Monday, February 19, 2018

New Paper Posted: "Regulating the Multinational Enterprise as Entity, as a Network of Links and as a Process of Production"

(Pix © Larry Catá Backer 2018)

I have been teaching a course on the law of Multinational (or transnational) corporations for a number of years.  I have been struck both by the persistence of notions in law that the MNE exists as a legal construct (and the lengths to which law is deployed as if that were true), and the extent to which the regulation of MNEs has actually transformed into regulations around the economic conception of MNEs or with respect to the processes of its production, without seeking to regulate the entity itself.  These trends have only accelerated with the rise of transnational governance systems.  The result is the rise of a complex matrix of regulatory sources within and beyond the state and in forms that range from "binding" law (binding at least within the territory of a state and extended as far as its extraterritorial reach will carry law) to nonbinding norms and frameworks developed and implemented by international public and private organizations that is applied to a complex amalgamation that is the MNE, at once entity, the network of links that give it form, and the processes of production for which it is operated.

It is to the emerging structures of this complex network of law and enterprise that the essay recently completed is focused.  The initial draft of that essay, "Regulating the  Multinational Enterprise as Entity, as a Network of Links and as a Process of Production," may be accessed HERE.  The Abstract and Introduction follow below. Comments, reactions, etc. most welcome.

Saturday, February 17, 2018

From the Staff of the People's Bank of China and the World Bank Group Finance, Competitiveness and Innovation Global Practice: "Toward Universal Financial Inclusion in China: Models, Challenges, and Global Lessons"

China has been moving aggressively to take its place in the global system beyond serving as "factory to the world." In that connection, its efforts toward the international of the Yuan has not gone unnoticed (here, here, here and here).  Nor has Chinese efforts to develop its own alternative foundation for global trade within its One Belt One Road Initiative (e.g., here, here, and here).  

But it is in the integration and expansion of its banking sector within global finance vectors that ought to merit more attention.  To that end it may be useful to consider the Report: Toward Universal Financial Inclusion in China: Models, Challenges, and Global Lessons (International Bank for Reconstruction and Development/ World Bank Group, 2018).  The Report explained that it--
was jointly written by staff of the People’s Bank of China (PBOC) and the World Bank Group (WBG) Finance, Competitiveness & Innovation Global Practice. The primary drafting team comprised Dangwei Bai (PBOC), Rundong Jiang (PBOC), Tiandu Wang (PBOC), Jennifer Chien (WBG), and Douglas Randall (WBG). The PBOC initially drafted chapters 1, 4, and 5, and the WBG initially drafted chapters 2, 3, and 6. The entire drafting team has extensively discussed and jointly revised all con- tent in the report. (Toward Universal Financial Inclusion, supra, p. vi).
Toward Universal Financial Inclusion is useful for a number of reasons.  It evidences a level of integration between the Chinese banking sector and the rest of the world.  It also points to the willingness of Chinese banks to learn from and coordinate their activities with the global banking and finance sectors.  But it also suggests that way that China way be willing to take what it learns and deploy it for its own purposes and to advance its own interest. This last suggests the extent to which the Chinese banking sector has matured--no longer dependent, it has confidence enough to connect but not subordinate its practices.  Lastly, the Report reflects the importance of the "New Era" thinking reflected in the 19th CPC Congress Report--and especially its focus on the emerging principal contradiction facing China--"the contradiction between unbalanced and inadequate development and the people's ever growing needs for a better life. . . .The more prominent problem is that our development is unbalanced and inadequate. This has become the main constraining factor in meeting the people’s increasing needs for a better life." (19th CPC Congress Report--pp. 9-10).   It is to the amelioration of that basic contradiction--that is to the political project of governance undertaken through the leadership of the Communist Party, that it might be most useful to read and interpret the Report. To that end, Chinese leaders have specifically focused on the reform and broadening of the financial system. "We will deepen institutional reform in the financial sector, make it better serve the real economy, increase the proportion of direct financing, and promote the healthy development of a multilevel capital market." (Ibid., 30).

The Introduction (pp. 1-3) and Chapter 5 ("Remaining Financial Inclusion Challenges in China and the Way Forward") (pp. 69-73), both of which reflect the People's Bank of China thinking, follow. Chapter 4 ("China's Financial Inclusion Experience") is also worth reading carefully.

Friday, February 16, 2018

Conference Announcement: King’s Transnational Law Summit 2018 (KTLS18)

I am glad to pass along this announcement of the King’s Transnational Law Summit 2018 (KTLS18),
The King’s Transnational Law Summit 2018 takes place at a crucial moment of deepening domestic, regional and global political change. Inspired by the political philosopher Hannah Arendt’s book 'The Human Condition', which turns 60 next year, the conference will evolve around the theme of The New Human Condition: Creating Justice for Our Future.

This inaugural Summit will place justice at the centre of a wider inter-disciplinary conversation about democratic politics, inequality, health and the environment in a volatile world. It is our hope to develop KTLS18 into a sustainable platform for an ongoing collaboration on some of the most important challenges we face today.
My thanks to the remarkable Peer Zumbansen for  this. It is the vision of the KTLS18 "to facilitate in-depth conversations through keynotes, panel and roundtable discussions as well as specialised workshops. The Summit will amplify existing conversations and initiate new debates on the themes of environmental justice, economy, health, migration, equality and action. Choose your area of interest and explore related conference sessions." 

The Concept Paper and more information follows.

Thursday, February 15, 2018

The Affair of the Sonic Weapons Attack: Weaponization From Where and How?; JAMA Preliminary Communication "Neurological Manifestations Among US Government Personnel Reporting Directional Audible and Sensory Phenomena in Havana, Cuba (15 Feb 2018)"

(Pix © Larry Catá Backer 2017)

The Affair of the Sonic Weapons Attack continues to evolve.  Today the Journal of the American Medical Association (JAMA) published in line a "Preliminary Communication" of a study to be published: Neurological Manifestations Among US Government Personnel Reporting Directional Audible and Sensory Phenomena in Havana, Cuba (15 Feb 2018). The full Preliminary Communication follows below.  The conclusion is of interest:
In this preliminary report of a retrospective case series, persistent cognitive, vestibular, and oculomotor dysfunction, as well as sleep impairment and headaches, were observed among US government personnel in Havana, Cuba, associated with reports of directional audible and/or sensory phenomena of unclear origin. These individuals appeared to have sustained injury to widespread brain networks without an associated history of head trauma.
It it was the meaning ascribed that is likely to intensify action and reaction among the U.S. and Cuban officials: "The unique circumstances of these patients and the consistency of the clinical manifestations raised concern for a novel mechanism of a possible acquired brain injury from a directional exposure of undetermined etiology." Additional materials include: Editorial Neurological Symptoms Among US Diplomats in Cuba (Christopher C. Muth, MD; Steven L. Lewis, MD); Medical News & Perspectives More Questions Raised by Concussion-like Symptoms Found in US Diplomats Who Served in Havana (Rita Rubin, MA); Audio (29:14) Medical Findings In U.S. Government Personnel Reporting Symptoms After Exposure To Sensory Phenomena in Havana, Cuba.

My thanks to Jonathan Meyer (Vice Chair, Committee On Export Controls and Economic Sanctions, The American Bar Association, Section of International law) for the alert.   

"International Law in Times of Disorder and Contestation;" ESIL Research Forum at the Hebrew University of Jerusalem

I am happy to pass along information about an upcoming research forum that promises to be quite interesting.  The European Society of International Law Research Forum, International Law in Times of Disorder and Contestation, will be hosted by the Hebrew University of Jersulam's Faculty of Law. It is sponsored by ESIL, the International Law Forum of the Hebrew University and the Hebrew University Faculty of Law. The organizing committee included Prof. Christina Binder, Prof.Tomer Broude, Prof. Pierre d’Argent, Prof. Guy Harpaz, Prof. Moshe Hirsch, Prof. Yuval Shany, Prof. Yael Ronen

The Research Forum brings together a marvelous group of scholars considering issues of the moment. Research Forum Concept Note and Program follow below.  

Wednesday, February 14, 2018

Just Published: "Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success," in The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018))

(Pix © Larry Catá Backer 2018)

I recently reported the publication of The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018)) (HERE).

I was pleased to be part of that effort. The abstract and introduction to my contribution, "Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success," follow. 

Tuesday, February 13, 2018

Restructuring Cuban Sovereign Debt--Private Lenders Put Pressure on the Cuban State

(Pix © Larry Catá Backer 2018)

The issue of sovereign debt has been a sensitive matter in Cuba for almost a generation. Cuba has been forced to borrow from public and private lenders even as it has vigorously denounced the contemporary system of sovereign lending. Since the 1980s, especially, Fidel Castro appeared as one of the leading political voices at the forefront of a theoretical approach to sovereign lending that suggest to center the development needs of states emerging from colonialism over the niceties of lending. In the face of IMF efforts to develop institutionalized quasi bankruptcy mechanics for public debt, Cuba sought to re-frame the issue of sovereign debt around the fairness of the debt.

Opposing the dominant vision is an anti-corporatist approach grounded in public law and the subordination of economics and markets to political control in the furtherance of deliberate state public policy and planning. States fail because it is in the interest of dominant states to use sovereign debt as a means of perpetuating subordination and a hierarchy of power among states. When a state fails to pay its debts, the focus ought to be on the creditor, and the fairness of the debt in terms of the larger public policy concerns - development, and the maximization of living standards for all individuals through state planning. (Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF)
The Cubans have sought to blend traditional views of the legitimacy of sovereign immunity, but now transformed as a vehicle for the protection of developing states against sovereign lenders whose debt contributes to the exploitation of states (Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes). The object, of course was to remake the system of sovereign debt--to draw it back form the markets oriented premises of globalization and return it to the political real,m of statecraft but now with a very specific normative agenda. And also to rework sovereign lending in a way that permitted the Cuban state to avoid debt it now found inconvenient and oppressive to the extent of it burden it would put on the state to repay the debt. . Needless to say, this view has never been popular among private lenders--or those who buy unpaid public debt. Nor has it resonated with the most developed states, home to much of the sources of public finance.

Now London based holders of Cuban sovereign debt have made a move to seek repayment.  That triggers a host of considerations--on sovereign debt, on Cuban-European relations, on the special character of debt and on the way that the efforts may shed light on the transformation of global finance markets, all briefly considered below.

Just Published: The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018))

I am am happy to report the publication announcement of The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018)).  The book is expected to ship in mid February 2018. This book presents theoretical and practical considerations on whether it would be feasible to adopt an international treaty on business and human rights to address corporate human rights abuses.  From the website:

About the Book
It is an undeniable fact that corporations participate in human rights abuses throughout the world. Yet there is disagreement among scholars, politicians and business actors about the best approaches to preventing and responding to those abuses and whether it would be feasible to adopt a treaty on the matter.

This book explores the potential adoption of a treaty on business and human rights, first proposed by Ecuador and South Africa. Would such a treaty be practicable and what should its content be – should it regulate direct corporate obligations or extraterritorial obligations? How can experiences of other international legal regimes and developments in regional systems inform the global debate on business and human rights?

The Future of Business and Human Rights informs the reader – academics, practitioners and policy makers – about the current debate that is at centre of legal and diplomatic discussion.
I am pleased to have been part of this effort. Contents  follow. The Table of Contents and Contributor bios may also be accessed HERE. Ordering Information HERE.

Sunday, February 11, 2018

Elite Engagement With Leadership Political Party Organizations: China and the United States Take Different Paths

(Pix © 2017 Larry Catá Backer)

The 2016 U.S. Elections and the Chinese 19th Chinese Communist Party Congress reflect two very different ways in which political parties serve as leadership organizations through which political life is organized and political discipline maintained. Each reflects the governing ideologies of the systems that they are each responsible for protecting. The CPC is a vanguard organization tasked with the profound obligation to lead the nation to the realization of a communist society.  The two leadership political parties in the United States bear the great weight of the responsibility to preserve the normative foundations of the Republic--the protection of the customs and traditions of its peoples and their fundamental rights.  In both cases, those core responsibilities have changed as each state has moved  through the different stages of their historical development. In both these progressions to new historical stages have sometimes been bloody and have produced profound loss of life, liberty and property.  

Both States, within a very short time of each other, have entered, quite self consciously, into a new era of development.  But the new era of each appears to be both profoundly different and likely to diverge increasingly in the near term.  For the United States, this new era puts it on a trajectory to reconstitute its relationship with its leading parties, which will increasingly lose their leadership (though they may maintain their institutional structures and the appearance of leadership) as they become supplanted by short lived grass roots movements driven increasingly through technology to establish virtual but powerful connections.  

For China, the new era puts the CPC squarely at the center of politics, economics, society and culture--the conduit through which all activity of the state and its people are considered, shaped, approved and implemented. Grass roots movements serve as data input through which the CPC's work can be assessed and society managed. For China, CPC discipline is central to the successful leadership of the Party.  For the United States, political parties are being carved out to serve as institutional platforms through which competing mass movements aligned against clusters of others may combine and assert leadership through elective politics and the control of engagement with the administrative sector. 

Both of these trajectories are very starkly evidenced by recent reporting (on the U.S: side) and approved articles (on the Chinese side). They follow below along with some additional brief remarks.