Wednesday, March 31, 2010

Globalization, Harmonization and Religious Politics

A recent set of events provides a window into the way in which  the technologies on which globalization is advanced has become an important component of the harmonization of the techniques of religious politics across religious boundaries, even as it sharpens divisions between religions.  
 Buddhist fundamentalists have succeeded in banning American R&B star Akon from entering Sri Lanka after attacking a TV station sponsoring the singer's upcoming concert. What started out as a Facebook campaign against the juxtaposition of bikini-clad women and a Buddha statue, entered mainstream politics on Wednesday when the Colombo authorities announced that Akon had been denied a visa to the country. 
Akon banned from Sri Lanka for “Buddha abuse” video, France 24, March 26, 2010.

Though Sri Lanka is said to be a secular country, I have argued that it has, for some time, been  moving between secular and theocratic constitutional foundations.  See, Larry Catá Backer,Theocratic Constitutionalism: Buddhist Constitutionalism in Sri Lanka, Law at the End of the Day,June 1, 2008.  That movement between the secular and the theocratic has put religion center stage within Sri Lankan politics.  Within that battlefield, the techniques of media exploitation, mass movement tactics, the politics of targeted violence, invocation of post colonial and anti foreign rhetoric, and utilization of  private networks of mobilization have proven quite effective.   
The private Maharaja TV station (MTV), located in Colombo, had planned to sponsor Super Fest 2010, which Akon was set to headline on 24 April. But on Monday afternoon, two bus loads of protesters turned up outside the channel's office in Union Place and began throwing stones at the building, injuring four people. The demonstrators carried home-made posters reading "Don't bring Akon to Sri Lanka" and "Chase away Sirasa FM [MTV's radio station] who are trying to disrupt the Sangha Saasana" (Buddhist message).
The outrage had been brewing since January, when a Facebooker launched the group "We Hate AKON (Abuse Music Video Against Lord Buddha)". Today it has almost 15,000 fans.
On Wednesday the government announced that Akon had been denied a visa to visit the country because his music was "insensitive to Sri Lanka's cultural heritage". Akon immediately made a statement apologising to Buddhists, saying he didn't realise the statue was in the video. On Thursday the Sri Lankan tourism minister, Achala Jagoda, said that the country had lost a "priceless" promotional opportunity in denying the star entry.
Akon banned from Sri Lanka for “Buddha abuse” video, France 24, March 26, 2010. 

It seems that globalization has brought a certain harmonization to the political techniques available to religion when it seeks to participate in the global political arena.  Religious outrage as a predicate to mobilization, and mobilization as a condition to the targeted use of violence appears to have spread from its parochial origins to become more accepted--and effective.  In the Sri Lankan case, the  mass mobilization was effected through the medium of Facebook, which was meant to project both the message and the possibility of countermeasures not merely inwards into Sri Lanka but outwards to global media outlets.   The irony here, of course, that that the techniques that made American culture such a powerful force--wide dissemination through internet based outlets has been proving as useful for others.  In this case, the cause was internal to Sri Lanka--the renegotiation of authority between secular and religious forces within Sri Lanka (as well  as the control of the interpretation and deployment of religious outrage among the faithful). "Sri Lanka has put itself in a position of what may be termed soft theocratic constitutionalism. Theocracy remains a potent but contested substantive basis of constitutional values. Until there is a bit more clarity, Sri Lanka will continue to reap the worst of both worlds--as a failed theocratic and a failed secular transnational constitution." Larry Catá Backer, Theocratic Constitutionalism: Buddhist Constitutionalism in Sri Lanka, Law at the End of the Day,June 1, 2008.

But it was external to it as well--advancing the construction of a global Buddhist movement whose power could be projected within states across the globe. The effect is to cement the power of another set of non state global actors with substantial political power.  Yet it must be understood that this power is neither sourced in law and rule of law notions on which state power is constructed and regulated.  Rather it is sourced within its own set of legitimating power constructs.  Economic organizations have their authority grounded int he consent of the community of actors among which it operates and whose rules become an autonomous basis of governance.  Religion is a governance entity is sourced within its foundational books,legitimated in an acceptance of the connection between its "higher law" and a Divinity whose will and directions must be obeyed, coupled with the construciton of a community of believers who vest legitimacy in a set of agents who direct the implementation and organization of belief.  The effect is governance, that may merge with the state, but which is nebver entirely contained by the state, law or rule of law, but rather is constrained by its own legitimating normative framework.  See, e.g., Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008.  Religion joins multinational corporations as another set of important governance stakeholders.  Their power and importance for constructing frameworks of governance--from human rights to migration to the parameters of economic and cultural activity across borders of territorial states--require a greater recognition.  

Thursday, March 25, 2010

The Cultivation of Brazil: Lula Between Castro and Obama

Brazil has been seeking to re-make its place within the Hemispheric pecking order since the ascension of Lula to the Brazilian Presidency.  Brazil, rightly, sees itself as arriving at a point in its development that it might assume some of the role traditionally exercised solely by the United States in Latin America.  It seeks to assert its hegemony in concert with or opposition to that traditionally exercised by the United States.  The recent efforts at exclusionary clubbiness with the construciton of the  Comunidad de estados de América Latina y el Caribe.  The almost successful efforts to dominate the settlement in Honduras in the wake of the removal of Mr. Zelaya all attest to Brazil's self conscious willingness to chart a new courser and finds a new place in the hierarchy of states within the Western Hemisphere. 

These efforts have put Brazil and the United States on opposite sides of a number of issues.   See, e.g., Larry Catá Backer, Brazil and the Washington Consensus, Law at the End of the Day, Nov. 10,  2008. From the efforts to export carrier technology to the Chinese, to the opposition ot Hemispheric trade on terms originally conceived by the United States, to intrusion into everything from climate change to the Jewish-Muslim war in the Middle East, Brazil has sought to have its influence felt more acutely in international affairs.  That effort was unimpeded during the Presidency of George Bush, whose ideological foundations were irreconcilable with those of Mr. Lula.  It has been a bit more difficult,  but not impossible, with the Administration of Mr. Obama, who some in the Lula Administration might have thought would be easier to manage with respect to Latin American affairs.   

Yet razil does not mean to step into the role of opponent, in the style of Cuba.  Instead, Lula has meant to serve as a bridge and mediator between the interests of Latin America, which it seeks to dominate, and those of the English speaking peoples of the Western Hemisphere, which it cannot.  Critical to that role has been the relationship between Lula and Fidel Castro.  It joins Castro, the Sandinistas, and the ideological consequences of Liberation theology as a political ideology with continuing relevance in Brazil and the Caribbean region.  I have suggested some of the contours of that relationship in the past.  See, Larry Catá Backer, Cuba and Brazil, Part I: Castro Lectures Lula da Silva, Law at the End of the Day, Jan. 26, 2008; Larry Catá Backer, Cuba and Brazil Part II: Castro Continues His Wooing of Lula, Law at the End of the Day, Feb. 10, 2008; Larry Catá Backer, Cuba and Brazil Part III: Cuba and Brazil in Parallel Strokes, Law at the End of the Day,  Feb. 24, 2008; Larry Catá Backer, Cuba and Brazil Part IV: Bringing Lula Into the Cuban Orbit; Bringing Cuba Into the Brazilian Orbit?, Law at the End of the Day, March 7, 2008.

One was recently reminded of the strength and importance of that relationship in a recent essay posted to Fidel Castro's blog:  Fidel Castro Ruz, El Último encuentro con Lula, Relexiones del compañero Fidel, Grandma, March 1, 2010. 
Después que enfermé he tenido el privilegio de ser visitado por Lula cuantas veces ha viajado a nuestra Patria y de conversar ampliamente con él. No diré que siempre coincidí con toda su política. Soy, por principio, opuesto a la producción de biocombustible a partir de productos que puedan ser utilizados como alimentos, consciente de que el hambre es y podrá ser cada vez más una gran tragedia para la humanidad. [After I fell ill, I have had the privilege of receiving the visit of Lula every time he has traveled to our homeland; and we have talked at length. I will not say that I always coincided with all of his policies. I oppose by principle the production of biofuels using crops that can serve as food since I am aware that hunger already is, and can increasingly become, a major tragedy for humanity.]
Fidel Castro Ruz, El Último encuentro con Lula, supra.  ; ther English translations are from the official web site translation, Fidel Castro Ruz, Reflections by comrade Fidel,MY RECENT MEETING WITH LULA.  For Castro, Lula is the class and ideological embodiment of a reconciliation between Cuba and Brazil,.  The emphasis on Lula's class origins and loyalties is critical to Castro's approach to both Lula and Brazil.  "Se trataba de un humilde obrero de la industria metalúrgica que se destacaba por su inteligencia y prestigio entre los sindicatos, en la gran nación que emergía de las tinieblas de la dictadura militar impuesta por el imperio yanki, en la década del 60." Id.  [He was a humble worker from the metal industry, a man of remarkable talent and of prestige among the trade unions in that great nation that was leaving behind the dark days of the military dictatorship imposed by the Yankee imperialism in the 1960s.] Nor is this approach unique to Lula, Castro dismissed Mr. Obama for the same reasons--Obama was more loyal to his class than to his "race."  See, e.g., discussion in Larry Catá Backer,  Fidel Castro on the American Elections: Obama's Partiality and the Perceptions of the Developing World, Law at the End of the Day, November 4, 2008.  Castro goes to great lengths to paint a great socialist realist canvas featuring the heroic and humble worker, Mr. Lula, undertaking the defense of the nation. 
Una vez tuve el honor de visitarlo en su casa, situada en un modesto barrio de Sao Paulo, donde residía con su familia. Fue para mí un emotivo encuentro con él, su esposa y sus hijos. No olvidaré nunca la atmósfera familiar y sana de aquel hogar, y el sincero afecto con que lo abordaban sus vecinos, cuando Lula era ya un prestigioso líder obrero y político. Nadie sabía entonces si llegaría o no a la Presidencia de Brasil, pues los intereses y fuerzas que se le oponían eran muy grandes, pero me agradaba hablar con él. A Lula tampoco le importaba mucho el cargo; le satisfacía, sobre todo, el placer de luchar y lo hacía con intachable modestia; que demostró sobradamente cuando, habiendo sido vencido tres veces por sus poderosos adversarios, sólo accedió a permitir la postulación del Partido de los Trabajadores en una cuarta ocasión por fuerte presión de sus más sinceros amigos. [I once had the honor of visiting him in his house located in a modest neighborhood in Sao Paulo where he lived with his family. It was very moving for me to meet with him, his wife and children. I will never forget the fraternal and healthy family atmosphere in that home and the sincere affection showed by the neighbors who approached Lula when he was already a prestigious worker and political leader. No one knew then whether or not he would become the President of Brazil since major interests and forces opposed him: but I enjoyed talking with him. On the other hand, Lula did not care much about that position; he took pleasure in fighting and he did so with irreproachable modesty. This he showed extensively when after being defeated three times by his adversaries he only accepted to run for the Workers Party on a fourth occasion due to the strong pressure of his most sincere friends.]

Fidel Castro Ruz, El Último encuentro con Lula, supra.    This melding of social, political and ideological purity is an important device in the construciton of ideologically compelling imagery.  Just as the conflation of sexual and political corruption has played such a great role in the politics of developing states, so it appears does the conflation of class , sexual and political purity.  See, Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia. Yale Journal of Law & Feminism, Vol. 17, No. 1, 2005.

Cuban-Brazilian friendship and ideological fellow traveling had been interrupted after the 1959 Cuba Revolution by the Brazilian dictatorship and its ideological subservience to American interests.   "Las relaciones de Brasil con Cuba habían sido excelentes hasta que el poder dominante en el hemisferio, las hizo sucumbir. Pasaron décadas desde entonces hasta que volviesen lentamente a ser lo que son hoy."  [Brazil’s relations with Cuba had been excellent until the dominating power in the hemisphere brought them to an end. Several decades would pass before those relations could slowly recover to what they are today.] Fidel Castro Ruz, El Último encuentro con Lula, supra.    But now the tables have been turned, thanks in part to Lula's identification with both his ethnicity--derived from the Southern rather then the Northern European imperium, and it is the United States, rather than Cuba that stands isolated within the Hemisphere--at least ideologically.  Its transcendant manifestation appears in the form of that exclusionary community of Hemispheric states other than the United States and Canada.  "Por ello, tiene para nosotros una enorme trascendencia la reunión que se acaba de efectuar en Cancún y la decisión de crear una Comunidad de Estados de América Latina y el Caribe. Ningún otro hecho institucional de nuestro hemisferio durante el último siglo refleja similar trascendencia." Id. [Hence the enormous significance we attach to the recent meeting in Cancun and to its decision to establish a Community Latin American and Caribbean States. No other institutional event of the past century in our hemisphere is so transcendental.]

Fact and symbol blend to  enhance the vision of a Cuba and Brazil united ideologically and by common ethically and cultural union in oppostion to a common enemy--the United States.  "Deseo dejar constancia escrita de la importancia y el simbolismo que para mí tuvo la visita y el último encuentro con Lula, desde el punto de vista personal y revolucionario. Él dijo que, próximo ya a finalizar su mandato, deseaba visitar a su amigo Fidel; calificativo honroso que recibí de su parte. Creo conocerlo bien. No pocas veces conversamos fraternalmente dentro y fuera de Cuba."  [I want to place on record the significance and symbolism I attach to Lula’s recent visit and my meeting with him, both personally and as a revolutionary. He had said that as he was nearing the end of his term as president, he wanted to visit his friend Fidel; he honored me with that description. I think I know him well. We often had fraternal conversations both in Cuba and abroad.] Castro seeks here to overdraw these commonalities and symbols as he positions Brazil further from the United States--as something alien, cold. . .English, against the common and warm embrace of socialism, proletariat. . . .Latin. . .  enhancing social justice agendas that Castro assumes for himself and Mr. Lula.  This parallelism is then emphasized, not in the body of Mr. Lula. but in its effect on the body of the Brazilian nation:
Brasil, por su parte, en los últimos ocho años bajo la dirección de Lula, vencía obstáculos, incrementaba su desarrollo tecnológico, y potenciaba el peso de la economía brasileña. La parte más difícil fue su primer período, pero tuvo éxito y ganó experiencia. Con su incansable batallar, serenidad, sangre fría y creciente consagración a la tarea, en condiciones internacionales tan difíciles, Brasil alcanzó un PIB que se aproxima a los dos millones de millones de dólares. Los datos varían según las fuentes, pero todas lo sitúan entre las 10 mayores economías del mundo. A pesar de eso, con una superficie de 8 millones 524 mil kilómetros cuadrados, frente a Estados Unidos, que apenas posee algo más de territorio, Brasil sólo alcanza aproximadamente el 12% del Producto Interno Bruto de ese país imperialista que saquea al mundo y despliega sus fuerzas armadas en más de mil bases militares de todo el planeta. [On the other hand, in the past eight years, with Lula at the head of the nation Brazil kept overcoming obstacles, increasing its technological development and expanding the weight of the Brazilian economy. The most difficult part was his first term, but he succeeded and gained experience. With his restless struggle, his calmness and composure as well as his growing devotion to his work, under such challenging international conditions, BrazilUnited States with barely a larger territory, Brazil only has about 12% of the GDP of that imperialist country that plunders the world and deploys its armed forces in over one thousand military bases worldwide. attained a GDP close to two trillion dollars. The data vary depending on the sources but they all agree to place it among the 10 largest economies in the world. In spite of this, with an area of 5,327,500 square miles, compared to the ]
Id. That unity survives even Castro¡s quibble with Brazil's aggressive program in biofuels, a subject of intense Cuban criticism over the last several years.  And why not--even that is not the fault of the hapless Brazilians--now characterized as a passive and weak player in a larger stage.  Rather even biofuels can be blamed on the United States and its orchestration of its global intangible economic empire effectuated through its construciton of private global economic systems. 
Este sin embargo —lo expreso con toda franqueza— no es un problema creado por Brasil y mucho menos por Lula. Forma parte inseparable de la economía mundial impuesta por el imperialismo y sus aliados ricos que, subsidiando sus producciones agrícolas, protegen sus mercados internos y compiten en el mercado mundial con las exportaciones alimentarias de los países del Tercer Mundo, obligados a importar en cambio los artículos industriales producidos con las materias primas y los recursos energéticos de ellos mismos que heredaron la pobreza de siglos de colonialismo. Comprendo perfectamente que Brasil no tenía otra alternativa, frente a la competencia desleal y los subsidios de Estados Unidos y Europa, que incrementar la producción de etanol.[However, I must honestly say that this is not a problem created by Brazil, least of all by Lula. It is an essential part of the world economy imposed by imperialism and its rich allies that subsidize their farm productions to protect their domestic markets and compete in the world market with the food exports of the Third World nations, which are forced to import the industrial items produced with the raw materials and energy resources of these same countries that inherited poverty from centuries of colonialism. I perfectly understand that given the unfair competition and subsidies of Europe and the United States, Brazil had no choice but to produce ethanol. ]
Id.  This is an old political trope of Castro,  which he has used effectively in other contexts.  See, e.g., discussion in Larry Catá Backer,   Ideologies of Globalization and Sovereign Debt: Cuba and the IMF. Pennsylvania State International Law Review, Vol. 24, 2006. 

Yet for all that, Castro pronounces Lula a worthy disciple, a son of his class now able to influence the course of international affairs in the service of his class. "Una cosa es indiscutible: el obrero metalúrgico se ha convertido actualmente en un estadista destacado y prestigioso cuya voz se escucha con respeto en todas las reuniones internacionales." Id.  [One thing is clear: the metal worker has become an outstanding and prestigious statesman whose voice is respectfully heard in every international meeting.]  And this puts Lula squarely on the side of Cuba and against the United States
 Algunos envidiosos de su prestigio y de su gloria, y peor aún, los que están al servicio del imperio, lo criticaron por visitar Cuba. Utilizaron para ello las viles calumnias que desde hace medio siglo se usan contra Cuba. Lula conoce desde hace muchos años que en nuestro país jamás se torturó a nadie, jamás se ordenó el asesinato de un adversario, jamás se mintió al pueblo. Tiene la seguridad de que la verdad es compañera inseparable de sus amigos cubanos. [Some of those who envy his prestige and his glory, and worse still, those at the service of the empire, criticized him for coming to Cuba. To that end, they have resorted to the vile slanders used against Cuba for half a century. Lula has known for many years that in our country no one has ever been tortured; that we have never ordered the assassination of an adversary, and that we have never lied to the people. He does know that truth is the inseparable companion of his Cuban friends.]

Having spent the greater part of the first year of the Obama Administraiton testing the Americans for weakness or a willingness to cede power within Latin America, and finding that the current Administration is perhaps more adept at continuing the policies of its predecessor, the Lula government is currently contemplating improving relations with the United States.  Improvement along those lines is to be applauded.  It will be interesting to see how that happens when according to Castro's reckening, the leading representative of class privilege over race (Mr. Obama) seeks to find common ground with the great advocate of class fidelity over race (Mr. Lula).  If Mr. Castro has its way, or better put, if his read of both men is right, the conversaiton will be short and unsatisfactory--to the great benefit of the Cuban state.  

Tuesday, March 23, 2010

Unpacking the Ideological Sub-Structure of Corporate Law--Legal Arbitrage and the Governance of Corporations

One of the greatest strengths of ideology the way in which it can fade into the background.  What appears neutral may be little more than the expression of presumptions that constitute an ideological framework for understanding and managing reality.  Law, and especially the science of law is particularly susceptible to such management.  Lawyers tend to be the servant of law and legal systems. The lawyers' craft is grounded in large part on the ability to absorb the governing ideology of a legal system and then deploy it in two ways: first  to preserve the integrity of the system in which they operate, and second, to use the rules of that system, consistent with its normative ideology to serve the needs of those for whom they work.  

Corporate law is no stranger to this phenomenon. Corporate law, more than  some other fields of law, seems strongly attached to the ideology of the state and state power.  Though one might think that corporate law would be an odd site for the promotion of state and state-system ideology, a little thought suggests the strength of the tie between the normative foundations of corporate law and the normative basis of the state.  That tie was brought home recently while I was reading the excellent article Horst Eidenmüller, Andreas Engert and Lars Hornuf, "Incorporating Under European Law:  The Societas Europaea as a Vehicle for Legal Arbitrage," 10(1) European Business Organization Review 1-33 (2009).  The authors find that European firms use the SE form to avoid mandatory co-determination rules, but not necessarily to shop for the most favorable national corporate law  to fill in gaps in SE regulation.  The analysis is solid and the conclusions strong.  But what drew my attention was the characterization of the behavior to be studied--what is commonly called legal arbitrage.  In their review of the literature, the suthors noted:
Legal arbitrage can be defined  as taking advantage of differences between legal regimes governing the same economic activities (or close substitutes).  In the case of company law, legal arbitrage may occur especially when firms can choose to incorporate in different jurisdictions without having to relocate their business activities.  Corporate law arbitrage is a demand-side precondition for charter competition among jurisdictions:  if firms to not react to differences in company law, there is no point for jurisdictions in competing for incorporation.  Legal arbitrage, therefore bears on the longstanding academic debate on charter competition.
Id., at 4.  The authors cite the greatly influential American authorities for the idea of competition between public regulators for corporate charter business and the ensuing "race for the bottom" when states suffer the indignity of exposing their legislation to a market where exit is possible.  William Cary, "Federalism and Corporate Law:  Reflections Upon Delaware," 83 Yale Law Journal 663 (1974); Ralph Winter, "State Law, Shareholder Protection, and the Theory of the Corporation," 6 Journal of Legal Studies 251 (1977); William Bratton, "Corporate Law's Race to Nowhere in Particular," 44 University of Toronto Law Journal 401 (1994). Though at least in the American context it might enhance shareholder value.  Roberta Romano, The Genius of American Corporate Law (Washington AEI Press 1993).

The description is accurate, but it also veils a set of ideological presumptions that it embraces and advances through its analytical framework.  The first is that corporations must be governed by a single statutory framework.  The second is that there is an optimal statutory framework that is (usually) connected in some way to the site of an entity's center of operations. The third is that statutory competition (arbitrage) reduces the power of the state to assert policy objectives.  These assumptions are in turn based on a more fundamental assumption--that states stand at the center of the regulatory project as the privileged entity, whose authority and autonomy (especially regulatory autonomy to impose its will on all of its subjects) ought to be protected against incursions from non political actors operating within the territory of a given state.  The focus of legal arbitrage is the state and its needs, rather than the corporation.  The object of the study of corporate behavior is to ascertain whether they are behaving in ways that preserve the regulatory privilege of the state within a rule system in which states have some measure of responsibility for providing a basis for permitting the enhancement of shareholder value.   

But if one assumes away the privileged position of the state, it is possible to think about what is called legal arbitrage in a substantially different way.  Globalization makes this possible in ways that would have been more difficult to conceive even a decade ago.  In a world in which  capital may freely moved virtually everywhere, one can view that state as a producer of regulation, a necessarily element of corporation operations.  Corporations consume regulation like they consume labor, capital and other items necessary for their operation. Within this conceptual universe regulatory markets can be understood to operate like other markets--labor, capital, consumer, etc, though subject to its own peculiarities.  Legal arbitrage becomes something less odd, and focused on the corporation rather than the state.    
The self-regulating corporation I suggest here turns the usual analysis upside down. That usual analysis posits the distinctive regulatory problem posed by [multinational corporations] is their ability to operate an integrated command and control   system through two disaggregated institutional structures. The first of these structures is the collection of discrete corporate units parent, subsidiary, sister, and cousin companies that make up the Multi-National Corporation group. The second disaggregated structure housing the Multi-National Corporation is the global system of separate nation-states in which those corporations are registered and do business. . . .  Where a corporation can distribute its operations in a sufficiently complete way, it has turned the tables on the state. . . .  By carefully choosing the place, form, and method of operation, it can effectively decide the manner in which it will be regulated. States may legislate to their hearts’ content, but the enterprise will submit to those regulations only to the extent it is either unavoidable or profitable. The tables have been turned on the state in another important way. From the perspective of the self-regulating corporation, the role of states has changed. No longer holders of a monopoly power to regulate the enterprise, states are now mere producers of a good—regulation—that can be characterized as a cost of operations. Like other operating costs, the costs of law can be modified or reduced through avoidance. Where the entity cannot avoid regulation, it is limited as regulation increases the price of goods. But where there is no monopoly on regulation, then avoidance, and the substitution of one legal regime for another becomes possible. In effect, entity and state have changed
Backer, Larry Catá, The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality. Tulsa Law Journal, Vol 41, 2006.  Ideological lenses, especially those fixated on the superiority of the state system, its territorial principle, and presumption that for every entity there is a singular public regulatory home, can cause people to see the same thing in substantially different ways.  In the case of  legal arbitrage or self regulating corporations, the difference in vision is a function of the assumptions about the role of states and the state system in their relation to corporations.   The "problem" of legal arbitrage is important where the preservation of a law hierarchy grounded in the state system is implicitly embraced.  The opportunity presented by the  self-regulating corporation is important where the state is subsumed within a transnational regulatory space.

Monday, March 22, 2010

Michael Komesaroff on China's Strategy for Managing Rare Earths and its Repercussion, Problem or Role Model?

My colleague Michael Komesaroff, principal of Urandaline Investments,  a consultancy specializing in China’s capital intensive industries, and executive in residence at the School of International Affairs, Pennsylvania State University, has written an  excellent analysis of a recent aspect of China's implementation of its natural resources policies.  It is particularly interesting as evidence of the seamless amalgamation of political and economic policy toward state directed goals.  Mr. Komesaroff has 30 year’s experience of Asia’s mineral industries of which nearly 20 years was with Rio Tinto. His last two roles in Rio Tinto were as President Rio Tinto Japan and Vice-President Strategy for the aluminium business group. In 1997 Mr. Komesaroff was recruited by an arm of China National Nonferrous Metals Corporation to work in China. Returning to Australia in 1999, Mr. Komesaroff established Urandaline which has now provided services to many or the world’s largest mining companies as well as investment banks and government agencies.  

His essay, "Precious Earth", which appeared in the March 2010 issue of China Economic Quarterly (pp. 12-14) follows:

How much should the world worry about China’s near-monopoly of global rare-earth production? Fears that China has the power to cut off supply of essential ingredients for a wide range of military and green technologies resurfaced in February, when Beijing threatened sanctions against US companies selling military equipment to Taiwan. The 17 metallic elements known as “rare-earth” elements are used in precision-guided munitions and cruise missiles, as well as high-efficiency light bulbs, wind generators and electric vehicles. The fact that China accounts for 93% of the world’s output of rare earths means that the West in general and the US in particular are beholden to China for materials critical to their national defense.

Despite their name, rare earths are not particularly rare in nature: many are more common than tin or molybdenum, and cerium is more abundant than copper or lead. Rare earths are so called because they were only isolated as oxides from their minerals in the early 19th century – much later than most other elements. Because they could only be produced in small quantities under laboratory conditions they remained a curiosity until after World War II, when scientists finally developed processes to produce them in industrial quantities. One of the first commercial applications was in color television sets, where europium was used as a red phosphor activator. Global demand for rare-earth oxides is roughly 130,000 tons per annum, valued at around US$1.5 bn.

The dirty underbelly of clean tech

Until the mid-1980s, most of the world’s rare earths were mined at Mountain Pass in California. But a combination of escalating environmental regulations and falling prices, driven down in part by cheaper production in China, forced the operation to close. Over the past 20 years China has taken over as the dominant force in the global rare-earth market, while the US is now totally dependent on imports. Aside from leading the world in production, China is number one for reserves, consumption and exports. China has 59% of the world’s total reserves; consumes four times as many rare earths (60,000 tons) as the US (15,000 tons); and exports 40% of its output, of which 50% goes to Japan and 25% to the US. China accounts for almost all the global production of terbium and dysprosium, two elements crucial for manufacturing electric cars.

Unsurprisingly, the weak spot in China’s global dominance is environmental standards. Many small, illegal mines use crude processing techniques which result in large tracts of land being contaminated by toxic tailings laced with radioactive waste. Even China’s largest rare-earth mine, Bayan Obo in Inner Mongolia, has severe environmental problems. Because it extracts rare earths as a by-product from a much larger iron ore operation, Bayan Obo is a very low cost producer. But the processes used to refine the ore use high-temperature sulfuric acid and other hazardous chemicals, which exposes the local environment and workers to toxic pollutants. Plans to consolidate the industry around larger operations than the small mines that currently dominate production should help cut pollution. But, for the moment at least, the world’s green technologies will remain dependent on resources mined in China using processes that cause serious environmental damage.

Far more worrying for foreign governments and technology companies, however, is Beijing’s long-term objective to tighten its control over the global supply of rare earths. The Ministry of Industry and Information Technology plans to create a rare metals reserve in 2011, while the Ministry of Commerce has already begun to reduce export quotas and is considering an outright ban on exports of dysprosium, terbium and ytterbium. Policy makers hope this will force foreign consumers of rare earths to relocate their manufacturing facilities to China, thereby boosting employment and transferring technology. Around three quarters of rare-earth finished products are already fabricated in factories located in China, and tighter export controls mean this proportion is set to grow. State-owned holding company Jiangsu Eastern China Non-Ferrous Metals Investment’s 2009 purchase of a 25% stake in Aafura Resources, an Australian mining firm with rare-earth operations in the Northern Territory, only heightened international fears that China is seeking to monopolize the industry.

Incentives for smuggling

To be fair, Beijing’s motives are not entirely sinister. As the world’s biggest manufacturing base for rare-earth intensive gadgets such as cell phones and iPods, China has a rising domestic demand for these materials and consequently less room to export. By 2012, some analysts predict that China’s own demand will have increased to such an extent that it will no longer export any rare-earth material. But the commercial impact of further reductions of rare-earth exports could be enormous. Around 25% of Japan’s rare-earth imports come from illegal sources, thanks to a lack of legitimate Chinese exports. The shortage is so acute that Japan has begun to stockpile critical rare earths and is looking for alternative supply sources, including new mines in Vietnam.

Yet the greatest pain is probably felt in the US, once the world’s dominant rare-earth producer and the pioneer of many of today’s fabricating technologies. General Motors, in conjunction with the Pentagon, perfected the manufacture of the cheap rare-earth magnets used in Toyota’s Prius back in 1982. But seeing no further value in the technology, GM sold it to a Chinese group that dismantled the manufacturing plant and shipped it  back to China. Not only did the US lose its rare-earth production capacity; it also threw away its technological lead.

The onus now is on the US and other countries with significant rare-earth deposits, notably Australia and Canada, to develop new mines. The problem is that low market prices mean there is little financial incentive for purely commercial operators, while new entrants to the industry have to overcome significant technical barriers. Because of their relative novelty, technologies for processing rare earths are not commercially available and need to be tailored to specific deposits. Even if foreign governments decide to subsidize the funding shortfall, it will take decades for Western or Japanese engineers to bridge the technology gap with their Chinese competitors. And as more foreign manufacturers transfer their operations to China to be closer to global end-users, China’s grip on the rare-earth industry is set to tighten. The US and China’s other global competitors have only themselves to blame – but they are right to be worried.

Sunday, March 21, 2010

Perverse Precedent: The Trial of Stern Hu, State Secrets, Closed Trials, and the External Price of China's Worry About Internal Order

As the Stern Hu trial proceeds to its inevitable and murky conclusion--tied as it is to the negotiations over control of Australian extractive industries and the perceived necessity to use the trial to cement China's place among the community of nations above that of Australia, the media has recently circulated reports of mechanics of the trial:
China has refused a request from the Federal Government to give Australian officials access to the entire court proceedings during the trial of Rio Tinto executive Stern Hu. Mr Hu and three Chinese colleagues will go on trial in Shanghai next Monday over allegations of receiving bribes and inducing Chinese steel company executives to leak commercially sensitive information. The part of the trial dealing with commercial secrets will be closed to consular staff and other observers. The Federal Government had asked for its officials to be allowed to monitor the entire case, but the request has been declined.
China Refuses to Open Hu Trial, ABC News,  March 19, 2010.  The internal dynamics of Chinese political culture drives this result in part.  The State Secrets Law itself makes open trials difficult.  In the absence of a deeper experience with judicial management of sensitive cases in the public eye, an experience that has come hard to the West, it would have been odd had the issues underlying the breach of the State Secrets Law, as currently understood and applied, surface, even indirectly, in open trial.  Of course, that suggests both the need to reform the State Secrets  and its commercial adjuncts (the State Secrets complex) to conform to the realities of China's global engagement. China risks much by treating its State Secrets Law complex like some vestige out of the Cultural Revolution period.  Indeed, Chinese ideological maturity suggests a need to change the culture of the State Secrets Law complex.  But that is an issue for another essay.  The days of Stalinist paranoia about the provision and dissemination of routine financial information are quickly passing in China.  That paranoia was grounded in part, on the fusion of economics and politics, and the subordination, effectively of politics within economics.  That theoretical foundation was institutionalized in the State Secrets complex. The equation of breaches of financial information relating to industry with information that compromises fundamental aspects of state operation are long past.  And beyond paranoia, the State Secrets complex provided a legal cover for arbitrary and indirect disciplining of non-political activity to the greater glory of state policy. That has been acutely apparent in the Stern Hu drama--much as it is tied to Chinese efforts to strong arm  its way into a greater control of Australian natural resources.  On the other hand, such measures appear effective--the spectacle of the Rio Tinto grandee pandering to his Chinese hosts during the climax of the Chinese orchestration of its public and symbolic efforts to invert its relations with the West did not go unnoticed. Devon Maylie, UPDATE: Rio Tinto CEO To Speak At Beijing Conference March 22, Fox Business,  March 17, 2010 ("The chief executive officer of Rio Tinto PLC . . .  is scheduled to speak at a China Development Forum in Beijing next week just as the much-anticipated trial of four Rio employees begins in Shanghai. . . . Rio CEO Tom Albanese will speak on the same day at the Beijing-based forum on a panel with other company chief executives including from Danone Group . . .  and Ford Motor Co. . . . in a session titled "Strengthening Global Cooperation for a Mutually Beneficial Future." Id.)       

Equally important, however, are historical sensitivities that the Chinese continue to both suffer from and, when it suits them, exploit publicly.  The most important of these involve unequal treaty and sovereign relations that marked Chinese relationships with European and American States for a century before the end of the Communist Revolution in 1949.  Sovereignty has become, again, a code word for non-interference that is meant to be a conversation ending phrase, grounded in the certainly of Western guilt for the past and calculated to play well with a well managed internal campaign of hyper patriotism and fear of the foreigner.   But here, I think. Don Clarke has the right answer when considering the issue in a recent excellent post:

Finally, it's worth looking at what the Chinese government has to say about this. Regrettably, it has offered no serious, reasoned defense. On March 18th, Ministry of Foreign Affairs spokesman Qin Gang addressed some of these questions in a way that should forever put to rest accusations that Chinese government bureaucrats don't have a sense of humor. When asked about the closing of the trial, he insisted it was being handled in accordance with the Australian-Chinese agreement on consular relations and added this bizarre observation: "China has from ancient times stressed silence in the courtroom because the courtroom is a dignified place; one can't make a lot of noise before the trial has begun, one can't interfere with the independent handling of the case by China's relevant departments" (中国自古讲究开庭肃静,因为法庭是一个庄严的地方,不能在还没开庭的时候就冒出各种杂音,不能干扰中国有关部门依法独立办案). What this has to do with excluding Australian diplomats from the trial is not clear. Perhaps it is the Aussies' reputation for loving a good party. Are they afraid the diplomats will try to interrupt the trial with a barbecue?
When asked again about the matter, he responded, "Please don't mix up the relationship between a country's sovereignty, particularly its judicial sovereignty, and the Chinese-Australian Agreement on Consular Relations. The Chinese-Australian Agreement on Consular Relations must be premised on respect for China's sovereignty and judicial sovereignty" (请你不要混淆一个国家的主权,特别是司法主权和《中澳领事协定》的关系。《中澳领事协定》应以尊重中国的主权和司法主权为前提). Um... I hate to be the one to break the bad news, but the right to do exactly as you please is precisely what you give up when you enter into an international treaty. It is your sovereignty that makes your promise meaningful. Does the Ministry of Foreign Affairs really back Mr. Qin's interpretation of what it means to sign a treaty - that any obligation can be waved off by saying the magic word "sovereignty"? Does China expect those with whom it signs treaties to treat their obligations similarly? This would certainly be a new direction in Chinese foreign policy.
Donald C. Clarke,  The Closing of the Stern Hu Trial:  A Legal Analysis,  Chinese Law Prof Blog, March 21, 2010.

Of course, the most interesting ramifications of this conduct has little to do with the niceties of Chinese State Secrets or Commercial Secrets laws, as the Chinese choose to apply them internally.  Nor does it much have to do with the niceties of treaty law and the treatment of diplomats.  Instead, the Stern Hu trail can be understood, in a couple of senses.  First, it serves as a reminder of the ways in which Chinese sovereign investing will produce different conduct and conduct norms from that expected of other states within the informal rules of economic globalization.  Using state policy and the projection of economic power through corporations, the Chinese state will be tempted to use law as an instrument of economic activity.  As a consequence, Chinese corporations might be more tempted to use Chinese law as another means of deriving advantage in their sometimes intense interactions with competitors, targets and markets outside of China.  At the same time, Chinese corporations, to the extent they serve state policy, could be understood as public entities, extensions of the state, and thus instruments of policy--like law.  On the one hand the result is an extension of public law into private activity and on the other the extension of private activity to state governance.  Either way, the West is hardly prepared for this very different manner of aggressively pursuing state-private objectives.

Second, the Stern Hu trial might serve as a public notice that Chine reserves to itself the freedom to flaunt international law like that other great power, the United States.  It is not for nothing that China chose the trial of a foreigner (or at least of a foreign passport holder--the Chinese  may have a different conception of the status of overseas Chinese) to make a point about its global status and its power to deal with the representatives of secondary powers as it wants.  In this, the United States has served as a role model of sorts.  Its long and protected litigation about its obligations under the Vienna Convention with respect to notification of foreign consul when foreigners are arrested by state authorities for criminal activity provides a nice template for the Chinese.  Though the details are different, and the stakes are higher in the Chinese case, the American pattern serves as a model nonetheless.  The United States effectively thumbed its nose at the International Court of Justice's judgment in Avena, suggesting that its international obligations could not trump its sovereign rights.  See, Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. 1 (March 31); Medellín v. Dretke, 544 U.S. 660125 S.Ct. 2088 (2005); Ex parte José Ernesto MEDELLÍN, Court of Criminal Appeals of Texas, 223 S.W.3d 315, 2006 WL 3302639 (Tex.Crim.App., Nov. 15, 2006); MEDELLÍN, Petitioner, v. TEXAS, 128 S.Ct. 1346 (2008). For a useful background paper see Margaret E. McGuinness, Medellín, Norm Portals, and the Horizontal Integration of International Human Rights, 82 Notre Dame L. Rev. 755 (2006); William J. Aceves, Consular Notification and the Death Penalty: The ICJ's Judgment in Avena, ASIL Insights, 2004. It is not hard to see how the Chinese could not have read these broadly to suggest its own conduct--especially as it seeks to acquire acknowledgment of its status as a superpower.

Of course, there are down sides to this course of conduct.  China will increasingly be unable to play both sides of the aisle--complaining about injustices to it as a developing state while seeking global acknowledgment of its super power status.   While that sort of double play worked effectively during the Copenhagen Climate Conference, it is unlikely to be effective for much longer.  More importantly, China will find that its super power status will cause it the same sorts of difficulties that other such powers have experienced in the past as they sought to exploit their weaker neighbors while explaining that this was all for their own good in the service of some higher set of ideologically driven goals.  China is beginning to experience this to some extent in China, though it ability to buy its way out of difficulties there will continue unimpeded for a little while longer.  But super power status will make it a target to tempting to ignore for the growing and powerful set of non state actors seeking to require all states ot harmonize their activities--especially for example with respect to human rights.  Projections of economic power abroad--even driven by sovereign design and aided by sovereign power--will have little effect in the face of transnational systems of regulation of private entities that are the preferred vehicle for such interventions.  The OECD's corporate governance frameworks, the U.N.'s forthcoming Protect-Respect-Remedy framework and international consumer and investor markets will tend to discipline Chinese behavior like it appears to be doing to the economic expressions of other powers.  But that is a lesson for the future.  for the moment, Stern Hu reminds us that reorganizations of global political alignments can be a messy and painful affair--especially for individuals on whose bodies these changes are expressed. 

Friday, March 19, 2010

Masculinities, Enterprise Global Governance, and the OECD

The   Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically oriented legal scholarship. It brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics. It encourages dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's place in culture.

This year the ASLCH's 13th Annual Conference, is being held at Brown University, Providence, Rhode Island.  The Conference program may be accessed here.  I was pleased to participate in a panel on Masculinity and Manliness, Chair John Min Kang (St. Thomas University School of Law), Discussant Frank Rudy Cooper (Suffolk University School of Law).  The panelists presented the following papers:

John Kang, Masculinity’s Burden: An Equal Protection Clause for Men
David Cohen (Drexel University Earle Mack School of Law), Masculinity and Sex Segregation

Larry Catá Backer, Masculinities and Enterprise Global Governance: The OECD and Development of Transnational Norms for Enterprise Organization and Behavior

What follows is a rough version of the essay I presented at that conference.

Masculinities and Enterprise Global Governance: The OECD and Development of Transnational Norms for Enterprise Organization and Behavior
Larry Catá Backer[1]

ABSTRACT: Juanita Elias (Hegemonic Masculinities, the Multinational Corporation, and the developmental State, Men and Masculinities, Vol. 10(4): 405-421 (2008)) has argued that that the mainstream study of multinational corporations reflects a set of gendered assumptions that construct the firm as a hegemonically masculine political actor, and its internal functioning a form of a masculinist managerialism that constructs women workers in terms of their "productive femininity." R.W: Connel has noted that a transnational business masculinity, institutionally based in multinational corporations and global finance markets, is arguably the emerging dominant form on a world scale. (R.W. Connel, Masculinities and Globalization, Men and Masculinities, Vol. 1(1):3-23 (1998)). This paper examines these insights in the context of the development of emerging global corporate governance frameworks. Like the entities they mean to regulate, and the economic framework within which they are to be implemented, efforts at global regulation of enterprises tend to reflect and build on the hegemonically masculine. Focusing on the Organization of Economic Cooperation and Development (OECD) projects to produce an interlocking set of principles and guidelines for corporate governance, behavior norms for multinational corporations, and guidelines for state owned enterprises, the paper suggest the ways in which these governance frameworks reproduce and deepen the culture of transnational business masculinity.

I. Introduction.

It has become something of a cliché that globalization has substantially altered the once tidy system of governance grounded in the state, and based on a prime presumption that for every object of regulation—individual or entity—there is a state with substantially complete power to regulate. Globalization itself presents an alternative ideologically based ordering of society, where ideology is understood as systems of social self-consciousness.[2] This ideology of globalization is usually constructed in economic, political and sociological terms. These provide a basis for distinguishing globalization as an organizing ideology from that which served as ordering principles for state law-politics system.

Yet, it is in the nature of the success of ideology that it remains opaque.[3] I suggest here that the traditional and privileged constructions of globalization tend to mask another and equally potent ideological grounding of globalization, one that suggests a strong functional connection between globalization and the state system it appears to be displacing. Ideologies of gender remain ascendant throughout the world. They serve as a subtext of globalization in much the same way that they served the gender-order disciplining norms of the state system. Juanita Elias[4] has argued that that the mainstream study of multinational corporations reflects a set of gendered assumptions that construct the firm as a hegemonically masculine political actor, and its internal functioning a form of a masculinist managerialism that constructs women workers in terms of their "productive femininity." R.W. Connell has noted that a transnational business masculinity, institutionally based in multinational corporations and global finance markets, is arguably the emerging dominant form on a world scale.[5]

This paper examines these insights in the context of the development of emerging global corporate governance frameworks. Like the entities they mean to regulate, and the economic framework within which they are to be implemented, efforts at global regulation of enterprises tend to reflect and build on the hegemonically masculine. Focusing on the Organization of Economic Cooperation and Development (OECD) projects to produce an interlocking set of principles and guidelines for corporate governance, behavior norms for multinational corporations, and guidelines for state owned enterprises,[6] the paper suggest the ways in which these governance frameworks reproduce and deepen the culture of transnational business masculinity. I start with the ordering framework of masculinity and its translation within the context of globalization. I then consider the current efforts to frame governance principles for corporations at the transnational level through the soft law systems elaborated by the OECD. I then suggest the relationship of those efforts to the preservation of stable male privileging gender ordering.

I am mindful of the criticisms of non-European anthropologists. Wazir Jahan Karim has tellingly suggested “that the movement towards deconstructing women's history and the history of gender in terms of macro forces of colonialism, religious orthodoxy, fascism and globalization, cannot rid itself of Western bias or Eurocentricity if anthropologists again base their analysis on the theoretical formulations of thinkers who have attempted these reconstructions on Western data."[7] I also note that a gendered understanding of globalization adds, rather than substitutes, analytical framework. “Clearly, the insights offered here are not meant to "describe the world." They are offered as another layer in the complex of patterns of understanding and conceptualization of the world, and the people in it, scripting coercive normative consequences on the fundamental postulate that humans take one of two forms: male or female.”[8] But I do suggest that ignoring gender, and especially the imperatives of gender hierarchies based on a disciplining of the superior male archetype, ignores a significant aspect of what makes globalization work. More importantly, perhaps, gender based analysis helps explain why something that might appear so different—the organizational structures of globalization and its impact on the state—may have strong ties to the more traditional framework for ordering social, political and economic relations. The preservation of the hegemonically male through constructions of role preserving systems in globalization may explain why something so different has had such a benign impact on the social systems it appears to change.

II. The Ordering Framework of Masculinity.

In earlier work I suggested that the conflation of homosexuality with other forms of social corruption is both trans-cultural and draws on a singular logic of gender roles and a consequential gender hierarchy that privileges the ideal male.[9] This ideal male then stands in for all aspects of behavior that represents the aspirational ideals of the society, whether expressed in religious, ethnic or medical terms.

This "homosexual" allegation/representation draws upon a local logic, which varies with the cultural context, to associate the wrongdoers' "homosexuality" with other traits coded as "bad" within the cultural context. The allegations in each case serve to amplify and fix the other allegations of consequentially bad behavior. This process reiterates the deviant nature of homosexuality, and reinforces the association of homosexual behavior with undesirable characteristics. . . . Ironically, strengthening this association enables the gendered foundations of behavior regulation to recede while retaining its regulatory power.

Such a system of conflation appears to affect only relations between men. In actuality, the power of gendering behavior among men has strong spillover effects on all social ordering. The maintenance of behavior systems that are gendered male necessarily results in the articulation of behaviors that are gendered "not-male" or "female." Though those gendered behaviors apply equally to deviant men and women, gendering effectively assigns a sex, and therefore a social place, to behavior. Since the behavior discouraged in men is "not-male" or "female," such behavior systems tend to reinforce gendered notions of appropriate conduct among women as well as men. The ritual of homosexual accusation functions to narrow the scope of acceptable male behavior, and thus reduce the ideal set of behaviors, to those identified with the non-deviant male. Behavior or expectations unreasonable for men will be generalized for the population as a whole as necessarily undesirable and gendered "not-male" or "female." Gendering male behavior as male (desirable) and "not-male" or "female," what is commonly understood as the "homosexualization" of male behavior, thus contributes to the regulation of women and reinforces a social hierarchy of behaviors in which that gendered "female" is subordinated to that gendered "male." Because each of these episodes takes place on a legal stage, they each give force to a system based on gendered behavior and the association of that gender system with locally powerful logics. This in turn authenticates and legitimizes the resulting conduct system in the neutral terms of the culture in which it is served up. Memorialized as law, the political system can then embrace gendered behavior in culturally acceptable non-gendered terms.[10]

This ordering framework extends beyond the disciplining of individual behavior. “The concept of hegemonic masculinity presumes the subordination of nonhegemonic masculinities. . . . Also well supported is the idea that the hierarchy of masculinities is a pattern of hegemony, not a pattern of simple domination based on force.”[11] It extends beyond the conflation of corruption with deviations from the masculine heterosexual ideal and its further conflation between “deviating masculinity” and the subordinate role of the feminine. Gender normativity has structural and institutional aspects as well. These are brought out well in the work of Connel and Elias. Connel suggests the macro aspects of masculinity as an ordering element in the construction of globalization. Elias suggests its micro parameters in the construction of the ideal economic participant in globally conformist economic units of production.

Connell offers a sketch of major forms of globalizing masculinity in the three historical phases.[12] The first he calls Masculinities of Conquest and Settlement. Colonial conquest itself was mainly carried out by segregated groups of men-soldiers, sailors, traders, and administrators etc. The process of conquest could produce frontier masculinities that combined the occupational culture with an unusual level of violence and egocentric individualism. In certain circumstances, frontier masculinities might be reproduced as a local cultural tradition long after the frontier had passed[13]. Conquest and settlement disrupted all the structures of indigenous society and indigenous gender orders were no exception. The varied course of resistance to colonization is also likely to have affected the making of masculinities.[14]

The second form of global masculinities he refers to as Masculinities of Empire. The imperial social order created a hierarchy of masculinities, as it created a hierarchy of communities and races. The colonizers distinguished ‘more manly’ from ‘less manly’ groups among their subjects.[15] At the same time, the emerging imagery of gender difference in European culture provided general symbols of superiority and inferiority.[16] Empire might also affect the gender order of the metropole itself by changing gender ideologies, divisions of labor, and the nature of the metropolitan state.[17]

The third and most relevant for current systems of globalization, Connell calls Masculinities of Postcolonialism and Neoliberalism. The process of decolonization disrupted the gender hierarchies of the colonial order and, where armed struggle was involved, might have involved deliberate cultivation of masculine hardness and violence. One of the consequences of decolonization was another round of disruptions of community-based gender orders and another step in the reorientation of masculinities toward national and international contexts. Nearly half a century after the main wave of decolonization, the old hierarchies persist in new shapes. Since world politics is more and more organized around the needs of transnational capital and the creation of global markets, the world in which neoliberalism is ascendant is still a gendered world and neoliberalism has an implicit gender politics.

Connell proposes that the hegemonic form of masculinity in the current world gender order is the masculinity associated with those who control its dominant institutions: the business executive who operate in global markets and the political executives who interact with them. He calls this “transnational business masculinity.”[18] This is a masculinity marked by increasing egocentrism, very conditional loyalties (even to corporation), and a declining sense of responsibility for others. Transnational business masculinities differs from traditional bourgeois masculinity by it’s increasingly libertarian sexuality, with a growing tendency to commodify relations with women.[19]

What social dynamics in the global arena give rise to masculinity politics, and what shape does global masculinity politics take? The gradual creation of a world gender order has meant many local instabilities of gender ranging from the disruption of men’s local cultural dominance as women moved into the public realm and higher education to the shifts in the urban intelligentsia that produced “the new sensitive man” and other images of gender change. One response to such instabilities is to reaffirm local gender orthodoxies and hierarchies and a masculine fundamentalism is a common response in gender politics at present.[20]

Within the arenas of international relations, the international state, multinational corporations, and global markets, there is a deployment of masculinities and a reasonably clear hegemony. With the end of the cold war, the more flexible, calculative, egocentric masculinity of the fast capitalist entrepreneur holds the world stage. Two important conclusions of the ethnographic moment in masculinity research: that different forms of masculinity exist together and that hegemony is constantly subject to challenge. These are the possible in the global arena too. Transnational business masculinity is not completely homogeneous; variations of it are embedded in different parts of the world system, which may not be completely compatible.[21]

If these are contenders for hegemony, there is also the possibility of opposition to hegemony. Michael Kimmel recently suggested the rise of such counter masculinities within communities with subordinated male populations.[22] Steve Derné suggested how men from communities subordinated by agents of the globalizing economy seek both to recapture their masculinity and gender primacy through indulgence in symbolic hypermasculinity and in efforts to subordinate the non-male into an exaggerated female gender role.[23] Compared with the concentration of institutional power in multinational businesses, these initiatives remain small scale and dispersed. However, they are important in potential. As Connell contended, the global gender order contains greater plurality of gender forms than any local gender order. This must reinforce the consciousness that masculinity is not one fixed form. The plurality of masculinities at least symbolically prefigures the unconstrained creativity of a democratic gender order.

The study of the global arena itself, both as a venue for the social construction of masculinities and as a powerful force in local gender dynamics will require a reconsideration of research methods which give limited grasp on the very large scale institutions, markets, and mass communications that are in play on the world scale. It also needs to be supplemented by international teams to investigate issues of the scale and complexity we must now address.

In contrast Elias looks to the manifestation of masculinities within the global enterprise. He looks at how we can situate the multinational corporation (MNC) as a site for the production of hegemonic masculinity within a broader understanding of the gendered politics of globalization. By employing insights from both masculinity studies and critical gendered/feminist political economy, Elias aimed to reveal the complex set of gender relationships underpinning the activities of MNCs. A focus on hegemonic masculinities enables an analysis of how gendered forms of inequality become embedded in the functioning of the global market economy.[24] Moreover, understanding the operation of localized gender regimes is something that cannot be fully comprehended without focusing in on the mediating and supporting role of the state which is also addressed in this article[25]. In this sense, Elias draws upon Connell’s notion of “the Globalization of gender” which can be understood in terms of “the structure of relationships that interconnect the gender regimes of institutions, and the gender orders of local societies.”[26]

The focus is on a type of multinational activity- the spread of global factories across the developing world employing a largely female workforce in low-cost[27], monotonous work, rather than on all multinational activity per se. Furthermore, a focus is not simply on women workers, but on the production of “feminine” work. The role of masculinist managerial practice provides insight into the gendered structures and institutions within which women’s and men’s participation in the global economy takes place[28]. Such a focus also opens up space for a discussion of the role of men and (often nonhegemonic) masculinities within MNCs.

Elias argues that the global sphere cannot be regarded as a gender-neutral arena, but rather should be seen as a site for the production of gender identity.[29] Consequently, firms come to be conceptualized as actors embodying not just economic rationality, but also competitiveness and an aggressive pursuit of new market opportunities- characteristics closely associated with Connell’s writing on “transnational business masculinity” as the contemporary hegemonically masculine ideal.[30]

This is the model of hegemonic masculinity associated with the emergence of globalized managerial elite and is thus considered distinct from localized forms of paternalistic management. In addition, it is an identity that should be recognized as intersecting with constructions of race, class, and ethnicity. While the progressive firm has been construed as a gender-neutral market actor having potential to actually undermine gender inequalities in “backward” host economies-such as higher wages paid to women in MNCs compared to local firms, many women employed in MNCs face problems including hazardous working conditions and long stressful hours which may negatively affect their health. UNCTAD’s World Investment Reports (and liberal understanding of FDI more generally) tend to avoid discussion of gender issues. This omission is significant because a focus on gender, and gender inequality in particular, would raise certain questions relating to the “positive” economic and social outcomes that FDI is said to bring.

Gendered worker identities are produced not only in relation to globalized managerial norms but also are forged at the interface between the global and the local. Moreover, the role of the state is central to this process of construction since the production of gender inequality and gender identity is a process that is in constant negotiation with localized masculinities of host states. It is suggested here that the relationship between global capitalist production and localized gendered labor regimes has been effectively mediated by the state. Such a position rests on the development role of the state shifting toward the market economy, but it also points to the unintended consequences of state policies reflecting a pervasive male bias.[31] The model of hypermasculine development is a useful way of thinking about how global and local forces play out in the reconstruction of gender relations in specific national context.

Since a focus on the role of the state in mediating and supporting the global production of gender identities provides an insufficient picture of the relationship between hegemonic masculinities and localized gender cultures, Elias turns to the production and utilization of masculinities and masculine identities within the workforces of export sector factories.[32] This provides an insight into how the relationship between a hegemonic “transnational business masculinity” and localized take root in MNCs often in the form of workplace resistance strategies, but more frequently as a force that stabilizes and reinforces the hegemonic masculinity of transnational business practice.

A “scientific” approach to management has constructed regimes of worker control around a Taylorist organizational model couched in the language of gender neutrality (target setting, measurement techniques, etc.). In practice, however, the pursuit of capitalistic discipline hinges on the incorporation of localized masculinist forms of control and discipline. Workers in Elias’ case study research conducted in the Malaysian garment sector showed that a culture of paternalism pervaded the factories she visited.[33] The highly localized culture of control based around traditional understandings of male power and dominance is reinforced by state-led repression of trade unions in export industries and the rigorous production targets and systems of worker monitoring and surveillance that are standard practice across the globalized garment industry. Groups of male workers known as “migrant leaders” and “yard bosses” whose power and authority rests on a localized gendered discourse of “prowess”-the ability of real men to get the job done. This localized, yet thoroughly masculine, form of control is a mechanism through which multinational firms and their subsidiaries can ensure both worker discipline and a supply of migrant (largely female) workers. Thus, we find that alternative, localized versions of masculine identity work alongside the rational/ scientific managerialism of a transnational business masculinity in fostering gendered regimes of factory control.

Many groups of male workers have accessed localized masculinist identities to secure jobs that are often better paying and less restrictive than the kinds of assembly-line jobs available to women. Because the operation of hegemonic masculinities in export manufacturing is so dependent on the construction of gendered discourse of work concerning “productive femininities,” it is groups of male workers who are best able to avoid association with low-paid assembly-line production. It is by disassociating themselves with the discourse of productive femininities that men are able to seek privilege in the workforce and exert control over female workers. Elias argues that workplaces act as locations for a merging of localized and globalized discourses of the “good” female work that are central to the maintenance of male privilege within the MNCs, and perhaps even the global economy more generally.[34]

How can we introduce about ideas of multiple and nonhegemonic forms of masculinity into an analysis of workplace relations in the global market factory? Elias’ research in Malaysia shows that Chinese men dominated managerial, supervisory, and technical/scientific posts while ethnically Malay men predominated in “craft” and manual employment.[35] According to Elias, such examples suggests that a gendered global management culture, based on the rigorous “scientific” recruitment practices that are so standardized across the world’s garment sector, actually broke down when confronted with localized masculine identities. Women workers were subject to Taylorist patterns of measurement and control in corporate recruitment and employment which were backed up by a localized paternalism. But for male workers, such as the Chinese managers and supervisors, localized masculinities infused with a politics of ethnicity have proven resilient in resisting factory control and promoting group interests.

III. The OECD’s Global Soft Law Corporate Governance and the Reproduction of Gender Hierarchy.

These insights may have insights to offer for an understanding of the emerging frameworks of soft law governance increasingly asserted as a basis for global governance of transitional economic relations. For the purpose of exploring that possibility it is useful to examine the work of the Organization for Economic Cooperation and Development,[36] and its Principles of Corporate Governance,[37] the Guidelines for Multinational Enterprises,[38] and the Guidelines on Corporate Governance of State-Owned Enterprises.[39] Together, these provide a comprehensive set of principles for the governance of economic enterprises in the organization of their government and in the rules limiting the range of their behaviors with other actors.

The OECD Principles of Corporate Governance are divided into six sections, covering the basis for an effective corporate governance framework, the rights of shareholders and key ownership functions, the equitable treatment of shareholders, the role of stakeholders, disclosure and transparency, and the responsibilities of the board of directors.[40] The OECD Principles expressly recognize the ownership of private property as a key means by which resources are used efficiently, and the need to protect those property rights under differing legal and political regimes.[41] They specify that basic shareholders rights[42] The competitiveness and ultimate success of a corporation is the result of teamwork that embodies contributions from a range of different resource providers including investors, employees, creditors[43], and suppliers.[44] But this nod to stakeholders is subject to the overarching obligation of the corporation to its “owners”, the shareholders. The OECD Principles recommend that the corporate governance framework should ensure timely and accurate disclosure on all material matters[45] regarding the corporation, including the financial situation and operating results, corporate objectives, performance, ownership structure and voting rights, membership of the board, key executives and their remuneration, governance structure and policies of the corporation.[46] The Principles embrace a general notion of board independence and objectivity, grounded in the board’s fiduciary duty to the company and its shareholders.[47] This is manifested in a number of structural ways well understood under traditional principles of corporate law.[48]

To these principles of internal organization, the OECD’s Guidelines for Multinational Enterprises adds a critical set of principles describing the behavior norms of corporate enterprises in their operation with other constituencies. If the Principles of Corporate Governance sought to adduce constitutional principals touching on the organization of the apparatus of corporate government, the Guidelines for Multinational Enterprises suggests the substantive values of corporate behavior that such legitimately organized government must follow. These are organized around principles of disclosure, employment and industrial relations, sustainability, bribery, consumer protection, science and technology, engaging in competition, and taxation. The Guidelines addressed disclosure in two areas: The first set[49] of disclosure recommendation is identical to disclosure items outlined in the OECD Principles of Corporate Governance such as timely and accurate disclosure on all material matters regarding the corporation (financial situation, performance, ownership, governance of the company, remuneration policy). The second set is in areas where reporting standards are still emerging such as social, environmental, and risk reporting. The Guidelines recommends that enterprises contribute to the elimination of all forms of compulsory labor while the 1998 ILO Declaration requested that governments “suppress the use of forced or compulsory labor in all its forms within shortest possible period.” The Guidelines made it clear in its Commentary that they are not intended to reinterpret any existing instruments or to create new commitments on the part of governments- they are intended only to recommend how the precautionary approach should be implemented at the level of enterprises.[50] However, the Guidelines impose requirements on multinational corporations to assume responsibility for the conduct of all enterprises within their supply chains. In effect, the Guidelines construct a program of downstream obligation, with the expectation that the most powerful entity within the supply chain will enforce the governance norms recognized within the Guidelines through the supply chain. The effect is that the Guidelines legitimate the creation of a hierarchy centered on the power of multinational enterprises to discipline their subordinate units and to assimilate them to the normative behaviors embraced through the Guidelines.

State owned enterprises and sovereign wealth funds present a unique problem for the governance of corporation. State owned enterprises are both public and private—they are both the property of the sovereign corporation (the state) and a person in its own right (as an autonomous corporation with a sovereign owner). Traditionally the sovereign character of the enterprise was privileged. It was an agency of the state first, and an economic entity only to the extent that this role served the paramount relationship to the state. Globalization has suggested an inversion of that relationship that would privilege the autonomous entity as a separate body corporate from that of its sovereign corporate owner. In this task, the OECD nicely exposes the fundamental constitutional and supra national character of the transnational corporate constitutionalist enterprise—that the normative framework for the organization and behavior of corporations is grounded in universal principals beyond the state and subject to its own autonomous logic.

For that purpose, the SOE Guidelines focus on the obligation to ensure an effective legal framework for SOE operation, managing the state’s role as owner, the equitable treatment of other shareholders, relations with stakeholders, transparency and disclosure, and the responsibilities of SOE boards of directors. It is in the state’s interest to ensure that, in all enterprises where it has a stake, minority shareholders are treated equitably, since its reputation in this respect will influence its capacity of attracting outside funding and the valuation of the company. The underlying principle is that a state ought to strive to set an example in the organization and operation of enterprises in which it has an ownership stake. For that purpose, it ought to follow evolving international best practices regarding the treatment of minority shareholders.[51]A clear division of responsibilities among authorities and a coherent regulatory framework will facilitate the improvement of corporate governance in SOEs. There should be a clear separation between the state’s ownership function and other state functions (particularly market regulation): Full administrative separation of responsibilities is a fundamental prerequisite for creating a level playing field for SOEs and private companies, while also avoiding the distortion of competition.[52] Often the multiple and contradictory objectives of state ownership lead to either a very passive conduct of ownership function or state’s excessive intervention in decisions which should be left to the company and its governance organ. Thus, in order for the state to clearly position itself as an owner, it should clarify and prioritize its objectives.[53] The ownership or co-ordinating entity’s ability to give direction to the SOE or its board should be limited to strategic issues and policies. In addition, it should be publicly disclosed and specified in which areas and types of decisions the ownership or coordinating entity is competent to give instructions.[54] SOEs should acknowledge the importance of stakeholder relations for building sustainable and financially sound enterprises.[55] Co-ordinating or centralized ownership entities should develop aggregate reporting that covers all SOEs and make it a key disclosure tool directed to the general public, the Parliament and the media. As in large public companies, it is necessary for large SOEs to put in place an internal audit system. To reinforce trust in the information provided, the state should require that, in addition to special state audits, at least all large SOEs are subject to external audits[56] that are carried out in accordance with international standards.

From the descriptive exposition of the principles of corporate behavior distilled in the principles and guidelines produced by the OECD, the reinforcement of traditional gender order in a globalized context becomes clear. “Within the contemporary world gender order, the emerging hegemonic form seems to be a masculinity based in multinational corporations and international capital markets.”[57] Like political constitutions, the focus is on the demos; in the case of the corporation, its shareholders. The centrality of shareholders to the legitimacy of the organization of the government of a corporation (run through elected board members and appointed officers responsible to the Board of Directors) is emphasized. Protecting the participation rights of shareholders assumes an importance equal to that focused on the protection of citizen voting rights in political constitutions. At the same time, the position of other groups with important interests in the functioning of the corporation is also protected, though to a lesser extent. These suggest the sort of patterns of control that mark the gender project—the establishment of an ideal type, the definition of behavioral borders, and the demonization of non conformity as corrupt and inefficient.

More importantly, the obligation of multinationals to extend their domination throughout the supply chain legitimates the construction of a hierarchy in which the center acquires a quasi legal authority to use their power to assimilate all entities with which they deal. The assumption that the supply chain responsibilities of corporations run only in one direction—from the multinational corporation down to the smallest and most remote supplier. That parallels the understanding of the way power relationships run between multinationals and other enterprises with which they deal in the construction of non-state governance relationships.[58] Yet, it is not clear that such supply chain governance relationships ought to run solely in one direction. That approach encourages an unhealthy passivity in downstream entities. It also reinforces single vector chains of power relationships that might be embellished with a neo-colonialist or interventionist character, the essence of the institutionalism of indirect gender hierarchy.

Taken together, the OECD project evidences the macro character of global masculinity described by Connell and the micro applications of masculinities within the agents of economic globalization described by Elias. Indeed, the essence of the construction of the OECD Principles and Guidelines transposes, on a global scale, the fundamental construction of a masculinist organization derived from the essence of the systems of the most powerful economic actors, whose business and corporate cultures drive the standards.[59] The structural sociology of that transposition suggests, quite subtly, the underlying gendered ordering of that effort. Janis Sarra suggests the underlying gender impacts of shareholder activism within a hierarchically arranged global order, comparing the United States and Canada with respect to the roles played by shareholder activists and regulators in improving corporate governance in a way that seeks to mitigate the harmful impact of corporate activity on women and people of color.[60] [61] Claire Moore Dickerson has suggested the negative effects of the now global shareholder wealth maximization norm on the commercial lives of women in developing markets, focusing primarily on West Africa, by comparing the role of public companies in the United States to their role in emerging markets.[62] She has suggested that the free market itself is gendered.[63] This review of the OECD structures suggest that as this project seeks to institutionalize the basic parameters of free market behaviors within global governance structures, it will also transpose the gender norms underlying that system. Transposing systems transpose the values on which they are based.[64] Yet, as I have suggested elsewhere, the male privileging construct of social organization will continue to put the non-idealized male—and especially when constructed as female—at a disadvantage. As Claire Moore Dickerson has nicely explained:
Those who have supported fiduciary duty track the three feminist approaches highlighted by Hilary Charlesworth: (1) we sound like liberal feminists when we strive for equality by discounting differences between those with power and those without it; (2) we sound like cultural feminists when we celebrate the different experiences and perspectives of the powerful and the vulnerable; (3) we sound like radical feminists when we assert that we must correct the power imbalances inherent in the existing structures. [65]

Yet that very characterization suggests both the power of the gendering construct on the ordering of social and economic institutions, and the difficulties of moving away from either hierarchy or the male ideal. “Reform from outside--from the realm of the female, from the realm of that which society describes as negative in males--must struggle against an encoding built into the foundations of the socio-legal system itself. To believe that through a simple invocation law, the gender constructions built into male social organization and encoded in law, will simply disappear, thus significantly underestimates the force of male-male gendering in the social order.”[66]

But there is complexity here as well. As Michael Kimmel has suggested,[67] the masculinities ordered hierarchies buried within global economic regulation sourced in developed states and reflecting their values produce counter movements that are gendered as well. These counter movements can be perverse—producing a sort of distorted hyper masculinity that marginalized both deviant male and all female behavior or cultural characteristics. This can be manifested in everything from the evolution of more aggressively patriarchal systems grounded in religion or in “pre-colonial” culture. But in reality, these represent engagements with global interventions and efforts to remain both hierarchically male and dominant within a cultural or territorial space. They can also exert strong inward pressure on indigenous cultures. The result might be manifested in resistance to universalizing norms grounded in notions of impurity or attacks on the indigenous (and male) system of power hierarchy. This is particularly the case in the context of values changing human rights and business that upset traditional patterns of patriarchy within host states. This produces a double attack on local maleness. First, it subordinates local patriarchy to global patriarchal systems projected inward. Second, it inverts the patriarchal order within a host state. Masculinity and gender order thus infiltrates, at a subtextual level both the discourse of values based global economic norms and its impact on gender orders within target (host) states.

IV. Conclusion: Looking Forward.

It is not uncommon among some elements of global civil society outside the developed world to disaggregate efforts at global values ordering in race, power and gender terms.

The hierarchization of humanity has, and has always had, gendered and sexual components that are indissoluble from national, ethnic, racializing and other components. The logic of patriarchy entailed that colonial, neo-colonial and imperialist devaluation of populations was expressed through the symbolic feminization of the men of the dominated groups, a feminization which could of course take very different forms.[68]
I have suggested that by reproducing the universalizing soft law efforts designed to produce a more humane world can feed into this notion. Without a greater sensitivity to the constructions of gender and gender ordering, it is likely that efforts, like those seeking to provide a framework for corporate governance and social responsibilities, will produce the unintended consequences embedded within the gendered behavior frameworks that they might unconsciously embrace.


[1] W. Richard and Mary Eshelman Faculty Scholar and Professor of Law, Dickinson Law School; Affiliate Professor, School of International Affairs; director, Coalition for Peace and Ethics, a policy NGO. The author may be reached at My thanks to my research assistant Su Jin Hong for her excellent research and related contributions ot this essay.

[2] Janet Dolgin, The Ideological Context of the Disability Rights Critique: Where Modernity and Tradition Meet, 30 Fla. St. L. Rev. 343, 345 (2003) (citing Janet L. Dolgin & JoAnn Magdoff, The Invisible Event, in Symbolic Anthropology 351, 363 n.7 (Janet L. Dolgin et al. eds., 1977)).

[3] See V. Spike Peterson & Anne Sisson Runyan, Global Gender Issues 44 (2d ed. 1999) ("[I]deologies are most effective when most taken for granted.")

[4] Juanita Elias, Hegemonic Masculinities, the Multinational Corporation, and the developmental State, 10(4) Men and Masculinities 405-421 (2008).

[5] R.W. Connel, Masculinities and Globalization, 1(1) Men and Masculinities 3-23 (1998).
“While the embodiment of transnational business masculinity has yet to be studied in detail, two points leap to the eye. One is the immense augmentation of bodily powers by technology (air travel, computers, telecommunications), making this to a certain extent a "cyborg" masculinity. The other is the extent to which international businessmen's bodily pleasures escape the social controls of local gender orders, as their business operations tend to escape the control of the national state; along with globalization of business has gone the rapid growth of an international prostitution industry.”
R.W. Connell, Understanding Men: Gender Sociology And The New International Research On Masculinities, 24 (1&2) Social Thought & Research 13, 25 (2001).

[6] See, Janis Sarra, Convergence Versus Divergence, Global Corporate Governance at the Crossroads: Governance Norms, Capital Markets & OECD Principles for Corporate Governance, 33 Ottawa L. Re. 177, at 208.

[7] See also Wazir Jahan Karim, Women and Culture: Between Malay Adat and Islam 3 (1992)

[8] Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale Journal of Law & Feminism 1, 5 (2005).

[9] This suggests an ironic and inverted reading of Catherin MacKinnon’s classic suggestion that “theory becomes feminist "to the extent it treats sexuality as a social construct of male power: defined by men, forced on women, and constitutive of the meaning of gender." Catharine A. MacKinnon, Toward a Feminist Theory of the State, at 128 (1989). Instead, the operating postulate here is that sexuality is a construct of male power veiled in language of apparently neutral systems, defined by men, forced on men, and thus constitutive of the meaning of gender, imposed on women.

[10] Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale Journal of Law & Feminism 1, 4-5 (2005).

[11] R. W. Connell and James W. Messerschmidt, Hegemonic Masculinity: Rethinking the Concept, 19 Gender Society 829 (2005) available (“Cultural consent, discursive centrality, institutionalization, and the marginalization or delegitimation of alternatives are widely documented features of socially dominant masculinities.”).

[12] Id., at 12-16.

[13] Id., at 13 (Some examples would be the gauchos of southern South America and the cowboys of the western US.). In other circumstances, the frontier of conquest and exploitation was replaced by a frontier of settlement. The creation of settler masculinity might be the goal of state policy as part of a general process of pacification and the creation of agricultural social order. Or it might be undertaken through institutions created by settler groups. While it is less documented, the impact on the construction of masculinity among the colonized should be severe. Id.

[14] Id. (“This is clear in the region of Natal in South Africa, where sustained resistance to colonization by the Zulu kingdom was a key to the mobilization of ethnic-national masculine identities in the 10th century.”); Robert Morrell, Political economy and identities in KwaZulu-Natal: Historical and social perspectives (1996).

[15] Id., at 13-14 (“In British India, for instance, Bengali men were supposed effeminate while Pathans and Sikhs were regarded as strong and warlike.”; South Africa: similar distinction between Hottentotos and Zulu; North America: Iroquois, Sioux and Cheyenne on one side, and southern and southwestern tribes on the other).

[16] Id., at 14 (Sinha’s study shows “how the images of ‘manly Englishman’ and ‘effeminate Bengali’ were deployed to uphold colonial privilege and contain movements for change.”); Mrinalini Sinha, Colonial masculinity: The manly Englishman and the effeminate Bengali in the late nineteenth century (1995).

[17] Id., at 14-15. In sum, there was the interplay of gender dynamics between different parts of the world order. However, in general, a widespread result of the world of empire was masculinities in which the rational calculation of self-interest was the key to action, emphasizing the European gender contrast of rational/irrational woman. While the accumulation of wealth made class and gender compromises possible in the metropole, the vehement masculinity politics of fascism still existed as a pattern in this context. Id.

[18] See also Predatory Globalization. CITE.

[19] Id., at 16.

[20] Id., at 17 (“A soft version… is offered by the mythopoetic men’s movement in US and by the religious revivalists of the Promise Keepers. A much harder version is found… in the Oklanhoma City bombing and in contemporary Afghanistan…Talibaan.”)

[21] Id., at 7-18 (“We may distinguish a Confucian variant, based in East Asia..from a secularized Christian variant..).

[22] See Michael Kimmel, Globalization and its Mal(e)Contents, International Sociology, Vol. 18, No. 3, 603-620 (2003) (This article examines the ways in which masculinities and globalization are embedded in the emergence of extremist groups on the far right in Europe and the US, with a final discussion of the Islamic world. It discusses the ways in which global political and economic processes affect lower middle-class men in the economic North, and describes several of their political reactions, especially their efforts to restore public and domestic patriarchy.).

[23] Steve Derné, Globalization and the Reconstitution of Local Gender Arrangements, 5(2) Men and Masculinities, 144-164 (2002) (Men often handle these anxieties by rooting their own national identity in women's acceptance of food habits, clothing, and gender subordination that men regard as traditional. Although participation in bureaucratic economies is an important source of men's anxieties about globalization, men address these anxieties in the realm of interpersonal gender relations over which they have some control.)

[24] See, Elias, supra note 1, at 406 (“ The feminization of global assembly-line employment is not simply an effect of the low wages that employers are usually able to pay female workers, but also reflects the perpetuation of socially constructed ideas relating to the ideal “nimble fingered” factory worker.”).

[25] Id.; S. Rai, Gender and the political economy of development: From nationalism to globalization (2002).

[26] R.W.Connell and J. Wood, Globalization and business masculinities, Men and Masculinities 7, 347-64 (2005).

[27] See, Elias, supra note 1, at 406; M.B.Mills, Gender inequality in the global labour force, Annual Review of Anthropology 32, 41-62 (2003); W.R.Poster, Racialism, sexuality and masculinity: Gendering ‘global ethnography’ of the workplace, Social Politics 9, 126-58 (2002).

[28] Juanita Elias, Stitching-up the labour market: Recruitment, gender and ethnicity in the multinational firm, Internationals Feminist Journal of Politics 7(1), 90-111 (2005).

[29] See, Elias, supra note 1, at 409.

[30] R.W.Connell, The men and the boys (2000).

[31] In seeking to demonstrate how states in East Asia promoted a particular vision of economic development, Ling discussed the notion of “hypermasculinity” to convey the glorification of aggression, competition, accumulation, and power that are a hallmark of these states’ development strategies. L. M. H. Ling, Sex machine: Global hypermasculinity and images of Asian Women in modernity, Postitions: East Asian Cultures Critique 7(2), 277-306 (1999).

[32] See, Elias, supra note 1, at 413; J. Elias, Fashioning inequality: The multinational corporation and gendered employment in a globalizing world (2004); The gendered political economy of control and resistance on the shop floor of the multinational firm: A case study from Malaysia, New Political Economy 10(2), 203-22 (2005). One of the key insights drawn from Hearn, Connell, and others is that masculinity is not a standard category of analysis; there exist multiple and contingent forms of masculinity. In dealing with this complexity of masculinities, Elias turned on her own research from an MNC operating in the Malaysian garment sector. The same tensions and reconstructions of gender identities discussed in relation to the state are also taking place within the factory environment as notions of hegemonic or “transnational business masculinity” play out within the context of multiple and competing masculinities and feminities.

[33] See, Elias, supra note 1, at 414. For example, workers were encouraged to recruit family members into the firm and the company organizing “family days” for workers.

[34] See, Elias, supra note 1, at 416.

[35] See, Elias, supra note 1, at 416.

[36] The OECD is an intergovernmental organization representing most developed states. See OECD, About OECD nd <,3417,en_36734052_36734103_1_1_1_1_1,00.html >. For a discussion, see, e.g., Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21
July 2008) And Global Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal of International Law 258 (2009).

[37] OECD Principles of Corporate Governance (2004) <> (“The OECD Principles of Corporate Governance were endorsed by OECD Ministers in 1999 and have since become an international benchmark for policy makers, investors, corporations and other stakeholders worldwide. Id., at 3 (Forward)).

[38] OECD Guidelines for Multinational Enterprises (2000) <,3343,en_2649_34889_2397532_1_1_1_1,00.html> . The Guidelines provide voluntary principles of business behavior covering virtually every aspect of the operations of an economic enterprise. “Although many business codes of conduct are now available, the Guidelines are the only multilaterally endorsed and comprehensive code that governments are committed to promoting.” OECD, Policy Brief, The OECD Guidelines for Multinational Enterprises (June 2001) <>. The Guidelines are likely to be updated in 2010. See, OECD, Working Party of the Investment Committee, Preparing For Consultation on an Update of the OECD Guidelines for Multinational Enterprises, DAF/INV/WP(2009)4 28 Aug. 2009.

[39] OECD Guidelines on Corporate Governance of State Owned Industries (2005). The OECD has expressed its opinion that these Guidelines are compatible with its Principles of Corporate Governance but oriented to the special issue of state owned enterprises as they were understood within OECD states (not including China) in the early 21st Century. “These Guidelines are also based on a comparative survey of SOE corporate governance practice in OECD countries.” OECD, Guidelines on Corporate Governance of State Owned Enterprises, and,3343,en_2649_34847_34046561_1_1_1_37439,00.html. For a criticism, see Larry Catá Backer, The Chinese Communist Party and the Governance Structures of SWFs and SOEs: “Unswervingly Upholding the Party's Core Political Status in SOEs", Law at the End of the Day, Sept. 1, 2009 >.

[40] OECD Improving Corporate Governance Standards: the Work of the OECD and the Principles 1, available at (last visited on June 22, 2009). Each includes official commentary and explanation of the principles. Id. at 2.

[41] Janis Sarra, Convergence Versus Divergence, Global Corporate Governance at the Crossroads: Governance Norms, Capital Markets & OECD Principles for Corporate Governance, 33 Ottawa L. Re. 177, at 208.

[42] Id. at 209: “While markets for capital and for corporate control will create incentives for manages to improve corporate efficiency, codifying basic shareholder rights will reduce investment risk and transaction costs.”

[43] Id. The stakeholder chapter breaks with the earlier version in explicitly recognizing the role and rights of creditors. In a number of countries, the experience has been that poorly defined and ineffectively enforced creditor rights have distorted corporate governance, particularly in the presence of controlling shareholders. A new principle states that the corporate governance framework should be complemented by an effective, efficient insolvency framework, and by effective enforcement of creditor rights.

[44] The Principles 46. According to the annotations, in all OECD countries, the rights of stakeholders are established by law (e.g. labor, business, commercial and insolvency laws) or by contractual relations. It also states that even in areas where the interests are not legislated, many firms make additional commitments to stakeholders[44]. Concern over corporate reputation and corporate performance often requires the recognition of broader interests. In addition, the legal framework and process should be transparent and not impede the ability of stakeholders to communicate and to obtain redress for the violation of rights. Id.

[45] The Principles 49-50. (Disclosure requirements are not expected to place unreasonable administrative or cost burdens on enterprises. However, the Principles support timely disclosure of all material developments that arise between regular reports. Material information can be defined as information whose omission or misstatement could influence the economic decisions taken by users of information. )

[46] Id. The Principles also recommend that this disclosure include material foreseeable risk factors, as well as material issues regarding employees and other stakeholders. This is to facilitate investors’ assessment of the stewardship of the corporation.

[47] Policy Brief, Improving Corporate Governance Standards: the Work of the OECD and the Principles, p4: “The principle covering board and director independence has been extended to cover situations characterized by block and controlling shareholders, and not just independence from management.”

The Principles annotation 63. Finance, Competition and Governance: Priorities for Reform and Strategies to Phase-Out Emergency Measures: p52, OECD suggests in its recent document that the “fit and proper person test” needs to be strengthened and extended to cover more institutions including directors since there is compelling case for the criteria to be expanded to technical and professional competence such as general governance and risk management skills. It also mentioned that “the test might also consider the case for independence and objectivity”

[48] For example, Independent non-executive board members or establishment of specific committees might provide additional assurance where there is a potential for conflict of interest among market participants. Id., Principle, 65. The Board should also should review related party transactions using independent board members. See, OECD, Asian Roundtable Task Force on Related Party Transactions, Conclusions and Key Finding Note, 5. It should also provide confidential access for whistleblowers who may be in a position to identify unethical conduct and abusive transactions. Id.

[49] Their focus is on publicly traded companies, however, it should also be a useful tool to improve corporate governance in non-traded enterprises including privately held and state owned enterprises. (Id.)

[50] Commentary

[51] Id. at 33. It is in the interest of the co-ordinating or ownership entity and SOEs themselves to refer to the OECD Principles of Corporate Governance with regard to minority shareholders’ rights. The Principles state that “Minority shareholders should be protected from abusive action, by, or in the interest of, controlling shareholders acting either directly or indirectly, and should have effective means of redress”. The Principles also prohibit insider trading and abusive self-dealing. Finally, the annotations to the OECD Principles suggest pre-emptive rights and qualified majorities for certain shareholder decisions as an ex-ante means of minority shareholders protection. Id.

[52] OECD Guidelines on Corporate Governance of State-Owned Enterprises p19.

[53] Id. at 23.

[54] Id. at 24. The relationship of the co-ordinating or ownership entity with other government bodies should be clearly defined. In particular, the ownership entity should maintain co-operation and continuous dialogue with the state supreme audit institutions responsible for auditing the SOEs. The co-ordinating or ownership entity should also be held clearly accountable for the way it carries out the state ownership function. Its accountability should be, directly or indirectly, to bodies representing the interests of the general public, such as the Parliament. However, The accountability requirements should not restrict unduly the autonomy of the co-ordinating or ownership entity in fulfilling their responsibilities. Id.

[55] Id. at 37.

[56] external auditors should be subject to the same criteria of independence as for private sector companies. This generally includes limits on providing consulting or other non-audit services to the audited SOE. as periodic rotation of audit partners or audit firms. Guidelines for SOEs P43.

[57] R.W. Connell, Understanding Men: Gender Sociology And The New International Research On Masculinities, 24 (1&2) Social Thought & Research 13, 24 (2001).

[58] See, Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39(4) University of Connecticut Law Review 1739 (2007).

[59] Donald J. Johnson, Promoting Corporate Responsibility: The OECD Guidelines for Multinational Enterprises, in Corporate Social Responsibility: The Corporate Governance Op The 21st Century 243, 247 (Ramon Mullerat ed., 2005).

[60] Janis Sarra, Class Act: Considering Race and Gender in the Corporate Boardroom, 79 St. John's L. Rev. 1121 (2005).

[61] Janis Sarra, The Gender Implications of Corporate Governance Change, 1 Seattle J. for Soc. Just. 457, 462, 464-68 (2002) (women face distinct disadvantages even as investors in markets as currently structured).

[62] Claire Moore Dickerson, Sex and Capital: What They Tell Us About Ourselves, 79 St. John's L. Rev. 1161 (2005).

[63] Claire Moore Dickerson, Feminism and Human Rights, 22 Women's Rts. L. Rep. 139, 140-141 (2001).

[64] See, Claire Moore Dickerson, Culture and Trans-Border Effects: Northern Individualism Meets Third-Generation Human Rights, 54 Rutgers L. Rev. 865, 867 (2002).

[65] Claire Moore Dickerson, Feminism and Human Rights, 22 Women's Rts. L. Rep. 139, 142 (2001).

[66] Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale Journal of Law & Feminism 1, 60 (2005) (“There is no sorcerer's (much less witch's) spell that can transform the object to which the incantation is directed through the medium of law.” Id.).

[67] See Michael Kimmel, Globalization and its Mal(e)Contents, International Sociology, Vol. 18, No. 3, 603-620 (2003) (This article examines the ways in which masculinities and globalization are embedded in the emergence of extremist groups on the far right in Europe and the US, with a final discussion of the Islamic world. It discusses the ways in which global political and economic processes affect lower middle-class men in the economic North, and describes several of their political reactions, especially their efforts to restore public and domestic patriarchy.).

[68] Race, class and the contradictions of masculinity, (2005) available