Newsletter from John Knox, Independent Expert on human rights and the environment

John H. Knox, UN Independent Expert on Human Rights and the Environment and Henry C. Lauerman Professor of International Law has been advancing his mandate.  (See HERE)

 

 (John Knox)

 

Professor Knox recently provided a report of his activities in his role as U.N. Independent Expert, which I have re-posted here. 

On Corporate Personhood: Attorney-Client Privilege, Corporate Stakeholders and Transactions in Corporate Control in the U.S.

One of the most contentious and complicated emerging issues of corporate law in the United States is the issue of attorney client privilege when it is asserted by an entity.  The difficulty, of course, stems from the reality that though the entity (usually a corporation) is an autonomous legal person, it may act only through others, usually natural persons in positions of authority (board members or officers) with whom the attorney interacts. This affects not merely business enterprises, but is at the heart of civil and criminal cases involving other enterprises--for example state assisted universities. Mike Dawson, "Judge to consider whether Cynthia Baldwin represented Penn State or Graham Spanier in Sandusky case," Centre Daily Times, Dec. 18, 2013.

Read more here: http://www.centredaily.com/2013/12/18/3948448/judge-to-consider-whether-cynthia.html#storylink=cpy

(Pix (c) Larry Catá Backer 2013)

A particularly interesting issue arises when the underlying ownership of the autonomous enterprise passes from one group to another, resulting in changes in management. The issue was recently considered by the Delaware Chancery court in  Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLP, C.A. No. 7906 (Nov. 15, 2013) (Del. Ch.).  The opinion in that case, written by, Chancellor Strine, is bound to have a substantial influence on the ongoing judicial discussion of attorney client privilege in the context of entity representation in general, and more specifically, on the practices of lawyers in managing control of that privilege in the context of corporate transactions. It is also a great lesson in record keeping in the current environment of digital records.

Though the extent and application of the normative choices made by Chancellor Strine may be questioned, and strongly (e.g., Tekni-Plex, Inc. v. Meyner & Landis, 674 N.E.2d 663 (N.Y. 1996)), the influence of the opinion is less likely to be challenged.  The opinion is also remarkable for its aggressive insistence ("The lady doth protest too much, methinks." Hamlet act III, scene II) of the use of a plain meaning rule of statutory construction in an area where the meaning and application of the statutory framework is anything but clear.  (On the distinctions between formalism and functionalism in statutory Interpretation see HERE). But in the end, the most interesting aspect of the case is the way in which law is understood as open textured enough to permit private governance through contract.  Chancellor Strine's narrow and tightly woven legalism expands the corporate law's more open textured structures, within which private governance regimes may be constructed in the shadow of and beyond law, to statutory behavior and expectation management rules.

This post includes a brief framework for consideration the case, the text of  Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLP, C.A. No. 7906 (Nov. 15, 2013) (Del. Ch.) and some practical analysis of the consequences of the case publicly circulated by leading U.S. lawyers and law firms.

Just Pre-Published On Line--"The Basis for the Legitimacy 正当性 of the Chinese Political System: Whence and Whither? Dialogues among Western and Chinese Scholars"

Philip C. C. Huang, Professor Emeritus (History) and the founding director of the Center for Chinese Studies at the University of California, Los Angeles from 1986 to 1996 has produced a constitutionalism symposium that focuses on emerging frameworks for understanding the Chinese constitutional state both within and outside China. In addition to Professor Huang's masterful Introduction, the symposium includes contributions of  Jiang Shigong (Peking University), Wang Hui (Tsinghua University), and me (Penn State University).

("Modern China (MCX), peer-reviewed and published bi-monthly, is an indispensable source of scholarship in history and the social sciences on late-imperial, twentieth-century, and present-day China. For more than 30 years MC has presented scholarship spanning the full sweep of Chinese studies and based on new research or research that is devoted to new interpretations, new questions, and new answers to old questions.")

As Professor Huang notes in his Introduction, "The issue under discussion in this symposium volume is the basis for the “legitimacy”正当性 of the contemporary Chinese political system, from whence it came and whither it might go [for which] we must seek to understand Chinese constitutionalism on its own terms, by its own logic."

The symposium has now been “pre-published online” in Modern China Online First, by which forthcoming articles are published online before they are scheduled to appear in print. The formal paper version in Modern China will be out early March 2014. This post includes links to all of the symposium papers (available now to those with access to Sage publications) and abstracts of the contributions.

SEC Announces Rule Proposal on Regulation A+

This from the California Corporations Section e-Bulletin (Dec. 19, 2013):

 (Pix (c) Larry Catá Backer 2013)

 SEC Announces Rule Proposal on Regulation A+

At today’s Open Meeting, the Securities and Exchange Commission (SEC) voted to propose rules intended to increase access to capital for smaller companies. Because these rules build upon Regulation A, the exemption created by the new rules is commonly known as “Regulation A+”. The proposed rule amendments would create two tiers of offerings:
--Tier 1 – offerings of up to $5 million in a 12-month period, including up to $1.5 million for the account of selling security-holders (already covered by Regulation A);
--Tier 2 – offerings of up to $50 million in a 12-month period, including up to $15 million for the account of selling security-holders.

Companies who elect to proceed under either Tier 1 or Tier 2 would be subject to basic eligibility and disclosure requirements similar to the existing provisions of Regulation A. Additionally, the proposed rules would implement certain other recent securities laws updates, including permitting companies to submit draft offering statements for nonpublic SEC review prior to filing, permitting companies to use “testing the waters” solicitation materials and requiring electronic filing of offering materials.

The SEC’s press release and fact sheet on the proposal can be found here and below.  The proposed rule can be found here. A 60-day comment period will commence upon publication in the Federal Register.  While the sentiment is certainly worthy, it may appear to those with more than a passing interest that this opening up  may be, in functional terms, less than it appears.  The problem remains--how does one bend the now complex architecture of disclosure for the protection of securities markets to the public policy of reducing the resulting costs of capital to enterprises that might have little access to it.  The more difficult question, and one that continues to evade exposure, is whether that architecture itself might benefit from rethinking.

 

 

Part XXXI (31) Zhiwei Tong (童之伟) Series: "Totalitarian Personality and Bo Xilai's Poliitcal Failure"

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. The Series continues.

The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao, Bo Wang, and Zhichao Yi for their able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXXI) we translate (via Bo Wang):
--Totalitarian Personality and Bo Xilai's Political Failure  (Aug. 24, 2013).

 

Article Published: "Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets"

My article, "Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets" has just been published and will appear in the American University International Law Review 29(1):1-122 (2013).  My thanks to Mary Grinton, the Volume 29 Editor in Chief for an excellent volume.

(Enda Curran, "Norway’s Oil Fund Doubles Up Down Under," Moneybeat Wall Street Journal, March 13, 2013)

This article builds on earlier work both on the Norwegian sovereign wealth fund architecture and on  sovereign investing more generally.  It suggests that states, like corporations and civil society actors, are turning to social norms and societally constituted governance frameworks to effect changes to the behavior norms and customs of business enterprises, and that sometimes this form fo governance may be more effective than traditional lawmaking.  Norway appears to mean to transpose international norms into state policy, and to transpose state policy into the governance cultures of corporations.  This may represent an important new means of extending state power extraterritorially without invoking legal regimes and in furtherance of a coherent international framework for business behavior.

The abstract and introduction of my article follow. A pre-publication version of the article may be accessed HERE.

Part XXX (30) Zhiwei Tong (童之伟) Series: "The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance"

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. The Series continues.

The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao, Bo Wang, and Zhichao Yi for their able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXX) we translate (via Bo Wang):
-->The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance (Sept. 22, 2013).

Three Approaches to Regulating Corporate Governance: State Regulation Through Law; Market Regulation Through Mandatory Transparency and State Intervention as an Active Shareholder--The Example of Capping Executive Pay

(Pix (c) Larry Catá Backer 2013)

States and the international community have been moving toward one of three distinct approaches to regulating corporate governance.  The first and most traditional involves direct regulation through  the domestic legal order of states.  It is the most effective, but only to the extent that the regulated community is trapped within the territory of the regulating state. The second involves control of corporate governance indirectly through state control of markets for information.  The idea here is that investor tastes will determine the viability of corporate behavior and states may signal approval or disapproval through mechanics of disclosure. The last escapes the public regulatory sphere in favor of markets.  Here the state becomes a private investor in enterprises in which they assert the ordinary rights of influential investors to change corporate behavior like an ordinary owner. This approach privatizes regulation or inserts the state into the private sphere in new and innovative ways. 

The resulting fracture in approaches suggests the complications of regulation in the 21st century and suggests the ways in which multiple layers of overlapping regulation, each with distinct boundaries, may be shaping a polycentric governance universe in this century. More importantly, this fracturing of approaches is having real time effects in contemporary controversies over the regulation of corporate conduct with respect to specific issues. One of the hottest issues of corporate governance in recent years has been that of the growing gap between the pay of the highest and lowest paid employees of enterprises.   

This post considers how the emerging "schools" of corporate governance management, direct control through state law, indirect control through mandatory transparency regimes, and private control through active shareholding may affect the current debates over the regulatory intervention of the state in the market for corporate talent, and specifically in the context of the current debate about controlling executive pay.

The 2nd U.N. Forum on Busness and Human Rights Live Streaming and Thoughts on Trends in Managing Business Behaviors

The plenary sessions of the 2013 UN Forum on Business and Human Rights, held in Geneva on 2–4 December are being streamed.

Watch the plenary sessions of the Forum - Live streaming.

At the 2nd U.N. Forum on Business and Human Rights--Reflections on Bilchitz and Deva (eds) "Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?"

In a prior post I noted the then 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. (e.g., 2013 United Nations Forum on Business and Human Rights--Forum Documents Available).

I have the delightful privilege of serving as a commentator at one of the side events of this Forum, the book launch of The Human Rights Obligations of Business:  Beyond the Corporate Responsibility to Respect? (Surya Deva and David Bilchitz, eds., Cambridge University Press, 2013).  This event takes place on Monday 2 December 2013 in the Library Events Room (B-135) Building B, 1st Floor at the U.N. HQ in Geneva.  The work is important and deserves critical engagement at the highest levels for the reasons I elaborate below.

This post includes my review of The Human Rights Obligations of Business from which I will draw the comments I will make at that book launch.

“Polycentricity in South Asian Human Rights Law": Presentation at the Asian Society of International Law 4th Biennial Conference, New Delhi, India

The Asian Society of International Law has just concluded its excellent 4th Biennial Conference, held this year in New Delhi, India this past 14-16 November 2013 and hosted this year by the Indian Society of International Law. 

The Conference theme this year, “Asia and International Law in the 21st Century: New Horizons” drew a host of excellent papers and discussions over the course of three days. The call for papers described the conference theme:

Governments, scholars, and civil society in Asia are actively engaged in all facets of the development and implementation of contemporary international law. Asia's leading powers are no longer "emerging" but have emerged. There is, nevertheless, great diversity around the region. While countries in the Asian region may regard certain issues as of particular concern to them, those issues are generally also of great moment in other regions and/or at a global level. This conference will seek to share perspectives on emergent dimensions of international law from around the Asian region, broadly defined, and from beyond.

A number of great papers were presented.  The Conference Schedule can be accessed here.

I was grateful to have been able to present my paper at that conference: Polycentricity in South Asian Human Rights Law: On the Strategic and Simultaneous Use of Multiple Sources of Law to Advance Human Rights Against MNCs in South Asia. My thanks to Surya Deva (City University Hong Kong School of Law) for organizing a great panel.

A summary of the paper follows.

The PowerPoint of my presentation 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

(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.

This post makes the end of the lecture note series.  It includes the TABLE of CONTENTS for the Lecture Notes as I have developed them over the past semester.  These will serve as the core of materials that I will continue to use to introduce U.S. Law and Legal Theory to students.  It remains very much a work in progress and and open access project. Comments and suggestions always welcome.

Elements of Law 3.0 Notes and Readings IV-E(2) (The Role of the Courts: Constitutional Interpretation; A Special Case? Contemporary Theorizing)

(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 the last part of section IV of the materials:  IV.E.The Role of the Courts: Constitutional Interpretation, A Special Case? Contemporary Theoretical and Academic Approaches   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 IV-E (The Role of the Courts: Constitutional Interpretation; A Special Case?)

(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.E.The Role of the Courts: Constitutional Interpretation, A Special Case?   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.

Central CPC Inspection Tour Working Process--Developing Mechanisms for Supervision and Monitoring of Anti-Corruption Efforts in China

I have been considering the ways in which the Chinese Communist Party has been evolving its institutionalization of anti-corruption mechanisms (e.g., The Chinese Communist Party's New Anti-Corruption Rules--Small Weddings and No New Years Cards, 11-7-2013; From Global Anti-Corruption Structures to Anti-Corruption With Chinese and Now Cuban Characteristics; What can China Teach Cuba?,10-25-2013; The Emerging Forms of Chinese Anti-Corruption Institutions,10-10-2013). These movements are likely to become more significant especially after the just concluded 3rd Plenum.  

(Pix (c) Larry Catá Backer 2013)

For this post my SJD student, Shan Go has prepared a short discussion of a recently concluded first round inspection that targeted key provinces.  

Just Published: "Transnational Corporations' Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc."

My article, "Transnational Corporations' Outward Expression of Inward Self-Constitution:  The Enforcement of Human Rights by Apple, Inc." has just been published and will appear in the Indiana Journal of Global Legal Studies 20(2):805-879 (2013).  

(Pix (c) Larry Catá Backer 2013)

The article is part of a great collection of articles exploring a variety of issues of societal constitutionalism, that is the move toward constitutionalism beyond the nation-state, that were edited by Gunther Teubner and Anna Beckers, and which grew out of a conference that brought together legal. political and social science scholars to a conference in Turin, Italy in may 2012. A video of the conference introduction may be accessed HERE. For an introduction to the articles that grew out of the conference, see Gunther Teubner and Anna Beckers, "Expanding Constitutionalism," 20 Ind. J. Global Legal Stud. 20(2):523-550 (2013). 

After an introductory section defining the agenda, the second section scrutinizes the recent move of constitutionalism beyond the nation-state.  The move toward a new constitutional pluralism goes into two different directions--the "transnational" and the "societal."  The third section deals with the spatial and temporal dimensions of the new constitutional phenomena.  In the fourth section, "constitutional subjects,"  the contributions search for societal equivalents to the political idea of "We the people," and identify transnational normative orders, multinational corporations, and global social movements as potential candidates.  Finally, the fifth section, "constitutional arenas," focuses on the constitutional processes and the specific characteristics of constitutional norms in various fields. (Teubner and Beckers, supra, at 540).

The abstract and introduction of my article follow. A pre-publication version of the article may be accessed HERE.

A video of my conference presentation may be accessed HERE.

Elements of Law 3.0 Notes and Reading IV-D (The Role of the Courts: Stare Decisis in Constitutional Cases and Under State Law)

(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 another part of section IV of the materials:  IV.D. The Role of the Courts: How Courts Engage With Law: Stare Decisis in Constitutional Cases and Under State Law.   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.

Regulations on the Operation of the Party School of the Chinese Communist Party and Comparison With the Chinese Academy of Governance

We have been considering the Party School of the Chinese Communist Party.  It plays an essential role in undertaking the political work fo the Party and broadening and deepening its ideological base. 

(Pix (c) Larry Catá Backer)

In considering the operating regulations of the CPC Party School we also sought to distinguish it from the Chinese Academy of Governance (a public servant training institution previously named the China National School of Administration).  It and the Party School are very similar institutions with unique roles under Party State Structure.  Indeed, the separate organization of the two schools--one focused on education in political leadership, and the other focusing on the role of the administrative apparatus of government--reflect the fundamental separation of powers at the heart of the Chinese constitutional system (e.g., Backer, Larry Catá, "Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System," Boston University International Law Journal, Vol. 30, 2012.

We have included a translation for the Party school regulation rule by Shan Gao, an SJD student at Penn State University. We have also included a comparison chat between the Parrty School and the Academy of Governance, prepared by Shan Gao. The focus of the comparison is on the similarities and differences in administration, funding, education degree program and leadership.  In the process one can better understand the fundamental ordering premises of the construction of the Chinese constitutional state and the way in which those premises are institutionalized and deepened through training.

From the Conference Board: 2013 Listing of Shareholder Proposal Subjects

 
(Pix (c) Larry Catá Backer 2013)

This from Matteo Tonello and our friends at the Conference Board:

• Shareholder proposal subjects (November 18, 2013)
• Shareholder proposals on proxy access (November 4, 2013)
• Majority-supported shareholder proposals (October 28, 2013)

The issue of shareholder proposals may indicate those issues currently of importance to at least activist shareholders and may also suggest movement in social expectations of corporate behavior among institutional investors. For civil society elements interested in using shareholder activism to deepen engagement of corporations with issue sof adverse human rights impacts these chars may provide some information about the ways those strategies are being shaped.I would be interesting as well to see how many of these were initiated  or supported by sovereign investors. (e.g., Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets, American U. International Law Revoiew 29:'' (forthcoming 2013)

Wikileaks Reveals a Draft of the Trans-Pacific Partnership Agreement Text

The profound effect on transparency (if only serendipitously one sided for the moment) of the episodic revelations from Edward Snowden's cache of information continues unabated.  (e.g.,Ruminations 50: Edward Snowden and Polycentric Global Governance Orders Beyond the State).

(Pix from Wikileaks Press Release 11-13-2013)

A few days ago Wikileaks revealed the text of the much sought after draft of the Trans Pacific Partnership.  For early press reaction see, e.g.,  Alex Herne and Dominic Rushe, "WikiLeaks publishes secret draft chapter of Trans-Pacific Partnership," The Guardian, Nov. 13, 2013; James Legge, "WikiLeaks publishes Trans-Pacific Partnership draft agreement," The Independent, Nov. 14, 2013.

The text of the Press Release dated November 13, 2013, announcing the leak and the link to the TPP Draft agreement draft offered up for inspection follow.  My analysis of the strategic implications of TTP and its importance may be accessed here: Larry Catá Backer, "The Trans-Pacific Partnership: Japanese Strategic Diplomacy or Chinese Containment," Washington University Global Studies Law Review, 13(1):-- (forthcoming, 2013).

A Conversation About Polycentricity in Governance Systems Beyond the State

-->

 (Pix (c) Larry Catá Backer 2013)

I have been writing about the rise of polycentricity in governance for several years now.   (e.g., Larry Catá Backer, "Dynamic Societal Constitutionalism: Transnational corporations’ outward expression of inward self-constitution: The enforcement of human rights by Apple, Inc.", Indiana Journal of Global Legal Studies 20:-- (forthcoming 2013);  "Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems", in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization 87-123 (Günther Handl, Joachim Zekoll, Peer Zumbansen, editors, Leiden, Netherlands & Boston, MA: Martinus Nijhoff, 2012); "From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance," McGeorge; "Inter-Systemic Harmonization and its Challenges for the Legal-State", in The Law of the Future and the Future of Law, (Sam Muller, Stavros Zouridis, Laura Kistemaker and Morly Frishman, eds., Torkel Opsahi Academic Editor, 2011); and a number of posts to this blog.


The focus has been on its emergence as a factor in the way individuals and entities must now adjust their behavior in light of multiple simultaneously applied governance rules and expectations. A subsidiary discussion has been  focused on the effects of polycentircity on governance coherence, harmonization and dissonance  and the cumulative effect of these new governance frameworks on the traditional effectiveness of domestic legal orders to regulate individuals, entities and activities within their borders.

This post includes the transcript of a conversation with Keren Wang, a PhD candidate at Penn State (Communication Arts and Sciences, School of Liberal Arts) about polycentricity as the framework of global governance structures that are emerging. It is meant to provide a more conversational introduction to issues of polycentricity and its relation to what lawyers know (and love) best, the state and the law system attached to it.

Translation into English of CCP's: "Communiqué on the Current State of the Ideological Sphere"

I have been considering some of the issues likely to arise during the 3rd Plenum of the 18th Party Congress. (e.g., Gearing Up for the 3rd Plenum of the Central Committee of the 18th Chinese Communist Party Congress, Oct. 24, 2013;  Considering the Central Committee Politburo Meeting Pointing to the November 2013 Central Committee 3rd Plenum, Sept. 9, 2013).

 (Pix (c) Larry Catá Backer 2013)

It is likely that much effort will be devoted to ideological work.  Much of that effort will likely be misinterpreted outside of China precisely because Chinese politics tends to be interpreted through the assumptions and perspectives of other political cultures. , and that effort will likely be misinterpreted outside of China.  Those misinterpretations will be costly to those states and non-state actors who will press on oblivious to the changing realities within China. 

One potentially important marker of the context within which this ideological work will be elaborated is the so-called Document 9, "Communiqué on the Current State of the Ideological Sphere."  Now the editors of China File have posted an English translation of this Communiqué which may be accessed from their website as HERE as "Document 9: A ChinaFile Translation: How Much Is a Hardline Party Directive Shaping China’s Current Political Climate?" (The Editors; 11.08.13).

Yuta Kawashima on "Post-Fukushima Nuclear World: Proposal for More Robust Global Nuclear Safety Regime"

Yuta Kawashima, my former student at the Pennsylvania University School of International Affairs,  conducts individual research. He previously served as an intern at the Arms Control Association (ACA), where he provided research support.

Mr. Kawashima has been researching issues related to the Fukushima nuclear disaster.  His essay, "Post-Fukushima Nuclear World: Proposal for More Robust Global Nuclear Safety Regime," follows.

The Chinese Communist Party's New Anti-Corruption Rules--Small Weddings and No New Years Cards

I have been considering the recent significant changes to regulations in China touching on corruption and those practices that may create an appearance of or incentives to corruption, especially among Communist Party  officials. 

(Pix (c) Larry Catá Backer 2012)

Shan Gao (Penn State University  SJD candidate) has recently prepared an essay on the way these approaches are now making themselves felt at the provincial level, in this case the efforts in Hunan Province.  Expect more to come. 

Changes in Company Law in China From the Chinese State Council

-->

(Pix: Li liqiang chaired State Council Executive meeting on Oct 25 promoting small business investment and lowering investment cost. http://js.china.com.cn/rdxw/377972.shtml)

 China has been increasingly active in global conversations about corporate governance. (e.g., China-OECD Co-operation in Corporate Governance 2012).  It should come as little surprize, then, that China ids slowly  transposing customs and standards form global markets into its own context so that it might more effectively engage in global commerce. Shan Gao, and SJD candidate at Pennsylvania State University, has provided a short discussion of recent changes to Chinese corporate governance announced recently by the Chinese State Council.

Elements of Law 3.0 Notes and Reading IV-C (How Courts Engage With Law: Theories of Judicial Interpretation)

(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 another part of section IV of the materials:  IV.C.The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation.   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.

Part XXIX—Zhiwei Tong (童之伟) Series: Five Theoretical Issues Should Be Addressed to Restart Political Reforms

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. The Series continues.

The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao, Bo Wang, and Zhichao Yi for their able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXIX) we translate: Five Theoretical Issues Should Be Addressed to Restart Political Reforms

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.