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7 - A Balancing Act – Proportionality in the Corporate Sphere

from Part II - Towards a Multi-Factoral Approach for Determining the Substantive Content of Corporate Obligations

Published online by Cambridge University Press:  29 October 2021

David Bilchitz
Affiliation:
University of Johannesburg
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Summary

This chapter considers how we determine the final obligations of a corporation where its actions or policies infringe upon fundamental rights. Since there are competing factors, there is a need to balance different interests. I argue that the proportionality test can be applied successfully to balance the fundamental interests of individuals against the interests of the corporation and thus can provide a structured process of reasoning for determining the final negative obligations of corporations. In making this case, I consider the justification for and challenges to applying the proportionality test to conflicts between non-state actors and individuals with a specific focus upon the corporation. I then consider how each stage of the proportionality analysis – purpose, suitability, necessity and balancing - can apply to corporations and the complexities involved in doing so. In doing so, I will show where each factor – identified in the last chapter - fits into the overall analysis.

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Publisher: Cambridge University Press
Print publication year: 2021

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