Summary of My Presentation, "The Privatization of Governance: Emerging Trends and Actors," for Conference: New International Trade and Rules Between Globalization and Anti-Globalization

I was delighted to have helped organize a conference: New International Trade and Rules Between Globalization and Anti-Globalization. The Conference concept note and program may be accessed here.

This post includes my  remarks made for the Panel, “The Rise of New Societal Orders and Global Supply Chains, Labor and Investment Markets.”  POWERPOINTS may be accessed HERE.

Reflections on Shen Wei: "One Belt One Road Initiative and Beyond in the Context of (Anti-) Globalization"

(Pix Credit EUOBOR)

It was our great pleasure here at the Penn State School of International Affairs and the Law School to host Shen Wei, Dean and Professor of Law at the Shandong University Law School as part of our Conference "New International Trade and Rules Between Globalization and Anti-Globalization".  We were even more fortunate to have Dean Shen Wei specially address our university during the course of his visit. The presentation, entitled "One Belt One Road Initiative and Beyond in the Context of (Anti-) Globalization," was enthusiastically received by our students and the discussion after the presentation nicely framed national perspectives from all over the world.

What follows are my reflections on Dean Shen Wei's excellent and the discussion, which I hope do justice to the presentation (Print Version HERE). Those reflections are followed by a bio of Dean Shen Wei.

Closing Remarks: International Conference: New International Trade and Investment Rules between Globalization and Anti-Globalization. Penn State University

I was delighted to have helped organize a conference at Penn State: New International Trade and Rules Between Globalization and Anti-Globalization. The Conference concept note and program may be accessed here.

This post includes my closing remarks

No.190-2 杨璐：从洛克到休谟：论英国政治社会思路的转向（下） (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thought (2))

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.190 杨璐：从洛克到休谟：论英国政治社会思路的转向（下） (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thought (2)).

This contribution suggests the way that Chinese scholars have begun to consider the contributions of Hume. Hume has tended to be understudied in comparison with Locke and Hobbes. This essay seeks to begin to remedy that state of affairs. It is most enlightening in the way that Chinese scholars have begun to seek in Hume lessons that may have an application to local context. This post includes Part 2 of the essay. For Part 1 see HERE.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

No.190 杨璐：从洛克到休谟：论英国政治社会思路的转向（上） (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thoughts (1))

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.190 杨璐：从洛克到休谟：论英国政治社会思路的转向（上） (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thought (1)).

This contribution suggests the way that Chinese scholars have begun to consider the contributions of Hume. Hume has tended to be understudied in comparison with Locke and Hobbes. This essay seeks to begin to remedy that state of affairs. It is most enlightening in the way that Chinese scholars have begun to seek in Hume lessons that may have an application to local context.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

"Scenarios for China’s Future: A One-Day Pre-Conference Workshop" at Penn State

(Pix credit--Tom Wanbeke, Learning about scenario planning and thinking (ITC-ILO) (2012))

Analysis has undergone a profound change over the last generation.  Where once planning was populated by individuals and the heroic notion of human activity, today the individual has been reduced to a single data set that produces meaning only as part of an aggregate and the behavior of collectives of people, like viruses, can be understood as a set of relational linkages that can be discovered and managed.  At the same time, the traditional forms of analysis grounded in extrapolation and linear thinking has been giving way to a more complex form of approaching challenges that make space not just to the non linear but also to the non-rational. 

From out of these trends, scenario planning has emerged as an increasingly important tool for organizing analysis. "Scenarios deal with two worlds; the world of facts and the world of perceptions. They explore for facts but they aim at perceptions inside the heads of decision-makers. Their purpose is to gather and transform information of strategic significance into fresh perceptions." (Pierre Wack, “The Gentle Art of Re-perceiving”, Harvard Business Review, September–October 1985)

"Scenario planning has been used by some of the world's largest corporations, including Royal Dutch Shell, Motorola, Disney and Accenture.  . . . According to Bain & Company's annual survey of management tools, fewer than 40% of companies used scenario planning in 1999. But by 2006 its usage had risen to 70%. As a result of its scenario planning, the New York Board of Trade decided in the 1990s to build a second trading floor outside the World Trade Centre, a decision that kept it going after September 11th 2001." (here).

It is with this in mind that I was pleased to play a small role in bringing a workshop on scenario planning to Penn State. That workshop, "Scenarios for China’s Future: A One-Day Pre-Conference Workshop" will take place on April 21, 2017, facilitated by Matthew Spaniol,  an Industrial PhD Fellow at Danish Maritime, a member-based organization representing the interests of the maritime industry in Copenhagen, Denmark and my colleague Nicholas Rowland. The workshop serves as an introductory event to the upcoming conference at Penn State: New International Trade and Rules Between Globalization and Anti-Globalization.

The Concept Note and announcement follows:

Upcoming Conference at Penn State: "New International Trade and Rules Between Globalization and Anti-Globalization"

I am happy to announce an upcoming conference at Penn State: New International Trade and Rules Between Globalization and Anti-Globalization. Speakers at the conference will consider the following themes:

1. The United States and China appear to be pursuing distinct strategies toward the organization of international trade and investment. National and international organizations continue to work through the WTO, but regional and other multilateral frameworks appear to supplement or supplant the germinal structures of globalization. This panel considers the form and consequences of these quite significant movements to develop or move from the normative framework of trade of the last half century and to point to the new directions that the organization of trade and finance may be taking.

2. Among the most remarkable developments of the last century has been the rise of the societal sphere and of non-state governance systems. These systems have acquired official recognition through international instruments, the most important of which might be the 2011 U.N. Guiding Principles for Business and Human Rights. This panel explores the scope and development of these non state governance systems, their interactions with legal frameworks at the national and international level, and the nature of its own autonomous operation.

3. One of the important consequences of globalization in economic activity has been the change in the relationship between the state and production. More importantly, there has appeared to emerge new forms of organization of regulatory power within the processes of production itself. This panel will explore the scope and nature of these autonomous regulatory communities, their interactions with traditional centers of power, and their future importance.

4. The explosion of Chinese exports has become one of the most significant events in international trade and investment. China has also been pursuing stronger influence in the global market by proactively engaging in the negotiation of international trade and investment partnerships and agreements. These extend well beyond its One Belt One Road policy and embrace trade, development, infrastructure projects and capacity building with its partners.

The Conference will be held in English and Chinese. The Conference Concept Note and Program follows: 

Preliminary Draft Posted: "The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards"

(Pix © Larry Catá Backer 2017)

I have just posted a preliminary draft of an article that is currently entitled The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards. The article is expected to be published in the Lewis and Clark Law Review.

The object of the article to to think about two different but related trends. The first is on the linkages that appear to be growing between domestic legal orders, international standard setting organizations and private organizations with respect to corporate social responsibility rules, including sustainability and business and human rights norms. I am interested in seeing the extent to which one can understand CSR as a set of law and norm structures that seek to maximize the value of linking law, social norms, markets, national and international law together to produce a web of command and guidance that might produce a coherent and targeted effect. The second is on CSR and indirect compliance mechanisms, that is on the development of the development of the instrumental use of other actors to compel CSR compliance by operating companies. This is particularly intriguing for the possibilities (and challenges) it may offer through regimes that are based on the privatization of law and the transfer of regulatory hard(er) authority (through contract) in lending institutions. Legal privatization merits greater focus in the context of CSR debates.

As always, reactions, suggestions and engagement are most welcome. The current version of the abstract and introduction follow.

Comparative and Interdisciplinary Analysis From Cuba Counterpoints: (1) If Betsy DeVos met Ena Elsa Velázquez; (2) Cuban Travelogues into the Future’s Past; (3) Havana City of the Dead; and (4) Afro-Cuban Religion's "New Man"

Our friends at Cuba CounterPoints have published a great April issue XVI. Highlighted here are three of the essays published: (1) If Betsy DeVos met Ena Elsa Velázquez; (2) Cuban Travelogues into the Future’s Past; (3) Havana City of the Dead; and (4) Afro-Cuban Religion's "New Man".

Re-posting of the four essays follows below.  My thanks as always to Ariana Hernandez-Reguant for her critical work in pulling this together.

No.188 泮伟江：论卢曼与托依布纳 (No.188 Pan Weijiang: On Luhmann and Teubner)

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.188 泮伟江：论卢曼与托依布纳 (No.188 Pan Weijiang: On Luhmann and Teubner).

This essay takes up where No. 187 left off (No.187 贡塔•托依布纳 : 政治宪法之外的宪法：20世纪的社会宪治谱系 (No. 187 Gunther Teubner: Constitution outside the political constitution: the social constitution of the 20th century). In this essay Pan Weijiang discusses Teubner's theory of constitutionalism, but this time in light of the insights of Niklas Luhmann.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

Corporate Social Responsibility Law--A Tentative Syllabus

(Pix © Larry Catá Backer 2016)

I will be teaching a course on Corporate Social Responsibility. I am delighted by the prospect.  Like the subject itself, the course is a hybrid.  Corporate social responsibility is inherently hybrid in its nature, character, and manifestation as both law and policy.  Its governance trajectories touch on the essence of law and the lawyer's craft; its normative trajectories speak to politics, ethics and morals, to the fundamental organization of cultures of human interactions in the economic sphere.

First, it focuses on enterprises--that is on institutions organized for the purpose, principally, of economic activity.  Collective and collective activities are at the center of this field.  It focuses on the individual within a collective that is not the state. As such, also embedded within it are those organizations and institutions that operate within or in relation to that sphere.  At its limit, it touches on all organizations other than the state.  

Second, it focuses on the societal role of enterprises--that is on the structures and frameworks within which non-state organizations (and specifically enterprises) order themselves in and of themselves that are found outside the formal structures of state and government. One speaks here of those direct relations between the enterprise and its communities sometimes within and sometimes beyond the state and sometimes in a space ceded by the state. But these societal relations can have regulatory effect; and the state may well seek to legalize some to all of those societal relations.      

Third, it focuses on the responsibility of enterprises within the societal sphere, that is on the autonomous obligation of enterprises to embed itself within the regulatory structures through which it engages in the communities where it operates. Responsibility is to be differentiated from obligation. The societal responsibilities of enterprises are not to be confused with the mandatory obligations of everyone subject to its jurisdiction to obey the command of law. And yet the societal responsibilities of enterprises share with law the notion of authority and leadership,of accountability and of autonomy embedded within the strictures of the norms that frame responsibility.   

CSR, then, occupies a conceptual space between the social and the legal, and between the moral and legal order.  Such a conceptual space is inherently unstable, especially in the context of globalization that at once appears to shift public regulatory power to state collectives (energizing a robust sphere of public international law), even as it also appears to shift regulatory power to the private sphere. This instability thus manifests itself in contests for control of regulatory space--through robust projects of legalization and judicialization of the societal sphere in general, and the obligations of enterprises specifically--or through the privatization of the legal sphere as enterprises themselves are deputized to undertake the role once reserved to states. It is at this point that corporate social responsibility becomes interesting to the law--the lawyer, to the legislator, to the administrator and the courts. Yet that convergence also reveals the vibrancy of governance beyond the control of law, and of the state.

It is to those issues that this course is directed. The syllabus is constructed with these general ideas in mind.  Comments and suggestions (especially for compiling a useful student friendly reading list) gratefully received as this remains very much a work in progress.

No.187 贡塔•托依布纳 : 政治宪法之外的宪法：20世纪的社会宪治谱系 (No. 187 Gunther Teubner: Constitution outside the political constitution: the social constitution of the 20th century)

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.187 贡塔•托依布纳 : 政治宪法之外的宪法：20世纪的社会宪治谱系 (No. 187 Gunther Teubner: Constitution outside the political constitution: the social constitution of the 20th century).

This is one of my favorite contributions to the series, if only because it brings to Chinese audience the rich work of one of the foremost thinkers of this generation--Gunther Teubner, whose work is well known to Western audiences. It is a translation of Chapter 2 of Teubner's Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford Constitutional Theory) (Oxford 2012).

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

Just Published: "The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders"

I am happy to announce the publication of an article, "The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders," that appears in the B.Y.U. Journal of Public Law 31(1):1-52 (2016). 

The abstract and introduction follows; comments and engagement always welcome. This is the third in a series of recently published work that explores the legal ecology of globalization, the first within the private sector regulatory systems, the second in Marxist Leninist systems, and this third considers nature of the regulatory space created as the convergence point of regulatory systems that itself produces the parameters within which the projects of legalization and economic globalization converge.

 

No. 186 中国将取代美国在国际贸易中的地位 (No. 186 Xǔ Zhāngrùn: Past or present, the meaning of the law is always about the 'Dao' of the world and our morals)

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.186 许章润：法意今古，总不外世道人心 (No. 186 Xǔ Zhāngrùn: Past or present, the meaning of the law is always about the 'Dao' of the world and our morals).


In this very interesting and elegant short essay Xǔ Zhāngrùn speaks to his essay 汉语法学论纲 (“The General Principle on Hanyu Jurisprudence, ), and expresses his appreciation for those who support his scholarly project.  The essay is written in a lyrical literary style that is worth the read in which he reflects that the work  is a dialogue with my readers, it is private, intimate but also public. It is private because sometimes, certain things only enjoy between those close circles. It is public because the issues are about public and its interests. He speaks to the meta-narrative that is the Chinese state and the great transitions in its jurisprudential approaches. noting that “The current landscape” is not only an important research field but that research is also the Chinese intellectual’s responsibility to society. He reflects that the prior two hundred years of jurisprudential transition was full of sacrifices, expecting the “last sacrifice” will be the beginning of an “end.”This is connected with both individual and societal purpose. Morally, he notes, we all serve a purpose. History is a tool with purposes. However, the expression of human experience, and expression of life, and even creation of life is a privilege, and of course, a responsibility. The subject’s struggle of the “id “in this mundane life, the search for a self is the essence of the self. Thus, he posits, the tool (history) transcends “fate,” the desire of transcendence is the purpose. “fate” is the nature of things, but “desire” give us action. We cannot know/ see our “Tyche” (the Chinese words is fate ming yun命运), but our effort and our pursuance defined us. With these efforts, we can break our fate as a tool and transcend from fate.  This semiotics approach is then reflected in his notion of the social self. He explains: the self is bounded by the others, thus the formation of “others” (e.g., the "public" or societal) affects every aspect of self, which is why, he argues, one needs to be especially careful about the process of formation; this is a high stakes process for which we need principle, doctrines, and morals.  It is within this normative conceptual space that philosophers have created the idea that people are eager to be good, and humans do show the incapable desire for goodness and the concept of responsibility, giving the species dignity, and thus reflecting and tempering the history of mankind into a steady process of reaching toward "the good." That is a moral he draws form the aftermath of the French Revolution, after which the discussion about forms of law and politics are directed toward serving and maintaining a sustainable and stable peaceful collective living. It is in the service of that project that intellectuals have a responsibility to the public. Therefore, it is necessary to discuss the form of civil society and the civilized time and space, to implement its thinking in the earth and to give its universal character, including everything such as the Chinese mind The human mind of the heavenly life, but also by the practice of rational and temper the formation of human virtue of the righteousness, of course, and that is called the intellectuals to this specific labor and  mission. My thanks to GAO Shan  for his translation and the exchange that enriched the reading of this essay.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

“Realizing Access to Remedy”--The 2017 UN Forum on Business and Human Rights: Concept Note and Invitaiton to Submit Proposal

Invitation to stakeholders to submit parallel session proposals

The Working Group on the issue of human rights and transnational corporations and other business enterprises and the Forum Secretariat invite all relevant stakeholders to submit proposals for parallel sessions to be held at the Sixth Annual Forum on Business and Human Rights, taking place in Geneva (Switzerland) from 27 to 29 November 2017. For details, please see the Forum web page  / Twitter @WGBizHRs


Invitation aux parties intéressées à proposer des événements parallèles

Le Groupe de travail sur la question des droits de l’homme et des sociétés transnationales et autres entreprises et le Sécretariat du Forum invitent toutes les parties prenantes à proposer des événement parallèles pour le sixième Forum annuel sur les entreprises et les droits de l’homme, qui aura lieu à Genève (Suisse) du 27 au 29 novembre 2017. Pour de plus amples informations, veuillez consulter le site web  / Twitter @WGBizHRs


Invitación a las partes interesadas a presentar propuestas para las sesiones paralelas

El Grupo de Trabajo sobre la cuestión de los derechos humanos y las empresas transnacionales y otras empresas y la secretaría del Foro invitan a todos los interesados a presentar propuestas de sesiones paralelas para el Sexto Foro Anual sobre las Empresas y los Derechos Humanos, que tendrá lugar en Ginebra (Suiza) del 27 al 29 noviembre 2017. Para más información, consultar la página web / Twitter @WGBizHRs

The Concept Note for the 2017 Forum and the Invitation to stakeholders to submit proposals for parallel sessions follow below.

Just Published: "Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy"

I am happy to announce the publication of an article, "Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy," that appears in the Connecticut Journal of International Law 32(1):1-47 (2017).

 The abstract (English, Castellano) and introduction follows; comments and engagement always welcome.

中国将取代美国在国际贸易中的地位 ——白轲教授采访 (Interview With Mehr News (Iran): "China Will Replace the U.S. in Global Trade" )

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中国将取代美国在国际贸易中的地位

——白轲教授采访

 

受访者：Larry Catá Backer，白轲教授，主要教宪法、公司法和跨国法律和政策等课程。他还是美国法律协会（American Law Institute）、欧洲中国法研究协会（European China Law Studies Association）和欧洲公司治理研究所（European Corporate Governance Institute）的成员。在2012-2013年担任宾州州立大学教务会员会主席，在2015-2016年担任联合多样化大学工作组（University’s Joint Diversity Awareness Task Force）主席。

采访者：Payman Yazdani, Mehr News 
Original 5 March 2017 

翻译：姜笑然， FLIA (China) 项目成员

ENGLISH VERSION HERE

Cuba Beyond the Cusp of Change (Executive Summary of the Program): Reflections on a Week Long Penn State Graduate Course in Cuba

(Pix © Larry Catá Backer 2015)

It is my great privilege to have been encouraged to design and hold a week long embedded course program through Pennsylvania State University. For many years Cuba and its political order was said to be on the "cusp of change" (e.g., here). Since the start of normalization of relations with the United States, it is quite evident that Cuba has now moved beyond the "cusp" and into the realities of integration within a global system to which it has had both privileged access and been excluded over the last half century.  The re-adjustments in both respects will mark the trajectory of Cuban life for the next generation (compare here, with here).

I have been posting reflections of the activities and lectures for each of the eight days of the course program. Links for full contents and course syllabus HERE.

This last post of the series serves as an Executive Summary of the Program, Activities and Reflections on Our Experiences. 

Cuba Beyond the Cusp of Change (Day 8): Reflections on a Week Long Penn State Graduate Course in Cuba

(Pix © Larry Catá Backer 2015)

It is my great privilege to have been encouraged to design and hold a week long embedded course program through Pennsylvania State University. My thanks to the office of the Penn State Office of the Vice Provost for Global Programs, Michael Adewumi and Kate Manni, Assistant Director for Embedded Programs, for making this possible.  Thanks as well to  Scott Gartner, the Director, Penn State School of International Affairs, and special thanks to Claudia Prieto (SIA Academic Adviser and Student Services Coordinator) and Rachel Arnold (Assistant to the Financial Officer, Penn State Law/SIA), without whose help and encouragement this program would not have happened. Great thanks as well to our hosts in Cuba, the Centro de Estudios Martianos that went out of its way to enrich the course and the experiences of our students.

This is the last of a series of posts that will develop reflections both on the teaching of embedded programs in Cuba, generally, but more specifically as a way of documenting the way my students and see see Cuba today.  For many years Cuba and its political order was said to be on the "cusp of change" (e.g., here).  Since the start of normalization of relations with the United States, it is quite evident that Cuba has now moved beyond the "cusp" and into the realities of integration within a global system to which it has had both privileged access and been excluded over the last half century.  The re-adjustments in both respects will mark the trajectory of Cuban life for the next generation (compare here, with here).

I started with the embedded course syllabus (INTAF 597C Penn State SIA) and then will post reflections for each day of the journey through the course materials and within Cuba.  The hope is that this provides some food for thought respecting the necessary evolution of political and economic systems, and the constraints within which systems change or expend great energy to stay the same.

Links for full contents HERE.

This post considers our activities on Day 8--Reflections on the Flight Home.

Just Published: "A Lex Mercatoria for Corporate Social Responsibility Codes Without the State?: A Critique of Legalization Within the State Under the Premises of Globalization"

I am happy to announce the publication of my article: "A Lex Mercatoria for Corporate Social Responsibility Codes Without the State?: A Critique of Legalization Within the State Under the Premises of Globalization," Indiana Journal of Global Legal Studies 24(1):115-146 (2017).  My great thanks to Anna Beckers (Maastricht) whose marvelous doctoral thesis, now a must read monograph, inspired this essay.  

The abstract and introduction follows; comments and engagement always welcome.