New Paper Posted: "The Algorithmic Law of Business and Human Rights: Constructing a Private Transnational Law of Ratings, Social Credit, and Accountability Measures"

Fernand Leger, The Card layer 1923

I am delighted to post a draft of a new paper, "The Algorithmic Law of Business and Human Rights: Constructing a Private Transnational Law of Ratings, Social Credit, and Accountability Measures." We wanted to consider data driven governance at it is emerging as an important element in the operationalization of international human rights  norms applied to economic activity.  We were particularly intrigued by the way that civil society actors, usually suspicious of data driven analytics to advance the great project of  the legalization of business and human rights (now including issues of sustainability and climate change), appeared to be embracing data driven governance.  We wondered whether this embrace was of a method of hardening international standards and advancing the objectives of national (usually disclosure based) law, or whether it augured changes in the way in which civil society (and enterprises) appeared ready to embrace in the forms of law making and the practices of governance.  The questions appeared particularly interesting in an area of substantial advance in both the legal and the algorithmic projects--that centering on the challenged of forced labor and modern slavery.  And thus the concepts around which the paper was constructed fell into place.

One of ist most interesting aspects involved our engagement with the issue of the relationship between the rise of Western data driven governance (what we are calling algorithmic law) and the equally interesting evolution of Chinese Social Credit systems. Our preliminary conclusion in that respect:

Marxist Leninist Social Credit systems emerge from a centralized system that is evolved under the leadership of a vanguard party with a quite specific core legitimating objective: the establishment of a communist society in China. That, in turn, requires the shedding of the imperfections of Western and liberal democratic principles and morals for the principles that under the leadership of the Communist Party will advance the core goal. Such a system necessarily may have substantial functional resonance with Western algorithmic law, but it operates on the basis of substantially different normative baselines. They might “speak” to each other on a technical level, but are essentially irreconcilable at the level of norms and (political) values.

The Abstract and introduction follow below.  The paper may be accessed (and dowloaded) through the Social Science Research Network (HERE) (or contact us). My co-author (and research assistant) Matthew McQuilla and I would welcome any engagement and further conversation around the themes  developed.  This is really the beginning of what will likely be a quite interesting journey. 

COVID-19 Crisis and the Cuban Expansion of the Private Sector: Announcement of Gradual Elimination of Restrictive Licensing Regime for Limited Private Sector Economic Activity

One of the great markers of the Cuban political economic model was its tight control of the non-state sector.  Though much of the propaganda directed toward the hopeful and gullible masses in liberal democratic states (and especially its intelligentsia) was carefully drafted to suggest (but not declare) an embrace of market and market oriented principles, the reality has been much more aligned with the quite clear strictures of the Cuban Communist Party's  (PCC) political economic model adopted during its 7th PCC Congress in 2016.  The conceptual blueprint for the Cuban political economic mdel has been widely distributed in the form of its Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos   and its embrace of central planning (along with the fundamental distrust of markets as an economic-political ordering mechanism)   as the operative form of macro economic and politically driven planning has bee advanced strenuously even in the face of challenges (e.g.., "Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy," that appears in the Connecticut Journal of International Law 32(1):1-47 (2017).

But the collateral effects of the COVID-19 pandemic has produced a challenge of a substantially different character for the Cuban political-economic model and its conceptual basis elaborated in its  Conceptualización del modelo económico y social Cubano.  The economic effects of the pandemic has affected key sectors of Cuban economic planning through 20230.  The most acute effects hasve been felt in the tourist sector; but that direct effect has produced substantial secondary effects as well.  The absence of tourism affects not only direct employment and investment, but it also affects business (state and non state sector) dependent on tourism, from house renting to dining to guides, trinket sales and the more importantly the domestic sale of "signature" Cuban products (liquor, cigars, art, etc.). While the pharma sector has benefited, the economic rather than the political benefits of medical research that is COVID related has yet to be assessed.  The same is true of Cuba's medical internationalism.  While the political benefit of the provision of medical staff outside of Cuba has brought some positive political benefits, it is not clear that the overall economic effects have been enough to dent the shortfalls from other economic sectors (and this is particularly the case where some of the provision of medical services may have been done at reduced at no cost to the recipient territory).  

Pix Credit: ABC News

When one adds difficulties in remittances from abroad and the increasing financial requirements on the state to provide for food, water, and services scarcities, the pressure on the Cuban state--again one that has banked on central planning and a tightly controlled non-state sector--has become enormous. In response, Cuba has begun--officially--to adopt a number of reforms (discussed in the recent Conference of the Association for the Study of the Cuban Economy (ASCE):  see, “Destrabando” the Cuban Economy: An Assessment of Reforms and the Road Ahead" and the Carlos Diaz Alejandro Lecture--“Racism with Equality? Measuring Racial Inequality in Cuba, 1980-2010”; Today's Program for the Conference Cuba From the Castros to COVID; see also José Antonio Alonso and Pavel Vidal on "La Reforma Económica en Cuba: Atrapada en el Medio" (Working Paper Foro Europa-Cuba; November 2019). Part of the reforms are meant to make a little easier the ability of non state sector businesses to obtain materials and funds (Economy tanking, Cuba launches some long-delayed reforms).

Video of annuncement of the licensing scheme reforms Access HERE

One of the more interesting developments has been the much trumpeted decision by the state to eliminate one of the key structures for the control of the private sector--the requirement that all private activity be licensed, coupled with the control of the sort of economic activity that could be licensed (e.g., if there is no license for an activity, it may not be undertaken except by state organs). The system of private activity licensing in its current forms is at least a decade old and closely tied to the Lineamientos (Guidelines) which were developed by the PCC to chart a pathway to reform (which after 2016 was to be further constrained by the principles of the Conceptualización del modelo económico y social Cubano; e.g., ,Under Cover of the Sonic Weapons Attack: The Cuban Private Sector as Collateral Damage as Cuba Retreats Toward Central Planning). It was meant to retain effective state control of the non state sector will effectively devolving operational tasks (at the lowest levels of consumer goods and services) to individuals. The licensing system proved difficult to enforce and resulted in substantial "work around" tolerated by the state but often subject to campaigns against abuse, wealth accumulation, corruption, etc. 

My very brief observations: (1) there is a wide gulf between announcement and rolling out, which is nebulously planned for the future and in (slow?) stages; (2) it is not clear how much regulatory  impediments will be built into the new structures for private sector operation (if the model of foreign investment is any guide, the bureaucracy around this reform may be formidable. . . .and expensive); (3)  it is not clear what sectors of the economy will be roped off from private sector permitted activities; (4) the ability of foreigners to invest in the private sector enterprises is not clear; (5) the nature of aggregations of capital or labor that may take advantage of the reforms has not been specified with any clarity, the official suggested that small enterprises and labor Coops would be the focus (on Cuban labor Co-ops see The Cooperative as a Proletarian Corporation)); and (6) the extent of monitoring and approval of specific activities has yet to be determined (that is the extent to which the newly opened private sector must still report on its business planning, pricing, and sales models to obtain approval before they can proceed) though it is clear that there will be monitoring and approval processes imposed.

As is most Cuban economic reforms, it is the detail rather than the broad statements that merit substantial attention.  The broad statements serve political ends; the details serve economic ends--and it remains to be seen the extent to which the reforms remain, in their details, consistent with the Conceptualización del modelo económico y social Cubano. However, it is this connection with the ideological foundations of the Cuban political-economic model, as well as the strong  connection between quite specific patterns of implementation and the reform announcements that will be missed by many who treat these reforms as if they were being announced by the Government in Paris rather than in Havana.

Reporting on this announcement follows (in Spanish).

Developing the Lexicon of CSR-Responsible Business Conduct: GRI Exposure Draft of Universal Sustainability Standards Open for Public Comment Through 9 September

One of the greatest fundamental objectives of those who would transform the way that institutions and individuals engage in economic activity is to change the lexicon trough which those activities are understood and valued. The lexicon of responsible business conduct can be understood in its double sense. First lexicon can be understood in its traditional sense as the gathering (or collection) of words proper to a language. Second, one might understand the building of a lexicon in its modern sense of a "vocabulary proper to some sphere of activity" (Etymology Online, "lexicon").

It is that double sense that produces not just a consensus of words used in a particular activity, but more importantly, a consensus of the principles and values built into those words and their aggregation into sentences and more generally speech. The way one used words does not merely describe a thing but it also injects value (and the judgment of principle) into the words used. To control a lexicon is effectively to develop the palette of values around which an activity (e.g. economic activity in this case) is understood, managed, valued, evaluated, and those engaged in such activity may be brought to account.

It is with this in mind that the Global Reporting Initiative (GRI) 2020 exposure draft of the Universal Standards assumes some importance. GRI describes itself as "an independent international organization that has pioneered sustainability reporting since 1997." Its principal purpose is centered on the construction of a set of language-values for the conceptualization and communication of economic activity in ways that reflect the political-economic ideology which it reflects and which is reflected by it. In GRI's less abstract words:

GRI helps businesses and governments worldwide understand and communicate their impact on critical sustainability issues such as climate change, human rights, governance and social well-being. This enables real action to create social, environmental and economic benefits for everyone. The GRI Sustainability Reporting Standards are developed with true multi-stakeholder contributions and rooted in the public interest. 

Unlike many such public state based or international organs undertaking similar efforts, GRI tends to be more more transparent (something that ought not go unnoticed).  The Global Sustainability Standards Board (GSSB), the independent standard setting body of GRI, is circulating for public comment this exposure draft of GRI Universal Standards 101-103--and its critical vocabulary. They explain as follows:

The exposure draft is structured as follows: [1] GRI 101: Using the GRI Standards(lines 1 –830) [2GRI 102: About the Organization (lines 831–2205) [•GRI 103: Material Topics(lines 2206–2890) [4] Glossary(lines 2891–3184). The exposure draft is accompanied by the following three documents: [1] Explanatory memorandum sets out the objectives for the review of GRI’s Universal Standards, the significant proposals contained in the exposure draft, and a summary of the GSSB’s involvement and views on the development of the draft. [2] GRI Sector Program information sheet helps reviewers understand references to the GRI Sector Standards included in the exposure draft. [3 Mapping document provides an overview of the changes between the disclosures in GRI 102: General Disclosures 2016 and GRI 103: Management Approach 2016 and the exposure draft of the Universal Standards. This draft is published for comment only and may change based on public feedback before its official release.Any interested party can submit comments on the draft by 9 September 2020 using this survey. 

This provides an excellent opportunity for those with an interest in these matters to submit comments.  These comments might address not merely technical issues (e.g., are the provisions internally consistent, do they say what they mean, etc.), but also basic normative questions (do the Standards and the changes reflect appropriate values or attach appropriate methods to the vindication or advancement of those values, etc.).

The Comment Notice (with links) and my brief comments follow below.  The Exposure Draft (about 106 pages) may be downloaded HERE.

OHCHR Informal Consultation: On the State of the UN Human Rights Treaty Body System

Passing along a call for informal consultation that may be of interest.

Non-governmental organisations, national human rights institutions and all other relevant stakeholders:

The Office of the High Commissioner for Human Rights would like to inform non-governmental organisations, national human rights institutions and all other relevant stakeholders that the informal consultation by the co-facilitators appointed by the President of the General Assembly on the process of the consideration of the state of the UN human rights treaty body system will take place on 28 August 2020 from 3 to 6 pm, as per attached letter from co-facilitators.

All representatives wishing to participate in the informal consultation either in person in room XX, Palais des Nations or, on-line on webex are requested to register their participation with the Secretariat through INDICO at the following registration page: https://indico.un.org/event/34768/by 25 August 2020, close of business.

Please indicate if you wish to take the floor on INDICO.

Due to COVID-19 physical distancing restrictions in room XX participation in person will be limited to one person per organisation. Further detailed information is contained in the attached information note.

The UN describes its human rights treaty bodies as "committees of independent experts that monitor implementation of the core international human rights treaties. Each State party to a treaty has an obligation to take steps to ensure that everyone in the State can enjoy the rights set out in the treaty."

Committee on the Elimination of Racial Discrimination (CERD) monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (4 January 1969);
Committee on Economic, Social and Cultural Rights (CESCR) monitors implementation of the International Covenant on Economic, Social and Cultural Rights (3 January 1976);
Human Rights Committee (CCPR) monitors implementation of the International Covenant on Civil and Political Rights (23 March 1976) and its optional protocols;
Committee on the Elimination of Discrimination against Women (CEDAW) monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women (1979) and its optional protocol (3 September 1981);
Committee against Torture (CAT) monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (26 June 1987);
Committee on the Rights of the Child (CRC) monitors implementation of the Convention on the Rights of the Child (2 September 1990) and its optional protocols (12 February 2002);
Committee on Migrant Workers (CMW) monitors implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1 July 2003);
The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) established pursuant to the Optional Protocol of the Convention against Torture (OPCAT) (22 June 2006) visits places of detention in order to prevent torture and other cruel, inhuman or degrading treatment or punishment;
Committee on the Rights of Persons with Disabilities (CRPD) monitors implementation of the International Convention on the Rights of Persons with Disabilities (3 May 2008);
Committee on Enforced Disappearances (CED) monitors implementation of the International Convention for the Protection of All Persons from Enforced Disappearance (23 December 2010); and
The treaty bodies meet in Geneva, Switzerland. All the treaty bodies receive support from the Human Rights Treaties Division of OHCHR in Geneva.

While these bodies have little authority, they sometimes can exercise considerable influence.  Those who care about these areas, and especially those interested in the protection or reform of the narratives through which each of these instruments is understood and applied--as well as students of institutional operations, might strongly consider submitting.  I would be happy to post those to this website as well.

The letter from the co-facilitators, the Swiss Confederation and the Kingdom of Morocco--follows below, along with the Information Note: Informal consultations by the co-facilitators of the process of the consideration of the state of the UN human rights treaty body system on 28 August 2020.

"Chinese Social Credit and Pandemic": PowerPoint for Presentation at 3rd Annual Innovation and Technology Law Conference 21 August 2020

I am taking this opportunity to share the PowerPoint of my presentation to be delivered at the 3rd Annual Innovation and Technology Law Conference 21 August 2020. 

The presentation is entitled Chinese Social Credit and Pandemic and considers the insights that Chinese approaches to data driven governance might provide to the rabidly emerging systems of surveillance, accountability, and compliance that have been emerging in the West.  The COVID-19 pandemic has proven to be a greater driver of accelerating advances in these areas. Some worry that in the rush to envelop the governance of societal and political orders with data and data driven analytics, the traditional law based constraints on governmental power--both the power to impose its will and the authority of its administrators to directly exercise discretion in the exercise of that assertion of (police) power--will be displaced by a different system generating and applying political and moral values. Those who worry, then worry further that in the process of displacement--both of the traditional guardians of the values within which political systems retain legitimacy, and the content of those values--will change, and not for the better (from the perspective as guardians of the traditional system. 

Please consider registering and attending the event.  Registration and program information may be accessed HERE. 

The PowerPoint (with embedded links) may be accessed HERE: Backer_Seattle_SocialCreditPandemic.

Images of the PowerPoint also follow below.

Remonder: Please Consider Registering for the Seattle University School of Law: 3rd Annual Innovation and Technology Law Conference 21 August 2020

I am delighted to announce the Seattle University School of Law: 3rd Annual Innovation and Technology Law Conference. It will be held Friday August 21, 2020 as a virtual event from 9.00 am through 4.00 pm (Pacific Time). The Conference is sponsored by the law firm of Perkins Coie, the Seattle Journal of Technology, Environmental & Innovation Law (SJTEIL), and Seattle University School of Law’s Summer Institute for Technology, Innovation, and Entrepreneurship (SITIE—pronounced CITY).

REGISTER for the event HERE.

The Agenda, Speaker list and other information follows below--or visit the Conference site HERE.  I will be participating, along with Kristin Johnson, McGlinchey Stafford Professor of Law, Tulane University,  in a discussion of a "Case Study on Personal Data:  Social credit scoring models from China to Silicon Valley."

This program is pending approval for 1 CLE credit in the following jurisdictions: Alaska, Arizona, California, Colorado, Idaho, Illinois, New York, Oregon, Texas, Virginia, Washington and Wisconsin. During the event, a course code will be provided by the presenter(s).

The Program Follows. with links.

Thoughts on 不断开拓当代中国马克思主义政治经济学新境界 作者：习近平 (Constantly open up a new realm of contemporary Chinese Marxist political economy / Xi Jinping)

Pix © Larry Catá Backer View of Beijing on a Clear Day

As I have been reporting over the course of the last year or so, Xi Jinping has been building a corpus of writings that collectively are intended to serve as the memorialization of New Era Theory.  To that end, these writings have been published periodically in the flagship Journal of the Chinese Communist Party--Qiushi (Seeking Truth).

For its  Issue 16 (issued 16 August 2929), Qiushi published Xi Jinping's 不断开拓当代中国马克思主义政治经济学新境界 (Constantly open up a new realm of contemporary Chinese Marxist political economy), a speech by General Secretary Xi Jinping during the 28th collective study session of the Political Bureau of the 18th Central Committee on November 23, 2015 (and updated). These essays are important not only because of their influence on the development of Chinese Marxist Leninism.  They are also critical signals about the emphasis of Leninist development at a particular time.  The choice of essays to publish and the timing of that publication may provide a window both on the vectors of theoretical development, but also of what may be an important element of internal discussion at the time of publication. 

For this issue the focus appears to be on the Marxist normative elements of Markets Marxism (for my discussion of the model, see, Central Planning versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy ).  The issue, and one central to New Era theory, is to accomplish two objectives  The first is to distinguish socialist from capitalist markets economies--that is to make the case that markets are methodological not normative instruments.  The second is to suggest the Chinese and socialist character that may be built into markets. 

The original text along with a crude English translation follows, along with brief reflections.

七步诗 (Qībùshī)” [The Seven Steps Verse]: Thoughts on the Expulsion of Cai Xia (蔡霞) From the Chinese Communist Party

七步诗 (Qībùshī)” – The Seven Steps Verse
煮豆燃豆萁，(Zhǔ dòu rán dòu qí,)
豆在釜中泣。(dòu zài fǔ zhōng qì.)
本自同根生，(Běn zì tóng gēn shēng,)
相煎何太急(xiāng jiān hé tài jí)
English Translation:
Lighting [burning] the bean stalk to boil the beans, and of this the beans thus wailed:“Born are we of the same root; should you now burn me with such disregard?”

China’s Communist Party expels outspoken retired professor over speeches (MSN News)

The Communist Party of China (CPC) has recently published a notice of the decision to expel Cai Xia (蔡霞) and to cancel her retirement benefits.  The notice read in full as follows:

中央党校（国家行政学院） 严肃处理退休教师蔡霞严重违纪问题 [The Central Party School (National School of Administration) seriously dealt with the serious violation of discipline by retired teacher Cai Xia]

(新京报快讯) 据中共中央党校(国家行政学院)网站消息，中央党校(国家行政学院)退休教师蔡霞，发表有严重政治问题和损害国家声誉的言论，性质极其恶劣、情节极其严重，严重违反党的政治纪律、组织纪律，违反国家事业单位人员行为规范。经中央纪委国家监委驻中央组织部纪检监察组和中央党校(国家行政学院)机关纪委联合审查调查，依据《中国共产党纪律处分条例》和《事业单位工作人员处分暂行规定》的有关规定，中央党校(国家行政学院)校(院)务委员会决定，开除蔡霞的中国共产党党籍，取消其享受的相关退休待遇。[(Beijing News Express) According to the website of the Party School of the Central Committee of the Communist Party of China (National School of Administration), Cai Xia, a retired teacher of the Central Party School (National School of Administration), has made remarks that have serious political problems and damage the country’s reputation. The nature is extremely bad, the circumstances are extremely serious, and serious violations. The party’s political discipline and organizational discipline violate the code of conduct for the personnel of state institutions. After a joint review and investigation by the Disciplinary Inspection and Supervision Team of the State Supervision Commission of the Central Commission for Discipline Inspection in the Organization Department of the Central Committee and the Disciplinary Commission of the Central Party School (National School of Administration), in accordance with the relevant provisions of the "Regulations on Disciplinary Measures of the Communist Party of China" and "Interim Provisions on the Punishment of Institutional Staff The Party School (National School of Administration) School (Institution) Committee decided to expel Cai Xia from the Communist Party of China and cancel the relevant retirement benefits.]

This is no ordinary expulsion; and its ramifications ought to be carefully considered both within and outside of China.  Cai Xia was not just "anybody;" she was a former professor at China's Central Party School. More than that: "Cai is the granddaughter of a revolutionary fighter and taught for four decades at the party school, giving her a solid 'red background'."(Chinese academic disciplined after criticising Xi and Communist Party).  The reporting by the South China Morning Post ("China’s Communist Party expels outspoken retired professor over speeches") follows below that supplies much of the background, though not much of the backstory.  

Several points are worthy of consideration here in that respect.  Those follow below along with the reporting for the South China Morning Post by Jun Mai.

Sustainability Meaning Making In Global Finance: OMFIF Survey on Sustainable Investment (Chapter 9 of the OMFIF Report; Global Public Investor 2020)

As has become something of a commonplace, the general consensus among those who manage the narrative of the global economy (such as "it" is and to the extent that one can describe "it" in the singular) that the pandemic can serve as an accelerator of a trend they have been nudging along to more deeply embed ESG (environmental, social, and governance) in their operations (at least in the way they identify and incorporate cost and value in their operations). 

Again, one must understand this movement as initially focused on narrative.  Narrative building, in turn, consists of two broad approaches.  

The first involves meaning making through stories and understandings of right and wrong (social, economic, and political morals), that are consistently delivered and curated by the vanguard cohort of meaning makers vested (by virtue of their position, authority, or power) with legitimacy.  Storytelling through norm making has now been deeply embedded into the culture of international organizations and within the operations of the largest transnational economic and civil society organs (in the West--Marxist Leninist meaning making takes a different route)).  

The second involves meaning making through institutional and operative reorganizations. These changes, at least in their initial stages take on a set of uniform forms. They include the development of policy (from the top down; from the bottom up, etc.--it differences in the end except to the extent that either complies with the procedural expectations of a particular culture). They also include the development of forms of "response" built into (mostly) narrative or qualitative institutional measures meant to highlight (or signal) the greater centering of emerging values into the operational equations that constitute the way that values are applied (and factors added to core analytics) of the process of producing value. In less abstract English--it produces the tendency toward the construction of "National Action Plans," of reporting and compliance (risk mitigating) measures; of systems of internal surveillance--in short of variations of human rights due diligence systems that by their operation effectively inject policy (normative narrative) into patterns of institutional behavior (operational narrative).

One of the great vanguard organizations in this process is OMFIF, the Official Monetary and Financial Institutions Forum, an independent think tank for central banking, economic policy and public investment. It is an important vanguard if only because it serves as an important window on the way in which institutions that control financial markets that power global production chains are reshaping the normative (values) universe within which they and their clients operate. See OMFIF's Report, Global Public Investor 2020.

Chapter 9 of that Global Public Investor 2020 Report, Sustainable Investment, presents the findings and analysis of two surveys.  It is used to support the idea that conclusion that "GPIs have gradually incorporated environmental, social and governance factors in their portfolio management and wider activities. Most of them now have specific ESG investment policies in place or are in the process of developing one, according to a study of sovereign funds and public pension funds conducted by OMFIF and BNY Mellon." (Ibid., p. 3).

The two surveys that are the basis of the study are worth careful study.  The Press Release announcing the distribution of the survey results (reproduced below) notes that OMFIF GPI Survey 2020 was "conducted between March-June, and reflects the responses of 50 central banks, 11 sovereign funds and 17 pension funds with combined assets under management of $7.2tn. Five questions from the survey focus explicitly on sustainable investment issues." It also explains that the OMFIF ESG integration survey "included 25 questions on ESG investment and was conducted in association with BNY Mellon between August-November 2019. . . [reflecting] responses of 27 sovereign and pension funds with a combined AUM of $4.7tn." The surveys were anonymous and permitted opt out.

The survey results and their analysis, the process of constructing both normative and operational narrative, are bound up in the animating motivation expressed in Chapter 9 (pp 3-4).

Within the GPI community, investors are realising that adopting ESG criteria can protect portfolios from non-financial sources of risk. They are opting to integrate ESG considerations to mitigate the risk of reputational damage, and to better align their values and investments. The expectation of superior risk-adjusted returns was a predominant motivation for ESG criteria integration among GPIs, according to the OMFIF-BNY Mellon survey. Generally, GPIs are aware that ESG factors can present underlying investment risk. For example, non-sustainable investments might become ‘stranded’ or lose value over time, or a company’s operations could become compromised if subject to a climate-related disaster. Survey respondents also cited the need to align investment strategies with organisational values or minimise reputational risks as a driver of ESG implementation.

Both Chapter 9 (Sustainable Investment) and the larger OMFIF report (Global Public Investor 2020) are well worth reading, if not for the "truths" of what is provided then certainly for the power of its meaning making through narrative and the techniques of social science. For those committed to the continuing transformation of the values universe applicable to economic activities, the reports provide some good news; though for those who are less patient, the slow progress in the "right" direction may be maddening slow.

Press Release follows.

"Roundtable on Currency Developments" and Student Papers Panel: Come Join Us for the Last Day of the Virtual Conference "Cuba From the Castros to COVID"

Pix ©Larry Catá Backer, On the Main Rpad to Varadero 2017

Reminder; today begins the third and last days of panels, lectures, and discussions around Cuba, pandemic, and the regional situation in the Caribbean and Latin America as part of Cuba from the Castros to COVID: An ASCE Virtual Conference, 13-15 August 2020. Registration is free and space is still available for additional registrants.

Today's Program includes what should be a lively roundtable discussion on the issues of currency reform developments in Cuba.  In the afternoon ASCE is proud to present one of the highlights of the Conference, three quite fascinating student papers. The Conference will be closed by ASCE's incoming President, Gary Maybarduk (all times US East Coast Time).

 

 

 

 

 DOWNLOAD PROGRAM HERE. 

  CONFERENCE WEBSITE HERE.

August 15, 10.30 am – Noon
Roundtable on Currency Developments
Chair:  Joaquín Pujol
Experts: Roberto Orro, Caribbean Analysis Unit, San Juan, Puerto Rico; Pavel Vidal, Universidad Javeriana de Cali, Colombia; Omar Everleny Pérez Villanueva, Centro Cristiano de Reflexión y Diálogo, La Habana; Rafael Romeu, DevTech Systems; Lorenzo Pérez, International Monetary Fund (retired) 
__________
August 15, 2.30 pm – 4 pm

Student Panel

Chair: Mario González-Corzo, Lehman College, CUNY
Adriana Vitagliano, Oxford University, “Remittances and Protest: The Case of Cuba.”
Denisse Delgado, University of Massachusetts, “The Cuban Diaspora’s Participation in the Economic and Political Changes on the Island.”
Isabelle DeSisto, Harvard University, “Atoms for Autonomy: Explaining the Cuban Reaction to the Chernobyl Nuclear Accident.”
Discussants:
Enrique Pumar, Santa Clara University
Michael Strauss, Center for Diplomatic and Strategic Studies (Paris)
__________
August 15 4.00 pm – 4.30 pm

Closing Remarks

Gary Maybarduk incoming ASCE President
RETURN TO CONFERENCE HOMEPAGE HERE.
__________

Register HERE or by linking through the QR Code.

"For meg er det et mysterium at regjeringen skal legge seg opp i dette på denne måten" [For me, it is a mystery that the government should get involved in this in this way], Unraveling the "Mystery" of the Norwegian Government's Block of Rules Limiting Lawyer Advice that Entails Human Rights Violations

16th-century painting of a civil law notary, by Flemish painter Quentin Massys

Global consensus appears to be moving steadily toward the embrace of a principle touching on  "the ethical considerations which a lawyer should take into account in the field of business and human rights when advising clients." (International Bar Association IBA Business and Human Rights Guidance for Bar Associations (2015) Chp. III, art. 5 ("Increasing awareness of lawyers as to the UNGPs"). Indeed, the Commentary to Article 5 notes the need for lawyer regulatory organs to regulate in this area in a comprehensive manner, acknowledging that the work of a lawyer may well extend well beyond technical legal advice(see my discussion Lawyers Are Not Algorithms: Sustainability, Corruption, and the Role of the Lawyer in Institutional Frameworks and Corporate Transactions).

Bar associations may also wish to consider, in examining their codes of professional conduct, the differing roles that lawyers play in addressing business human rights issues: that is, as technical advisers, or as trusted advisors, or as leaders of the institutions in which they work. They may also wish to consider the impact of the differing institutions in which lawyers work and address business and human rights issues, such as outside law firms, in house counsel departments, governments, and civil society, among others. (Ibid., art. 5 Commentary).

At the same time, the IBA appeared well aware that this could not be a one-size-fits-all approach--and certainly that the template for lawyer and ethics regulation structurally necessary and in vogue in Common law states, might not serve as useful models for encouraging sensitivity to these issues.

The codes of a number of bar associations are already strongly aligned with the UNGPs, although it is possible that there will be tensions and dilemmas arising from their application in practice. Therefore, individual bar associations, to the extent they have authority to do so in their respective jurisdictions, may wish to consider whether, and the extent to which, their own professional codes of conduct prevent, permit, encourage or require lawyers to take the risk of human rights impact into account in their advice to business clients and how to address potential dilemmas. (Ibid., art. 5 Commentary).

Specifically with respect to the UN Guiding Principles for Business and Human Rights (endorsed 2011), the IBA has also sought to provide some guidance reflecting their sense of global consensus among those with the (moral) authority to drive such expression (International Bar Association, IBA Practical Guide on Business and Human Rights for Business Lawyers (2016)).  The Practical Guide seeks to promote the quite salutary objective of more robustly embedding the UNGPs, as normative principles, and as guides to conduct, in the critical work of lawyer engagement with their clients, the courts, and those with whom they deal on behalf of their clients.

Yet it also includes includes two quite interesting cautions for those seeking to impose mandatory human rights enhancing ethical regimes.  The first touches on the human rights of clients.

Accordingly, the UNGPs do not impinge upon a client’s right to assert a robust legal defence to claims that it has engaged in conduct that violates human rights, to seek judicial determination of human rights issues, and to seek legal advice on them. This right cannot be abridged even if the client is highly unpopular. (Practical Guide, supra, p. 28).

The second, and perhaps more interesting caveat, touches on the alignment of the principles of the UNGP, and the regulatory systems around which lawyer ethical duties are developed and imposed (and consequently, the rules used to discipline lawyers for the quality of their interactions with clients and others). That is, the caveat touches on the dangers of transposing normative principle to regulatory or administrative regulation.

The IBA International Principles also note that while ‘the principles of independence of the lawyer and of the legal profession are undisputed in all jurisdictions adhering to, and striving for, the improvement of the Rule of Law, the respective regulatory and organisational frameworks vary significantly from jurisdiction to jurisdiction’ (Commentary, Section 1.3). This variation applies to the factors that lawyers may be permitted or encouraged to consider in providing independent advice, including non-legal contextual factors such as the human rights impacts of the client’s activities as relevant to the legal services. In any event, neither the UNGPs nor the Practical Guide are intended to override or add to the professional standards of any jurisdiction or to prescribe any of the factors that they may or may not consider as independent professionals.(Ibid., pp. 28-29).

This is not to suggest that the normative principles of the UNGP have very little potential for regulatory transposition. It merely suggests that the character of that transposition requires sensitivity to context and legal system--and to the cultures under which it is undertaken.

Nevertheless, the UNGPs do have a role to play in supporting the role of lawyers to provide their independent legal advice and services in a manner that takes account of specific human rights impacts and the client’s best interests. The UNGPs present significant opportunities for lawyers who advise business, both internal and external counsel, based on the increasing demand for such advise by clients. They also present challenges, including for law firms in their capacity as business enterprises with their own responsibility to respect human rights both in the management of the firm as a business and in the legal services provided to clients.(Ibid., p. 40).

The IBA position likely represents the solid middle ground of the profession; it represents an effort to "push" lawyers toward a revised baseline from which ethical legal work ought to be undertaken; at the same it it stops far short of mandatory accountability around measures (including specific applications of the UNGP) which remain both contested and to some extent still in development.   It that respect it represents a middle ground from which one might better consider changes to the way that lawyer regulatory bodies are approaching the quite crucial question of lawyer engagement with core principles of human rights in a UNGP context.

It is with this in mind that it is possible to more clearly and dispassionately consider the "interesting spat" that recently emerged into public view, precipitated by efforts of the Norwegian Bar to draft mandatory provisions embedding the UNGP into the ethical universe of legal practice, and the governmental response--to block these efforts as flawed.    The response cannot be unexpected.  For people who feel passionately about the need to embed human rights (not to mention issues of sustainability and climate change) into the matrix of mandatory normative principles guiding the ethical provision of legal services, the blocking appears to be a quite provocative and reactionary act. Passion will likely cause people to say things they might later regret--if they are lawyers; otherwise, the strategic (mis)use of this blocking might be too tempting to pass up.  Traditionalist voices might  (mis)perceive the government's actions as a sort of vindication of the position that lawyers have no direct ethical duty touching on human rights (much less sustainability and climate change principles).

Both are only partially correct, and thus mostly wrong.  They are wrong in the sense that what is likely a technical and contextually quite specific disagreement about the modalities of incorporating human rights sensibilities within the domestic legal order of Norway (and its quite important constitutional order--bound up as it is with that of the ECHR and other overarching principles and decisions which constrain the range of their regulatory responses) might be exploited for its politics.  And thus exploited the core objective at the center of this dispute--the need to increase lawyer ethical accountability for the way they approach their ethical obligations--will be lost.  That is the real pity--not of the spat--but of the spat about the spat that is surely even now emerging.


This post includes relevant reporting (Norwegian with crude English translations) and some brief observations.

“Destrabando” the Cuban Economy: An Assessment of Reforms and the Road Ahead" and the Carlos Diaz Alejandro Lecture--“Racism with Equality? Measuring Racial Inequality in Cuba, 1980-2010”; Today's Program for the Conference Cuba From the Castros to COVID

Pix ©Larry CatáBacker 2017 (Havana Harbor from Regla)

Reminder; today begins the second of three days of panels, lectures, and discussions around Cuba, pandemic, and the regional situation in the Caribbean and Latin America as part of Cuba from the Castros to COVID: An ASCE Virtual Conference, 13-15 August 2020. Registration is free and space is still available for additional registrants.

Today's Program includes one panel in the morning on the assessment of Cuba's COVID period reforms, and in the afternoon the Carlos Diaz Alejandro Lecture  (all times US East Coast Time).

 

  DOWNLOAD PROGRAM HERE. 

  CONFERENCE WEBSITE HERE.

August 14, 10.30 am – Noon

“Destrabando” the Cuban Economy: An Assessment of Reforms and the Road Ahead

Chair: Natalia Delgado, Columbia University
Jorge Pérez-López, “Raúl’s Reforms: Progress and Pending Issues.”
Pavel Vidal, Universidad Javeriana de Cali, Colombia, “The Great Lockdown and the Cuban Economy: First Impacts and Policy Responses”
Pedro Manuel Monreal Gonzalez, UNESCO, “Companies and the sequence of economic reform in Cuba.”
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August 14, 2.30 pm – 4 pm

Carlos Diaz Alejandro Lecture

Chair: Carlos Seiglie, Rutgers University
Presenter: Alejandro de la Fuente, Harvard University, “Racism with Equality? Measuring Racial Inequality in Cuba, 1980-2010”
Discussant: Tanya Hernandez, Fordham Law School
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Register HERE or by linking through the QR Code.

关于《国务院关于提请全国人民代表大会 常务委员会就香港特别行政区第六届 立法会继续运作作出决定的议案》的说明 [Regarding the "The State Council’s Request to the National People’s Congress The Standing Committee on the sixth session of the Hong Kong Special Administrative Region The Legislative Council Continues Operation to Make Decisions" an Explanation]

The recent decision to postpone elections for the Legislative Council of the Hong Kong SAR has produced the expected reactions within Hong Kong, in China, and in the rest of the world.  The Office of the US Secretary of State issued this statement:

The United States condemns the Hong Kong government’s decision to postpone by one year upcoming Legislative Council elections originally scheduled for September 6. There is no valid reason for such a lengthy delay. It is likely, therefore, that Hong Kong will never again be able to vote – for anything or anyone. This regrettable action confirms that Beijing has no intention of upholding the commitments it made to the Hong Kong people and the United Kingdom under the Sino-British Joint Declaration, a UN-registered treaty, and the Basic Law. For decades, the Hong Kong people have repeatedly demonstrated their desire and ability to hold free and fair elections. We urge Hong Kong authorities to reconsider their decision. The elections should be held as close to the September 6 date as possible and in a manner that reflects the will and aspirations of the Hong Kong people. If they aren’t, then regrettably Hong Kong will continue its march toward becoming just another Communist-run city in China.

This reflects the traditional position of liberal democratic states both to the position of Hong KOng and its connection to international law (see press coverage here, here, here and here).

When Chief Executive Carrie Lam announced the step in late July she also sought the opinion of Chinese Central Authorities respecting this action.

She recognised the problem this would create because of the four-year limit to a Legco term under the city’s mini-constitution, the Basic Law. She had asked Beijing to step in, she said, and the State Council had responded with full support. “They acknowledged that there will be this problem of the status of Legco, or a lacuna in Legco, as a result of the postponement. So what their guidance and advice to me is: the State Council will make a submission to the National People’s Congress Standing Committee [NPCSC] for its decision,” Lam said. (Hong Kong leader delays legislative elections, asks Beijing to resolve legal questions, citing coronavirus pandemic dangers ).

That guidance and advice in the form requested came on 8 August 2020,  distributed as a publication Regarding "The Standing Committee on the sixth session of the Hong Kong Special Administrative Region" Explanation of the Motion to Make Decisions for the Legislative Council to Continue Operation" [关于《国务院关于提请全国人民代表大会; 常务委员会就香港特别行政区第六届;立法会继续运作作出决定的议案》的说明]. This was produced at the 21st meeting of the Standing Committee of the 13th National People's Congress on August 8, 2020. It was produced by Xia Baolong, Director of the Hong Kong and Macao Affairs Office of the State Council.

The document follows in the original Chinese along with a crude English translation. Of special note¶§:

We believe that, in accordance with Article 43 of the Basic Law, the Chief Executive, as the head of the Hong Kong Special Administrative Region, is responsible to the Central People’s Government on behalf of the Hong Kong Special Administrative Region, and she is responsible to the Central People’s Government on constitutional issues affecting the regular general elections of the Legislative Council in the Hong Kong Special Administrative Region. (¶ 2)

The entire response is worth a careful read. It provides a very clear window on the way that distinct ideological approaches to the normative construction of principles of democracy and democratic organization can substantially change approaches to key issues of governmental functioning. This is particularly the case where, as within the Chinese administrative system, the core governance principles revolves around the necessity "to ensure the governance of the Hong Kong Special Administrative Region government and the normal operation of society and maintain the prosperity and stability of Hong Kong."

"The Cuban Economy and Prospects After COVID-19" and "The Cuba-Venezuela Economic Relationship" Today's Program for the Conference Cuba From the Castros to COVID

Pix ©Larry atá Backer; Tourist stop  in Matanzas Province on the way to the beaches of Varadero (2017)

Reminder; today begins the first of three days of panels and discussions around Cuba, pandemic, and the regional situation in the Caribbean and Latin America as part of Cuba from the Castros to COVID: An ASCE Virtual Conference, 13-15 August 2020. Registration is free and space is still available for additional registrants.

Today's Program includes one panel in the morning and the other in the afternoon (all times US East Coast Time).

 

  DOWNLOAD PROGRAM HERE.

August 13, 10.15 am – 10.30 am

Introduction and Welcome 

ASCE President Silvia Pedraza, University of Michigan
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August 13, 10.30 a.m. – Noon

The Cuban Economy and Prospects After COVID-19

Chair: Silvia Pedraza, University of Michigan
Larry Catá-Backer, Pennsylvania State University, and Yuri Gonzalez Hernandez (Havana),“Cuba’s Response to COVID-19 and the Consequences for Cuba of the Pandemic”
Ricardo Torres Pérez, Universidad de la Habana, “The Cuban economic puzzle after the pandemic”
Elías Amor Bravo, Professor, ESIC Business & Marketing School, Valencia, Spain Campus, “Cuba: Return to Communist Normalcy After COVID-19”

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August 13, 2.30 pm – 4 pm

The Cuba-Venezuela Economic Relationship

Chair: Gary Maybarduk
Carmelo Mesa-Lago, University of Pittsburgh, “Adverse External Sector Impacts on the Cuban Economy”
Luis R. Luis, “Venezuelan-Cuban Mutual Aid: Grants, Subsidies and Fantasies”
Vadim Grishin, George Washington University, “Venezuela and Cuba: Inside a Perfect Storm of Sanctions, Corporate Politics and Changing Economic Policies”

__________

Register HERE or by linking through the QR Code.

Registration Reminder--Cuba from the Castros to COVID--An ASCE Virtual Conference

I pass along here a reminder of the upcoming event--Cuba from the Castros to COVID: An ASCE Virtual Conference, to be held 13-15 August 2020.

The Association for the Study of the Cuban Economy usually holds its annual conference in late July. This year, the COVID pandemic made that impossible. In its place we have been working hard, to offer people interested in contemporary issues the study of Cuban society, politics, economy and law an accessible, alternative program.

We will offer six panels over three days. Four of the events are organized as traditional panels and roundtables.  They include:

(1) The Cuban Economy and Prospects after COVID-19;
(2) The Cuba Venezuela Relationship;
(3) "Destrabando" the Cuban Economy: An Assessment of Reforms and the Road Ahead; and
(4) a Roundtable on Developments in Moving Beyond Cuba's Dual Currency System.

We are also pleased to host two special programming events.  The first is the first ever "broadcast" of the annual Carlos Diaz Alejandro Lecture. This year's lecturer is Alejandro de la Fuente, Harvard University, who will speak to “Racism with Equality? Measuring Racial Inequality in Cuba, 1980-2010.”  The Lecture discussant this year is Tanya Hernandez, Fordham University.

Lastly we continue with our tradition of highlighting the work of undergraduate and graduate students. This year we host presentations by the winners of the ASCE student paper competition which include young scholars from Oxford and Harvard Universities, and the University of Massachusetts. 

Please consider joining us for one of the six panels.  You may register for each individually or for all of them.

Useful Conference Links:

Conference Home Page

Registration 

Concept Note

Pre-Conference Interview Series 

Program

Participant Bios

Participant Shared Papers and PowerPoint

 

Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises; DRAFT Circulated 06.08.2020

After much well curated public and private activity, the Open Ended Inter-Governmental Working Group  on TNCs and Other Business Enterprises With  Respect to Human Rights has  released its Second Draft of a Legally Binding Instrument  to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises.  It comes almost a year after the release of the first Draft--which generated substantial support among those inclined to embrace its normative or strategic objectives, and substantial criticism among everyone else. 

The Second Draft is the product of a rather intense engagement, by those invited, to reactions by others of the initial draft, the public performance of which was held at the IGWG's fifth session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, "The revised draft served as the basis for direct substantive intergovernmental negotiations during the fifth session of the OEIGWG, which was held from 14 to 18 October 2019, in Geneva. The report of the fifth session is available here." (IGWG Website HERE). 

While there have been changes around the edges (to be discussed in a future post), the IGWG and its supporters took pains to affirm and deepen their commitment to the fundamental structure and approach adopted for the First Daft of 2019.  That is a pity. It conforms the Draft as an almost purely academic exercise--that that provides a useful distraction of some of the most potent minds in the field of business and human rights.  Thsu distracted in the construction of this idealized and highly flawed bauble (specific critique HERE), they are less available to undertake the serious work of investigation that would serve as a means of developing accountability structures that some somehow feel could arise, as if by magic, from the legal codes of states most of which are disinterested in or lack the capacity to engage in the sort of normative transformation called for in the IGWG Draft. 

But fair enough.  The FRaft is designed to provide a vehicle through which the academic and civil society vanguard can effectively push the governments of developed states (at least those whose politics are to their liking) to project their law (under cover of the fig leaf of internationalization) into the rest of the wrld.  In a way thsi si something that ought to appeal to the emerging empires in the US , China, and the EU.  For each, the Treaty Draft provides the legal basis for the development of a legal imperialism through which the ability of states that traditionally serve as the receptacles of global production might be relieved of even the pretense of a need for taking on the sovereign responsibility of managing their economic policies and affairs.

Also fair enough. But in the end, the Treaty Draft continues to suffer  from its fatal defect--it just does not work as law. It sounds like law, it purports to direct or "make" law, but much of it fails both for a flawed complexity, and for the ambiguities that twist its provisions into unworkable standards.  Or better put, into standards that can be worked to mean whatever it is that a pliant judiciary--or legislature--might be induced to clarify. In the end it remains more normative sentiment than law, more aspiration for a conception of a "better world" than the makings of a system through which it may be realistically managed.

All of this could be avoided had the drafters undertaken the most logical and simplest next step from the endorsement of the UN Guiding Principle--the development of a Framework Treaty that would, as a start, legalize the provisions of the UNGPs. There is a Draft for that worth considering in lieu of the baroque conceptual but deeply flawed masterpiece offered once agan by the IGWG and its backers. See HERE.

The Second Draft text follows and may be accessed HERE.