Beth Farmer on Criminal Competition Law

My colleague, Beth Farmer has written an excellent analysis of the value of criminal penalties under competition or antitrust laws, "Real Crime: Criminal Competition Law" which she will present at the American Bar Association Criminal Law Section's Sixth Annual Fall Institute to be held in Washington D.C., Oct. 31-Nov. 1, 2013.

 (Pix from Penn State Law Website.)

 
Professor Farmer’s research interests include U.S. and foreign antitrust and trade regulation law, issues of federalism, and comparative competition policy. She has served as a non-governmental adviser and rapporteur for the International Competition Network annual conferences in 2013 (Warsaw), 2011 (The Hague), 2010 (Istanbul) and 2009 (Zurich) and is currently working the Curriculum project on preparing on-line training programs for competition agency lawyers that address investigative techniques, substantive analysis as well as agency prioritization and strategic planning, project management techniques and project evaluation. has written an excellent analysis of the current Chinese interim regulations on standards for simple mergers.

I have included portions of Part IV.  The entire essay may be downloaded through the Social Science Research Network website.

Elements of Law 3.0 Notes and Readings IV-B (The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--How Courts Engage With Law: The Doctrine of Judicial Review--Judicial Authority to "Say What the Law Is")

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law." (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum). The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the first part of section IV of the materials:  IV.B.The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--The Doctrine of Judicial Review--Judicial Authority to "Say What the Law Is".   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

Corporate Policy Divergence--Corporate Social Responsibility and Corporate Human Rights Policies in Transition

 

(Pix (c) Larry Catá Backer 2013)

Gobal civil society elements is gearing up for the upcoming 2013 United Nations Forum on Business and Human Rights, of the Working Group on the issue of human rights and transnational corporations and other business enterprises.  In that connection it might be important to the attendees to consider the extent of the work that lies before any network of international public and private organizations seeking to embed human rights structures within enterprise cultures. In particular, the divergence between corporate social responsibility, increasingly driven by risk management techniques and sensibilities, and human rights in business activity, driven primarily by law and norm structures, may become an important element of business practices in the coming years.  While the UN Guiding Principles suggest the value of risk management as a part of human rights due diligence, it is not clear that CSR and business human rights elements will be speaking the same language for very long.

This was brought home in a recent study of Thomas Singer and Matteo Tonello for the Conference Board, which is entitled, Sustainability Practices: 2013 Edition. (see video).  

Elements of Law 3.0 Notes and Readings IV-A (The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--How Courts Engage With Law: Custom versus Statute: The Norm, The Social Order, The Legal Order)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the first part of section IV of the materials:  IV.A.The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--How Courts Engage With Law: Custom versus Statute: The Norm, The Social Order, The Legal Order.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

From Global Anti-Corruption Structures to Anti-Corruption With Chinese and Now Cuban Characteristics; What can China Teach Cuba?

The issue of corruption has become an important element of both state and international legal efforts. The connection between social, religious, economic and political corruption are well known. See, e.g., Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia. Yale Journal of Law & Feminism, Vol. 17, No. 1, 2005).

 (En China Contralora General Gladys Bejerano expone experiencia cubana Diario Granma, Oct. 25, 2013)

Political corruption has also been the object of international management. For example, the OECD Anti-Bribery Convention establishes legally binding standards to criminalize bribery of foreign public officials in international business transactions and provides for a host of related measures that make this effective.   (See OECD Country reports on enforcement of the Anti-Bribery Convention). The United Nations Convention Against Corruption (came into force 2005),  focuses on political and economic aspects of corruption in the public sphere; "It calls for preventive measures and the criminalization of the most prevalent forms of corruption in both public and private sectors. And it makes a major breakthrough by requiring Member States to return assets obtained through corruption to the country from which they were stolen." (Kofi Annan, Forward to UNCAC), p. iv).  The UNAC complements another landmark instrument, the United Nations Convention against Transnational Organized Crime, which entered into force in 2005.

For all states, structurally enhanced corruption can erode the legitimacy of the governmental system of a state.  In Marxist Leninist states, such structural corruption might also erode the legitimacy of the leadership of the Communist Party within such system's.  This post considers recent efforts to institutionalize systemic structures to monitor and reduce corruption in Cuba on the Chinese model.

Gearing Up for the 3rd Plenum of the Central Committee of the 18th Chinese Communist Party Congress

The third plenum of the Central Committee of the Chinese Communist Party has historically been a platform for announcing substantial reforms.

 ("The top of Beijing’s Great Hall of the People during the 18th Communist Party Congress on Nov. 13, 2012,"  From Dexter Roberts, "How China May Lose a Chance for Reform," Bloomberg Business Week, Oct. 11, 2013, Photograph by Feng Li/Getty Images)

"The CPC has a tradition of proposing key changes in third plenary sessions since 1978 when the third plenary session of the 11th CPC Central Committee decided to implement reform and opening up, ending decades of seclusion." ("Xinhua Insight: Why the CPC's third plenary session is important," Xinhua, August 30, 2013; also Ryan Ong, The Third Plenum of the 18th Chinese Communist Party Congress: A Primer, China Business Review, October ).

Since the 1990s, China has twice launched landmark policies to perfect its model of a socialist market economy. The third plenum of the 14th Central Committee in 1993 made the key decision to build a socialist market economy. A decade later, at the third plenum of the 16th Central Committee in 2003, party leaders agreed to improve and perfect it.

This year, we have reason to expect government leaders will take the next step. After building the basics of a socialist market economy, China must now turn its attention to its wider economic, political, cultural, social and ecological environment, and institute comprehensive, holistic reform for all. ("Why Xi's APEC Summit Remarks Are Being Misinterpreted," Caixin Online, Sept. 16, 2013).

The Chinese state information organs for some time have gone out of their way to suggest a planned progression, a scientific development, originating in the 3rd Plenum work of the Party since the beginning of the Deng Xiaoping era.

According to Professor Chang Xiuze of the Macroeconomic Research Institute of the National Development and Reform Commission, the third plenary sessions of the 11th, 12th, 14th and 16th CPC Central Committees all played a key role in China's structural economic reforms. They mark four stages of structural reform: the start-up stage, the implementation stage, construction of the framework of a socialist market economy, and full implementation of the socialist market economy. ("Milestones of reform: 30 years of 3rd Plenums," China,.org, Oct. 8, 2008).

This post considers some of the issues that may be the object of the upcoming 3rd Plenum, scheduled for early November, 2013.

Vo Nguyen Giap Dies at 102--On the Importance of People's War and New Style Warfare in an an Era of Globalization and Privatization

(Vietnam holds state funeral for General Vo Nguyen Giap, BBC News Online, October 12, 2013)

General Vo Nguyen Giap has died at the age of 102. "The death of wartime General Vo Nguyen Giap has triggered public mourning in Vietnam as 150,000 people lined up to pay respects to the so-called “Red Napoleon.” The sendoff for Giap, organised by the ruling Communist Party emphasised his leadership in wars first against France and then United States." Heather Saul, "Vietnam holds state funeral for General Vo Nguyen Giap," The Independent, October 12, 2013. He was responsible for the defeat fo the French at the Battle of Diên Bin Phû in 1954v and was North Vietnam's defense minister when the Tet Offensive took place against US forces in 1968.

General Giap's most famous victories are far back in the past. He lost many battles too, but understood the power of national pride in an old civilisation humiliated by colonialism - that people would endure colossal sacrifices for the goal of independence. The outpouring of emotion for this ruthless, idealistic general is in many ways driven by nostalgia for the values of that simpler age of heroic struggle, so unlike today's Vietnam. (Jonathan Head; Analysis,  BBC News, Hanoi, from Vietnam holds state funeral for General Vo Nguyen Giap, BBC News Online, October 12, 2013)

That contrast was emphasized by some press reports. "The Communist Party would like Gen Giap's death to remind the Vietnamese of its role in fighting for national liberation, he adds, but it will also bring home to many just how far a party tainted by corruption and nepotism has fallen from the ideals it once espoused." Vietnam holds state funeral for General Vo Nguyen Giap, BBC News Online, October 12, 2013.

But beyond the contrasts between the struggles of Vietnam's revolutionary period and contemporary Vietnam, Giap's legacy should be understood as centered on his ability to refine the ideal of "total war" first suggested in a limited way by the principal combatants of the Second World War into a concept that could be used to redefine the strategies and parameters of warfare into the 21st century.  Most important, in this respect, was Giap's influence on the ability of non-state actors to participate in warfare as effectively as well equipped states. That might explain strategic interventions from the al-Qaeda's strategic choices to the efforts of Edward Snowden in the development of a global strategy to attack the power of states.  (e.g., Ruminations 50: Edward Snowden and Polycentric Global Governance Orders Beyond the State).

 To that end, this post includes an Interview with Giap (PBS Series on Guerrilla Wars (RealAudio Excerpt)) and  the argument of Michael W.S. Ryan, "The Jihadist Legacy of Vietnam’s General Vo Nguyen Giap," The Jamestown Foundation, October 15, 2013.

2013 United Nations Forum on Business and Human Rights--Forum Documents Available

The upcoming Second Annual United Nations Forum on Business and Human Rights, of the Working Group on the issue of human rights and transnational corporations and other business enterprises, will be held in Geneva 2-4 December 2013. 

"[T]he Forum aims to serve as a key annual venue for stakeholders from all regions to engage in dialogue on business and human rights, and to strengthen engagement towards the goal of effective and comprehensive implementation of the Guiding Principles. By bringing together relevant stakeholders, the Forum aids in identifying trends, challenges and good practices in the implementation of the Guiding Principles by States and business enterprises, as well as by other stakeholders, including challenges faced in particular sectors, operational environments or in relation to specific rights or groups." (Concept Note Prepared by the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/HRC/FBHR/2013/3 (24 Sept. 2013) ) at p. 2)

The draft program may be accessed HERE.

Additional documents prepared for the Forum may be accessed here:

• Provisional agenda and annotations
  E F S R A C
• Background note by the Secretariat
  E F S R A C
• Concept note prepared by the Working Group on the issue of human rights and transnational corporations and other business enterprises
  E F S R A C

Norway Sovereign Wealth Fund--Recent Exclusions From the Investment Universe for Violations of Environmental CSR and Human Rights Principles; New Use of Active Ownership Principles

On October 14, 2013, the Norwegian Ministry of Finance has issued a press release on its decision on exclusion and observation of several companies.

(Pix from Matthew Price, Norway: Is world’s largest sovereign wealth fund too big?, BBC News Online, September 11, 2013)

The excluded companies are:
WTK Holdings Berhad
Ta Ann Holdings Berhad
Zijin Mining Group Co Ltd.
Volcan Compañia Minera
Zuari Agro Chemicals Ltd.

Four were excluded on the basis of an assessment of the risk of severe environmental damage. The last, Zuari Agro Chemicals Ltd. was excluded based on an assessment of the risk of contributing to the worst forms of child labor.

Most interesting is the decision by the Ministry of Finance to invoke the NSWF's active shareholder rules, that is to use its private power as a corporate shareholder, to raise issues about mining related environmental damage with the company AngloGold Ashanti.  On the use of active ownership principles and investment universe exclusion rules to further a project of global CSR and human rights governance by the NSWF, see Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets, American University International Law Review 29:-- (forthcoming 2013).

The press release and relevant links follow.

The Emerging Forms of Chinese Anti-Corruption Institutions

Xi Jingping has been moving aggressively to reform the operations of the Chinese Communist Party over the last year. Particularly important has been his efforts to bring politics back into the CCP and to assert, in a more public and open way, the leadership role of the CCP in the eveolution of the principles and rules through which  the political, social, and economic goals of the Chinese state are to be realized.  

 ("Xi Jinping calls for greater austerity with 'eight rules' on official behaviour."  hi  Jiangtao, Xi Jinping's guidelines to cut back extravagance go into effect Provinces agree to heed new party chief's call for greater austerity but sceptics question who has the authority to enforce new rules, South China Morning Post, Oct. 10, 2013; Photo: Xinhua)



To that end, it has been necessary to confront the issue of corruption within the CCP, and to an equal extent, its reflection in the action of administrative officials  at all levels of government. The CCP indicated the importance of this issue in Hu Jingtao's last Report to the 18th CCP National COngress in November 2012.

And the whole Party is confronted with increasingly grave dangers of lacking in drive, incompetence, being out of touch with the people, corruption and other misconduct. We should steadily improve the Party's art of leadership and governance; and increase its ability to resist corruption, prevent degeneration and ward off risks – this is a major issue the Party must solve in order to consolidate its position as the governing party and carry out its mission of governance. (Hu Jingtao, Report to the 18th CCP National Congress, Nov. 2012, at Part XII). 

Now we begin to see some of the manifestation of this work of developing institutional structures to strengthen the CCP apparatus and better discipline its cadres. This post provides a report by Shan Gao, an SJD candidate at Penn State's Law School of some of the most recent efforts to institutionalize CCP anti-corruption efforts.

Elements of Law 3.0 Notes and Readings III-D (Institutional Architecture of Law and Governance: The United States and Law Making--The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we continue to consider section III of the materials:  III.D. Institutional Architecture of Law and Governance:  The United States and Law Making--The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

Elements of Law 3.0 Notes and Readings III-C (Institutional Architecture of Law and Governance: The United States and Law Making--The States and the People; Popular Referenda

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we continue to  consider section III of the materials:  III.C. Institutional Architecture of Law and Governance:  The United States and Law Making--The States and the People; Popular referendums.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

Invitation to Contribute to the Association for the Study of the Cuban Economy Blog and Recent Posts on Cuban Monetary Policy

The Association for the Study of the Cuba Economy (ASCE) is a non-profit, non-political organization that pursues the study of Cuba in a broad sense, with particular emphasis on the financial, economic, social, legal and environmental aspects of Cuba today and its process of transition and reforms. The opinions expressed in this site are those of the authors, and do not reflect the views or positions of ASCE or its members. It has launched a blog with excellent posts on the political economy of contemporary Cuba,  

This post includes links to recent posts and a call for contributions for those interested in Cuban economic matters.

Elements of Law 3.0 Notes and Readings III-B (Institutional Architecture of Law and Governance: The United States and Law Making--The Administrative Branches: The Non-Delegation Doctrine, An Introduction)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we continue to consider section III of the materials:  III.B. Institutional Architecture of Law and Governance:  The United States and Law Making--The Administrative Branches: The Non-Delegation Doctrine, An Introduction.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.