Friday, February 05, 2016

Workshop Presentation: "Theorizing Regulatory Governance Within its Ecology: The Structure of Management in an Age of Globalization"

(Pix © Larry Catá Backer 2016)

In my contribution to that workshop, Theorizing Regulatory Governance Within its Ecology: The Structure of Management in an Age of Globalization, I consider the theoretical elements of regulatory governance--that is, whether it is possible to theorize regulatory governance as technique, instrument, framework or ideology. To that end I look at the regulatory governance of the global production chain in garments, and the way the bones of any coherent regulatory structure is exposed in crisis--in this case the collapse of the Rana Plaza factory building.

The summary abstract of the paper and the PowerPoints are set out below.

The paper will follow in short order.   


Thursday, February 04, 2016

Workshop on Regulatory Governance at the Department of Business and Politics: The Transformative Power of Regulatory Governance Rules, Resistance and Responsibility

(Pix © Larry Catá Backer 2016)

It has been my great pleasure to participate in an excellent workshop being held at the Copenhagen Business School.  Organized by Poul F. Kjear and Antje Vetterlein both of CBS' Department of Business and Politics, the Workshop brought together an interdisciplinary group of scholars--from politics, rhetoric, international relations, and law, to consider from a variety of distinct perspectives the movement now toward regulatory governance. The workshop seeks greater insight into a now deepening taste for and deployment of regulation as response to the need to respond to issues touching on individual and institutional behaviors.
The Workshop's Theoretical Scope and Objectives follows, along with the Workshop Program.

Tuesday, February 02, 2016

Incoherence or Discretion in Corruption and Investment Approaches?--The Norwegian Pension Fund Global Places Petroleo Brasileiro SA (Petrobras) under observation

Norges Bank has decided to place Petroleo Brasileiro SA (Petrobras) under observation because of the risk of severe corruption. Petrobras is one of the largest state owned petroleum TNCs in Latin America and one that is deeply embedded in corruption investigations  (here and here (including the write off of over $2 billion in bribe payments)) that reached all the way to the office of the President of the Republic (here). The decision is based on the recommendation submitted by the Council on Ethics for the Government Pension Fund Global.

The decision stands in stark contrast to the 7 January 2016 decision by Norges Bank to exclude the Chinese company ZTE Corporation, one of the world’s five largest producers of telecommunications equipment and network solutions, based on an assessment of the risk of severe corruption (my observations here). 

The two decisions together may help begin to make coherent whatever rules may be emerging about the obligations of the Pension Fund Global in matters of corruption under internationalized standards that it invokes.  Especially important may be emerging rules for determining when corruption may trigger greater use of shareholder rights and when it triggers a decision to exclude form investment.  To the extent that these decisions do not add clarity, they ill serve the developing international consensus on the corporate responsibility to avoid corruption and the consequential obligation of investors to police the conduct of the enterprises in which they invest.

Please find the Council’s recommendation here.
Please find the Council on Ethics Recommendation here.

The Council of Ethics opinion and Norges Bank decision, along with some observations, follow.

Monday, February 01, 2016

New Paper Posted: "The Evolving Relationship Between TNCs and Political Actors and Governments"

(Pix © Larry Catá Backer 2016)

The relationships among states, transnational corporations (TNCs) and political actors stands at the center of the evolving nature and character of governance in the economic sphere. An understanding of these relationships. Projecting outward in time it seems clear that the spaces for governance created through economic globalization has also produced substantial transformations in the nature, structures and frameworks within which the relationships among states, TNCs and political actors are understood and manifested. Though the state remains a critical actor, relationships no longer are networked exclusively through or for the object of inducing state action. TNCs and political organizations are as likely to engage in governance related interactions as both are to reach out to the state. And even in the context of public institutional communication, those might as likely be made to or through international public bodies as they are to be directed to any single or group of states. Among these stakeholders, the nature of communications continues to be complex. To some extent cooperation mechanisms—tilted toward joint governance efforts—are likely to continue to grow. Yet because the interests of political actors and TNCs do not align, there will be instances of relations that are adversarial—from those touching on monitoring and assessing TNC conduct to projections of stakeholder power onto consumer and investor communities to seek to influence discourse (and consensus) on appropriate behavior rules. What is certain, though, is that the relationship among these actors will be central to the evolution of governance norms and structures applied increasingly to production chains across states well into this century.

In this paper, The Evolving Relationship Between TNCs and Political Actors and Governments, I explore those relationships and their trajectories. It can be accessed here.

The abstract follows; comments and reactions gratefully received.

Sunday, January 31, 2016

Foundation for Law and International Affairs (FLIA): Commentary on Charity Undertakings Law of the PRC (2nd Draft) 中华人民共和国慈善事业法(二审草案)

Chinese authorities have invited commentaries on the 2nd Draft of the People's Republic of China Charity Undertakings Law of the PRC 中华人民共和国慈善事业法(二审草案) , which they have circulated earlier this year. I had posted my preliminary commentary earlier (see here).  Those comments are part of a larger set of integrated comments that represent the efforts of the Foundation for Law & International Affairs (FLIA).
The Foundation for Law and International Affairs (FLIA) is an independent, nonpartisan, nonprofit organization mandated to promote academic and public discourse at the intersection of law and international affairs. The core vision of FLIA is to promote international cooperation and public dialogue through the development of new ideas and collaboration with various academic, governmental and civil society actors. Our mission is to facilitate international scholarly activities, conduct high quality, independent research and policy analysis, engage in public education and awareness-building programs, as well as amplify the voice of the rising global generation through free and open sharing of ideas. (See here)
FLIA's commentary, submitted to government officials, consists of the following, all of which may be accessed through the links provided below.  The Commentary is also reproduced below in full.

FLIA Commentary to First Draft--here.


Friday, January 29, 2016

My Commentary on the Charity Undertakings Law of the PRC (2nd Draft) 中华人民共和国慈善事业法(二审草案)

  (Pix © Larry Catá Backer 2015 )

In 2015, Chinese authorities released an initial draft of a Charity Undertakings Law 中华人民共和国慈善事业法(草案)to which Chinese authorities invited commentary. My submitted commentary may be accessed here (English) and 白轲。关于中华人民共和国慈善法(草案)的评论  (Chinese version). These formed part of a larger set of commentary coordinated with the Foundation for Law & International Affairs (FLIA) (see here).

In January 2016, Chinese authorities circulated a second draft Charity Undertakings Law to which they again invited commentary. (English translation here). This draft incorporated some changes form the prior draft.  I have prepared commentary to this second draft, which I have considered in relation to the fundamental substantive obligations to advance socialist modernization under the CCP Basic Line (For my commentary on the CCP Basic Line see eg here).  Our friends at China Law Translate tell us that
 The public can directly log in to the NPC website (( provide comments; and may also mail comments to the Legislative Affairs Committee of the Standing Committee of the National People's Congress, (1 West Qianmen Avenue, Xicheng District, Beijing 100805) [in Chinese: 北京市西城区前门西大街1号,邮编:100805. Please indicate on envelope Charity Law Revised Second Deliberation Draft Solicitation of Comments). Comments Deadline: January 31, 2016.

My Commentary to the Charity Undertakings Law of the PRC (2nd Draft) 中华人民共和国慈善事业法(二审草案) may be downloaded HERE and read below. It will be part of a larger formal commentary to be submitted by the Foundation for Law & International Affairs (FLIA)

The Draft Charity Law may be accessed HERE.

For a comparison of the first and second draft see here.

Sunday, January 24, 2016

SUN Yuhua on “How Can the Judicial Interpretation of Internet Libel Break through the Firewall of the Constitution?”

The law of libel, and especially the law of libel as applied to emerging forms of communication via the Internet has become a quite lively area of discussion in China. The liveliness cane be attributed, in part, to recent efforts by state organs to clarify, and to some extent, to broaden the reach of libel--and especially the criminal libel laws--against internet users.

That was the context for a quite provocative and important presentation by Dr. SUN Yuhua, Professor of Law at East China University of Political Science & Law, and currently a visiting scholar at Columbia University Law School at Penn State Law School this past week. Dr. Sun specializes in constitutional and procedural law.  
His presentation, drawn from a recent article, “How Can the Judicial Interpretation of Internet Libel Break through the Firewall of the Constitution?” explored significant issues of the interplay of the substantive law of criminal libel at the intersection of Chinese Constitutional law. The paper was also recently presented to the New York Bar Association.

The abstract and PowerPoint presentations follow.