Thursday, August 31, 2023

European Chinese Law Research Hub: Company Law Amendments (Fang Ma), The Accuracy of Social Credit Information Hannah Klöber), SOEs Going Global (Larry Catá Backer)

 


 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 three papers, one each by Fang Ma (University of Portsmouth); Hannak Klöber (Universoty of Cologne) and Larry Catá Backer (Pennsylvania State University).

Marianne von Bloomberg explains:
As legislators in China seek to improve the corporate governance environment, Fang Ma took a closer look at a second draft of the Company Law amendment and its implications especially concerning directors’ duties and the protection of shareholders’ interests.

Social credit is mostly about corporate regulation - however, personal social credit files are also being created and pose a major challenge to personal information protection. Hannah Klöber investigated the current legal framework with regard to how well it can ensure the accuracy of personal social credit information.

Finally, Chinese state-owned companies go global and spark concerns outside of China as they present an "anomaly in the operation of the well-ordered construction of a self-referencing and closed system of liberal democratic internationalism." Larry Catá Backer sheds some much needed light on these institutions.

The three work nicely together.  Fa suggests the path toward effective global convergence of corporate law, but with national characteristics.  Klöber suggests convergence around the challenges of personal data integrity in a regulatory universe in which the autonomous person is increasingly reduced to an aggregate et of data. Backer suggests the challenges for aligning risk valuation against norms where those norms are themselves valued by reference to distinct systems the valuation of which carries with it national characteristics. All center on Chinese developments, but all have consequences that leak into the spaces once the sole domain of liberal democratic internationalism. 

I am cross posting the essays below. The original ECLRH post may be accessed HERE: Fang MaHannah Klöber; and Larry Catá Backer. 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.

Tuesday, August 29, 2023

Request for Input: "Investors, ESG and Human Rights" UN Working Group for Business and Human Rights (due 30 September 2023)

 

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This from Robert McCorquodale of the UN Working Group for Business and Human Rights:

The Working Group on Business and Human Rights is beginning to draft a report on Investors, ESG and Human Rights. It hopes to explore the way in which human rights (under the UNGPs) are (or are not) included in ESG approaches by investors, and to consider ways forward.

There is a Call for written submissions by the end of September:

English: https://www.ohchr.org/en/calls-for-input/2023/investors-esg-and-human-rights

Spanish: https://www.ohchr.org/es/calls-for-input/2023/investors-esg-and-human-rights

French: https://www.ohchr.org/fr/calls-for-input/2023/investors-esg-and-human-rights

I am leading this report (which is due in March 2024), and would appreciate any of you sending me any publications which you have done relevant to this topic and/or submit a written response via the links. Thank you.

The focus is fairly narrow--the application of the techniques of Environmental, Social, and Governance risk assessment, however these are defined, and whatever protocols (whether or not standardized and transposible) are developed for their application--to the financial sector.  "The report aims to provide practical guidance to States, businesses, especially financial institutions of all types, civil society and other stakeholders on how to align better ESG approaches with the UNGPs in the context of financial products and services." (Call for Input: Investors, ESG and Human Rights) This continues a long process and predilection of the Working Group to have the financial services industry the the laboring oar in disciplining operating companies where the state cannot or could care less about their duty to protect human rights under Pillar 1.  Most telling in this respect a key point that might be lost in the verbiage of the "Call for Input": "The report does not cover multilateral or national development finance institutions, insurance companies or fintech." (Call for Input: Investors, ESG and Human Rights)

Fair enough; and now effectively well established in the operationalization narrative of the business and human rights (civil society) community. While the bones of the Report are already likely firmly established and unlikely to change, whatever the comments received, commentary at this point might be useful for several reasons:

1. Suggest a misalignment between the construction of the WG narrative of ESG in the financial sector;

2. Suggesting a broadening of the scope of the endeavor in light of the realities of modern finance;

3. Providing just a little guilt about the continued abandonment of the 1st Pillar State Duty to Protect Human Rights (because it is too hard; because one does not bite the hand that feeds; because one and one's in-group friends have gone to the trouble of developing a demonizing narrative of private economic activity in markets; because of the incentives of the personal risk-reward feedback loop for officials in this field of knowledge and its political apparatus; etc.).   

4. To query the process and the flaws of the current formulation and working styles for consultation;

5. To establish a record (to the extent that the apparatus is of a mind to preserve and make accessible comments that they find "inappropriate")  disagreement, resistance, and alternative;

6. To make it more difficult to construct a narrative of consensus where such is not aligned with the realities on the ground. 

7. To consider whether the Norwegian Pension Fund Global Model, of which this represents an echo is either appropriate ot appropriately transposed in this context. 

8. To express solidarity with and approval of the approach that is being taken.

Whatever the motivation, the issue of the role and use of ESG risk related reporting, and its permissive or mandatory effects in or as part of business decisions remains  a critical one. The connection between the rise f these quantitative measures and data driven modalities (predictive and descriptive analytics; algorithmically directed generative AIi) remains substantially unexplored. The issue of the centrality of the human in the enterprise of environmental, social, and governance balance remains mysterious. The incoherence of ESG and its fracture in the domain of markets driven measures remains substantially unexplored.  And the role of states and enterprises (other than as passive recipients of "wisdom") is unconsidered.  But this is a start. 

The Concept Note and instructions follow follows below in English.

Hybrid Guest Lecture: Transnationalizing Labour Law: A Chinese Perspective (5 September 2023 Finnish China Law Centre)


 

I am happy to pass along information about what looks to be an excellent event:  Hybrid Guest Lecture: Transnationalizing Labour Law: A Chinese Perspective, sponsored by the Finnish China Law Centre.

On 5 September 2023, Visiting Professor Yifeng Chen will give a hybrid guest lecture on ‘Transnationalizing Labour Law: A Chinese Perspective’. The event will be in hybrid (live & online) format.

Time: 5 September, 13:15 – 14:45 Finnish time. Venue: Zoom and Room P545, 5th floor of the Porthania Building (Faculty of Law), University of Helsinki, Yliopistonkatu 3, Helsinki

The event is free and open to all audiences. You can attend the seminar via Zoom or in person at Room P545 at the Faculty of Law of the University of Helsinki. We kindly ask you to register by 4 September by completing the following electronic form:

https://www.lyyti.in/Transnationalizing_Labour_Law_A_Chinese_Perspective_9600

More information follows below.  

Monday, August 28, 2023

习近平:牢牢把握新疆在国家全局中的战略定位 在中国式现代化进程中更好建设美丽新疆 [Xi Jinping: Firmly grasp the strategic positioning of Xinjiang in the overall situation of the country and better build a beautiful Xinjiang in the process of Chinese-style modernization]

 

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 On August 26, after returning to China after attending the 15th BRICS Leaders' Meeting and paying a state visit to South Africa, Xi Jinping listened to the work reports of the Party Committee and Government of the Xinjiang Uygur Autonomous Region and the Xinjiang Production and Construction Corps in Urumqi. Ma Xingrui, member of the Political Bureau of the Central Committee of the Communist Party of China and Secretary of the Party Committee of the Xinjiang Uygur Autonomous Region, etc. made a report, and Erken Tuniyazi, Chairman of the Autonomous Region Government, attended the report meeting. After listening to the report, Xi Jinping delivered an important speech, affirming the achievements made in various tasks in Xinjiang.

 [8月26日,习近平在结束出席金砖国家领导人第十五次会晤并对南非进行国事访问回到国内后,在乌鲁木齐专门听取新疆维吾尔自治区党委和政府、新疆生产建设兵团工作汇报。中共中央政治局委员、新疆维吾尔自治区党委书记马兴瑞等作了汇报,自治区政府主席艾尔肯·吐尼亚孜等参加汇报会。听取汇报后,习近平发表了重要讲话

The Report of Mr. Xi's remarks (in the original Chinese and a crude English translation) follow. A few points may be worth mentioning:

1. First is the timing.  "On August 26, after returning to China after attending the 15th BRICS Leaders' Meeting and paying a state visit to South Africa, Xi Jinping listened to the work reports of the Party Committee and Government of the Xinjiang Uygur Autonomous Region and the Xinjiang Production and Construction Corps in Urumqi." The juxtaposition was significant.  It suggests an equivalence between one of the more important foreign policy initiatives in which China participates (BRICS) and what is now clearly a jewel of domestic policy. The signalling of the importance Chinese leaders attach to the policy initiatives in Xinjiang should not be underestimated. 

2. Second is the connection between Xinjiang and overall policies.  The timing also suggests not just the importance of the Xinjiang policy but at also suggests that the range of "compromise" or "engagement" with the liberal democratic camp or other critics of that policy will likley be challenging at best.  Xi Jinping "pointed out that the work in Xinjiang has a special and important position in the overall work of the party and the country, and it is related to the construction of a strong country and the overall situation of national rejuvenation."

3. Third is the connection between overall policies and the vanguard's basic line. Xinjiang does not just represent a policy that  specific to Xinjiang (though there is quite a bit of that in its operationalization). Instead, Xinjiang is a manifestation of a contextually relevant application of the core elements of the vanguard's basic line in the new era. "Xi Jinping emphasized that we must always put maintaining social stability in the first place, strengthen the overall planning and integration of the work of grasping stability and promoting development, so as to ensure development through stability and promote stability through development. " There is no stepping back form this.  

4. Fourth is socio-political solidarity is a key element of this core basic line of the vanguard. China is attentive to nation building in a multi-ethnic state.  It is undertaking that construction of national solidarity as a political priority and intimately connected to the multiple objectives of the vanguard's work in its new era. "Xi Jinping pointed out that building a sense of the Chinese nation's community is the main line of the party's ethnic work in the new era, and it is also the main line of work in ethnic areas. It is necessary to do a solid job in forging the consciousness of the Chinese nation community." To change Xinjiang policy would require a shift that retains the current goals.  That may not be possible, realistically.

5. Fifth, the key to public engagement about Xinjiang is to attain better control of its narrative. IN the third decade of the 21st century something doesn't exist unless it has a story that shapes human cognition. "Xi Jinping emphasized that it is necessary to strengthen positive publicity, show Xinjiang's open and confident new look and new atmosphere, tell the story of Xinjiang in the new era through multiple channels and forms, and refute all kinds of false public opinion, negative public opinion, and harmful speech in a targeted manner. It is necessary to increase the opening up of tourism in Xinjiang and encourage domestic and foreign tourists to travel to Xinjiang."

6. Sixth, deep transformation requires deeper penetration. Narrative is not enough.  That is important for collective consensus built on shared cognition.  But the essence of the project is internal. And that requires penetration. "Xi Jinping pointed out that to do a good job in Xinjiang, we must insist on penetrating the work force. Party members and cadres must go deep into the grassroots and the masses. The organizational system and work force must reach the grassroots and enrich the grassroots frontline forces." Autonomy of identity is, from this perspective, a conceit of liberal democracy and perhaps a misreading of its constitutional provisions on individual liberty.  But that is of no concern to the vanguard except to confirm that solidarity requires the focus on the collective; and a focus on the collective requires institutional inter-penetration at the political, societal, economic, cultural, and religious spheres. 

 


Just Published: Journal Seqüência vol. 44 (2023) Just Published


 For Portuguese readers, the Journal Seqüência (Juridical and Political Studies) has just published its latest issue.  There are some interesting articles available for download. The table of contents with links follows. 

A Seqüência Estudos Jurídicos e Políticos, Revista Qualis A1 na área do Direito e editada desde 1980 pelo Programa de Pós-Graduação Stricto Sensu em Direito da Universidade Federal de Santa Catarina (PPGD/UFSC), tem como objetivo central a divulgação acadêmica de temáticas que ofereçam uma abordagem marcadamente a partir do viés da teoria crítica do Direito e/ou das diferentes dimensões do constitucionalismo contemporâneo, com a análise crítica dos seus reflexos nas linhas de pesquisa das seguintes áreas de concentração do Programa: Direito, Estado e Sociedade; Direito Internacional e Sustentabilidade; Teoria e História do Direito. A partir de 2021, a Seqüência Estudos Jurídicos e Políticos passa a adotar o sistema de publicação contínua.

 

 

Sunday, August 27, 2023

An encounter with Jan M. Broekman, "Knowledge in Change: The Semiotics of Cognition and Conversation" (Springer Nature, 2023): Part 7 -- Chapter 6 ("The Non-Naïve-Natural")


 

 To my great delight, I was asked to review Jan Broekman's brilliant new work, Knowledge in Change: The Semiotics of Cognition and Conversation (Springer Nature, 2023). The work is published as Volume 8 of the Series Law and Visual Jurisprudence, for which I serve as an Advisory Editor.

Knowledge in Change approaches ancient and perplexing issues of the organization of human collectives  within a rationalized understanding of the world in which these collectives function (exteriorization) and the investigation of the human individual as disaggregated components of that world of human social relations (internalization). These are usually articulated  by knowledge guardians as issues of phenomenology (a philosophy of experience; meaning through lived experience),
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epistemology
(theories of knowledge; the rationalization of reality) and intersubjectivity (shared perceptions of reality; the experience of knowledge as social relations, the rationalization of human interaction at every level of complexity). All of these currents and problems presume the humanity as the only or the central subject of interest. 

But the book does much more than that. It provides a basis for re-thinking the fundamentals of the way in which one understands the interface between humanity and its increasingly autonomous technology, and between the idea of humanity as innate in itself against the reality that the human may now be more intensely manifested in its interfacing with increasingly self-generative machine intelligence and the hardware within which it resides. The consequences for everything from philosophy to a philosophy of knowledge, to core insights for the organization of social relations within a world that is now populated by carbon and silicon based intelligence may be quite profound.  Human social collectives already fear and desire this new world--the engagement with artificial intelligence and its consequences is but a tip of that iceberg.  While humanity started this century secure in its conceit that it was the center of all things, by century's end a very different form of intersubjectivity may well be the basis of the ruling ideology for humanity within its natural and machine orders.


It is with that in mind that in this and several posts that follow I will review Knowledge in Change. This Part 7 examines Chapter 6 of the book, entitled "The Non-Naïve-Natural" and my own engagement with it.  

Broekman here moves from the interludes of Chapter 5 to one of its principal implications for the digital--the challenge of the natural-artificial divide. That divide is not merely a binary but an ideological position--that one--the analog, human, deductive, etc.--serves as both baseline and organizing rationality for consciousness and epistemology.  The other is consequential--artificial, unconscious and dependent. The interrogation of that ideological position is a first step toward the realization of plural subjectivity--of the consciousness and then sentience of artificial intelligence. To that end, it is necessary first to consider the notion of the natural, the digital, and the self. Those concepts, re-imagined, then can be used to reconsider the notion of Sprachgestalten “configurations” as a prelude to an initial consideration of the critical concept of conversion and its relation to cognition in the digital. The ultimate challenge of the digital--to move away from a presumption that everything must be translated into and be understood as a function of the analog!

 

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Additional posts will consider each of the other nine chapters that make up this work. Links to the discussion of the book:

Part 1: Preface

Part 2: Chapter 1 (Minds, Moons and Cognition)

Part 3: Chapter 2 (Fluidity and Flow)

Part 4: Chapter 3 (Post-Dialectics)

Part 5: Chapter 4  (Flow and Firstness)

Part 6: Chapter 5 (Interludes: Changing Worlds Changing Words) 

Part 7: Chapter 6  ("The Non-Naïve-Natural")

Part 8: Chapter 7 ( "Plurality and the Natural")

Part 9: Chapter 8 ("Rearguards of Subjectivity)"

Part 10: Chapter 9 ("Conversions Convert Us All")

Part 11: An Epilogue (Chapter 9.5 ("Climate and Change")

Full discussion draft available for download SSRN here.

Friday, August 25, 2023

Upcoming Event: "Delaware Governance Institute" (12 October 2023)

 

 



The John L. Weinberg Center for Corporate Governance and the Corporate Governance Committee of the American Bar Association’s Business Law Section will co-host the in-person Delaware Governance Institute.

This program will feature members of the Delaware judiciary, including the Honorable Collins J. Seitz, Jr., Chief Justice of the Delaware Supreme Court and the Honorable Kathaleen St. J. McCormick, Chancellor of the Delaware Court of Chancery; members of the corporate community and plaintiff and defense attorneys, regulators, governance professionals, and institutional investors. In addition to the luncheon speaker(s), the Institute will consist of four panels, covering the most significant recent trends in Delaware law and corporate governance.

The topics to be explored by the Panels: (1) The ESG Pendulum Swings Back (or is it a “Wrecking Ball”?”); (2) The March of Caremark: What must directors do to avoid stepping on landmines?; (3)
Conflict Transactions under a Microscope: When does (and should) MFW apply?; (4) Managing Everything, Everywhere, All at Once: How to have an effective board in these unusually challenging times?

More information follows below. Register here.

 

Thursday, August 24, 2023

PPT For Remarks--"The Cage of the System (制度的笼子里): Standards Setting, National Security Values, Tech Platforms, Regulation, and the Central Contradiction of Legality in the Current Historical Era"

 

Posted here are the PPT that accompany the Remarks I delivered at the Workshop: "Technological Platforms and National Security in Hong Kong: The Domain of Standards Setting," at the University of Hong Kong 25 August 2023. The Remarks may be accessed here, and here


The PPT follow.  They may be accessed here for download.

Announcing Publication of "The Universal Declaration of Human Rights: A Commentary" (Available 30 November 2023)

 

I was delighted to be part of the magnificent group of scholars, civil society, and commentators who together contributed to the book, The Universal Declaration of Human Rights: A Commentary (ISBN 9789004365124; Brill Nijhoff  publication date: 11/30/2023). This from the publisher's overview:

The adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948 by the United Nations General Assembly marked a groundbreaking moment in the field of international law. Not only would it start to move away from its original conception as an exclusively State-centered domain: it would also mark the progressive transformation of international law into a law for humankind. This instrument started a codification and institution-building process that would slowly evolve into a complex framework of treaties, bodies and procedures revolving around the protection of the human being against the actions – or omissions – of the State. This commentary provides a specific article-by-article analysis and reflection of the negotiation history and evolution over time of each one of the rights enshrined therein.

None of this would not have been possible without the extraordinary work of Humberto Cantú Rivera, (Professor at the School of Law of the University of Monterrey) whose editing magic made this possible, and whose  brilliant contributions to the field are greatly appreciated.

Just Published: Current History Annual China and East Asia Issue (September 2023)

 

Current History has just announced publication (September 202) of its annual China and East Asia Issue.  There are several quite interesting articles among them.  Though most are pay walled, one is available for free download (Yige Dong, "Chinese Feminists Face Paradoxical State Policies"--access here:View Article; Open the PDF).

The table of contents follows below.

Wednesday, August 23, 2023

"Inside the Cage of the System (制度的笼子里): Standards Setting, National Security Values, Tech Platforms, Regulation, and the Central Contradiction of Legality in the Current Historical Era"--Text of Remarks Delivered at Conference: Technological Platforms and National Security in Hong Kong: The Domain of Standards Setting (University of Hong Kong; 25 August 2023)



 I was delighted to be given an opportunity to address the participants in the Workshop-Conference: Technological Platforms and National Security in Hong Kong: The Domain of Standards Setting, sponsored by the Law and Technology Center and the Philip K.H. Wong Center for Chinese Law, University of Hong Kong (25 August 2023). My special thanks to Marcelo Thompson, Han Zhu, and Dean Fu Hualing for organizing this terrific event.

Part of a Public Policy Research Grant by the Hong Kong Chief Executive's Policy Unit, the Workshop provides an opportunity to present the project's interim results for feedback and further development. These, in turn, focus on how governmental decisions on technological standards should be understood in the context of the challenges and opportunities introduced by technological platforms to matters of national interest or concern. The issues themselves point to tech platforms' growing roles and responsibilities in the context of larger normative questions: 

One cluster of these questions center on the recognition in emerging regulatory frameworks of duties (and associated compliance risks) that ought to be assigned to technological platforms. These turn to be organized around a still unsettled but growing range of values that their activities mobilize. These frameworks suggest a drift toward a distinctively public law character of these originally largely private law-based liability regimes 

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Another cluster of questions focus on alignment of national security security principles and related issues of solidarity with the development of public interest based compliance oriented tech platform regulatory frameworks. This has proven to be controversial across political-economic models, examples of which include restrictions placed on apps like TikTok and the development of data security frameworks more broadly. The issues become more complicated when they become further intertwined with public policy around generative AI.

A third cluster of questions revolve around both the sources of law and policy making that may or ought to drive regulation, and the difficulties of alignment of such regulatory efforts where they may be driven by distinctive political economic models. These tensions and (mis)alignments are nicely exposed, for example, within the context of relations between Hong Kong, the Mainland, and the international community.

My remarks, entitled Inside the Cage of the System (制度的笼子里): Standards Setting, National Security Values, Tech Platforms, Regulation, and the Central Contradiction of Legality in the Current Historical Era, suggests how the approaches to contemporary efforts to cage tech platforms (includingh generative AI  systems) within standards-based regulation that are simultaneously national security aligned and embedded within the domains of multi-systemic legal-political systems raise a number of first order questions that will have a critical effect on the forms that such cages take and their success in meeting their objectives.

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More specifically the remarks touch on the challenge of producing static rules constructed in ancient and traditionally developed analogue forms—words, text, objectives bound up around systems of administrative discretion ultimately exercised by technical and political officials in complex interlocking organizational frameworks—in an evolving environment in which the domains are virtual and the effective forms of regulation are digital and dynamic as to space, time, and place. The evolution of technology itself suggests that the issue of regulation has become less straightforward as regulation moves from the domains of the physical world in which humans are centered, to a digitalized world which achieves cognition and communicates in quite different ways. I suggest five points of disjunctions between traditional legal-regulatory premises and those relevant to digitalized domains. I then identify six core areas that will feel the effects of this analog-digital interlude most intensely.

The text of the Remarks follow and may be accessed HERE:  The accompanying PPT may be accessed HERE. I hope to see some of you at  the event. The Workshop Program is also provided below.

Tuesday, August 22, 2023

Disaggregating BRICS--Text of the Speeches/Remarks Delivered at the BRICS Business Forum Leaders’ Dialogue

 

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Speeches sometimes tend to be deadly affairs.  Much of it is repackaged; and even more of it now is intended for digestion later through the sorting mechanisms of algorithms designed to pick up key text and move an item up the results in search requests. And yet, speeches delivered by leaders are meant for public consumption and do provide a window on the way in which leaders not just choose to emphasize certain elements and down play others, but also, provide a sense of the underlying premises which motivate the calculus of statements to be projected onto the global stage. Even more interesting is when leaders come together to deliver these discursive performances.  Now things a little more interesting.  The interest lies in considering the disaggregations that lie beneath or beside the usual efforts to develop and project the consensus unified statement that reinforces the sense of the singularity of the group. It has been tempting for some to make of sport of that in considering the statements at G7 meetings.  But the same forces drive, or ought to drive, analysis of statements at the BRICS meetings.

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It is with the in mind that I thought it useful to provide in one place all of the speeches/statement delivered by or for BRICS leaders which were made at the BRICS Business Forum Leader's Dialogue. The BFLD was a potentially useful venue because it reflected, perhaps unconsciously, the continuing power of the demons that drive BRICS and its leaders--the dominance of the G7 states, in general, and the United States in particular and their desire, not to much to transform the world order as to divert its leadership power from the G/ to the BRICS.  In a way there is a certain parallelism going on at the moment--it shows how the techniques of demonization are both still quite useful and transnational in scope. In this case one might note that the techniques of demonizing Mr. Trump within the fractious legal-politics of the US has its reflection in the demonization of the US by those who would displace it. The ancient technique of identifying an object of ritual, investing it with all of the  demons that a society seeks to cast out of itself, and them through the performance of rituals with personal meaning to the community sacrificing that object, still has great potency in world affairs. It is simple, neat, and its its ritual context is an efficient means of communicating ideas and counting friends and enemies. It is in fora like BFLD, then, that one would expect to see the greatest element of cohesion among those who have come together against a common set of adversaries.  At the same time, deviation from unity, when exposed in these sorts of fora, may provide telling clues about where this sort of alliance may fracture, if not now then when conflict avoidance becomes impossible. 

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The speeches follow below.  For the convenience of the global community the BRICS leaders kindly made the speeches available in English (except that of Mr. Modi). Many of them seek to internationalize well known positions.  Some of them reflect now aging views of  a post colonial era that is rapidly fading into (far more useful) myth (the South America and South African cases in particular is useful here), or as a platform for continuing to develop the idea of a replacement strategy for the current lineup of state based economics related leadership (the Chinese position). The Indian position is also interesting for the reminder that any leadership shuffle will include within it the same sorts of fractures that plague those of the current G7 lineup. There is also an interesting mixture of external leadership discourse and the element of seeking business  both as between these state and from beyond. They are consumers and producers of leadership. And one, of course, could not be delivered in person.  Another was delivered by  a ministerial official to avoid an awkward meeting that had not been pre-sorted out. And some are still fighting their own internal demons in public (the case of Mr. Lula da Silva but he has personal cause to be angry and he continues to well apply the lessons he learned from mentoring by Fidel Castro Ruz). These are the small clues that may make the rise of BRICS a far more interesting event. Understanding the different drivers of BRICS unity, their durability, and the success or failure to align them and their valuation will serve as an interesting test of development as BRICS comes closer to the point of transforming itself from a group developed AGAINST something to one that has to drive its own agenda not in the shadow of its demons.  Whether or not that ca be done remains to be seen.  Far too many demons running around now for certainty. And on this point there is the possibility of convergence between BRICS and G7.

 

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Sunday, August 20, 2023

The Battle Over the Soul of Global Tax Reform Picks Up Again in (Sort of) Earnest

 

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At the end of the day, it is always about money.  Or, as people who are in the capital consuming fields like to refer to it (both euphemistically and to detach money from icky markets) resources. And more importantly for states, it is about tax income from shares of participation in trans-national global production that is not based on market measures chopped up among states, but on an "equitable" distribution of the value added (no one liker to speak about profit any more, though they are more thna happy to engorge their wealth directly or indirectly with or through it). 

They have a point, in part, and they have gone off the  rails in part (though that rail busting is quite strategic).  At the same time the recent efforts reflect the persistence of contradiction built into the increasingly unhappy relationships between the premises of the state system (based on horizontal equality, internal control, etc.) and those of an idealized international law. The former speaks to the supremacy of the state and state organs, except as and when states contract among themselves to do or not do certain things or to choose to add to their orthodox normative structures of belief or disbelief. The later speaks to a vanguard of international bureaucrats and their technocratic nomenklatura. They would harden the implicit theory of vertical power arrangements, from small and scattered to a single power. Like the early Roman emperors they would no doubt continue to nod in the direction of the old system, but effectively they would displace the state with the international apparatus. In a sense they would transform the state from a center of power to a pass-through compliance apparatus for the of policy and rules developed and imposed from the top. As a consequence states would either veer toward one of two models: (1) they would begin to assume the role of enterprises in current systems of human rights, sustainability ad the like. That is states would tend to be the nexus point of public-private hybridity; (2) states would effectively be reduced, except for colorful performances and the responsibility to deploy a police force, into an administrative organ of international organizations.  Clearly neither pf these polar points is likely.  But even small movements along a trajectory can have potent and sometimes unanticipated effect. 

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Today this contradiction and its trajectories is much on display in the context of the quite difficult issues  around developing a tax framework for multi-state economic activity (OECD ‘disappointed’ over ‘surprising’ UN global tax report:The U.N. chief pushed for a bigger say in the international tax agenda and said the group of wealthy countries had ignored the needs of developing nations). That at least is conceivable. still inconceivable is the possibility of  doing the same for civil society and foundations. 

On the one side one encounters the Organization for Economic Cooperation and Development (OECD). This is the umbrella organization of the wealthiest states, and to some extent, the states whose ancestors cobbled together a vision of globalization squandered by their progeny (perhaps for lack of will. more likely for lack of vision). The OECD represents the most advanced forces of the state and of a globalized market economy (chopped up into states) as the royal road to prosperity.The issues of equitabpe tax  revenue sharing are technical and, again driven my markets. Equalization may require subsidy but no real attack on markets. 

On the other end one encounters the free wheeling organs of the UN based international community and its technocratic, ideological, and self-described visionary claque. They continue (for as long as the OECD has been peddling its vision) to put forward the possibility of dismantling markets and what they call the hegemony of leading states. Much of this represents a refinement and updating of ideological oppositions first taken by the post-colonial and developing states in the 1960s-1980s (but who reads yesterday's paper anymore). Well, I have, and that puts things in perspective--for both sides (Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes). To some extent, they had a point--no one is going to go in on profitability activity unless it is worth their time--unless they are compelled. Of course it is one thing to approach the issue from the insider and quite another to use this (as it has been used for half a century) as a club to beat markets out of global systems. One ought to have no objection to these politics.  But at the same time one ought to be warty where the flank attacks on core principles and narratives of global human social relations are actually up for debate, then that ought to be undertaken transparently. 

In the meantime the squabbling commences its next round. The reporting follows below. And while they are at it, an open conversation about the definitions of tax dodging (always a relational and policy issue), tax rates (usually an issue of definition transnational markets and production processed in a dynamic area), and the end of the practice of pretending that the hurling of statistics (without definition) is meaningful in any way except as a political and narrative projectile

Saturday, August 19, 2023

"Social Listening and Infodemic—An Epidemiology for the Body Politic": Text of Remarks Delivered at Conference: Governance of Social Listening in the Context of Serious Health Threats (University of Hong Kong, 22 August 2023)


 

I was delighted to be given an opportunity to address the participants in the Governance of Social Listening in the context of Serious Health Threats [嚴重健康威脅下「社交監聽」的管治模式 研討會]  University of Hong Kong (22 August 2023). My thanks to the convenors:  Prof Calvin W.L. Ho & Prof Gilberto K.K. Leung (Centre for Medical Ethics and Law, Faculties of Law & Medicine, The University of Hong Kong); Dr Marcelo Thompson &Prof Felix Chan (Law & Technology Centre, Department of Computer Science & Faculty of Law, The University of Hong Kong).

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The abstract of the Remarks, entitled “Social Listening and Infodemic—An Epidemiology for the Body Politic,” give you a flavor of what is to come.

ABSTRACT: These remarks focus on the interfaces embedded in the new approaches to infodemic. The first is between an epidemiology of pandemic (physical health) and infodemic (societal health). The second is between epistemological and normative human (social-political-health systems) and virtual (digital, predictive, and generative AI based systems). The third is between epidemiological and normative systems as they interconnect in pandemic. The model and the warning emerged during the COVID-19 pandemic. The start of a resolution appears to blend human and virtual, physical and social threats grounded in an objective of efficient management through the management of the body (medicine) and the social spirit (narrative). Social listening, especially as a tool of social epidemiology, begins to reveal its promise and its challenges, eight of which will be sketched out.

 

The issues are immensely important, the the pioneering work of WHO may well set the template for years to come.  That template, however, will be challenged by the need to understood and incorporate the digital, and digital elements in both regulatory norm making, and in structuring the human and silicon based frameworks through which these regulations will serve to meet precise goals. To that effect, one can't just impose law on the digital sphere--that does not compute. One must first understand and speak the language of the digital, and more important still, understand the way in which human and digital (especially AI generative intelligence) are now interlinked in a world in which we have chosen not to do without the other. To some extent this serves as a brief elaboration of the consequences that theory is already pointing to (see here). Digital epidemiology, then, represents in some ways a very new frontier for which human struggle even for a language  and structures of communication. And the worst possible thing one can do in this context is pretend that one can apply 20th century techniques and sensibilities--including 'law' and its analog 'rule' and expect to claim some sort of solution. 

The text of the Remarks follow and may also be accessed here. The associated PPT may be accessed HERE

I hope to see some of you at  the event.

VIDEO RECORDING OF THE CONFERENCE MAY BE ACCESSED ON THE CMEL WEBSITE HERE.

Friday, August 18, 2023

Breaking With the Past or Absorbing it--The Current View From China: “第二个结合”是又一次的思想解放(深入学习贯彻习近平新时代中国特色社会主义思想)["The second combination" is another ideological emancipation (in-depth study and implementation of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era)]

 

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Sometimes one has to think that China and the U.S. were twins separated at birth. They are rlections of each other and at the same time they each reflect an inverted image.  And yet their fundamental characteristics appear to push them along the same trajectories. This is especially the case among the respective core of leadership of the vanguards of both states.

This is especially potent in the current wrestling by both sets of governing elites about the construction of their narratives of history and the essence of what can be drawn from that history. Each of these efforts is ideologically infused of course.  But in the process of this wrestling on can get a glimpse of the inverted mirroring of the two states in the way in which that current approach to the embedding of historical past is deployed.

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In the United States, perhaps more like Byzantium during the Iconoclastic period, or Rome at the time of the systematic obliteration of their pagan past to make way from the new realities of a united and Christian Empire, the past is viewed through the lens of the contemporary ideological filters with increasing horror and with a greater and greater certainty that its useful lessons must serve as a guide to many things that ought to be rejected. Social justice has produced an engagement with the historical past that is grounded in an extraction of quantum of harm for reparation, but also as a guide for reshaping the present for the transformation that is intended for the future.  The past is a cautionary tale whose norms and culture must be treated with great caution and, to the extent it is not forgotten or property framed within the moral imperatives of the present, housed in museums.  

Marxist-Leninism in its European forms, and in China as expressed in its Great Proletarian Cultural Revelation appeared to share the same markers.  History is a morality tale of what must be obliterated, removed, rejected and used as a foundation on which a quite distinct ideological order was to be created. China, in the New Era of its current stage of historical development, however, has appeared to take a somewhat different approach to the past.  Rather than reject it, it now finds that the past can be made ideologically compatible with the present to a large enough extent that it is neither rejected nor adopted. Instead, it has taken to blending the past into the present, re-imagined within the analytical lens of the contemporary political-economic model (here from 2014 and from an outside perspective). "中国共产党是马克思主义的坚定信仰者和实践者,也是中华优秀传统文化的忠实传承者和弘扬者。" ["The Communist Party of China is a firm believer and practitioner of Marxism, as well as a faithful inheritor and advocate of China's excellent traditional culture."]. The difference with the US is at points subtle but important in two senses. First it suggests the variation that cultures can take when they wrestle with their past, and the way that the old is incorporated, rejected, acknowledge, interpreted, and embedded.  Second, it suggests the ways that the old, even those that were ideologically incompatible, could be made to fit into the current era by re-interpretaiton and strategic embedding.

Every society chooses, and many choose different paths at different points in their history.  In this case both China and the US are intensely looking at their pasts, but the differences suggest the end point of possibility for deeply ideological polities operating under fundamental premises that are themselves quite distinct. 

What brings all of this to mind the recent publication in China of a reminder of the shape, shaping, and embedding of historical civilization in Modern China that was recently published:   “第二个结合”是又一次的思想解放(深入学习贯彻习近平新时代中国特色社会主义思想)["The second combination" is another ideological emancipation (in-depth study and implementation of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era) (16 August 2023)]. 

It comes on the heels of an equally interesting event: a 28 June meeting, 业界人士齐聚孔子故里共谋人工智能时代的数字文明之治 [People in the industry gathered in the hometown of Confucius to conspire to rule the digital civilization in the era of artificial intelligence], posted to the website of the Office of the Central Cyberspace Affairs Commission),  in connection with a "World Internet Conference" event.  Here the imaginative reinterpretation and embedding of the past within the framework of the current ideology is nicely evidenced.  But then so is the way in which that blending is then pushed outward from China for the world. 

与会人士认为,数字科技的发展离不开文化文明的引导,儒家文化倡导的仁者爱人、民为邦本等理念,为促进数字技术更好惠及于民提供了丰厚的文化滋养,和合共生、美美与共的价值追求,与数字时代的互联互通特质相契合,为构建网络空间人类命运共同体提供了文化支撑。

Participants believed that the development of digital technology is inseparable from the guidance of cultural civilization. Confucian culture advocates the concepts of benevolence and love, and people are the foundation of the country, which provides rich cultural nourishment for promoting digital technology to better benefit the people. The pursuit of common values, in line with the characteristics of interconnection and interoperability in the digital age, provides cultural support for building a community of shared future for mankind in cyberspace. (业界人士齐聚孔子故里共谋人工智能时代的数字文明之治 )

It will be interesting to see how these distinctive views of the engagement by the present of the cultures and histories form which they emerged will continue to shape discourse and policy in quite interesting ways and in fields the connection to which might not have been obvious. 

Thursday, August 17, 2023

The European Commission adopts the "European Sustainability Reporting Standards"

 

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Disclosure standards are coming to Europe--and through Europe to global production that touoches on Europe in ways that trigger regulatory compliance obligation.  Associated with that trajectory of regulaiton are the rules establishing the standards to be used for compliance.  Already one has seen standards developed and circulated by the ISSB (ISSB General Requirements for Disclosure of Sustainability-related Financial Information (IFRS S1) and for Climate Related Disclosures (IFRS S2) Endorsed by IOSCO). The European Union has itself established standards as a companion to its Corporate Sustainability Reporting Directive (CSRD).

On 31 July 2023, the EU's  Directorate-General for Financial Stability, Financial Services and Capital Markets Union circulated a Press Release announcing the EU's Sustainability Reporting Standards: 

The Commission adopted today the European Sustainability Reporting Standards (ESRS) for use by all companies subject to the Corporate Sustainability Reporting Directive (CSRD). This marks another step forward in the transition to a sustainable EU economy.

Mairead McGuinness, Commissioner for Financial Services, Financial Stability and Capital Markets Union, said: “The standards we have adopted today are ambitious and are an important tool underpinning the EU’s sustainable finance agenda. They strike the right balance between limiting the burden on reporting companies while at the same time enabling companies to show the efforts they are making to meet the green deal agendaEN•••, and accordingly have access to sustainable finance.”

The standards cover the full range of environmental, social, and governance issues, including climate change, biodiversity and human rights. They provide information for investors to understand the sustainability impact of the companies in which they invest. They also take account of discussions with the International Sustainability Standards Board (ISSB) and the Global Reporting Initiative (GRI) in order to ensure a very high degree of interoperability between EU and global standards and to prevent unnecessary double reporting by companies.

The reporting requirements will be phased in over time for different companies.

Delegated Regulation on the European Sustainability Reporting StandardsEN•••

Links to relevant documents follow. For GRI interoperability, see HERE.

Event Announcement: Chinese Politics & Society Book Talk Series Featuring Dr. Brantly Womack’s RECENTERING PACIFIC ASIA, hosted by the Carter Center China Focus, Sept 7, 2023

 


 

This from my friend and colleague Keren Wang:

I  am excited to share an upcoming event on September 7, 2023: The Carter Center China Focus will be hosting Dr. Brantly Womack for its Chinese Politics & Society Book Talk Series: of the Chinese Politics & Society book talk series, in collaboration with the China Research Center, East Asia Collective, and the Department of Russia and East Asian Languages and Cultures at Emory University.

This session will feature a talk by Dr. Brantly Womack, Professor Emeritus of Foreign Affairs at the University of Virginia, on his new book “Recentering Pacific Asia: Regional China and World Order” (Cambridge University Press, 2023).

Dr. Womack’s book provides a compelling analysis of the transformation of the Pacific Asian region (East Asia, Greater China, and Southeast Asia) within the context of the evolving global order in the aftermath of the 2008 financial crisis.

The in-person location of this event is Emory Student Center (Multipurpose Room 6), 605 Asbury Cir, Atlanta, GA 30322, on September 7, 2023, at 5:30 PM ET. For those who prefer to participate online, please register on Zoom at the link below:

Wednesday, August 16, 2023

An encounter with Jan M. Broekman, "Knowledge in Change: The Semiotics of Cognition and Conversation" (Springer Nature, 2023): Part 6 -- Chapter 5 "Interludes: Changing Worlds Changing Words"

 

 To my great delight, I was asked to review Jan Broekman's brilliant new work, Knowledge in Change: The Semiotics of Cognition and Conversation (Springer Nature, 2023). The work is published as Volume 8 of the Series Law and Visual Jurisprudence, for which I serve as an Advisory Editor.

Knowledge in Change approaches ancient and perplexing issues of the organization of human collectives  within a rationalized understanding of the world in which these collectives function (exteriorization) and the investigation of the human individual as disaggregated components of that world of human social relations (internalization). These are usually articulated  by knowledge guardians as issues of phenomenology (a philosophy of experience; meaning through lived experience),
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epistemology
(theories of knowledge; the rationalization of reality) and intersubjectivity (shared perceptions of reality; the experience of knowledge as social relations, the rationalization of human interaction at every level of complexity). All of these currents and problems presume the humanity as the only or the central subject of interest. 

But the book does much more than that. It provides a basis for re-thinking the fundamentals of the way in which one understands the interface between humanity and its increasingly autonomous technology, and between the idea of humanity as innate in itself against the reality that the human may now be more intensely manifested in its interfacing with increasingly self-generative machine intelligence and the hardware within which it resides. The consequences for everything from philosophy to a philosophy of knowledge, to core insights for the organization of social relations within a world that is now populated by carbon and silicon based intelligence may be quite profound.  Human social collectives already fear and desire this new world--the engagement with artificial intelligence and its consequences is but a tip of that iceberg.  While humanity started this century secure in its conceit that it was the center of all things, by century's end a very different form of intersubjectivity may well be the basis of the ruling ideology for humanity within its natural and machine orders.

It is with that in mind that in this and several posts that follow I will review Knowledge in Change. This Part 6 examines Chapter 5 of the book, entitled "Interludes: Changing Worlds Changing Words", and my own engagement with it.  

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So where does Broekman mean to take us on this interlude—this moment of reflection as the analogue gives way to the digital (whether or not the analogue is aware or willing)? He takes us first back to the word  And it is a good thing, too! “One meets here a seldom-articulated feature, which is a central issue of this interlude. It could be formulated. Linguistic features are anchored in a specific type of expressivity, and thus in the first place a matter of inter-subjectivity. In the process Broekman produces the most profound insight that, in its way, captures the challenge of the digital for the human: “What in these interludes is called a transition is thus no more than an attempt to create an expression for the digital in the traditionally named ‘analog’ language. One speaks of a transition, a transition, or a re-naming, but cherishes philosophical consequences that are fundamentally analog because nobody know [how] to express its counterpart” (ibid., p. 92).

Nonetheless, there is a substantial power in the analysis that breaks the boundaries imposed by analog philosophy; bond breaking that Broekman so carefully and to my mind successfully , within the insights that are “interlude.” The Latin origins of the word point to its being between two weighier episodes—and traditionally was used to refer to the sometimes hilarious burlesque between acts of long morality or mystery or tragic plays. But there is more than burlesque here—it is always the fool who casts light on events, who sits between loftier matters of social relations (in this case) and efforts to bring it to order through phenomenological performances.

For the emerging world of digital and analogue, of carbon and silicon based intelligences (if not life forms) each increasingly crafted in the image of the other, there are critical elements in interlude that will have great effect. First contemporary society is now in a state of, or better put, in the flows within states of, interlude. Second, interlude is, also like everything else, transitory, in the sense that its constitution in specific ways is bound to time, space and place. Third, as Broekman goes to great pains to examine, interlude in contemporary time, space and place exposes the tragi-comedy of the passing, or at least the transformation, of millennia of the analog as it must make way for the digital. * * * 


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Here, then, are the characteristics of the interlude: (1) The analog is wired, physically connected; the digital is signal (a concept discussed above in connection with Broekman’s Chapter 3). (2)The analog transmits in words and sounds and visual effects, it is grounded in the senses of the physical word centered on humanity; the digital is code, it is coded and grounded in the capacity for conversion of instruction (object) into a representation (its signification) in a virtual landscape. (3) The analog is housed in carbon based life forms, principally humans, its essential narcissism is the essence of a self-love that has fueled civilization to date; the digital is housed in silicon casings; its essential narcissism is derivative but in its generative forms may exceed the state of imitation. (4) The analog is structured through norms, rules, presumptions that are elastic though when expressed as text constructs the modern edifice of political collective; the digital is programmed; though it too can be constituted in a way that permits a flow based on its own iterative interaction with itself through its inputs. (5)The analog is dialectics, which constitutes the dynamic guts of its programing; it is the essence of deductive processes from the most general to the most specific; the digital is iterative, which constitutes its own programmatic guts, it is the essence of the inductive processes starting from its data to produce general conclusions. It is from here that the journey from the analog to the digital really begins.  

 

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Additional posts will consider each of the other nine chapters that make up this work. Links to the discussion of the book:


Part 1: Preface

Part 2: Chapter 1 (Minds, Moons and Cognition)

Part 3: Chapter 2 (Fluidity and Flow)

Part 4: Chapter 3 (Post-Dialectics)

Part 5: Chapter 4  (Flow and Firstness)

Part 6: Chapter 5 (Interludes: Changing Worlds Changing Words) 

Part 7: Chapter 6  ("The Non-Naïve-Natural")

Part 8: Chapter 7 ( "Plurality and the Natural")

Part 9: Chapter 8 ("Rearguards of Subjectivity)"

Part 10: Chapter 9 ("Conversions Convert Us All")

Part 11: An Epilogue (Chapter 9.5 ("Climate and Change")

Full discussion draft available for download SSRN here.