"Rethinking the Scope and Nature of State Liability for Acts of their Commercial Instrumentalities" for Book Launch for "The Regulation of State-controlled enterprises: An Interdisciplinary and Comparative Examination"--UCL 10 February 2023

 

I was delighted to have been part of a book launch, held at University College London, for  new book, Regulation of State-Controlled Enterprises: An Interdisciplinary and Comparative Examination (Springer, 2022), edited by Julien Chaisse, Jędrzej Górski, and Dini Sejko.

This book analyses actual and potential normative (whether legislative or contractual) conflicts and complex transnational disputes related to state-controlled enterprises (SCEs) operations and how they are interwoven with the problem of foreign direct investment. . . The book also aims to analyse the “SCE phenomenon” which includes a wide panoply of entities that have various structures with different degrees of control by states at the central or regional level, and that critically discuss the above-mentioned overlapping legal economic and political systems which can emerge under various shades of shadows casted by governmental umbrellas (i.e., the control can be exercised through ownership, right to appoint the management, and special-voting-rights). (About the Book)

Those participating include: Dr Alessandro Spano, Lecturer in Chinese Law and Co-Director, UCL China Centre (Chair); Prof Leila Choukroune, Professor of International Law and Director of the University of Portsmouth Thematic Area in Democratic Citizenship (Co-Chair);Prof Larry Catá Backer, Professor of Law, Pennsylvania State University; Mr Ji Ma, Research Associate, China, Law and Development Project at Oxford University;Prof Julien Chaisse, Professor of Law, City University of Hong Kong (CityU);Dr Dini Sejko, Research Associate, Centre for Comparative and Transnational Law at the Chinese University of Hong Kong.

For my part I spoke briefly to the issue of state liability for acts of their state owned enterprises, especially as they touch on issues of the human rights and sustainability responsibilities of enterprises for their economic activities. It is well known that the great strength of fields of legal academic study, its single minded focus on a very specific slice of human activity (for it is almost invariably centered on the human), also suggest its great weakness, its inattention either to other fields. That binary is very much in evidence in the study of the regulatory relations of enterprises and their owners for the activities that impact human rights or sustainability responsibilities. That strength-weakness binary is intensified when one considers the legal obligations of states for the actions of their enterprises. Here the imperatives of a rights related jurisprudence (one followed single minded by its proponents) bumps up against equally singlemindedly considered imperatives of asset partitioning (in the law of corporations) and sovereign immunity (in public law). 

In this context it is worth considering the extent to which the stability of the relation between human rights and sustainability related duties and responsibilities, the protection of asset partitioning principles in corporate law, and principles of sovereign immunity might now be upended. Several trends appear to contribute to this instability.  The first is the trend toward the governmentalization of the private sector. States increasingly implement policy through disclosure, supervision, approval, and liability systems managed by and through enterprises--supply chain due diligence, forced labor disclosure principles and the like are emblematic. The second is privatization of the state. The state has increasingly sought to project policy, especially beyond its borders, through interventions in the markets, and in some places through the operations of state owned or managed enterprises. That management may be asserted directly through control relationships or constructively through elaborate systems of oversight. The third is the glimmerings of a movement toward the regularization of a system of human rights and sustainability torts that might penetrate through the barriers of legal or corporate personality and autonomy. Together these trends may require a substantial rethinking of the forms and application of sovereign immunity to the state when it acts as effective owner of enterprises. And it might require substantial reconsideration of the impermeability of corporate autonomy in the face of the principles emerging in the constitution of human rights torts. Together they might also suggest that state immunity might reqire substantial diminution when it operates across borders in and through markets.

The PowerPoint in aid of my remarks follow. They may be downloaded here