Thursday, May 30, 2019

Event Announcement--Cuba's Economic Model: Continuity Versus Change--CUNY Bildner Center 3 June 2019

(Pix Credit HERE)

I have been focusing on Cuba's economic model in recent work.  My book, Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era (Little Sir Press, 2018). I suggested the critical importance of ideology to the construction and evolution of the Cuban political-economic model. More recently I have suggested the way that ideological premises help shape the Cuban political economic model, constrain the possibilities of itys modification, and shape the way that Cuba approaches even the most critical implementation policies--in this case reintegration into global production orders (Remarks: "The Fundamental Contradiction of Cuban Socialism in the “New Era”: Economic Reintegration Preserving the Revolutionary Moment").

Prominent academics have also been advancing knowledge in this area in important ways. Among them are Carmelo Mesa Lago who has been at the forefront of study of the Cuban economy and its many transformations as it has sought to implement an economic model that changes at the margins with implementation "experiments" and approaches that have varied widely over the course of the last half century. His work has been influential on both sides of the Straits of Florida and continues to drive debate in the field.
And Mario González Corso,  who is is an associate professor at the department of economics and business at Lehman College of the City University of New York (CUNY), where he also serves as director of the Masters in Science in Business Program, and who has done important work on the Cuban tourism sector.

CUNY's Bildner Center has brought these two outstanding academics together for a program touching on these important issues. The title of the program, "Cuba's Economic Model: Continuity Versus Change," considers the effects on the ground of Cuban efforts to navigate between its ideologies and the realities it faces in the current era. 

Information about the program follows.

Sunday, May 26, 2019

Remarks: "The Fundamental Contradiction of Cuban Socialism in the “New Era”: Economic Reintegration Preserving the Revolutionary Moment" Delivered at the Latin American Studies Association Annual Conference for the Panel on Cuba in Comparative Perspective

I was delighted to have been asked to deliver remarks as part of the panel organized by Silvia Pedraza (University of Michigan) for a panel on Cuba in Comparative Analysis organized by the Association for the Study of the Cuba Economy for the Latin American Studies Association Annual Meeting held in Boston, MA 27 May 2019.

The text of my remarks,  The Fundamental Contradiction of Cuban Socialism in the “New Era”: Economic Reintegration Preserving the Revolutionary Moment, along with the associated PowerPoint Slides, follows.It may be downloaded (CPE Working Paper 5/1 (May 2019) from the Coalition for Peace & Ethics Website HERE.

Saturday, May 25, 2019

How Much is Your Body Shape Data Worth? AI and the Business of Data Harvesting to Understand Body Shape Diversity

In a prior post (OECD Principles on Artificial Intelligence and Some Brief Reflections) I offered some brief reflections on the continuing move toward the management of Artificial Intelligence (AI) now broadly construed to mean the production chain for regulation that starts with data harvesting, proceeds through values based analytics and consequence based algorithms, and makes it possible for a machine to make a decision on the basis of that process.

I noted that the obsession with the leading role of the state left open a large void within which the private economic powers might be able to develop their own codes of ethics and operating premises with respect to the entire production chain of data driven governance ("The Algorithmic Governance Contract and the (Internal) law of Production Chains"). More importantly, perhaps, and especially within the governance fields of large transnational economic institutions, the focus on values based AI left largely untouched the connection between these values as AI as property. And not just AI as property--but the value as property of the key value enhancing elements of the AI production chain--data, proprietary forms of analytics; proprietary formulations of algorithms, and the AI decision making machine (hardware and software plus coding) itself. 
Crucially, data collection and analysis also provides firms with feedback mechanisms that allow them to iteratively hone their extraction processes. By constantly surveilling us, for example, Amazon gets better at recommending us products, Facebook at monopolizing our attention, and Google at analyzing our preferences, desires, and fears. Sam Adler-Bell and Michelle Miller, “The Datafication of Employment” The Century Foundation (12-2018)
All of this is now quite clearly on display in a recent report that Amazon has now figured out the value of a very specific data set--a 3-D data scan of their bodies.  In return for a $25 gift certificate, "Participants who set up a 30-minute appointment will be asked to take a survey and agree to have 3D scans, photos and videos taken of them." (Amazon is giving away $25 gift cards to anyone who agrees to let the firm 3D scan their entire body, Daily Mail 24 May 2019). Here one encounters not the face of emerging markets in data extraction, but rather in the economics of data harvesting in which data providers stand in the same position as those at the very bottom of global production. Here one encounters the part of AI that focuses on property and with respect to which the pieties of ethical stewardship appear to have little to say in their principles. 

But interesting as well is the connection between the AI production chain, here, nicely exposed at its data sources, and the regulatory potential of data extraction of this sort. Here one sees one way in which enterprises may interpret the values based stewardship of data in AI systems, but in a peculiar way. The key value here is diversity--that is to get a better sense of the diversity of human body shapes. The use of the word "diversity," now heavily values based and politically (as well as socially) sensitive. It is too early to tell but one ought to be wary of a data harvestor's facility in using invocation of popular values as a cover for exploitative extraction behaviors the full extent of which remains unclear. And, indeed, data can be used by Amazon, of course, to enhance its own business model.  But it can be sold--once processed, both as raw data and as analytic packages to others --including the state--for everything from eugenics programs (health and welfare programs, etc), to insurance and actuary enterprises, to businesses that dress consumers.  In Amazon's case, the possibility of synergy--using the data to help another Amazon product that uses AI to manage people's choices in the purchase of consumer goods. And that is only in the short term.

The Daily Mail Article (including video) follows. For other reports see here, here, here.

Friday, May 24, 2019

OECD Principles on Artificial Intelligence and Some Brief Reflections

The OECD Principles on Artificial Intelligence were adopted on 22 May 2019 by OECD member countries upon approval of the OECD Council Recommendation on Artificial Intelligence. The OECD AI Principles are the first such principles signed up to by governments. The OECD's website announcing adoption expressed the hope that the "OECD AI Principles set standards for AI that are practical and flexible enough to stand the test of time in a rapidly evolving field. They complement existing OECD standards in areas such as privacy, digital security risk management and responsible business conduct." 

It consists of five normative principles (what the OECD terms "values based") grounded in the sustainability enhancing notion of responsible stewardship that has gotten much traction in the business context among influence leaders in recent years (e.g., here).  They include
1--AI should benefit people and the planet by driving inclusive growth, sustainable development and well-being.
2--AI systems should be designed in a way that respects the rule of law, human rights, democratic values and diversity, and they should include appropriate safeguards – for example, enabling human intervention where necessary – to ensure a fair and just society.
3--There should be transparency and responsible disclosure around AI systems to ensure that people understand AI-based outcomes and can challenge them.
4--AI systems must function in a robust, secure and safe way throughout their life cycles and potential risks should be continually assessed and managed.
5--Organisations and individuals developing, deploying or operating AI systems should be held accountable for their proper functioning in line with the above principles.
These five principles are then directed to the state, as is the habit of the OECD regulatory form.  That direction is summarized in five recommended actions that states can take:
1--Facilitate public and private investment in research & development to spur innovation in trustworthy AI.
2--Foster accessible AI ecosystems with digital infrastructure and technologies and mechanisms to share data and knowledge.
3--Ensure a policy environment that will open the way to deployment of trustworthy AI systems.
4--Empower people with the skills for AI and support workers for a fair transition.
5--Co-operate across borders and sectors to progress on responsible stewardship of trustworthy AI.

The OECD Principles of Artificial Intelligence, along with brief reflections, follow. 

Thursday, May 23, 2019

十三届全国人大常委会贯彻落实《中共中央关于建立国务院向全国人大常委会报告国有资产管理情况制度的意见》五年规划(2018-2022) [The Standing Committee of the 13th National People's Congress implements the Five-Year Plan of the Opinions of the Central Committee of the Communist Party of China on Establishing the State Council's Report on the Management of State-Owned Assets to the Standing Committee of the National People's Congress (2018-2022)]]

While the American ruling classes (at least in the form of their electoral representatives and those who influence their choices and behaviors) continue to engage in entertainment for the masses (currently here, here, here, and here), the Chinese appear to be accelerating their efforts to rebuild their institutional structures for the New Era and to operationalize the policy choices they are making. Among the most important of these are those that enhance the important new era policy of strong divergence from Western methods, principles and operating methods in economic and political policy.

That project appears to continue to advance in the form of the 十三届全国人大常委会贯彻落实《中共中央关于建立国务院向全国人大常委会报告国有资产管理情况制度的意见》五年规划(2018-2022) [The Standing Committee of the 13th National People's Congress implements the Five-Year Plan of the Opinions of the Central Committee of the Communist Party of China on Establishing the State Council's Report on the Management of State-Owned Assets to the Standing Committee of the National People's Congress (2018-2022)]].

The implementation of the "opinions" is particularly interesting in the context of the US-China trade dispute, which itself is part of the larger Chinese strategy to remake global trade through the Belt and Road Initiative and its associated projects of yuan internationalization and control of raw material supply chains for its domestic production (that itself a crucial element of the development of productive forces at the heart of Chinese domestic policy since the 1980s).  A central element of these strategies, and one that serves as a singular source of friction between the American conception of global trade regimes and those of the Chinese, are state owned enterprises.  And no just the old Euro style (or worse the Soviet style SOEs), but rather the construction of aggregation of capital that can serve as the projections of state policy turned outward.

These "new era" enterprises are only now assuming a recognizable form, and one that continues the movement of the merger of politics and economics in the furtherance of global trade. To control the SOE is to control a large chunk of the apparatus through which the Chinese State will project its power outward. And it might challenge the control of the  State-owned Assets Supervision and Administration Commission (SASAC) (cf., here). More importantly, as the document suggests, such control will also provide a means  controlling SOEs through the control of the data driven analytics through which they are to be managed.  That is a prize with respect to which many organs of the state apparatus will likely spend much time contemplating. In this context the role of the administrative apparatus, and especially the National People's Congress, will determine the collectives that will play a vital role in translating policy and the CPC line to an operational strategy. While the politics of that division of authority is lurking in the background, it is only noted here. Analysis to follow in due course.

The document appears below in the original 中文 and with a very rough English translation. It requires a little bit of work to navigate through the formal language and discursive tropes common to this sort of writing, but it is worth the effort.

Wednesday, May 22, 2019

《中国共产党党员教育管理工作条例》"Regulations on the Education and Management of Party Members of the Communist Party of China"

(Pix © Larry Catá Backer; Pottery Figures, Northern Wei Dynasty 386-534 AD unearthed Xi'an 1953>; Beijing National Museum)

On 21 May 2019, the Central Committee of the Communist Party of China has issued the "Regulations on the Education and Management of Party Members of the Communist Party of China" 中国共产党党员教育管理工作条例》.  "The "Regulations" are guided by Xi Jinping's new era of socialism with Chinese characteristics, guided by the party's constitution, summed up the absorption of practical and innovative achievements, and regulate the content, methods, procedures, etc. of party members' education management, which is the basic of the education management of party members in the new era. follow." (《条例》以习近平新时代中国特色社会主义思想为指导,以党章为根本遵循,总结吸收实践创新成果,对党员教育管理的内容、方式、程序等作出规范,是新时代党员教育管理工作的基本遵循。)

The Regulations provide a window on new thinking respecting the perfection of cadre formation and oversight and is well worth the read. Of particular note for foreign universities is Article 24, which provides:

对因私出国并在国外长期定居的党员,出国学习研究超过5年仍未返回的党员,一般予以停止党籍。停止党籍的决定由保留其组织关系的党组织按照有关规定作出。[For party members who have gone abroad for a long time and have settled abroad for a long time, party members who have studied abroad for more than five years have not stopped returning their party membership. The decision to stop the party membership is made by the party organization that retains its organizational relationship in accordance with relevant regulations.]

It will be interesting to see how these new regulations are meshed both with Social Credit systems and with the disciplinary protocols of the Supervision Law.  Also interesting is the emphasis on "new era" thinking. Though details are to be found elsewhere, it is clear that the focus is away from the normative verities of the past era of reform and opening up in favor of something new, much of which can be seen in the emergence of new policy applications especially in the last two years. The New Era is more clearly now taking normative form and its operationalization within the process of constructing and managing cadre educaiton and working styles stands at the center of the endeavor.

The regulations follow (中文) below with crude English translation.

Monday, May 20, 2019

Norwegian Ethics Information Committee Seeks Input on Methods to Improve Respect For Human Rights Through Supply Chain Transparency Mechanisms

This from Caroline D Ditlev-Simonsen, Professor BI Norwegian Business School:
Can a law requiring openness about supply chains improve human rights performance? If so, what should such a law contain? The Norwegian Ethics Information Committee<> would like to receive input from international experts about how to improve respect for human rights through mechanisms that promote transparency in supply chains. Please submit your thoughts to by May 31th.

The study promises to be interesting.  And more importantly, it suggests that the Norwegian state is interested in figuring out a perhaps novel approach to projecting its political power (and its values) through its apex enterprises and down their global production chains. To the extent that such an effort might align with Norwegian efforts undertaken through its SWF, the Pension Find Global, the effort might be quite influential (see, e.g., Sovereign Investing and Markets-Based Transnational Rule of Law Building: The Norwegian Sovereign Wealth Fund in Global Markets).

More information from the Norwegian Ethics Information Committee (including its mandate) follows.

Sunday, May 19, 2019

Palestras e minicursos do II Seminário Internacional em Direitos Humanos e Sociedade & IV Jornada de Produção Científica em Direitos Fundamentais e Estado , com o tema: Direitos Humanos, Estado Democrático de Direito e Direitos Sociais [Call for Participation: "II International Seminar on Human Rights and Society & IV Conference on Scientific Production in Fundamental Rights and the State" with the Theme "Human Rights, the Democratic State, and Social Rights" (Santa Caterina Brazil 19-20 Sept. 2019)]

I am delighted to pass along information about an exciting program being offered by my colleague Yduan de Oliveira May. He has helped organize a program at the Universidade do Extremo Sul Catarinense of prsentaitons and mini courses around the theme Direitos Humanos, Estado Democrático de Direito e Direitos Sociais [Human Rights, the Dmeocratic State, and Social Rights].

From their website:

Sejam todas e todos muito bem-vindos(as)! O II Seminário Internacional em Direitos Humanos e Sociedade & IV Jornada de Produção Científica em Direitos Fundamentais e Estado, será realizado nos dias 19 e 20 de setembro de 2019, na Universidade do Extremo Sul Catarinense, em Criciúma/SC, sendo organizado pelo Programa de Pós-graduação em Direito – Mestrado. A temática deste ano será "Direitos Humanos, Estado Democrático de Direito e Direitos Sociais". ¡O evento contará com minicursos, apresentações orais de trabalhos, além de palestras com conferencistas renomados ligados à temática do evento. Explore o nosso site e saiba mais! Contamos com a sua presença! [Welcome All! The II International Seminar on Human Rights and Society and IV Conference on Scientific Production in Fundamental Rights and State, will be held on September 19 and 20, 2019, at the Extremo Sul Catarinense University, in Criciúma / SC, organized by the Program of Postgraduate in Law - Master. This year's theme will be "Human Rights, Democratic State of Law and Social Rights". The event will have minicourses, oral presentations of works, as well as lectures with renowned speakers related to the theme of the event. Explore our website and learn more! We look forward to your presence!].
Participation information follows below in Portuguese and English.

Saturday, May 18, 2019

Now Available: Audio Recording of the Minorities in International Law Interest Group (MILIG) Session at the ASIL 2019 Annual Meeting--“Diverse Perspectives on the Impact of Colonialism in International Law ”

I am happy to report that the audio recording of the Minorities in International Law Interest Group (MILIG)  session at the ASIL 2019 Annual Meeting  is now available.  Our session was entitled “Diverse Perspectives on the Impact of Colonialism in International Law. ” The Session audio may be accessed HERE.
Panel overview: This session, which will be conducted in the form of a panel, will explore diverse perspectives on the impact and effect of colonialism, and the norms created thereunder, in modern international law. Our first speaker will explore theoretical approaches to the interrelationships between colonialism and international law norms. Other speakers will explore the effect of colonial norms on the development of the modern western notion of the rule of law; the colonial experience and its effect on disputes involving sovereignty (Chagos Archipelago dispute); the colonial experience and the development of commercial law in Africa; and the effect of the colonial experience on Latin American perceptions of development and international law.

More about the Session HERE.

PPTs of my presentation HERE.

Wednesday, May 15, 2019

Just Published: "Next Generation Law: Data-Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China," Law &: Southern California Interdisciplinary Law Journal 28(1):123-172 (2018)

I am delighted to announce the publication of  "Next Generation Law: Data-Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China," Law &: Southern California Interdisciplinary Law Journal 28(1): 123-172 (2018).
In the contemporary world, compliance systems and policing are quickly replacing law and the traditional methods of enforcement (either organic or positive law) as the framework through which collectives (the state, the corporation, and religion, to name the most well-known actors) govern. It shifts the function of law from methods of command and obedience to systems of compliance and incentive. Most of the elements of social credit have already been developed in the West. But the unification of the various elements,and their seamless operation would be a great innovation. For Chinese theory, that innovation would complement the move toward transformation in politics, economics, and social organization announced in the CPC 19th Congress in the course of the Report delivered by Xi Jinping. As a system still very much in development social credit and ratings systems encounters a number of technical challenges.(Ibid., pp. 171).

The Abstract and Introduction follow below. The pre-publication draft can be accessed here.  PPTs of a recent presentation of the article HERE. Looking forward to further conversation. 

From the Front Lines of the Battlefields of Legal Development at the American Law Institute (ALI): Letter From 23 State Attorneys General Urging Rejection of the Proposed Restatement of Consumer Contracts

The American Law Institute, over the course of its long history, has always served as an important site for the disciplining of law in the United States in two broad senses. First ALI has sought to bring order and accessibility to the increasingly large and complex body of judicial decisions in common law regimes.  But it has also been instrumental in seeking to bring order to the increasingly important role of courts as the source of statutory interpretation (and operationalization through litigation). These efforts at meaningfulness have in turn contributed to "progress" in American law (understood beyond its ideological overtones as providing a comprehensive resource of general consensus for judges and others seeking to understand and apply the law).

Much of the work of the ALI is technical and quite respectful of the role of the courts (and of the legislatures in driving law).  They bring clarity and order, and they sometimes suggest the consequences of trajectories in legal development.  That they are well positioned for this role is without question.  Its members are among the most elite users and producers of the object of the ALI's attentions--leading judges, lawyers and academics are as responsible for the development of law (and the meaningfulness of statutes) who collectively drive the law in the course of undertaking their respective roles

That driving is sometimes as innocuous as gathering up all of the strands of interpretation and approaches providing judges, lawyers and lawmakers with much material that can be persuasive. And the ALI Restatements have tended to be quite persuasive for judges, lawyers and law makers over the years. But the ALI sometimes drives law as well. It has done so in a variety of its projects throughout its history. Sometimes the ALI takes principled stances with respect to elements of law that is viewed as obsolete or in need of change. Among the most famous early examples was the fight about sex crimes in the 1950s (see, e.g., Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration). That stance has taken a more sustained controversial stance in recent years as some of its reporters at times appear to use their "restatement" projects as a means of stamping the law with their vision of the good, the just, and the "ought to be." That has been evident in the years long battle over the revision of certain definitions and application of a criminal law of sexual assault, a process that has become acrimonious at times (here, here, here, here, here, here).

This year controversy of this sort has come to a corner of the ALI which does not see this sort of controversy very often--the field of contracts, and more specifically the Restatement of Consumer Contracts. (criticized by Gregory Klaas in a 2019 article here) More specifically, 23 State Attorneys General have circulated a letter on the eve of the annual meeting of the ALI urging all members of the American Law Institute to reject the proposed Restatement of Consumer Contracts, to be voted on during the American Law Institute’s annual meeting on May 21, 2019 (Please click this link).

This post includes that letter.  It is worth reading not only for the arguments it makes about choices in the interpretation of an emerging field, but also for what it says about the power of reporters in the service of a vision of the law that is yet to be. The implications for the development of the law and for the way in which law becomes accessible to those for whose benefit it has been developed is also worth considering.

UPDATE 20 May 2019:  Please click this link to read an updated version of the letter which now includes 24 State Attorneys General.

Monday, May 13, 2019

CPE Working Group on Empire: A Critical Gloss on Xi Jinping, <齐心开创共建“一带一路”美好未来> ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"] In the Shadow of the U.S.-China Trade Talks

王之涣 《登鹳雀楼
On The Stork Tower
By Wang Zhihuan
The sun beyond the mountains glows;
The Yellow River seawards flows.
You can enjoy a grander sight,
By climbing to a greater height.

WGE is examining the proceedings at the 2nd BRI Conference recently concluded in Beijing.  More specifically WGE is considering the utility of Xi Jinping's remarks at that event as a source for an understanding of the Chinese conceptualization of its global trade regimes, and specifically the principles and objectives and shape and drive it. The analysis is relevant to a consideration of the role of Chinese -US bilateral trade talks, by putting them in a broader and more appropriate context (see, here, here, here, and here). 

This post includes WGE's critical reading of the key remarks that are at the center of this phase of the analysis: Xi Jinping's 齐心开创共建“一带一路”美好未来; ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"] (English and Chinese versions below). 

CPE Working Group on Empire: A Brief Introduction to Xi Jinping's Speech <齐心开创共建“一带一路”美好未来> ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"]-- U.S.-China Trade Talks, Encircling the US, and the BRI

(Pix © Larry Catá Backer; Dado, Le Cycliste (1955, Centre Pompidou))

The Working Group on Empire (WGE) of the Coalition for Peace and Ethics looks to  to study and theorize the construction of systems of management and control of human activities, that is of empire in the 21st century. In this series of posts we consider the re-construction of Empire shorn of its old glosses (which elites everywhere have been taught to conflate with the form and thus to amalgamate a normative judgment about technique with an evaluation of the form of empire) in the context of the now heated contest for the control of the structures of global economic trade within which these new forms of empire might be developed. 

The specific focus is on the construction of new global trade regimes.  In that context, WGE has been considering the bilateral trade talks between the United States and China in the larger context of Chinese (and American) ambitions to drive the structures and directions of global trade in ways that put them at the center (or in the Chinese English language vernacular--as the core) of dependent amalgamations of actors around which trade regimes may be built and directed (see here).

To that end WGE is examining the proceedings at the 2nd BRI Conference recently concluded in Beijing.  More specifically WGE is considering the utility of Xi Jinping's remarks at that event as a source for an understanding of the Chinese conceptualization of its global trade regimes, and specifically the principles and objectives and shape and drive it.

(Pix © Larry Catá Backer 2019)

This post introduces the reader to the key remarks that are at the center of this phase of the analysis: Xi Jinping's 齐心开创共建“一带一路”美好未来; ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"] (English and Chinese versions below), along with WGE's Introduction. This introduction does not present an in-depth analysis of Xi Jinping’s Speech at the Second Belt and Road Forum (that is coming in the next post), but a gloss about what the speech might point at in the broader context of the USA’s reaction to the One Belt One Road. The speech may be read and analyzed on at least three different levels, but that kind of analysis would have the short-coming to further isolate discussion of the BRI from the real-world contexts where the Belt and Road already exists. Empire may be theorized in the academia, but its construction takes place in the real world.

Sunday, May 12, 2019

CPE Working Group on Empire: U.S.-China Trade Talks, Encircling the United States, and the Belt and Road Initiative—Looking to a Critical Gloss on Xi Jinping’s Speeches to the BRI Conference

(Pix © Larry Catá Backer 2019)

The Working Group on Empire of the Coalition for Peace and Ethics looks to  to study and theorize the construction of systems of management and control of human activities, that is of empire in the 21st century. A caveat: Do not mistake analysis for criticism.  That one calls these projects imperial is not meant to suggest that all of the negative baggage of imperialism ought to be imported into the conversation. One goes back here to much older notions of empire that focuses on the organization and management of human activity among autonomous but dependent communities and the allocation of authority, responsibility and rights among them.

A recent series of events—taken as substantially unconnected by the Western Press and those in intellectual and policy circles who ought to know better (but can’t help but be victims of their own self-reflexive ideological vision-constraints)—appear to point to an interesting turn in the re-construction of empire (without the baggage of its mostly European past).

1. Mr. Mueller releases his report on Mr. Trump

2. The Chinese and U.S. negotiating teams reach consensus on a number of key points

3. China holds its 2nd BRI Conference at which Xi Jinping features prominently

4. Trade talks back down with a consensus view that this was caused by a backtracking by China of earlier concessions

5. Mr. Trump imposes the first of a likely series of escalating tariffs

6. The Chinese respond by invoking 19th century unequal treaty tropes and declaring that there is no compromise on principle (their principles anyway, the Americans are free to compromise their own as they like) (e.g.,中国不会屈服于任何极限施压(钟声)) or that there was no breakdown, just the necessary meanderings of talks.

The events tied together suggest some relationship among a number of factors that those who influence Chinese negotiations appear to have adopted. First, of course, that serious negotiations were not possible while the President remained under a cloud (from the Chinese perspective that the opposing faction in US politics might have toppled Mr. Trump in the legal-political manner of American political culture). Second, negotiations continue to go slowly; indeed they have meandered in ways that make the slow pace of the earlier Trans-Pacific Partnership negotiations seem fast. There might be a need to consider whether the negotiating tactics are similar to those of the Japanese in Washington in 1940-41—that is they are effectuated to buy time for the implementation of an more important strategic objective. That more important strategic objective in this case might well be the Belt and Road Initiative itself. As a side note (because these appear necessary today)--the analogy to the Japanese negotiations was not meant to suggest the inevitability of war (a completely pathetic use of analogy in these circumstances), but rather to note the strategic parallels in the use of a specific technique--of negotiation along path A to cover a more important strategic maneuver along path A.

This post briefly sketches the context in which it might be useful to frame these issues for analysis. It speaks to the role of BRI as a key strategic element of a well thought out objective to reshape the rules of global trade, and eventually to isolate and contain the U.S. and its own economic area. In posts that follow, the Working Group on Empire will consider the extent to which a critical review of Xi Jinping’s addresses to the BRI conference in Beijing might better reveal Chinese the current state of thinking on these points.

Tuesday, May 07, 2019

Just Posted--PPTs of Presentation: "The Algorithmic Governance Contract and the (Internal) law of Production Chains" for REIMAGINING CONTRACT IN A WORLD OF GLOBAL VALUE CHAINS Sciences Po, Paris, France, 9-10 May 2019

I am delighted to make available the PPTs of the presentation I will make at the upcoming event--Reimagining Contract in a World of Global Value Chains -- to be held at Science Po, Paris, 9-10 May, 2019. My thanks to the organizers, Klaas Hendrik Eller/Jaakko Salminen, along with the Global Value Chain group @ Sciences Po Law School (SAB Global Value Chains).

The presentation, entitled The Algorithmic Governance Contract and the (Internal) law of Production Chains, considers the challenges of private governance under emerging structures of data driven governance.  This trend has not shifted the long term shift of regulatory power from public to private institutions, and away from the state to something that for lack of a better term might be understood as the transnational (production chains, regional groupings, Belt and Road Initiative, etc.). Rather it appears to change the quality and form of the governance that is shifting as well as the forms through which states themselves might be tempted to govern. As well it poses a fundamental shift in both accountability structures and the hermeneutics of regulation from human to machine language that remains unexplored. For policymakers, lawyers, enterprises, and civil society organs, this change raises serious question about the forms and quality of governance, its manifestation, and the places where it can be practices, monitored and managed. 

The PPTs follow along with a brief abstract of the presentation. The Conference theme also follows.

Sunday, May 05, 2019

Just Posted: Discussion Draft--"Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0"

(Pix © Larry Catñá Backer 2017)

Is it possible to speak of democracy in illiberal states? Is it possible to develop a space for popular participation in a Party-State political system? Can such civic spaces exist beyond the direct control and management of the Party-State apparatus? Might it have some effect especially where a society is asked to reform its constitutional order?

These are the questions that Flora Sapio, James Korman and I undertake in an empirical study of the contours of popular participation in the recently concluded Cuban Constitutional Reform Project. Popular participation in the 2019 Cuban constitutional reform efforts actually takes three forms. Two of them are formal and Party-State driven. These consisted of the formal system to deliver comments and reactions to the drafts of the revised constitution circulated to the general population after review and revision by PCC and State.

The third of them, the object of our study, was both informal and popularly driven. Perhaps the most important element of popular participation in the 2019 Cuban constitutional reform debate, the quite vigorous popular debates about Cuban constitutional reform occurred outside the structures of the Party and State organs. These debates took place in cyber space and among an active and politically engaged segment of the population, one with strong connections to the Cuban diaspora community. More importantly, it represented an engagement that took place within the established structures of Party-State organs of mass communication—its on-line news and information portals, as well as tolerated mass communication sites, notably Facebook. We use data from government web sites, the official reports, and social media sites to examine the contours of participation, its constitution, and its limitations. We intend to develop from the analysis of four distinct data sets a clearer understanding of the nature of popular participation. We then considers consequences and applications both within Cuba and beyond.

We post here the discussion draft of that study, Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0. A more elegant final version with footnotes will follow.  At this point we are interested in comments, suggestions, and engagement from those interested.  The Abstract follows below. 

Thursday, May 02, 2019

Dr. D. Francisco Javier Zamora Cabot: "Gobernanza mundial y el binomio Empresas-Derechos Humanos" (For Spanish Speakers; Programa en Castellano)

Sesión organizada por la Sección de Derecho. LUGAR: Escuela de Práctica Jurídica. Amaniel, 2 FECHA: Miércoles, 24 de abril de 2019, a las 18:30 h

Interviene el Dr. D. Francisco Javier Zamora Cabot, Catedrático de Derecho Internacional Privado de la Universidad Jaume I, sobre el tema: Gobernanza mundial y el binomio Empresas-Derechos Humanos

Resumen y un enlace al video de la presentación a continuación.

Wednesday, May 01, 2019

Opinion of the Court of the Hague in 4 Widows v. Shell Companies Case number C / 09/540872 / HA ZA 17-1048

(Esther Kiobel, one of the Ogoni 9 Pix Credit HERE)

On 1 May 2019, the Court of the Hague (first instance) delivered its (very long) opinion in Case number C / 09/540872 / HA ZA 17-1048 (given by L. Alwin, B. Meijer and A. C. Bordes). The case was brought by four widows of the Ogoni 9 against the Shell companies, including ROYAL DUTCH SHELL PLC in London, United Kingdom, with offices in The Hague, and SHELL PETROLEUM N.V. in The Hague.  One of the four widows, Esther Kiobel had brought a suit against Shell in the United States. Filed in 2002, that lawsuit was dismissed in 2013 by the U.S. Supreme Court on the basis that US courts lacked jurisdiction in that case (case opinion here: Kiobel v. Royal Dutch Shell, 569 U.S. 108 (2013)).

The Suit had been filed in 2017 (Ogoni 9 widow Esther Kiobel lands day in court against oil giant Shell). "Plaintiffs expressly do not base their claims against the parent companies on a breach of liability, the Anglo-Saxon legal entities piercing the corporate veil and crossing the corporate veil, shareholder liability or tort or negligence. Claimants claim that the basis of their claims against the parent companies is no different from that of SPDC [Shell's Nigerian operating company]" (Opinion ¶ 4.8). Instead the court grounded its analysis on a theory of joint or several tortfeasors tied togethjer by  identical facts.  "The core of the claimants' accusation is that SPNV, STTC and SPDC acted jointly in respect of the fundamental rights violations alleged by the claimants. The claims against the three defendants are based on the same facts, circumstances and legal grounds" (Opinion ¶ 4.26).

The Post includes the original decision (in Dutch) plus a rough English translation. Further commentary will follow. For now, and for English speakers, the Court's conclusion is especially interesting (rendered here in rough English):
VII. Conclusion

4,134. Claimants will be allowed to prove that:
(i) SPDC was involved in bribing the witnesses [U], [V], [II], [YY], [KK], [LL], [MM] and [NN] because [a.] [Y] by order of SPDC and / or a representative of SPDC attended the meeting (s) where these witnesses had to prepare / sign the statements prepared by others and / or [b.] SPDC has contributed financially to the payments to these witnesses and / or [c.] SPDC has promised these witnesses a job, and

(ii) the statements of witnesses bribed with the involvement of SPDC played a role in: [a.] the conviction of the spouses of claimants by the tribunal and / or [b.] the arrest and detention of spouses of claimants and / or [c.] the detention of claimants.

4,135. As has been considered above, part (ii) of the evidence assignment is only relevant if the involvement of SPDC as the meaning of (i) is established. Plaintiffs are admitted to the evidence of both parts of the evidence assignment for procedural economic reasons. Whether and to what extent this claim by claimants actually applies will be assessed after the evidence has been delivered.

4,136. The other accusations of claimants have no purpose. The other points of dispute about this - such as the question if and to what extent, and on what basis, the actions or omissions of the claimants on this point can be attributed to each of the defendants - need not be discussed. If and insofar as the documents to be provided in the incident give claimants cause to set new facts or otherwise give rise to a further position, claimants must proceed as quickly as possible.

4,137. The court holds any further decision in the main proceedings.

The Court then ordered the defendants to provide plaintiffs with copies of the relevant documents subject to a fine for delay in production.