Thursday, September 21, 2017

Posting Conference Draft of "Measurement, Assessment and Reward: The Challenges of Building Institutionalized Social Credit and Rating Systems in China and in the West": Presentation for Chinese Social Credit System Conference “ 法与信用体系国际研讨会”预通知 (Shanghai Jaiotong University (上海交通大学) 23 Sept. 2017)

(PIX © Larry Catá Backer 2017)


In a prior post I included information about  The Conference, Global Perspectives on Law and Social Credit, will take place at Shanghai Jiaotong University (上海交通大学)) 23 Sept. 2017. It is organized by Shanghai Jiaotong University; East China University of Political Science and Law ; Shanghai Law Academy (Research Center of Banking Law Practice); Tencent Holdings Ltd (Intellectual Property Office);and the Foundation for Law and International Affairs.

 I will present my paper Measurement, Assessment and Reward: The Challenges of Building Institutionalized Social Credit and Rating Systems in China and in the West. I post here a link to the preliminary conference draft for review and comment. It can be accessed HERE. Following below is the abstract and introduction (English and 中文)
 More on the conference in later posts.

Wednesday, September 20, 2017

Reflections on Globescan Foundation and Oxfam New Publication, "Survey of the Poor in India," its Relevance to the UN Guiding Principles Project and to the Working Group's Current Focus on Remedy




The global business and human rights community now begins the build up to its 6th annual conclave the U.N. Forum for Business and Human Rights, overseen by the Human Rights Commission and the Office of the High Commissioner for Human Rights and operationalized within the mandate given to the Working Group for Business and Human Rights (see, e.g., here and here).

This year, the principal focus are remedies. To that extent, the international community continues it fascination with the state and the formal apparatus of government. It creates all sorts of very important and valuable ideas about the way to bridge the gap between the high concepts embedded in the project of business and human rights and the very pragmatic challenge of delivery of remedies through effective mechanisms. Add to that the complication of remedial valuation. What appears to be the most important mechanisms for the delivery of the most just forms of remedy to the individuals and institutions that drive the debate about, and fashion the structures for, business and human rights governance (public and private) may have only the slightest value to the people on whose behalf remedies are provided.Yet all of that may itself be an indulgence and speculation.  The global community is aware of its own agendas and the principles it seeks to advance; the poor know themselves as well.  But do they know each other, and if they did, do they share the same vision?

It thus makes sense, if the drivers of business and human rights mean what they say, to "speak" with the objects of all this effort. And that is what the Globescan Foundation and Oxfam International have begun to try to do. They have sought, in their own words from their Press Release, "to conduct the first-ever survey of the poor across the world." Their recently released Report: What India's Poor Have to Say About Poverty and Aid (2017), provides some much need material.

Included below are some additional brief comments and the Press Release (with links) as well as the Introduction and Key Findings of the Report. The full Report may be accessed HERE.

Tuesday, September 19, 2017

Upcoming Conference: The Chinese Social Credit System 2017“ 法与信用体系国际研讨会”预通知 (Shanghai Jaiotong University (上海交通大学) 23 Sept. 2017)




More news on what we hope will be event that will contribute to understanding this important development in governance. The Conference, Global Perspectives on Law and Social Credit, will take place at Shanghai Jiaotong University (上海交通大学)) 23 Sept. 2017. It is organized by Shanghai Jiaotong University; East China University of Political Science and Law ; Shanghai Law Academy (Research Center of Banking Law Practice); Tencent Holdings Ltd (Intellectual Property Office);and the Foundation for Law and International Affairs.

This post includes the Concept Note and the Program (English and 中国语言).

一、会议主题
社会信用体系建设是以法律法规为依据,以信用活 动的参与者为主体,以信用活动者的信用记录为基础,规范信用数据的收集和使用,形成激励守信、惩戒失信的机制,覆盖全社会的诚信系统工程。社会信用体系建 设与现代经济目标相匹配,具有广阔的发展前景,也将为经济发展方式转型提供巨大的推动作用。
基于以上背景,由上海交通大学凯原法学院、华东 政法大学经济法学院主办,上海市法学会银行法律实务研究中心、上海交通大学互联网金融法治创新研究中心、华东政法大学法治中国建设研究中心、腾讯科技(深 圳)有限公司知识产权部、美国法律与国际事务学会(FLIA)协办的2017“法与信用体系国际研讨会”拟于2017年9月23日在上海交通大学凯原法学院举行。

2017 (6th) UN Forum for Business and Human Rights Registration Information and the Working Groups "Reflections" on its Conference Theme




The 6th U.N. Forum for Business and Human Rights will be taking place this coming November in Geneva.  Like its predecessors, it promises to bring together thousands of interested stakeholders (to the extent they can afford the time and have the resources).   It occurs a month after the 3rd Session of the Intergovernmental Working Group meeting the purpose of which is to consider concrete approaches to the elaboration of a comprehensive treaty on business and human rights (here).  
Registration is now open for those interested in attending.   
-->Register via this link. All participants must register online. There is no participation fee. Here for the   -->2017 Forum programme. Below please find the Working Group's Reflections on its Conference theme.

Sunday, September 17, 2017

Democracy Part 40: From Mass Democracy to The "Wisdom of the Crowd"-- Socializing People for Roles in New Data Driven Governance

(Pix © Larry Catá Backer 2017)


I have started thinking through the issues around social credit generally, and the Chinese Social Credit project. I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

Index of Posts

A social credit system, and its ratings, are grounded in targeted data harvesting, proprietary algorithms, and coordinated incentives and punishments. There may be some glory in worrying about the algorithms that produce the ratings.  Yet algorithms are merely a function of the choices of data to harvest.  And robust harvestable data is likely the most time consuming and expensive part of any data driven system. In this post I consider the way that the data harvesting element of building social credit systems are being socialized within advanced Western liberal democracies.  To that end I consider the effectiveness of modern television programming and especially a new series from CBS, "Wisdom of the Crowd."


Saturday, September 16, 2017

Social Credit in the West: Non-State Rating Systems for CSR Compliance


(Pix © Larry Catá Backer 2017)


I have started thinking through the issues around social credit generally, and the Chinese Social Credit project. I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

Index of Posts

In China's Social Credit Initiative in a Global Context: Foundations--"Monitoring, Assessment and Reward: Are there Social Credit Systems in the West?" I suggested that Western hand wringing about China's efforts to institutionalize social credit systems within its public and private domains were to some extent surprising in light of the long utilization of rating and incentive systems by public and private institutions--from informal and formal rating systems of universities (e.g., here), to the credit rating of public and private institutions and individuals (here, here, and here).  

This post introduces and very briefly illustrates the ways in which Western versions of social credit--of providing ratings grounded in targeted data harvesting, proprietary algorithms, and coordinated incentives and punishments--has become an important regulatory element in the societal field.


Social Credit (China and Abroad; Public and Private): Index of Posts

(Pix © Larry Catá Backer 2017)



I have started thinking through the issues around social credit generally, and the Chinese Social Credit project. I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

This post includes an index (chronological) of the Social Credit postings to Law at the End of the Day.

Friday, September 15, 2017

New Paper Posted: "From a “Two Thrust Approach” to a “Two Sword One Thrust Strategy” to Combat Criminal Corruption: Corporate Compliance, Prosecutorial Discretion, and Sovereign Investor Oversight"

(Pix © Larry Catá Backer 2017)


I am happy to report the posting of a new paper, currently titled "From a “Two Thrust Approach” to a “Two Sword One Thrust Strategy” to Combat Criminal Corruption: Corporate Compliance, Prosecutorial Discretion, and Sovereign Investor Oversight."  The paper represents a bit of an experiment.  It seeks to reconsider, in an unconventional way, the possibilities of building policy coherence (1) from among institutions of different jurisdictions and mandates, and (2) at the margins of regulatory governance.  

The specific object is to think through the possibilities of multi-lateral and multi-institutional coherence in the specific context of corruption. To that end I have focused on the ways in which prosecutorial discretion has been institutionalized  in the context of corruption investigations, especially with respect to the ways in which the standards for gauging discretion produce significant incentives to reform corporate governance (and especially the understanding and operation of compliance). suggested the possibility of coordinating  the efforts of prosecutors.  I have also focused on the ways in which sovereign investors have begun to engage in a very similar practice in exercising their discretion to (1) invest in enterprises, (2) and exercise their shareholder power. I suggest that in some states it may be possible to align both trends in rulemaking touching on discretion to the ends of coordinating regulatory governance that manages the scope and conduct of corporate compliance. 

The final version of the paper will be published in Chinese
-->in the Jilin University Journal, social science edition 吉林大学学报社科版 (forthcoming 2017).  The Abstract and introduction (in English) follow below. The paper (in English) may be accessed HERE.


Rogers and Todorov on the 2017 U.K. Criminal Finances Act and the Criminalization of Gross Human Rights Abuses



The U.K. Criminal Finances Act of 2017 received royal assent in April 2017 effective in September 2017. It is described as a "Bill to amend the Proceeds of Crime Act 2002; make provision in connection with terrorist property; create corporate offenses for cases where a person associated with a body corporate or partnership facilitates the commission by another person of a tax evasion offence; and for connected purposes. " (Summary of the Criminal Finances Act 2017).


Of particular interest is Section 13 (the text of which follows below). It amends Proceeds of Crime Act to cover gross human rights abuses which "(a)occurs in a country or territory outside the United Kingdom, (b)constitutes, or is connected with, the commission of a gross human rights abuse or violation (see section 241A), and (c) if it occurred in a part of the United Kingdom, would be an offence triable under the criminal law of that part on indictment only or either on indictment or summarily.  A gross human rights abuse occurs when three conditions are met:
(2)The first condition is that—
(a)the conduct constitutes the torture of a person who has sought—(i)to expose illegal activity carried out by a public official or a person acting in an official capacity, or (ii)to obtain, exercise, defend or promote human rights and fundamental freedoms, or

(b)the conduct otherwise involves the cruel, inhuman or degrading treatment or punishment of such a person.

(3)The second condition is that the conduct is carried out in consequence of that person having sought to do anything falling within subsection (2)(a)(i) or (ii).

(4)The third condition is that the conduct is carried out—
(a)by a public official, or a person acting in an official capacity, in the performance or purported performance of his or her official duties, or

(b)by a person not falling within paragraph (a) at the instigation or with the consent or acquiescence—(i)of a public official, or (ii)of a person acting in an official capacity,--who in instigating the conduct, or in consenting to or acquiescing in it, is acting in the performance or purported performance of his or her official duties.
The consequences for criminal enforcement, as well as for corporate compliance programs may be significant.  As well, the intersection with  the human rights responsibilities of enterprises under the UN Guiding Principles for Business and Human Rights may also be impacted. 

For this those interested, a number of useful commentaries already have been posted.  They provide a good base for understanding the Act and its implications. Richard J. Rogers, a founding partner at Global Diligence LLP, and Sasho Todorov is a rising third year Vanderbilt law student, have produced a multi post commentary. Brief descriptions and the links to their commentary follows. Additional commentary have been posted by Karolos Seeger, Alex ParkerAndrew LeeCeri Chave, and Ed Pearson,  "UK Criminal Finances Act 2017," Program on Corporate Compliance and Enforcement at New York Jniversity School of Law (May 23, 2017).


Wednesday, September 13, 2017

After the News Cycle: The Long Term Economic Effects of Hurricane Irma on Cuba

(Damaged pool chairs are seen in a hotel a day after the passage of Hurricane Irma in Varadero, Cuba September 10, 2017. Picture taken September 10, 2017. REUTERS/Alexandre Meneghini)

Hurricane Irma has come and gone.  And with its passing has gone sustained interest in the aftermath of its occurrence.  But for the communities directly affected, the economic consequences of the hurricane will be felt for a long time.  Some of these effects will be perversely positive--jobs and business opportunities for the hurricane recovery sector.  Some will augment anti-social tendencies among individuals--the scams and frauds that attend tragedies will likely stretch from Texas to Florida. Yet some parts of the affected communities may take a very longtime to recover--or not recover at all.  The aftermath of hurricane Katrina provides a template--the core affected areas remained the same for some social sectors,but for others the storm was radically transformative.  But since we tend to understand phenomena in the aggregate,a net positive recovery generally tends to mask the sometimes large negative effects among sub-portions of this aggregate.  

But what happens when these fairly well known effects consumes an entire nation rather than a smaller region within a much larger national state? The answer can begin to be understood by examining the after effects of Hurricane Irma on Cuba.  It is true enough that Cuba tends to be well prepared for the relatively frequent occurrence. But the ability to mitigate anticipated damage does not avoid its effects,both singular and (with the frequency of storms increasing in the recent past) cumulatively. 

Recent reporting by Marc Frank and Sarah Marsh ("Hurricane Irma batters already struggling Cuban economy," Reuters (12 Sept. 2017)) suggest that the effects of Irma on Cuba will be substantial in the short and medium term.  Drawing on analysis of Pavel Vidal, now a professor at Universidad Javeriana Cali in Colombia, and Omar Everleny, both formerly with the University of Havana, the report suggests that there will be areas of positive and negative effect from the hurricane (for example, while the storm reversed some of the effects of a prolonged drought, it also destroyed crops). The bigger question revolves around the effect of the storm on the political calculations of the state and on the forward pace of economic reform.  Those questions remain unanswered for the most part.  Also interesting will be the effect of the storms in the short term on the relationship between the Island and the Cuban diaspora in Miami.  Lastly,the effects on U.S.-Cuba normalizaiton negotiating positions remains a mystery.

The report follows.  Further reporting, especially with respect to the economic effects on Cuba's key economic sectors can be found at Marc Frank, "Irma lays waste to Cuba’s dreams of prosperity," Financial Times 14 Sept. 2017 ("“Irma will have a big impact on the economy this year and this could make difficult the growth the government hoped for,” said Omar Everleny, a Cuban economist. Mr Everleny, who was fired last year from Havana University for strenuously advocating reform, said the state should get off the backs of farmers, open up the private sector further and start signing long stalled foreign investment projects." Ibid.).

Monday, September 11, 2017

Ruminations 75: Reflections on 11 September 16 Years After--Flight, Symbols, Rituals, and War





It has been a long time, judged by the pace of political cycles, since the occurrence of that defining act of modern warfare occurred on September 11, 2001 in Washington, D.C: and New York City. The aftermath is well known, though hardly well understood. And the events have produced all sorts of actions and reactions, most of the consequences or agendas of which have yet to be fully realized. But the day is also one of necessary solemnity--to honor the dead, and to mourn.  

This post provides brief reflections on the objects and forms of our mourning even as the events of 11 September 2001 increases the pace with which it recedes into history.


Saturday, September 09, 2017

Ruminations 74/Democracy 39: Elections and Opposition in Cuba--Opposition Within Leninist Governance Orders


(Members of the local electoral commission speak during the nominations of candidates for municipal assemblies in a neighbourhood of Havana, Cuba, September 4, 2017. REUTERS/Alexandre Meneghini)

A state whose leadership is fractured and whose binding ideology is contested tends to open sometimes large spaces within which dissident elements may draw power from popular discontent.  One most recently saw the effect of leadership fracture in the United States that produced the election of Donald Trump from out of the opening made possible by the long standing internecine warfare among American political elites whose decadent self absorption left a power vacuum to be filled by those with the will and vision to take advantage of political opportunity.  That, in a sense, is the way the American Republic was perhaps meant to operate.  And those openings evidence the Republic's structural self cleaning systems--a space for transformative political action that permits the sweeping away of leadership forces whose authority has withered or become an obstacle to the desires of the polity, without destroying the governance structures of the Republic.  This has happened periodically in the United States in the last century approximately a generation apart--the 1930s, the 1970s-1980s, and now. This observation implies no judgement, just an assessment of the fluidity of power and the necessity of cultivation of mass opinion if one means to control the narratives of societal expectations and politics.

But the Cuban Marxist Leninist Republic has no similar built in mechanism for accountability. Where such transformations produce mostly irritation and a desire to reinvigorate of the losing factions'  leadership in the United States, in Leninist states it can produce only a direct challenge to the leadership authority of the vanguard party and an inherent criticism that the vanguard party has failed in its leadership responsibilities. That direct threat can either produce internal rectification (an internal dialogue and transformation of the vanguard party's working style) and external response (engaging in the development of productive forces that aid the people first and the party second); or it can produce mere suppression (no change in party working style and punishment of individuals putting forward mass sentiment). Rectification and response suggests a strong and vigorous vanguard; mere suppression suggests weakness. Chinese Leninism has tended to move toward the former by reinvigorating its Mass Line, though not without substantial challenges (e.g., here). The European Leninism of much of the CCP apparatus has yet to evidence an ideologically coherent approach to the challenge posed to party building and leadership within the context of either class struggle (the European approach) or socialist modernization (the Chinese approach). 

Recent reporting from Cuba suggests that its Leninist vanguard is at this moment faced with the challenge of its need to more vigorously fulfill its responsibility to the nation.  Marc Frank, Cuban Dissidents in electoral challenge as Castro era nears end (Reuters 7 Sept. 2017). Mr. Frank reports on the way in which mass action has begun to develop its own popular expression in the face of what it sees as an increasingly remote Leninist party apparatus.  That should serve as a signal to the vanguard, and trigger substantial reform--especially at the local level. That it may not will continue a process of demolishing rather than building party leadership, one which temporary suppression will not reverse.  That, I think, is the point and warning of the reporting.

Which way it will choose--internal rectification, external response or mere suppression, remains to be seen. A Leninist party would choose the former if it means to develop and survive. A Leninist party that has not learned the lessons of transformation necessary to move from a revolutionary organization to a party in power (e.g., here) could without much thought choose the second.

Thursday, September 07, 2017

Reflections on "Report on the 2016 UN Forum on Business and Human Rights," Statement of Beatriz Balbin Chief, UNOHCHR Special Procedures Branch Office



As the international business and human rights communities gear up for the 6th UN Forum on Business and Human Rights, it might be useful to pause and consider what, exactly, the Forum organizers themselves thought about the event.  This is particularly useful as a reminder that perspective drives meaning and that the perspective of the Forum organizers and those they represent tend to have a greater influence on the shaping of the "realities" of the UN's efforts around the UN Guiding Principles for Business and Human Rights, than any other stakeholder. (Contrast my own reflections here).

To that end it might be useful to reflect on the Statement by Beatriz Balbin, Chief, Special Procedures Branch, Office of the United Nations High Commissioner for Human Rights, made to the 35th session of the Human Rights Council Geneva (16 June 2017) entitled Report on the 2016 UN Forum on Business and Human Rights. It provides a short and focused distillation of the "learning" extracted from the Forum and points to the both the premises and perceptions that guide what for many are perceived as thought leaders. (The 2016 Forum chairperson's summary report can be downloaded here).  In that context and in the sprint of transparency my own guiding principle on engagement:
So-called thought leaders--those powerful stakeholders represented in the state, civil society, business and academic sectors--play an important de facto role in shaping the discourse and moving it forward along the logic of their respective agendas. These discourses and agendas are also shaped to some extent by the consequences of their interactions and clashes. Global society is vitally interested in what they have to say, how they have to say it, how they mean to prioritize and implement, how they choose to shape conceptualization, and where their interests clash.  At the same time, a fixation on the desires of the mighty will tend to increase the distance and construct the hierarchies, that separate those with such influence (and eventually authority) from those who do not.  Yet human rights space ought to be democratic space.  And the highest and mightiest, like the most humble, ought to cultivate the arts of listening as well as that of leading--together. (here).

The Report on the 2016 UN Forum on Business and Human Rights and my own brief reflections follow.

The Upcoming 2017 (6th) UN Forum for Business and Human Rights: Preliminary Information and Concept Note



The 6th U.N. Forum for Business and Human Rights will be taking place this coming November in Geneva.  Like its predecessors, it promises to bring together thousands of interested stakeholders (to the extent they can afford the time and have the resources).   It occurs a month after the 3rd Session of the Intergovernmental Working Group meeting the purpose of which is to consider concrete approaches to the elaboration of a comprehensive treaty on business and human rights (here). 
The UN Forum is the world's largest annual gathering on business and human rights with more than 2,000 participants from government, business, community groups and civil society, law firms, investor organisations, UN bodies, national human rights institutions, trade unions, academia and the media.

Over three days, participants take part in 60+ panel discussions on topics that relate to the Guiding Principles on Business and Human Rights (the "Protect", "Respect" and "Remedy" Framework), as well as current business-related human rights issues.

The Forum is the foremost event to network, share experiences and learn about the many initiatives to promote corporate respect for human rights.

The UN Human Rights Council, under paragraph 12 of its resolution 17/4, established the Forum to serve as a key global platform for stakeholders to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” It is guided by the Working Group on Business and Human Rights.

We are all looking forward to an interesting and informative event.  This post includes program information and the Concept Note prepared by the Working Group that suggests the substantive framework of the 2017 program. 

Tuesday, September 05, 2017

A Roadmap to Treaty Making?: "Creating a Paradigm Shift: Legal Solutions to Improve Access to Remedy for Corporate Human Rights Abuse" (4 September 2017)




Amnesty International and the Business & Human Rights Resource Centre have produced an important intervention in the contemporary debates about the nature and scope of corporate obligation with respect to human rights.  That work, Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse (Amnesty International and BHRRC, 4 September 2017) (also for press release and link here), provides an excellent account of the current efforts to develop a coherent system for the legalization of the transnational human rights obligations of enterprises within states.  It does a masterful job of weaving together a series of national efforts into a plan for coordinated multilateral policy that may well foreshadow the shape and approach of what is likely to be the draft Treaty for Business and Human Rights. In that respect to approves the sort of conceptual coherence that is necessary should any treaty effort have any hope of even limited success (e.g., "Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights," North Carolina Journal of International Law 42(2): 417-504 (2016).)

This post includes the Table of Contents, Forward and Background of Creating a paradigm shif; along with my brief comments.  

Time to Draft a Treaty?: The Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights holds its Third session, 23-27 October 2017

(Pix © Larry Catá Backer 2017)


The IGWG (the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights) will hold its Third session, 23-27 October 2017, in Geneva. This is an important session for the project of elaborating a treaty on business and human rights which lies at the heart of the mandate of the IGWG.

The first two sessions sought to gather information and views. The first session sought to frame the general approach to the project (e.g., Concept note proposed under the responsibility of the designated Chair, Ambassador María Fernanda Espinosa, Permanent Representative of Ecuador to the United Nations in Geneva) and presented its report to the Council at its thirty-first session (A/HRC/31/50).​ The second session sought to frame some of the core concept and principles that might find their way into the Treaty (Concept Note). The issues included extraterritoriality, the nature of the obligations of TNCs as a legal construct, the scope of any treaty, issues of remedy, the ecology of TNC operations, issues related to legalization projects of this nature, and issues of cooperation among states; (e.g., here). The IGWG presented its report to the Council at its thirty-fourth session in March 2016 (A/HRC/34/47).

This coming October, the IGWG will hold its Third Session. This is likely its most important meeting in terms of developing the final framework within which the specifics of the elaboration project will be framed.  Will there be a treaty draft produced or more likely the production of a document indicating the general approaches and objectives of such an instrument to be negotiated elsewhere and by others? "The Chairperson-Rapporteur . . .  is currently preparing elements for a draft legally binding instrument, taking into consideration the discussions held during the first two sessions. The third session of the working group will use these draft elements as a basis for substantive negotiations." (here).

The session is limited to states and their instrumentalities, appropriately accredited:
Only UN Member and Observer States, specialized agencies and other international organizations, national human rights institutions with "A status" accreditation, and NGOs with ECOSOC consultative status may attend and participate in the public meetings of the OEIGWG. Others may be able to access the public gallery or side events during the session. (HERE)

However, as has become the custom around major international public institutional and multilateral agreement meetings, the IGWG is encouraging side events. This post includes the Press Release for the Third Session as well as the notice for submitting proposals for side events.

Monday, September 04, 2017

China's Social Credit System and Foreign Direct Investment: Will Foreign Rating Agencies Help Build Chinese Social Credit Systems?

(Pix © 2017 Larry Catá Backer)


I have started thinking through the issues around social credit generally, and the Chinese Social Credit project. I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

This post introduces and very briefly considers the ways in which China will be seeking foreign assistance or expertise in the construction of its social credit system.  It suggests that to understand the construction of social credit in China one must look to patterns of inbound foreign direct investment rules in China, and to the incorporation of social credit systems from the West into China and back again.

 Index of Posts.

Sunday, September 03, 2017

"What are the usual ways to listen to party members and the opinions of the masses?": The Mass Line, Social Credit, and the Convergence of Governance Engagement




I have been focusing on the Mass Line and its importance to the development of Chinese constitutional theory and practice ("The Party follows the mass line in its work, doing everything for the masses, relying on them in every task, carrying out the principle of “from the masses, to the masses,” and translating its correct views into action by the masses of their own accord." (here)). The Mass Line is intimately connected both to the working style of the CCP, as well as the core methodology for Party building, and thus for CCP legitimacy as a Leninist vanguard self conscious of its responsibilities. 

The main focus on the Mass Line is incidental to its use as the framework for the current rectification campaign targeting CCP working style, the anti-corruption campaigns of the last several years (e.g., here). The Mass Line also appears to be developing as the structure through which the CCP will seek to engage in  outreach to mass society.

This post includes the text of a recent set of suggestions for operationalizing Mass Line principles for Leninist engagement both of Party cadres (intra-Party democracy through the Mass Line) and society at large (Socialist Democracy under the leadership of the CCP) and some brief comments in light of the emerging social credit initiative.These implicate a convergence of techniques for the use of data in managing collectives in China and the West.

The Mass Line is an integral part of the shaping of China's social credit system. Index of Posts.


"Hold High the Banner of Development": Xi Jinping Keynote Address to Meeting of BRICS Leaders 中国国家主席习近平出席开幕式并发表主旨演讲



The ninth meeting of the BRICS leaders was held in Xiamen City, Fujian Province from September 3rd to 5th. The opening ceremony of the BRICS Business Forum was held at Xiamen International Convention and Exhibition Center, where  Chinese President Xi Jinping  delivered a keynote speech.

The speech includes no surprises but nicely restates the Chinese position on development, trade and the competition with the West for control of the narrative (and principles) of both. It also suggests the ways in which China may be constructing some portions of its One Belt One Road Initiative through its BRICS relations (here). The text of the speech (in Chinese only) and my brief comments follow.

The speech touches on the connection between social credit, China's One Belt One Road initiative, and China's regional trade strategies.  Index of Posts.

China's Mass Line Online: 党的执政能力建设:走好新时期的网上群众路


The Mass Line is a basic principle of the Chinese constitutional order (see, e.g., here). It is a fundamental expression of the notion of responsibility built into the corer structures of Leninist vanguard parties in Marxist Leninist systems. The General Program of the Chinese Communist Party
Constitution provides:
“The Party follows the mass line in its work, doing everything for the masses, relying on them in every task, carrying out the principle of ‘from the masses, to the masses,’ and translating its correct views into action by the masses of their own accord. The biggest political advantage of the Party lies in its close ties with the masses while the biggest potential danger for it as a ruling party comes from its divorce from them. The Party’s style of work and its maintenance of ties with the masses of the people are a matter of vital importance to the Party.”
Though the Mass Line has been recently applied as a foundation of the anti-corruption campaigns, with a focus on reforming the CCP's "working style" (e.g., here), Mass Line principles have deeper constitutional application, including constraints on the freedom of the CCP itself in exercising its leadership. Indeed, the Mass Line's position as a central element of the basic principles for party building suggests its normative breadth.

There has been substantial efforts devoted to the better incorporation of the Mass Line (as governance norm and as a disciplinary technique within the CCP) at least since the start of the current leadership period (e.g., here; discussed here). The CCP continues to focus on broadening the role of the Mass Line to its leadership role as a vanguard Leninist organization.  Indeed, there appears to be a growing emphasis on Party building in social organizations from Mass Line grounded initiatives (e.g.,在破解难题中加强社会组织党建工作(治理之道 (organization of Party building work to strengthen society)). Another recent publication, 作者:倪明胜, 党的执政能力建设:走好新时期的网上群众路, (roughly: Ni Mingsheng, Building the Party's Governance Capabilities: The Mass Line Online in a New Era) also suggests ways in which the CCP may be considering better integrating technology into its mechanisms for building the CCP through the Mass Line.

The essay (Chinese only) appears below. For an excellent English translation by my colleague, Flora Sapio, see HERE. The author is Associate Professor School of Administration, Tianjin Center for Theoretical Study of socialism with Chinese characteristics Distinguished Research Fellow.  It is important for its suggestion that issues of better integrating modern social media and internet technologies are moving to center stage in developing formal and informal governance management mechanisms within China.

Index of Posts.

Friday, September 01, 2017

Just Published: Building a Treaty on Business and Human Rights: Contexts and Contours (Surya Deva and David Bilchitz, eds., Cambridge University Press (2017).



I am happy to report the publication announcement of Building a Treaty on Business and Human Rights: Contexts and Contours (Surya Deva and David Bilchitz, eds., Cambridge University Press (2017). The book is expected to ship in mid October 2017. There will be a book launch for the volume at the upcoming Intergovernmental Working Group Meeting in Geneva in October 2017 and another at the U.N. Forum for Business and Human Rights in Geneva. From the front mater:

About the Book

The calls for an international treaty to elaborate the human rights obligations of transnational corporations and other business enterprises have been rapidly growing, due to the failures of existing regulatory initiatives in holding powerful business actors accountable for human rights abuses. In response, Building a Treaty on Business and Human Rights explores the context and content of such a treaty. Bringing together leading academics from around the world, this book engages with several key areas: the need for the treaty and its scope; the nature and extent of corporate obligations; the role of state obligations; and how to strengthen remedies for victims of human rights abuses by business. It also includes draft provisions for a proposed treaty to advance the debate in this contentious area and inform future treaty negotiations. This book will appeal to those interested in the fields of corporate social responsibility and business and human rights.

I am pleased to have been part of this effort. Contents and ordering information follow.


Thursday, August 31, 2017

Brief Thoughts on Samantha Hoffman: "Managing the State: Social Credit, Surveillance and the CCP’s Plan for China," China Brief Volume: 17(11)






(Pix Credit 6th Tone))

I have started thinking through the issues around social credit generally, and the Chinese Social Credit project . I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

This post introduces and very briefly considers the the essay, Samantha Hoffman: "Managing the State: Social Credit, Surveillance and the CCP’s Plan for China," China Brief 17(11).  The brief comments and the introduction to Managing the State" follows. Samantha Hoffman is an independent consultant. She is currently finalizing her Ph.D.: “Programming China: The Communist Party’s Autonomic Approach to Managing State Security”.

 Index of Posts.

Saturday, August 26, 2017

Interview With Mehr News Agency (English and Farsi): "Globalization Will Change World's Polarization"


I was recently interviewed by Payman Yazdani for Mehr News Agency (Iran).  We discussed the ramifications of changes in power relations among states and other actors and the effects of these changes on global ordering of political, economic and legal systems, suggesting that multi-polarity will make possible (and obscure) the alignment of the great non-state actor powers.  The text of the interview, Globalization Will Change the World's Polarization, as published by Mehr News 26 August 2017 also appeared in the Tehran Times and  follows below in English and Farsi

Thursday, August 24, 2017

ECLSA 12th Annual Conference: Benjamin Liebman--"Mass Digitalization of Chinese Court Decisions: How to Use Text as Data in the Field of Chinese Law."



The 12th Annual Conference of the European China Law Studies Association is being held now, hosted with the support of the University of Leiden and its Faculty of Law and the Leiden Institute for Area Studies (more information here and here).

A highlight of the conference this year was the opening plenary address delivered by Benjamin Liebman. This post provides my quick notes of that opening plenary; it is meant to be read as an invitation to read the paper from which the remarks were drawn (Liebman, Benjamin L. and Roberts, Margaret and Stern, Rachel E. and Wang, Alice Z., Mass Digitization of Chinese Court Decisions: How to Use Text as Data in the Field of Chinese Law (June 13, 2017). 21st Century China Center Research Paper No. 2017-01; Columbia Public Law Research Paper No. 14-551).  

Tuesday, August 22, 2017

Bashar H. Malkawi and Joel Slawotsky--Essay: "National Security Review of Chinese FDI into the GCC: Challenges and Opportunities"

(Bashar H. Malkawi)

(Joel Slawotsky)

Joel Slawotsky, of the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel. has written He has also guest blogged for "Law at the End of the Day"  on issues relating to corporate liability under international law  (e.g., "Rethinking Financial Crimes and Violations of International Law", Jan. 9, 2013; "Corporate Liability Under The Alien Tort Statute: The Latest Twist"April 26, 2014) and on issues of multilateral trade and finance (Joel Slawotsky Reports From Chinese University of Hong Kong: Asia FDI Forum II--China's Three-Prong Investment Strategy: Bilateral, Regional, and Global Tracks) He has also recently also served as Guest Editor of the Sovereign Wealth Fund special issue of Qatar University International Review of Law (IRL) (2015); Joel Slawotsky Reports From Chinese University of Hong Kong: Asia FDI Forum II--China's Three-Prong Investment Strategy: Bilateral, Regional, and Global Tracks (December 2016), and"On the potential shift from the present-day architects to new architects on the definition of international law" (Match 2017).

Bashar H. Malkawi is Professor of Commercial Law at University of Sharjah, where he teaches courses in international trade law, intellectual property and business transactions. He received his S.J.D from American University, Washington College of Law in 2005, and LLM in International Trade Law from University of Arizona in 2001. He has also taught at the Hashemite University-Jordan (2005-2010) and the International University College of Turin, Italy (summer 2009-2010).

They have very kindly produced a marvelously insightful essay: National Security Review of Chinese FDI into the GCC: Challenges and Opportunities. The essay  considers the ramifications of one of the most potent an dynamic elements of global trade--the entry of a very muscular China into global trade flows.  China's One Belt, One Road Initiative has the potential to reshape the contours of global trade. The challenges are to some extent different from those the region faced with U.S. and Rueopean trade a generaiotn agop, and is in its own way as potent. This essay provides an excellent examination of key aspects of these transformations.
About the essay, this from the authors:
I want to thank my friend and colleague Larry Backer for inviting me to write a guest post in his magnificent legal blog regarding paper selected for publication in the Transnational Dispute Management Journal as an article for inclusion in an upcoming special issue on OBOR. See HERE.

I had the privilege of co-authoring this paper with a global expert on trade and finance, Bashar Malkawi, Dean of the University of Sharjah College of Law. Bashar and I hope readers of Law at the end of the day, will enjoy this summary. Obviously we can only provide a general overview as the article itself and in particular the specifics of our proposal are available only to TDM subscribers. The advanced publication is now available by clicking THIS LINK.  
The essay follows.

Sunday, August 20, 2017

“European China Law Studies Young Scholars Workshop” : Program and Summary of My Remarks



This year the European China Law Studies Association will host the “European China Law Studies Young Scholars Workshop” at its 12th annual conference, Wednesday, 23 August 2017 at Leiden University.

The Program follows.  

I have been asked to speak on methodological approaches to assess the legal development in China's One Party State. My remarks, "Methodological Approaches to Assess the Legal Development in China’s One-Party State-- A Personal Journey," also follow.

Friday, August 18, 2017

A View of Venezuela From the Cuban Independent Press Sector--Rene Gomez Manzano: ¡Ni hierba queda! La situación venezolana se caotiza cada vez más



The Western liberal press tends to be much more leery about covering the breakdown of a state, and its human rights abuses, as its slow motion leftist revolution descends toward chaos and violence.  It has no trouble at all investing time and outrage where the government has been more likely to be painted in classically fascist hues. Perhaps that is a function of the long pattern of socialization, especially covering Latin American politics, that Western media was taught in the wake of a generation of rightist dictatorships (and their horrors) during the middle third of the last century. That lesson, well learned, does not serve anyone well anymore. Venezuela tends to be the case in point. The pres sis the last to learn a lesson well understood by others--totalitarianism might well be the essence of fascism, but it has deep roots in European Marxism as well, especially European Stalinism.  The essence of the totalitarian tendency is manifested in the way in which a styate, lead by a unifying party, will sacrifice peopel for their own conception of the state and their overriding need to survive--to which ends no barrier, nor moral imperative, is superior. This has done the people of Venezuela no good. 
Perhaps, then, a view from the liberal press in Cuba, might provide a bit of an antidote to the usual approaches of the press toward the coverage of what was once the Venezuelan Republic. To that end, Rene Gomez Manzano has written an essay worth considering.  Not just because it avoids the turgid constraints of modern journalistic prose, but because of what it has to say from the perspective of people whose starting point is quite different form those of us comfortably hunkered down in the West.

René Gómez Manzano is an independent journalist and critical outsider in Cuba. He has for many years reported on changed within the Cuban state and its ruling Communist Party. Educated in Havana and Moscow he began defending dissidents in 1990 and has served time in prison for his actions. He remains active in Cuba and tolerated by the state ad PPC. Amnesty International named him a prisoner of conscience in 1998 after his arrest and imprisonment in the late 1990s. More on Gómez Manzano here.
His essay, that appeared todaty in CubaNet,¡Ni hierba queda! La situación venezolana se caotiza cada vez más follows (Spanish only).


Thursday, August 17, 2017

If Everyone Overplays their Hand Are There any Hands Worth Playing?: Congressional-Executive Commission on China; Statements by Chairs on the “Political Prosecutions” of Umbrella Movement Leaders



("Student leaders Nathan Law and Joshua Wong walk into the High Court to face verdict on charges relating to the 2014 pro-democracy Umbrella Movement, also known as Occupy Central protests, in Hong Kong, China August 17, 2017." PIX: Tyrone Siu; Critics cry foul as Joshua Wong and other young Hong Kong democracy leaders get jail (REUTERS 17 August 2017))
 
 
The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (see, e.g., here, here, here, here, here, here, here, and here.

Heading into the end of summer, the internal and external relations of the People's Republic of China and the United States, respectively, have entered a sensitive time. Externally, both states face a number of challenges, some of them creatures of their own creation, and now in some respects substantially out of their effective control.  More interestingly, both states now face a number internal challenges that may trigger decisions with wider consequences. In the United States, the civil war among elites, deploying shock troops at the fringes of the political spectrum reminds one of early Weimar Germany and with that reminder, of the possibilities for destabilization. China finds itself weeks from its Communist Party Congress.  These are always, even in the best of times, sensitive periods where the exercise of inter-party democratic centralism can produce significant effects on the trajectories of senior Party cadres and substantially affect the meaning and application of the Basic Line of the Communist Party.  It is no surprise, then, that the run up to the 19th Communist Party Congress might also produce stress. 
 
It is in this environment, one where internal stresses may suggest the need for action, that key officials or institutions might be tempted to overplay their hands, that is, to threaten one's chance of success through action indicating an (over)excessive confidence in one's position.  One might to tempted to think along those lines as one follows the slow and painful long term consequences in and for Hong Kong of the so-called Umbrella Movement of several years ago.  "A Hong Kong appeals court jailed three leaders of the Chinese-ruled city's democracy movement for six to eight months on Thursday, dealing a blow to the youth-led push for universal suffrage and prompting accusations of political interference." (Venus Wu and James Pomfret, Critics cry foul as Joshua Wong and other young Hong Kong democracy leaders get jail (REUTERS 17 August 2017)).  That action, perhaps by a government eager to signal to higher authorities, produced a equally significant counter action in the United States, perhaps by officials also eager to signal, but in a very different direction. These signalling actions, in the face of the current internal situations of both states, are likely to bear fruit in unexpected ways. It is to the U.S. counter action that this post focuses: the Statements by Chairs on the “Political Prosecutions” of Umbrella Movement Leaders. See also here and here


Wednesday, August 16, 2017

More Changes Coming to the Norwegian Pension Fund Global--Private Equity Investing and Review of Active Management?


The Norwegian state has been busy over the last several years in a slow motion remaking of its sovereign wealth fund, the Pension Fund Global. It has rearranged the relationship between the Pension Fund Global and the Finance Ministry and it has substantially limited the extent of the effective authority of the Ethics Council (though not of the strength or scope of the Ethics Guidelines).  It has appeared to encourage greater reliance on the use of shareholder power (through the observation device) and less of the more formalist remedy of exclusion from the investment universe of the Pension Fund Global. Most recently it has released its released its Official Norwegian Reports NOU 2017:13 (Summary): The Act relating to Norges Bank and the Monetary System and the organisation of Norges Bank and the management of the Government Pension Fund Global New central bank act, which includes a number of relevant recommendations for the operation of the Norwegian Pension Fund Global and the structures for its embedding within the Norwegian State apparatus (see, e.g., here). 
 The Norges Bank is constructing itself (ironically given that it is, after all a bank) as at least risk neutral, and with it, has adopted the customs and behaviors of risk neutrality: pragmatism, objectives based approaches, and engagement grounded on the intuition that management and control is more effective than distance and judgement. For them, there are only objectives (for the Bank to make money; for the enterprise compliance with investment rules) and a functional approach to compliance, with a somewhat more flexible time horizon. (e.g., here).

Now Investment and Pension Europe is reporting studies that indicate a determination to make additional changes for the Norwegian SWF, its Pension Fund Global. It has constituted two groups, the first to analyze performance of the Pension Fund's active management. Active management, of course, has been reviewed periodically--for instance in 2009 and 2014 (also here) The second, perhaps more importantly, will consider modifying rules that would permit the SWF to invest in private equity. 
 
The story follows.