Super-Scoring? Data-driven societal technologies in China and Western-style democracies as a new challenge for education | Interdisciplinary Conference | 11 October 2019 | Cologne, Germany

I am delighted to pass along information about an upcoming conference: Super-Scoring? Data-driven societal technologies in China and Western-style democracies as a new challenge for education which will take place on 11 October 2019 in Cologne, Germany.  The symposium consists of four thematic blocks, each based around three impulses from interdisciplinary perspectives. Each impulse will be accompanied by a written comment in the run-up to the event.  This project has been funded and supported by Grimme-Forschungskolleg an der Universität zu Köln and Bundeszentrale für politische Bildung (bpb).

The Conference blog may be accessed HERE (English and German) .  More information about the Conference (including registration information and links to some of the papers) follows below.

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 12--Article 4 (Rights of Victims) Reflections (1)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts. We hope that makes navigating the CPE Treaty Project Commentary easier. The postings will be listed in reverse chronological order.

This post starts a multi-part examination of one of the central elements of the Draft Legally Binding Instrument (DLBI)--Article 4 (Rights of Victims). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This examination was prepared by Larry Catá Backer.

"Emancipating the Mind in the New Era: Bulletin of the Coalition for Peace & Ethics" Vol. 14, No. 1 ('From Globalization to Empire')

Since 2006 the Coalition for Peace and Ethics has been circulating short essays and analysis related to its research, teaching and technical assistance projects.  These essays have been circulated through the CPE Bulletin, soem of which have been made generally available from time to time. 

For 2019, CPE has agreed to make the Bulletin and all of its essays available for download on line. . These have sometimes been made generally available.  To that end it has agreed to the publication of its journal, Emancipating the Mind: Bulletin of the Coalition for Peace and Ethics, to be published by Little Sir Press. 

Prior issues of Emancipating the Mind (volumes 1-13) will be made available online over the next several months.  For this first distribution, CPE agreed to the the publication of its Volume 14, no. 1, issued June 2019. This issue is dedicated to the work of the CPE's Working Group on Empire.  The essays present work of the Coalition for Peace and Ethics Working Group on Empire.  The focus is on the development of new theories of empire that may be emerging within the political theories of the United States and China.  This issue focuses on the development of notions of empire applied to the strategies and discursive tropes of the US and China in the context of their trade negotiations that became quite dynamic after May 2019 when negotiations reached an impasse. The members of the CPE Working Group on Empire are Larry Catá Backer and Flora Sapio.

Links to the essays and the Front Matter follow.   

Just Published, "China’s Social Credit System: Data-Driven Governance for a ‘New Era’" Current History 118(809):209-214

I was delighted to have been asked to contribute to this month's issue of Current History.

Current History enjoys a unique place among America's most distinguished periodicals.The oldest US publication devoted exclusively to world affairs, Current History was founded by The New York Times in 1914 to provide detailed coverage of what was then known as the Great War. As a privately owned publication, Current History has continued a long tradition of groundbreaking coverage, providing a forum for leading scholars and specialists to analyze events and trends in every region of a rapidly changing world. . . Current History publishes nine times per year. Each month's issue focuses on a single region or topic--including annual issues on China and East Asia, Russia and Eurasia, the Middle East, Latin America, South and Southeast Asia, Europe, and Africa. (HERE).

This month issue focuses on China and East Asia. The issue includes fascinating issues on the US-China trade dispute, gay marriage in Taiwan, the character of migration in Japan, and Australia's refugee detention regime,  

My contribution, China’s Social Credit System: Data-Driven Governance for a ‘New Era’, is now available free of charge (not sure for how long).  Access to the free version is available HERE. The object was to provide a nontechnical discussion of this new structure of restrictions and privileges designed to nudge people and institutions to approved behaviors. This "social credit" is an experiment that will likely become an ever more important element of Chinese governance and the signature innovation of Chinese “New Era” ideology.

"What all of this means is that social credit, and the accountability culture for which it serves as a proxy, has emerged as a key element in the trans-formation of China’s governance structures. It is integral to the understanding and implementation of a rule-of-law based system compatible with the CCP’s fundamental political line. As such, it represents more than a mere set of “new governance” techniques, or some mad effort to develop an arbitrary Orwellian control apparatus. Rather, it gives form to the long-term and fundamental objectives of the CCP: to detach the organization and operation of politics, economics, and society from their roots in the ideologies and practices of liberal democracy. . .

My thanks to  Current History's editor, Joshua Lustig, for his usual brilliant job or editing and putting is all together.

The links to the articles in the current Volume 118 Issue 809 follow.

Reflections on Zheng Yongnian: "The Capital of Protests" Who is Hong Kong?" [郑永年：“抗议之都” 谁主香港？] Part 2 (Larry Catá Backer)

(Pix Credit: Reuters, "Flag-waving 63-year-old gives Hong Kong protesters lesson in endurance" NY Post 3 July 2019 ("'I bought them in Shenzhen,” a smiling Wong, known affectionately as grandma, told Reuters of the flags, referring to the southern Chinese city across the border where she now lives. 'I had to ask secretly because they only showed the Chinese flag. So I asked them if they had the British flag and they take it out to show me. If you don’t ask, they don’t show.'"))

This is the second of two posts and includes the reflections of Larry Catá Backer. The first post, the the Reflections of Flora Sapio, can be accessed here. Both posts also include Professor Zhang's essay, "The Capital of Protests" Who is Hong Kong? [郑永年：“抗议之都” 谁主香港？](Part 1 HERE; Part 2 HERE)), in the original Chinese language version ( 原版中文版) along with a crude English translation that itself retains the ambiguities of the original text.

Introduction to the posts

Now in its New Era of historical development, China has emerged as a great driving force for law and politics across a broad front of issues at the core of law, governance, politics and economics. The Coalition for Peace and Ethics has been following two remarkable trajectories in the development of theory and in its practice. The theoretical development centers around the re-construction of theories of imperialism devoid of its Western baggage of racism, occupation, and Western versions of cultural ethno-centrism. ( see, essays in CPE EmpireSeries).

The practical development centers on the construction and operation of a centerpiece of Chinese extra-national constitutional theory—the one country two systems principle (2019 Hong Kong Situation), and from there its extension to bilateral relations (contextually shaped) between China and its Belt and Road Initiative partners (Belt Road Initiative).

This developing theory and its practice implications are among the most interesting advances in political, economic and cultural relations since the construction of the contemporary global system under the leadership of the United States and its allies. It is especially interesting both for the way it signals a quite dynamic building of an organic political philosophy of Chinese Marxist-Leninism, and for the way this political philosophy is projected outward to drive re-conceptualization of law and politics on a global level.

These trajectories have now appeared to converge around the emerging situation in Hong Kong. CPE members have been observing the actions and reactions of the principal actors in that development since the start of the public phase of popular agitation and public response in June 2019 ). It is in that context that many have been following the shifting positions of governmental actors and other stakeholders in response to the social protests that have occurred in Hong Kong since June 20919.

Less noticed but perhaps ultimately more important, has been the high level discourse among elite intellectual circles with relations to the major actors in these processes of development. On occasion, these elite conversations among high status intellectuals are circulated. They provide sometimes brilliant insight into the forms and approaches that are likely to emerge in popular economic and political circles among the major actors. They are each worthy of careful reading in their own right, but are especially useful for a study of the emergence.

One of the more interesting conversations among the many is that between Albert Chen and Zheng Yongnian, a professor at the East Asian Institute of the National University of Singapore. Professor Zheng has been at the forefront of intellectual movements and among the relevant academic community (e.g.,Brief Thoughts on Zheng Yongnian: Is Marxism Really Revived in China? [郑永年：马克思主义在中国真的复兴了吗？]).  The interest, from the perspective of the CPE arises from the insight they each give to emerging positions on the key theoretical and practical developments of Chinese theories of imperialism in the New Era context in which Hong Kong has become a critical practical incubator—the site from which truth may be developed form facts. 

CPE has already noted the elegant and quite sophisticated essays of Albert Chen (here, here, and here). With this post and the next, CPE members reflect on what may be considered a response to Professor Chen. That response, on Zheng Yongnian: "The Capital of Protests" Who is Hong Kong? [郑永年：“抗议之都” 谁主香港？] (Part 1 HERE; Part 2 HERE)) is also worthy of deep study both in its own right and for the way it reflects changing thinking about both Socialist New Era imperialist theory, and its global context (e.g., starting with Singapore). It originally appeared in the Hong Kong daily newspaper Lianhe Zaobao.

Reflections on Zheng Yongnian: "The Capital of Protests" Who is Hong Kong? [郑永年：“抗议之都” 谁主香港？] Part 1 (Flora Sapio)

(Pix credit here)

Now in its New Era of historical development, China has emerged as a great driving force for law and politics across a broad front of issues at the core of law, governance, politics and economics. The Coalition for Peace and Ethics has been following two remarkable trajectories in the development of theory and in its practice. The theoretical development centers around the re-construction of theories of imperialism devoid of its Western baggage of racism, occupation, and Western versions of cultural ethno-centrism. ( see, essays in CPE EmpireSeries).

The practical development centers on the construction and operation of a centerpiece of Chinese extra-national constitutional theory—the one country two systems principle (2019 Hong Kong Situation), and from there its extension to bilateral relations (contextually shaped) between China and its Belt and Road Initiative partners (Belt Road Initiative).

This developing theory and its practice implications are among the most interesting advances in political, economic and cultural relations since the construction of the contemporary global system under the leadership of the United States and its allies. It is especially interesting both for the way it signals a quite dynamic building of an organic political philosophy of Chinese Marxist-Leninism, and for the way this political philosophy is projected outward to drive re-conceptualization of law and politics on a global level.

These trajectories have now appeared to converge around the emerging situation in Hong Kong. CPE members have been observing the actions and reactions of the principal actors in that development since the start of the public phase of popular agitation and public response in June 2019 ). It is in that context that many have been following the shifting positions of governmental actors and other stakeholders in response to the social protests that have occurred in Hong Kong since June 20919.

Less noticed but perhaps ultimately more important, has been the high level discourse among elite intellectual circles with relations to the major actors in these processes of development. On occasion, these elite conversations among high status intellectuals are circulated. They provide sometimes brilliant insight into the forms and approaches that are likely to emerge in popular economic and political circles among the major actors. They are each worthy of careful reading in their own right, but are especially useful for a study of the emergence.

One of the more interesting conversations among the many is that between Albert Chen and Zheng Yongnian, a professor at the East Asian Institute of the National University of Singapore. Professor Zheng has been at the forefront of intellectual movements and among the relevant academic community (e.g.,Brief Thoughts on Zheng Yongnian: Is Marxism Really Revived in China? [郑永年：马克思主义在中国真的复兴了吗？]).  The interest, from the perspective of the CPE arises from the insight they each give to emerging positions on the key theoretical and practical developments of Chinese theories of imperialism in the New Era context in which Hong Kong has become a critical practical incubator—the site from which truth may be developed form facts. 

CPE has already noted the elegant and quite sophisticated essays of Albert Chen (here, here, and here). With this post and the next, CPE members reflect on what may be considered a response to Professor Chen. That response, on Zheng Yongnian: "The Capital of Protests" Who is Hong Kong? [郑永年：“抗议之都” 谁主香港？] (Part 1 HERE; Part 2 HERE)) is also worthy of deep study both in its own right and for the way it reflects changing thinking about both Socialist New Era imperialist theory, and its global context (e.g., starting with Singapore). It originally appeared in the Hong Kong daily newspaper Lianhe Zaobao.

This post includes the reflections of Flora Sapio. The next post includes those of Larry Catá Backer which can be accessed here. Both also include Professor Zhang's essay in the original Chinese language version ( 原版中文版) along with a crude English translation that itself retains the ambiguities of the original text.

"Democracy and Democratic Deficits in Economic Globalization and Governance": Program of the Section on Economic Globalization and Governance for the AALS 114th Annual Meeting Washington, D.C. 2 January 2020

This year I have chaired the Section on Economic Globalization and Governance of the Association of American Law Schools.  One of the most rewarding tasks of that role is to organize the Section program for the AALS Annual Meeting, this year scheduled for the first week of January 2020.

In that connection I am delighted to share with you the Section's 2020 Program: Democracy and Democratic Deficits in Economic Globalization and Governance. The program brings together three extraordinary scholars--Jena Martin (West Virginia), Karen Bravo (Indiana) and Tara van Ho (Essex UK)--whose path breaking work examines the voices of impacted individuals and affected communities with regard to their interactions with businesses and business activities. The object is to gain valuable insight into what’s important to individuals on the ground when crafting a system of remedies and accountability within the field of business and human rights.  

The Panel Concept Note and bios of the speakers follow. 

The Situation in Hong Kong: "Opinions of the CPC Central Committee and the State Council on Supporting Shenzhen's Pioneering Demonstration Zone with Chinese Characteristics" [中共中央国务院关于支持深圳建设中国特色社会主义先行示范区的意见 （二〇一九年八月九日）]

(All Pix Credit here; except as noted)

Shenzhen, in its contemporary form, was born in part to demonstrate that a sound Socialist (that is a Chinese Marxist-Leninist) version of Hing Kong was not only possible, but ultimately the better model for both cities.  Yet it was much more than that.  Shenzhen was also designed to be the modern, built from the ground up, foundation, around which a "Pearl River" megacity could be built, into which the former UK and Portuguese colonies could be absorbed (in every sense of that term) along with the neighboring older cities (once known for their unruliness). 

That mega-ci-ty could serve as the incarnation of the China Dream and suggest the ways in which the historically receding basis for social, political and economic organization (reflected in Hong Kong) could be recast and redirected for the new era.  That recasting, then, might also serve as a model which might find value all along the land and maritime Silk Roads of the Belt and Road Initiative. 

To some extent, the central government, under the leadership of the Chinese Communist Party, has been successful in achieving its first goal.  Shenzhen is now an industrial powerhouse with a large and g¡rowing population sitting just beyond the old colonial border with Hong Kong. Yet the success has been molded as well by distributive realities--finance has been shifted to Shanghai in some respects--another variation of the absorption and transformation of a semi-colonial enclave in China, whose successful model, it is hoped, could be projected outward. 

But the ongoing situation in Hong Kong has, to some extent changed the character and pacing of these medium and longer term plans.  The disturbances in Hong Kong have been treated by Chinese government and CCP authorities as directly challenging not so much their authority, but rather the authority of their guiding ideology. That is a challenge that cannot be ignored, even if Hong Kong is allowed to tolerate popular demonstrations over a longer term. Though much of those changes remain shrouded in secrecy, the State Council under the leadership of the CCP has, from time to time, suggested its content and direction.

Outwardly, government authorities have sought to cauterize the ideological threat by recasting it as foreign. To that end the central authorities have expended much effort in their Black Hand campaign (e.g., The Situation in Hong Kong: The 黑手 [black hand] of Foreign Interference and the Justification for Intervention).  Beyond its utility in the ongoing trade negotiations with the United States and the protection of its Belt and Road Initiative (both understandable),  recasting the Hong Kong narrative as foreign proves useful as discrediting it as contextually irrelevant, and its leaders as tools of a foreign power.  This plays into now ancient and powerful Chinese discursive tropes about foreigners, unequal relationships, and threat. 

But it is not enough to recast the narrative in Hong Kong as foreign (and therefore not authentically Chinese).  It is also necessary to substantially strengthen and put forward the preferred (and native) alternative. It is here that the Shenzhen model city ideal, and the historical imperative of the Pearl River mega-city, become important.  Now the State Council and CCP Central Committee have put forward a counter-narrative that seeks to contrast the instability and decline of Hong Kong with the stability and progress of Shenzhen.  To that end on 18 August 2019, via Xinhu News Agency, the authorities circulated  "Opinions of the CPC Central Committee and the State Council on Supporting Shenzhen's Pioneering Demonstration Zone with Chinese Characteristics" [中共中央国务院关于支持深圳建设中国特色社会主义先行示范区的意见 （二〇一九年八月九日）]. It's strategic utility at this moment and in that place is unmistakable:

At present, socialism with Chinese characteristics has entered a new era, supporting Shenzhen to hold high the banner of reform and opening up in the new era and building a demonstration zone for socialism with Chinese characteristics, which is conducive to promoting reform and opening up at a higher starting point, higher level, and higher goals, and forming a comprehensive deepening of Reform and comprehensively expand the new opening pattern; help to better implement the strategy of Guangdong, Hong Kong and Macao Dawan District, enrich the new practice of "one country, two systems"; help to take the lead in exploring the new path of building a socialist modernization and strengthening the country, and provide strong support for the realization of the great rejuvenation of the China Dream.  当前，中国特色社会主义进入新时代，支持深圳高举新时代改革开放旗帜、建设中国特色社会主义先行示范区，有利于在更高起点、更高层次、更高目标上推进改革开放，形成全面深化改革、全面扩大开放新格局；有利于更好实施粤港澳大湾区战略，丰富“一国两制”事业发展新实践；有利于率先探索全面建设社会主义现代化强国新路径，为实现中华民族伟大复兴的中国梦提供有力支撑。

This post includes the text of "Opinions of the CPC Central Committee and the State Council on Supporting Shenzhen's Pioneering Demonstration Zone with Chinese Characteristics" [中共中央国务院关于支持深圳建设中国特色社会主义先行示范区的意见 （二〇一九年八月九日）] in the original  and in a crude English translation. A "pdf" of the original article may be accessed HERE. Any calculation of the future of Hong Kong ought to bear in mind  this important declaration of policy. To that end, ¶¶ 7-8 should be of special interest.

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 11--Article 3 (Scope) Reflections (2)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues our examination of Section 1 Article 3 (Scope) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. With this layer one begins to see actualized the dissonance already built into Articles 1 and 2 of the DLBI. This examination was prepared by Larry Catá Backer. 

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 10--Article 3 (Scope) Reflections (1)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post starts our examination of Article 3 (Scope) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. With this layer one begins to see actualized the dissonance already built into Articles 1 and 2 of the DLBI. This examination was prepared by Flora Sapio.

Surya Deva on the International Human Rights Implications of the Situation in Hong Kong

Although the situation in Hong Kong continues to draw scant attention in the West, the situation in Hing Kong has provided a very rich testing ground for many of the core principles of the Chinese and Western political models, especially in those small but important spaces where they intermingle. One of the more neglected areas in that context is the human rights effects of the dynamic situation in Hong Kong. There is good reason for that indifference.  First, the application of a human rights lens is complicated by the substantial conceptual differences in the articulation of human rights within a Chinese Leninist framework, and the framework that has emerged under the guidance of the human rights apparatus in Geneva.  Second, Hong Kong occupies a contingent space within that continuum of human rights--it is simultaneously deeply embedded within the Chinese Leninist system, and at the same time it remains an autonomous area whose contextually peculiar governance has been guaranteed pursuit to international treaty and in the constitutional organization of the People's Republic itself. 

Yet, for those of us for whom these issues, at the nexus point of national and international organization, are understood to drive changes in conceptions of constitutional ordering in the coming decades, the human rights implications--whether under a Leninist or liberal democratic model--of the situation in Hong Kong serves as a bellwether for the way in which China and the rest of the world will come to order their relations. The implications, for example, for Belt and Road Initiative relations  are worth considering.

It is in this context that Professor Surya Deva (School of Law of City University of Hong Kong) who currently serves as a member of the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises, has considered the human rights effects of one of the less well noticed aspects of the current dynamic situation in Hong Kong--the responsibilities of business enterprises in the context of Internationale recognized human rights responsibilities. Today, Professor Deva considered the issue in the context of the responsiilities of Hong Kong's Cathy Pacific Airlines.  His thoughts, "China business or human rights? Hong Kong protests leave Cathay facing a tough balancing act," published in the South China Moring Post, follow. 

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 9--Article 2 (Statement of Purpose) Reflections (2)

(Pix © Larry Catá Backer 2019; alter painting Cathedral Havana, Cuba)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues examination of Article 2 (Statement of Purpose) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Larry Catá Backer.

Challenging the California Gender Quota Law for Boards of Directors: Robin Crest, et al. v. Alex Padilla (LASC Case No. 19STCV27561)

(Pix credit here)

The issue of gender equity on corporate boards has been the object of much attention in recent years (e.g., here; here and here). It has also been the subject of some legal reform efforts. Much of this has occurred in Europe (e.g., here (Norway)).

But California has led legislative efforts in the United States. Its SB 826 Gender Quota Law requires certain corporations with a specified connection to California to have at least one female director on their boards of directors by 31 December and then increases that minimum number for certain corporations after 31 December 2021. 

 

Now that effort at legislative reform has been challenged.  On 6 August a lawsuit was commenced in Los Angeles County Superior Court challenging SB 826 ( Robin Crest, et al. v. Alex Padilla (LASC Case No. 19STCV27561)). It was brought by Judicial Watch on behalf of three taxpayers.

 

An e-Bulletin was prepared by William Ross of counsel to Hirschfeld Kraemer LLP and Katherine Blair a partner at Manatt, Phelps, Phillips LLP. It was distributed to the members of the California Lawyers Association Corporations Committee on 14 August  and follows below along with a copy of the Complaint, which may also be accessed HERE.

 

 

Just Posted: Flora Sapio, "‘Social Responsibility’ in the Governance of Chinese State-Owned Enterprises"

(Pix © Larry Catá Backer 2018)

I am delighted to pass along notice of the posting by Flora Sapio of an excellent new paper,  ‘Social Responsibility in the Governance of Chinese State-Owned Enterprises.  The abstract nicely summarizes the essay:

This paper sheds new light on the mechanisms used to monitor Chinese MCNs compliance with their corporate social responsibility (CSR) obligations. China’s state-owned MNCs play a pivotal role in the implementation of the Belt and Road Initiative, and continue to account for roughly 30 cent of domestic GDP. SOEs’ position within China’s governance system, and the ideological features of China’s governance model make CSR obligations a binding duty of state-owned MNCs, and of their domestic and foreign subsidiaries.

In Western legal systems, CSR and its more recent evolution of business and human rights are understood as a form of regulation public and private enterprises may adopt on an entirely voluntary basis, and integrate within their business model. China’s case is obviously different. The first part of this paper places the notion of CSR (gongsi shehui zeren) against the backdrop of non-state based compliance and monitoring mechanisms specific to state-owned MNCs. Next, the paper describes the major CSR norms and mechanisms grounded within the system of regulations of the Chinese Communist Party. In its concluding section, the paper presents some reflections on the main features of CSR in China and their relevance to the Belt and Road Initiative.

The first part of this paper places the notion of CSR (gongsi shehui zeren) against the backdrop of non-state based compliance and monitoring mechanisms specific to state-owned MNCs. These mechanisms are described in the second and third part of the article. The fourth part of the paper provides an overview of the methods used to assess CRS compliance. Beyond the generic duty of disclosure,compliance is mostly assessed through evaluation and ranking procedures, where ‘social credit’ and Big Data are beginning to play a pivotal role. In its concluding section, the paper presents some reflections on the main features of CSR in China and their relevance to the One Belt One Road.

The paper may be accessed here through SSRN.

The Situation in Hong Kong: Press Briefing Note from the United Nations High Commissioner for Human Rights 关于中国香港的新闻发布会 联合国人权事务高级专员发言人

It has taken some time for the great and sometimes unlubricated wheels of the United Nations Geneva apparatus to move in the direction of the situation in Hong Kong. That eventually some movement would occur was both inevitable and now unavoidable. But such a movement puts the UN Office of the High Commissioner in a delicate situation.

The Cheese side would likely view any recognition of "trouble" in the SAR as both "sensitive" and as interference in the internal affairs of China. China, as a big power country would tend to take umbrage--though it should be noted that such umbrage appears much less in evidence when the interference is pointed elsewhere. On the other hand, many of the High Commissioner's other stakeholders have become increasingly vocal about the situation in Hong Kong and critical of the way it has been handled--using in many instances the language of international human rights. These state and non-state actors also cannot be ignored.

In contrast to the likely Chinese position on the "correct" statement from the OHCHR, these stakeholders would likely reject as "incorrect" any recognition of the trouble in Hong Kong that did not stress violations of human rights and did not include warnings against overt changes to the status of Hong Kong. Failure to include both might be read as an unacceptable retreat from the broad principles of global human rights they have worked hard to embed--though it should be noted that this embedding appears to apply differently in a number of contexts.

In this context, then, it is clear that China likely would expect an expression of support for its restraint, a warning against foreign interference in its internal political order, and an acknowledgement of its right to act to protect what it views as the integrity of its system. Likewise, in that context it is clear that other state and non-state actors (mostly from the Western camp) would expect an expression of support for the protestors, of disapproval of the overreaction of police personnel and others, and an acknowledgement of the right of individuals to act to preserve the integrity of the global human rights system and its principles.

Given these constraints, it appears that the OHCHR has tried to give all parties what they desire--a statement that folds in on itself and sums to zero. It was well done and elegantly expressed, but will it be read in the spirit in which it was delivered?  Note the key words inserted at just the right time in support of both positions. It is easy, though to read into the words an unbalanced support for either side--depending on how the reader chooses to interpret the carefully worded text. It is now for the parties to sort through the contradictions, recast the statement in the best light possible for the furtherance of their respective goals, and perhaps respond in some way to the OHCHR itself in some to be determined way. 

The Press Briefing follows below in English and with 粗汉语翻译

Trench Warfare from the ALI to the ABA on the Construction of Principles of Sexual Consent: From the ALI Model Penal Code to ABA Resolution 114

I have been chronicling the now years long battle within the American legal elite for control of the narrative and ideology of sexual relations and its incorporation into the criminal law of the United States. The question centers, as it has for centuries, on the use of the criminal law to embed social conventions into the sexual relations of people. As is customary in such battles in the United States, those who have sought to impose their orthodoxy on the rest of us have veered from one extreme to another.

For centuries, the ideology of sex privileged (in the old fashioned and no discredited binary of active and passive participants) that consent was presumed unless there were relatively extreme signs of lack of consent. That narrative presumed under many circumstances that consent could neither be required (marriage) nor that it could be withdrawn. Now among the many who had found the old narrative out of touch with current customs and mores, some have sought to reverse the narrative. They would start form the presumption that any intimate contact among humans is undertaken without consent, and that such consent must be affirmatively evidenced at every stage in the encounter of individuals which, in the eyes of the state could be sexualized (which at the start of this century is now more broadly scoped). In both cases, the criminal law was the means through which the state could exercise its power to mediate encounters of a sexual nature and adjudge some permitted and some not. At the center of this transformation is the development and deployment ofd the concept of "affirmative consent."

That battle had been waged for the most part in the halls of academia and from there in great debates within the American Law Institute, which I have noted over the course of the last several years (here, here, here, here, here, here, and here). That debate has also spilled into the battles about legitimacy of non-judicial grievance mechanisms encouraged by administrators during the time of the Presidency of Barack Obama and administered by U.S. universities under threat of loss of federal support (“Fairness for All Students Under Title IX,”; The Revolt of the Feminist Law Profs). The battle might be usefully understood as pitting those who favor affirmative consent and its guiding presumptions about power relations and baseline foundations for sexual encounters against those who view the new narrative as either out of touch with social or cultural realities, or neglectful in substantial ways of the principles of due process and its legitimacy enhancing function.

Now the proponents of affirmative consent have moved the battle to the American Bar Association, which this week will consider a resolution urging states to embed the concepts f affirmative consent into their criminal law of the regulation of conduct defined (broadly or narrowly) as sexual or otherwise with respect to which such a principle might be useful. That has generated a quite interesting additional battle over the trajectory of the ALI's consideration of the issue.

"A more elite legal group, the American Law Institute, had already considered this issue. The ALI’s members voted overwhelmingly to reject affirmative-consent language proposed by activists who have for years sought to revise the group’s Model Penal Code. Rather than acknowledge this dramatic vote, the ABA report suggests that the ALI’s decision “is not yet final.” That characterization is misleading at best: A letter signed by more than 100 ALI members to the ABA’s president insists that moving forward on such an “obviously deficient” record would question “the essential integrity of the ABA.”" (Will the ABA Reject Due Process?).

And it has generated some opposition especially from the criminal defense bar (e.g., here). On the eve of consideration of this proposal, the ABA Criminal Justice Section appeared to have voted to withdraw its support for Resolution 114 and has sought to table the Resolution. The ABA Commission on Domestic and Sexual Violence remains committed. Resolution 114 and the Report to the ABA House of Delegates may be accessed HERE. Eventually, ABA Resolution 114 was tabled indefinitely by a strong vote of 256-165.

This post includes a letter, written by a group of ALI members to the ABA respecting both the substance of the ABA's proposed Resolution 114 and the contentiousness of the issue within the ALI. Also included is a copy of the email sent by the Chair of the ABA Commission on Domestic and Sexual Violence. A link to the video of part of the Debate may be accessed here.

It will be interesting to see where all of this leads--more, perhaps, for the sociology of law, than for the merits of evolving cultural and societal expectations that are expected to be enforced through the use of the criminal law of states. Sex and sexual encounters will continue to occupy an important place in the business of government.  In that occupation lies one of the most interesting conversations between the state, society, and those who seek to manage both.

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 8--Article 2 (Statement of Purpose) Reflections (1)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post turns to Article 2 (Statement of Purpose) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Flora Sapio.

Teaching Corporate Social Responsibility Law: CSR in the Present Tense; A Syllabus 3.0

(Pix © Larry Catá Backer 2018)

For the last two years I have been developing a semester long course (focused primarily on law students and graduate students in international affairs) on Corporate Social Responsibility Law. The subject is usually I neglected outside of Business Schools, and even there it may be closely associated with business "ethics." Law schools tend to be indifferent, except as a possible hyper-specialized addendum to "real" course, or reconstituted usually as an adjunct to human rights or environmental law classes. At its best, it is sometimes better developed as part of the clinical curriculum. Indeed, the first time I taught the course was in the School of International Affairs. Only later was it possible to offer the course in a law school (which considering an indifference of legal academics to courses that are not traditionally doctrinal in conventional ways was to some extent a surprise).

I have been chronicling these efforts over the last two years (version 1.0: Corporate Social Responsibility Law--A Tentative Syllabus; Version 2.0: Teaching Corporate Social Responsibility Law: A Syllabus 2.0). My core object was to try to capture both the existing practice and emerging conceptions of the corporate social responsibilities of enterprises both have rapidly shifted from a focus on charity, one focused on human rights and sustainability. At the same time I have sought to capture the shift from a centering of these issues on the domestic legal orders of states, to international public law and market based societal regulation. Lastly, I have begun to try to embed emerging sensibilities that increasingly see in data driven analytics and consequential algorithms, a new and more potent regulatory tool for managing the societal responsibilities of enterprises across borders.

CSR Version 1.0 was a good effort, but proved to be more challenging than expected for students. The reason was simple: it was an academic's syllabus. That was a problem especially since the object of the course ought to have been less to impress my colleagues than to effectively impart knowledge to students. A few lessons from that experience: Translating theory to immediate and concrete realities proved to be more interesting to students than a deeper but more abstract engagement with the critical issues and challenges of the topic. Second, working through a live example provided much more student ownership of the materials than the traditional approaches. Third, comparison across business sectors and states proved far more enriching than alternatives. Comparisons among enterprises, among institutions, and among states, proved quite useful in drawing insights that students found profitable.

So, with these insights I produced my CSR Syllabus 2.0, which drew on the lessons I hoped I learned. It was better, but still not as useful as it could be. The exercises were not as connected as they might have been. The focus on sustainability and data driven governance was given too little attention. Also necessary was more time devoted to actually understand the interrelationships between charity, human rights, sustainability and enterprise engagement with these as an interrelated set of business objectives (or costs of production or risk/compliance centers). My sense was that the mechanics of the course were now more compatible with the way students might better approach the course. But there was also a sense that the materials might be more immediate. I found that it was as useful to work through the materials (theory and application) through an analysis of events occurring in real time, than to isolate those and work through them in a more historical context. CSR, in effect, needed to operate in the present tense.

Now I have produced Version 3.0 in which I sought to incorporate some of the insights learned from teaching Versions 1.0 and 2.0. Rather than developing a more complete taxonomy through which the class would dutifully journey, the syllabus is now constructed so that multiple issues can be introduced and considered in context through a series of "as applied" assignments. Students will also be prepared better to fend for themselves--the course is now oriented more toward capacity building through deep knowledge and deep process exercises. At least that is the hope.

The syllabus, relevant portions of which follow, including a Statement of Course Content and Structure. All still remains very much a work in progress. That is as it should be for a field of law-politics-economics that is still in its infancy. Comments and suggestions still gratefully appreciated. The full syllabus may be accessed HERE, along with Versions 1.0 and 2.0. I will report form time to time on the course.

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 7--Article 1 (Definitions); Reflections (3)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues its brief reflections on Article 1 (Definitions) of the Draft Legally Binding Instrument (DLBI), focusing now in the integrity of the definitions and their interpretive range. These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Larry Catá Backer.

Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"]

(Pix: Antigone (Satochi Miyagi (2017))

Last week Albert Chen Hung-yee 陳弘毅 posted the first of a two part essay, 理性溝通的困境 ["The Dilemma of Rational Communication"] first appeared on 2 August in the Ming Newspaper supplements [發表於《明報》副刊] which I posted here. 

Today, Professor Chen posted the second part of the essay, 一國兩制的博弈 ["The Game of One Country Two Systems"]. It also originally appeared in the Ming Newspaper on 9 August 2019. 

In the first essay Professor Chen assumed the voice of the classical Greek chorus delivering the parados or entry song, in this case an an elegy to discourse, and to the tragedy that is working its way to climax in Hong Kong.

In the Second essay, 一國兩制的博弈 ["The Game of One Country Two Systems"], the tone shifts. It retains its distance from the central characters in the drama, but now uses the mechanics of the modern oracle--game theory, and classical economic theory of behavior--to both make a prediction and to urge at least one side in the current situation in Hong Kong to reconsider the path some of its members have chosen to attain goals which only partly overlap with that of the government camp. Here one enters the realm of the role of the chorus in Sophocles's Antigone. Here Professor Chen introduces key thematic or emotional elements essential to the unfolding of the inevitable course of the tragedy. Here, as well, Professor Chen lays out the elements of the tragedy that principle begot in a context whose course was set in motion years ago and by others.

Thou hast rushed forward to the utmost verge of daring; and against that throne where justice sits on high thou hast fallen, my daughter, with a grievous fall. But in this ordeal thou art paying, haply, for thy father's sin. . . Reverent action claims a certain praise for reverence; but an offense against power cannot be brooked by him who hath power in his keeping. Thy self-willed temper hath wrought thy ruin. (Sophocles, Antigone, Chorus).

For these and other reasons, apparent to those who study it, Professor Chen's essay, 一國兩制的博弈 ["The Game of One Country Two Systems"], is worth reading.  The essay follows below in English  以及原始的中文版本

Cross posted (in Italian also) in Albert Chen: Il Gioco di Un Paese, Due Sistemi | 一國兩制的博弈 | The Game of One Country Two Systems, with thanks to Flora Sapio.