Tuesday, December 10, 2013
Article Published: "Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets"
My article, "Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets" has just been published and will appear in the American University International Law Review 29(1):1-122 (2013). My thanks to Mary Grinton, the Volume 29 Editor in Chief for an excellent volume.
(Enda Curran, "Norway’s Oil Fund Doubles Up Down Under," Moneybeat Wall Street Journal, March 13, 2013)
This article builds on earlier work both on the Norwegian sovereign wealth fund architecture and on sovereign investing more generally. It suggests that states, like corporations and civil society actors, are turning to social norms and societally constituted governance frameworks to effect changes to the behavior norms and customs of business enterprises, and that sometimes this form fo governance may be more effective than traditional lawmaking. Norway appears to mean to transpose international norms into state policy, and to transpose state policy into the governance cultures of corporations. This may represent an important new means of extending state power extraterritorially without invoking legal regimes and in furtherance of a coherent international framework for business behavior.
The abstract and introduction of my article follow. A pre-publication version of the article may be accessed HERE.
Sunday, December 08, 2013
Part XXX (30) Zhiwei Tong (童之伟) Series: "The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance"
(Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. The Series continues.
The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao, Bo Wang, and Zhichao Yi for their able work in translating these essays.
For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXX) we translate (via Bo Wang):
-->The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance (Sept. 22, 2013).
Friday, December 06, 2013
Three Approaches to Regulating Corporate Governance: State Regulation Through Law; Market Regulation Through Mandatory Transparency and State Intervention as an Active Shareholder--The Example of Capping Executive Pay
(Pix (c) Larry Catá Backer 2013)
States and the international community have been moving toward one of three distinct approaches to regulating corporate governance. The first and most traditional involves direct regulation through the domestic legal order of states. It is the most effective, but only to the extent that the regulated community is trapped within the territory of the regulating state. The second involves control of corporate governance indirectly through state control of markets for information. The idea here is that investor tastes will determine the viability of corporate behavior and states may signal approval or disapproval through mechanics of disclosure. The last escapes the public regulatory sphere in favor of markets. Here the state becomes a private investor in enterprises in which they assert the ordinary rights of influential investors to change corporate behavior like an ordinary owner. This approach privatizes regulation or inserts the state into the private sphere in new and innovative ways.
The resulting fracture in approaches suggests the complications of regulation in the 21st century and suggests the ways in which multiple layers of overlapping regulation, each with distinct boundaries, may be shaping a polycentric governance universe in this century. More importantly, this fracturing of approaches is having real time effects in contemporary controversies over the regulation of corporate conduct with respect to specific issues. One of the hottest issues of corporate governance in recent years has been that of the growing gap between the pay of the highest and lowest paid employees of enterprises.
This post considers how the emerging "schools" of corporate governance management, direct control through state law, indirect control through mandatory transparency regimes, and private control through active shareholding may affect the current debates over the regulatory intervention of the state in the market for corporate talent, and specifically in the context of the current debate about controlling executive pay.
Tuesday, December 03, 2013
The 2nd U.N. Forum on Busness and Human Rights Live Streaming and Thoughts on Trends in Managing Business Behaviors
The plenary sessions of the 2013 UN Forum on Business and Human Rights, held in Geneva on 2–4 December are being streamed.
Watch the plenary sessions of the Forum - Live streaming.
Sunday, December 01, 2013
At the 2nd U.N. Forum on Business and Human Rights--Reflections on Bilchitz and Deva (eds) "Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?"
In a prior post I noted the then upcoming Second Annual United Nations Forum on Business and Human Rights, of the Working Group on the issue of human rights and transnational corporations and other business enterprises, will be held in Geneva 2-4 December 2013. (e.g., 2013 United Nations Forum on Business and Human Rights--Forum Documents Available).
I have the delightful privilege of serving as a commentator at one of the side events of this Forum, the book launch of The Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Surya Deva and David Bilchitz, eds., Cambridge University Press, 2013). This event takes place on Monday 2 December 2013 in the Library Events Room (B-135) Building B, 1st Floor at the U.N. HQ in Geneva. The work is important and deserves critical engagement at the highest levels for the reasons I elaborate below.
This post includes my review of The Human Rights Obligations of Business from which I will draw the comments I will make at that book launch.
Wednesday, November 27, 2013
“Polycentricity in South Asian Human Rights Law": Presentation at the Asian Society of International Law 4th Biennial Conference, New Delhi, India
The Asian Society of International Law has just concluded its excellent 4th Biennial Conference, held this year in New Delhi, India this past 14-16 November 2013 and hosted this year by the Indian Society of International Law.
The Conference theme this year, “Asia and International Law in the 21st Century: New Horizons” drew a host of excellent papers and discussions over the course of three days. The call for papers described the conference theme:
A number of great papers were presented. The Conference Schedule can be accessed here.Governments, scholars, and civil society in Asia are actively engaged in all facets of the development and implementation of contemporary international law. Asia's leading powers are no longer "emerging" but have emerged. There is, nevertheless, great diversity around the region. While countries in the Asian region may regard certain issues as of particular concern to them, those issues are generally also of great moment in other regions and/or at a global level. This conference will seek to share perspectives on emergent dimensions of international law from around the Asian region, broadly defined, and from beyond.
I was grateful to have been able to present my paper at that conference: Polycentricity in South Asian Human Rights Law: On the Strategic and Simultaneous Use of Multiple Sources of Law to Advance Human Rights Against MNCs in South Asia. My thanks to Surya Deva (City University Hong Kong School of Law) for organizing a great panel.
A summary of the paper follows.
The PowerPoint of my presentation may be accessed HERE.
A summary of the paper follows.
The PowerPoint of my presentation may be accessed HERE.
Tuesday, November 26, 2013
Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice
I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law." (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum). The SYLLABUS can be accessed HERE.
This post makes the end of the lecture note series. It includes the TABLE of CONTENTS for the Lecture Notes as I have developed them over the past semester. These will serve as the core of materials that I will continue to use to introduce U.S. Law and Legal Theory to students. It remains very much a work in progress and and open access project. Comments and suggestions always welcome.