Sunday, April 30, 2023

Human Rights Goes to War in Myanmar: Complicity, Facilitation of Gross Violations, and the Norway Pension Fund Global's Exclusion of Korea Gas Corporation (KOGAS) and GAIL (India) Ltd

Commemorative Throne of Nafoyn (Queen Mother) Naya; 19th c. Cameroons; Berlin

Large states tend to fight wars in the classical style--using troops, seizing territory, and then deploying more advanced tactics now common to multi-generational warfare.  Smaller states also go to war--but they attack from the flanks. That way they can pretend to avoid war while actively engaging in its forms that have neither been reserved to first tier powers, or otherwise been encased in taboo by national narratives of pacific traditions. 

Norway has gone to war against the government of Myanmar--perhaps its people too, but at least in the minds of the Norwegians elites one can parse a difference. Norway engages in battle with the weapons it has on hand.  And what it has on hand is money; lots of money. And it has an organization capable of giving that financial power some direction and effect--the Pension Fund Global.  In the process, Norway s contributing in significant ways to the development of liberal democratic state  principles around the use and targeting of economic activity as a means of projecting power across production chains. 

Among the most interesting advances in which the Ethics Council and the Pension Fund Global appear to be playing a vanguard role is in the development of a set of principles around complicity and facilitation of human rights and sustainability breaching conduct. I have written about this work of the Norwegian Pension Fund Global apparatus in gestation since at least 2014: here, here, here, here, and here.

Lately it appears that the apparatus of the Pension Fund's governance apparatus has been focusing more intently on the Myanmar campaign--and in the process refining the framework within which its actions can be routinized. In late April 2023 the Norges Bank announced that, following advice from the Council on Ethics, Norges Bank has announced the exclusion of two companies from the Government Pension Fund Global.

The Council recommended that the companies Korea Gas Corporation (KOGAS) and GAIL (India) Ltd be excluded from investment due to an unacceptable risk that the companies contribute to serious violation of the rights of individuals in situations of war and conflict. Both recommendations relate to the companies’ activities in Myanmar.
In the action against Korea Gas Corporation (KOGAS) (27. April 2023), the Press Release noted: 
The Council on Ethics recommends that the Korean gas company Korea Gas Corporation (KOGAS) be excluded from investment by the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company is contributing to serious violation of the rights of individuals in situations of war and conflict. The recommendation relates to the company’s activities in Myanmar. KOGAS is partnering with the state-owned oil company Myanma Oil and Gas Enterprise (MOGE) in the Shwe gas field offshore Myanmar. In February 2021, the armed forces in Myanmar staged a coup d’état, after which the military has intensified its extremely serious abuses of civilians. Through its activities in the country, KOGAS provides the armed forces with substantial revenue streams that can finance military operations and abuses. The company’s business partnership with MOGE represents an unacceptable risk of contributing to extremely serious norm abuses in the future. The Council on Ethics issued its recommendation on exclusion on 29 November 2022. Norge Bank announced its decision to exclude the company on 26 April 2023.

The Council’s recommendation used the opportunity to reapply and to some small extent refine its developing notion of facilitation as complicity:

As in previous recommendations, the Council has attached importance to whether the company’s business operations in Myanmar help to strengthen the Tatmadaw’s financial capacity. The Council also takes the position that any business partnership with entities controlled by the armed forces constitutes a particularly high risk of contributing to abuses perpetrated by the Tatmadaw. A material factor for the Council is that the UN High Commissioner for Human Rights advises against any economic cooperation with military-owned entities, that sanctions were imposed on MOGE precisely because revenues from such companies boost the Tatmadaw’s ability to commit serious norm violation, and that KOGAS cannot point to any measures that reduce this risk. Since the military coup in 2021, revenues from the oil and gas industry have been the Tatmadaw’s largest source of income
In the action against GAIL India Ltd (27. April 2023), the Press Release noted in a similar vein:  
The Council on Ethics recommends that the Indian gas company GAIL (India) Ltd (GAIL) be excluded from investment by the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company is contributing to serious violation of the rights of individuals in situations of war and conflict. The recommendation relates to the company’s activities in Myanmar. GAIL is partnering with the state-owned oil company Myanma Oil and Gas Enterprise (MOGE) in the Shwe gas field offshore Myanmar. In February 2021, the armed forces in Myanmar staged a coup d’état, after which the military has intensified its extremely serious abuses of civilians. Through its activities in the country, GAIL (India) provides the armed forces with substantial revenue streams that can finance military operations and abuses. The company’s business partnership with MOGE represents an unacceptable risk of contributing to extremely serious norm abuses in the future. The Council on Ethics issued its recommendation on exclusion on 29 November 2022. Norge Bank announced its decision to exclude the company on 27 April 2023.(Ibid., summary)..

The Council's recommendation also used the opportunity to refine the facilitation/complicity standard:

When assessing a company’s contribution to abuses, the Council emphasises that there must be a tangible link between the company’s operations and the abuses concerned. Furthermore, the company must either have contributed actively to the norm violations or known about them but made no adequate attempt to prevent them. In the Council’s opinion, if it is not possible to prevent the norm violations the company must in general seek to withdraw from the business. (Ibid., p. 2); language also used in the Gail recommendation, p. 2).

The action, in part, is meant to facilitate the efforts of the UN Human Rights apparatus (Geneva) to destabilize the military which seized control of the state and who have collectively thereafter been accused of perpetuating significant human rights violations against individuals and groups. 

Again, what makes this of interest beyond the small circle of people interested in whatever it is that the apparatus of the pension Fund Global has to say about anything important, is that it has actually been wrestling, unlike other bureaucracies that ought to know better, with the issue of the scope of activity that ought to be subsumed within the scope of activities that ought to constitute actionable complicity like conduct. The idea of facilitation as a standard of complicity has important consequences. 

These consequences in eight brief reflections that follow below. These reflections touch on the drift of human rights and sustainability regimes toward sanctions based cultures; the effects of moving from a causation to a connection standard of culpability; the dangers of hard wiring the calculus of human rights harms; the consequences of human rights politicization and weaponization; the missed opportunities for human rights mitigation of politically driven rigidity; the likely effects of this drift on the operation of mandatory human rights due diligence regimes (especially in Europe); and lastly the consequences of pursuing punitive rather than capacity building and solidarity enhancing strategies.  New tactics of warfare, as always, produce a rich array of consequences, consequences that Norway might be well advised to consider as it plays at war lite.  The decision may well be to enhance this strategy. That is fair. But hopefully that will be done deliberately and thoughtfully.

Saturday, April 29, 2023

OMFIF’s Sustainable Policy Institute launches the 10th edition of the Gender Balance Index




Watch the Gender Balance Index 2023 launch on demand

OMFIF’s Sustainable Policy Institute launched the 10th edition of the Gender Balance Index last week. This flagship publication tracks the gender balance of senior leadership teams in central banks and major financial institutions.

The launch event, hosted in collaboration with IFC presented the key findings of the report and revealed which institutions scored highest in the rankings. It also featured a panel discussion with diversity, equality and inclusion experts from the International Finance Corporation, State Bank of Pakistan, Central Bank of Nigeria, UN Women and EDGE.

The report unveils the latest gender balance scores for central banks, commercial banks and global public funds and sovereign funds. This 2023 edition also features a survey of central banks and their policies regarding female presentation and career development, with a focus on breaking through the glass ceiling. And industry views are explored through case studies of policies and approaches implemented by private sector institutions.To download the report and find out more, click below.

Supported by:

Thursday, April 27, 2023

Accepting Pre-Publication Orders: Research Handbook on Legal Semiotics (Available November 2023)


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 ‘Law has not only a language but also a semiotics, a system of signs, texts and meanings that seek to bring order to the relationships among human beings. Never before this volume has an attempt been made to provide an all-encompassing tool for the study of such system. Anyone working within the perimeter of linguistic, semiotic, and social studies of law will find this volume a distinctly useful starting point and reference.’
– Massimo Leone, University of Turin, Italy

I am delighted to pass along the announcement of the publication of the Research Handbook on Legal Semiotics (E Elgar; print version November 2023; ISBN: 978 1 80220 725 5, 560 pp).

This comprehensive Research Handbook explores the wide variety of work conducted in legal semiotics, providing a thorough understanding of how the law works through signs and symbols. Demonstrating that the law is a strategical system of fluctuating signs, contributors critically analyse the ever-evolving conceptualisations of law and legal discourse.

Bringing together leading international experts, this Research Handbook focuses on the material, everyday forms of law comprised by non-verbal legal semiotics. Contributors conduct culturally nuanced semiotic analyses of the modern world, covering topics from Covid-19, religion, and human rights, to comic books and music. Chapters consider the foundations of semiotics, as well as the philosophy of law, identifying the cross-cultural similarities in how legal semiotics and visual legal semiotics intersect. Ultimately, the Research Handbook demonstrates that the law is in a state of perpetual flux, with many unique dimensions only made visible by semiotic analysis.

The Research Handbook on Legal Semiotics will be an invaluable resource for students and scholars of law, jurisprudence, legal culture, linguistics, and semiotics. It will also be an important guide for legal practitioners seeking to better understand the nuances of the legal system.

The book was edited by the incomparable Anne Wagner, Research Associate Professor, Centre de Recherche Droits et Perspectives du Droit, équipe René Demogue, University of Lille, France and Sarah Marusek, Professor of Public Law, Department of Political Science, University of Hawai‘i Hilo, US. 

Contributors include: José Manuel Aroso Linhares, Larry Catá Backer, Kristian Bankov, Martin Belov, Patrícia Branco, John Brigham, Angela Condello, Marcel Danesi, Clara Chapdelaine-Feliciati, Peter Goodrich, Dariusz J. Gwiazdowicz, Nathalie Hauksson-Tresch, Paolo Heritier, Parineet Kaur, Miklós Könczöl, Anita Lam, Magdalena Łągiewska, Sarah Marusek, Aleksandra Matulewska, Rostam J. Neuwirth, Ahmad Pakatchi, Frank S. Ravitch, Mario Ricca, Elisabeth Roy Trudel, Michael Salter, Julia J.A. Shaw, Anita Soboleva, Amy Swiffen, Robbie Sykes, Mark Thomas, Kieran Tranter, Farid Samir Benavides Vanegas, Guilherme Vasconcelos Vilaça, Anne Wagner, Bartosz Wojciechowski, Youping Xu, Wei Yu, Kamil Zeidler, Marek Zirk-Sadowski 


Download gratuito a obra LITERATURA, DECOLONIALIDADE E TRÂNSITOS: GUIANA FRANCESA E SURINAME, organizado pela Profa. Dra. Natali Fabiana da Costa e Silva (Universidade Federal do Amapá)



Está disponível para download gratuito a obra LITERATURA, DECOLONIALIDADE E TRÂNSITOS: GUIANA FRANCESA E SURINAME, organizado pela Profa. Dra. Natali Fabiana da Costa e Silva (Universidade Federal do Amapá) e que eu também tive a honra de participar com um capítulo.

O livro congrega pesquisadores da Université de Guyane, da Universidade Federal do Amapá, da Universidade Federal de Alfenas, da Universidade Federal do Recôncavo da Bahia e da Universidade Estadual Paulista.

Solicito a gentileza de divulgarem a publicação. Seguem os links onde a obra está disponível:

 From the Introduction:

Localizada no extremo norte da América do Sul, a região conhecida como Guia-
nas é, ainda hoje, um território desconhecido pelas/os/es pesquisadoras/es/
ies brasileiras/os/es. Seu contexto amazônico, multiculturalista e plurilinguístico, sua di-
nâmica social, seus fluxos migratórios e sua relação com o Caribe e a Europa entabulam
uma complexidade muitas vezes refletida nos trabalhos e projetos inter-multi-transdisci-
plinares que caracterizam as investigações acadêmicas desse espaço.

Nesse sentido, este livro busca trazer algumas reflexões sobre a literatura produzida
na Guiana Francesa e no Suriname, levando em consideração o diálogo com diversas
áreas do conhecimento, assim como com o seu entorno geográfico. Dividi a coletânea
em três partes: a primeira dedicada à contextualização geo-política desses dois territó-
rios; a segunda, à sua produção literária e, por fim, a terceira voltada às subjetividades
representadas na literatura da Amazônia e do Caribe uma vez que se constituem por
atravessamentos psíquicos que estabelecem um movimento de aproximação e distancia-
mento da História e das identidades que circulam pelas Guianas.

A publicação desta obra surge quando o Brasil deixa para trás de si um período de
obscurantismo na ciência e uma política ostensiva de dizimação da floresta amazônica
e dos povos nativos promovidos pela gestão de um Presidente da República nefasto e de
seus Ministros perniciosos. A despeito de todos os desafios que ainda temos pela frente,
e apesar de todo o passado de destruição e massacre que temos vivido desde 1500 até o
tempo presente, este livro celebra o fim dos longos anos de 2019 a 2022 e afiança o desejo
da reconstrução de um Brasil sonhado nos termos de Davi Kopenawa.
Natali Fabiana da Costa e Silva


Monday, April 24, 2023

Marianne von Blomberg and Haixu Yu : "Shaming the Untrustworthy and Paths to Relief in China’s Social Credit System" ((European Chinese Law Research Hub) )


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The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a marvelous summary of Marianne von Blomberg and Haixu Yu (Research Associate and doctoral student of the Chair of Chinese Legal Culture)  outstanding article "Shaming the Untrustworthy and Paths to Relief in China’s Social Credit System."

Marianne von Bloomberg explains:
The global debate around what is fact and what is fiction in China's vast Social Credit System project has overshadowed the actual innovations and challenges the project brings along. Marianne von Blomberg and Haixu Yu zoomed in on the SCS's practice of disclosing information on the "untrustworthy". They find that the SCS practices are best described as reputational regulation at an unprecedented scale and analyse whether courts can control shaming measures.

China's regulators have famously cracked down on Ant Financial's micro loans, drawing renewed attention to a collaborative business model: the partnering up of banks and FinTech companies to grant micro loans on a massive scale. What are the perks and the problems for FinTech-bank partnerships, and does the current regulatory framework address them? Robin Hui Huang and Christine Menglu Wang analyse the cases of the FinVolution Group and Ant Group to find answers and point out loopholes in current regulation.

The questions raised are central to the debates both about the character of Social credit as law, norm, or method, and the interlinking between traditional modalities of law (grounded in administrative discretion and centered on officials, and the more integrative modalities of a social credit system that affects social relations to nudge behaviors. In one sense one confronts the regulation of punishment in the era of bid data and analytics.  In another it poses the challenges of integrating two distinct approaches to the management of social relations and the character of law--one formal and exogenous to its object, the other informal and endogenously relational.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.


Saturday, April 22, 2023

The Death of Convergence and its Implications for ESG --Anti-ESG Laws in the United States and Markets as a Critical Political-Ideological and Governance Competition Space


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The great project of convergence has been ingloriously drifting toward the trash bin of history de facto even as its once progressive now reactionary claque continues to hold high its de jure banner.  Convergence was once at the heart of the vision of the world once dearly held by the Americans after 1945 as the vanguard force of the alliance victorious against the forces of global fascism (but not entirely convinced about the moral character of Soviet totalitarianism even after its bad behaviors from the late 1920s). Convergence was at the root of all progress--obliterating the effect of difference even as it increasingly and more strenuously worshiped its outward forms. Its centralizing structures were built into the structures of international organizations expressing in organizational form a modernist version of e pluribus unum. Convergence was a necessary predicate and by product of the construction of globalization.--with its toleration of national characteristics subsumed beneath  a common set of ordering principles.  The modern ecologies of international and regional institutions, public and private, were built  to give concrete effect to this vision--the normative engines of convergence overseen by its vanguard.  

But that dream of convergence is fraying. Detachment has now overtaken the orthodox project of economic globalization. In the United States political and constitutional de-centralization has becme a vehicle for not merely slowing convergence but for undoing some of its signature constitutional triumphs--for example the constitutionalization of abortion rights. And throughout the world the basic structures and normative foundations of public and private institutions have been challenged for structural bias, one that suggests that convergence itself is a source or effect or modality of bias in such structuring. 

One of the last great expression of that impulse toward convergence within the operating frameworks of globalization was tied to the effort to develop a converged normative structure for human rights, and then to apply these to the conduct of economic activity in the public and private spheres.  Beyond the great soft law triumphs of this movement--the UN Guiding Principles for Business and Human Rights, the ECD Guidelines for Multinational Enterprises, and the ISO 14,000 (environmental management) and 26,000 (corporate social responsibility) standards--were efforts to reconsider risk as a regulatory device and as a vessel for normative development along preferred lines. More specifically, the fundamental parameters for judging and calculating and expanding a system for embedding business risk in operational decision making in a more comprehensive and normatively significant way appeared to offer possibilities that were compatible with business practices (new wine in old bottles)  but that could also transform that practice (decanting new wine into a more suitable bottle). 

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The project of converging risk parameters had two aims (among a host of others) relevant to the reaction that was to follow nearly twenty years later.  The first was to harmonize risk assessment so that risk could be better embedded in the valuation of economic activity, and more particularly investment decisions by individuals and financial institutions. The second was to develop some sort of unifying set of normative principles around which risk convergence could be rationalized. That second aim could not avoid a grounding in a specific ideology that increasingly also saw the convergence of private economic activity with the responsibility of public collectives. That, in turn, appeared to necessitate a liberation from the almost century old constraint of limiting private sector economic collectives to a primary object of purely economic value maximization. To both ends, the concepts of environmental, social (or societal), and governance (ESG) risk proved appealing as the vessel through which the responsibilities of business and economic activity could be brought broadened  and embedded as a pro-active instrument of public (state) policy (beyond the mere obligation to comply with law). Both saw their current early manifestation in the work of the Global Compact, and particularly its Who Cares Wins: Connecting  Financial Markets
to a Changing World

ESG remains very much a work in progress in significant respect. The European Union has sought to legalize a version that substantially expands the original notion of investment risk analysis to now embrace impacts based operational risk defined both by EU standards and their internalization of their understanding of international hard and soft norms (e.g.  Corporate Sustainability Reporting Directive (CSRD) (5 January 2023 and its European Sustainability Reporting Standards (ESRS)to be developed by the EFRAG, a "private association established in 2001 with the encouragement of the European Commission to serve the public interest "; and also the Non-Financial Reporting Directive (NFRD)). Yet these legalizing efforts exist in a complex regulatory environment of hard and soft standards.  Within that ecology ESG still defies  definitional convergence, consensus on the valuation of risk (as well as its identification) remains unresolved.  For example, it has been reported that 69 Exchanges that include ESG guidance reference six distinct standards.

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And increasingly, the flexibility of definition and valuation-consequences of risk identification has proven to be irresistible as a mechanism for end running democratic or government institutional regulatory mechanisms by inserting policy priorities within the ESG process. It is in this state that ESG movement has also found itself caught in great movements that are fracturing the impulse toward global convergence of systems, valuation identification and calculation, consequential decision making and practices, and normative values. 

This is very much in evidence in the United States ("The ESG Wars": Presentation of the University of Dundee (Scotland)).  The global press has, of course, been following the battles between the Biden Administration and Congress over the extent to which the Federal Government may permit pension plan fiduciaries to consider ESG in their investment decisions. Less well known are efforts to encourage reporting of ESG factors by companies and discussions over the content and meaning of those terms.  But it has been the invigoration of a more muscular federalism, with what appears to be a willingness by the US Supreme Court to re-imagine the division of authority between states and the national government, that is now providing substantial impetus for a vigorous debate about ESG beyond the conversations traditionally driven by elites in apex public and private institutions. Reuters recently reported that 

This year state legislators, chiefly Republicans, have filed roughly 99 bills aimed at restricting the rise of ESG business practices, up from 39 in 2022, according to law firm Morgan Lewis. As of April 3, seven of the bills had been enacted into law, 20 were effectively dead, and 72 were still pending. . .  ESG investing debates have taken on national significance as Democratic-aligned shareholder activists clash with Republicans increasingly adopting anti-ESG rhetoric. Some of the criticism has been harsh. Utah's Republican State Treasurer Marlo Oaks in March referred to ESG governance and to United Nations-backed sustainable development goals as "Satan’s plan" when speaking to a meeting of Republicans. The comparison with Satan was unusual. But Republicans often disparage ESG efforts with references to the global connections of top funds and characterize industry efforts like the Net Zero Asset Managers initiative as radical. (Business fights back as Republican state lawmakers push anti-ESG agenda)

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Business is caught in the middle of the policy debates.  On the one hand, business may have misgivings about the policy directions and agendas of those who are now setting the "tone at the top" for ESG definitions, use, and valuation mechanisms. On the other, business risk is substantially increased in the face of regulatory fracture--especially where the resulting regulatory landscape produces incompatible obligation. That is what business fears-and what convergence was meant to overcome (at least at a high level of generality). The standard tactic is an oldie but goodie--scare campaigns that such measures will have a negative effect on value (see here). The other is the effect of dissolving convergence strategies, the effects of which can be costly for business ("Utah Bankers Association President Howard Headlee said the new law could have unintended consequences. For instance, if federally-regulated local banks faced new national rules on an issue like climate change disclosures, banks would need special permissions from local officials to keep public business in Utah he said." here). And yet that fear has already been realized--as a robust market for regulatory standards has been developed among states and between states and private standard setting initiatives.  What the current federalism legislative efforts manage is to further complicate the landscape. While markets for regulation may effectively produce some convergence, it will also encourage competition (on complementarity see, e.g., the  Global ESG Disclosure Standards for Investment Products Handbook (including review of 125 regulations, principles, codes, standards, guides, reports, white papers, methodologies, classifications, labels, assessment tools, and questionnaires). And where that competition is combined with the projection of national policy through its economic  instrumentalities (whether SOEs or private), what may be produced will be strategic incompatibility and a rise of compliance costs for business.  More importantly, it will affect the routes taken to construct and maintain global production chains.--at least at the margins and certainly in the long term.

What do these state anti-ESG bills look like? In Mississippi, the anti-ESG bill (House Bill 818; 2023) does two things.  First it adds a set of declarations to the effect that ESG criteria are unstable and ambiguous and reaffirming that ""fiduciaries may not sacrifice investment returns or assume greater investment risks as a means of promoting collateral social policy goals." It then amends Section 25-11-121(10) ,Mississippi Code of 1972, to add the following:

The board, in accordance with its fiduciary duties, shall make investment decisions with the sole purpose of maximizing the safety of, and return on, its investments. The board shall not make an investment decision with the primary purpose of influencing any social or environmental policy or attempting to influence the governance of any corporation. The board shall not sacrifice investment returns or assume greater investment risks as a means of promoting collateral social policy goals.

Florida is enacting a similar measure (see here). In early April 2023, Kansas "approved a bill that would prevent the state, its pension fund for teachers and government workers and its cities, counties and local school districts from using ESG principles in investing their funds or in awarding contracts." (Kansas passes anti-ESG bill, but it’s milder than some want).  

The battling over ESG raises a number of interesting issues, most of them ignored. What is not ignored is the instrumentalization of ESG as a mechanics of delegating policy-based compliance with public regulatory oversight, contributing to the closer alignment between the regulatory apparatus of private and public organs. Regulatory oversight itself  might then contribute to a weaponization of risk as a means of imposing policy determinations through technical compliance mechanisms that insulates (at times) the regulatory apparatus from democratic engagement (ironically, at its limit, itself a breach of civil and political human rights). That is the great paradox of ESG--the idea is to engage the state in the great project of mandatory ESG measures to further policy goals, but to avoid the uncertainties (and nastiness) of the democratic process toward the realization of that goal. The idea is quite profoundly brilliant--in the face of lack of consensus one can use the regulatory apparatus to train the electoral masses (and thus nudge their political representatives) toward the proper perspectives by changing the landscape in which such considerations are developed.  precisely because there is no consensus yet (and thus politics in liberal democracy impedes attainment). Yet it is this quite insightful approach to mass management that sometimes produces (even if unconscious) resistance by those who shift from managers to managed in the political arena. And what appears to drive states are a cocktail of policies advanced by the Biden Administration at the core of which are climate change related measures (eg SEC Issues Sample Comment Letter as it Ramps Up Scrutiny of Climate Disclosures; State Street Global Advisors, Guidance on Climate-related Disclosures) where disclosure regimes translate into consequential ESG risk analytics. At the state level, "Conservatives have paired economic concerns. . . with Republican grievances over Biden administration climate and social policies, fueling the anti-ESG investment campaign over the past year." ('Strong, state-based network' fuels opposition to ESG investment). 

In and of itself ESG is unremarkable. The business case for risk assessment was made long ago--certainly well before its current manifestation as ESG And there is nothing special about gauging business risk in valuing economic activity.  What makes ESG more interesting, though, is that the risk that is being assessed is exogenous impact rather than effect on operations.  Traditionally exogenous impact was treated as a public issue and compliance and risk started with legal risk (assuming that states were responsible for determine and policing tolerable (politically) levels of impact of certain forms of economic activities.  Environmental laws, for example these enacted in the U.S. from the 1970s provide an example. In this sense ESG risk was a species of compliance and legal risk. To the extent there was more then it was market risk (starting perhaps with the agricultural product boycotts of the 1970s). The policy value of that mission creep, though, occurred without much debate within the political branches; it was effected through markets and in the guise of markets based technical regulation, to the extent it was embedded in public policy.  On the other hand, .certainly since Who Cares Wins it has been clear that markets have developed a taste for some forms of ESG. And consent based self impositions of markets driven norms and behaviors ought to be given a substantial latitude.

At the operational level of state legislative efforts, two issues appear in large part to drive the current crop of anti-ESG measures.  The first touches on control of fiduciaries.  That is fair to the extent that they ought not to be driven by their own norms but are stewards for the desires and objectives of beneficiaries. Where these are state funds, then the ESG issue becomes fair game. The second is a consequences of the movement of the current debates about climate change and climate change responses  from the duty of states to the responsibility of markets and economic actors (as producers of or investors in climate negative economic activity). Here the fractured politics  around climate change strategies, their locus in either state organs or private sector actors, and the contests for control within divided powers states (like the United States) add substantial complexity.  We have, by this point some a long way from risk and convergence models. And these debates have really only just started.

The text of the Kansas ESG Bill follows below.  

Friday, April 21, 2023

Danko Laboratories v. Alliance for Hippocratic Medicine (598 U.S. -- (21 April 2023)): Burlesquing Abortion Jurisprudence Through the Shadow Docket

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 The two great branches of ridicule in writing are comedy and burlesque. The first ridicules persons by drawing them in their proper characters; the other, by drawing them quite unlike themselves. Burlesque is therefore of two kinds; the first represents mean persons in accoutrements of heroes, the other describes great persons acting and speaking like the basest among the people. [Addison, "Spectator," Dec. 15, 1711]

 A BURLESQUE show, to the average person, is a rather naughty form of entertainment which men attend for the purpose of vicarious thrills and semi-obscenity. [The American Parade, 1927]

Since the term was proposed in 2015--shadow docketing has become a popular space in which to burlesque (in both senses of the term) emerging constitutional jurisprudence (if not normative then institutional). This burlesque appears to be increasingly popular with its principal audiences  whose taste for continuously produced episodes of the long running national elite parody--Essentialist Follies--now finds expression in the working style of the courts as it produces both high and low theater. Whether it is as reflexive of the culture in which it both defines and in which it is embedded as its predecessor  sexist body and bawdy shows of a century ago remains to be seen. Certainly it appears to be more long lasting as a cultural reflection-projection. 

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The current jurisprudence of abortion (with it the consequential jurisprudence for the commerce and religion clauses as well as for the constitutional contours of administrative law) appears fertile ground for the further development of this increasingly rarefied, detached and self-referencing world that appears autonomous. The nature of that development may be hinted at in Danko Laboratories v. Alliance for Hippocratic Medicine (598 U.S. -- (21 April 2023). The case is a sideways manifestation of the battle over the power of organized American sub-collectives to use the courts (as their predecessors did in generations past) for the advancement of their version of social justice projects for which the judicial power is an essential element of national discipline.  In Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (No. 2:22-cv-00223-Z), Plaintiffs challenged the U.S. Food and Drug Administration's approval of mifepristone, a drug frequently used in medical abortion procedures over two decades before this litigation was initiated.  Burlesque. The initial object might have been its most potent--to obtain a nationwide preliminary injunction banning sales of the drug until some time in the future.  At that point, irrespective of the outcome of the case, the markets for such a drug might be disrupted beyond repair.  Such a preliminary injunction was issued by the judge sitting in the Northern District of Texas hearing the case.  Economics. That injunction was modified by the 5th Circuit Court of Appeals. Almost immediately thereafter another judge of the same rank in Washington state issued an injunction that FDA to maintain the distribution of mifepristone in 16 states and the District of Columbia. Politics.

That caused the drug manufacturer to seek a stay of that injunction before the Supreme Court. That disposition--ostensibly procedural but effectively claim preclusive given its effects (though certainly not embraced by its forms), and thus the power of the shadow docket)--then produced its own burlesque in the form of the most curious dissent  written by the ever protective (of his vision for abortion orthodoxy achieved one way and another) Justice Alito. The burlesque comes in the form of a delightful romp through the usual  inconsistencies of the justices as they prance from case to case effecting rough justice through the shadow docket to suit the times and context. That romping, the good Justice Alito now declaims, now appears more like the lines from Finale of the Three Penny Opera than from he might have hoped for the court. 

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It is always fun when people who live in a neighborhood of glass houses throw projectiles of hypocrisy at their neighbors' homes. Everyone is going to get cut up and the neighborhood eventually will become unlivable. Bad faith all around perhaps--at its worst.  But what is a little hypocrisy among friends in the service of larger causes. Justice Alito suggests, moreover that the Supreme court "players" are themselves being played.  Naughty naughty (though it is hard to understand the code of honor within the strategic grifter culture described):

It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review. Arizona v. City and County of San Francisco, 596 U. S. ___, ___ (2022) (ROBERTS, C. J., concurring) (slip op., at 2). (Alito, dissenting, supra).

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And of course, there is no irreparable harm--a conclusion that can only come from a person  and an institution so far removed from business, that such a statement could, on their computers, appear plausible as a textual expression. 

But no matter.  The audience has been warmed up by the opening act (Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (No. 2:22-cv-00223-Z),) and the burlesque clownery (Danko Laboratories v. Alliance for Hippocratic Medicine (598 U.S. -- (21 April 2023)). One is at last ready for the main event. 

The text of the Supreme Court's Stay and Justice Alito's dissent follows. 


Saturday, April 15, 2023

The Inertia of the Nostalgia of the American Public Intellectual and their China Dreams: Brief Reflections on Thomas L. Friedman, "What Are America and China Fighting About, Anyway?" (NYT 14 April 2023)


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Inertia.  Inertia is perhaps the best way to understand American public intellectuals, and the apparatus that they have built around themselves. Inertia is a good thing in the sense that it requires a quite substantial force to budge the intellectual from one space to another.  Yet, depending on the operations of friction (and perhaps the slope on which inertia perches), an inert object once in motion may be unable to control its movement. An inert object may be "in the world", but it is principally oriented "in itself." That produces, again, both great strength but also, when in motion, a danger of loss of control in the face of external forces that may manage or regulate its path. Inertia is almost inevitably expressed as nostalgia.Here one understands the term in its morbid sense--from the Greek algos "pain, grief, distress" that focuses on its  nostos "homecoming" in the sense of escaping back to or reaching back to an original place (neomai) (see here).

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These are the thoughts that emerged in my mind as a read through the quite remarkable (and quite deliberately timed) Op-Ed essay that was strategically targeted for delivery through the mouthpiece organ of elite American public intellectuals (and their ecologies of policymakers and influencers) authored by the quite famous Thomas L. Friedman. That essay, "What Are America and China Fighting About, Anyway?" The New York Times (14 April 2023), described a journey of the mind precipitated by a voyage of the body to the land of oppositional forces. It was built around attendance at the well manicured elite curating event hosted b the authorities in Beijing--the "China Development Forum — Beijing’s very useful annual gathering of local and global business leaders, senior Chinese officials, retired diplomats and a few local and Western journalists. " ("What Are America and China Fighting About, Anyway?" ). That served as a centering point for a series of physical and mental perambulations around the region from which broader insights and fundamental questions might be extracted.  And extracted they were--for the consumption of the political, economic, and social classes that this serves. And yet, as these things tend to go, these textual excursions tell one more about the tastes and orientation of the writer than they do about its object. It is, in a sense, the intellectual version of a luxury barge cruise along river banks of famous or pretty places that one has heard of, and from which one takes excursions from time to time to sample a bit of the ordinary life from an extraordinary perspective. 

It is precisely for that reason alone that the essay is worthy of a careful read.  It gives one a sense of what the intellectual classes are fussing about. It suggests the nature and their perceptions of the world. But it also suggests their fears, their longings, and ultimately their efforts to preserve a network of privilege that might still serve as a buffer, irrespective of ideology, between those who manage and those who serve. The essay does make some interesting points, and some of its insights are worthy of substantial elaboration. Its fundamental insight is correct, though quite tentative.  The difficulty is that the analysis continues to cling to an analytic lens that itself reflects a view of the world that was largely abandoned by 2016. In the era of the post global empire, one can hope for  some sort of equilibrium and zones of intense competition; one cannot realistically seek to manage them back to a view of the nature and end goal of globalization as it stood before the start of the new eras in the US and China. 

Beyond that, a few brief comments follow, the gist of which is this:

 That was the world imagined in Mr. Friedman's most famous books.  And perhaps one day the global collectives will get back to attempting some future form of that vision.  But the reality around us now suggests a very different vision--one increasingly in evidence not just in the actions and sensibilities of China, but also those in the United States.  Their respective dependencies feel this change even as they are incapable of understanding its character.  Mr. Macron's recent pathetic visit to China (here and here) and Mr. Putin's humiliating role as a premier dependency (in the popular imagination here) speak to this shifting reality from converging global community to post-global empire. Intertwining remains important, and--to use the language of systems theory, structural coupling is of the highest importance.  But these are now better understood in the shadow of the re-emergence of borders--territorial and abstracted, physical and functionally differentiated--between  two quite distinct ways of translating the principles of capital and production, of work, duty, responsibility and its distribution of risk and responsibility between individual and collectives into the social relations around which human organization is elaborated. Post global empire, in effect, produces an ironic application of the motto of the European Union--In varietate concordia (united in diversity). As Mr. Friedman notes, both apex states are united in their commitment to principles of capital and productivity, but that unity  has now been elaborated in two significant variations of organizing social relations (with a third emerging from the subordinated voices of dependencies on both sides of the new global divide). The task of this generation (unlike that of the post 1945 generations) is to develop mechanisms necessary to order the relations among these cousins. In that, trust is indeed important, as is intertwining, but the goal is no longer convergence but the orderly institutionalization of competitive but pacific relations between them. To that end, the fundamental insights of dual circulation relations may be useful. Unity now requires separate rooms in a house we all share.


Friday, April 14, 2023

Sanctions Based Business and Human Rights Practices From the United States--From Export Controls, to Voluntary Conduct Codes, to Import Sanctions


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Every state appears to have embraced a distinctive approach to the embedding of human rights and sustainability considerations in economic activities.  For the Untied States, the embedding of such human rights and sustainability concerns is being undertaken by merging its sensibilities with a politics driven sanctions regime. The sanctions regime has, since 2021 also been tied to the efforts to consolidate and solidify the construction of a liberal democratic collective through the Summits for Democracy sponsored by the United States and its allies.
The United States continues to put human rights at the center of our foreign policy. The Export Controls and Human Rights Initiative – launched at the first Summit for Democracy as part of the Presidential Initiative for Democratic Renewal – is a multilateral effort intended to counter state and non-state actors’ misuse of goods and technology that violate human rights. During the Year of Action following the first Summit, the United States led an effort to establish a voluntary, nonbinding written code of conduct outlining political commitments by Subscribing States to apply export control tools to prevent the proliferation of goods, software, and technologies that enable serious human rights abuses. (Export Controls and Human Rights Initiative Code of Conduct Released at the Summit for Democracy).

 That sanctions driven incorporation of human rights in economic activity has been augmented by other sanctions regimes.  One of the most well known is that targeting Chinese policy in Xinjiang. The Uyghur Forced Labor Prevention Act (UFLPA). 

It establishes a rebuttable presumption that the importation of any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China, or produced by certain entities, is prohibited by Section 307 of the Tariff Act of 1930 and that such goods, wares, articles, and merchandise are not entitled to entry to the United States. (Uyghur Forced Labor Prevention Act (UFLPA).  )

Monitoring of action under UFLPA has become an especial point of focus of the Congressional Executive Committee on China. To that end CECC has recently announced a program on the issue: Implementation of the Uyghur Forced Labor Prevention Act and the Impact on Global Supply Chains.   The announcement follows below. The event takes place 18 April 2023. 

The hearing will be live streamed on the CECC’s YouTube channel.


Thursday, April 13, 2023

The Ideological Territorialization of Post-Global Empire: "A World Divided: Russia, China and the West" (Cambridge, United Kingdom: Centre for the Future of Democracy; October 2022)


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At the Coalition for Peace and Ethics we have been arguing for years--to the mockery of many desperately hiding behind those tactics in a vain hope to cling to a dying (if not already dead worldview), that the old global consensus-convergence based single global order (led by the United States and its Allies from after 1945)  has been ging way to a new post-global imperial model. That model of post global empire posits two poles, and then the rest of the world ordered in a messy way beneath or between these apex imperial powers. Authority s a function of dependency, and dependency is in turn a function of control or management of global production chains that themselves are functionally differentiated territories of power relations (see essays in CPE EmpireSeries (148)). 

The Russo-Ukrainian War, though a last gasp exercise in reactionary nostalgia for forms of empire (grounded in racist, ethno-national aspirations and focused on territory as a marker of authority), has accelerated  the movement toward alignment by second and lower ordered states around the two apex hubs--one with a capital in Washington D.C., and the other with its capital in Beijing.  

A recent study appears to provide a very interesting mapping of the new ideological divide. In A World Divided: Russia, China and the West (Cambridge, United Kingdom: Centre for the Future of Democracy; October 2022;, authors Roberto S. Foa, Margot Mollat, Han Isha, Xavier Romero-Vidal, David Evans, & Andrew J. Klassen "“harmonised” data from surveys conducted in 137 countries, including in 75 countries since Russia attacked Ukraine in February 2022, and found a divide – growing for a decade – that now polarises the global population.") (Press Release: War in Ukraine widens global divide in public attitudes to US, China and Russia – report ). On the basis of their analysis, they suggest "that Russia’s war has led people in the West to feel ever greater allegiance to both the US and NATO, and brought wealthier democracies in Latin America and Eastern Europe towards a pro-American stance. However the report also identifies a zone of illiberal and undemocratic societies, stretching from East Asia through the Middle East and out towards West Africa, characterised by the exact opposite trend: populations that have steadily increased support for China, Russia, or both, in recent years." (Ibid).

The avatar is public attitudes toward international politics. Though it is cast in the traditional terms of cold war ideological divides, it does suggest the detachment that serves to differentiate  not just power vertically arranged, bt their distinct operating systems. In this sense it may be useful to note that despite speaking  to that divide in terms of territory, it must be understood that territorial states might be better understood in this century as aggregated constellations of polycentric functionally differentiated legal orderings. 

A World Divided: Russia, China and the West (page 18)

A World Divided: Russia, China and the West (page 20).

Tuesday, April 11, 2023

国家互联网信息办公室关于《生成式人工智能服务管理办法(征求意见稿)》公开征求意见的通知 [Notice of the Cyberspace Administration of China on Public Comments on the "Administrative Measures for Generative Artificial Intelligence Services (Draft for Comment)"]


Pix Credit: "What is Generative Artificial Intelligence (AI)?"

The issue of generative AI has become a global issue. "Generative algorithms create data using models of the world to synthesize images, sounds and videos that often look increasingly realistic. The algorithms begin with models of what a world must be like and then they create a simulated world that fits the model." ("What is Generative Artificial Intelligence (AI)?"). While it is quite useful, the fear of its ability to deceive or manipulate--the so-called deep fake issue, among others--have begun to generate policy responses.  

On 11 April 2023, the Chinese State Cyberspace Administration has distributed for comment a draft "Generative Artificial Intelligence Service Management Measures."  The Draft was summarized for Chinese readers this way by the Communications Industry Network News [通信产业网讯] (sponsored by the Ministry of Industry and Information Technology of the People's Republic of China and China Electronics Information Development Research Institute (CCID Group)):

 In order to promote the healthy development and standardized application of generative artificial intelligence technology, according to the "Network Security Law of the People's Republic of China" and other laws and regulations, the State Internet Information Office has recently drafted the "Generative Artificial Intelligence Service Management Measures (Solicitation of Comments) draft)”, and is now open to the public for comments.

The draft for comments clarifies that the provision of generative artificial intelligence services shall be in accordance with the provisions of the "Network Security Law of the People's Republic of China", requiring users to provide real identity information. Providers should clarify and disclose the applicable groups, occasions, and uses of their services, and take appropriate measures to prevent users from relying too much on or indulging in generated content. During the process of providing services, the provider undertakes the obligation to protect the user's input information and usage records. It is not allowed to illegally retain input information that can infer the user's identity, it is not allowed to make portraits based on user input information and usage conditions, and it is not allowed to provide user input information to others. Where laws and regulations provide otherwise, those provisions shall prevail.

The draft for comments also clarifies that the provider shall not generate discriminatory content based on the user's race, country, gender, etc. The provider shall establish a mechanism for receiving and handling user complaints, and promptly deal with individuals' requests for correction, deletion, and blocking of their personal information; discovering and knowing that generated text, pictures, sounds, and videos infringe on other people's portrait rights, reputation rights, personal privacy, and business interests. If it is secret, or does not meet the requirements of these measures, measures should be taken to stop the generation and prevent the harm from continuing.

The scope of the Measure is quite broad.  Artice 2 provides that 本办法所称生成式人工智能,是指基于算法、模型、规则生成文本、图片、声音、视频、代码等内容的技术。["The generative artificial intelligence referred to in these Measures refers to technologies that generate text, pictures, sounds, videos, codes, and other content based on algorithms, models, and rules."].  The content produced--whether fr domestic consumption or for outward projection must conform to core ideological principles:

利用生成式人工智能生成的内容应当体现社会主义核心价值观,不得含有颠覆国家政权、推翻社会主义制度,煽动分裂国家、破坏国家统一,宣扬恐怖主义、极端主义,宣扬民族仇恨、民族歧视,暴力、淫秽色情信息,虚假信息,以及可能扰乱经济秩序和社会秩序的内容。[The content generated by generative artificial intelligence should reflect the core values of socialism, and must not contain subversion of state power, overthrow of the socialist system, incitement to split the country, undermine national unity, promote terrorism, extremism, and promote ethnic hatred and ethnic discrimination , violence, obscene and pornographic information, false information, and content that may disrupt economic and social order.] (Article 4(1)
It must avoid discrimination, respect intellectual property rights, must avoid the generation of false information, and respect the interests of others. (Ibid. (2)-(5)). The Measure requires compliance with the "Network Security Law of the PRC" [《中华人民共和国网络安全法》]. As is usual, a certain quantum of prior approvals further enmesh this provision and its obligations into other related measures:

a security assessment shall be submitted to the national network information department in accordance with the "Regulations on the Security Assessment of Internet Information Services with Public Opinion Attributes or Social Mobilization Capabilities" and the "Internet Information Service Algorithm Recommendations" "Management Regulations" to carry out the procedures of algorithm filing, modification, and cancellation filing.[应当按照《具有舆论属性或社会动员能力的互联网信息服务安全评估规定》向国家网信部门申报安全评估,并按照《互联网信息服务算法推荐管理规定》履行算法备案和变更、注销备案手续。] (Ibid., Article 6). See also Article 17.

In addition, the Measure provides for civil and criminal penalties (Ibid., Article 20) and provisions for content removal (Ibid, Article 19). Also included are some transparency and capacity building obligations among the general public (Ibid., Articles 16-17). 

The announcement of the Draft along with instructions for submitting comments follows below in the original Chinese and a crude English translation.