Saturday, December 14, 2019

Just Published: Windsor Yearbook of Access to Justice; Special Section on Corporate Social Responsibility (Vanisha Sukdeo, ed.)



I am pleased to pass along notice of the publication of the  newest issue of the Windsor Yearbook of Access to Justice, which has just been posted and available online. It s particularly noteworthy for its special section on Corporate Social Responsibility which was guest edited by the marvelous Vanisha Sukdeo. Contributions include Benjamin J. Richardson's incisive consideration of the green illusions of business communications;   Fenner L. Stewart's call for CSR to embrace the normative guidance of civic republicanism; Janet Austin, Sulette Lombard's examination of the impacts of whistleblowng programs on corporate governance; and Carol Liao, Elsir U. Tawfik, Pat Teichreb's consideration of the global social enterprise lawmaking phenomenon. Each is worth a careful read together they suggest the emerging complexities of multi-vector frameworks for managing the effects of business activity embedded in complex legal and social ecologies.



Vanisha Sukdeo is a lawyer, Course Director, and Ph.D. Candidate at Osgoode Hall Law School. Vanisha was Called to the Ontario Bar in 2007. She received her LL.M. from Osgoode, LL.B. from Queen’s University and her Bachelor of Arts from York University where she majored in Political Science. Vanisha is the author of two books with Routledge and has a forthcoming book with LexisNexis.

The Links to the articles follow along with Ms. Sukdeo's Introduction. The Index with links may be accessed HERE.




Thursday, December 12, 2019

Digital Text of the Hague Rules on Business and Human Rights Arbitration Now Available for Download Free



In a prior post I announced the official  launch The Hague Rules at a symposium hosted by the PCA in the Peace Palace in The Hague. Judge Bruno Simma will hand over the first copies to Dr. Bahia Tahzib-Lie, Human Rights Ambassador of the Netherlands Ministry of Foreign Affairs and Ms. Saskia Bruines, Alderman of the City of The Hague.

The Hague Rules are based on the Arbitration Rules of the United Nations Commission on International Trade Law (with new article 1, paragraph 4, as adopted in 2013) (the “UNCITRAL Rules”), with modifications needed to address certain issues likely to arise in the context of business and human rights disputes.  That is both their great strength and the source of their weakness.

The Symposium was held today and its participants advanced the best case for the adoption of the Hague Rules. They also discussed remaioning challenges and the steps that must be taken to advance the embrace of the Hague rules by states, enterprises and by rights holders.

The digital version of Hague Rules may now be downloaded. Please click on the image below to access The Hague Rules.



The Foreword and Introductory Note follow below. 











Wednesday, December 11, 2019

Reflections on the 8th U.N. Forum on Business and Human Rights--Part II, "'Falling in Love Again:' 'Smart Mixes' and the De-Centering of the State Within Private Compliance Governance Orders"




I was delighted to have been able to attend a portion of the 8th UN Forum for Business and Human Rights.  I have been reflecting on the lessons learned and the directions toward which that great assembly of states, enterprises, NGOs and academics would have us all journey.

That journey, of course, was wrapped up nicely in the 2019 Forum theme--Time to act: Governments as catalysts for business respect for human rights. For me, the theme produced a substantial irony, an irony that serves as the focus of the brief comments offered here on the state of the art in business and human rights and the perversity that it appears to foster as it lumbers along propelled by its own quite incomprehensible internal logic (at worst perhaps comprehensible in the sense that it fails to understand the consequences of the choices it appears to favor). It reminds us that ideological stances produce some time quite absurd results. And absurdity was the order of the day, at least for the positions taken by some of the leading states in this field.

My brief reflections are divided into two parts.

Part I (Reflections on the 8th U.N. Forum on Business and Human Rights--Part I, "Does Lesotho Exist?") was published first. It considered drive toward the legalization of the 2nd Pillar corporate responsibility actually produces a new sort of imperial system with human rights at its center and a confederation of --wait for it--states which formed the family of "civilized nations" as they were constituted in 1900 again appear take a leading position. For all other states there is, well, nothing.  They disappear in the shadows of the sunshine cast by this Olympian cartel of states.  The irony that appears to emerge out pf the 8th Forum in this respect that the drive to center the state actually divides states into those that count and those that are slated, effectively, for oblivion--resurrected only when necessary to hide the reality that the system of horizontal parity among states created after 1945 is being substantially transformed. Make no mistake, is not about Western privilege (though that trope is always useful in the corridors of Geneva, and New York or wherever it is deemed useful to manufacture a strategic reality for the voting masses); rather it is about power--the divide is between rich states from which global production is controlled or centered, and those states (the rest) whose people and resources serve them.  And in the process, those serving states lose effectively their coherence as states (resurrected only for the photo-op sessi0ns that the UN system can ably arrange.

This Part 2--('Falling in Love Again:' 'Smart Mixes' and the De-Centering of the State Within Private Compliance Governance Orders') considers how the framework for this emerging imperium actually has a far more interesting effect. The effect becomes more interesting when measured against the objectives expressed in the 8th Forum's theme. One would think, on the basis of the expected consequences of the building of vertically arranged power structures in which principal states oversee the economic activities (through their instrumentalities) of activities undertaken by them throughout their production chains, that the Forum theme would thereby be furthered.  Here, at last, one might expect to see fulfilled the objectives that these states (and and dominant society intelligentsia) had sought for a long time. That would be a regulatory structure driven by the law of the most powerful states and enforced through their judicial structures, now serving the higher cause of (still badly defined) international human rights.

Yet, rather than returning power to the human rights imperial cartel states, it has the effect of dissipating that authority.  States, effectively incapable of actually managing human rights through law, transform the role of law as a constituting element of legal orders that are actually delegated to enterprises (or better put delegated to the global production chains). As a consequence, the state itself disappears within the logic of the structures of its own approach to law into the vast data driven compliance machinery that the vanguard states have been furiously constructing (with the complicity of the largest enterprises) over the last generation.

My object remains the same as in Part I--to briefly sketch out one of the great absurdities of the current approach to the regulation of business and human rights--the great campaign of national regulation the results of which accelerate the process of privatizing law by governmentalizing the largest enterprises--delegating to them the functional  role of the state in the management of the human rights effects of economic activities within global production.  Perhaps that is as it should be. I have certainly been arguing this position since before many of the current crop of elite influence leaders learned to connect state-enterprise-human rights (e.g., From Moral Obligation to International Law; Geo. J. Int'l L 39(4):591-653 (2008)).  But in the process, and in an effort--essentially reactionary--to revitalize the state as the source of control, and law as the language and structure through which such obligations are implemented, these "leading forces" of human rights change have essentially produced a mechanism through which the core power of the state will be obliterated, all the while preserving an increasingly fragile facade of state power.


Tuesday, December 10, 2019

Launch of The Hague Rules on Business and Human Rights Arbitration 12 December 2019












On 12 December 2019, Judge Bruno Simma and the Drafting Team of The Hague Rules on Business and Human Rights will officially launch The Hague Rules at a symposium hosted by the PCA in the Peace Palace in The Hague. Judge Bruno Simma will hand over the first copies to Dr. Bahia Tahzib-Lie, Human Rights Ambassador of the Netherlands Ministry of Foreign Affairs and Ms. Saskia Bruines, Alderman of the City of The Hague. Do not worry if you are unable to attend the symposium, as you can also get a digital version of The Hague Rules here! Please click on the image below to access The Hague Rules.


The Symposium Program follows along with information developed by its makers.


Sunday, December 08, 2019

Reflections on the 8th U.N. Forum on Business and Human Rights--Part I, "Does Lesotho Exist?"



I was pleased to have been able to attend a portion of the 8th Annual UN Forum on Business and Human Rights.  Perhaps because it has become fashionable to trash all things Americans, with the complicity of some sector off the American intelligentsia, the Forum this year took place immediately before the US Thanksgiving holiday, which requited some to make a difficult choice between public duty and family life.  One hopes that a greater sensitivity will be exercised in future years and that the choice e this year was the product of difficult choices among unpalatable alternatives. In any case many of us were able to attend at least the first 2 of the 3 days reserved for the conference.

Relevant U.N. officials with authority over these matters describe the function of the UN Forum in these terms:
The UN annual Forum on Business and Human Rights is the global platform for stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice. As the world’s foremost gathering in this area, it provides a unique space for dialogue between governments, business, civil society, affected groups and international organizations on trends, challenges and good practices in preventing and addressing business-related human rights impacts. The first Forum was held in 2012. It attracts more than 2,000 experts, practitioners and leaders for three days of an action- and solution-oriented dialogue.
The theme of the Forum this year was an important one--Time to act: Governments as catalysts for business respect for human rights. For me, the theme produced a substantial irony, an irony that serves as the focus of the brief comments offered here on the state of the art in business and human rights and the perversity that it appears to foster as it lumbers along propelled by its own quite incomprehensible internal logic (at worst perhaps comprehensible in the sense that it fails to understand the consequences of the choices it appears to favor). It reminds us that ideological stances produce some time quite absurd results. And absurdity was the order of the day, at least for the positions taken by some of the leading states in this field.

What follows includes my brief reflections on one portion of the Forum. It is divided into two parts.

This part considers drive toward the legalization of the 2nd Pillar corporate responsibility actually produces a new sort of imperial system with human rights at its center and a confederation of --wait for it--states which formed the family of "civilized nations" as they were constituted in 1900 again appear take a leading position. For all other states there is, well, nothing.  They disappear in the shadows of the sunshine cast by this Olympian cartel of states.

Part 2 (Reflections on the 8th U.N. Forum on Business and Human Rights--Part II, "'Falling in Love Again:' 'Smart Mixes' and the De-Centering of the State Within Private Compliance Governance Orders") then considers how the framework for this imperium actually has a far more interesting effect. Rather than returning power to the human rights imperial cartel states, it has the effect of dissipating that authority.  States, effectively incapable of actually managing human rights through law, transform the role of law as a constituting element of legal orders that are actually delegated to enterprises (or better put delegated to the global production chains). As a consequence, the state itself will disappear  within the logic of the structures of its own approach to law into the vast data driven compliance machinery that the vanguard states have been furiously constructing (with the complicity of the largest enterprises) over the last generation.

My object is to briefly sketch out one of the great absurdities of the current approach to the regulation of business and human rights--the great campaign of national regulation the results of which accelerate the process of privatizing law by governmentalizing the largest enterprises--delegating to them the functional  role of the state in the management of the human rights effects of economic activities within global production.  Perhaps that is as it should be.  But in the process, and in an effort--essentially reactionary--to revitalize the state as the source of control, and law as the language and structure through which such obligations are implemented, these "leading forces" of human rights change have essentially produced a mechanism through which the core power of the state will be obliterated, all the while preserving an increasingly fragile facade of state power.   

Additionally I have posted below the Summary of the report of the Working Group on Business and Human Rights to the General Assembly, October 2018 (A/73/163)   In addition, the Report by the UN Working Group on Business and Human Rights may be accessed here – "Policy coherence in government action to protect against business-related human rights abuses"


Friday, December 06, 2019

习近平 坚持、完善和发展中国特色社会主义国家制度与法律制度 [Xi Jinping: "Adhere to, improve and develop the socialist state system and legal system with Chinese characteristics"]




The process of developing New Era Through is proceeding at an accelerated pace. I have already written about its effects in the work of the Vanguard Party to contribute to the construction of there ideal Socialist Society, Socialist Culture, Socialist Education and the ideal socialist citizen.

These all represent important transition in the development of the Chinese economic-political-moral model. At its center is the baseline insight of New Era thinking: that China has moved to a stage in its historical development where the process of going out and emancipating the mind has reached its fullest development. As a consequence the New Era requires China to take what it has learned to to use it to build its own system which are true to its context and political model. And from that it will be time for China not to receive knowledge form outside but to present its more fully developed Socialist model to the world. This has become very clear from both the publications and statements of leading CCP organs, but in the focus of the work of the leading elements and organs of official CCP intellectual development as well.


In that context, Xi Jinping is playing an increasingly decisive role. That role appears now targeted to the leading organs for the debates of the intelligentsia in producing knowledge useful to the CCP's project of moving its political-economic model forward into the New Era. Principal among then now appears to be 《求是》[“Qiú shì”], Seeking Truth, a journal widely circulated amongst high-level Communist Party officials. The title originates from the quote shí shì qiú shì (实事求是), which means "seeking truth from facts".

On 1 December Qiu She again published in essay form an address given by Xi Jinping during the 17th collective study of the 19th Central Political Bureau on September 24, 2019, immediately before Fourth Plenary Session of the Nineteenth Central Committee of the Communist Party of China, a meeting whose communique is also worth a careful read (see my observations here). That essay, 习近平 坚持、完善和发展中国特色社会主义国家制度与法律制度 [Xi Jinping: "Adhere to, improve and develop the socialist state system and legal system with Chinese characteristics"] adds an important element to the construction of New Era Thought. Here Xi Jinping turns from the construction of moral and cultural baselines to the structuring of the institutional apparatus of the state and party.

The essay in the original Chinese and a crude English translation follows along with brief comments.


Thursday, December 05, 2019

From the Norwegian Pension Fund Global: Norges Bank Revokes Observation of Petrobras



The officials at the Norwegian Pension Fund Global recently announced that Norges Bank has decided to revoke the observation of Petroleo Brasileiro SA. That was based on a a determination of the Council on Ethics for the Government Pension Fund Global (GPFG) of 13 November 2019 that Petrobras be removed from the list of companies it has under observation.

The announcement noted:
Petrobras has been under observation since 2016. The Council on Ethics recommended that Petrobras be placed under observation in 2015 after revelations that senior executives at the company and its most important suppliers had for a decade operated a system in which the payment of bribes was a prerequisite for winning contracts with Petrobras. Investigations into some of these cases remains ongoing. Despite the risk inherent in the fact that the Brazilian government, as the controlling shareholder, appoints a majority of Petrobras’s board members, the Council considers that the risk of corruption in the company has decreased. This assessment rests partly on the legal settlement entered into with the US Department of Justice which confirms that Petrobras has implemented wide-ranging improvement measures since the investigations commenced in 2014, and that it has undertaken to report on the further implementation of its compliance programme and internal control measures each year until 2021. The Council would also like to point out that Brazil’s federal prosecution service and supreme court have officially defined Petrobras as a victim in the Lava Jato investigation, and that the company is therefore assisting the prosecuting authorities in many ongoing criminal proceedings.
In prior posts I had suggested my disquiet with the observation decision--Incoherence or Discretion in Corruption and Investment Approaches?--The Norwegian Pension Fund Global Places Petroleo Brasileiro SA (Petrobras) under observation.  The issues, of course, revolve around the failure of the Norges Bank and of the Ethics Council to develop any sort of rationalization of its decisions in the area of corruption.  The ad hoc approach has suggested in its long arc of development from Siemens to Chinese companies one the past decades a surprising willingness to rely on pragmatic decision making grounded in the almost ritualistic invocation of its standard. Now one sees in the current decision yet more pragmatism. Not that pragmatism is bad.  But that is hardly a way to build an autonomous and useful jurisprudential guide to conduct.  More importantly, it suggests the growing importance of extra-legal compliance over legal standards and as the principal approach to managing behavior. It is only a short step from there to the substitution of an administrative discretion based system of compliance management and reward for the traditional structures and framework of law.  And it is only a small step from that to ratings based governance grounded in the analytics of compliance.  At that point, ironically enough, both the Ethics Council and the Norges Bank will no longer be necessary in the administration of the Ethics Guidelines.  

 Access the Council’s recommendation HERE and below. Access the Norges Banks’s press release HERE and below.

Wednesday, December 04, 2019

Sun Ping on “Beyond Security: What Kind of Data Protection Law Should China Make?” Paper and Presentation at the 8th Asian Constitutional Law Forum, “Asian Constitutional Law: Recent Developments and Trends” Hanoi, Vietnam







In the 1970s Michel Foucault oracularly suggested that contemporary politics and society would be transformed in a peculiar way. He predicted the end of the individual and of the effective approach to individual autonomy in liberal democratic societies. In its place, political societies would aggregate the individual into masses—what he called “population.” These aggregations of individuals would be incarnated through the process of transforming them from abstractions to “statistics.” Statistics was understood as the rationalization of masses of data produced by the components of population to produce from out of its organization, the body of the masses. Population, then, through statistics, could reduce the individual to a subcomponent of the only politically potent stakeholder in political society—the mass.

Foucault anticipated much of what a generation later emerged as the development of data drive governance in the West and social credit regimes in Marxist-Leninist societies. I have suggested the effects of this trajectory on the individual—as the opposite side of the effects predicted by Foucault in his consideration of bio-politics. Here the individual is at the center of “statistics.” (“Next Generation Law, accessed here). He and she are stripped of their autonomy and corporeality and become nothing more than the generator of a lifetime stream of data. This stream of data is then the means through which the once autonomous individual is reconstituted as the aggregation of the stream of data they produced—judged in relation to the streams of data produced in the network of interrelated data streams of those with whom they interact. 

Sun Ping, Associate Researching Professor at the School of Law, East China University of Political Science and Law, has been producing some important and insightful work in this area. He has been focusing research on the consequences for law and society bent on the construction of this sort of “data” person. While is specific focus is China, the insights are quite compelling for the parallel developments of data society elsewhere. He recently presented his current research, “Beyond Security: What Kind of Data Protection Law Should China Make?” at the 8th Asian Constitutional Law Forum, “Asian Constitutional Law: Recent Developments and Trends” 6th and 7th December 2019, La Thanh hotel, Hanoi, Vietnam.

The paper is well worth reading. The Abstract and introduction follow along with information about the 8th ASLF. Please contact Professor Sun for a full copy of the paper.

Monday, November 25, 2019

Full Text of Remarks delivered at the 8th United Nations Forum for Business and Human Rights, 26 November 2019: “Peaches and Plums do not Speak, but they are so Attractive that a Path is Formed Below the trees” [桃李不言,下自成蹊]: China’s Belt and Road Initiative and the United Nations Guiding Principles for Business and Human Rights



(Pix: The Lady and the Unicorn: À mon seul désir (Musée national du Moyen Âge, Paris))

The UN Working Group on Business and Human Rights has organized a session that may be of interest to some readers.  The Session, Building sustainable infrastructure: Lessons from the Belt and Road Initiative and other similar multi-state initiatives, will be chaired by Surya Deva, a Member, UN Working Group on Business and Human Rights.  Session participants include Mohamed Athman (Save Lamu); Larry Catá Backer (Penn State University); Flora Sapio (Università degli Studi di Napoli “L'Orientale”); and Wawa Wang (Sustainable Energy). The Session will take place Tuesday, November 26 (16:40 - 18:00).  We hope to see many of you there. The Session Concept Note may be accessed HERE

I have taken the opportunity here to post the full text of the remarks I prepared for the session.  The remarks are entitled: “Peaches and Plums do not Speak, but they are so Attractive that a Path is Formed Below the trees” [桃李不言,下自成蹊]: China’s Belt and Road Initiative and the United Nations Guiding Principles for Business and Human Rights.  As its title suggests, the remarks consider the points of necessary convergence between the emerging and robust system of global trade being developed by China through its Belt and Road Initiative and the normative framework of the UN Guiding Principle.  I suggest points of convergence as well as challenges to both systems for the necessary task of building a win-win common future.

Given the limited time available for presentation, I will only be able to deliver a much shortened version orally.  But I thought some might find it useful to consider the full text.  It follows below and may be accessed HERE, and may be downloaded HERE: Peaches and Plums do not Speak

(Bottom Pix: The Hunt of the Unicorn; Cloisters Museum, New York)

Saturday, November 23, 2019

习近平 学习马克思主义基本理论是共产党人的必修课 [Xi Jinping: "Learning the basic theory of Marxism is a compulsory course for communists"]--Text and Analysis



One of the great markers of the extraordinary development of Marxist-Leninist theory is China has been Xi Jinping's "New Era" campaign.Almost form the time of his rise to leadership within the core of the collective leadership of the Chinese Communist Party, there has been an increasingly pointed centering of the CCP's political work. And within that political work, the CCP leadership core has emphasized the need to develop the productive forces of Marxism Leninism first, within the Chinese context, and then to offer this transformed or evolving Marxism-Leninism (now aligned with the new global historical era) to the world in the form of the current Chinese global human rights and trade initiatives.


Since the 3rd Plenum, the CCP has appeared to accelerate its development of the productive forces of Marxism-Leninism in the service of its Basic Line, and of its engagement internally with the masses (through a yet to be fully developed renewal of the mass line) and externally through its Belt and Road Initiative and associated vision for a new global order.  This is not just politics of the sort that has grown decadent in many parts of the world; rather, as I have pointed out elsewhere (here, here, and here) this is essentially a moral and normative project.  At its core is the fundamental objective to change people and institutions to better point toward the ultimate obligation of the leading social forces (in the case of China its CCP) toward the establishment of a Communist Society (and again this is np surprise to those who read the CCP's own constitution).

It ought to be of great interest, then, when the leadership core of the CCP itself lends its name to an effort to further advance the theory (and thereafter practice) of Marxism-Leninism (with or without Chinese characteristics). Recently such an effort to advance Marxist theory was published in the flagship vehicle for such efforts--《求是》Qiú shì ("Seeking Truth"), a bi-monthly political theory periodical published by the Central Party School and the Central Committee of the Communist Party of China. Such was the case recently with the publication of 学习马克思主义基本理论是共产党人的必修课 [Learning the basic theory of Marxism is a compulsory course for communists] under the authorship of Xi Jinping [习近平 ]. The original coverage of the speech can be found here. Elements of Western political actors  were more critical.  See HERE

As is customary for such efforts, the essay is a reduction/transcription of a speech of the author deemed important enough to merit further distribution.  In this case it was derived from a speech given at the fifth collective study of the 19th Central Political Bureau on April 23, 2018.  The resulting essay is worth reading, of course, for the usual reasons--it is authored by the leadership core of the CCP and thus will have authoritative effects beyond those of any thoughts of lower ranked theorists inside or outside the CCP (much less of any foreigner), it signals direction and may be used as an indicator of where the CCP may be heading as it makes it sway to the 20th CCP National Congress, and because the authorities deem it important. But it is also worth reading as theory.  The revival of Marxism-Leninism, especially within official channels, has not been undertaken since the retrospectively unsuccessful efforts of middle Soviet period Stalinism. More importantly, the essay provides a view of emerging forms of Communist Internationalism that may be embedded in the great initiatives of China in seeking a larger role on the world stage--from the Belt and Road Initiative to Multilateral efforts to reshape international law.

This post includes the essay and its rough English translation along with some preliminary thoughts and engagement with the essay as theory within the context of China's Marxist Leninist New Era thought.