mechanism is the 'border tax adjustment'. This paper explores a range of misunderstandings surrounding the use of border tax adjustments, which may well explain why they were not implemented. Furthermore, this paper will explain how, if properly understood, border tax adjustments could make a significant contribution to a consistent climate policy that balances the competing concerns of climate change, trade, economic and developmental policy objectives.
The regulatory framework for the Australian university has brought about a radical transformation... more The regulatory framework for the Australian university has brought about a radical transformation of the Australian university. The changes to the framework shifted the burden for resourcing from government to students and introduced a wide variety of competition based regulatory instruments. The Australian university has been successful in generating these resources, primarily from selling education to international students and has become a world-leader in the export of higher education.
Corporate Law and the Problems of Social Costs ( …, Jan 1, 2012
Abstract: CSR is an increasingly seen as the preferred approach to addressing the social impacts ... more Abstract: CSR is an increasingly seen as the preferred approach to addressing the social impacts of industrial production. These social impacts, however, come in the first instance from production and not the corporation. Much of the thinking about CSR fails to adequately take account of the legal corporation and so fails to come to grips with what corporate law is designed to accomplish. This article addresses the interface between the three concepts and related issues of CSR, social costs and corporate law.
Available at SSRN 777204, Jan 1, 2005
Abstract: Social contract theorists suggest that society at some level is based on the idea that ... more Abstract: Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person's contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society ...
Few people think of business ethics as being addressed outside of main-stream business ethics, ph... more Few people think of business ethics as being addressed outside of main-stream business ethics, philosophy and corporate social responsibility circles. This view is in error. Arguably the most prominent philosopher of the last century, Ayn Rand, has provided a philosophy of business that is satisfying to many people, not the least of which is Chairman of the Federal Reserve, Alan Greenspan. Rand' s philosophy suggests that self-interested behaviour is not merely an economic modeling of human behaviour, but an ethical imperative. To professional philosophers, Rand is naïve and unsatisfying; however, that does not diminish her appeal to the less sophisticated. After a review of Rand' s great popular appeal, the article then moves on to some of the main points of her philosophy, offers a critique of those points and then encourages a more serious analysis of Rand' s philosophy, particularly for those teaching and consulting on ethics.
Description This article has four main parts guiding the reader through the convention, examining... more Description This article has four main parts guiding the reader through the convention, examining the situation and leading to some conclusions regarding international environmental law as it is manifested in the Caribbean. The first deals with the Cartagena Convention and provides a detailed review of the terms of the convention. This part is followed by a review of other potentially applicable international legal agreements and in particutar, a detailed review of the terms of MARPOL 73/78, the International Convention ...
International Journal of Applied Philosophy, Jan 1, 2004
Few people think of business ethics as being addressed outside of main-stream business ethics, ph... more Few people think of business ethics as being addressed outside of main-stream business ethics, philosophy and corporate social responsibility circles. This view is in error. Arguably the most prominent philosopher of the last century, Ayn Rand, has provided a philosophy of business that is satisfying to many people, not the least of which is Chairman of the Federal Reserve, Alan Greenspan. Rand' s philosophy suggests that self-interested behaviour is not merely an economic modeling of human behaviour, but an ethical imperative. To professional philosophers, Rand is naïve and unsatisfying; however, that does not diminish her appeal to the less sophisticated. After a review of Rand' s great popular appeal, the article then moves on to some of the main points of her philosophy, offers a critique of those points and then encourages a more serious analysis of Rand' s philosophy, particularly for those teaching and consulting on ethics.
Available at SSRN 1954250, Jan 1, 2011
ABSTRACT The structure of western government has undergone a transformation over the past century... more ABSTRACT The structure of western government has undergone a transformation over the past century. A large portion of public administration previously done by departments embedded within the core of government has been shifted to administrative units - so-called ‘quasi-independent’ bodies referred to in this paper as “agencies ”- that are legally and organizationally separate and outside the constitutional core of government. Unlike the classical models of Responsible and Republican government which achieve a balance between the executive branch’s control powers and accountability obligations over the administration, the ‘agency, accountability and control are treated as separate and distinct rather than mutually dependent concepts. The effect of this separation of accountability and control, it will be argued, is that the classical formula of ‘equilibrated powers’ underlying both the classical models has been neglected - either by design or inadvertence - under the agency model. It follows from this that, even though a great deal of attention has been directed towards questions surrounding the accountability of agencies to the traditional branches of government, comparatively less research has been devoted to examining executive branch accountability in respect of the exercise of its powers to control agencies. The disequilibrium in the relationship between the executive’s legal and political powers to control agency action, on the one hand, and its accountability for the exercise of these control powers, on the other hand, that has gone largely unnoticed and is the subject of this paper. This paper threads together the foregoing themes in four parts. The first part of the article examines the ideas and problems of accountability and control and then lays out the background of the problem - namely, the increasing sense of an empowered unaccountable executive and the coinciding rise of the agency. The second part sets out an historical account of how accountability and control were developed in two distinct traditions: the American and the Commonwealth and then analyses the historical narrative through a legal lens examining the two constitutional models which these traditions reflect, the Republican and Responsible Government models. It identifies how accountability and control were built into the structures of both constitutional models. The third part examines the rise of the Regulatory State and the legal forms of the agency. The final part provides a synthesis of the discussion and an answer to the rise of the increasingly unaccountable executive.
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Papers by Benedict Sheehy