Tuesday, December 29, 2015

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.

Sunday, December 27, 2015


(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

Saturday, December 26, 2015

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

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.

Thursday, December 24, 2015

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.  

Tuesday, December 22, 2015

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.

Monday, December 21, 2015

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).

Sunday, December 20, 2015

"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.

Saturday, December 19, 2015

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

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.

Friday, December 18, 2015

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.

Sunday, December 06, 2015

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.

Saturday, December 05, 2015


2015-12-05 白轲 凤凰网大学问


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. 

Friday, December 04, 2015

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). 

Tuesday, December 01, 2015

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.