I was delighted to have been invited by Professors Zhiwei Tong and Sun Ping of East China University of Political Science and Law to conduct a workshop for faculty and students on “The Protection of the Rights of Corporations Under U.S: Constitutional Law.” The workshop took place on the campus of the ECUPL in Shanghai, PRC on April 27, 2018.
As Chinese companies have begun to expand their operations and ownership structures well beyond the borders of the People’s Republic, the issues of rights protections for their enterprises has become a subject of greater interest to academics, students and policymakers both within and outside government. The interest is not purely academic. The recent legal difficulties of ZTE and Huawei in the United States have served to remind Chinese enterprises of the need to better understand and protect their rights when operating within the United States, as well as the need to consider the benefits and challenges of domesticating their enterprises within the United States. In the context of ZTE and Huawei in particular, it also evidences the dangers of failing to understand the rights and obligations of corporations that come within the purview of U.S. sanctions and secrets law. More generally, a working knowledge of the relationship of corporations to the law, and especially to cluster of fundamental law protections afforded enterprise in the U.S. would be essential for better managing domestic operations as well as those that might “touch and concern” the United States.
For Chinese companies, in particular, the cluster of constitutional protections afforded enterprises also highlights the challenges of an area of law that is both dynamic and redolent with interpretive ambiguity. To that end, recent cases about the extent of U.S. jurisdiction for claims against foreign companies under the “Law of Nations” and cases touching on the legalization of societal expectations in business conduct are especially important—two areas of law that are themselves the subjects of Supreme Court decisions in the coming weeks. One of them, Jesner v. Arab Bank was decided at the time the of the workshop. More detail on the Jesner opinion may be accessed here (downloadable version here).
Corporate constitutionalism, once a relative backwater, has exploded again on the scene, especially as corporations are viewed increasingly as an efficient agent for promoting social change and for disciplining behaviors in markets and among individuals. In that respect both Chinese socialist development and U.S. corporate constitutionalism share some interesting intersections. It was with those ideas in mind that we discussed the nature, extent, philosophies and scope of constitutional protections of corporations under U.S. law.
The PowerPoints follow. They may also be accessed HERE.