Sunday, May 27, 2018

Thoughts on the Cuban Air Disaster and the Tragegy of Managing Accountability Within Global Service Chains: Is it Time for an OECD Due Diligence Guidance for Responsible Supply Chains in Air Leasing and Chartering?



(Pix from "Cuba plane crash leaves more than 100 dead" BBC News (19 May 2018))

"Three women were pulled alive from the wreckage, but are said to be in a critical condition. The plane, which was nearly 40 years old, was carrying 105 passengers and six crew members. Urban authorities have launched an investigation, and two days of national mourning have been declared. The Boeing 737-201 crashed at 12:08 (16:08 GMT) on Friday, shortly after taking off from Havana on an internal flight to Holguin on the east of the island." ("Cuba plane crash leaves more than 100 dead" BBC News (19 May 2018)).

So begins the usual coverage of this recent tragedy in Cuba. The focus is on the dead and their suffering, their number, and other statistics, prominent among these are the age of the aircraft.  In the case of Cuba from the perspective of a segment of the U.S. media, it also touches on the political situation that sets the context for blame.  That blame, in the case of the New York Times coverage (not unexpected of course) echoes the political line of an important sector of global society that has seen in the pullback of normalization of relations between the United States and Cuba a larger tragedy of which the air disaster can only be a symptom.
A Cuban state airliner crashed and burned moments after takeoff from Havana on Friday, killing nearly all 114 people aboard the nearly 40-year-old plane. It was one of the worst airline crashes in Cuba, which has been struggling to operate with a decrepit fleet of planes that it has blamed partly on the longstanding economic embargo imposed by the United States. (Rick Gladstone and Frances Robles, "More Than 100 Die as Aging Cuban Airliner Crashes," The New York Times (18 May 2018)).

All that may well be true--or not. And both the tragedy and its causes are important stories.  Yet that obsession (as worthy as it might be) also distracts from an equally important element of the story that will receive scarce attention.  That element centers on the way that the diffusion of authority in the global production of goods and services makes it much more difficult to assess and apportion liability (and to trace responsibility) under law across the domestic legal orders within which this diffusion is distributed.  This is particularly the case where liability and responsibility chains may not align across nations or where they may not be coordinated between, for example, financial liability to convictions versus responsibility for supervision under corporate responsibility frameworks.

This essay briefly turns to a consideration of some of those issues in the context of this tragedy. It suggests that it may be time for an OECD Due Diligence Guidance for Responsible Supply Chains in Air Leasing and Chartering.


Saturday, May 26, 2018

Call for Papers: European China Law Studies Association 欧洲中国法研究协会 Conference; Turin Italy September 2018






The 13th annual conference of the European China Law Studies Association (ECLS) will take place in Turin (Italy) on 13 – 14 September 2018, with the support of the University of Turin, its Department of Law, and its Department of Humanities. In the past these Conferences have  pushed the envelope on research and brought together a very nice mix of academics from all over the world. This year will likely be particularly stimulating in light of the fast pace of recent changes in Chinese law, politics, economics, and society.

I am pleased to pass along the Call for Papers, which follows.

Arturo Lopez-Levy & Rolf Otto Niederstrasser: "Five Keys to Presidential Change in Cuba"



The recent transition of leadership in Cuba, through which Raúl Castro ceded the Presidency of the Republic to Miguel Diaz-Canel (while retaining the position of 1st Secretary of the Cuban Communist Party (PCC)), has elicited at least some interest outside of Cuba. At a minimum, the transition spoke to the inevitable passage of time and pointed to the shape of Cuban leadership once the generation of "los históricos" pass from the scene through death or old age. 

While I agree that history does at  times produce historical events that serve as markers of transitions, I was less eager than others to see in this change in the Cuban presidency some sort of transcendent change pointing to something like fundamental regime change--either within the meaning of those terms in Cuba's governance structures, or as it has come to be understood in places like the United States. Seeing much more continuity than transition, I thought it was an interesting change that merited some attention. (More here: Transitions to Entertain and Distract the West).

Recently, Arturo Lopez-Levy & Rolf Otto Niederstrasser produced their own analysis of the transition in an essay well worth reading, even if one takes a different view.  In  "Five Keys to Presidential Change in Cuba"They quite correctly note that "Few transitions of leadership in the history of Latin America and the communist countries have been so carefully designed. From now until the eighth congress of the Communist Party of Cuba (PCC) in 2021 it will be necessary to observe how skilled and unified the Cuban elite is to execute it." They discuss the importance of the transition in five aspects: "1) the generational transition, 2) the first rise of a civilian to the presidency since 1976, 3) the separation of the heads of the Communist Party (CCP) and the government in the post-revolutionary political system, 4) the circulation of networks of influence and patronage within the Cuban elites as a result of the arrival of a new executive chief, and 5) the challenges of the new administration in foreign policy." These are each worthy of some consideration.

The essay follows.


Monday, May 21, 2018

Think Piece: "And an Algorithm to Bind them All? Social Credit, Data Driven Governance, and the Emergence of an Operating System for Global Normative Orders" for Workshop: Entangled Legalities

(Pix © Larry Catá Backer 2006)


I am delighted to be part of the upcoming workshop entitled Entangled Legalities hosted by  the Graduate Institute of Geneva and its Global Governance Center (more HERE). Over the course of two days a group of participants from a variety of fields will consider the conceptual framing of what has emerged as the in-between spaces of law – the interfaces between bodies of norms – and the challenge to traditional legal orders that comes with the resulting governance polycentricity.

This post includes the "think piece" that is my contribution to the event. It is entitled And an Algorithm to Bind them All? Social Credit, Data Driven Governance, and the Emergence of an Operating System for Global Normative OrdersThe essay considers the emergence of data driven analytics, and machine driven (artificial intelligence (AI) based) algorithmic techniques as defining not just new modalities of governance but reshaping the conception of spatiality within which governance happens. Its thesis is simple: that AI and big data management suggests the fundamental reshaping of law and law systems, one in which it may be possible to cobble together traditional spatial and inter-spatial of law toward a comprehensive management of behavior neither dependent on the forms and techniques of law nor on the bureaucratic apparatus of state.

The abstract and Introduction follow.  The preliminary draft may be accessed HERE.This paper is at it very earliest stages and is part of a broader project on social credit and data driven governance, so comments and reactions, etc. most welcome.


Upcoming Workshop: "Entangled Legalities," Geneva Switzerland May 2018


On Thursday 24 May 2018, 09:00 - Friday 25 May 2018, 17:00, the Graduate Institute of Geneva and its Global Governance Center will host what is shaping up to be a quite pathbreaking conceptual workshop entitled Entangled Legalities. Over the course of two days a group of participants from a variety of fields will consider the conceptual framing of what has emerged as the in-between spaces of law – the interfaces between bodies of norms – and the challenge to traditional legal orders that comes with the resulting governance polycentricity. The object is to move closer to an understanding of how legal practice is changing in these circumstances, how the interfaces between orders are constructed, and what consequences we need to draw in theoretical terms for our understanding of law.

The workshop is part of a larger project directed by Nico Krisch with the assistance of Lucy Lu Reimers, and Francesco Corradini, under a grant from the Swiss National Science Foundation and entitled: "Interface Law: Legal Interactions between Spheres of Authority in Global Economic Governance". The object of Interface Law is quite bold and vitally important
The growing density of interactions between spheres of authority in global governance – the focus of the proposed research unit – puts pressure also on traditional legal structures. It challenges the traditional separation of domestic and international legal orders in favour of greater linkages and routine interaction, but it also drives strategies of distancing where greater integration had been the norm, as in the field of public international law. These dual pressures are likely to produce new configurations on both the formal and the substantive side of the interfaces between normative orders and they may drive relations between layers of law in the direction of greater enmeshment rather than formal separation or simple unity.

This project seeks to analyze these new configurations both empirically and from a theoretical angle. It aims at illuminating how the interactions between (formal and informal, public and private) spheres of authority in the global order are reflected in the theory and practice of law, using the issue area of global economic governance as an example and focusing on six jurisdictions – Germany, the UK, the US, Brazil, India and China – to inquire into the ways in which conflicts between different layers of law (and informal norms) are processed in judicial, quasi-judicial and regulatory settings.

The Workshop Concept Note and Program follow. More reports to come. 


Wednesday, May 16, 2018

Malaysia Under Anwar Ibrahim and Mahatir Mohamad. . . Again: Sex, the Serpent and the Phoenix.


The political cycles in Malaysia run astonishingly fast.  And yet they appear, during the lives of its greatest protagonists, to merely replay patterns of alliance, rebellion, denunciation, delegitimization, incarceration, exile, and return to power that has marked the tempestuous relations between Anwar Ibrahim and Mahatir Mohamad.  

In the last few days, Anwar Ibrahim, at the head of a coalition likely to take power in Malaysia was freed form prison where he was serving time for the second conviction on sodomy charges.  The release follows a pardon granted by the country’s King Muhammad V at the invitation of Mahatir Mohamad.
“In the past it was said that I put him in prison. Now I have freed him,” Prime Minister Mahathir Mohamad said in a press conference on Wednesday afternoon, after Anwar’s release. Anwar was Mahathir’s deputy premier during his first stint as prime minister, before he was sacked in 1998 and later imprisoned for sodomy and corruption. (Bhavan Jaipragas, "‘Now I have freed him,’ says Malaysia’s Mahathir as Anwar walks," South China Morning Post 16 May 2018
The relationship between Mahatir Mohamad and Anwar Ibrahim is interesting not just for the repeating drama of the past  20 years, but for how clearly the relationship of these two men, the most powerful of their generation in Malaysia (and both loved and reviled by their respective factions among influential groups of Western elites who are embedded in government and media), evidence the interrelations of legitimacy, religion, sex and politics.

I considered the more general implications of this conflation a number of years ago during the course of Anwar Ibrahim's initial fall from grace and imprisonment. That focused on a consideration of the power of these ideologies to discipline people commonly gendered male, and through that disciplining deepen the disciplining of individuals gendered female. I argued then that
Ideologies of gender remain ascendant throughout the world. For my purposes here ideology might best be understood from the perspective of a community as its "articulated forms of social self-consciousness.". . .  An ideology of gender might, then, be reduced to a cluster of norms, expectations, understandings and the like, derived from the meaning of sex, where sex is used in its multiple and ambiguous senses.These ideologies are imprinted in the law of all states-modem and ancient, religious and secular.5 These ideologies become increasingly less visible as societies substitute the language of corruption, psychosis, and ethno-national chauvinism for that of gender.6 Corruption, especially in the political discourse of religion, has reinvigorated gender discipline in some countries. (Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia,  Yale Journal of Law & Feminism 17(1):1-63 (2005, pp. )1-2).
Further thoughts followed here, here, here, here, here, and here.

A little context from my prior work and the contemporary reporting byBhavan Jaipragas, "‘Now I have freed him,’ says Malaysia’s Mahathir as Anwar walks," follows below, for those who want to stay current.  My own analysis of the sex, gender, religion and legitimacy implicaitons for modern states can be accessed HERE: Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia,  Yale Journal of Law & Feminism 17(1):1-63 (2005)


Workshop Presentation: "The Protection of the Rights of Corporations Under U.S. Constitutional Law"





I was delighted to have been invited by Professors Zhiwei Tong and Sun Ping of East China University of Political Science and Law to conduct a workshop for faculty and students on “The Protection of the Rights of Corporations Under U.S: Constitutional Law.” The workshop took place on the campus of the ECUPL in Shanghai, PRC on April 27, 2018.

As Chinese companies have begun to expand their operations and ownership structures well beyond the borders of the People’s Republic, the issues of rights protections for their enterprises has become a subject of greater interest to academics, students and policymakers both within and outside government. The interest is not purely academic. The recent legal difficulties of ZTE and Huawei in the United States have served to remind Chinese enterprises of the need to better understand and protect their rights when operating within the United States, as well as the need to consider the benefits and challenges of domesticating their enterprises within the United States. In the context of ZTE and Huawei in particular, it also evidences the dangers of failing to understand the rights and obligations of corporations that come within the purview of U.S. sanctions and secrets law. More generally, a working knowledge of the relationship of corporations to the law, and especially to cluster of fundamental law protections afforded enterprise in the U.S. would be essential for better managing domestic operations as well as those that might “touch and concern” the United States.

For Chinese companies, in particular, the cluster of constitutional protections afforded enterprises also highlights the challenges of an area of law that is both dynamic and redolent with interpretive ambiguity. To that end, recent cases about the extent of U.S. jurisdiction for claims against foreign companies under the “Law of Nations” and cases touching on the legalization of societal expectations in business conduct are especially important—two areas of law that are themselves the subjects of Supreme Court decisions in the coming weeks. One of them, Jesner v. Arab Bank was decided at the time the of the workshop.  More detail on the Jesner opinion may be accessed here  (downloadable version here).

Corporate constitutionalism, once a relative backwater, has exploded again on the scene, especially as corporations are viewed increasingly as an efficient agent for promoting social change and for disciplining behaviors in markets and among individuals. In that respect both Chinese socialist development and U.S. corporate constitutionalism share some interesting intersections. It was with those ideas in mind that we discussed the nature, extent, philosophies and scope of constitutional protections of corporations under U.S. law.

The PowerPoints follow. They may also be accessed HERE.



Tuesday, May 15, 2018

"The Arc of Triumph and Transformation of the OECD Guidelines" Thoughts on the Completion of Roel Nieuwenkamp's Leadership at the OECD/WPRBC





From 2010 Professor Roel Nieuwenkamp was Chair of the OECD Working Party on International Investment and in that capacity chaired the negotiations on the 2011 update of the OECD Guidelines for Multinational Enterprises. From 2013, he has been the Chair of the OECD Working Party on Responsible Business Conduct in Paris.
The OECD Working Party on Responsible Business Conduct (WPRBC), is an intergovernmental body composed of representatives of all governments adhering to the OECD Guidelines for Multinational Enterprises (the Guidelines). Its role is to assist in implementing the Guidelines, support the functioning of the National Contact Points (NCPs), promote policy coherence on responsible business conduct (RBC), pursue the development and implementation of due diligence guidance, and engage with non-adhering countries, partner organisations, and stakeholders.
During his tenure the OECD Guidelines for Multinational Enterprises and its NCP institutions have been slowly assuming a quite definitive character as a system within which global consensus on appropriate and legitimate expectations of states and enterprises with respect the organization and conduct of economic activity has begun to emerge. From the scope of conduct that might be regulated, to the development of approaches to the management of key global production chains, the OECD Guidelines systems has seen substantial development. 

That tenure is now coming to an end. This presents an excellent opportunity to reflect on the changes that have taken place since the great revisions to the OECD Guidelines of 2011, as well as what the future may hold for this quite worthy project.  To that end I have prepared some thoughts on the evolving arc of the OECD Guidelines development under the guidance of WPRBC during Roel's leadership.  Those thoughts follow.



Sunday, May 13, 2018

"Where Neither Corporate Nor International Law Converge: The Multinational Enterprise and Societal Frameworks" -- Presentation at ASIL International Legal Theory Interest Group (ILTIG) Symposium, 11 May 2018




I was thrilled to have been able to participate in the recently concluded ASIL International Legal Theory Interest Group (ILTIG) Symposium,  When Corporate and International Law Meet: Corporate Agency in a Global Context. It was co-organized by Durham University's Institute of Commercial and Corporate Law (ICCL) and by the Jilin University School of Law.ASIL  More about that here

This post includes the PowerPoints of my contribution to that event, "Where Neither Corporate Nor International Law Converge: The Multinational Enterprise and Societal Frameworks."

Much of what is going on in the regulation of CSR and its related aspects (duties, responsibilities and rights) is not happening within the conventional structures of the corporation (enterprise) or law. The regulatory focus instead is on two constructs, neither of which is recognized fully in law: (1) Multinational corporations (MNCs); and (2) Societal rule making. But the regulation of both of these constructs is made more difficult by the conventional centrality of the corporation and of state based law (domestic and international) with all of its baggage. That presents a regulatory conundrum explored in the presentation. With a focus on the MNC as an object of legal/societal regulation, and on the legalization of societal space, and the emerging governance characteristics of accountability and assessment as the form of regulation, the presentation considered two questions. (1) has the legalization of societal space come to its end in the face of data driven governance?; (2) If not the MNC, are regulatory efforts targeting the right object?

The PowerPoints may also be accessed here.


Saturday, May 12, 2018

ASIL International Legal Theory Interest Group Symposium: "When Corporate and International Law Meet: Corporate Agency in a Global Context"


(Pix © Larry Catá Backer 2018)


It was my great delight to attend a recently concluded ASIL International Legal Theory Interest Group (ILTIG) Symposium,  When Corporate and International Law Meet: Corporate Agency in a Global Context. It was co-organized by Durham University's Institute of Commercial and Corporate Law (ICCL) and by the Jilin University School of Law.

Conference participants considered aspects of the following problem:  "Among the most significant challenges for governments and international organisations is to develop institutions for economic globalisation to promote economic growth but which also comply with moral demands that we can reasonably agree apply to these institutions. This symposium brings together legal scholars, social scientists, and philosophers to address these challenges."

The Symposium statement and a partially annotated Symposium Program follow below.