Democracy Part 35: Brexit and Its Consequences--The End of the Emerging Globalized Order or its Affrmation?

(Pix © Larry Catá Backer 2016)

In a prior post I suggested the nature of the consequences when the tension between mass democracy--the notion of popular sovereignty directly or indirectly exercised through the performative act of voting on discrete questions or for representatives in the apparatus of state--and governance is activated through the mechanism of a popular plebiscite. The recent popular vote in the United Kingdom that saw a narrow mandate for a U.K. withdrawal from the European Union points to both the anxiety of globalization by those who feel detached from its and the disjunction between mass democracy and governance by representatives well embedded within global institutions (see here).

Since the last post I have been asked a number of related questions. This post includes brief answers to those questions. A Farsi version of these materials appeared in Jaam-e Jam on July 4, 2016.

Democracy Part 34: Brexit, Mass Democracy and the Contradictions of Voting in Globalization

(Pix © Larry Catá Backer 2016)

There has always been a tension between mass democracy--the notion of popular sovereignty directly or indirectly exercised through the performative act of voting on discrete questions or for representatives in the apparatus of state--and governance. Western political culture adheres strongly to the principle of popular sovereignty, which may be asserted collectively on the body politic itself. Western political culture also embraces, at least in theory, the idea of popular engagement in the work of governance through a complex set of patterns of consultation and participation in the acts of governance that collectively define the state in its relations with the individual and collectively with the masses over which it asserts leadership authority. 

The recent decision to permit a plebiscite on the issue of the continued membership of the United Kingdom in the European Union, popularly known as Brexit,  provides a useful example of the characteristics of the practice of mass democracy in states organized on the basis of representative governance. The full effect of that vote remains to be seen (useful discussion here). At a minimum it might well serve to reignite another mass democratic movement--that for the separation of Scotland from England/Wales (here). 

I leave that discussion to others. This post considers the vote from a quite distinct perspective--that of globalization and its reconstitution of the demos of conventional nation-states.  I suggest here that globalization has fractured states in a number of under-explored ways.  The most significant way on by splitting the populations of states into two quite distinct communities--one heavil8y embedded in global society, mores, economic interactions and cultural conversations.  The other deeply left behind and quite vigorously self reflexive in its reconstitution of the pre-globalized state.  The result is something much more like Japan in the 1870s than the vision (assiduously cultivated by conventional media for and of elites) of a modern unified globally embedded multicultural state with a polity deeply invested in the development of the borderless global intermeshed network of polycentric communities at the heart of globalization.  It was as much the failure of elites to recognize that extent to which their states have become fractured and their inability to anticipate the results that produced, first, the unfortunate idea of a plebiscite, and then the surprise at the results of this invitation to exercise mass democracy that could not be controlled as effectively as the apparatus of state. l

  

My Commentary for the U.N. Forum on Human Rights, Democracy and the Rule of Law - "Widening the Democratic Space: The Role of Youth in Public Decision Making"

(Pix © Larry Catá Backer 2016)

Human Rights Council Resolution 28/14 (9 April 2015) established a Forum on Human Rights, Democracy and Rule of Law. Further to that effort the UN announced its first Forum to be held in Geneva 21-22 November 2016 in Room XVII Palais des Nations. The Forum targets academics, non governmental organizations and experts. Resolution 28/4, and related materials may be found HERE.

The purpose of the Forum is to "provide a platform for promoting dialogue and cooperation on issues pertaining to the relationship between these areas" as well as to identify best practices, challenges and opportunities for states seeking some framework for engaging in the securing of the ideals of human rights, democracy and rule of law. Associated with that Forum is a consultation that is also open to academics and experts. The theme for the first session of the Forum is Widening the Democratic Space: The Role of Youth in Public Decision Making. The Call for consultation, Resolution 28/4, and related materials may be found HERE.

It was Romania's initiative to set up the Forum, which, together with Morocco, Norway, Peru, the Republic of Korea and Tunisia, promoted a resolution to this effect. Also on Romania's initiative, the Human Rights Council adopted its first resolution on human rights, democracy and the rule of law in 2012, resolution which led to this decision. "The forum proposed by Romania will be a single framework within the UN system, for the discussion of best practices and for sharing experiences on the interdependence of human rights, democracy and the rule of law. Romania's creation of this important forum reflects the coherence and consistency of our country's support of UN important projects. The adoption of this resolution in 2015 is even more encouraging now that we are marking 60 years of Romania's membership of the UN". (Mission News, PERMANENT MISSION OF ROMANIA to the United Nations Office in Geneva and the Int'l Organisations in Switzerland)

This post includes my Commentary for the Forum on Human Rights, Democracy and the Rule of Law - Widening the Democratic Space: The Role of Youth in Public Decision Making. It may be downloaded HERE or HERE.

Just Published: "The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century: From Body Corporate to Sovereign Enterprise"

I was happy to report the publication of Multinationals and the Constitutionalization of the World Power System (Jean-Philippe Robé, Antoine Lyon-Caen, and Stéphane Vernac, eds., Routledge (Taylor & Francis Group) 2016) ISBN: 978-1-4724-8292-1 (hbk); ISBN: 978-1-315-596334 (ebk), with a forward by John G. Ruggie. This work is part of the Globalization Law & Policy Series which I edit. (See HERE).

Among the essays published was my own contribution to this excellent conversation-- The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century: From Body Corporate to Sovereign Enterprise (earlier version here). In this chapter  I consider the conception of constitutionalization as a structure for theorizing a space within which constitutionalized entities may interact within the framework that legitimate regulatory agents--the ideological principles of constitutionalism now liberated from its arbitrary confines within the state. I identify the four conventional strands of constitutionalist discourse Constitutionalism provides a framework applicable to any organized group, from States to non-State actors, that seeks to govern itself through an entity autonomous of other entities and of its constituent parts. In globalization, all self-governing groups necessarily interact, as equals or otherwise. There is a need, therefore for a common platform for interaction among bodies corporate, that is for the intermeshing of governance personalities that “bump up” against each other as equals or otherwise. This has an important practical effect, especially in a global order increasingly willingly to privatize lawmaking and governance through multinational enterprises. 

The abstract and introduction follows. Looking forward to engagement in this evolving area.

Just Published: "Multinationals and the Constitutionalization of the World Power System" (Jean-Philippe Robé, Antoine Lyon-Caen, and Stéphane Vernac, eds., with a forward by John G. Ruggie)

I am happy to report the publication of Multinationals and the Constitutionalization of the World Power System (Jean-Philippe Robé, Antoine Lyon-Caen, and Stéphane Vernac, eds., Routledge (Taylor & Francis Group) 2016) ISBN: 978-1-4724-8292-1 (hbk); ISBN: 978-1-315-596334 (ebk), with a forward by John G. Ruggie. This work is part of the Globalization Law & Policy Series which I edit.

The Publisher's Description explains:

This collection offers a powerful and coherent study of the transformation of the multinational enterprise as both an object and subject of law within and beyond States. The study develops an analysis of the large firm as being a system of organization exercising vast powers through various instruments of private law, such as property rights, contracts and corporations.

The volume focuses on the firm as the operational unit of governance within emerging systems of globalization, whilst exploring in-depth the forms within which the firm might be regulated as against the inhibiting parameters of national law. It connects, through the ordering concept of the firm in globalization, the distinct regimes of constitutionalization, national and international law.

The study will be of interest to students and academics in globalization and the regulation of multinational corporations, as well as law, economics and politics on a global scale. It will also interest government leaders and NGOs working in the areas of MNE regulations.

John Ruggie, in his Forward, concludes:

A core argument advanced in this book is that conventional social science understandings of both constitutionalism and of the multinational enterprises are inadequate to fully grasp the ongoing transformation in global governance, and that traditional modes of global governance are inadequate to meeting pressing people and planet challenges. All need to be reimagined and new approaches developed through informed practice.  No comprehensive--let alone final--word is possible at thia time about how to do that. Nevertheless, the authors advance the agenda enormously by pointing in, and exploring, promising intellectual and policy directions.

The articles by Jean-Philippe Robé, Paddy Ireland, Ronen Palan, Elsa Peskine and Stéphane Vernac, Guter Teubner, Jean de Munck, Véonique Champeil-Desplats, Larry Catá Backer, Aontoine Lyon-Caen, Tatiana Sachs, Charley Hannoun, and Christian Chavagneux move us toward a better understanding of thw multi corporate enterprise in the globalized world in which it now operates. 

 
This post includes short bios of the editors, the Table of Contents, and information about the the Globalization Law & Policy Series.
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Consultation - Forum on Human Rights, Democracy and the Rule of Law - Deadline 4 July 2016; Widening the Democratic Space: The Role of Youth in Public Decision Making

(Pix © Larry Catá Backer 2016)

Human Rights Council Resolution 28/14 established a Forum on Human Rights, Democracy and Rule of Law. Further to that effort the UN announced its first Forum to be held in Geneva 21-22 November 2016 in Room XVII Palais des Nations. The Forum targets academics, non governmental organizations and experts. The purpose of the Forum is to "provide a platform for promoting dialogue and cooperation on issues pertaining to the relationship between these areas" as well as to identify best practices, challenges and opportunities for states seeking some framework for engaging in the securing of the ideals of human rights, democracy and rule of law.The United States, in particular, has welcomed this effort.

U.S. Looks forward to First Forum on Democracy, Human Rights and the Rule of Law in 2016

Item 3: Resolution Entitled “Human Rights, Democracy, and the Rule of Law,” A/HRC/28/L.24 General Comment by the Delegation of the United States of America
Human Rights Council 28th Session
Geneva, March 26, 2015

Thank you, Mr. President.

The United States is again proud to co-sponsor this resolution on Human Rights, Democracy, and the Rule of Law at the Human Rights Council. We would like to thank Romania and the other core group members – Morocco, Norway, Peru, the Republic of Korea, and Tunisia – for the open and transparent negotiations they facilitated.

Democracy promotion and rule of law are fundamental to the purpose of the Council. The forum this resolution establishes will make great strides in mainstreaming democracy and rule of law into the UN and Council’s work. It will also serve as a platform for promoting dialogue and cooperation on issues pertaining to the relationship between these topics and affecting societies across the globe.

We look forward to the first forum in 2016 on the theme of “Widening the democratic space: the role of youth in public decision-making,” and to the other forum meetings to come.

The United States will vote proudly in favor of this resolution.

Thank you, Mr. President.

Associated with that Forum is a consultation that is also open to academics and experts. The theme for the first session of the Forum is Widening the Democratic Space: The Role of Youth in Public Decision Making. This may be of interest to some readers.


The Call for consultation, Resolution 28/4, and preliminary information about this new effort to promote democracy human rights and rule of law through the U.N. follows, as does the U.N.'s current web site (with links) on the issue of democracy.

OECD Watch to Governments: "A 4X10 Plan For Why and How to Unlock the Potential of the OECD Guidelines"

June 2016 marks the 40th anniversary of the adoption of the Organization for Economic Cooperation and Development (OECD) Guiding Principles for Multinational Enterprises. Over the course of those 40 years, the MNE Guidelines have become an increasingly important governance framework through which states, enterprises and civil society have sought to "legislate" conduct norms for enterprises--and impose regulatory obligations on states with respect to those norms.

That development, in turn, marks the rise of new structures of regulatory systems that are necessary as the objects of traditional regulation—and increasingly of administrative oversight through regulatory governance mechanisms grounded in objectives, monitoring and assessment-approval systems—have increasingly become impossible to control by any single state, no matter how powerful. But such emerging structures continue to use the language and the sensibilities of the conventional systems that no longer fit the regulatory problem posed by the engagement of enterprises in the construction and exploitation of production chains across the globe. And, like law systems before it, its stakeholders have sought to use this emerging system strategically—states to privatize regulation, enterprises to internationalize conduct obligations in the societal sphere, and stakeholders to launch internationalized hard law embedded in conventional state legal orders.

These tensions and patterns of engagement are very much in evidence in the excellent Report distributed by OECD Watch, an “international network of civil society organisations promoting corporate accountability.” For the 40th Anniversary they have distributed a report: A “4x10” plan for why and how to unlock the potential of the OECD Guidelines. The Report focuses on the state duty to embed the Guidelines within their domestic legal orders—ad on the basis of that premise, the steps that might be taken to ensure that the Guidelines themselves contribute to that result. The Press Release is quite pointed:

In June 2016, the OECD Guidelines for Multinational Enterprises ("the Guidelines)– the OECD’s flagship instrument on responsible business conduct – will celebrate its 40th anniversary. Periodic updates to the Guidelines have sought to keep them relevant and in step with changing times. The most recent update in 2011 extended the scope of the Guidelines and achieved improvements in the areas of human rights, due diligence, and value chain responsibility. Although governments adhering to the Guidelines have made a legally-binding commitment to set up National Contact Points to further their effectiveness, implementation remains patchy at best.

On the occasion of this milestone anniversary, governments must demonstrate their commitment to making the Guidelines a relevant tool for governing today’s global economy. This briefing provides a “4 x 10” bullet-point plan highlighting four key features that give the Guidelines the potential to help ensure businesses behave responsibly. It also includes ten actions that governments must take to unlock that potential and to advance their legally binding obligations to further the effectiveness of the Guidelines.

Parts of the Report and brief comments follows. It may be accessed (PDF HERE).

Part 10 (The Social Self and God)--Dialogues on a Philosophy for the Individual: The Social Self

(Pix © Larry Catá Backer 2016)

Flora Sapio (FS), Beitita Horm Pepulim (BHP), and I (LCB) continue our experiment in collaborative dialogue. We move from the individual to the social self as we work toward a philosophy of the individual. While at first blush this appears to be well worn ground--who hasn't, over the course of the last 5,000 years, in every civilization with a recorded history NOT spent vast amounts of time thinking about the social self? But much of this thinking starts at the social and works through the issues of control, management and socialization of the individual. That is, they start from the core premise that the individual is the object of a project for which the social serves as an instrument and as an ends. In the spirit of the emerging philosophy of the individual, we propose to invert the conversation--to start with the individual and work through the issues of control, management, and individuation of the social.

But we move from the individual in herself, to the individual as subject and as symbol, as something which, when observed and transformed from itself to the idea or symbol of itself, assumes a quite distinct, and useful, position for the organization of selves--and for the structure and operation of the law of the social. To that end our conversation will likely flow around and through the following:

1--the social self as the reflection of the mother
2--the social self as a reflection of the family
3--social self as a reflection/result of one's ancestors
4--the social self as a reflection of God
5-the social self as a refection of the state
6--the social self as terrorist
7--the social self as orthodox
This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged.

In this post Flora Sapio (FS) responds to earlier comments (Part 9) and speaks to the social self and God;  and Larry Catá Backer responds.

Contents HERE.

 

Statement by Zeid Ra'ad al Hussein on the Opening of the 32nd Session of the UN Human Rights Council

(Pix © Larry Catá Backer 2016)

Madamina, il catalogo è questo  
Delle belle che amò il padron mio;
un catalogo egli è che ho fatt'io;
Osservate, leggete con me.

(Lorenzo da Ponte, Aria "Madamina, il catalogo è questo" Act 1 Scene 5 Don Giovanni, W.A. Mozart) ("My dear lady, this is the list Of the beauties my master has loved, A list which I have compiled. Observe, read along with me")).

Catalogue arias are powerful cultural statements--of compulsion, of arrangement, of leveling, and of a judgment about the thing collected. It is meant to provide a window on the "soul" of the subject and incite horror in the listener. The horror comes not merely from the subject of the listing but from its banality, the reduction of its components to ritualized actions whose principle interest in in its aggregation ("In Italia seicento e quaranta; In Alemagna duecento e trentuna; Cento in Francia, in Turchia novantuna; Ma in Ispagna son già mille e tre"), without regard to rank, value or societal impact ("E v'han donne d'ogni grado, D'ogni forma, d'ogni età"), and in the techniques of production (Nella bionda egli ha l'usanza Di lodar la gentilezza, Nella bruna la costanza, Nella bianca la dolcezza).

These catalogue arias have become a mainstay of government, and of the bureaucratic apparatus of international public organizations. In what has become a ritualized performance over the years, the United Nations High Commissioner for Human Rights delivered his statement for the opening of the 32nd session of the U.N. Human Rights Council.  

 The Opening Statement along with my brief comments follows. Osservate, leggete con me.

Upcoming Conference: Jessup's Bold Proposal: Engagement With Transnational Law After 60 Years at the Dickson Poon School of Law, Kings College, 1-2 July 2016

I take this opportunity to spread the word about an upcoming conference: "Jessup’s Bold Proposal: Engagements with ‘Transnational Law’ after Sixty Years."  this is the Transnational Law Institute Signature Conference, Edmond J. Safra lecture theatre, 1 - 2 July 2016. This 2016 event will commemorate, revisit and rediscover Philip Jessup’s path-breaking Storrs lectures, delivered in 1956 at Yale Law School.  My congratulations to Peer Zumbansen for organizing this marvelous event.

The post includes the conference announcement and the Conference Program.  

关于推行法律顾问制度和公职律师公司律师制度的意见--CPC Central Committee and Chinese State Council: Opinions on the implementation of legal counsel system and public law firm Lawyer System

(Pix © Larry Catá Backer 2016)

The Chinese continue to develop an institutional architecture for Socialist rule of law (and here, here, here, and here). The object is to develop a deep and deeply inter connected system of rules and responsible administrative officials acting through rules to produce a seamless system through which the Chinese Communist Party Basic Line can be applied to issues of state administration, those policies can be transposed into legal norms, legal norms can be implemented through lawmaking through the organs of the National People's Congress and the administrative organs of state ministries, and these rules then applied by officials throughout China constrained both by the specific rules and the interpretive constraints of the CCP basic line.

The Chinese General Office of the Central Committee of the Communist Party and the State Council, has just added another part of the construction of this seamless rule based administrative apparatus under the leadership of the CCP. It has just released a policy document on promoting in-house and external counsel for Party, government and SOEs. 关于推行法律顾问制度和公职律师公司律师制度的意见.

I include the original Chinese and a rough mechanical English translation (with thanks to Susan Finder).

Dehumanization and Control: Essay by Melissa Tatum and Jennifer Hendry: "Not a Gorilla; Not an Emblem"

(Image of Adam Goodes from Adam Clarke, Facebook Memes Compare Aboriginal Athlete To Gorilla That Was Fatally Shot, BuzzFeed, June 2, 2016; image Ryan Pierse / Getty Images)

It has been something of a commonplace to essentialize marginalized people as animals.

Animalisation and even bacterialisation are widespread elements of racist dehumanisation. They are closely related to the labelling of others with the language of contamination and disease. Images that put men on a level with rats carrying epidemic plagues were part of the ideological escort of anti-Jewish and anti-Chinese racism. . . . To throw bananas in front of black sportspeople is a common racist provocation even today. (Comparing black people to monkeys has a long, dark simian history, The Conversation Feb. 28, 2016).

This is a global phenomenon. Adam Clarke has written for Buzzfeed on the recent animalization of indigenous people in Australia. "Aboriginal AFL player Adam Goodes was infamously called a gorilla by a 13-year-old girl during a game last year, prompting him to take a stand against racism in Australia. That led to relentless booing and racial abuse that saw him retire early." (Adam Clarke, Facebook Memes Compare Aboriginal Athlete To Gorilla That Was Fatally Shot, BuzzFeed, June 2, 2016).  This was recently made worse by the circulation of two memes juxtaposing Goodes to Harambe — the gorilla shot and killed in a US zoo this week (Ibid). 

My colleagues, Melissa Tatum, Research Professor of Law at the University of Arizona, and Jennifer Hendry, a Lecturer in Jurisprudence at the University of Leeds School of Law, have taken on this issue.  Their essay, Not a Gorilla. Not an Emblem, expertly weaves together the strands of racism, racialized nationalism, exploitative appropriation, and social control that these impulses continue to represent.  It is presented below.

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Just Published: "Governance Polycentrism or Regulated Self-Regulation: Rule Systems for Human Rights Impacts of Economic Activity Where National, Private, and International Regimes Collide"

I am happy to report the publication of "Governance Polycentrism or Regulated Self-Regulation: Rule Systems for Human Rights Impacts of Economic Activity Where National, Private, and International Regimes Collide." It appears as part of Contested Collisions: Norm Fragmentation in World Society 198-225 (Kerstin Blome, Andreas Fischer-Lescano, Hannah Franzki, Nora Markard, and Stefen Oeter, editors; Cambridge University Press, 2016).

The contribution considers the extent to which it is possible to order the many layers of governance (law, soft law, normative standards, individual practices, contractual arrangements, custom, etc.)   that together constitute the emerging "law" of human rights impacts of business activity. This layering and simultaneous application of rules (polycentricity) is likely to produce conflict or contraction (rule regime collisions) that must be mediated. Failures of mediation can impede the operation of the system to produce a coherent management of behaviors. Conventional law produced and enforced through the mechanisms available to conventionally constituted states do not serve this transnational project well. Conventional law tends to be static and substantially bound by the territory form which it emerges and in which it applies with the greatest force. The contribution thus poses the question: how is it possible to produce regulatory coherence in a system which lacks an ordering center but operates through multiple regulatory systems simultaneously? The contribution suggests that governance in action may not so much produce spaces for managed polycentric collision as it links politically posited law and private governance in what could be called an externally regulated self-regulation. These linkages do not produce order formally, but they do have the functional effect of ordering relations among autonomous actors based on the effects of their communicative interventions. It is in the understanding of the character of those linkages, as anarchic sites for mediation of collision or as the form of new multi-systemic hierarchies of regulation, that one can see emerge the nature of “law” in the 21st century.

The Introduction of my contribution follows. I also provide the description of the essays in Contested Collisions from the front matter and include the table of contents of Contested Collisions. A pre publication version of the contribution may be accessed HERE.

Civil Society as a Global Conflict Zone--John Knox, Michel Forst, and Victoria Tauli Corpuz World Environment Day Statement: "'A deadly undertaking' – UN experts urge all Governments to protect environmental rights defenders"

(Pix © Larry Catá Backer 2016)

For World Environment Day three United Nations human rights experts call on every Government to protect environmental and land rights defenders. The World Environment Day statement, "'A deadly undertaking' – UN experts urge all Governments to protect environmental rights defenders," was issued by the UN Special Rapporteur on human rights and the environment, John Knox; the UN Special Rapporteur on the situation of human rights defenders, Michel Forst; and the UN Special Rapporteur on the rights of indigenous people, and Victoria Tauli Corpuz.

One ought not to read this in isolation.  The problem of environmental rights defenders is only a part of a larger problem.  That larger problem centers around the internationalization of communities organized around economic, environmental, societal, cultural, political and economic norms that may not be compatible with the ruling ideologies of states or with the interests of ruling cliques within states that are ostensibly organized along Western democratic lines.  Conflict arises at the frontier where transnational societies meet national institutions and aims.  More profoundly, though, the organization of transnationally functioning and self referencing autonomous civil society, operating within states, represents a projection of power from outside to within states.  It effectively changes the dynamic of politics.  And it does so in two ways.  The first is by internationalizing political discourse so that the possibility of national debates among a national polity are no longer entirely possible. That produces a loss of political control within a state as the normative values of a political community may be formed from factors  outside the state and national culture (e.g., here and here).  The second, is by using internationalization instrumentally buy states as a means of projecting national power inward into rival states to advance national interest. Thus the two sided threat--from both national and international  interests which together threaten the integrity of a political model grounded on the self referencing and self contained political state (e.g., here).  Within this conflict zone, violence appears to have become commonplace.  But until new transnational parameters and new normative structures for situating national political within transnational conversations is established, this is a conflict that is likely to get more rather than less violent.  And that is a shame.  Both civil society and states will tend to lose in that war.

It is posted below.

American Bar Association: "Comments on the “Provisions of the Supreme People’s Court on Certain Issues Concerning the Application of the ‘Company Law of the People's Republic of China’" (《最高人民法院关于适用〈中华人民共和国公司法〉 若干问题的规定(四)》(征求意见稿) 向社会公开征求意见的公告)

(Pix © Larry Catá Backer 2016)

On April 12, 2016, the Supreme People's Court circulated its Provisions of the Supreme People's Court on Certain Issues Concerning the Application of the "Company Law of the People's Republic of China" (IV) (Draft for Comments) (最高人民法院关于适用〈中华人民共和国公司法〉 若干问题的规定(四)》(征求意见稿) 向社会公开征求意见的公告) . Shan Gao and I have already shared some of my thoughts on Part I of the Draft Provisions (一、关于公司股东会或者股东大会、董事会决议效力案件) (here).

The structure of Chinese private corporations are a little different than their US counterparts (e.g., here). In addition to the shareholders and board of directors, Chinese private corporations also have a board of supervisors with some significant power. In addition, corporations are obliged, in unspecified ways, to consult their organized staff and to be sensitive to the work of the embedded Communist Party. Lastly the designated company representative may incur liability. The nature of liability for what U.S. lawyers would understand as direct and derivative actions, and the scope of the right to assert either, are somewhat different than in the US. The structure for interpretation of Company Law provisions are also a little different from the legislative-judicial relationship in the U.S. The Supreme People's Court interpretations serve as guidelines for applying the statutes, sort of but not quite like not precedent, but with a similar disciplining objective (e.g., here). In this case one is presented with with "provisions (" 规定") which are roughly similar to court rules but in this case of a substantive nature. Thus, the object of these provisions is to provide guidance to courts and litigants about the application of provisions of the Chinese Company Law. They represent an effort to augment and interpret the provisions of the Company law in important ways and are thus an important step forward in moving China towards a more mature and coherent rule of law system.

Under the leadership Yee Wah Chin, the International Law Section of the American Bar Association organized a group to consider these Provisions and to deliver comments to the Supreme People's Court. That group consisted of Maritza T. Adonis, Larry Catá Backer, Paul Edelberg, Virginia Harper-Ho, and Emilia Liu, with helpful input from a task force of the ABA Section of Business Law Corporate Laws Committee.

The Comments prepared by the Section of International Law of the American Bar Association follow, along with the cover letter transmitting the Comments.

The Congressional-Executive Commission on China (CECC): Bipartisan Congressional Letter To Chinese President Xi Jinping Marks 27th Anniversary of Tiananmen Protests & Massacre

The Congressional-Executive Commission on China (CECC) tends to be a good barometer of legislative thinking about China in the United States. Not that this thinking is either coherent or well directed. But it does represent the way in which U.S. "China expert" elites and their legislative masters develop "knowledge" about China. This knowledge is then used to shape U.S. policy and legislative approaches U.S. China relations. It also suggests the way that U.S. ideological thinking shapes the way in which China is viewed as understood by the United States.

This characterization is not meant to suggest a personal position on either the outlook or work of the CECC, or of its advisers. That characterization, however, does suggest that ideological blinders tend to tell us more about the U.S. (in this case) than it does about the Chinese. But if course the same is true of Chinese organs with a similar purpose aimed the the United States. It is with the object of helping to understanding American construction of China, rather than of helping to understand Chinese constructions of themselves (however "flawed" either exercise may be in and of itself and to itself), that this is offered.

Given the focus of CECC it comes as no surprise that CECC would provide the American people, and as their representative, the Chinese government, with reflections on the events of June 1989 centered on Tiananmen in Beijing. To that end, CECC has just published its 2016 Bipartisan Congressional Letter To Chinese President Xi Jinping Marks 27th Anniversary of Tiananmen Protests & Massacre. It provides an excellent reflection of the analytical framework from out of which the US tends to consider Chinese political structures and the direction of their "reform," as well as the underlying political principles through which such analysis and objectives are applied.

Iuris Dictio (Ecuador): Call for Papers (Convocatoria) No. 18--"Law and Literature in Latin America" ("Derecho y Literatura en América Latina")

It my great  honor to serve on the Scientific Advisory Board of the journal Iuris Dictio whose home is the Universidad de San Francisco de Quito (Ecuador).  It is one of the leading legal journals in Ecuador and the Andean region.  Its editors, Diego Falconí Trávez and María Teresa Vera-Rojas are engaged in expanding its international recognition.

For 2016 Iuris Dictio is planning a monograph-symposium  on law and literature in Latin America, understood both as law as literature or law in literature. 

The Call for Papers (Convocatoria) for Monograph No. 18 on Law and Literature in Latin America follows (in English and Castellano).  Also included is information about Iurias Dictio's publications (Castellano).

Flora Sapio: "Comment to the Cuban 'Conceptualización del Modelo Economico y Social Cubano de Desarrollo Socialista'"

The recently concluded 7th Congress of the Communist Party of Cuba (PCC) produced little by way of surprises.  The tone was set by the First Secretary when he suggested that a slow and steady course, with little deviation, should be the guiding principle of the Congress. It is with this in mind that one should consider one of the principal documents that was produced by the 7th PCC Congress, the 'Conceptualisation of the Cuban socio-economic socialist development model' ("Conceptualización del modelo económico y social Cubano de desarrollo socialista"), which is intended to complement the Guidelines (Lineamientos) of the 6th PCC Congress, and provide the theoretical foundation for its further implementation.  Adopted in principle, the Conceptualización serves to answer the question: what sort of theoretical model will guide the development of Socialism in Cuba. The Conceptualización is of particular interest for its potential divergence from the construction of Chinese post-Soviet Socialist Market theory within the context of socialist modernization.

These two distinct views of socialist modernization deserve some attention, if only because of their potential influence within developing states whose relationship to the dominant normative framework of markets based globalization may not be entirely embedded within their social, economic and political systems.

To that end Flora Sapio and I offer some comments and analysis of the Concepotualización. 

1. Introduction and text of Conceptualizacion.

2. Background Brief.

3. Flora Sapio Comment to the Conceptualización

4. Larry Catá Backer Comment to the Conceptualización.  

 This post includes Flora Sapio Comment to the Conceptualización.

Civil Society at the Center of 4th Generation Warfare--The Congressional-Executive Commission on China (CECC) hearing on "The Long Arm of China: Global Efforts to Silence Critics from Tiananmen to Today"

The Congressional-Executive Commission on China (CECC) tends to be a good barometer of legislative thinking about China in the United States. Not that this thinking is either coherent or well directed. But it does represent the way in which U.S. "China expert" elites and their legislative masters develop "knowledge" about China. This knowledge is then used to shape U.S. policy and legislative approaches U.S. China relations. It also suggests the way that U.S. ideological thinking shapes the way in which China is viewed as understood by the United States.

This characterization is not meant to suggest a personal position on either the outlook or work of the CECC, or of its advisers. That characterization, however, does suggest that ideological blinders tend to tell us more about the U.S. (in this case) than it does about the Chinese. It is with the object of helping to understanding American construction of China, rather than of helping to understand Chinese constructions of themselves (however "flawed either exercise may be in and of itself and to itself), that this announcement is offered.

For May, the CECC presented "The Long Arm of China: Global Efforts to Silence Critics from Tiananmen to Today." It focuses on China's more aggressive and internationalized management of its social media profile and international public discourse, especially that of interest to the Chinese state.

The announcement and my brief analysis follows. My analysis focuses on the relationship between the move toward the control of global non state organizations and the fusion of law and politics. It also suggests the way the the theories of combat--and the strategies of warfare, in an age that rewards warfare without overt violence among states--may now be more important drivers of policies on civil society management within transnational space and within states. The recording of the proceedings may be accessed HERE. Decide for yourselves.