PowerPoints of Short CLE Course: "Foreign Investment in Cuba: Law, Policy, and Practicalities"

I had the opportunity to provide a micro course during the Annual Meeting of the Association for the Study of the Cuban Economy (Conference information here).  Entitled "Foreign Investment in Cuba: Law, Policy, and Practicalities," the materials were meant to introduce lawyers and non experts to the legal frameworks through which U.S. investment to Cuba is regulated. The course abstract provides:

Cuba’s 2014 Foreign Investment Law and the dissemination of its annual Portfolio of Opportunities for Foreign Investment are signals that Cuba is open to foreign direct investment. The U.S. appears to have loosened the sanctions regime it had imposed on Cuba signaling that the U.S. is open to permitting outbound investment. While Cuba has secured a number of deals, progress on all sides remains slow due to the complexities and uncertainties surrounding legal, policy, liability, and other issues. This session will offer a detailed look at Cuban law relevant to foreign investment, bilateral and other agreements with Cuba, transaction formation pitfalls and best practices, and how to steer clear of liability and policy traps so that all parties can seal the deal.

This post includes links to the PowerPoints around which the lecture was structured. They may be accessed HERE.  

The PowerPoints includes links to primary source materials for the U.S: and Cuba, as well as contact information to relevant governmental actors.  The object is to introduce the key structural components and foundational sources for those who seek to get a sense of the way that the two states regulate investment between them.  The resulting complexities suggest the challenges where political and societal factors (as well as national security interests) overlay economic considerations in bilateral trade and investment.

Cuban Economic Developments: Insights from the 27th Annual Meeting of the Association for the Study of the Cuban Economy

The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. Those of you in Miami at the end of July might consider participating. The Conference Concept Note and Progam may be accessed HERE.

This post includes summaries of the plenary presentations of the opening of the conference, with presentations by Carmelo Mesa-Lago (Pittsburgh); Omar Everleny (Havana) and Jorge Pérez-López (US Labor Dept. Retired).

Cuban Economic Developments

Chair: Helena Solo-Gabriele, University of Miami and ASCE President

Carmelo Mesa-Lago, Professor Emeritus, University of Pittsburgh, ""Fidel Castro's Legacy on Cuba's Social Policy and the Current Situation"

Omar Everleny Pérez Villanueva, Revista Temas, "La economía cubana: Por dónde anda y que se debería esperar"

Jorge Pérez-López, U.S. Department of Labor (retired), "Cuba's Never Ending External Sector Crisis"

PowerPoints for Conference Draft: "The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector"

(View of Havana Harbor from the Shrine of our Lady of Regla; Image © Larry Catá Backer 2017)

The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. I will be participating in the panel entitled, "Cuban Economic Policies & Growth Strategies." I have already posted the conference draft of my presentation: entitled The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector.

The paper considers the Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos in which the 7th Cuban Communist Party Congress posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal suggests behavior and choice algorithms with interesting implications even if only partially realized. This Conference draft is meant to spark conversation; it is very much a work (and thought process) in progress around a central insight of the algorithmic qualities of central planning models and its utility in that form as a regulatory tool. The Conference Draft may be accessed HERE.

This Post includes the PowerPoint of the presentation, as well as some thoughts (Slide 19) about the Cuban experiment's more general implications for trends in global regulatory governance in both the West and for systems like China's Social Credit Program.  Comments and conversation most welcome.  

June 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment-

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

(John Knox)

Professor Knox has just released his March 2017 progress report on the work of his office, which includes links to a number of important statements and activities, principal among which is his Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017). One can sum up the work presented in a particularly direct statement:

The full enjoyment of human rights, including the rights to life, health, food and water, depends on the services provided by ecosystems. The provision of ecosystem services depends on the health and sustainability of ecosystems, which in turn depend on biodiversity. The full enjoyment of human rights thus depends on biodiversity, and the degradation and loss of biodiversity undermine the ability of human beings to enjoy their human rights. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017) ¶ 5.

The approach underlines a critical hole in the discussions that tend to silo business, human rights advocates, states and environmental advocates and businesses in increasingly remote silos.  Those silos are erected and maintained in part, no doubt, by inertia.  Yet they are also strategically important--important for actors seeking to maximize their influence and positions within the myriad power circles that pass for the international communities (and their enemies), important for the systemic integrity of a segmented approach to lawmaking at both the international and domestic levels, and important, as well, for the governance gaps that these silos produce in systems that reward arbitrage among these systemic interruptions.  Biodiversity is not merely a component of human rights--it is an essential element of the way in which the human rights duties of states and the responsibilities of business (including SOEs, SWFs, and financial actors) to respect human rights. This poses a great problem of interpretation of the core business and human rights documents--from the United Nations Guiding Principles for Business and Human Rights, to the OECD's Guidelines for Multinational Enterprises.  As well, it suggests some rethinking for semi private efforts like the ISO 26000 project. And most important, it suggests that the remedial projects of both UNGP and OECD Guidelines may require some substantial development if they are t embrace more fully their potential.

The post includes the 9 June 2017 Newsletter of the Special Rapporteaur (with links).

Conference Draft Posted for Comment: "The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector "

The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. The press release announcing the Conference follows along with the draft Program are posted HERE.

I will be participating in the panel entitled, "Cuban Economic Policies & Growth Strategies," which is chaired by Carlos Quijano, World Bank (retired).  Penelists will present on a number of important themes: (1) Vadim Grishin, Adjunct Assistant Professor, Georgetown University, "Economic Reforms in Cuba: Myths and Realities"; (2) Gary Maybarduk, U.S. Department of State (retired), "Encouraging Reform in Cuba: Can We Get It Right?"; and (3) Juan Tomás Sánchez, Sugarcane Growers Association of Cuba, Inc., "The Soft-Swift Transition of Cuba to a Hard Structure with Proven Results."  Luis Locay, University of Miami; and Sergio Díaz-Briquets, Independent Consultant.

My presentation on this panel is entitled The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector.  The paper considers the Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos  in which the 7th Cuban Communist Party Congress posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal suggests behavior and choice algorithms with interesting implications even if only partially realized. This Conference draft is meant to spark conversation; it is very much a work (and thought process) in progress around a central insight  of the algorithmic qualities of central planning models and its utility in that form as a regulatory tool.

The abstract and Introduction follow.  The Conference Draft may be accessed HERE.

Announcing European China Law Studies Association 欧洲中国法研究协会 12th Annual Conference 24-25 August Hosted by the University of Leiden

It gives me great pleasure to pass along information about the upcoming 12th Annual Conference of the European China Law Studies Association. The Conference is hosted with the support of the University of Leiden and its Faculty of Law and the Leiden Institute for Area Studies.

Since its founding in 2006, the European China Law Studies Association has become a major international venue for scholars and practitioners who are engaged in the study of Chinese law, from both comparative and interdisciplinary perspectives. The annual general conference provides an excellent forum for the exchange of information and ideas, as well as a platform for the development of research collaboration. Studies from disciplines other than law or interdisciplinary papers as well as submissions from young academics are expressly encouraged.

For the 12th Annual Conference the following topics will be featured:

• Law and Development in China and Its Region. This session will address the question how law contributed to development in China, and what the regional impact of Chinese domestic processes is. Submissions can be comparative in nature, or explore whether and how Chinese approaches have been adopted elsewhere in Asia. This session is organized in cooperation with the Asian Journal of Law and Society. Papers accepted for this panel will be published in a special edition of the journal.

• Post 4th-Plenum Reforms and State-Citizen Relationships. This session will examine how reforms announced in the 4th Plenum have been implemented, and what their impact has been on questions such as access to justice and legal protection for Chinese citizens. It is the intention that these papers will be published as an edited volume, with the support of Leiden University’s research programme in Asian Modernities and Traditions.

The Conference Program follows:

USTR Releases NAFTA Negotiating Objectives--The Outlines of 'A Better Deal for All Americans'"

It was a long time coming, but recently the Office of the U.S. Trade Representative issued its Summary of Objectives for the NAFTA Renegotiation.  

The Press Release and Table of Content and Introduction to the Summary of Objectives follow. A future post will discuss in more detail the approach to State Owned Enterprises in this package and its ramifications for trade deals with China.

"Unpacking Accountability: The Multinational Enterprise, the State, and the International Community": Summary of Remarks at Utrecht Center for Accountability and and Liability Law (UCALL) Conference, "Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards"

(Pix © Larry Catá Backer 2017)

In May, 2017, the Utrecht Center for Accountability and and Liability Law (UCALL), sponsored an excellent conference, Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards. As its name suggests, the Conference brought together a great group of individuals to consider one of the most dynamic areas of law and policy today--the normative and methodological issues, in economics, politics and law, that touch on the ramifications of business responsibility for human rights, labor and environmental standards in their operations (here). My thanks to the Conference organizers in bringing ot gther the very best emerging research in the field:  Prof. Ivo Giesen (private law); Dr. Liesbeth Enneking (private law); Prof. François Kristen (criminal law); Anne-Jetske Schaap, LLM (criminal law); Prof. Cedric Ryngaert (international law); and Lucas Roorda, LLM (international law).

This post belatedly includes the PowerPoint summary of my remarks, "Unpacking Accountability: The Multinational Enterprise, the State, and the International Community." The essay  developed from this presentation will be made available in a future post.

John Ruggie and John Sherman Respond to Jonathan Bonnitcha and Robert McCorquodale, "Is the Concept of ‘Due Diligence’ in the Guiding Principles Coherent?"

(Pix © Larry Catña Backer 2017)

The role of human rights due diligence is central to the understanding of the societal responsibilities of enterprises under the Second Pillar of the UN Guiding Principles for Business and Human Rights. In Is the Concept of ‘Due Diligence’ in the Guiding Principles Coherent?, Jonathan Bonnitcha and Robert McCorquodale, human rights due diligence simultaneously and incoherently refer to (1) a set of processes used by businesses to identify and manage risks and (2) a standard of conduct expected of an actor in order to discharge a responsibility, obligation or duty. This, they argue, suggests that the UNGP imposes a strict responsibility on business enterprises to avoid causing adverse human rights impacts, but imposes a lesser due diligence standard of conduct to prevent adverse human rights impacts caused by third parties with which the enterprise has business relationships.

Recently John Ruggie and John Sherman has responded to this argument in The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: Reply to Professors Bonnitcha and Mccorquodale, which will appear in a future issue of the European Journal of International Law. Ruggie and Sherman suggest that "none of these interpretations [put forward by Bonnitcha and McCorquidale] is aligned with the UNGPs, and they fall well short of the UNGPs’ own scope conditions of enterprises’ responsibility to respect human rights and provide for or contribute to remedy."

Both article and response are well worth reading. They suggest the development of a vibrant interpretive community around the UNGP, one in which the UNGP themselves serve as the definitive and legitimate source of framing the context in which the regulatory management of the human rights responsibilities of enterprises and the human rights duties of states may be understood and elaborated. This post briefly considers some of the arguments of the rich analysis of Bonnitcha and McCorquidale through the lens of Ruggie and Sherman's sophisticated and nuanced response. 

Reshaping the Norwegian Pension Fund Global? From Global-Legal to Welfare State Enhancing Economic Instrument

The Norwegians recently released its Official Norwegian Reports NOU 2017:13 (Summary): The Act relating to Norges Bank and the Monetary System and the organisation of Norges Bank and the management of the Government Pension Fund Global New central bank act.  

The mandate of the Commission has been to propose a new Act relating to Norges Bank and the Monetary System and consider the organisation of Norges Bank and the management of the Government Pension Fund Global (GPFG), also referred to as the Fund. (Report NOU 2017:13 at ¶ 1.1)

The Report includes a number of relevant recommendations for the operation of the Norwegian Pension Fund Global and the structures for its embedding within the Norwegian State apparatus. In its 23 June Press Release, the Norwegian state described a core recommendaiton: "Government Pension Fund Global (GPFG) be managed by a separate statutory entity demerged from Norges Bank."

The Press Release along with brief comments follow.  The Report itself may be accessed here. 

Transnational Regulation of Bangladesh's Economic and Labor Conditions: Agreement Reached by Companies and Global Trade Unions on a 2d Accord on Fire and Building Safety

 (link to original pix here)

I have been writing about the fracturing of law and the rise of extra-national governance structures as the forms of economic globalization mature around transnational production chains. This produces fracture, porosity, permeability and polycentricity in the political structures of states (see, e.g., here, and here) and threatens the representational character of state legitimacy by shifting control of the most intimate relationships between a polity and its government from its own citizens to a host of overlapping transnational and foreign actors (e.g., here). The effect of these changes are more deeply felt in states that host the middle and lower tiers of global production chains (see, e.g., here).  They tend to reinforce traditional power relationships--now grounded on governance and control of economic activity, in place of the old relationships grounded on military power and political control (see, e.g., here). As a consequences, and especially for lower tiered host states, the solidity of the state itself becomes more difficult to maintain. 

Among the most interesting examples of these transformations is Bangladesh--especially in the context of its control of its garment sector.  Those transformations were especially exposed in the aftermath of the collapse of the Rana Plaza factory building  (see, e.g., here). One of the most visible elements of the polycentric structures of law and governance in Bangladesh has been the built by multilateral groups of transnational corporations around fire and building safety (e.g., here).  But those structures have been enough to encourage global actors to build additional governance structures around economic institutions (the production chain) applicable to and through those states in which they operate (e.g., here (transparency pledge here)). 

Among the most influential, and institutionally sophisticated, efforts is the Accord for Fire and Building Safety in Bangladesh. "It is a five year independent, legally binding agreement between global brands and retailers and trade unions designed to build a safe and healthy Bangladeshi Ready Made Garment (RMG) Industry" (here; see also Signatories;  Brochure about the Accord; Download the Accord; Guide for potential signatories ; Accord Annual Report 2015; Accord Annual Report 2014; Accord Annual Report 2013).

The institutional longevity of this arrangement appears to have been strengthened with the recent announcement of the renewal of the Accord for a second term.  That should come as no surprise, and follows form the logic of economic management through global production chains. "The agreement covers all suppliers producing for the signatory companies. In the event that agents or other intermediaries are part of the signatory’s business model, the signatory is responsible to assure that these intermediaries support the signatory’s efforts to fulfill obligations of this Agreement, independent of whether the intermediaries have signed this Agreement or not." (Here). The Accord's Press Release about this follows. The 2018 Accord may be accessed HERE.

Norway Government Pension Fund Global--Responsibility or Duty; Observation or Exclusion?: Hansae Yes24 Holdings Co. Ltd Put Under Observation for Gross Violations of Human Rights

There has been a noticeable widening of what may eventually be a conceptual rift between the Norges Bank and the Ethics Council with respect to the interpretation and (especially with respect to ) the application of the Ethics Guidelines.  On June 29, 2017, the following was posted to its website:

On 5 May 2017, the Council on Ethics recommended to exclude the company Hansae Yes24 Holdings Co. Ltd and its subsidiary Hansae Co. Ltd. due to an unacceptable risk of the companies being responsible for systematic human rights violations. Hansae Co. Ltd. owns garment manufacturing facilities in a number of countries, including Vietnam. The recommendation is based on investigations into working conditions which uncovered that the norm violations at several of the company’s factories in Vietnam have been extensive and have gone on for a long time, and that the company has not previously proved itself capable of generating lasting improvements in working conditions.

On 23 June 2017, Norges Bank decided to place the companies under observation, and has asked the Council to follow developments in the case.

Norges Bank's decision was based, in part, on its assessment that the company has sought to take measures to improve working conditions and that this was sufficient to justify a  continued inter-action as shareholders rather than invoke the more drastic step of excluding the company from the Government Pension Fund Global investment universe.   

Please find the Council’s recommendation here. It also follows below, along with brief comments on the rift in the context of governance culture principles that reflect not merely the institutional-cultural framework of the Norway SWF but also echo the cultural differences at the heart of the UN Governing Principles for Business and Human Rights (and similar frameworks).

Announcing Association for the Study of the Cuban Economy Annual Conference

The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. Those of you in Miami at the end of July might consider participating.

The press release announcing the Conference follows along with the draft Program.

Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data

(Pix © Larry Catá Backer 2016)

For American Independence Day I have gotten into the habit of considering questions touching on the essence of American political ideology (e.g., Democracy Part 36: Representative Democracy in an Age Beyond the State--The United States in a Global Political Society; Ruminations 56: On Symbols in American Political Ideology--From Russian Imperial Anthems to Confederate Battle Flags, Marriage, Legislature, and Statute; Ruminations 52: Surmizing Liberty and Equality in American Political Ideology; Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt).

Yet Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects. And sometimes Americans use their ideology strategically to manage or rework historical perception--but only when it is practical, that is when it furthers some political, social, economic or cultural objective with respect to which sufficient political mobilization can be cultivated.

This year my focus is on the ideology of rights at the dawn of the age of data governance. My suggestion is that the reconstitution of the individual as the convergence point of data (in the private sector) has now given new form to the principles inherent in our Declaration of Independence, and in the process, appears (again) to open the door to the start of a radical transformation of the constitution of the state and the language of power. It is only a matter of time before the state—together with the non-state sectors through which state power will be privatized—will begin to move aggressively not merely to “see” individuals as collections of data, but to use that data to make judgements about those individuals and choices, and to seek to both discipline and control. And yet, that move from rights to data might also be inherent in the notions of rights collectivity at the heart of the Declaration of Independence itself. This post also connects trends U.S. national trends with global movements toward what elsewhere are called social credit systems; for that connection, Index of Posts.

CECC Releases Video From the Event: "Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations"

(Pix Credit here)

I recently posted on the Congressional-Executive Commission on China (CECC) program with its focus on what it views as the un-American way in which China has been dealing with its lawyers, especially as they seek public venues to spotlight issues of potential administrative failures under the law in China. Those hearings, Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations wwere held at HVC-210 Capitol Visitor Center, Washington, DC 20515; Wednesday, June 28, 2017 - 2:00pm to 4:00pm.

CECC has recently made available selected video from those hearings. Summaries and links as provided by CECC follow.

A word beyond the context of the specific instances described in the conference, the difficulties of which bear substantial consideration within the normative frameworks of China and of the United States, both with respect to the nature of the normative systems implicated and perhaps substantial shortcoming in their application. The video clips provide a great insight into the form and orientation of elite thinking on the issues, if only with respect to China. And that makes for the most interesting issue of all--for elite ideology in the United States, of the sort expressed in the videos that follow, tends to be as consistent as one might expect of this sort of project in any state.  What makes for a politics of ideology are the choices that elite makes in the costs it is willing to incur to focus the implications of that ideology in some cases and to ignore others. This applies with equal force to China as to the United States, though each distinguished by the forms of the cages of their respective ideologies and discretionary structures. There is no shame in politics, of course, and one ought to be pleased to see the political class deploying its resources to that task.  Yet, there is something more interesting when that deployment then appears to bend law to the politics of ideology. This is not an American problem, but is generally an interesting mechanics that ought to serve as a caution for those--anywhere--who would derive comfort from any sort of (false) decision between law as norm and law as technique. Indeed, the ease with which one can glide from norm to technique, and form ideology to the politics of discretionary choices in the service of something other than the normative structures of the tools deployed, that is of the political nature of law as it is exercised through discretionary choices, is nicely brought out here.  And it is int way that application is formulated for a specific application that suggests, in a more subtle way, the greatest fears and desires of that elite in the application of those principles within their own system.