Venkatesh Nayak on the "Ability of Banks in India to Avoid Disclosure Under the Right to Information Act"--National and Public Interest Trumps Individual Interest in Disclosure; Whither Accountability?A Lesson for the US?

(Pix © Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has written a report on the recent Supreme Court of India case, Reserve Bank of India v. Mistry (Dec. 16, 2015), considering the extent of mandatory transparency in the Indian banking sector under India's Right to Information Act.

The main issue that arises for our consideration in these transferred cases is as to whether all the information sought for under the Right to Information Act, 2005 can be denied by the Reserve Bank of India and other Banks to the public at large on the ground of economic interest, commercial confidence, fiduciary relationship with other Bank on the one hand and the public interest on the other. If the answer to above question is in negative, then up to what extent the information can be provided under the 2005 Act. (Reserve Bank of India, supra ¶ 1)

This post includes a brief analysis of the opinion and Mr. Nayak's report plus links to Reserve Bank of India. It focuses on what may be the novel position of the Court that individual rights under the Constitution are inferior to those of the "public" (individuals aggregated) which are represented by the state organs and whose interests can be protected against disclosure to individuals.

白轲。关于中华人民共和国慈善法（草案）的评论

(Pix © Larry Catá Backer 2015 )

作者简介： Larry Catá Backer，中文名，白轲。宾夕法尼亚州立大学W.理查德和玛丽.埃谢尔曼学者、法学教授、国际事务教授。他的研究领域集中在宪法与行政法，包括社会主义国家宪法、全球化及全球化在一国治理和体制秩序上所造成的影响等相关议题。他的著作包括法律语言符号学，比较宪法、法律与宗教方面的宪法。他目前正在完成的研究是美国法律理论、法理理论与跨国法和法律构造。白轲教授已经有许多作品发表在中国。白轲教授的联系方式是：239 Lewis Katz Building, University Park, PA 16802. 电话：1.814.863.3640. 电子邮箱：lcb911@me.com

English version here

Daisuke Takahashi on "Japanese Lawyers' Engagement to Avoid the 'Lost in Translation' Effect on Business and Human Rights"

(Daisuke Takahashi )

It was my great pleasure to participate at a Workshop on Corporate Social Responsibility and Regulation: Comparative Perspectives, held at the Law Faculty of the City University of Hong Kong and sponsored by them and the Copenhagen Business School, held December 15, 2015.  (See here for the program).

One of the highlights of the workshop was the discussion about the evolution of CSR in Japan (see, e.g., here).  Daisuke Takahashi's presentation,  "Japanese Lawyers' Engagement to Avoid the 'Lost in Translation' Effect on Business and Human Rights,"provided an excellent discussion of those changes and of the efforts of the Japanese Bar to embed CSR sensibilities in Japanese corporate practice. Mr. Takahashi is the Vice Chair of the CSR Team of the Japanese Federation of Bar Associations (since 2013), and an Expert Committee Member, Japan CSR Promotion Association (since 2012).

Mr. Tahahashi has very kindly given me permission to share his presentation slides.  They follow below. 

As you review the slides that follow, one might focus on both the "Yakuza Elimination Clause" and the "CSR Clause.  Consider as well their utility for the internal governance of enterprises.The first represents an important innovation in ethical operation.  But it represents only a first step--more difficult will be its incorporation into the structures of internal corporate governance.  The second embeds a core objective of global business and human rights efforts--the harmonization and coherence of conduct standards flowing down the production chain.
 

Ruminations 59: The Transnationalization of Politics, Civil Society and National Regulatory Responses

(Pix © Larry Catá Backer 2015)

I have been writing about recent efforts to manage civil society by states.  I have considered China's recent release of its draft Foreign NGO law (see, e.g., here and here; and  here for my Commentary on the Draft), and its Charity Law (here). I have also examined ideas about the character of emerging forms of civil society in Cuba (here).  

These efforts are parts of a larger movement toward the management of civil society (here).  have suggested that the reflex toward management of NGOs is 

part of a larger global efforts by states to resist internationalization of politics and retain a greater control of their own internal development within the logic of the politician systems on which they are founded. Russia and Cambodia, for quite distinct reasons have also sought to manage their civil societies more to the liking of the political elites who run those states. The latest state to consider more extensive management of civil society is Kazakhstan, which seeks to deploy the administrative techniques of registration and funding to better align the behavior of civil society to the interests of the state apparatus." (Managing Civil Society--Next Generation NGO Laws and Resistance to the Internationalization of Civil Society and its Normative Elements Oct. 10, 2015)

And indeed, one can understand the move toward the management of NGOs in even broader terms.  It represents a counter by states against what they see as the trans-nationalization of politics.  That trans-nationalization runs parallel to the trans-nationalization of economic enterprise, represented by the globalization of production and supply chains.  In a world in which production chains represent the most advanced forms of globalized economic regimes--regimes that exist beyond the state--it should come as no surprise that politics would seek to catch up.  

Jason Buhi on "What Hong Kong and Macau can learn from Portuguese autonomous regions"

(Pix © Larry Catá Backer 2015)

China continues to develop its constitutional relationship with its special administrative zones--principally Hong Kong and Macao.  These serve as the laboratory for the development of a sustainable one country two systems policy.  The exploration continues.  Recently, Chinese officials began a more sustained exploration of the Portuguese system for administering its autonomous regions. Raquel Carvalho and Kathy Gao, "Beijing chairman of Hong Kong's basic law committee takes a look at Portuguese democracy: Li Fei visits sunshine isle of Madeira to find out how autonomous regions that elect their own legislatures work with the Lisbon government," South China Morning Post (Dec. 6, 2015) ("In a week that has seen a former top Hong Kong judge call for discussions to start on the SAR's post-one country, two systems future, the Sunday Morning Post has learned that Li, secretary general of the National People's Congress Standing Committee and chairman of the Hong Kong Basic Law Committee, was on a mission to find out how two tiny autonomous regions relate to Portugal's central authorities in Lisbon.").

Indeed, it "is uncertain to what degree Beijing could replicate Madeira’s model of governance in Hong Kong or Macau. However, an examination of the constitutional differences between the PARs and SARs may shed more light on a possible constitutional revision." Scholars ask if Beijing will adopt Madeira-style rule for SARs, Macao Daily Times, December 15, 2015 ("Wang Yu, an associate professor at the One Country Two Systems Research Centre at the Macau Polytechnic Institute, said that Li’s visit signals Beijing’s possible intentions to “use [Portugal’s] system as a reference for ‘one country, two systems’.”").

Jason Buhi, who has focused his research on Maco's constitutional situation, has recently produced a thoughtful essay on the current exploration of the "Portuguese Model" and its relevance to the development of China's constitutional One country two systems policy. He suggests that the constitutional status of the Azores and Madeira, Portugal’s ‘ultraperipheries’, can be a fruitful source of comparisons and contrasts for Hong Kong and Macau’s relationship with Beijing.

The essay, which appeared recently in the South China Morning Post as  Jason Buhi, What Hong Kong and Macau can learn from Portuguese autonomous regions, South China Morning Post, December 12, 2015 (Comment/Insight/Opinion), follows.  Jason Buhi is a member of the Maryland (US) Bar Association, a PhD candidate at the University of Hong Kong, and lecturer at Peking University School of Transnational Law in Shenzhen.

FIFA's Responsibility to Respect Human Rights--John Ruggie to Report in March 2016 on Incorporation of the UN Guiding Principles for Business and Human Rights to Sports League

(Pix © Larry Catá Backer 2015)

Fédération Internationale de Football Association's (FIFA)s scandals are by now well known.

Fifa, football's world governing body, has been engulfed by claims of widespread corruption since summer 2015, when the US Department of Justice indicted several top executives.

FifA's president Sepp Blatter has always denied any wrongdoing - but in September, he too was made the subject of a Swiss criminal investigation, launched alongside the US inquiry.

The scandal erupted in May, with a raid on a luxury hotel in Zurich and the arrest of seven Fifa executives - conducted at the behest of the US authorities.

In May the US indicted 14 current and former Fifa officials and associates on charges of "rampant, systemic, and deep-rooted" corruption following a major inquiry by the Federal Bureau of Investigation (FBI).

And in December, 16 more officials were charged following the arrest of two Fifa vice-presidents in at the same hotel in Zurich. Former Brazil football federation chief Ricardo Teixeira was among those accused of being "involved in criminal schemes involving well over $200m (£132m) in bribes and kickbacks". Fifa corruption crisis: Key questions answered, BBC News Online Dec. 3, 2015

Does FIFA have autonomous responsibility to respect human rights in its activities?  Does FIFA have a responsibility to engage in substantial human rights due diligence respecting the operations of all entities (and states) with which it deals in connection with its activities? If banks are increasingly understood to have a responsibility to respect human rights in the context of its lending activities ought sports leagues to bear that same responsibility, and if so to what extent?  These are the questions that now face the architect of the U.N. Guiding Principles for Business and Human Rights as John Ruggie is tasked to formulate "human rights requirements for World Cup hosts and sponsors of the scandal-tarnished governing body."  (Associated Press, Human Rights Requirements for World Cup Hosts, FIFA Sponsors,  The New York Times, Dec. 15, 2015).  By March 2016, he "will provide a report in March showing how business and human rights principles he conceived for the United Nations can speedily become part of FIFA's statues." (Ibid).

"The State of CSR in the United States"--Workshop on Corporate Social Responsibility and Regulation: Comparative Perspectives, City University of Hong Kong

(Pix © Larry Catá Backer 2015)

It was my great pleasure to participate at a Workshop on Corporate Social Responsibility and Regulation: Comparative Perspectives, held at the Law Faculty of the City University of Hong Kong and sponsored by them and the Copenhagen Business School.  

The Workshop was notable for a number of reasons.  First, it is becoming clear that the traditional approaches to CSR, and to the discursive language of business and human rights, are proving increasingly ill fitting within the environment of states in which the middle and lower levels of production chains are situated.  That makes the job of civil society, labor, and even of business and governmental officials that much harder.  Harder still is the choice that civil society, international organizations, and business are studiously avoiding--the need to embed issues of corporate social responsibility--of the full social, economic, and cultural costs of business activity on the financial performance of companies.  

For civil society this has been unacceptable because it suggests that human rights can be costed, and built into risk assessments of business--that business might be free to make the determination that human rights wrongs may be acceptable when its costs (even when fully paid) are less than the profit that might be made.  That is impossible for organizations that have staked their projects on the notion that rights may not be compromised (and that compensation is a weak and dangerous invitation to degrading human dignity).  

For business the possibility of incorporating the costs of human rights wrongs, the possibility of fully costing corporate social responsibility within its financial statements (staring perhaps with their statements of income) is likely viewed with equal horror.  Regularization of CSR within the accounting of business activity would finally expose the full costs of CSR failures--or worse expose the way that governments have foisted costs of corporate activity onto society--that the failure of incorporating CSR into accounting standards constitutes one of the greatest hidden subsidies of corporate activity which is borne by taxpayers. 

For intergovernmental organizations the possibility of embedding the human rights risks of business behavior appears central to the Guiding Principle for Business and Human Rights.  Yet it suggests that the second pillar corporate responsibility to respect human rights--and its grounding in business custom, societal normative structures and the discipline of market risks and reputation--can be more effective than the traditional structures of law.  The old system--one based on territoriality constituted political states issuing commands in the form of regulations and statutes  appears as useful as a horse drawn carriage on the autobhan. And yet, beyond the Guiding Principles, and the OECD's efforts through its Guidelines for Multinational Enterprises, appears to be all they know. But that focus provides as much a means of avoiding human rights obligations as it permits companies to continue to avoid shouldering the true costs of the production by evading their CSR responsibilities. 

The Workshop program follows below.

My presentation,  The State of CSR in the United States touches on the points I raised above.  The PowerPoints of that presentation can be accessed here.

Virgilio Mendoza on "Will Chavismo finally kill off democracy in Venezuela? And will the international community just stand by and watch?"

(flaglane.com)

Those who tend to manage public perception in the United States tend to view Latin America, and determine the scope of coverage, through a quite peculiar lens.  Americas enjoyed a few "media  cycles"of coverage of the normalization of relations with Cuba--but that was a drama more than half a century in the making (here). Mexico is valuable to mine for stories of drugs and migration (e.g., here).  Most of Central America becomes interesting to our press either when its children stage a mass migration or there is a need to deal with  political instability, narcotics and crime. Latin America is more remote.  We move from  new model democracies, Chile and Columbia, to our pariah states, Venezuela and Ecuador.  One rarely hears about Brazil except when they thwart regional trade deals (the Free Trade Area of the Americas) or when political scandal reaches higher office holders (here), or when industrial accidents occur (here).   Argentina becomes interesting usually only in the sectoral press-- especially when it engages in sovereign borrowing it will not repay (here). 

But from a political, societal and economic perspective, and since the beginning of this century, Venezuela has merited a substantial amount of attention.  It's efforts to develop something like a nationalist and socialist polity, and to enlarge that nationalist socialism in concert with neighboring states, has proven to be a decisive factor in the shape, scope and direction of development for the North of South America and much of Central America (see, e.g., here).  Under the leadership of Hugo Chavez, this move toward Cuban style European Marxist Leninist  political and economic organization appeared unstoppable.  

But Hugo Chavez died young in 2013 (here), and with him, that effort to advance European style Marxist Leninist nationalist socialism might be dying with it. With his death, Chavismo itself became an object of political contestation.  This possibility was enhanced as Venezuela's partnership with Cuba and other regional states, once significant, has deteriorated along with the value of petroleum.  The Venezuelan economic sector remains a battlefield as market based private sectors battle the encroachment of centrally planned state sectors. 

It in this context that Venezuela's recent parliamentary elections proved so important for the future of the character of the politics of that Republic as democratic in its Western sense or continue its evolution into a Latin American style Marxist Leninist  state with European characteristics.  It is in that context that my friend Virgilio Mendoza offers his very thoughtful and provocative essay, Will Chavismo finally kill off democracy in Venezuela? And will the international community just stand by and watch? .  It follows below.

Prof. Yoshiki Kurumisawa--Closing Ceremony Remarks, International Conference on the “Rule of Law and Judicial Reform” (中国社会科学院以及社科院法学所主办的2015年12月11-12日“法治与司法改革”国际学术会议)

(Pix © Larry Catá Backer 2015)

On 11-12 December, the Chinese Academy of Social Sciences (CASS) hosted the International Conference on the “Rule of Law and Judicial Reform”  (中国社会科学院以及社科院法学所主办的2015年12月11-12日“法治与司法改革”国际学术会议), which was  organized by the CASS Institute of Law.  

Conference participants shared a number of quite valuable papers touching on conference themes. The conference program can be accessed here.

Prof. Yoshiki Kurumisawa, Dean of Law School, Waseda University (早稲田大学), delivered excellent closing remarks that nicely captured the proceedings.  He was kind enough to share them and they follow below.

New Paper Posted: Global Corporate Social Responsibility (GCSR) Standards With Cuban Characteristics: What Normalization Means for Transnational Enterprise Activity in Cuba

(Pix © Larry Catá Backer 2015)

At the 25th Annual Meeting of the Association for the Study of the Cuban Economy, I was fortunate enough to participate in a panel on "International Economic Topics" (see here).

I have just posted the paper from that presentation: Global Corporate Social Responsibility (GCSR) Standards With Cuban Characteristics: What Normalization Means for Transnational Enterprise Activity in Cuba.  The paper considers some of the ramifications of Cuba's normalization of relations with the United States.  In the paper I try to think about what normalization might mean for Cuba in the context of its re-engagement in global economic activity.  Much has changed since the 1960s, and Cuba has been instrumental in crafting the new normative economic order.  But it remains detached.  What happens when it seeks to attach itself in a world in which emerging normative systems of business and human rights may not be wholly in sync with the ideological parameters and practices of the Cuban state?  That presents some complex issues that I try to identify and explore, at least in a preliminary way.

Links to the PowerPoint used for the presentation may be accessed here.

The abstract follows and may be accessed via SSRN HERE.

Comments and discussion welcome.

白轲：为什么说党内“双规”合乎宪法？

白轲：为什么说党内“双规”合乎宪法？
2015-12-05 白轲 凤凰网大学问

编者按：“双规”一词出于《中国共产党纪律检查机关案件检查工作条例》中第二十八条第一款第三项，“要求有关人员在规定的时间、地点就案件所涉及的问题作出说明”。它是检察机关调查前党内调查和人身限制的措施。关于“双规”和宪法以及刑事诉讼法等相关法律之间的关系，一直是令人困惑的问题。本文便是对这一问题的分析和评价。

作者白轲(Larry C.Backer)是美国宾夕法尼亚大学法学教授，国际关系学院教授。他以全球视野来打破学科间的壁垒，致力于从广义上理解法律和人类组织之间的关系。本文由白轲教授的助理王可任翻译。

 

Ventatesh Nayak on Sri Lanka’s Draft Right to Information Bill, 2015 (Commonwealth Human Rights Initiative’s (CHRI) Preliminary Comments & Key Concerns)

(Pix (c) Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has been writing about Sri Lanka's current efforts to legislate transparency regimes.  The Commonwealth Human Rights Initiative has produced an analysis of the current draft version of the Act, which follows, along with Mr. Nayak's discussion of the context in which this legislation arises. 

Rule of Law, the Chinese Communist Party Basic Line, and Judicial Reform (法治，中国共产党基本路线原则，以及司法改革): Presentation at "Rule of Law and Judicial Reform" Conference organized by Chinese Academy of Social Sciences in Beijing

(Pix © Larry Catá Backer 2015)

It was my great honor to have been invited to participate in an upcoming conference hosted by the Chinese Academy of Social Sciences (CASS) and organized by the CASS Institute of Law to take place 11-12 December 2015 in Beijing:  International Conference on the “Rule of Law and Judicial Reform”  (中国社会科学院以及社科院法学所主办的2015年12月11-12日“法治与司法改革”国际学术会议). 

The conference program follows along with the PowerPoints, in English and Chinese, of my presentation: Rule of Law, the Chinese Communist Party Basic Line, and Judicial Reform (法治，中国共产党基本路线原则，以及司法改革)

Looking Toward the 2016 UN Forum on Business and Human Rights: Information, Videos, Interviews and Reports

2016 UN Forum on Business and Human Rights

Date:	14-16 November 2016
Location:	Palais des Nations, Geneva, Switzerland
	More information about the 2016 Forum will be provided in the coming months.
Contact:	General inquiries: forumbhr@ohchr.org

With the end of the 2015 UN Forum on Business and Human Rights, the Working Group Secretariat has posted some useful information going forward.  I share some of that here.

	Forum videos and photos:
	On the Forum web page, you can now find videos of the plenary sessions and some of the other UN-led sessions (more will be uploaded in the coming weeks). Photos from the event are available at the UN Human Rights Flickr account until 20 December.

Welfare and Insecurity in Europe in an Age of Austerity; Readings From the Oñati Socio-Legal Series

(Pix © Larry Catá Backer 2015)

The International Institute for the Sociology of Law (IISL) in Oñati is devoted to teaching and promoting the sociology of law, socio-legal studies, and law and society research. The IISL is a joint venture of the Research Committee on Sociology of Law (also known as RC12 of the International Sociological Association) and the government of the Basque autonomous region in Spain and is hosted by the University of Oñati.

IISL is noted for its  Socio-Legal Series, the current issue of which caught my eye.  It offers a series of papers that consider welfare and insecurity in Europe in an age of austerity.  Entitled "Social Responses to the Crisis and the Precarization of Life Conditions in Contemporary Society;" it is edited by Benjamín Tejerina (Universidad del País Vasco-Euskal Herriko Unibertsitatea). The table of contents and links to the papers appear below.

Foundation for Law and International Affairs (FLIA): Commentary on Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案)（征求意见稿）

Chinese authorities have invited commentaries on the Draft of the People's Republic of China Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案） (征求意见稿）, which they have circulated earlier this year. I had posted my preliminary commentary earlier (see here) and noted that it was part of a larger set of integrated comments that represent the efforts of the Foundation for Law & International Affairs (FLIA).

The Foundation for Law and International Affairs (FLIA) is an independent, nonpartisan, nonprofit organization mandated to promote academic and public discourse at the intersection of law and international affairs. The core vision of FLIA is to promote international cooperation and public dialogue through the development of new ideas and collaboration with various academic, governmental and civil society actors. Our mission is to facilitate international scholarly activities, conduct high quality, independent research and policy analysis, engage in public education and awareness-building programs, as well as amplify the voice of the rising global generation through free and open sharing of ideas. (See here)

FLIA's commentary, submitted to government officials, consists of the following, all of which may be accessed through the links provided below:

COVER LETTER and GENERAL COMMENTS 

(FLIA and Larry Catá Backer)

TECHNICAL COMMENTS 

(Jędrzej Górski, Zhu Shaoming, Flora Sapio)

My Commentary on Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案)（征求意见稿）

 

  (Pix © Larry Catá Backer 2015 )

Chinese authorities have invited commentaries on the Draft of the People's Republic of China Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案） (征求意见稿）, which they have circulated earlier this year.

I have included my commentary to the Draft Charities Undertakings Law, which follows. Considered from the perspective of the CCP line the Draft Charities Undertakings Law offers both challenge and opportunity. The key areas that merit further consideration include provisions dealing with corruption protection, the voluntary nature of service on charitable organizations and the role of foreign NGOs. These comments form part of a larger set of integrated comments that represent the efforts of the Foundation for Law & International Affairs (FLIA), which will be posted tomorrow.

The Charity Undertakings Law (draft) overall presents an important advance in Chinese rule of law. It is an important measure dealing with an issue tied closely to the direction and shape of socialist modernization, and as such, touches on sensitive matters requiring leadership from the Communist Party, especially as the CCP “unswervingly encourages, supports and guides the development of the non-public sector”(CCP General Program (GP) ¶ 14). My comments are focused on a reading of the draft Charity Undertakings Law both for coherence and for conformity to the Chinese Communist Party Basic Line. “The general starting point and criterion for judging all the Party's work should be how it benefits development of the productive forces in China's socialist society, adds to the overall strength of socialist China and improves the people's living standards” (GP ¶ 9).

The Commentary may be downloaded HERE and read below.

The Draft Charity Law may be accessed HERE.

From the Human Rights Clinics at Harvard and Columbia Law Schools: " Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned"

Last week, the human rights clinics at Columbia and Harvard Law Schools—released a report called Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned. The report is a result of our three-year study of Barrick Gold’s response to rapes by its security guards at its Papua New Guinea gold mine site. The report’s lead authors are Sarah Knuckey, Lieff Cabraser Associate Clinical Professor of Law and Director of the Human Rights Clinic and Co-Director of the Human Rights Institute, Columbia Law School, and Tyler Giannini, Clinical Professor and Co-Director of Harvard Law School’s Human Rights Program and its International Human Rights Clinic.

The Report is available at www.rightingwrongsporgera.com (and can be downloaded HERE). We thought it might be of interest to some of you to use in your classrooms when discussing remedies and non-judicial mechanisms.

The report examines a range of issues, including the adequacy of the remedies, the implications of legal waivers in such contexts, and security and accessibility concerns. The mechanism provided 120 rape survivors with some counseling and healthcare as well compensation (less than $6,000 USD for each survivor). Despite the gross power imbalance between the company and the women, in order to receive the remedy packages, the women also had to waive their legal rights to sue the company. Concerns about the process were heightened this year when eleven women who were able to obtain U.S. lawyers were, in a separate process, given approximately ten times greater remedies.

The report is designed to draw out both positive aspects associated with such remedial efforts as well as concerns such mechanisms raise when dealing with serious human rights violations. The report looks to draw broader lessons learned for companies and the international community about non-judicial company-created grievance mechanisms.

The Clinics welcome your thoughts and comments.

Just Published: "The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform"

(Pix © Larry Catá Backer 2015)

With normalization of relations between the United States and Cuba, it becomes even more important to understand the basis of the political and legal system of Cuba  It is long past the time for political bromides and sloganeering to serve as a palatable substitute for rigorous analysis of the realities, in theory and application, of the premises and frameworks within which Cuban leaders understand and approach the issues that face them.  Indeed, in approaching issues of Cuban policy and governance, it is essential to be careful to strip analysis of the usually overwhelming need, in studies of Cuba outside of that Republic, for statements that either fawn on the current regime or assume, without more, its illegitimacy. This is particularly true with respect to investment regimes that present both opportunities and danger for the Cuban state and investors. And it is especially important with respect to Cuba, a fairly unique Marxist Leninist state regime.

I have just published one small effort toward understanding the context in which these policy issues must be considered. Larry Catá Backer, "The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform," Northwestern Interdisciplinary Law Review 8:71-129 (2015).  

The Abstract and Table of Content follow.  The article itself will be available online and for the moment the issue may be accessed here.

Summing Up and Moving Forward, Thoughts on 2015 United Nations Forum on Business and Human Rights

The 2015 UN Forum on Business and Human Rights offered a program that meant to deepen efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. It also sought to engage with the efforts to forge  a platform which which negotiations for a comprehensive treaty on business and human rights might emerge.

My thoughts on prior sessions of the Forum may be found here:

Day 1 morning sessions 

Day 1 afternoon sessions;

Day 2 sessions; and

Day 3 sessions.

What follows are comments and reactions summing up my 2015 Forum experience.

Sara Seck on "The Role of University Education in Implementation of the UN Guiding Principles on Business and Human Rights"

Sara Seck is an Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations. Professor Seck has contributed several important essays to this blog site (see here, here, here, and here).

Professor Seck and I were privileged to attend the U.N. Forum on Business and Human Rights. Professor Seck has produced an important essay relating to the work of the United Nations in strengthening and deepening its Guiding Principles for Business and Human Rights in an area that lamentably could profit from greater attention. She notes: "While education of professionals within the business and legal community is clearly crucial, the role of universities in implementation has not received similar attention. In this light, it is interesting to see the emergence of a global educational initiative at the United Nations, called United Nations Academic Impact" and wonders "whether all universities have a responsibility to educate for implementation of international human rights law and the UNGPs." I agree (see, e.g., here).

The essay, The Role of University Education in Implementation of the UN Guiding Principles on Business and Human Rights, follows.

2015 United Nations Forum on Business and Human Rights--Day 3 Sessions: State Owned Enterprises, Supply Chains, and Overarching Trends and Challenges

The closing day of the 2015 UN Forum on Business and Human Rights continued its engagement with the core themes of this year's meetings--measurement, supply chain responsibilities,progress in national action plans, and the connection with the accelerating progress toward the negotiation of a comprehensive treaty on business and human rights.  The UN Guiding Principles themselves served as the centering framework around which these themes played themselves out. The closing high level plenary offered glimpses into the thinking of elites from certain sectors.

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

My thoughts on prior sessions of the Forum may be found here:

Day 1 morning sessions 

Day 1 afternoon sessions; and 

Day 2 sessions.

What follows are comments and reactions to the third day sessions.

2015 United Nations Forum on Business and Human Rights--Day 2 Sessions: Institutional Foundations, Enterprise Engagement and the Problem of Representing Downstream Supply Chain Stakeholders

The second day of the 2015 UN Forum on Business and Human Rights continued its offerings of multiple tracks that were meant to engage the broad spectrum of participants in attendance.  The 2015 program deepened efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework.The day was marked by the formal plenary, consisting of a series of addresses by high level personages and then a series of more intimate conversations among a number of key actors designed to bring out their engagement with the UNGP. 

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

This post considers impressions on the evolution of the traditional opening of the formal portion of the Forum through its Opening High Level plenaries in light of the 6 themes of the 2015 Forum: (1) assessment metrics (tracking performance), (2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks,  (3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise,  (4) Corporate compliance (human rights due diligence and supply chain "issues"),  (5) systemic breakdowns (threats to human rights defenders), and (6) access to remedy.  Curiously absent, though perhaps not surprising given the cultures of international organizations--issues of interpretive coherence.  We appear to be in a period of letting a thousand flowers bloom.  That is good, perhaps, in such a young field conspicuous by even the pretense of consensus.  Yet its absence even as a thematic matter ought to trouble--whether one is committed to the UNGP or merely to the "Protect, Respect and Remedy" Framework (and its progeny some sort of comprehensive treaty on business and human rights).

Thoughts on the first day sessions may be found here: morning sessions and afternoon sessions.

What follows are comments and reactions to the second day sessions.  

2015 United Nations Forum on Business and Human Rights--Day 1 Afternoon: From Labor Exploitation, to Supply Chain Regulation, to the Privatization of State Duty to Financial Institutions

The first day of the 2015 UN Forum on Business and Human Rights offered a dual track palette of offerings that were meant to engage the broad spectrum of participants in attendance.  The 2015 program deepened efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. At the same time, an under current might suggest divergences between the official and majority position, reflected in the efforts of the Working Group, and those of others who might see a distinction between the ongoing project of deepening and broadening the UN "protect, Respect, and Remedy" Framework, and the the UN Guiding Principles themselves. That distinction, increasingly heard in some quarters, is quite telling and marks a potentially significant evolution that remains true to some version of the form of the efforts through 2011 but provides distance between that Framework and the Guiding Principles themselves. That distinction might be a cause of worry, especially in the context of the sub-textual issues of a comprehensive treaty on business and human rights.

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

This post considers impressions on the evolution of the traditional opening of the formal portion of the Forum through its Opening High Level plenaries in light of the 6 themes of the 2015 Forum: (1) assessment metrics (tracking performance), (2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks,  (3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise,  (4) Corporate compliance (human rights due diligence and supply chain "issues"),  (5) systemic breakdowns (threats to human rights defenders), and (6) access to remedy.  Curiously absent, though perhaps not surprising given the cultures of international organizations--issues of interpretive coherence.  We appear to be in a period of letting a thousand flowers bloom.  That is good, perhaps, in such a young field conspicuous by even the pretense of consensus.  Yet its absence even as a thematic matter ought to trouble--whether one is committed to the UNGP or merely to the "Protect, Respect and Remedy" Framework (and its progeny some sort of comprehensive treaty on business and human rights).

What follows are comments and reactions to the first day afternoon sessions.  

2015 United Nations Forum on Business and Human Rights--Day 1 Morning: Assessment, Prestige Markets and the Marketing of the Project

The first day of the 2015 UN Forum on Business and Human Rights offered a dual track palette of offerings that were meant to engage the broad spectrum of participants in attendance.  The 2015 program deepened efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. At the same time, an under current might suggest divergences between the official and majority position, reflected in the efforts of the Working Group, and those of others who might see a distinction between the ongoing project of deepening and broadening the UN "protect, Respect, and Remedy" Framework, and the the UN Guiding Principles themselves. That distinction, increasingly heard in some quarters, is quite telling and marks a potentially significant evolution that remains true to some version of the form of the efforts through 2011 but provides distance between that Framework and the Guiding Principles themselves. That distinction might be a cause of worry, especially in the context of the subtextual issues of a comprehensive treaty on business and human rights

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

This post considers impressions on the evolution of the traditional opening of the formal portion of the Forum through its Opening High Level plenaries in light of the 6 themes of the 2015 Forum: (1) assessment metrics (tracking performance), (2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks,  (3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise,  (4) Corporate compliance (human rights due diligence and supply chain "issues"),  (5) systemic breakdowns (threats to human rights defenders), and (6) access to remedy.  Curiously absent, though perhaps not surprising given the cultures of international organizations--issues of interpretive coherence.  We appear to be in a period of letting a thousand flowers bloom.  That is good, perhaps, in such a young field conspicuous by even the pretense of consensus.  Yet its absence even as a thematic matter ought to trouble--whether one is committed to the UNGP or merely to the "Protect, Respect and Remedy" Framework (and its progeny some sort of comprehensive treaty on business and human rights).

What follows are comments and reactions to the first day morning sessions. 

Blog series on measuring implementation of UN Guiding Principles on business & human rights: "The Measure of . . . . Things--Measurement First Principles and the Business and Human Rights Assessment Project"

(Pix © Larry Catá Backer)

Measuring Business & Human Rights launched a blog series on how to assess and track implementation of the UNGPs.

Contributors were asked to address the following questions:

How can we measure progress in the implementation of the UNGPs? What are the most daunting challenges and/or the most promising solutions?
Do you see progress in the implementation of the UNGPs? If so (or if not), what is the evidence in support of your argument?

See contributions below on a daily basis, leading up to the UN Forum on Business and Human Rights HERE.  I will also take a stab at the questions

International Conference: Rules for the Market and Market for Rules. Corporate Law and the Role of the Legislature ; 13-14 Nov. 2015

(Pix © Larry Catá Backer 2015)

I am happy to report on the International Conference--Rules for the Market and Market for Rules: Corporate Law and the Rule of the Legislature, which was held 13-14 November, 2015.  It celebrated the 60th Anniversary of the Rivista delle Societa. My congratulations to my colleague Marco Ventoruzzo on his participation in this great event. It marks an interesting engagement with global forces that will substantially alter the way in which we think about economic enterprises within transnational production chains beyond the power of either enterprises or states to manage (e.g., here, and here).

The Conference program and conference note note follows. 

2015 United Nations Forum on Business and Human Rights--Program Materials

 

I have been writing about the United Nations Forum on Business and Human Rights. (see here, here, here, and here). The Forum has been an important site for the meeting of key international stakeholders who tend to control the discussion about business and human rights in the international sphere. If for no other reason, that is reason enough for sustained attention to its proceedings. 

The Forum begins this coming Monday.  It will be an interesting marker of evolution--from an initial encounter with the new UN Guiding principles for Business and Human Rights, through lat year's focus on "Alignment, Adherence and Accountability", to the current focus on  "Tracking Progress and Ensuring Coherence."  All of this will be taking place in the shadow of efforts to either undermine, supplement or supplant the UN Guiding Principles in and through discussions of a comprehensive treaty for business and human rights (see my take here). That fugue--between Guiding Principles and Treaty will likely play out in subtle but significant ways over the course of the three days of the Forum (2 official days and a day set aside for sanctioned side events). 

I will be reporting on my assessment of the Forum, as I have done in years past.  For this post I include the introduction to the Conference program.  The link to conference speakers (me included) may be accessed here.

Additional informaiton:

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

The Problem With Quantitative Analysis is Fundamental Incomparability--Fernandez, et al. on "Huge Dispersion of the Risk-Free Rate and Market Risk Premium Used by Analysts in 2015"

(Pix © Larry Catá Backer 2015)

As policy within the economic and political spheres becomes more "evidence based" it is useful to remember that while a number may serve as a proxy for something approaching an absolute value, the meaning of that number (or combinations of numbers--data) is a far less certain exercise.  Both the generation of data and its analysis remain highly problematic exercises, in which subjective intent, and the possibility of manipulation, are in tension with the psychology of data as representing something absolute.  Thus the value of data is that is provides robust evidence of something, but the danger of data is its deployment for the proof that something exists.  One can always find data to prove that something "is so."  Decisions about the choice of data, and the premises that are used to transform raw data into conclusions about the "things" data represents or evidences, are all to temptingly subjective affairs.  (See, e.g., here).

In a  recent essay, Fernandez, Pablo and Ortiz Pizarro, Alberto and Fernández Acín, Isabel, Huge Dispersion of the Risk-Free Rate and Market Risk Premium Used by Analysts in 2015 (October 31, 2015) the authors describe a related and difficult issue--the problem of comparison across data sets.  This problem both illustrates the way that assumptions can substantially alter conclusions about the meaning of data, but also suggest that comparisons of data may become impossible where underlying assumptions differ. More importantly, these sometimes large differences in underlying assumptions that color the "meaning" of data, can have enormous effects on the solidity of the evidence necessary to support evidence based policy, especially in the context of macro-economic planning.

The abstract and links to the essay follow. 

Zehra Cayiroglu Essay: "Being a Muslim from the eyes of the world within America"

I have the privilege of teaching students from all over the world in my class at the Penn State School of International Affairs. One of my students, Zehra Cayiroglu, recently wrote a thoughtful essay, Being a Muslim from the eyes of the world within America originally posted on October 11, 2015 as a CNN iReport, part of an assignment: I am a Muslim in America.

It follows below.

New Paper Posted: "Are Supply Chains Transnational Legal Orders?: What We Can Learn from the Rana Plaza Factory Building Collapse"

(Pix © Larry Catá Backer 2015)

The collapse of the Rana Plaza factory building in in 2013 exposed not just the structural weakness of the factory building, but also the structural weaknesses of traditional ways of understanding and invoking regulatory authority. But how? The collapse, and its consequences, then, might be understood as uncovering the complex interweaving of national law, international standards and private governance standards that together might be understood as a transnational legal order that affects on business behavior, and state regulatory activity both within and beyond its borders. Or it might be understood as a reflection of patterns of rough consensus around the logic of the societal systems in which even states now operate. Or might be understood to serve as a disciplinary and socialization technique, a means of managing and gap filling among communities of states?

I have prepared an essay--Are Supply Chains Transnational Legal Orders?: What We Can Learn from the Rana Plaza Factory Building Collapse--uses the circumstances of the Rana Plaza factory building collapse and its aftermath as the starting point for an examination of possibilities of generalizing theory from circumstances. The object is to use deep case analysis to consider a fundamentalist question--are supply chains now a transnational legal or governance order?

The abstract follows and may be accessed via SSRN HERE.

Comments and discussion welcome.

Daniel Augenstein on "Free Trade, Football and Beer: What’s in for Human Rights?"

My friend and colleague Daniel Augenstein is Associate Professor in the Department of European and International Public Law at Tilburg University. He presently works as a Senior Humboldt Research Fellow at the Wissenschaftszentrum Berlin on a monograph on business and human rights. Contact: D.H.Augenstein@uvt.nl.

Professor Augenstein has been at the forefront of intellectual movements in law and society for a number of years. His research focuses on human rights in their national-constitutional, trans-national and international contexts. It inquires the potential and limitations of effective human rights protection in a globalised world where different domestic, European and international human rights regimes become increasingly interconnected. His writings are always worth reading carefully.

He has recently produced a fascinating essay for Law at the End of the Day: "Free Trade, Football and Beer: What’s in for Human Rights?" It appears below.

New Paper Posted: A Lex Mercatoria for Corporate Social Responsibility Codes without the State?: On the Regulatory Character of Private Corporate Codes

(Pix © Larry Catá Backer 2015)

The legalization of the societal sphere accelerates as the logic of economic globalization becomes better established in interactions between and among states, enterprises, and individuals. Nowhere is the project of legalization more apparent than in the context of the legal effects of the social obligations of enterprises. This legalization of CSR has taken a number of forms. Yet all of them point to a singular end--to embed corporate social obligation within the domestic legal orders of states.

I have prepared an essay that considers some of these issues: A Lex Mercatoria for Corporate Social Responsibility Codes without the State?: On the Regulatory Character of Private Corporate Codes.

The abstract follows and may be accessed via SSRN HERE.

Comments and discussion welcome.

Indonesian Company PT Astra International Tbk Placed Under Observation (Severe Environmental Risks) by the Norwegian Pension Fund Global (SWF) Investment Universe

(Wikipedia Commons; Black lory (Chalcopsitta atra), Gembira Loka Zoo, Yogyakarta 2015-03-15;Crisco 1492 )

The Norwegian Sovereign Wealth Fund has announced that it will be putting a company under observation for severe environmental risks) in a context in which the usual approach had been the exclusion of such companies from its investment universe. This Press Release from Norges Bank for the Norwegian Sovereign Wealth Fund

Today, Norges Bank has published its decision to place the Indonesian company PT Astra International Tbk under observation because of the risk of the company being responsible for severe environmental damage associated with the conversion of tropical forest into oil palm plantations.

On 15 January 2014, the Council on Ethics recommended the Ministry of Finance to exclude the company PT Astra International Tbk.

On 1 January 2015 new Guidelines for Observation and exclusion from the Government Pension Fund Global came into force. As set out in the new Guidelines, the Council on Ethics shall submit recommendations on the exclusion or observation of companies to Norges Bank. In its recommendation to the Bank dated 23 June 2015, the Council on Ethics updated its previous recommendation and recommended the observation of the company. The Council writes:

“The Council on Ethics for the Government Pension Fund Global (GPFG) recommends that PT Astra International Tbk be placed under observation due to the risk that the company may be responsible for severe environmental damage. The observation relates to the company’s plantation operation in Indonesia. On 11 June 2015, Astra announced that it would immediately be ceasing all logging and land conversion while developing a new sustainability strategy. The company has also stated that it will avoid deforestation in future. In view of the company’s previous policy and uncertainty as to the material impact of the change in the company’s strategy, the Council has concluded that the company should be placed under observation. The Council recommends an observation period of four years to allow the progress and impact of the company’s new policy to be assessed.”

Please find Norges Bank’s decision here http://www.norges-bank.no/en/Published/News-archive/2015/2015-10-13-company-under-observation/

Please find the Council’s recommendations here http://etikkradet.no/en/recommendation-from-2014-and-2015-on-the-exclusion-and-observation-of-pt-astra-international-tbk/

The post includes some thoughts on the decision and the Summary portion of the Ethics Council Recommendation. This action may represent a potentially substantial change in action outlook by the Norwegian SWF (compare IJM Corp Bhd, Genting Bhd, POSCO and Daewoo International Corp Excluded from Norwegian Sovereign Wealth Fund).

Managing Civil Society--Next Generation NGO Laws and Resistance to the Internationalization of Civil Society and its Normative Elements

(Pix © Larry Catá Backer 2015)

I have been posting about China's recent release of its draft Foreign NGO law (see, e.g., here and here; and  here for my Commentary on the Draft). My point was that civil society, and especially civil society that operates in one state with funds provided by another, or that represent a local branch of a transnational civil society enterprise, could be helpful, and indeed instrumental, in moving local society forward, but only along the path that society has chosen for itself.  When civil society moves from developing productive forces, or monitoring the effectiveness of governments to do as they have promised, then civil society runs the risk of response from governments that might be sensitive to foreign pressure for political reform.  Flora Sapio put is best in the Chinese context:

Foreign funded NGOs are talking to the Party-state, and the Party-state is listening and responding to them. The message that comes to the Party-state – rather than the whims of individual Party secretaries – is what determines its response. If the message is seen as threatening, the Party-state's response will be defensive, and we know how states defend themselves by arresting or expelling those who are seen as posing a threat to them, even though the threat may often be more imagined than real. Voicing a trivial demand to install more public toilets by referring to the political system of the US or the EU will likely result in an angered response by the state, because the choice of such demands and language carries definite implications. (Flora Sapio on the Chinese Draft Foreign NGO Management Law (中华人民共和国境外非政府组织管理法（草案）（二次审议稿).

But the Chinese response to NGO activity is best viewed in a broader context, and as part of a larger global efforts by states to resist internationalization of politics and retain a greater control of their own internal development within the logic of the politician systems on which they are founded. Russia and Cambodia, for quite distinct reasons have also sought to manage their civil societies more to the liking of the political elites who run those states. The latest state to consider more extensive management of civil society is Kazakhstan, which seeks to deploy the administrative techniques of registration and funding to better align the behavior of civil society to the interests of the state apparatus. 

This post considers the Kazakh NGO law, and the international response to it, int he context of the power balances that these efforts may represent--not just for alignments of power within states, but also for the consequences for the development of global systems of monitoring and disciplining transnational economic activity.