Saturday, March 30, 2013

Nabih Haddad on the Contradictions of Extraterritoriality and International Approaches to Business and Human Rights

I have suggested that though expedient (because it appears efficient), extraterritoriality as a means of extending human rights at across borders will benefit powerful states and constitutes in its most abusive practice a form of "legal imperialism."  I have also suggested that this principled approach creates an “extraterritorial application of the (favored) laws of certain jurisdictions (usually from developed states); the development of substantive rules of corporate responsibility as international law (usually reflecting the position of developing states though serving the policy objectives of portions of developing-state elites); and privatization of corporate regulation beyond the traditional scope of corporate governance.” (Larry Catá Backer, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board, and the Global Governance Order, 751 Ind. J. Global Legal Stud. 802 (2011); See generally, Anne-Marey Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 Am. J. Int'l L. 461 (1989).

Nabih Haddad, Research Associate, The National Forum on Higher Education for the Public Good The University of Michigan, Ann Arbor, Michigan, graduate student at the Penn State School of International Affairs (PSU MIA expected 2013), and my research assistant and has taken this as a point of departure for some very creative and thoughtful.  On March 27, 2013 Mr. Haddad presented an excellent lecture entitled, "Extraterritoriality and the Construction of International Governance Frameworks for Business and Human Rights." as part of the Penn State Center for Global Studies Lecture Series.

Ruminations 46--Epigrams on Governance Beyond the Human Condition

This is another in what has become a long series of aphoristic (ἀφορισμός) essays, though now more in the style of epigrams (ἐπιγράφειν), meant to provoke rather than explain. The hope is that, built up on each other, the series will provide a matrix of thoughts that together might lead the reader in new directions. Though each can be read independently of the others, they are intended to be read together and against each other.

(Pix (c) Larry Catá Backer 2013)

The epigrams and interludes that follow suggest something beyond the human condition and its expression in self- and communal governance.  The object is to pierce through convention and travel beyond those frameworks within which the comforting formalist assumptions upon which the structures of law and governance are built; assumptions which, like well compacted sand, when shaken sufficiently will dissolve and consume all that is built upon it.

Friday, March 29, 2013

Corporate Social Responsibility With Chinese Characteristics Part 3: Wang Maoling on CSR and the Communist Party Line in China--构建和谐社会必须强化企业的社会责任

I have been considering issues of corporate social responsibility in China. See Corporate Social Responsibility with Chinese Characteristics, Law at the End of the Day, Nov. 9, 2011; Corporate Social Responsibility With Chinese Characteristics--Part II, Law at the End of the Day, July 9, 2012. One of the unique structural conditions that may shape the development of CSR with Chinese characteristics relates to the role of the Chinese Communist Party (CCP) in framing the substantive premises within which CSR can be expressed.  Though CCP policy is usually understood as focused on issues of politics and public law, its reach can be much broader.  Its role in shaping CSR for state owned enterprises may be assumed; but it appears to be broader in scope.

(Todd Balazovic, China Steps Up Corporate Social Responsibility Efforts, China Daily, Oct. 15, 2012; "Corporate social responsibility has long been a buzzword in the boardrooms of the West, but it is relatively obscure in China. But as China becomes more important to multinational companies in generating revenue, they are stepping up their corporate social responsibility efforts in the country. . . .  Though it broadly falls into three main categories - community outreach, environmental health and safety and environmental protection - the bulk of CSR work consists of designing a more sustainable company culture or having employees engage in volunteer work, making the exact value of CSR difficult to gauge.")

A recent article published by Wang Maoling, 构建和谐社会必须强化企业的社会责任 "Goujian Hexie Shehui bixu qianghua Qiye de Shehuizeren" ("Constructing Harmony Society must strengthen the ideal of Corporate Social Responsibility"), Qiushi 23 (2005) suggests the contours within which the relationship between CCP and CSR can be understood.  Most interesting is the way in which the substantive values of CCP normative projects, and particularly that of "harmonious society" are transposed into the Western CSR project.  That transposition is particularly notable in the context of accommodating CSR objectives within the framework of corporate welfare maximization.

Shan Gao, an SJD candidate at Penn State's Law School has translated the article with a brief commentary.  It follows below:

Tuesday, March 19, 2013

Presentation --"The Trans-Pacific Partnership: Japanese Strategic Diplomacy or Chinese Containment"

The Japan-America Society of Pennsylvania (JASP) is an association of individuals, corporations and organizations in the state of Pennsylvania and its surrounding regions that was established in 1986. Its purpose is to promote understanding and enlightened relations between the United States and Japan.  It is the region's premiere organization for educational, business and arts activities related to Japan and Japanese-American relations. 

I was asked to participate in the JASP's  MEPPI Japan Lecture Series: The Political Economy of Japan in the Wake of a Growing China.The event was held Thursday, March 21, 2013 at 5:30 PM at the Pittsburgh Grille in the Steel Building, 600 Grant St, Pittsburgh, PA 15219.  Later versions were presented at the University of Arizona James E. Rogers College of Law and the Pennsylvania State University School of International Affairs.

This post includes the draft text of my address lightly footnoted:   The Trans-Pacific Partnership: Japanese Strategic Diplomacy or Chinese Containment.

The PowerPoints of the presentation may be accessed HERE

The video of my presentation is available HERE.

Monday, March 18, 2013

European Commission Action Plan on Company Law and Corporate Governance

This from Jeremy Miller, ECGI Director of Communications
On 12 December 2012, the European Commission published the Action Plan which outlined the initiatives that the Commission intends to take in order to modernise the company law and corporate governance framework. It identified three main lines of action: enhancing transparency, engaging shareholders and supporting companies’ growth and their competitiveness This Action Plan follows a period of consultation undertaken by the Commission after its publication of two Green Papers, the first in June 2010 on the Corporate Governance of Financial Institutions and the second in April 2011 on Corporate Governance of all European corporations.

In September 2011, the ECGI organised an academic conference to identify the corporate governance research agenda of relevance to issues raised in these two Green Papers which addressed a common set of issues - shareholders, boards of directors, and gatekeepers (regulators, auditors, credit rating agencies, codes etc). A full report of the conference to be found on this website recounted the thoughts and ideas expressed by the participants on each of these topics. Those attending the meeting were ECGI Research and Board Members, representatives of European Commission DG Internal Market and Services, the London Business School Centre for Corporate Governance, and CEPR-affiliated researchers. 

Sunday, March 17, 2013

Michael Komesaroff on Chinese Investments in Afghanistan and the Changing Face of Global Mining

Michael Komesaroff, principal of Urandaline Investments, a consultancy specializing in China’s capital intensive industries, and a former executive in residence at the School of International Affairs, Pennsylvania State University, has produced an excellent analysis Chinese strategies for investment in mining: Afghan Adventure, China Economic Quarterly 7-9 (Dec. 2012).  

(Jonathan S. Landay, China Hungry for Afghan Copper, Seattle Times,  March 10, 2009, "Chinese working on the Aynak copper-mine project in the Logar province of Afghanistan stay in this gated community built for them. They are trying to gain access to the 240 million tons of copper ore though surface mining. ")

Mes Aynak in Afghanistan is one of the world’s largest undeveloped copper projects. Meaning little copper well, the Aynak deposit is located 35 km southeast of Kabul. In 2007, the government in Kabul handed the right to mine Aynak to Metallurgical Corporation of China (MCC). The story of Aynak and MCC illustrates how China’s state-backed natural resource companies are reshaping global mining.

Saturday, March 09, 2013

Birgit Spiesshofer on "Global Financial Crisis, Corporate Responsibility and Poverty GFC Taskforce Phase II"

Dr. Birgit Spiesshofer M.C.J. (New York), Attorney at Law, has been an Of Counsel in the Berlin office of Salans since 1 April 2010 and works mainly in the area of public law.

Birgit established the “Gaemo Group – Corporate Responsibility International” in June 2009. She is chair of the CSR Committee of the Council of Bars and Law Societies of Europe (CCBE), Co-Chair of the CSR Committee of the International Bar Association and a member of the Constitutional Law Committee and of the Human Rights Committee of the German Lawyers Association. Birgit Spiesshofer has often been named by JUVE and other publications as one of the leading practitioners in the area of public law. She publishes and speaks on the topic extensively.

This post considers an excellent  recent publication "Global Financial Crisis, Corporate Responsibility and Poverty GFT Taskforce Phase II," to be published by the International Bar Association as Phase II of its Global Financial Crisis Project.

Thursday, March 07, 2013

Monitoring Corporate Social and Environmental Compliance: Oxfam Behind the Brands Campaign

I have suggested that over the last decade a complex system of governance has been evolving at the transnational level.   Backer, Larry Catá, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008. I suggested the way this transnational and private system operated within Wal Mart's supply chain:
Wal-Mart is able to use those contractual relationships to legislate behavior among its suppliers with respect to product quality, working conditions for the suppliers' employees, ethical conduct, and similar matters. The particulars of those behaviors reflect Wal-Mart's perception of the tastes and expectations of its consumers, investors and the financial community. Those tastes and expectations, in turn, are formed by elements of civil society and spread by elements of the media. Civil society elements serve not only to form consumer tastes, but also to develop Wal-Mart's specific set of behavior norms and then independently monitor compliance by Wal-Mart and its suppliers with their obligations. The media independently serves as the source of legitimacy and the conduit through which the results of civil society monitoring efforts, and the efforts of Wal-Mart to correct these breaches are transmitted. The media also serves as a forum through which consumer and investment tastes in behavior are developed. Together, multinationals, elements of civil society, the media, and the consumer-investor community constitute the elements of an autonomous system for the efficient regulation of economic behavior on a global scale that may contribute to the development of functionally differentiated and partial global systems of common law beyond the state. (Backer, Larry Catá, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007.)

(Pix from Oxfam)
Oxfam has been a leading player in this system of global governance.  This post highlights a new initiative by Oxfam that goes toward the way n which compliance with global norms are being monitored and to the extent this monitoring affects investor and consumer tastes (and actions) enforced. Chris Jochnick, director of Oxfam America’s Private Sector Department (twitter: @cjochnick)recently announced the launch of Oxfam's latest and biggest campaign -- Behind the Brands (targeting the F&B industry) - as a potential case study and teaching tool.  We've measured and ranked the top ten F&B companies on a range of social/environmental issues (including, in parts, human rights) and are reaching out to consumers and the public through a very interactive web site, where the methodology/questions etc are all easily accessed  
Please have a look. You can get a quick overview by blog here and video here.  

For the twitterati among you, you can follow the campaign at #behindthebrands (and at my new account: cjochnick)

Wednesday, March 06, 2013

Review Essay: Hu Angang (胡鞍鋼), China in 2020: A New Type of Superpower

Hu Angang (胡鞍鋼) is a professor at the School of Public Policy and Management and Director of the Institute for Contemporary China Studies at Tsinghua University. He is the author of over sixty books.  He is one of the most well known intellectuals in China and his work is widely read both in the People's Republic of China and abroad. Professor Hu has worked as the chief editor for China Studies Report, a circulated reference for senior officials.

Professor's Hu's approach is nicely illustrated in his presentation, June 12, 2012, "China and the World by 2030". Professor HU discussed his vision of China's position in the world in 2030, where China is established as an economic superpower, as well as an innovative, high-income, green country with a more equitable society. He predicts that China will be the most powerful engine for economic development, a new donor of international development assistance and a country leading global transformation. 

This post provides links to an English version of a review of Hu Angang's book,  China in 2020: A New Type of Superpower (Washington, D.C.: Brookings Institution Press, 2011) ISBN 978-0-8157-9478-2 pp. i-xl; 213) that I prepared along with Keren Wang.  Included below is a short abstract and a link to the review essay. The Review Essay may be ACCESSED HERE.

Tuesday, March 05, 2013

Keren Wang on "Laojiao (劳教) System, Constitution and the Mass Line of the Chinese Communist Party"

I have been considering the recent abolition of the system of administrative detentions, re-education through labor (劳动教养), commonly known as laojiao (劳教).  See Abolishing Laojiao 劳动教养 in China; is Shuanggui Next?,  Law at the End of the Day, Jan. 7, 2013.  See also e.g., Lawyers hail Yunnan's suspension of laojiao system, SINA, Feb. 8, 2013;  Guangdong to stop "laojiao" system in China, English, Jan. 30, 2013; Wu Jiao, New law to abolish laojiao system, China Daily, March 1, 2007.

 (Pix from Jason Lee,  Laojiao System to be Phased Out, Beijing Shots, Jan. 21, 2013 "
The use of the controversial laojiao system will be tightly restricted, with lawmakers expected to approve its abolition this year, a top government legal adviser has confirmed. Chen Jiping, deputy director of the China Law Society, said the changes to laojiao, or re-education through labor, announced at the national political and legal work conference on Jan 7, are imminent. As part of discussions with legal experts from law societies nationwide about the major tasks, he said the closed-door conference had committed to reducing the use of the controversial punishment this year until the National People’s Congress, the top legislature, can entirely scrap the system. Ending the system requires the approval of the top legislature which originally endorsed laojiao in 1957, when it was proposed by the State Council")

My research assistant WANG Keren has prepared an excellent paper on the abolition of the laojiao system from the perspective of Chinese constitutional principles.  It is well worth reading. 

Monday, March 04, 2013

Jinghao Lu on China in Africa CCTV Interview

My former student, Jinghao Lu continues his work on Chinese outbound investment in Africa. See, e.g.,  Jinghao Lu on Chinese Outbound Investment in Africa, Law at the End of the Day, January 2, 2013.

He recently gave a long interview on China's CCTV, which may be access here:

Sunday, March 03, 2013

KOF Index of Globalization 2013 Released

The KOF Index of Globalization measures the three main dimensions of globalization: (1) economic, (2) social, and (3) political. In addition to three indices measuring these dimensions, KOPF Swiss Economic Institute also calculates an overall index of globalization and sub-indices touching on actual economic flows, economic restrictions, data on information flows, data on personal contact
and data on cultural proximity. Data are available on a yearly basis for 208 countries over the period 1970 - 2009.
KOF Swiss Economic Institute defines itself as one of the leading economic “think tanks” in Switzerland. In this prospect, KOF (acronym for the German word "Konjunkturforschungsstelle", which means business cycle research institute) aims to play two roles, one as a mediator between a broader public (politics, society) and the research community, and one as a leading platform for economists, especially within Switzerland. (KOF About Us).
                                                     (Pix (c) Larry Catá Backer 2013))

I have included the press release below for the KOF Index of Globalization 2013 (without the graphs). They report: "The results of the economic crisis clearly slowed down the process of world-wide globalization. This is visible in the basically unchanged overall index value of the KOF Index of Globalization compared to the previous year. No changes occurred among the top five countries. Belgium is the most globalized country in the world followed by Ireland and the Netherlands. Switzerland climbed up one position and is now listed among the top ten. Lesotho and the Dominican Republic made the biggest steps both moving up by 22 places in the ranking (now ranked 127th and 69th, respectively). Samoa experienced the largest fall in the ranking (32 positions, now 135th)." The reports may be access here:

You will also find the press release and the ranking on the KOF website. You can access detailed information about the KOF Index of Globalization 2013 HERE (interactive visualization and download of graphs and tables available).

Saturday, March 02, 2013

Presentation at 2013 Roberta Kevelson Seminar on Law & Semiotics VIth Roundtable

Every year, my distinguished colleague at Penn State, Jan M. Broekman, Professor Emeritus Universities of Leuven, Belgium, and Amsterdam, Netherlands, Honorary Professor National University of Argentina in Mar del Plata, Argentina, Visiting Professor University of Illinois College of Law (some of whose works are listed here), presides over The Roberta Kevelson Seminar on Law and Semiotics.   

(Pix (c) Larry Catá Backer 2012)
As part of that seminar, Professor Broekman organizes a wonderful Roundtable on semiotics and the law, featuring distinguished faculty and Penn State's law students.  On the 2012 Roundtable, see, Paper Delivered at the 2012 Penn State Law and Semiotics Roundtable: The Corporation as Semiosis, “Citizens United,” the Signification of the Corporate Enterprise and the Development of Law Law at the End of the Day, March 3, 2012; on the 2011 Roundtable see Larry Catá Backer, The 2011 Kevelson Workshop on Law and Semiotics at Penn State--Outstanding Student Presentations,  
Law at the End of the Day, April 11, 2011.

This year, Professor Broekman again organized a wonderful Roundtable for the Roberta Kevelson Seminar on Law and Semiotics.  The theme this year was "Legal Semiotics and Legal Practice."  This post includes the roundtable program and my own presentation, "Legal Semiotics and Political Practice: The Semiotics of a One-Party System", in outline form and PowerPoint presentation.