I am happy to announce the publication of "The Human Rights Obligations of State-Owned Enterprises: Emerging Conceptual Structures and Principles in National and International Law and Policy," which appears in the Vanderbilt Journal of Transnational law 50(4):827-888 (2017). The article considers the way that classical conceptions of the state owned enterprise, and the regulatory structures created around them, have been changing in the context of globalization and the rise of business and human rights governance regimes. The analysis is built around the 2016 Report of the U.N. Working Group for Business and Human Rights and offers a set of ten challenges and recommendations for further development. The recommendations and challenges suggest the ways in which issues of corporate personality, of sovereign immunity, and asset partitioning will be central to the development of the SOE as an object of law and governance within and among states.
The Abstract, Table of Contents and the Introduction follow. The article can be accessed here.
The Abstract, Table of Contents and the Introduction follow. The article can be accessed here.
The Human Rights Obligations of State-Owned Enterprises: Emerging Conceptual Structures and Principles in National and International Law and Policy
Larry Catá Backer
Abstract: The distinction between the obligations of public and private entities, and their relation to law, is well known in classical political and legal theory. States have a duty that is undertaken through law; enterprises have a responsibility that is embedded in their governance. These fundamental divisions form part of the current international efforts to institutionalize human rights-related norms on and through states and enterprises, and most notably through the U.N. Guiding Principles for Business and Human Rights. The problems of conforming to evolving norms becomes more difficult where states project their authority through commercial enterprises. These state-owned enterprises (SOEs) operate where state duty and enterprise responsibility meet.
This Article takes a close look at the issue of the human rights duties of states as owners of SOEs, and of the responsibilities of SOEs for their own human rights related conduct. The form and substance of these duties and responsibilities are considered in light of three recent developments. The first is the increasingly prominent focus on SOEs as human rights-bearing institutions in international soft law and norms. The second is the substantial change in the direction of US policy in trade and globalization. The other is the maturation of Chinese outbound economic and investment policy, where its construction of an outbound nationalist globalization—the One Belt One Road policy—relies to some extent on the projection of commercial power through Chinese SOEs.
The Article offers a set of challenges and recommendations for further development. These recommendations and challenges suggest that issues of corporate personality, sovereign immunity, asset partition, and regulatory compartmentalization may well hobble the work of embedding human rights within the operation of states as owners and SOEs as public enterprises. To embed human rights more effectively in accordance with evolving international standards, it may be necessary to substantially change contemporary and backwards-looking legal frameworks within which SOEs now operate. Moreover, the Article demonstrates the shortcomings of the current strongly held consensus that the focus of regulatory governance must be grounded in and through a formally constituted enterprise, the SOE, rather than focusing regulation on economic activity irrespective of the form in which it is undertaken. Until these conceptual issues are considered, the effective regulation of SOEs, supply chains, and multinational corporations will remain elusive.
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Table of Contents
I. Introduction
II. Challenging Engagement and Engagement Challenges Through the Lens of the 2016 WG Report
A. Foundations: SOE CSR and Human Rights Compliance
B. The 2016 Working Group Report1. Introduction to Analysis
2. Section I: Introductiona. Background, Aims, and Outline of the Report3. Section II: Normative and Policy Framework Underpinning State Action in Relation to SOEs
b. Defining State-Owned Enterprises
c. State-Owned Enterprises: State of Play
d. Scope and Limits of the Report
a. State Duty to Protect against Abuses by SOEs4. Section III
b. The SOEs as Business Enterprises: the Corporate Responsibility to Respect Human Rights
c. Link between Corporate Governance and Human Rights
a. Setting Expectations5. Section IV: Conclusions and Recommendation
b. Instituting Mechanisms to Set and Manage Expectations through Ownership Arrangements
c. Developing the Relationship between the State and SOE Boards of Directors
d. Ensuring Oversight and Follow Up Mechanisms.
e. Instituting Capacity-building Obligations
f. Imposing Requirements of Human Rights Due Diligence
g.Instituting Requirements of Disclosure, Transparency, and Reporting
h. Developing Effective Remedies
a. Conclusions
b. Recommendations
IV. The Work left to be Done: From Conceptual Lacunae to Implementation
A. Definitions Impede Efficient Regulatory Approaches
B. The Current Approach Exacerbates the Existing Disjunction Between the Legal Duty of States and the Societal Responsibilities of Enterprises
C. The Possibility of Double Standards (Home State-Host State) Detracts From Regulatory Coherence and Promotes Regulatory Hierarchy
D. Extraterritoriality Continues to Plague Regulatory Governance at the Transnational Level
E. There is a Contradiction between the Principle of Active Shareholding and the Legal Protection of Corporate Autonomy and Asset Partitioning
F. Sovereign Immunity Serves as the Procrustean Bed on which State–SOE Relations are Distorted, and with it the Global Economy
G. Encouraging Governance Gaps and Multiple Standards among Classes of Public Economic Activity Produces Regulatory Incoherence within States and Governance Gaps Among Them
H. Legalization through SOE Active Shareholding Damages the UNGP Framework and Calls into Question the Value of Legalization
I. The Perversities of Capacity Building in an Asymmetrical Global Order
J. Data-Driven Regulatory Governance and Its Distorting Effects
V. Conclusion
__________
Consider the antique automobile pictured above. It sits rusting in a shop, still beautiful but now incapable of being driven anywhere and always awaiting repair. One can repair the auto, and perhaps one can drive it. But it remains obsolete, relates poorly to the modern highway and the objectives of driving, and has become less relevant to everyday life. Yet it produces a comforting nostalgia for for the museum or the Sunday drive, but is hardly fit for modern life.
This Article takes that automobile as its starting point. Sovereign conduct on the margins of the law, the title of the Symposium for which this Article was produced,[1] is perhaps no better manifested than in the commercial activities of states. And it is most fully formed when the state—the fundamental political body corporate—reconstitutes part of itself as an economic body corporate to engage in activities in national and transnational markets.[2] Yet, like the antique automobile in the picture above, the conventional law of the commercial activities of states, especially when undertaken in the form of state owned enterprises (SOEs), suggest not merely that old auto, but the futility of bringing life back to a model of economic activity that has not had a sound foundation since the beginning of this century. This futility is most acutely expressed in current debate touching on state and SOE engagement with the human rights consequences of their economic activity. Global elites might better consider the value of that work for the purposes to which it is being deployed. This Article develops that thesis in the context of recent efforts at the public international level to breathe new life into an old machine and suggests the contours of new approaches—a new regulatory machine for new times. This Introduction provides the context for the argument that follows. It sketches the emerging character of SOEs within globalization and the failures of governance regimes to regulate the conduct norms for these enterprises.
The conduct of economic activities through SOEs occupies the space where public duty and private obligation meet—that is, where the legal duties of the state merge with the governance responsibilities of the private organization. The SOE does not easily fit within the classical division of obligation, expressed in political and legal theory, between public and private entities, or into those entities’ respective relationships to law.[3] States have a duty that is undertaken through law;[4] enterprises have a responsibility that is embedded in their governance.[5] These fundamental divisions form part of the current international efforts to institutionalize human rights related norms on and through states and enterprises, most notably through the U.N. Guiding Principles for Business and Human Rights (UNGP).[6] The problems of conforming to evolving norms become more difficult where states project their authority through commercial enterprises—that is, where the societal (and economic) governance order of the enterprise is conflated with the political and legal order of the state.[7]
SOEs have undergone tremendous change in both operation and framework ideology since 1945.[8] The contemporary faces of SOEs also reflect substantial divergences in the character and operation of SOEs. .[9] Within globalization, consensus about the role and operation of SOEs, like that of sovereign wealth funds (SWFs),[10] has moved toward a commercial and private model.[11] For all that change, SOEs remain an important element of national macroeconomic policies and a means through which states may directly operationalize macroeconomic policies through governmental instrumentailities;[12] they continue to serve quite important public purposes.[13] The SOE’s importance is in part the product of the malleability of the SOE concept itself, which has made the device a useful tool for states.[14] That malleability has also permitted SOEs to become an increasingly important factor in globalized economic activity,[15] shaping its patterns and approaches with a reference to the national policy and politics of the owner-state.
But their use by states has also been criticized for inhibiting the construction of robust internal and global markets, in part because of their inefficiency,[16] and in part because such open and robust markets serve as the foundation of economic activity within and beyond states.[17] The difficulty stems from the relationship between states and their economic enterprises. On the one hand, states regulate all economic enterprises—including SOEs (to the extent they are treated like other similarly constituted entities). On the other hand, the state that regulates also owns the regulated entity; the state, in this instance, may distort markets by using its regulatory power to favor its own entities over others. That produces asymmetries in market power that might challenge the efficacy of the emerging market-driven regulatory structures of globalization and its so-called neoliberal order.[18] The asymmetries run beyond the usual problem of state subsidies, from that of states being tempted to tilt markets in favor of SOEs (producing a sort of systemic corruption in markets driven systems), to that of issues of interference with sovereignty when SOEs serve as the apex enterprise in global production chains.[19]
The legal status of an SOE varies from being a part of government to being a stock company with a state as a regular stockholder.[20] But their purpose—national development and the projection of economic power abroad—has remained constant, though with quite distinct differences in emphasis and application among states inclined to use them.[21] The regional variations are quite contextually rooted and historically driven. European models from the 1980s were driven by the principles of free movement basic to the EU treaties, within the context of de-socialization from the 1980s.[22] The contemporary approaches of European states represent a long dialogue (sometimes quite strident) between market-driven states and the brand of market-rejecting European Marxist Leninism that characterized the old Soviet Empire and its satellites in Europe. The apex of this European flirtation with robust SOE-driven economies occurred through the 1970s[23] with substantially different approaches to “socialism” and state management of economic activities across democratic Europe, in contradistinction to the central planning economies of the Soviet Union with a negligible private sector.[24] By the end of the 1990s, that system was in the advanced stages of dismantling. The dismantling of SOE-driven economies was propelled both by the fall of the Soviet Union and by the rise of a level- and unsubsidized-markets ideology within the jurisprudence of the European Court of Justice and reflected in the policies of the institutions of the European Union.[25] The emerging rules constraining state aids reduced the value of state ownership and its relevance, and economic integration made the consequences less drastic.
The Nordic states are a current driving force in European SOEs, under the so-called policy of Nordic Capitalism.[26] Nordic Capitalism is guided by principles of profitability and exemplary responsibility—profits rendered to the state and the state directing the form and effect of the responsibilities it meant to impose.[27] Sweden provides a good example of the model with respect to the operation of Swedish SOEs, in which the state “has a major responsibility to be an active and professional owner. The Government's overall objectives are for the companies to generate value and, where applicable, to ensure that specially commissioned public policy assignments are well performed.”[28] Other European states also maintain state enterprises.[29] France, for example, “has equity positions in 81 French companies, ranging from Alstom to Orange and EDF, worth an estimated €90bn and employing 1.7m people. It keeps a firm guiding hand on hundreds more, ready and able to defend its interests.”[30]
In contrast, developing states find SOEs useful as instruments of internal development, usually for the control and exploitation of national resources.[31] Despite substantial pressure to privatize SOEs at the end of the twentieth century,[32] developing state SOEs might again be thought to serve as a mechanism for state planning and macro-economic policies.[33] Indeed, within developing states, a new turn on state to state economic activities may now be undertaken through SOE investment. In Peru, for example, the Las Bambas mines were purchased in 2014 by a consortium of Chinese SOEs.[34] Especially in the extractives sector SOEs owned by developing states, the role of the state varies substantially “but can include tax collection, assignment of operating rights, monitoring and management of cadasters, setting rules governing performance, ensuring compliance by companies with legislation, regulation and contracts, and approving key decisions by partner companies.”[35]
For developing states, SOEs are a legacy of both the ideologically driven post-colonial policies of their first generation of leaders, and the then fashionable policies that sought to convince developing states that the future lay in export substitution policies and in economic development that would produce a self-sufficient state. Globalization has substantially softened these ideologies and in the process also reduced the vigor with which developing states have sought to build up and deploy SOEs. Yet especially in resource-rich states, SOEs remain an important part of macroeconomic and production management. SOEs are also important stabilizers of labor markets and thus indirectly of political stability.[36] Increasingly, these efforts have been tied to stabilization strategies that are advanced by international financial institutions (IFIs) and in conjunction with state SWFs as the basis of development efforts, including development finance. Not inconsequential is the use of SOEs (and SWFs) as a means of reducing corruption in state where corruption is systemic.[37] Producing autonomous enterprises that may be managed or made accountable through mechanisms not under the control of state officials may sometimes serve to protect those resources. Yet issues of productivity and economic viability continue to weaken these enterprises, even as they continue to be viewed as essential to developing states.[38]
Since the 1980s, The People’s Republic of China has been the site of the most vibrant contemporary development of Marxist-Leninist frameworks for SOEs.[39] It has developed a markets-based socialism grounded in strong markets and state ownership of substantial sectors of the economy.[40] This approach—socialist modernization—is grounded in the notion that all of the productive forces of society must be available to the state through regulatory governance or direct command structures to help the Chinese vanguard party fulfill its core obligation to move society along toward the establishment of a communist society.[41] Through China’s Go-Out Policies (走出去战略)[42] and policies on internationalism,[43] Chinese SOEs have become more and more important in global economic activity. They also have become an important element in the socialization of Chinese approaches to Marxist state planning.[44] These might also become more influential as a form of economic productivity in developing states in which China has invested heavily. Yet, even Chinese SOEs are subject to the inefficiencies of operational objectives that include goals beyond pure financial wealth maximization.[45] And the Chinese economic and political system is incompatible with a goal of complete detachment between state (as regulator) and enterprise (including finance and bank SOEs).[46]
Globalization has also had a profound effect on the character, utility, and operation of SOEs.[47] Once understood (like their private counterparts) and targeted toward national markets, the possibilities of cross-border economic activities and the development of complex and strong production chains have pushed SOEs beyond their borders.[48] SOEs now compete with their private counterparts for global business and are deeply embedded at all levels in global production chains. This produces substantial issues around concepts of competitive neutrality, grounded in fears that states could use their political power to support the economic activities of their SOEs, especially abroad.[49] To that extent, they represent not merely the willingness of SOEs to access growth potential beyond the state, but also the willingness of states to leverage their power through SOE projection in private markets. But sometimes, SOEs tend to substitute for foreign state macroeconomic planning rather than serving in market driven transactions. This appears especially important where SOEs from larger states are used to project public policy through ownership of resources of developing states. Again in Peru, in 2013, Petrobras, a Brazilian SOE, sold its Peruvian assets to a PetroChina, a Chinese SOE.[50]
Despite the growing impact of SOEs in global economic activities, there has been little successful effort to manage their behaviors in the international sphere.[51] That is, there is little by way of law to govern those governance gaps[52] that exist when SOEs (like other economic enterprises) operate between states in ways that make it impossible for a single state to assert effective regulatory oversight over the enterprise and its transactions.[53] There have been some multilateral efforts that have produced soft law,[54] the most important of which has been the OECD’s Guidelines on Corporate Governance of SOEs.[55] These have sought to develop principles of conduct touching on seven areas of governance.[56] The thrust of these guidelines is to ensure that SOEs operate like their private counterparts—that is, to mitigate the public character of these enterprises.[57] The reasons are obvious—SOEs that are more public than private in character may be viewed as political institutions and barred from entry into foreign states. And the sovereign immunity regimes of most states distinguish between public regulatory actions and activities and commercial activities.[58]
Even as the character and use of SOEs has been changing and adjusting to the potentials and risks of global activity, the international community has also sought to develop ever stronger mechanisms for the management of the character of such activity with respect to human rights, sustainability, and fidelity to the numerous international instruments that have sought to develop global consensus norms about economic behavior.[59] Efforts to create a more effective legal structure to embed human rights obligations onto SOEs have recently focused on trade agreements. However, these efforts have produced little by way of substantive changes to date. One of the targets has been in the discussion about the construction and implementation of bilateral trade agreements.[60] A related effort has been undertaken around multilateral agreements.[61] The difficulty tends to focus on issues of equal treatment and on the scope and application of duties, as well as on the inclusion of SOEs (and sometimes of SWFs) as investors in such arrangements.[62]
Beyond those trade related efforts, most other projects have been directed toward formal lawmaking and to the development of “soft” normative principles. Among the international frameworks that have been most influential are those that have been developed for managing behaviors that touch on human rights impacts of economic activity. These are to be distinguished from older efforts aimed generally at the legalization of the corporate social responsibility (CSR) of enterprises.[63] CSR frameworks tend to be state-based and focused on the structures of corporate governance and institutional obligation to society. The debates touch on the primacy of shareholder versus stakeholder benefit models of corporate operation,[64] and they have generally found expression in national law through the management of corporate philanthropy.[65] In contrast, the debate is of a substantially different character where the obligations of economic activity are considered in an international framework. In this context, the principal focus is on the developing normative structures for human rights. This approach is partly structural, in the sense that global governance has tended to be constructed around the pillars of democracy, respect for human rights, and economic development.[66]
These international frameworks center around a few key instruments, two of which are especially influential. The first is the UNGP,[67] introduced earlier, which the U.N. Human Rights Council unanimously endorsed in 2011.[68] The other is the OECD Guidelines for Multinational Enterprises (MNE Guidelines).[69] The MNE Guidelines have existed in one form or another since the 1970s and constitute recommendations addressed by governments to multinational enterprises operating in or from adhering countries. Their object is to provide a soft law framework “for responsible business conduct in a global context consistent with applicable laws and internationally recognised standards.” [70]
The UNGP are structured as three “Pillars”: the First Pillar is the state duty to protect human rights,[71] the Second Pillar is the responsibility of corporations to respect human rights,[72] and the Third Pillar is the remedial mechanism that must be established to implement the state duty and corporate responsibility.[73]
SOEs occupy a dual place within the UNGP. They are to some extent an instrumentality of the state and thus potentially subject to the state duty to protect. At the same time, they function as commercial ventures and are thus subject to the less legalized provisions of the corporate responsibility to respect. Yet their owners have a duty in exercising their ownership responsibilities that may also be constrained by the state duty to protect human rights. In the context of SOEs, UNGP paragraph 4 has proven most relevant, providing that states take “additional steps to protect against human rights abuses” by their SOEs or with respect to entities that receive substantial state support in other ways.[74]
The provisions of the UNGP have been substantially incorporated into the OECD framework through its MNE Guidelines. These are also non-binding, but they incorporate a remedial mechanism in the form of “special instances” (complaints) that may be lodged by individuals and others against enterprises alleging violation of the MNE Guidelines before a “National Contact Point,” an administrative office maintained by states to comply with their OECD member state obligations.[75]
While these efforts have yet to produce legally binding instruments, they have produced increasingly influential systems of soft law. And irrespective of these soft-law instruments, global enterprises have sought to manage their global operations through governance mechanisms that span their production chains, drawing in substantial part on these international instruments.
Since UNGP endorsement in 2011, a Working Group on Business and Human Rights, established at the time of the endorsement, has undertaken formal international engagement with the UNGP.[76] The Working Group and the OECD recently have been considering application of multilateral soft-law frameworks to hybrid entities—SWFs and SOEs. The object is to extend the scope of the UNGP and the MNE Guidelines, but also to make the application of those instruments more coherent. At the same time, they have been following a policy of encouraging states to “lead by example,” supported in this endeavor by Nordic states[77] especially in the context of their efforts touching on SOEs and human rights.
This focus was augmented by the theme adopted by the Working Group for the 5th UN Forum on Business and Human Rights, November 14–16, 2016.[78] One of the most important products of that approach was the delivery, during the summer of 2016, of the Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (the 2016 WG Report).[79] It focused on the application of the UNGP framework to the governance obligations of both SOEs and their owners. The "Note by the Secretariat" explained the reason for the centrality of this theme:
In the report, the Working Group examines the duty of States to protect against human rights abuses involving those business enterprises that they own or control, which are generally referred to as State-owned enterprises. . . . The report calls attention to and clarifies what States are expected to do in their role as owners of enterprises and why. . . . In the present report, the Working Group suggests a range of measures that States could take to operationalize the call to take additional steps with regard to State-owned enterprises, by building on existing international guidance and national practices related to the corporate governance of those enterprises.[80]
The press release announcing the 2016 WG Report explained the focus and scope of the effort.[81] It started with a reminder of an important premise—that states are also economic actors in their own right. Those economic activities, the management of which has been refined over the course of the last century, under conditions of globalization and the emerging normative structures of international human rights norms, now require states and their SOEs to lead by example. But currently SOEs appear to lag behind the private sector in embedding human rights sensibilities in their operations. And this is important as the state economic sector is now quite large.[82]
“Governments are currently sending an incoherent message to businesses,” said human rights expert Dante Pesce, who chairs the U.N. Working Group on Business and Human Rights, during the presentation of the group’s latest report to the U.N. Human Rights Council. “On the one hand, they ask private businesses to respect human rights, and increasingly set out such expectations in law and policy,” Mr. Pesce noted. “On the other hand—barring notable exceptions—they show no great desire to use the means at their disposal to ensure that those enterprises they own or control respect human rights.”[83]
The 2016 WG Report gives itself an ambitious goal: “It is high time for States to show concrete leadership, and require the enterprises they own or control to be role models on human rights,” the expert stressed. “Doing so is part of States’ international legal obligations, and it will only reinforce the legitimacy of States’ expectations towards private businesses.”[84]
This Article examines the emerging issues of the human rights duties of states as owners of SOEs, and of the responsibilities of SOEs for their own human rights-related conduct, through the lens of the 2016 WG Report for the purpose of engaging with its premises and suggestions. The 2016 WG Report represents a very needed focus on one of the more difficult challenges for the UNGP. The state duty to protect differs from the corporate responsibility to respect human rights. The differences present some complexity when it is the state itself that operates the enterprise, directly or indirectly. It is to those issues that the 2016 WG Report, and the analysis that follows, are directed.
The analysis is also informed by the proceedings of the Working Group discussions on SOEs held at the annual U.N. Forum on Business and Human Rights, which took place at the UN headquarters in Geneva (Palais des Nations) from November 14 to 16, 2016.[85] These proceedings are considered in light of two particularly important developments. The first is the substantial change in the direction of US policy in trade and globalization.[86] Its abdication of a retreat from robust multilateralism and the cultivation of a project of nationalist bilateralism has changed the dynamic within which policy globally may develop. The second development is China’s project of outbound nationalism—the One Belt One Road policy—which relies to some extent on the projection of commercial power through Chinese SOEs.[87]
Part II develops a deep analysis of the 2016 WG Report, interrogating its conceptual framework and its implementation programs. Part III then briefly considers the work left to be done, from conceptual lacunae to implementation. It consists of a set of ten challenges and recommendations for further development. These recommendations and challenges suggest that issues of corporate personality, sovereign immunity, asset partition, and regulatory compartmentalization may well hobble the work of embedding human rights within the operation of states as owners and SOEs as public enterprises. More importantly, it demonstrates the shortcomings of the current strongly held consensus that the focus of regulatory governance must be grounded in and through a formally constituted enterprise, the SOE, rather than focusing regulation on economic activity irrespective of the form in which it is undertaken. Until these conceptual issues are considered, the regulation of economic activities—SOEs, supply chains, multinational corporations—will remain elusive.
This Article takes that automobile as its starting point. Sovereign conduct on the margins of the law, the title of the Symposium for which this Article was produced,[1] is perhaps no better manifested than in the commercial activities of states. And it is most fully formed when the state—the fundamental political body corporate—reconstitutes part of itself as an economic body corporate to engage in activities in national and transnational markets.[2] Yet, like the antique automobile in the picture above, the conventional law of the commercial activities of states, especially when undertaken in the form of state owned enterprises (SOEs), suggest not merely that old auto, but the futility of bringing life back to a model of economic activity that has not had a sound foundation since the beginning of this century. This futility is most acutely expressed in current debate touching on state and SOE engagement with the human rights consequences of their economic activity. Global elites might better consider the value of that work for the purposes to which it is being deployed. This Article develops that thesis in the context of recent efforts at the public international level to breathe new life into an old machine and suggests the contours of new approaches—a new regulatory machine for new times. This Introduction provides the context for the argument that follows. It sketches the emerging character of SOEs within globalization and the failures of governance regimes to regulate the conduct norms for these enterprises.
The conduct of economic activities through SOEs occupies the space where public duty and private obligation meet—that is, where the legal duties of the state merge with the governance responsibilities of the private organization. The SOE does not easily fit within the classical division of obligation, expressed in political and legal theory, between public and private entities, or into those entities’ respective relationships to law.[3] States have a duty that is undertaken through law;[4] enterprises have a responsibility that is embedded in their governance.[5] These fundamental divisions form part of the current international efforts to institutionalize human rights related norms on and through states and enterprises, most notably through the U.N. Guiding Principles for Business and Human Rights (UNGP).[6] The problems of conforming to evolving norms become more difficult where states project their authority through commercial enterprises—that is, where the societal (and economic) governance order of the enterprise is conflated with the political and legal order of the state.[7]
SOEs have undergone tremendous change in both operation and framework ideology since 1945.[8] The contemporary faces of SOEs also reflect substantial divergences in the character and operation of SOEs. .[9] Within globalization, consensus about the role and operation of SOEs, like that of sovereign wealth funds (SWFs),[10] has moved toward a commercial and private model.[11] For all that change, SOEs remain an important element of national macroeconomic policies and a means through which states may directly operationalize macroeconomic policies through governmental instrumentailities;[12] they continue to serve quite important public purposes.[13] The SOE’s importance is in part the product of the malleability of the SOE concept itself, which has made the device a useful tool for states.[14] That malleability has also permitted SOEs to become an increasingly important factor in globalized economic activity,[15] shaping its patterns and approaches with a reference to the national policy and politics of the owner-state.
But their use by states has also been criticized for inhibiting the construction of robust internal and global markets, in part because of their inefficiency,[16] and in part because such open and robust markets serve as the foundation of economic activity within and beyond states.[17] The difficulty stems from the relationship between states and their economic enterprises. On the one hand, states regulate all economic enterprises—including SOEs (to the extent they are treated like other similarly constituted entities). On the other hand, the state that regulates also owns the regulated entity; the state, in this instance, may distort markets by using its regulatory power to favor its own entities over others. That produces asymmetries in market power that might challenge the efficacy of the emerging market-driven regulatory structures of globalization and its so-called neoliberal order.[18] The asymmetries run beyond the usual problem of state subsidies, from that of states being tempted to tilt markets in favor of SOEs (producing a sort of systemic corruption in markets driven systems), to that of issues of interference with sovereignty when SOEs serve as the apex enterprise in global production chains.[19]
The legal status of an SOE varies from being a part of government to being a stock company with a state as a regular stockholder.[20] But their purpose—national development and the projection of economic power abroad—has remained constant, though with quite distinct differences in emphasis and application among states inclined to use them.[21] The regional variations are quite contextually rooted and historically driven. European models from the 1980s were driven by the principles of free movement basic to the EU treaties, within the context of de-socialization from the 1980s.[22] The contemporary approaches of European states represent a long dialogue (sometimes quite strident) between market-driven states and the brand of market-rejecting European Marxist Leninism that characterized the old Soviet Empire and its satellites in Europe. The apex of this European flirtation with robust SOE-driven economies occurred through the 1970s[23] with substantially different approaches to “socialism” and state management of economic activities across democratic Europe, in contradistinction to the central planning economies of the Soviet Union with a negligible private sector.[24] By the end of the 1990s, that system was in the advanced stages of dismantling. The dismantling of SOE-driven economies was propelled both by the fall of the Soviet Union and by the rise of a level- and unsubsidized-markets ideology within the jurisprudence of the European Court of Justice and reflected in the policies of the institutions of the European Union.[25] The emerging rules constraining state aids reduced the value of state ownership and its relevance, and economic integration made the consequences less drastic.
The Nordic states are a current driving force in European SOEs, under the so-called policy of Nordic Capitalism.[26] Nordic Capitalism is guided by principles of profitability and exemplary responsibility—profits rendered to the state and the state directing the form and effect of the responsibilities it meant to impose.[27] Sweden provides a good example of the model with respect to the operation of Swedish SOEs, in which the state “has a major responsibility to be an active and professional owner. The Government's overall objectives are for the companies to generate value and, where applicable, to ensure that specially commissioned public policy assignments are well performed.”[28] Other European states also maintain state enterprises.[29] France, for example, “has equity positions in 81 French companies, ranging from Alstom to Orange and EDF, worth an estimated €90bn and employing 1.7m people. It keeps a firm guiding hand on hundreds more, ready and able to defend its interests.”[30]
In contrast, developing states find SOEs useful as instruments of internal development, usually for the control and exploitation of national resources.[31] Despite substantial pressure to privatize SOEs at the end of the twentieth century,[32] developing state SOEs might again be thought to serve as a mechanism for state planning and macro-economic policies.[33] Indeed, within developing states, a new turn on state to state economic activities may now be undertaken through SOE investment. In Peru, for example, the Las Bambas mines were purchased in 2014 by a consortium of Chinese SOEs.[34] Especially in the extractives sector SOEs owned by developing states, the role of the state varies substantially “but can include tax collection, assignment of operating rights, monitoring and management of cadasters, setting rules governing performance, ensuring compliance by companies with legislation, regulation and contracts, and approving key decisions by partner companies.”[35]
For developing states, SOEs are a legacy of both the ideologically driven post-colonial policies of their first generation of leaders, and the then fashionable policies that sought to convince developing states that the future lay in export substitution policies and in economic development that would produce a self-sufficient state. Globalization has substantially softened these ideologies and in the process also reduced the vigor with which developing states have sought to build up and deploy SOEs. Yet especially in resource-rich states, SOEs remain an important part of macroeconomic and production management. SOEs are also important stabilizers of labor markets and thus indirectly of political stability.[36] Increasingly, these efforts have been tied to stabilization strategies that are advanced by international financial institutions (IFIs) and in conjunction with state SWFs as the basis of development efforts, including development finance. Not inconsequential is the use of SOEs (and SWFs) as a means of reducing corruption in state where corruption is systemic.[37] Producing autonomous enterprises that may be managed or made accountable through mechanisms not under the control of state officials may sometimes serve to protect those resources. Yet issues of productivity and economic viability continue to weaken these enterprises, even as they continue to be viewed as essential to developing states.[38]
Since the 1980s, The People’s Republic of China has been the site of the most vibrant contemporary development of Marxist-Leninist frameworks for SOEs.[39] It has developed a markets-based socialism grounded in strong markets and state ownership of substantial sectors of the economy.[40] This approach—socialist modernization—is grounded in the notion that all of the productive forces of society must be available to the state through regulatory governance or direct command structures to help the Chinese vanguard party fulfill its core obligation to move society along toward the establishment of a communist society.[41] Through China’s Go-Out Policies (走出去战略)[42] and policies on internationalism,[43] Chinese SOEs have become more and more important in global economic activity. They also have become an important element in the socialization of Chinese approaches to Marxist state planning.[44] These might also become more influential as a form of economic productivity in developing states in which China has invested heavily. Yet, even Chinese SOEs are subject to the inefficiencies of operational objectives that include goals beyond pure financial wealth maximization.[45] And the Chinese economic and political system is incompatible with a goal of complete detachment between state (as regulator) and enterprise (including finance and bank SOEs).[46]
Globalization has also had a profound effect on the character, utility, and operation of SOEs.[47] Once understood (like their private counterparts) and targeted toward national markets, the possibilities of cross-border economic activities and the development of complex and strong production chains have pushed SOEs beyond their borders.[48] SOEs now compete with their private counterparts for global business and are deeply embedded at all levels in global production chains. This produces substantial issues around concepts of competitive neutrality, grounded in fears that states could use their political power to support the economic activities of their SOEs, especially abroad.[49] To that extent, they represent not merely the willingness of SOEs to access growth potential beyond the state, but also the willingness of states to leverage their power through SOE projection in private markets. But sometimes, SOEs tend to substitute for foreign state macroeconomic planning rather than serving in market driven transactions. This appears especially important where SOEs from larger states are used to project public policy through ownership of resources of developing states. Again in Peru, in 2013, Petrobras, a Brazilian SOE, sold its Peruvian assets to a PetroChina, a Chinese SOE.[50]
Despite the growing impact of SOEs in global economic activities, there has been little successful effort to manage their behaviors in the international sphere.[51] That is, there is little by way of law to govern those governance gaps[52] that exist when SOEs (like other economic enterprises) operate between states in ways that make it impossible for a single state to assert effective regulatory oversight over the enterprise and its transactions.[53] There have been some multilateral efforts that have produced soft law,[54] the most important of which has been the OECD’s Guidelines on Corporate Governance of SOEs.[55] These have sought to develop principles of conduct touching on seven areas of governance.[56] The thrust of these guidelines is to ensure that SOEs operate like their private counterparts—that is, to mitigate the public character of these enterprises.[57] The reasons are obvious—SOEs that are more public than private in character may be viewed as political institutions and barred from entry into foreign states. And the sovereign immunity regimes of most states distinguish between public regulatory actions and activities and commercial activities.[58]
Even as the character and use of SOEs has been changing and adjusting to the potentials and risks of global activity, the international community has also sought to develop ever stronger mechanisms for the management of the character of such activity with respect to human rights, sustainability, and fidelity to the numerous international instruments that have sought to develop global consensus norms about economic behavior.[59] Efforts to create a more effective legal structure to embed human rights obligations onto SOEs have recently focused on trade agreements. However, these efforts have produced little by way of substantive changes to date. One of the targets has been in the discussion about the construction and implementation of bilateral trade agreements.[60] A related effort has been undertaken around multilateral agreements.[61] The difficulty tends to focus on issues of equal treatment and on the scope and application of duties, as well as on the inclusion of SOEs (and sometimes of SWFs) as investors in such arrangements.[62]
Beyond those trade related efforts, most other projects have been directed toward formal lawmaking and to the development of “soft” normative principles. Among the international frameworks that have been most influential are those that have been developed for managing behaviors that touch on human rights impacts of economic activity. These are to be distinguished from older efforts aimed generally at the legalization of the corporate social responsibility (CSR) of enterprises.[63] CSR frameworks tend to be state-based and focused on the structures of corporate governance and institutional obligation to society. The debates touch on the primacy of shareholder versus stakeholder benefit models of corporate operation,[64] and they have generally found expression in national law through the management of corporate philanthropy.[65] In contrast, the debate is of a substantially different character where the obligations of economic activity are considered in an international framework. In this context, the principal focus is on the developing normative structures for human rights. This approach is partly structural, in the sense that global governance has tended to be constructed around the pillars of democracy, respect for human rights, and economic development.[66]
These international frameworks center around a few key instruments, two of which are especially influential. The first is the UNGP,[67] introduced earlier, which the U.N. Human Rights Council unanimously endorsed in 2011.[68] The other is the OECD Guidelines for Multinational Enterprises (MNE Guidelines).[69] The MNE Guidelines have existed in one form or another since the 1970s and constitute recommendations addressed by governments to multinational enterprises operating in or from adhering countries. Their object is to provide a soft law framework “for responsible business conduct in a global context consistent with applicable laws and internationally recognised standards.” [70]
The UNGP are structured as three “Pillars”: the First Pillar is the state duty to protect human rights,[71] the Second Pillar is the responsibility of corporations to respect human rights,[72] and the Third Pillar is the remedial mechanism that must be established to implement the state duty and corporate responsibility.[73]
SOEs occupy a dual place within the UNGP. They are to some extent an instrumentality of the state and thus potentially subject to the state duty to protect. At the same time, they function as commercial ventures and are thus subject to the less legalized provisions of the corporate responsibility to respect. Yet their owners have a duty in exercising their ownership responsibilities that may also be constrained by the state duty to protect human rights. In the context of SOEs, UNGP paragraph 4 has proven most relevant, providing that states take “additional steps to protect against human rights abuses” by their SOEs or with respect to entities that receive substantial state support in other ways.[74]
The provisions of the UNGP have been substantially incorporated into the OECD framework through its MNE Guidelines. These are also non-binding, but they incorporate a remedial mechanism in the form of “special instances” (complaints) that may be lodged by individuals and others against enterprises alleging violation of the MNE Guidelines before a “National Contact Point,” an administrative office maintained by states to comply with their OECD member state obligations.[75]
While these efforts have yet to produce legally binding instruments, they have produced increasingly influential systems of soft law. And irrespective of these soft-law instruments, global enterprises have sought to manage their global operations through governance mechanisms that span their production chains, drawing in substantial part on these international instruments.
Since UNGP endorsement in 2011, a Working Group on Business and Human Rights, established at the time of the endorsement, has undertaken formal international engagement with the UNGP.[76] The Working Group and the OECD recently have been considering application of multilateral soft-law frameworks to hybrid entities—SWFs and SOEs. The object is to extend the scope of the UNGP and the MNE Guidelines, but also to make the application of those instruments more coherent. At the same time, they have been following a policy of encouraging states to “lead by example,” supported in this endeavor by Nordic states[77] especially in the context of their efforts touching on SOEs and human rights.
This focus was augmented by the theme adopted by the Working Group for the 5th UN Forum on Business and Human Rights, November 14–16, 2016.[78] One of the most important products of that approach was the delivery, during the summer of 2016, of the Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (the 2016 WG Report).[79] It focused on the application of the UNGP framework to the governance obligations of both SOEs and their owners. The "Note by the Secretariat" explained the reason for the centrality of this theme:
In the report, the Working Group examines the duty of States to protect against human rights abuses involving those business enterprises that they own or control, which are generally referred to as State-owned enterprises. . . . The report calls attention to and clarifies what States are expected to do in their role as owners of enterprises and why. . . . In the present report, the Working Group suggests a range of measures that States could take to operationalize the call to take additional steps with regard to State-owned enterprises, by building on existing international guidance and national practices related to the corporate governance of those enterprises.[80]
The press release announcing the 2016 WG Report explained the focus and scope of the effort.[81] It started with a reminder of an important premise—that states are also economic actors in their own right. Those economic activities, the management of which has been refined over the course of the last century, under conditions of globalization and the emerging normative structures of international human rights norms, now require states and their SOEs to lead by example. But currently SOEs appear to lag behind the private sector in embedding human rights sensibilities in their operations. And this is important as the state economic sector is now quite large.[82]
“Governments are currently sending an incoherent message to businesses,” said human rights expert Dante Pesce, who chairs the U.N. Working Group on Business and Human Rights, during the presentation of the group’s latest report to the U.N. Human Rights Council. “On the one hand, they ask private businesses to respect human rights, and increasingly set out such expectations in law and policy,” Mr. Pesce noted. “On the other hand—barring notable exceptions—they show no great desire to use the means at their disposal to ensure that those enterprises they own or control respect human rights.”[83]
The 2016 WG Report gives itself an ambitious goal: “It is high time for States to show concrete leadership, and require the enterprises they own or control to be role models on human rights,” the expert stressed. “Doing so is part of States’ international legal obligations, and it will only reinforce the legitimacy of States’ expectations towards private businesses.”[84]
This Article examines the emerging issues of the human rights duties of states as owners of SOEs, and of the responsibilities of SOEs for their own human rights-related conduct, through the lens of the 2016 WG Report for the purpose of engaging with its premises and suggestions. The 2016 WG Report represents a very needed focus on one of the more difficult challenges for the UNGP. The state duty to protect differs from the corporate responsibility to respect human rights. The differences present some complexity when it is the state itself that operates the enterprise, directly or indirectly. It is to those issues that the 2016 WG Report, and the analysis that follows, are directed.
The analysis is also informed by the proceedings of the Working Group discussions on SOEs held at the annual U.N. Forum on Business and Human Rights, which took place at the UN headquarters in Geneva (Palais des Nations) from November 14 to 16, 2016.[85] These proceedings are considered in light of two particularly important developments. The first is the substantial change in the direction of US policy in trade and globalization.[86] Its abdication of a retreat from robust multilateralism and the cultivation of a project of nationalist bilateralism has changed the dynamic within which policy globally may develop. The second development is China’s project of outbound nationalism—the One Belt One Road policy—which relies to some extent on the projection of commercial power through Chinese SOEs.[87]
Part II develops a deep analysis of the 2016 WG Report, interrogating its conceptual framework and its implementation programs. Part III then briefly considers the work left to be done, from conceptual lacunae to implementation. It consists of a set of ten challenges and recommendations for further development. These recommendations and challenges suggest that issues of corporate personality, sovereign immunity, asset partition, and regulatory compartmentalization may well hobble the work of embedding human rights within the operation of states as owners and SOEs as public enterprises. More importantly, it demonstrates the shortcomings of the current strongly held consensus that the focus of regulatory governance must be grounded in and through a formally constituted enterprise, the SOE, rather than focusing regulation on economic activity irrespective of the form in which it is undertaken. Until these conceptual issues are considered, the regulation of economic activities—SOEs, supply chains, multinational corporations—will remain elusive.
NOTES:
[1]. Larry Catá Backer, "Sovereign Conduct on the Margins of the Law" Notes From the Symposium Hosted by the Vanderbilt Journal of Transnational Law, Law at the End of the Day (Feb. 17, 2017), http://lcbackerblog.blogspot.com/2017/02/sovereign-conduct-on-margins-of-law.html [https://perma.cc/XRE6-72BS] (archived Feb. 22, 2017).
[2]. Jan M. Broekman & Larry Catà Backer, Lawyers Making Meaning: The Semiotics of Law in Legal Education II 176–78 (2013).
[3]. See generally, e.g., José Alvarez, International Organizations as Law Makers 45–65 (2005); José Alvarez, Are Corporations ‘Subjects’ of International Law?, 9 Santa Clara J. Int'l L. 1 (2011); A. Claire Cutler, Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy, 27 Rev. Int'l Stud. 133, 133 (2001).
[4]. See, e.g., Thomas M. Franck, Fairness in International Law and Institutions 26–29 (1995).
[5]. See, e.g., David Kinley & Junko Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law, 44 Va. J. Int'l L. 931, 953–56 (2004); see generally Larry Catá Backer, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, 39 Geo. J. Int'l L. 591 (2008) (suggesting measures that conform to the classical division of authority).
[6]. See generally Special Representative of the U.N. Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect, and Remedy" Framework, HR/PUB/11/04 (2011) [hereinafter UNGP].
[7]. See generally, e.g., John G. Ruggie, Business and Human Rights: The Evolving International Agenda, 101 Am. J. Int'l L. 819 (2007). The interstices of that conflation have produced some interesting conceptual scholarship. See, e.g., Eric Posner, Do States Have a Moral Obligation to Obey International Law?, 55 Stan. L. Rev. 1901 (2003).
[8]. Compare, e.g., The Rise and Fall of State-Owned Enterprise in the Western World (Pier Angelo Toninelli ed., 1983) [hereinafter Toninelli] (discussing SOEs before 1945), with Philippe Aghion et al., The Behaviour of State Firms in Eastern Europe, Pre-Privatisation, 38 Eur. Econ. Rev. 1327 (1994) (discussing SOEs in Soviet-dominated Europe through the 1980s), and Toninelli, supra, at 103–253 (discussing Western European SOEs).
[9]. For a discussion of European SOEs within the European Union, see generally Angela Huyue Zhang, The Single-Entity Theory: An Antitrust Time Bomb for Chinese State-Owned Enterprises?, 8 J. Competition L. & Econ. 805 (2012) (discussing anti-trust treatment of European SOEs). For a discussion of the operation and principles of Chinese SOE operation, see generally Fan Gang & Nicholas C. Hope, The Role of State-Owned Enterprises in the Chinese Economy, in US-China Economic Relations in the Next Ten Years: Towards Deeper Engagement and Mutual Benefit 2–17 (2013), www.chinausfocus.com/2022/wp-content/uploads/Part+02-Chapter+16.pdf [https://perma.cc/5362-7MV8] (archived Aug. 27, 2017) [hereinafter Fan Gang]. Many developing states have created SOEs through which to manage their natural resources, especially in the extractive sector. For a discussion, see generally, e.g., Michael L. Ross, The Political Economy of the Resource Curse, 51 World Pol. 297 (1999).
[10]. See generally, e.g., Int’l Working Grp. of Sovereign Wealth Funds, Sovereign Wealth Funds Generally Accepted Principles and Practices: “Santiago Principles” (Oct. 2008), http://www.ifswf.org/sites/default/files/santiagoprinciples_0_0.pdf [https://perma.cc/U7RL-3M3D] (archived Aug. 27, 2017); Larry Catá Backer, Sovereign Wealth Funds, Capacity Building, Development, and Governance, 34 Wake Forest L. Rev. (forthcoming 2017) [hereinafter Backer, Sovereign Wealth Funds].
[11]. See generally, e.g., OECD, Guidelines on Corporate Governance of State-Owned Enterprises (2015 ed.) http://www.oecd-ilibrary.org/docserver/download/2615061e.pdf?expires=1493181688&id=id&accname=guest&checksum=0613E3D8DE30A7861776806095099811)[https://perma.cc/Q4KV-SD76] (archived Aug. 27, 2017) [hereinafter OECD Guidelines].
[12]. See generally, e.g., A. Erin Bass & Subrata Chakrabarty, Resource Security: Competition for Global Resources, Strategic Intent, and Governments as Owners. 45 J. Int'l Bus. Stud. 961, 975–78 (2014); Francisco Flores-Macias, The Return of State-Owned Enterprises, Harv. Int'l Rev. (Apr. 4, 2009) http://hir.harvard.edu/article/?a=1854 [https://perma.cc/ED73-ZFF5] (archived Aug. 27, 2017).
[13]. See generally, e.g., Jing-Lin Duanmu, State-Owned MNCs and Host Country Expropriation Risk: The Role of Home State Soft Power and Economic Gunboat Diplomacy, 45 J. Int'l Bus. Stud. 1044 (2014) (arguing SOEs promote international business); James S. Ang & David K. Ding, Government Ownership and the Performance of Government-Linked Companies: The Case of Singapore, 16 J. Multinational Fin. Mgmt. 64 (2006).
[14]. See generally, e.g., Aldo Musacchio & Sergio G. Lazzarini, Leviathan in Business: Varieties of State Capitalism and Their Implications for Economic Performance (May 30, 2012) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2070942 [https://perma.cc/L8DF-ZC9N] (archived Aug. 27, 2017) [hereinafter Musacchio].
[15]. See generally, Alvaro Cuervo-Cazurra et. al., Governments as Owners: State-Owned Multinational Companies, 45 J. Int'l Bus. Stud. 919 (2014); Lin Cui & Fuming Jiang, State Ownership Effect on Firms' FDI Ownership Decisions Under Institutional Pressure: A study of Chinese Outward-Investing Firms, 43 J. Int'l Bus. Stud. 264 (2012).
[16]. See generally, e.g., Gabriel Wildrau, China’s state-owned zombie economy, Fin. Times (Feb. 29, 2016), https://www.ft.com/content/253d7eb0-ca6c-11e5-84df-70594b99fc47 [https://perma.cc/JA7W-S52T] (archived Aug. 27, 2017); Julia Ya Qin, WTO Regulation of Subsidies to State-Owned Enterprises (SOEs) - A Critical Appraisal of the China Accession Protocol, 7 J. Int´l Econ. L. 863 (2004). But see Musacchio, supra note 16.
[17]. For an early version, see generally Douglas F. Lamont, Foreign State-owned Enterprises: Threat to American Business (1976). For contemporary consideration of the issue, see generally, e.g., Ian Bremmer, The End of the Free Market: Who Wins the War Between States and Corporations? (2010); see also Fernanda Ribeiro Cahen, Internationalization of State-Owned Enterprises Through Foreign Direct Investment, 55 Rev. de Administração de Empresas 645, 653–55 (2015) .
[18] See Daniel J. Ikenson et al., Should Free Traders Support the Trans-Pacific Partnership? An Assessment of America’s Largest Preferential Trade Agreement, 54–56 (CATO Institute, Working Paper No. 39, 2016), https://object.cato.org/sites/cato.org/files/pubs/pdf/working-paper-39_3.pdf [https://perma.cc/C9ZM-DCPH] (archived Aug. 27, 2017).
[19]. For the OECD position, see generally OECD, Competitive Neutrality: Maintaining a Level Playing Field Between Public and Private Business (2012). An apex enterprise is the company (however organized) that resides at the top of the production chain, that is, that effectively owns or controls the production chain that defines the scope of its economic activities. Most multinational enterprises are apex enterprises. The relationship among apex enterprises can be complex. For example, Foxconn can be seen as an apex enterprise producing or assembling products for wholesale markets, yet Foxconn is also downstream of Apple’s production chain for iphones. Larry Catá Backer, Realising Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatization and the Role of Companies in China and India, in Socio-Economic Rights in Emerging Free Markets: Comparative Insights From India and China 44, 59–63 (Surya Deva ed., 2016).
[20]. See Wei Cui, Taxing State-Owned Enterprises: Understanding a Basic Institution of State Capitalism, 52 Osgoode Hall L.J. 775, 787–90 (2015).
[21]. See generally, e.g., Hans Christiansen, The Size and Composition of the SOE Sector in OECD Countries (OECD Corporate Governance, Working Paper No. 5, 2011), http://dx.doi.org/10.1787/5kg54cwps0s3-en [https://perma.cc/4J2J-ZR7L] (archived Aug. 27, 2017) [hereinafter Christiansen].
[22]. See, e.g., Nicola Bellini, The Decline of State Owned Enterprise and the New Foundations of the State-Industry Relationship, in Toninelli, supra note 10, at 25–48; see generally Carles Boix, Privatizing the Public Business Sector in the 1980s: Economic Performance, Partisan Responses, and Divided Governments, 27 Brit. J. of Pol. Sci. 473 (1997).
[23]. See William L. Megginson & Jeffrey M. Netter, From State to Market: A Survey of Empirical Studies on Privatization, 39 J. of Econ. Literature 321, 323 (2001) (“Until Margaret Thatcher's conservative government came to power in 1979, the answer to this debate in the United Kingdom and elsewhere was that the government should at least own the telecommunications and postal services, electric and gas utilities, and most forms of non-road transportation (especially airlines and railroads). Many politicians also believed the state should control certain 'strategic' manufacturing industries, such as steel and defense production. In many countries, state-owned banks were also given either monopoly or protected positions.”); see also Ulrich Wengenroth, The Rise and Fall of the State Owned Enterprise in Germany, in Toninelli, supra note 10, at 103–253.
[24]. See generally, e.g., Richard E. Ericson, The Classical Soviet-Type Economy: Nature of the System and Implications for Reform, 5 J. Econ. Persp. 11 (1991).
[25]. See the “Golden Share” cases. See Case C-367/98, Comm'n of the European Communities [CEC] v. Portuguese Republic, 2002 E.C.R. I-4731; Case C-483/99, CEC v. French Republic, 2002 E.C.R. I-4781; Case C-503/99, CEC v. Kingdom of Belgium, 2002 E.C.R. I-4812; Case C-463/00, CEC v. Kingdom of Spain, 2003 E.C.R. I-4581; Case C-98/01, CEC v. United Kingdom of Great Britain and Northern Ireland, 2003 E.C.R. I-4644; Case C-112/2005, CEC v. Federal Republic of Germany (Volkswagen), 2007 E.C.R. I-9020; Case C-463/04 and C-464/04, Federconsumatori v. Comune di Milano, 2004 E.C.R. I-10433. For a discussion of the importance of the “Golden Share” cases, see generally Larry Catá Backer, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, And the Public Law Element in Private Choice of Law, 82 Tul. L. Rev. 1801 (2008).
[26]. See generally, e.g., Torben M. Andersen et al., The Nordic Model: Embracing globalization and sharing risks (2007), https://economics.mit.edu/files/5726 [https://perma.cc/H3B4-7QRH] (archived Aug. 27, 2017); The Nordic Countries: The Next Supermodel, The Economist (Feb. 2, 2013), http://www.economist.com/news/leaders/21571136-politicians-both-right-and-left-could-learn-nordic-countries-next-supermodel [https://perma.cc/5F4Y-7C9L].
[27]. See Sari Kuvaja, Expectations for state-owned companies: profitability and exemplary responsibility, Nordic Morning (2015), http://reporting2015.nordicmorning.com/en/corporate-responsibility/expectations-for-state-owned-companies-profitability-and-exemplary-responsibility.html [https://perma.cc/3SJV-XLSK] (archived Aug. 27, 2017).
[28]. See Objectives for state-owned companies, Government Offices of Sweden, http://www.government.se/government-policy/state-owned-enterprises/goals-for-state-owned-companies/ (last updated Mar. 10, 2015) [https://perma.cc/7KGY-EBNU] (archived Aug. 27, 2017). The Swedish state speaks here of the use of its ownership to move forward balanced gender distribution policies, economic goals, sustainability goals, and additional goals assigned to specific enterprises. Id.
[29]. See, e.g., Christiansen, supra note 23 (describing substantial investment in enterprises across OECD states, both in terms of overall employment and in terms of investment in enterprises). For Germany, see Germany - Competition from State-Owned Enterprises, Export.gov (Jan. 17, 2017), https://www.export.gov/article?id=Germany-Competition-from-State-Owned-Enterprises [https://perma.cc/V3CQ-5N25] (archived Aug. 27, 2017).
[30] See Michael Strothard, France: The Politics of State Ownership, Fin. Times (Nov. 13, 2016), https://www.ft.com/content/9be75d5c-a72e-11e6-8898-79a99e2a4de6 [https://perma.cc/7V8S-DML6] (archived Aug. 27, 2017).
[31]. See, e.g., OECD, State-Owned Enterprises in the Development Process 34 (2015) (“If the government of a low-income country embarks on a strategy of catch-up industrialisation, a case can certainly be made for establishing SOEs to carry out key functions.”).
[32]. See, e.g., John Nellis, The Evolution of Enterprise Reform in Africa: From State-owned Enterprises to Private Participation in Infrastructure —and Back? 37 (Energy Sector Mgmt. Assistance Program, Technical Paper 084, 2005), https://www.esmap.org/sites/esmap.org/files/08405.Technical%20Paper_The%20Evolution%20of%20Enterprise%20Reform%20in%20Africa%20From%20State-owned%20Enterprises%20to%20Private%20Participation%20In%20Infrastructure%20and%20Back.pdf [https://perma.cc/5ETW-K37Y] (archived Aug. 27, 2017).
[33]. See Ha-Joon Chang, State-Owned Enterprise Reform 8–14 (2007), https://esa.un.org/techcoop/documents/pn_soereformnote.pdf [https://perma.cc/NQ8T-KSJF] (archived Aug. 27, 2017).
[34] See Ximena Benavides Reverditto, Economic Development and State Owned Enterprises (SOEs) 1 (2014), https://law.yale.edu/system/files/documents/pdf/SELA14_Benavides_CV_Eng.pdf [https://perma.cc/B56M-EDBM] (archived Aug. 27, 2017).
[35] See Nat. Res. Governance Instit., State Participation and State-Owned Enterprises: Roles, Benefits, and Challenges 4 (2015), https://resourcegovernance.org/sites/default/files/nrgi_State-Participation-and-SOEs.pdf [https://perma.cc/GD4F-U5BA] (archived Aug. 27, 2017).
[36]. See generally, e.g., Arkamoy Dutta Majumdar, West Bengal to restructure state-owned enterprises, Live Mint (Feb. 12, 2017), http://www.livemint.com/Companies/zUcXsREgJSe875buUFuGiL/West-Bengal-to-restructure-stateowned-enterprises.html [https://perma.cc/BBM7-Y78Z] (archived Aug. 27, 2017) (“The government said at least 16 companies are to be merged and five subsidiaries of West Bengal Electronics Industry Development Corp. Ltd, or Webel, to be wound up. The state would, after the restructuring, continue to run 44 focused enterprises, most of which, though, are loss-making. Chief minister Mamata Banerjee reiterated that this restructuring will not lead to job cuts.”).
[37]. But see SOEs holding regulation not in line with laws, says economist, The Jakarta Post (Feb. 1, 2017), http://www.thejakartapost.com/news/2017/02/01/soes-holding-regulation-not-in-line-with-laws-says-economist.html [https://perma.cc/HFQ4-BNB6] (archived Aug. 27, 2017).
[38]. See e.g., PM says too many state-owned enterprises underperforming, Saturday Express (Jan. 18 2017), http://www.trinidadexpress.com/20170118/business/pm-says-too-many-state-owned-enterprises-underperforming [https://perma.cc/5BUF-8XC6] (archived Aug. 27, 2017) (“In his address, Rowley said that since the 1960’s government has become involved in various aspects of the local economy to the point that this policy has brought “us to our present situation where we have about 100 state enterprises and their subsidiaries.”); BIDV Securities: Reform still needed in Vietnam’s state-owned enterprises, World Fin. (Feb. 6 2017), http://www.worldfinance.com/inward-investment/asia-and-australasia/bidv-securities-reform-still-needed-in-vietnams-state-owned-enterprises [https://perma.cc/K68B-226U] (archived Aug. 27, 2017).
[39]. For a critical assessment, see generally, e.g., Wendy Leutert, Challenges Ahead in China’s Reform of State-Owned Enterprises, 21 Asia Pol'y 83 (2016) .
[40]. This policy is founded on the concept of socialist modernization and its principal object to develop Chinese productive forces under the leadership of the Communist Party to advance the development of the state and its population. See generally, e.g., China’s Socialist Modernization (Yu Guangyuan ed., 1984) (discussing China's transition to a socialist economy); Qizhi Zhang, An Introduction to Chinese History and Culture 441–467 (2015).
[41]. See Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (The 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16 Transnat'l L. & Contemp. Probs. 101, 133–47 (2008); see also Jiang Shigong, How to Explore the Chinese Path to Constitutionalism? A Response to Larry Catá Backer, 40 Mod. China 196, 202–03 (2013).
[42]. See generally, e.g., Hongying Wang, A Deeper Look at China’s “Going Out” Policy, CIGI (Mar. 2016), https://www.cigionline.org/sites/default/files/hongying_wang_mar2016_web.pdf [https://perma.cc/DYQ7-B2T5] (archived Aug. 27, 2017).
[43]. See generally Chen Zhimin, Nationalism, Internationalism and Chinese Foreign Policy, 14 J. Contemp. China 35 (2006).
[44]. “Major problems plaguing the entities uncovered through the inspections include corruption, weakening of the Party's leadership, and procedural violations in personnel selection and placement, according to the findings released by the CCDI on Thursday.” CCDI warns of corruption risks after inspections, Xinhuanet (Feb. 4, 2016), http://news.xinhuanet.com/english/2016-02/05/c_135075770.htm [https://perma.cc/WS4Z-T7PQ] (archived Oct. 22, 2017). See also (CPC Central Committee and State Council On Creating a Healthy Environment for Entrepreneurship) 中共中央国务院关于营造企业家健康成长环境 弘扬优秀企业家精神更好发挥企业家作用的意见, http://politics.people.com.cn/n1/2017/0926/c1001-29558449.html [https://perma.cc/CT5L-KR2P] (archived Oct. 22, 2017).
[45]. See, e.g., China says debt risk for main state firms is controllable, The Bus. Times (Jan. 27, 2017), http://www.businesstimes.com.sg/government-economy/china-says-debt-risk-for-main-state-firms-is-controllable [https://perma.cc/J26N-W3B4] (archived Sept. 6, 2017) ("While many state companies are bloated and inefficient, China has relied on them more heavily over the past year to generate economic growth in the face of cooling private investment.").
[46] It has been suggested that
Given the long history of SOEs and the enormous social responsibilities imposed on them, China’s gradual approach to SOE reform is understandable. Today, deficiencies in China’s market infrastructure continue to prevent the government from fully allowing free market forces to run the economy. The government will continue, therefore, to have an important role to play in resolving these transition problems in China’s development.See Fan Gang, supra note 11, at 3.
[47]. See generally Ian Bremmer, The New Rules of Globalization, Harv. Bus. Rev. (Jan.–Feb. 2014), https://hbr.org/2014/01/the-new-rules-of-globalization [http://perma.cc/CZ8S-PAZR] (archived Aug. 24, 2017); Hao Liang et al., An Anatomy of State Control in the Globalization of State-Owned Enterprises, 46(2) J. Int’l Bus. Stud. 223 (2015) (considering golabalization’s effect on SOEs).
[48]. See, e.g., Dali L. Yang, Remaking the Chinese Leviathan 33 (2004).
[49]. See, e.g., OECD, Policy Roundtables, State Owned Enterprises and the Principle of Competitive Neutrality 9 (2009), https://www.oecd.org/daf/competition/46734249.pdf [http://perma.cc/82KA-23X3] (archived Aug. 24, 2017) (“Due to their privileged position SOEs may negatively affect competition and it is therefore important to ensure that, to the greatest extent possible consistent with their public service responsibilities, they are subject to similar competition disciplines as private enterprises.”); Antonio Capobianco & Hans Christiansen, Competitive Neutrality and State-Owned Enterprises: Challenges and Policy Options 3 (OECD Corporate Governance Working Papers No. 1, 2011), http://www.oecd-ilibrary.org/governance/competitive-neutrality-and-state-owned-enterprises_5kg9xfgjdhg6-en [https://perma.cc/GY8F-UEYB] (archived Sept. 17, 2017).
[50] Reverditto, supra note 36.
[51]. See OECD, State-Owned Enterprises as Global Competitors 27 (2016), http://www.keepeek.com/Digital-Asset-Management/oecd/finance-and-investment/state-owned-enterprises-as-global-competitors_9789264262096-en#.WTNqHcm1tPM [http://perma.cc/C326-2S7X] (archived Aug. 24, 2017).
[52] See John G. Ruggie, Special Representative of the Secretary General, Protect, Respect, Remedy: A Framework for Business and Human Rights, Human Rights Council of the United Nations, at 3, U.N. Doc. A/HRC/8/5 (April 11, 2008). But see Penelope Simons & Audrey Macklin, The Governance Gap: Extractive Industries, Human Rights and the Home State Advantage 154 (2014) (discussing 2013 reporting standard imposed on SOEs involved in extractive projects). See generally Tara J. Melish & Errol Meidinger, Protect, Respect, Remedy and Participate: ‘New Governance’ Lessons for the Ruggie Framework, in The U.N. Guiding Principles on Business and Human Rights: Foundations and Implementation 303, 305–06 (Radu Mares ed., 2011).
[53]. I have considered this in the broader context of transnational public economic activity with a focus on China. See Larry Catá Backer, Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State-Owned Enterprises, and the Chinese Experience, 19 Transnat'l L. & Contemp. Probs. 3, 8 (2010) (discussing regulatory oversight over Chinese SOEs in the context of transnational public economic activity).
[54] See Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 Int’l Org. 421, 422 (2000); Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 J. of Legal Analysis 171, 198 (2010).
[55]. OECD Guidelines, supra note 13.
[56]. These include: I. Rationales for state ownership; II. The state’s role as an owner; III. State-owned enterprises in the marketplace; IV. Equitable treatment of shareholders and other investors; V. Stakeholder relations and responsible business; VI. Disclosure and transparency; and VII. The responsibilities of the boards of state-owned enterprises. Id.
[57]. See id. ¶¶ III–IV.
[58]. The issue of sovereign immunity is of long standing. See John G. Hervey, The Immunity of Foreign States When Engaged in Commercial Enterprises: A Proposed Solution, 27 Mich. L. Rev. 751, 774 (1929). The issue of sovereign immunity became particularly pressing after 1945 when emerging Western markets systems confronted Soviet state based economic activity. See Bernard Fensterwald, Jr., Sovereign Immunity and Soviet State Trading, 63 Harv. L. Rev. 614, 634 (1950); Michael Brandon, Sovereign Immunity of Government-Owned Corporations and Ships, 39 Cornell L. Q. 425, 442 (1954); George K. Foster, Collecting from Sovereigns: The Current Legal Framework for Enforcing Arbitral Awards and Court Judgments against States and Their Instrumentalities, and Some Proposals for Its Reform, 25 Ariz. J. Int'l & Comp. L. 665, 671 (2008). See generally A. F. M. Maniruzzaman, Sovereign Immunity and the Enforcement of Arbitral Awards against State Entities: Recent Trends in Practice, in Am. Arb. Ass’n Handbook on Int’l Arb. Prac. 338 (2010), http://www.academia.edu/519348/Sovereign_Immunity_and_the_Enforcement_of_Arbitral_Awards_against_State_Entities_Recent_Trends_in_Practice [http://perma.cc/BZD4-XQTR] (archived Aug. 25, 2017).
[59]. See, e.g., Camilla Wee, Regulating the Human Rights Impact of State-owned Enterprises: Tendencies of Corporate Accountability and State Responsibility 4 (2008).
[60]. See, e.g., Paul Blyschak, State-Owned Enterprises and International Investment Treaties: When are State-Owned Entities and their Investments Protected?, 6 J. Int’l L. & Int’l Rel. 1, 14 (2011); Norah Gallagher, Role of China in Investment: BITs, SOEs, Private Enterprises, and Evolution of Policy, 31 ICSID Rev. 88, 93 (2016); Junji Nakagawa, Regulatory Harmonization Through FTAs and BITs: Regulation of State Owned Enterprises (SOEs) (Soc’y of Int’l Econ. Law, Working Paper No. 55, 2012), https://ssrn.com/abstract=2103237 [http://perma.cc/8DQZ-K939] (archived Sept. 7, 2017).
[61]. See, e.g., Ines Willemyns, Disciplines on State-Owned Enterprises In TPP: Have Expectations Been Met? 15–18 (Leuven Ctr. for Glob. Governance Studies, Working Paper No. 168, 2016), https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp161-170/wp-168-willemyns-website.pdf [https://perma.cc/H88P-WJZG] (archived Aug. 25, 2017) (discussing the rules placed on SOEs at the multilateral level).
[62] See, e.g., Yuri Shima, The Policy Landscape for International Investment by Government-controlled Investors: A Fact Finding Survey 10 (OECD, Working Paper No. 2015/01, 2015), http://www.oecd-ilibrary.org/finance-and-investment/the-policy-landscape-for-international-investment-by-government-controlled-investors_5js7svp0jkns-en [https://perma.cc/ZNF9-TAVE] (archived Sept. 17, 2017).
[63] I have noted at greater length elsewhere on the differences between CSR and business and human rights:
At its broadest, it refers to the extent to which an aggregation of capital that is recognized as a separate legal person must, may, or should, operate in accordance with certain standards of conduct. That mimics the general conversation a society has about the legal, civic, ethical and societal obligations of its citizens. But . . . CSR has acquired a quite specific and distinct meaning. It references the question of the extent of the legal, social, civic and moral obligations of enterprises in their operations. . . . CSR has also become a key element of international debates. . . . But the debate is of a substantially different character. In this context, the principal focus was on the developing normative structures for human rights.Larry Catá Backer, The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards, 21 Lewis & Clark L. Rev. (forthcoming 2017).
[64] See Adolph A. Berle, Jr., The 20th Century Capitalist Revolution 169 (1954) (discussing the stakeholder benefit model of corporate operation); Milton Friedman, Capitalism and Freedom 133–34 (University of Chicago Press 1962); see generally Stephen M. Bainbridge, In Defense of the Shareholder Wealth Maximization Norm: A Reply to Professor Green, 50 Wash. & Lee L. Rev. 1423 (1993) (providing a more recent defense of the arguments against the doctrine of corporate social responsibility).
[65] Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law, 37 Colum. Hum. Rts. L. Rev. 287, 294–306 (2006).
[66] See, e.g., What is CSR?, Australian Centre for Corporate Social Responsibility, http://accsr.com.au/what-is-csr/ [https://perma.cc/V2NQ-UQQ9] (archived Aug. 25, 2017) (“The view of CSR as a global governance mechanism emerges from the global trans-national institutions that developed in the twentieth century, such as the United Nations, the International Labour Organisation, The World Bank and the Organisation for Economic Cooperation and Development (OECD), together with international treaties and agreements negotiated by governments and non-government organisations.”).
[67] UNGP, supra note 8.
[68] Human Rights Council, Human Rights and Transnational Corporations and other Business Enterprises, U.N. Doc. A/HRC/RES/17/4 (July 6, 2011), https://business-humanrights.org/sites/default/files/media/documents/un-human-rights-council-resolution-re-human-rights-transnational-corps-eng-6-jul-2011.pdf [https://perma.cc/U6CH-QF9R] (archived Aug. 26, 2017).
[69] Organization for Economic Co-operation and Development (OECD), OECD Guidelines for Multinational Enterprises (2011), https://www.oecd.org/corporate/mne/48004323.pdf [https://perma.cc/K6Z9-4QQK] (archived Aug. 26, 2017) [hereinafter MNE Guidelines].
[70] Id. at 3.
[71]. UNGP, supra note 8, at 3.
[72]. Id. at 13.
[73]. Id. at 27.
[74]. Id. at 6.
[75] The National Contact Points (NCP) are as close as soft law frameworks have come to development of an enforcement framework. OECD states and otherwise adhering governments are obliged to establish NCP and vest them with authority under the OECD MNE Guidelines to advance the objectives of the OECD corporate governance project, and most importantly serve as a mechanism through which allegations of violations of the MNE Guidelines may be raised. See MNE Guidelines, supra note 69, at 71–74 (“The National Contact Point will contribute to the resolution of issues that arise relating to implementation of the Guidelines in specific instances in a manner that is impartial, predictable, equitable and compatible with the principles and standards of the Guidelines.”); see generally Larry Catá Backer, Rights And Accountability In Development (Raid) v. Das Air and Global Witness v. Afrimex; Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10 Melb. J. of Int’l L. 258 (2009).
[76]. See Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, OHCHR, http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx [https://perma.cc/3AHR-58KG] (archived Aug. 28, 2017).
[77]. And principally the Ministry of Enterprise and Innovation, Government Offices of Sweden. See OHCHR, Leadership and Leverage: Embedding Human Rights in the Rules and Relationships that Drive the Global Economy, 2016 UN Forum on Business and Human Rights Forum Programme, http://www.ohchr.org/Documents/Issues/Business/ForumSession5/PoW_printable.pdf [https://perma.cc/8EDX-8XX8] (archived Aug. 28, 2017).
[78]. See 2016 United Nations Forum on Business and Human Rights, OHCHR, http://www.ohchr.org/EN/Issues/Business/Forum/Pages/2016ForumBHR.aspx [https://perma.cc/T7X7-76ZF] (archived Aug. 28, 2017) [hereinafter OHCHR, 2016 UN Forum]. The UN Human Rights Council, under paragraph 12 of its resolution 17/4, established the Forum to serve as a key global platform for stakeholders to “discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” It is guided by the Working Group on Business and Human Rights.
[79]. U.N. Secretariat, Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. A/HRC/32/45 (May 4, 2016) [hereinafter WG, 2016 Report].
[80] Id. at 1.
[81]. See State-owned Enterprises Must Lead by Example on Business and Human Rights – New UN Report, OHCHR (June 17, 2016) [hereinafter OHCHR, SOEs], http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20123&LangID=E [https://perma.cc/F6ED-CJUB] (archived Aug. 28, 2017) .
[82]. Id. (“Many States the world over manage large portfolios on State-owned enterprises (SOEs), which have risen as significant actors in the global economy, active at home and abroad in diverse sectors such as energy, utilities, infrastructure, transports, telecommunications, and banking. The proportion of SOEs among Fortune Global 500 companies has grown from 9.8% in 2005 to 22.8% in 2014, with US $389.3 billion of profit and US $28.4 trillion in assets.”).
[83]. OHCHR, SOEs, supra note 83.
[84]. Id.
[85]. OHCHR, 2016 UN Forum, supra note 78.
[86]. See Larry Catá Backer, Ruminations 70: American Anti-Multilateralism and the Prospects for a Comprehensive Treaty for Business and Human Rights, Law at the End of the Day (Feb. 8, 2017, 8:44 PM), http://lcbackerblog.blogspot.com/2017/02/ruminations-70-american-anti.html [https://perma.cc/3KCX-WRP9] (archived Aug. 29, 2017) (considering the effects of the US rebooting its policy in trade and globalization); Larry Catá Backer, The 45th Presidency and Multilateral Treaties--Fear, Loathing and a Repudiation of 20th Century Americanism, Law at the End of the Day (Feb. 2, 2017, 10:53 PM), http://lcbackerblog.blogspot.com/2017/02/the-45th-presidency-and-multilateral.html.
[87]. See TDM Call for Papers: Special issue on "China's One Belt, One Road: Economic Changes, Power Shifts and Prospects / Consequences for the World of Arbitration", Transnat’l Disp. Mgmt. (Jan. 27, 2017), https://www.transnational-dispute-management.com/news.asp?key=1652 [https://perma.cc/MWD9-AT52] (archived Aug. 29, 2017).
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