Tuesday, October 25, 2016

New Paper Posted: Commentary on the New Charity Undertakings Law: Socialist Modernization Through Collective Organizations

(Pix  Larry Catá Backer 2016)
I am happy to report that I have posted a new paper for comment:  Commentary on the New Charity Undertakings Law: Socialist Modernization Through Collective Organizations.  It is expected to be published in the China Non Profit Law Review.
The paper draft may be accessed at SSRN HERE.
The Introduction and Abstract follow. 

Saturday, October 22, 2016

Sovereign Wealth Fund Investment in Student Housing Now a Growing Trend --Ought There to be a CSR/Human Rights Dimension as Well?

(Pix  Larry Catá Backer 2016)

One is used to speaking about sovereign wealth funds either as vehicles for the projection of state power into the capital markets of foreign states through acquisition of foreign securities. Alternatively, it has been fashionable, especially among SWFs in developing states, to recast SWFs as an alternative to development banks. 

But SWFs have, for a long time, also invested in real estate.  That makes sense, especially for those SWFs with a very long term time horizon.  Yet SWFs have now discovered a means of combining both a long time horizon for wealth maximization and the possibility of generating potentially substantial returns in the short and medium term--by entering into the market for the exploitation fo education services.  But rather than enter this market at its core--by investing in universities--the smart SWF is now investing in peripheral but essential services.  These include student dorms, food services, tutoring and the like.  These investments, when projected into foreign states has another benefit--they avoid any political or societal obligation that a state organ might otherwise bear to its own people.  Investing in peripheral services in foreign states permits the state to avoid any public service burden.  And, because they operate as a quasi private capacity, they might owe only a corporate responsibility to respect human rights, rather than a state duty to protect them. The obligations of states and enterprise sunder the UN Guiding Principles for Business and Human Rights might suggest otherwise.

This post considers the expanding interest of SWFs in student housing investment, especially outside the home state.  It focuses on the recent move by the Singaporean SWF GIC to stake out a very large position in this global market that promises both long term appreciation and short term revenue flows, and suggests the need to consider their human rights impacts as well.

Friday, October 21, 2016

From the Finnish China Law Center: "Why studying Chinese law? – Read answers from International Scholars"

The Finnish China Law Center has just published a nice set of short interviews touching on the topic--why study Chinese law?:   Three law professors from the United States, Denmark and Hong Kong, have kindly accepted the Center’s interview requests and shared their insights on researching and studying Chinese law. 

The interviews may be accessed HERE.  And they are reproduced below. My thanks to the Director of the Center is Professor Ulla Liukkunen. Thanks as well to Dr. Yihong Zhang who conducted the interviews.

And a very brief endorsement of the marvelous collection of essays edited by Professors Liukkunen and Yifeng Chen (Peking University Law Faculty)--Fundamental Labour Rights in China--Legal Implementation and Cultural Logic (Springer 2016 ISBN 978-3-319-23155-6). The essays are well worth reading.  And the approach of the editors is refreshingly insightful:
 Law as a social phenomenon is deeply embedded in the culture and tradition of a particular nation, or community. Yet often comparativists focus on the normative structure and system and stay at the surface f the legal system, while treating any extra-legal cultural and social factors either as irrelevant, or as something to overcome. To talk about legal culture is sometimes considered an excuse for deviation from what is understood to be the usual understanding of law, or a symbol of less developed, problematic society.  From this perspective, culture is something outside the law, and indeed antagonistic to law.  Our research project challenges that approach and seeks to bring the cultural aspect with its multidimensionality to the forefront of our research. (Liukkunen and Chen, "Developing a Fundamental Labour Rights in China--A New Approach to Implementation," in Fundamental Labour Rights in China, supra, 1, 3).

Conference Announcement: "China’s Guiding Cases System Turns Six: Retrospect and Prospect" 北京研讨会/Hong Kong Seminar English Only



China’s Guiding Cases System Turns Six: Retrospect and Prospect

The following two Guiding Cases Seminars will feature as speakers the Honorable Judge GUO Feng (郭鋒法官) (Supreme People’s Court), the Honorable Judge DING Xiaoyu (丁晓雨法官) (Tianjin Binhai New Area People’s Court), WANG Zigiang (王自强) (National Copyright Administration of China), and YU Jianlong (于建龙) (China Chamber of International Commerce and CIETAC), among others (see below).  Please register here for FREE admission. 

Thursday, October 20, 2016

Side Event at the 2nd Session of the Intergovernmental Working Group for a Comprehensive Business and Human Rights Treaty: Exploring the Content of the Proposed Treaty on Business and Human Rights--Academic Reflections

Side event organized by Centre for Human Rights, University of Pretoria
Thursday, 27 October 2016 (1-3pm)
Room XXVII, Palais des Nations
 The first two sessions of the open-ended intergovernmental working group (OEIGWG) ‘shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument’. The OEIGWG Chairperson-Rapporteur is then expected to ‘prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session’.

Against this backdrop, this panel comprising several academics working in the area of business and rights will discuss concrete options about the content of the proposed treaty in order to enable states, businesses and civil society organisations taking an informed position on the treaty. Issues such as the following will be discussed: 

Saturday, October 15, 2016

Detaching the Judicial Role from the Judge—A Reflection on The Nature of Judicial Reform in China

The issue of judicial reform, and of the working style of the judge, has been at the forefront recently in China. Both national and foreign scholars, politicians, civil society elements and the like have weighed in on the issue. Each of them have their own axes to grind. Foreigners are looking for convergence with their own standards, ideologies, and practices—however contested these may be in their own home states. The national debate on judicial reform reflects playing out of more complex politics involving not merely the technical issues of judicial efficiency and operations, but also touching on the character of the judge, the judicial role, the relationship between judge and law, and the role of law within a Marxist Leninist political framework. I have recently considered some of these issues.

But underlying all of these debates—some normative and some technical/methodological, is a fundamental issue that tends to go unexamined. That issue touches on the connection between the judge-judiciary and the exercise of the judicial function. When people speak to judicial reform, they use that as a shorthand to speak to the judge embedded within the institution of the judiciary. That, I suggest, overly narrows and centers the issue of judging and its connection of political system legitimacy on the institution of the judiciary rather than on the systems created for judging—and the legitimacy enhancing normative constraints of judging detached from the institution of the judiciary, though also there applied .

Friday, October 14, 2016

More Movement in U.S. Cuban Relations: Publication of Updated Cuban Assets Control Regulations (CACR)

(Pix © Larry Catá Backer 2016)

This from the U.S. Office of Foreign Assets Control announcing publication of updated Cuban Assets Control Regulations (CACR):

The Department of the Treasury's Office of Foreign Assets Control (OFAC) is amending the Cuban Assets Control Regulations, 31 C.F.R. part 515 (the "CACR"), to further implement the new policy direction toward Cuba that the President announced in December 2014. These changes are intended to further engage and empower the Cuban people and promote political, social, and economic reform in Cuba by easing sanctions related to, among others, scientific collaboration, humanitarian activities, trade and commerce, and travel. The CACR amendment will be published in the Federal Register on Monday (October 17, 2016), at which time the changes will take effect. OFAC is also publishing a number of new and updated Frequently Asked Questions, a Fact Sheet, and updated Travel Guidance pertaining to this regulatory amendment.

For more information on this specific action, please visit our Recent Actions page.
The announcement along with the published "Fact Sheet", with links, follows.

Wednesday, October 12, 2016

Debating Guantanamo: Special Issue on the Guantanamo Naval Base

Ariana Hernandez Reguant reports for Cuba-Counterpoints on a a new focus on the Guantanamo Naval Base closure.
Special Issue on the Guantánamo Naval Base! www.cubacounterpoints.com

Legal scholars Michael J. Strauss and Larry Catá Backer debate the return of the base to Cuba. Odalis Márquez, Julie Schwietert Collazo, and Dan E. Waliceck provide testimonies from their visits to the base in 1994, 2006, and a few weeks ago respectively. We also have an original translation of the late Cuban filmmaker Jorge Massip's reflection on this experimental documentary on the relation between the American Base and the Cuban city, a sneak preview of Guantanamo resident José Ramón Sánchez’s new collection of poems titled “Gitmo”; an overview of Cuban artists’ representations of the base, an article by Esther Whitfield on the art scene on the Cuban side; and a review of Elizabeth Campisi’s new book Escape to Miami on the 1994 Balsero Crisis. Our regular columnists Kris Juncker and Alan West-Duran complete the issue.

Links to the contributions follow.

Monday, October 10, 2016

Call for Papers: Second International Conference ‘Consumer Policy in China: New Trends and Challenges’, University of Macau

Fernando Dias Similes of the University of Macau has put out a call for papers for the Second International Conference ‘Consumer Policy in China: New Trends and Challenges’,
I take pleasure in inviting you to submit an abstract for the Second International Conference ‘Consumer Policy in China: New Trends and Challenges’, to be held on 6 and 7 December 2016 at the Faculty of Law of the University of Macau (China).

The scope of the conference is quite broad so as to encompass different issues and challenges that are associated with the emergence of a 'Consumer Society' in China. If you are not sure whether your field of research fits into the subject of the conference I would be delighted to discuss possible topics. We will also consider panel proposals. The conference will be held in English. After the conference we plan to publish selected high-quality papers in a book series with a renowned publisher.

The call for appears follows

Saturday, October 08, 2016

Remaking China in Our Own Image: The 2016 Report of the Congressional-Executive Commission on China (CECC)

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.

On October 6, CECC delivered its 2016 Annual Report. The Report is an excellent mirror of the way American political elites think about themselves and the U.S. socio-political system, as well as the way those basic ideals are transposed to an analysis of the socio-political system of China. And, of course, this ideological-principles foundation is overlaid with is a quite valuable window on ,the approach to American policy towards China. This observation is both descriptive and critical. It is critical in three respects.

First the CECC approach to Chinese analysis ensures a blindness to the realities of the Chinese situation, masked by an obsession to transpose American perspectives outward. The consequence is the production of flawed analysis and a likely inability to accurately predict and project Chinese sensibilities and political decision making. More importantly it will fail to adequately gauge the nature and character of Chinese mass sentiment. This critically flawed analytical approach fails the United States and the advancement of its own interests and ought to be understood a a gross failure of competence by those charged with the protection of the United States, its interests and people.

Second, the CECC misses an important opportunity to engage China and Chinese policies and practices on its own terms. The real tragedy of reports like this one is the missed opportunity to analyze the extent to which the Chinese Party and State have failed in their own core obligations to advance the Chinese Communist Party Basic Line. It represents a lost opportunity to suggest the possibility of alternative courses of action grounded in the General Program of the CCP and its constitutional obligations under its own Basic Line. That failure is not merely a tactical failure but a failure of leadership. The CECC misses an opportunity to provide leadership for those who seek--within the parameters of Chinese socio-political ideology--to approach the issues highlighted in the Report, in an alternative way. That possibility is hardly conceded by the ideologues whose views infuse this Report. And as a consequence there will be less rather than more effective communication between elites on both sides of the Pacific.

Third, reports like this one provide a very bad example and model that other states, and particularly the Chinese state will be using more efficiently and often against the United States in coming years. There is little doubt but that the CECC Report will be mirrored by an equally flawed Chinese Report on the state of human rights in the United States, one that highlights everything from voter suppression, to corruption and the racially tinged police killings in many parts of the United States. That is in its own way as unhelpful as the CECC Report is for China. Yet that is the template that is being advanced. It is a template that may work well for short term internally driven political agendas but it hardly serves its stated purpose of rigorous and dispassionate analysis of realities quite aware of the ideological contexts in which analysis must be made. Another tragedy of the way in which U.S. Chinese relations are perverted.

This post includes CECC press release, the transmittal letter to President Obama, and the Executive Summary and Recommendations of the 2016 Report.