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.).