Ideological Fears and Cuba's New Economic Model: Fear of the Chinese Approach and of Globalization

I have written recently about the much discussed efforts by the Cuban leadership to effect what may be substantial changes in the traditional centrally planned economic model model which Cuba has been managed since the early 1960s.  See Larry Catá Backer, Cuba Responds to Globalization and Reorganizes its Political Economy: Revolution, Retrenchment or Small Steps Towards Market Engagement Within a Marxist Framework Under the Leadership of a Vanguard Party Apparatus,  Law at the End of the Day, September 24, 2010.

 Jorge Martin, Mexico, el militante, ¿A dónde va Cuba? ¿Hacia el Capitalismo o al Socialismo? (Sept. 20, 2010)

While the reactions from the Cuban community in Miami are interesting, as are those from the global left and right, the most useful barometer of the changes, and its deeply felt ideological effects are best discerned by a close reading of socialist economists.  A recent article by Jorge Martin, Kaos en la Red: ¿A dónde va Cuba? ¿Hacia el Capitalismo o al Socialismo? (Sept. 20, 2010). Martin raises two particularly insightful issues.  The first focuses on the Chinese model and its viability as a path for Cuban economic development. The second looks to the perceived dangers of engaging with the current framework of economic globalization.

With respect to the first, Martin raises concerns that may well reflect the fears of a substantial portion of the old Fidelista economic intelligentsia.  Specifically, the a younger generation of even socialist economists have abandoned the Soviet style economic model to which  Fidel Castro had devoted a large portion of his life to preserving, and that a necessary consequence of that abandonment would be the introduction of a capitalist economic order within Cuba.

Hablemos francamente: hay una fuerte corriente de economistas cubanos que están abogando por estas medidas porque están a favor de abandonar la economía planificada, y de introducir mecanismos de mercado en todos los niveles y abrir el país a la inversión privada en todos los sectores. Es decir a favor del capitalismo.  Jorge Martin, Kaos en la Red: ¿A dónde va Cuba? ¿Hacia el Capitalismo o al Socialismo? (Sept. 20, 2010).

Martin suggests that the fig leaf that is placed on this drive toward Cuban capitalism is the Raulista drive to move toward a Chinese or Vietnamese model of Marxist-Leninist organization of the economy. 

Esta gente básicamente está proponiendo una “vía china”, aunque, debido a las enormes críticas que se han desarrollado en Cuba contra China entre varias alas de intelectuales de izquierda, ellos prefieren hablar del “modelo Vietnamita”. El cambio de terminología es irrelevante. Una rosa con cualquier otro nombre huele igual de bien. ¡Y el capitalismo con cualquier otro nombre huele igual de mal!

A pesar de cómo quieran llamar a su modelo, los propósitos son claros. “El Estado no deberá planificar más la economía, sino regularla”, “La industria y la agricultura deberán abrirse a la inversión extranjera”, etc. No dudamos de las buenas intensiones de aquellos que proponen estas medidas. Pero el camino al infierno está pavimentado de buenas intenciones, y la restauración del capitalismo sería el Infierno para la gente de Cuba, aunque algunos aún no lo reconozcan.  Id.

Martin reminds his readers that Fidel Castro had strenuously rejected the Chinese model.  He also suggests that the Chinese model has reintroduced the evils of a capitalist economy within China, including the reintroduction of a capitalist wage slave economy especially among the booming factory sectors in Guandong.

Hace tiempo que Fidel Castro rechazó el “modelo Chino” porque éste era sólo otro nombre para la restauración del capitalismo. Pero incluso si consideráramos esta opción, inmediatamente se volvería claro que no puede aplicarse a Cuba. Las condiciones concretas son completamente diferentes. Cuba es una pequeña isla con una población pequeña y pocos recursos. China es un territorio vasto con más de mil millones de habitantes, muchos recursos y una base industrial poderosa.

El enorme campesinado Chino ha provisto a las empresas capitalistas chinas de una vasta reserva de mano de obra barata, que ha suministrado constantemente a las fabricas de Guandong con obreros que trabajan prácticamente bajo condiciones de esclavitud, por salarios muy bajos. La única cosa que una variante cubana podría compartir es esto último: los salarios bajos.  Id.

Martin then suggests that neither the Chinese nor the Vietnamese model is useful to understand Cuban transition  Instead, he suggests that any move away from Stalinist economic organization would move Cuba toward the neocolonialist subaltern role for dependent states that would be closer to ElSalvador or Nicaragua than to Vietnam.

Una Cuba capitalista no se asemejaría ni a China ni a Vietnam, sino más bien a El Salvador o Nicaragua después de la victoria de la contrarrevolución. Pronto se revertiría a una situación similar a la existente antes de 1959 –una de miseria, degradación y dependencia semicolonial–. E independientemente de las intenciones de aquellos responsables, las medidas que han empezado a ser implementadas, desatarán un poderoso movimiento hacia la restauración del capitalismo, que destruirá todas las conquistas de la revolución. Es el inicio de una pendiente resbaladiza, y una vez que comience será difícil de detener. Id.

 Jorge Martin, Mexico, el militante, ¿A dónde va Cuba? ¿Hacia el Capitalismo o al Socialismo? (Sept. 20, 2010)

This view, of course, is widely held within leftist circles, suggesting that the only alternative to a rigorous state sector is the movement toward subordinating domination by a global economic system designed to reduce secondary states to the status of dependent client states.  See, e.g., Larry Catá Backer,  Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order. University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006.  It also reminds us of the tenor and approach of conservative elements within the Chinese Communist Party in the late 1970s and 1980s, whose own resistance to the reforms of Deng Xiaoping were expressed in similar language, and who were reminded that neither time nor theory stood still.  See, e.g., Deng Xiaoping, The Two Whatevers Do Not Accord With Marxism (May 24, 1977). ("We cannot mechanically apply what Comrade Mao Zedong said about a particular question to another question, what he said in a particular place to another place, what he said at a particular time to another time, or what he said under particular circumstances to other circumstances.").  See, Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives and Free Market Globalism. Transnational Law & Contemporary Problems, Vol. 14, No. 1, 2005. 

With respect to the second point, Martin first faces the power of economic globalization. He suggests, perhaps rightly, that it is impossible for one small state to build socialism

Esto muestra, no de forma teórica, sino en el frio lenguaje de la economía, la imposibilidad de construir el socialismo en un solo país. Esto no fue posible en la Unión Soviética, que, después de todo, era un país que se extendía sobre un continente completo y con recursos naturales enormes. Esto es incluso menos posible en una pequeña isla a 90 millas de país imperialista más poderoso de la tierra. Jorge Martin, Kaos en la Red: ¿A dónde va Cuba? ¿Hacia el Capitalismo o al Socialismo? (Sept. 20, 2010). 

Yet Martin fails to remember that Cuba is tightly bound into just such a multi-state network in ALBA.  See, e.g., Larry Catá Backer, and Molina, Augusto, Cuba and the Construction of Alternative Global Trade Systems: ALBA and Free Trade in the Americas (May 20, 2009). University of Pennsylvania Journal of International Economic Law, Vol. 31, No. 3, 2010. And again, the fear of a Chinese model creeps into the analysis. Because China is big enough, it can use globalization to its benefit, even if it means turning toward a capitalist socialism. For Cuba, that path would mark a return to a subordinate status as a colony, not merely of more powerful states, but of globally powerful corporations.

Multinacionales de España, Canadá, Brasil, México y otras, que ya se encuentran operando en Cuba, esperan listas por este proceso, para el cual ya están posicionadas. ¿Qué es lo que realmente buscan? Materia prima, mano de obra barata y el clima de la isla, es decir, buscan la recolonización de Cuba.

Sectores importantes de la clase dominante en Estados Unidos están cuestionando actualmente si el bloqueo es la política más inteligente para socavar a la Revolución Cubana, o si más bien, están perdiendo oportunidades de inversión contra otras multinacionales de otros países. La restauración del capitalismo en Cuba arrojaría a la isla de vuelta a los 30’s, dominada por el capital extranjero, convertida en patio de recreo para turistas de los países avanzados. Pero esta no es una conclusión definitiva. Jorge Martin, Kaos en la Red: ¿A dónde va Cuba? ¿Hacia el Capitalismo o al Socialismo? (Sept. 20, 2010).

And thus a sense of desperation--a grim determination to turn backward to move forward. Yet that might well position the Cuban traditional left as the new right. "Para avanzar, ¡primero necesitamos regresar al programa de Lenin!" Id.  Yet, one wonders whether Deng Xiaoping had it right when he criticized this sort of thinking as a failure to understand the systemic and ideological basis  of the normnative framework within which the Cuban state is founded.  "Mao Zedong Thought is an ideological system. Comrade Luo Ronghuan and I struggled against Lin Biao, criticizing him for vulgarizing Mao Zedong Thought instead of viewing it as a system. When we say we should hold high the banner of Mao Zedong Thought, we mean precisely that we should study and apply Mao Zedong Thought as an ideological system." Deng Xiaoping, The Two Whatevers Do Not Accord With Marxism (May 24, 1977).  And ironically this suggests that Cuba now is very near the same point in its development that China reached in the late 1970s. 

Yet for all the ideological fireworks, the proposals, as system, might serve more as a gesture than as a workable system.  Pavel Vidal Alejandro and Omar Everleny Pérez Villanueva remind us of some substantial limitations on what appears to be a plan to open the economy.

Sin embargo, a primera vista se aprecian un número de obstáculos para el logro de dichos objetivos de los cuales pueden surgir nuevas propuestas:
1. Una gran parte de la población y especialistas coincide que la lista publicada en Granma de 178 actividades es aún demasiado precaria y reducida para poder asimilar el medio millón de desempleados estatales. Son necesarias nuevas categorías y agilizar la creación de las cooperativas no agrícolas.
2. Las categorías son demasiado específicas y ello frena la iniciativa individual. Sería preferible una lista de categorías generales que le dieran espacio a los cuentapropistas y microempresarios para proponer y perfilar una oferta de bienes y servicios diversa. Esta tiene que ser lo suficientemente flexible como para poder adecuarse a una demanda cambiante en el tiempo y heterogénea en lo local, y que es indescifrable para cualquiera que se lo proponga centralmente.
3. Las actividades permitidas son poco intensivas en conocimiento y no permiten aprovechar la inversión en educación que ha hecho el país por décadas. Muchos de los desempleados estatales serán graduados universitarios que necesitarán una opción acorde con su calificación.
4. Se permite el crédito bancario, pero el sistema financiero tiene problemas de liquidez, y habría que ver cuánto del ahorro todavía está comprometido en los créditos que se dieron para la sustitución de equipos electrodomésticos dentro de la llamada Revolución Energética. Como alternativa, se requiere agilizar y promover la colaboración internacional en el tema del microcrédito.
5. No se va a crear un mercado mayorista de insumos para las PYME´s. Hoy los mercados de insumos para las empresas estatales sufren de desabastecimiento como consecuencia de los problemas económicos y financieros del país. Por tanto, es muy difícil pensar por ahora en un apoyo estatal en este aspecto. Pero si se promueve el microcrédito con colaboración internacional, ello significaría una entrada de divisas al país que posibilitarían abrir la importación para los cuentapropistas, microempresarios y cooperativistas. En Cuba operan suficientes proveedores extranjeros que podrían abastecer un mercado de insumos para las PYME´s. Los mismos mercados mayoristas que hoy existen para las empresas estatales podrían darle entrada a las PYME´s. La doble moneda no es un problema para las PYME´s pues tiene abierta la convertibilidad del peso cubano y el peso convertible en las casas de cambio (CADECA).
6. La medida considera pocos incentivos a la legalidad. Algunas actividades, por su naturaleza, son más visibles y tendrán por obligación que legalizarse y pagar impuestos. Pero hay otras que tienen como único incentivo la incorporación a la Seguridad Social. Evidentemente, para los que ya reciben una jubilación, este no tiene ningún efecto. El microcrédito y el mercado de insumos, precisamente serían incentivos a la legalidad, pues se necesitaría estar registrado y pagar impuestos para acceder a ellos. Las PYME´s internacionalmente son apoyadas tributaria e institucionalmente. La asesoría legal, económica, informativa y otras ayudas promoverían la legalidad y el desarrollo de las mismas.
7. Falta acompañar estos cambios con leyes que creen confianza para la inversión de esfuerzos y dinero en emprendimientos privados, y que garanticen, tanto al Estado como a los ciudadanos, el cumplimiento de derechos y deberes.
8. El estancamiento económico que vive el país es otro de los obstáculos para la creación de nuevas PYME´s. La oferta de bienes y servicios de los cuentapropistas, las microempresas y las cooperativas necesita de una demanda. Con estancamiento económico y aumento del desempleo es muy difícil pensar en una demanda suficiente desde las familias o desde las empresas estatales. Una gran parte de la demanda ya hoy está cubierta con una oferta desde la ilegalidad. Pavel Vidal Alejandro and Omar Everleny Pérez Villanueva, Entre el ajuste fiscal y los cambios estructurales: Se extiende el cuentapropismo en Cuba, Supplemento Digital, Espacio Laical, Arquidiócesis de la Habana, October2010, No. 112.

Their points are well taken.  The list of 178 permitted occupations is hardly enough to employ the number of people to be released from state employment, the actual categories of permitted occupations are are too inflexible to permit entrepreneurial activity,  they are lower level occupations that do not effectively exploit the educational attainments of the population, the program does little to provide for any necessary start up financing of even the most modest individual efforts,  the contemplated activities may be difficult to produce sustainable markets much less necessary wholesale markets, it is not clear that the system will reduce corruption, the new system lacks an adequately developed legal basis (corporate, commercial, contract and tort law), and the current state of economic near collapse makes any sort of new economic enterprise risky.  It suggests both the emergency conditions that produced the economic opening in the first place, and the considerable opposition to the plan within the body of the Cuban Communist elite.  Both the lack of planning and the position of Mr. Martin discussed above suggest that the greatest danger for Cuba now is the internal dissension within the ruling elite.  Until the differences between the Fidelistas and Raulistas are resolved, and with a strong hand considering the patterns of Cuban governance, the only thing that will appear from the Island will be gesture laden half measures and little progress toward any sort of fundamental change.

Virtual Student Communities and Legal Education

One of the most interesting changes in the landscape of education  is technology driven.  I do not refer to the use of sophisticated techniques for conveying knowledge, or even changes in pedagogy (however ideologically driven).  Rather, the greatest change has been in the reduction of isolation for law students.  The rise of blogging, and other forms of virtual communities has made it much harder for students to remain isolated, either within their school, or even their country.  Students can now speak to each other and share experiences and concerns--and more importantly work toward the development of common cultures, across territorial, class, language, social and other divides.

And those who serve law students have become sensitive to the rise of these new expressions of virtual solidarity.  One site, the Criminal Justice Degrees Guide (link removed at request of the site July 2013), has produced a very useful list of ten useful blog sites for prospective or current students.  Their rationale is insightful:

Law school can be one of the toughest and most dedicated times of your life. While it can seem a bit overwhelming and prove to be a tough transition, it is important to remember that plenty of people have achieved law school before you, and plenty are also going through the same ordeals and transitions you are. Sometimes, it helps to know what to expect and to collect from former law school students some pointers for time management and advice that can help you along the way. The following blogs are dedicated to helping people get through law school.  Criminal Justice Degrees Guide, 10 Blogs to Help You Through Law School

These sorts of efforts, and the resulting communities formed through modern communications methods, has produced an interesting effect. 

On the one hand, it is now much more possible to find virtual communities of students with whom one shares an affinity or a particular sort of angst with whom one can, in solidarity, communicate and perhaps even change one's way of thinking or doing. This was evidenced by the list offered by the Criminal Justice Degrees Guide (removed after July 2013): What I Learned in Law School; Legally Challenged; Law Student; Exhibit L- A Blog on Life, Law, Learning, Laughter, Love & Leisure; 1 (year in) L: A First Year Law Student Blog; 0L to 3L: My Journey to & through Law School; Life of a Law Student; Legal Geekery; Beyond the Underground; and Vermont Law School- JD Students Law Blog.

On the other hand, it suggests that the ability of a particular law school to acculturate its students--that it to mild them into a product or type distinctive to it, is now a far harder proposition.  Law schools no longer have the sort of control over the environment or even the cultural borders within which students can be molded and assimilated into one to another sets of behaviors or attitudes.  Students are now much more the product of a shared virtual environment than of the distinctive "culture" or "ambiance" that some schools take great pride in advertising.  Indeed, one might suggest that, in the face of virtual communities, and their powerful mechanics of acculturation, schools have lost a certain amount of distinctiveness.  The recall of that distinctiveness acquires a certain element of nostalgia.  It suggests an anachronism that may be dear to the institution but whcih is understood as a charade by its students.  

But this poses a problem.  If the distinctiveness of the culture and education of a particular place was a hallmark of its status and reputation, and if that distinctiveness now is lost within larger systems of virtual communities over which an individual institution has little control, then what is left of the connection between  distinction, status, and the consequential hierarchy of "value" of a particular institution's educational offerings? The answers are, to some extent exogenous to the student experience.  To some extent they might bethought of as satisfying the need for hierarchies among academics, governments, institutions and the like as a method of controlling the size and quality of an individual institution's market share.  The quality of faculty, measured increasingly by factors that have little connection to teaching or students, retains a value for institutional status that only indirectly suggests a connection to students.  Other indicators may go to issues of comfort (the institution provides luxurious accommodation) or  influence (important officials recognize the institution), or reputation among peers (within our self referencing community my institution is held in especially high regard).

And yet, for all of its  disconnection and anachronism, distinctiveness, however measured remains a critical tool for the institution within the markets for the absorption of its students.  Employers,  judges, donors, governments, civil society actors, publishers, alumni, and other stakeholders need a relatively quick and easy measure of status.  These measures serve as sorting devices for the maximizing behavior of these other stakeholders within their own communities.  Law firm status, for example is self referentially based in part on the perceived status of its hires, and that status must be easily measured to be useful--whatever the "real" value of the measure, the acceptance of the measure is what counts.  Organizations like the Criminal Justice Degree Guide and similar organizations, then, serve an important purpose as they both provide students and other stakeholders with a listing of institutional hierarchies, and at the same time provide the student with the virtual student communities that  substantially undercut the real effect of any distinctiveness on which those hierarchies are maintained.

But all of this is well known.  Still, while institutions and their stakeholders construct their own orders of realities based on their measures, the evolving cultures of students will continue to subvert those systems, even as students continue to conform and conform their behavior to the expectations of reward and status built into the current system of measuring educational value.  It will be interesting to see how the development of these virtual communities of students continues to shape the power and effect of law schools and other institutions to actually shape and acculturate the students they teach.

The Power of Soft Law in Japan: Voluntary Codes, The Power of Non-State Based Authority and the Regulation of Business Behavior in Japan

 I have written about the evolution of corporate social responsibility in Japan.  See, Larry Catá Backer,  Japanese Approaches to Corporate Social Responsibility (企業の社会的責任) and Global Human Rights--Between the Law-State and Corporate Culture, Law at the End of the Day, September 14, 2010.  I have suggested that while the Japanese domestic legal order tends to avoid governance understood to embrace corporate social responsibility issues, corporations have increasingly adopted autonomous regulatory  frameworks that comport with substantive notions of expected conduct among major stakeholders in corporate activities.  My research Assistant Shing Kit Wong (Penn State  School of International Affairs Masters candidate '11) recently summarized it as follows:

Corporate Law (会社法 ) in Japan is established under the Commercial Laws ( 商法). The Corporate Law classifies four types of corporations: Corporation, General Partnership Company, Limited Partnership, and Limited Liability Company. It also establishes the duties of each type of corporation and to ensure proper operations.
Companies Law Enforcement Ordinance (会社法施行規則) is one of the regulations under the Corporate Law in Japan. The objective of the ordinance matters as assigned by the Companies Law and matters for execution of the Law when necessary. It consists of seven books: the definition of terms in the Corporate Law, information provided in the document and each member company, bonds, reorganization, merger, demerger, transfer of shares and share exchange, regulations for foreign company, and miscellaneous such as litigation, and registration. There is a large portion of the ordinance regarding share transfers and bond administrator, and the procedures for new establishment for different type of stock companies.
However, the content of corporate social responsibilities such as corporate philanthropy, product excellence, human rights are not mentioned in the Ordinance nor in any of the Corporate Laws. Such content is only in the Charter of Corporate Behavior ( 企業行動憲章) established by the Japanese Business Federation ( 日本経済団体連合会).
Reference
会社法
会社法施行規則 (Company Law Enforcement)

In Japan, the Japan Business Federation Charter of Corporate Behavior is influential. My Research Assistant Shing Kit Wong has provided a very nice summary of that "soft law" framework in Shing Kit Wong, "Japanese Charter of Corporate Behavior" (Sept. 2010) reproduced here:

The Charter of Corporate Behavior ( ) is established by the Japanese Business Federation ( ). The objective of the federation is to accelerate the growth of both Japanese and global economy and to strengthen the corporations in order to transform the Japanese economy into a system that is sustainable. In order to achieve such society, corporations are essential to recognize their social responsibility beyond legal compliance, and actively working to resolve various issues. The charter has conducted a review of guidance regarding corporate social responsibility. The main idea of the charter states that the existing purpose of corporations is contributive to the society through fair competition, responsible economic and social development with creation of employment. Corporations should operate base on respecting human rights, laws and regulations, while compliance with the international rules for the creation of a sustainable society, and keeping high ethical standards fulfilling responsibilities. There are ten principles in the Charter of Corporate Behavior, focusing on the following area: customer satisfaction, moral operational behavior, environmental protection and social contrition, human rights, and implementation of the charter.

In September 2010, the federation revised and published a new version of the charter. Compare to the last version, the new charter emphasizes on various revised legal systems, the environmental changes over the domestic and international corporations, and most significantly, globalization of corporate activities with respect to the international standard ISO 26000 corporate social responsibility, which will be released by the International Organization for Standardization (ISO) in the same year. ISO 26000 will add value to existing initiatives for social responsibility by providing harmonized, globally relevant guidance based on international consensus among expert representatives of the main stakeholder groups and so encourage the implementation of best practice in social responsibility worldwide. Such idea is emphasized in the eighth principle of the revised charter, which will be discussed later on.

The first three principles focus on earning the confidence of customers and consumers by providing safe and beneficial goods to the society in additional with the development and provision in a safe and responsible manner. Meanwhile, Corporations must promote fair, transparent, and free competition, as well as develop a system necessary to ensure compliance with export control laws and regulations on security. They must also ensure proper relationships and contacts with government agencies and political bodies. On the other hand, corporations shall engage in communication with the society as well as to their shareholders including active and fair disclosure of corporate information while taking necessary measures to protect personal data and customer related information.

The fourth principle states that corporations must respect diversity, individuality and differences of their employees, and to promote safe and comfortable workplaces, plus ensuring the mental and physical well-being of their employees. Employers must comply with labor laws and regulation in labor negotiations with sincere response. Employees, on the other hand, have the right to freely choose their representatives or bargain. Moreover, child labor and forced labor is strictly disallowed.

The fifth principles of the charter focus on environmental issues. It emphasizes that environmental problems is a common issue for all people, and it is an essential requirement for corporations to act voluntarily. The charter urges to build a global low carbon and recycling oriented society. It also gives emphasis to promote conservation and sustainable use of biodiversity. The fifth principle is revised in order to increase the awareness of environmental issues, and position corporate commitment to those issues as an essential requirement.

On the other hand, the sixth principle of the Charter focuses on social contribution. Corporations shall actively engage in philanthropic activities and other activities of social benefit. It is essential to clarify the basic principles of social action to establish a corporate structure and then taking into account of the corporate management philosophy while identifying philanthropic activities as priority issues and maximizing resources on such activities. In the same contrast, the seventh principle ensures the social stability and emphasizes that corporations must thoroughly cut off any relationship and oppose with organizations that involved illegal activities or unacceptable standards of responsible social behavior, or any anti-social forces and organizations that threaten civil order and safety. The revision of the seventh principle is in response to the changes in the tactics of anti-social subject, and urges to enforce relevant blockage to anti-social forces.

As mentioned earlier, the eighth principle of the charter has the most revision in order to emphasize globalization in business activities. It urges corporations to comply with local laws of each nation as the corporate own international standards. Corporations must also observe and respect all international codes of conduct and regulation including human rights, as well as respecting the cultures and customs of each country and region-based activities in order to promote mutual trust with stakeholders, and that corporations must operate with the consideration in the interest of the stakeholders. In addition, corporations ought to promote localization of management and strive to improve the working environment that is appropriate to the environment and cultures of each country or region while having an interest in social responsibility initiatives in partner nations and regions to provide assistance for improvement if necessary. Furthermore, it strongly restricts corporations to receive gifts or commission for the purpose of illicit gain. The revision of this principle is to distinguish between domestic and international in response to globalization of business activities with respect to the ISO 26000 corporate social responsibilities including respect for human rights, a growing interest in international issues.

The ninth and tenth principles focus on the implementation of the charter, and the consequences and actions corporations must take if the charter is violated. Top management of the corporations shall take all necessary action in order to raise awareness in their corporation and inform their group companies and business partners of their responsibility, as well as heeding the voice of all their stakeholders, and promote the development and implementation of systems that will contribute to the achievement of business ethics. In addition, top management shall maximize leadership to ensure the corporate management philosophy with a clear code of conduct and promote corporate social responsibilities. If any of the principles in the charter is violated, top management must investigate the cause of the violation and develop reforms to prevent recurrence. Such information of actions for reform shall be made publicly available. Afterward, the prompt public disclosure of information regarding the incident, responsibility for the event, and its effects shall be clarified, and disciplinary action shall be taken. The revision emphasizes the corporate social responsibilities and business ethics being the promotion of work as a group of companies, with the encouragement to business partners including the supply chain.

The Charter of Corporate Behavior in Japan is very much resemblance to the United National Global Compact. The UN Global Compact poses corporations to embrace, support and enact a set of core values in the areas of human rights, labor standards, the environment and anticorruption.

For instance, the fourth principle of the Charter emphasizes on human rights. Such principle is reference to the United National Global Compact’s human rights and labor standard, in which businesses should support and respect the protection of internationally proclaimed human rights and make sure they are not complicit in human rights abuses. In addition, according to the labor standard principle, business shall uphold the freedom of association and the effective recognition of the right to collective bargaining eliminate all forms of forced and compulsory labor as well as discrimination in respect of employment and child labor. Both the charter and Global Compact have strong emphasis on corporations consisting important roles in supporting and respecting human rights, and that they should also support the enjoyment of human rights while advancing in the business.

The Global Compact's principles regarding the environment can also be found in the fifth principle of the Charter, in which businesses should support a precautionary approach to environmental challenges, undertake initiatives to promote greater environmental responsibility, and encourage the development and diffusion of environmentally friendly technologies. Similar to the charter, the Global Compact urges the development of sustainability targets and economic, environmental, social indicators, as well as establishes a sustainable production and consumption program to take the corporations beyond compliance in the long-term, plus incorporating sustainability principles into business practices.

The anti-corruption principle in the Global Compact promotes businesses shall work against corruption in all its forms, including extortion and bribery, and that corporations shall introduce anti-corruption policies and programs within their organizations and their business operations. When corruption occurs, it is essential to report the work against corruption in the annual Communication on Progress, and share experiences through the submission of examples and case stories. In contrast, the Charter of Corporate Behavior urges corporations to promote fair, transparent, and free competition. In such, business activities have to be ensured fair and transparent domestically or internationally. It is restricted that customers, suppliers, business partners and other donors transfer gifts or money for the purpose of maintaining unfair advantage or preferential treatment. The principle also applies to Japanese transnational corporations abroad, even if no laws or guidelines are set forth by the foreign governments.

In sum, corporate social responsibility is conducted in the Charter of Corporate Behavior established by the Japanese Business Federation. The charter was revised in September 2010 in response to the international standard ISO 26000 corporate social responsibilities, putting a detailed emphasis on business activities in globalization. All the principles in the United Nations Global Compact including human right, labor, environmental issues, and anti- corruption are widely covered in the charter as well.

References

企業行動憲章 実行の手引き（第６版） 9.14.2010

企業行動憲章」 新旧対照表 9.14.2010

企業行動憲章 改定のポイント 9.14.2010

企業倫理徹底のお願い

International Organization for Standardization, Guide of development ISO 26000, 9.5.2008

International Organization for Standardization, ISO and social responsibility, 2008
United Nation Global Impact

I have also suggested the way in which both public and private investment has become more politically charged, and increasingly able to affect corporate behavior through their participation in markets. See, Backer, Larry Catá, Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment (May 4, 2009). Georgetown Journal of International Law, Vol. 41, No. 2, 2009. Investors, like consumers and other stakeholders, have increasingly looke

d beyond the state for a normative framework within which non-state based forms of corporate governance regimes can be created, and enforced through the market based decisions of these stakeholders. Cf. Backer, Larry Catá, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations. Georgetown Journal of International Law, Vol. 39, 2008. James Brumm recently put this notion well in the Japanese context:

In Japan, in contrast, it is my impression that CSR and corporate governance are dealt with as two aspects of the same issue – how do corporations behave responsibly to society and the various stakeholders. In Japan, the recent emphasis on corporate governance has been on compliance systems development and on internal audit. Perhaps in some ways this is due to the fact that boards of directors are largely staffed by inside directors and corporate governance is carried out by executive officers. If and when boards become more independent, corporate governance may be handled in a different way. Still I think it will continue to be looked at as part of CSR, i.e. how does a company deal with its external stakeholders and how does it build and protect its reputation. James Brumm, "The Japanese Perspective," in Corporate social responsibility: the corporate governance of the 21st century 337-346 (Ramon Mullerat, Daniel Brennan, eds., Kluwer Law International 2005), at 345-46.

Brumm notes that CSR is very hot now in Japan, and perhaps more importantly, has becomean object of serious press coverage. " CSR has been given wide coverage by the press and the Nikkei Shimbun (the Japanese equivalent of the Wall Street Journal or the Financial Times) has organized conferences on CSR and has established a CSR Project. " Id.

What brings all of those forces together is an organizing framework through which a regulatory framework autonomous of any domestic legal order is developed to suit the governance standards of critical stakeholders in corporate activity.  One such organizing framework is the system for corporate behavior rules developed by the Organization for Economic Cooperation and Development.  The OECD's Guidelines for Multinational Corporations  provides a soft law substantive framework that can be invoked against Japanese companies through National Contact Points established as part of Japan's obligations as an OECD member.  See, OECD多国籍企業行動指針.  In 2008 Japan "established a consultative body comprised of representatives from the Japanese business and labour communities." OECD, Investment Division, Directorate for Financial and Enterprise Affairs, 2009 Annual Meeting of the National Contact Points, Report by the Chair, 16-17 July 2009, at 16.  In addition "With a view to promoting corporate responsibility and the OECD Guidelines, the Japanese NCP established the co-operation with the local office of UN Global Compact, the local office of ILO in Tokyo and an NGO engaging in the promotion of Global Reporting Initiative (GRI). As a result, in March 2008, the Japanese NCP made a presentation to Japanese CSR business representatives at a seminar organised by the local office of UN Global Compact. The presentation covered NCP activities as well as the Guidelines."  Id., at 20.  But the Japanese NCP has not proven to be particularly aggressive in embracing its mandate.  See, e.g., OECD Watch, Protest Toyota Campaign vs. Toyota, 4 arch 2004 (action involving labor issues in the Philippines, Japanese NCP refused to proceed during pendancy of related legal action in a complaint that has extended almost a decade).


Another that is likely to become a powerful focus of these governance systems is the Protect-Respect-Remedy framework developed  by John Ruggie in his role as United Nations Special Representative to the Secretary General for Business and Human Rights.  

[The framework] is based on three complementary and interdependent pillars: the state duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights; and the need for greater access by victims to effective remedy, judicial and non-judicial. The Human Rights Council was unanimous in welcoming the framework, and extended my mandate by three years with the task of operationalizing it (A/HRC/RES/8/7). This marked the first time the Council or its predecessor, the Commission, had taken a policy position on business and human rights. John Ruggie, Introduction by the Special Representative, July 2009.

"The Business & Human Rights Resource Centre created a portal at John Ruggie’s request, to facilitate communication and sharing of materials related to the mandate. All materials . . . .  are now available on the portal."  Business and Human Rights, U.N. Special Representative on Business and Human Rights.  The Portal Site includes all materials published by the Special Representative and his team, as well as submissions to his mandate and commentaries on his work and is made possible by a grant from the Swiss Federal Department of Foreign Affairs. 

When all of these forces converge, it is possible to discern the effectiveness of governance of business behavior beyond the state.  That is, it is possible to begin to sketch the normative parameters and mechanics of governance systems that bind business without direct resort to the law of any state.  A recent example suggests the direction of these movements:

Investor Pressure Moves Toyota Affiliate to Divest from Joint Venture with Burmese Regime
Adam M. Kanzer, Esq.
Managing Director & General Counsel
Domini Social Investments LLC

Toyota states that it shares investor concerns about the human rights situation in Burma

In a letter to a group of investors, Toyota Motor North America confirmed that its major trading partner Toyota Tsusho (TTC) has divested its ownership stake in Myanmar Suzuki Motor. TTC jointly controlled the vehicle assembly plant with the Burmese military regime and Suzuki Motor Corp. Toyota’s announcement followed three years of dialogue with a coalition of investors, including Trillium Asset Management Corporation (“Trillium”), Domini Social Investments (“Domini”), Boston Common Asset Management and the Interfaith Center on Corporate Responsibility.

In December 2006, research by Domini Social Investments uncovered an equity partnership between Toyota Tsusho and the Burmese military regime. Investors delivered a letter shortly thereafter to Toyota Motor’s Chairman, Fujio Cho, raising concerns about the company’s business ties to the repressive regime. Toyota Motor responded by confirming it had asked Toyota Tsusho to reconsider its business activities out of concern for the current environment in Burma.

In an August 12, 2010 letter to the investors, Group Vice President James Wiseman of Toyota Motor North America wrote, “[W]e are pleased to report to you that as of June 2010, TTC had sold all of its shares in its Myanmar Suzuki joint venture… TTC is now fully divested from its joint venture operations in Burma.”

Holding over 20 percent of Toyota Tsusho’s shares, Toyota Motor is Toyota Tsusho’s largest shareholder. Toyota Tsusho partnered with the Burmese government to sell motorcycles, light trucks and cars. The Burmese government, which stands accused of systematic violations of human rights and crimes against humanity, tightly restricts the domestic market for these vehicles to its wealthiest citizens and those with military connections. Burma ranks among the poorest countries in the world, with the majority of the Burmese population living in poverty.

“We commend Toyota and the role it played in persuading its affiliate to reconsider its ties to the Burmese military rulers. As long as human suffering persists in Burma at the hands of the junta, companies cannot ignore their responsibility to insure their or their affiliate operations do not aid the regime’s offenses,” commented Susan Baker, a research analyst at Trillium who studies the impact of environmental, social and governance (ESG) factors upon investment performance.  “Any link to building vehicles to aid the military government’s misrule and brutal suppression of its own people raises moral and reputational issues that present risks to the long term value of the Toyota brand,”she continued.

“Toyota Motor has taken an important step to acknowledge and address human rights concerns within its sphere of influence,” said Shin Furuya, Lead Research Analyst, Global, for Domini. Although Toyota Tsusho has ended its only known direct joint venture with the Burmese government, it continues involvement in other operations in Burma including agricultural and apparel production, which could have significant human rights impacts.

“Toyota Motor and its group needs to continue to address these concerns whether the particular operations have direct business ties with the military regime or not. All companies operating in Burma need to review their relationships with their trading partners and carefully consider whether their company’s operations could directly or indirectly contribute to human rights violations,” he continued. Domini has consistently excluded Toyota Motor from its mutual fund portfolios, partially due to its involvement in Burma.

“The corporate responsibility to respect human rights is becoming the international norm,” commented Rev. David M. Schilling, director of human rights, Interfaith Center on Corporate Responsibility. “The UN Human Rights Council adopted recommendations of the UN Special Representative for Business and Human Rights in June 2008, including the commitment that companies need to demonstrate respect for human rights, not just adopt statements. Toyota’s action to influence its affiliate to divest from Myanmar Suzuki Motor is a good example of its human rights commitment.”

Toyota’s formal acknowledgment of divestment came a day before the Burmese government announced its first elections in 20 years. News of the election drew widespread criticism as it imposes many restrictions, including barring Aung San Suu Kyi, imprisoned leader of the National League for Democracy and winner of the 1990 elections, from participating.

The investor group will continue to encourage Toyota Motor to address these issues and to develop human rights risk and impact assessment tools, particularly in countries considered to have substantial human rights risks such as Burma and Sudan.

Trillium Asset Management Corporation is a Boston-based, independent investment management firm devoted exclusively to sustainable and responsible investing.

Domini Social Investments is a New York City-based investment firm specializing exclusively in socially responsible investing. Domini manages funds for individual and institutional investors who wish to integrate social and environmental standards into their investment decisions.

Interfaith Center for Corporate Responsibility (ICCR) has been a leader of the corporate social responsibility movement for nearly 40 years. ICCR's membership is an association of 275 faith-based institutional investors, including national denominations, religious communities, pension funds, foundations, hospital corporations, economic development funds, asset management companies, colleges, and unions. Each year ICCR-member religious institutional investors sponsor over 200 shareholder resolutions on major social and environmental issues.

This again points to the reality of what John Ruggie suggested as the basic governance polycentricity inherent in global economic activity conducted within a framework of territorially limited states and freely moving capital, operations and investment activity in which corporations, investors, and civil society elements can interact  in ways that can produce harmonized approaches to behavior  over the whole of their operations and across any number of states.   Though the state remains a critically important actor in developing basic normative structures for business conduct, the state is not the only or perhaps the greatest agent, of harmonizing  emerging transnational standards of corporate behavior about which consensus is emerging.  

Introducing a New Essay Site on Chinese Law by Zhiwei Tong

My colleague Zhiwei Tong has recently started an excellent essay site which those of you with interests in Chinese law and politics might find useful:

	童之伟 [收藏本博客]

The essays are all in Chinese.  For those who do not read Chinese, a variety of translation services can provide a quick if crude translation into English.

Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. He has published a number of books, including,
1. Constitutional Law ，Tsinghua University Press,2008;
2. Forms of State Structure, Wuhan University Press, 1997;
3. Faquan and Constitutional government, Shandong People’s Publishing House, 2001;
4. Textbook on Local Governments (co-author), High Education Press, 1994;
5.Theory And Practice of Human Rights (co-author), Wuhan University Press, 1995;
6. Textbook on Constitutional Law (co-author), Law Press, 1997;
7. General Theory of Civil Servants (co-author), Wuhan University Press, 1997;
8. Hot Topics on Human Rights and Contemporary Constitutionalism (co-author), Kunlun Press, 2001.

He has also published a number of articles in English and Chinese, most recently:
1. A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case, SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:nnn; 4/12/2010
2.An Interpretation of “the Court Adjudicates accordin to Law”, China Legal Science，no.6,2009.
3.The Application of Constitution Should Abide by the Ways Provided by Constitution Itself, China Legal Science，no.6, 2008.
4. Prospects for the Near Future of the Constitutional System in China，Modern Law Science，no.3,2008. 5. On Chinese Constitutional Law Teaching and Research，Science of Law，no.6, 2007.

A reecent post suggests the focus of Professor Tong's site:

中央应派调查组调查重庆刑讯逼供的情况

童之伟

【按：经最高人民法院核准，樊奇杭已于2010年9月26日 被执行死刑。但从已披露的情况看，最高院对朱明勇律师提交的看起来足以证明樊奇杭存在冤情的证据并未正视和回应，这些证据包括樊奇杭遭受残酷刑讯的音像和 “樊奇杭请樊奇杭吃饭”之内的荒唐证词。最高院死刑复核给太多的法律人留下了走过场、草菅人命、对人的生命权的尊重还不如封建时代和中世纪的印象。最高院 进行死刑复核如此草率，令人百思不得其解！稍有正义感的法律人对这种情形内心没有不失望、不愤怒的。

很多迹象表明，重庆警方违法办案、刑讯逼供，检察院、法院放弃宪定的相互制约职责的情况很普遍、规模很大，所以，尽管樊奇杭已死，中央还是有必要派员调查重庆违宪违法的情况，不能给全国上上下下留下中央纵容重庆违宪违法的印象。】

最近看了北京朱明勇律师公布在网上的关于“重庆打黑第一案”主要被告之一樊奇杭被残酷刑讯逼供的多媒体视频资料，这些视频资料出来不久即被删除，但已经受到海内外广泛关注。另外，人们还能在网上读到被重庆两审法院判处死刑的被告樊奇杭给最高院及其院长王胜俊先生的亲笔信的扫描版，题目叫做《我的生命谁做主——来自监狱的血书》。从这些音像资料中，人们可以直观地感受到四个方面的情况：

1.录音和记录声音的字幕显示，重庆警方专案组人员在被告庭审阶段行为的非法和强横。人们可以听到，朱明勇律师和李 庄律师去会见被告樊奇杭等人，在看守所门口和侦办此案的警方专案组人员发生了激烈争吵，其对话内容表明：在侦查和审查起诉阶段，警方剥夺了被告获得辩护或 律师帮助的权利；检方和法院接触被告的过程一刻也没有离开侦查方专案组人员的监视；专案组违反刑诉法和律师法，侵犯被告和律师合法权利，同时他们妨碍检察 院、法院依宪法和法律独立行使职权的情况极为明显。

2.录像清楚地展示了被告樊奇杭关于自己遭受残酷刑讯逼供、生不如死的自述，他的讲述配以手腕部、头部和舌部伤痕清晰可见的照片，让人没法不相信他遭受了惨无人道的刑讯。在铁护栏后，被告樊奇杭诉说：警方办案人员经常将其铐上手铐吊起来脚尖点地、最多连续吊5天，手铐嵌进肉里警察一个多小时才取出来；被手铐脚镣相连弯腰90度站立10多天不让睡觉；不给饭吃最多达5天之久；不堪折磨的他两次撞墙自杀，曾咬下一截舌尖自残；被打昏后办案人员泼凉水浇醒再上刑逼取口供，等等。

我发现，网上有人用“令人发指，惨无人道的刑讯逼供”来回应这些音像，还有网文指有关警员犯下了“灭绝人性的刑讯逼供罪行。”

3.从视频展示的案情看，法院认定樊奇杭指使张孟军杀人的证据漏洞百出、自相矛盾，有的证据属于疑似在严酷刑讯下取得的口供。

4.电子扫描版显示，被告樊奇杭在给最高院及其院长王胜俊先生的亲笔信（《我的生命谁做主——来自监狱的血书》）中，对自己遭受残酷刑讯逼取口供的陈述字字血声声泪，不是血书却胜似血书。正像陈光武律师所言，“近期从重庆监狱传出的樊奇杭的书信，是给最高法院领导的。不知最高法院领导能否最终看到。这封书信未必是血写的，但字里行间却弥漫浓浓的血腥气味，篇里章内遍布着血迹斑斑。”

据我所知，所有看过或听说过朱明勇律师上 述多媒体材料的公民，都对重庆警方某些人员以“打黑除恶”的名义对被告进行惨无人道的刑讯逼供行为抱有极大的义愤和反感，并且怀疑这在重庆打黑运动中是系 统的、普遍存在的现象中的一个很小的部分。重庆警方有关人员的行为的残忍程度被有的网文称为“世界之最”，对这种形容，我并不觉得夸张。

所以，我呼吁，请中央领导层充分关注重庆警方人员参与刑讯逼供的情况，尽快组成有权威的联合调查组调查重庆警方有关人员在打黑运动中的刑讯逼供罪嫌。我以为，此举十分必要，其必要性表现在如下方面：

1.刑讯逼供是严重的违法犯罪行为，这种违法犯罪行为一旦在运动式执法过程中蔓延开来，对法制的破坏力和对公民基本权利的侵害程度都会非常大，若没有中央的监督、检查，单靠地方领导层的法制自觉，是不大可能有效遏止的。

2.宪 法、法律是中国共产党的主张与人民意志的统一，在运动式执法背景下违宪违法办案，其过程和后果违背党的主张、背离人民意志的规模会比较大，涉及的层级会比 较高，非中央出面不足以纠正有关偏向。在我国，掌握公权力者违宪违法从来都有神圣无比和冠冕堂皇的理由、事由，但无论多么神圣和冠冕堂皇的理由，都不足以 对抗中国共产党的主张与人民意志相统一的宪法、法律。但宪法、法律在地方的充分事实离不开中央的适时监督。

3.刑 讯逼供是公权力对公民人身权利的直接侵犯，在其治下的每一个公民都是它潜在的侵害对象，因此，与一般性黑社会组织犯罪相比，掌握和运用公权力（尤其是警察 权）的组织和个人犯罪，对人身权利和自由的侵害程度会更深、规模会更大、更难以抗拒。在新中国历史上，个人和黑恶团体犯罪对公民基本权利造成的侵害，在规 模和程度上都远远小于公权力主体违宪违法对个人和社会造成的侵害。

所 以，如果当政者没有忘记历史，他们就没有理由片面强调打击个人和由个人组成的团伙针对他人和社会的犯罪，就没有理由不花更多时间、更多人力物力遏制掌握公 权力尤其是警察权的组织及其人员针对个人和社会的犯罪。在当今中国，刑讯逼供是掌握公权力尤其是掌握警察权的组织针对公民个人和社会犯罪的突出形式，当政 者必须下决心加以遏止。

4.由 中央派人查清重庆警方有关人员是否刑讯逼供，有助于消除国人怀疑重庆以黑打黑和违宪违法“黑打”的不良印象。一段时期以来，社会上批评重庆方面违宪违法 “黑打”的言论已经很多，朱明勇律师向海内外公布的上述多媒体资料，更无异于在据实指控侦办“重庆打黑第一案”的专案组是以犯罪手段侦办犯罪嫌疑人，有刑 讯逼供犯罪嫌疑。查清真相，还事情本来面目，对各方都有好处，有问题可及时加以纠正，没有问题则可证明办案人员的清白。

5.中央派人调查多媒体音像曝光的重庆警方有关人员刑讯逼供情事并做相应处置，有利于恢复人们对社会主义法制和法治的信心。有网民看了朱律师的多媒体资料后在网上留言道：“如冤情属实，这是什么世道？”在我所知的范围内，似乎看过这个音像材料的人都有类似的观感。由此人们不免联想到，近年来关于我国法制建设出现倒退趋势的言论不绝于耳，几天前还有律师兼学者的陈有西先生在网文中表示，“希望中央主政司法的高层人士能够真正看到问题，迅速改变这种新中国建国以来未有之乱像。”依我看，说现在法制方面出现了“新中国建国以来未有之乱像”，虽然可能把问题看得过于严重了些，但若说我国法制出现了20多年来未有之乱像，则应该算是实事求是的。重庆打黑以来发生的违宪违法情事，加剧了人们对我国法制和法治前途的担忧。查清和处理好多媒体影像曝光的重庆警方刑讯逼供真相，能降低人们的这种担忧。

6.消除人们心目中关于重庆方面违宪违法甚至对嫌犯进行严酷刑讯等种种做法受到中央认可或纵容的错误印象，维护中央的声誉。朱明勇律师在公布其多媒体视频资料时所做的说明中透露，除严重刑讯逼供外，“重庆打黑第一案”庭审呈现了大量违法的情事：“197名证人无一出庭”；“117本案卷（原来报道109本， 不知何时又增加了）公诉人紧紧抱在怀里不敢拿出（仅出示部分枪支照片和鉴定结论）”；“所有物证无一出示辨认”；“全部被告人供述无一出示辨认”；“全部 证人证言无一出示（七天之中经过强烈申请只看到一份。结果还发现这份证言叫做‘讯问笔录’，取证地点在某羁押场所，取证时间是在审查起诉期间。法律规定审 查起诉阶段侦查活动已经结束，在没有退回补充侦查时，公安机关无权开展侦查活动”；“全部质证就是公诉人连珠炮似地摘录或者概括不知道是哪里的也无法核实 的所谓证据。”我个人在《让宪法的阳光照亮刑事法适用之路——就文强死刑复核等问题向有关最高恭呈宪法意见》一文中，也结合具体案件的办理指出了重庆方面的诸多违宪违法问题。

但是，人们没有忘记，国家公安部门领导前往重庆调研（调研其实就是在办公室听汇报的代名词），媒体报道他充分肯定重庆打黑“稳准狠”， 还有要在全国推广重庆打黑的经验和做法的说法。这让人直观地感到，中央似乎是要以重庆为样板，全面肯定重庆方面违宪违法的各种做法。不过，我绝对不相信这 些说法准确反映了中央的意思！但是，要正视听，还得中央通过派遣调查组对具体实例进行调查而不是在办公室“调研”的方式来了解下边的实情。

7.即 使仅仅从维护国家的面子、执政党的面子、社会主义法制的面子着眼，中央也应该对重庆警方人员刑讯逼供的罪嫌进行调查。中华民族是个讲面子的民族。在当代世 界，在文明社会，对于任何一个国家、政党、政府而言，最有面子的事是人道、文明、守法、尊重人权，最没有面子的事是不人道、残忍野蛮、破坏法制、践踏人 权。违宪违法和残酷刑讯逼供在重庆的 打黑运动中似乎已成普遍性现象，种种迹象表明，朱律师公布的警方刑讯逼视频，所反映的情况的只不过是重庆打黑运动中违法办案行为的冰山之一角。毋容置疑， 这些存在的弊端让我党我国和我们社会主义法制很没有面子。中央应该通过调查和处置这些弊端来正面表明自己的立场、挽回面子。

最后要说的是，朱明勇律师公布多媒体视频资料，显然是出于不得已，此举从民众的立场看，不过是对重庆警方办案合法性的一种舆论监督。如果有关办案人员没有违法犯罪，他们应不必害怕；如果他们的行为涉嫌违法犯罪，主政者正好可借助舆论监督对犯嫌做出相应处置，完全没有必要封网站、删帖子。封网站删帖子让人感到主事者心虚无底气。在我看来，“陈有西学术网”是一个能很好体现党的方针政策和十七大精神的网站，不应该封锁，朱明勇律师公布的多媒体视频资料也有利于促进重庆警方守宪守法，同时也没有什么政治“敏感性”，主事者应该让它们正常运作和发挥功能。

重庆打黑违法违宪的问题太明显，重庆警方人员涉嫌刑讯逼供的规模较大，中央应下决心排除阻力进行调查。陈有西先生说得不错：“随 着一个个涉黑案的开庭，重庆打黑侦查中的刑讯问题，现在已经越来越让人看明白了。”我完全支持陈先生这样的主张：“全国人大、全国政协、中央政法委、公安 部、司法部、最高法院，最高检察院、全国律师协会，你们应该睁开眼睛了。应该说句公道话了。难道这样的社情汹汹民意汹汹，这样持久的法学界、新闻界、律师 界的呼吁，都请不动你们一个调查组吗？中国要依法治国，这样的情况下应当怎么治，是真治还是假治，难道还不明白吗？”

童之伟，2010年8月1日于上海

Manuél Delmestro on Judicial Reform in China

The Association of Chinese Professors of the Social Sciences in the United States is holding its 16th Annual Conference at Harvard University: Engaging China: Sino-American Relations, Sustainable Development, and Beyond.

ACPSS (美国华人人文社科教授协会) is an academic organization founded in 1995 with its first annual international conference held at the University of Maryland at College Park. Since its inception, the ACPSS has adhered to its mission of vigorously promoting innovative idea exchange and engaging itself in research projects on China studies involving interdisciplinary collaboration among interested scholars across the world. The Harvard-Yenching Institute (HYI) was founded in 1928 with funding provided solely from the estate of Charles M. Hall "to conduct and provide research, instruction and publication in the culture of China and/or elsewhere in Continental Asia”. The institute is an independent foundation dedicated to advancing higher education in Asia in the humanities and social sciences, with special attention to the study of Asian culture. Today, HYI is one of the top research institutes focusing on China and other Asia countries. Harvard Kennedy School Ash Center was established in 2003. It advances excellence in governance and strengthens democratic institutions worldwide. Through its research, education, international programs and government innovations awards, the Center fosters creative and effective government problem solving and serves as a catalyst for addressing many of the most pressing needs of the world’s citizens. The mission of United Societies of China Studies (USCS) is primarily that of promoting academic information sharing, consultation, and coordinated projects of China studies among the member organizations in the United States as well as around the world. The USCS is composed of 5 member organizations (Association of Chinese Professors in Social Sciences, Chinese Communication Association, Chinese Historians in the United States, Global Forum of Chinese Political Scientists, Association for Information Systems) and 5 affiliated institutions (Center for Asian Studies at the American University, Center for Asian Democracy at the University of Louisville, Center for International Strategic Studies at Peking University, School of International Studies at the People University of China, China Program at the Carter Center)

The theme of the conference, “Engaging China: Sino-American Relations, Sustainable Development, and Beyond”, is aimed to bring together a broad cross-discipline of scholars from the field of social sciences and humanities, to address the world’s most important, yet rather complex and multi-faceted, bilateral relationship of the 21st century that not only affects these two countries in almost every aspect of their domestic and diplomatic affairs but also the world as a whole in its sustainable economic, political, cultural, and environmental developments.

ACPSS, Conference website.

Manuél Delmestro of Fujen University, Taiwan will be presenting a very interesting paper on the relationship between the Chinese Communist Party and judicial reform within China.  A summary of that paper is provided below.

Holding the Balance Properly: Environment, Strictures and Hypotheses for a
Judicial Reform in China

Manuél E. Delmestro
Fujen University (Taiwan), Dep.t of Italian Language, Assistant Professor
National Taiwan University, Dep.t of Foreign Languages, Assistant Professor

- Virtually every step of political and legal reform in the People’s Republic of China (PRC) is made under the watchful and careful eye of the Communist Party of China (CPC, the Party), and those in the field of judicial reform are among the most closely watched and measured.

The notion of Party leadership over governance is known; less apparent are the actual ways through which that guidance is exerted over the formally independent judicial branch of government, simultaneously managing to uphold the ever-advertised slogan of “Ruling the Country in Accordance with the Law”. Behind and beyond the framework of Supreme People’s Court (SPC), Supreme People’s Procuratorate (SPP) and lower levels lies a system of Party Political-Legal Affairs Committees (PLC) that oversees the Judiciary at large and public security agencies. The pinnacle of this system is the Central Political-Legal Affairs Committee (CPLC), a panel presided over by a member of the all-powerful Politburo Standing Committee (PBSC).

- This paper provides an outline of the PLC apparatus and its collocation within the all-catching guikou guanli managing system of the PRC and tries to clarify how the political principles and practices of Democratic Centralism, Dual Dependence, Nomenklatura etc impact the development and the often advocated reform of the Judiciary and the Legal System in general.

How could this system be conceivably reformed in the foreseeable mid-term? What political and institutional arrangements should or could be devised?

Ruminations 32: Knowledge Governance, the Governance of Knowledge and the Politics of Information as a Behavior Management Technique

 (Pix (c) Larry Catá Backer)

When is a stone a unit of value more precious than gold?  When a society teaches its community to see the value of each, their value-reality, in particular ways. When is the form of a book more valuable than the text contained in its pages, its functional value?  When governance becomes a function of disclosure and transparency regimes, when the management of populations is grounded on the marshaling of “facts” to produce judgment for consequentialist aims, an understanding of the possibilities for perversion of knowledge production systems, and their utility in preserving (as well as upsetting) power hierarchies becomes critically important.

OECD Guidelines for Multinational Enterprises – What every international lawyer needs to know about possible upcoming changes

I recently wrote about the International Bar Association Corporate Social Responsibility Section's excellent program: Corporate Social Responsibility at the International Bar Association Annual Meeting in Vancouver, Canada.

John Sherman and Craig Phillips, Co-Chairs of the International Bar Association corporate Social Responsibility Committee organized the panel, OECD Guidelines for Multinational Enterprises – what every international lawyer needs to know about possible upcoming changes, on which I participated. The panel description gives a good idea of the scope of discussion:

Are the OECD Guidelines for Multinational Enterprises still relevant to today’s global economy? Do they provide adequate guidance to companies? Does their complaint process work? What are the proposals for their reform? This session will attempt to answer these and other questions.

The Guidelines were last revised in 2001, and cover a wide range of business conduct in such areas as disclosure, employment, environment, anti-corruption, consumer interest, science and technology, competition and taxation. They are now being scrutinised for changes in response to concerns that they are outdated and don’t reflect the concerns of the current global economy in a variety of areas, including human rights, supply chains, distance selling, climate change, and anti-corruption, among others. In addition, National Contact Points (NCPs) – appointed in each OECD country to resolve allegations that companies have violated the Guidelines – have been criticised as underutilised and ineffective.

An IBA Working Group has submitted comments both to the UK NCP and to the OECD to revise the Guidelines and improve the NCP process. Other groups, including business, labour, and civil society, have filed their own comments.

The panelists included: Janine Elliott former Senior Legal Counsel at Shell International Limited, London; Rodrigo Muñoz of the law firm of Nuñez Muñoz & Cia Ltda Abogados, Santiago Chile; Martijn Scheltema, of the law firm of Pels Rijcken & Droogleever Fortuijn NV, Gravenhage, Netherlands; Edward J. Waitzer of the law firm of Stikeman Elliott LLP, Toronto, Canada.  John Sherman moderated and presented a set of introductory materials on the OECD framework for multinational corporate governance.

A summary outline of some of the following presentations are provided below:

1. John Sherman, OECD Guidelines Revisions.

2. Larry Catá Backer, Coherence in Governance System for Multinational Corporations: The OECD Guidelines for Multinational Corporations, the National Contact Points, Corporate and Stakeholder Actors Between Public and Private Spheres.

3.  Edward J. Waitzer, Speaking Notes

3. Martijn W. Scheltema, Introduction on NCP dispute settlement.

4.  Panel Bios. 

__________

OECD Guidelines Revisions
John Sherman

I.  What is the OECD

A.  History
B.  Membership
C.  Objectives

II. What are the OECD Guidelines

A.  Voluntary, not mandatory
B.  Shared expectations of business conduct
C.  Applies wherever MNEs operate

III:  What do they cover?

A.  Disclosure
B. Employment and industrial relations
C.  Environment
D.  Combating Bribery
E. Consumer interests
F. Science and technology
G. Competition
H. Taxation

 IV.  How are they interpreted and applied?

A. National Contact Points

B. "Functional Equivalence"

C. "Specific Instance"

V.  Why are they being revised? 

 A. Last revised in 2000
 B. NCP process criticized as inaccessible, inconsistent, not transparent, unfair, without consequence, etc.
C. Only one sentence on human rights
D. UN "Protect-Respect-Remedy" framework on business and human rights (2008).

i. enjoying wide uptake globally by countries, companies and civil society

VI.  What is the "Protect-Respect-Remedy" Framework?

 A.  State duty to protect against human rights abuses by third parties.
 B. Corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on human rights.
C. Need for greater access to remedy by victims, including non judicial remedy.

VII.  What's Human Rights Due Diligence?

A. Top commitment.
B. Impact assessments.
C. Integration.
D. Tracking and reporting on performance.

VIII. What's the IBA's Role?

A. IBA Working Group submittals to to UK (2009) and OECD (2010).
B. Supported adding chapter on human rights, consistent withUN Framework.
C. Made numerous other content suggestions (climate change, anti-bribery, etc.).
D. Urged reform of NCP process.

IX. References and links.

A. OECD Multinational Enterprises Guidelines (2000).
B.  UN Protect, Respect, Remedy Framework (2010).
C.  IBA Working Group Submittal to OECD (2010).

__________

Coherence in Governance System for Multinational Corporations: The OECD Guidelines for Multinational Corporations, the National Contact Points, Corporate and Stakeholder Actors Between Public and Private Spheres
Larry Catá Backer

The presentation looks to the systemic effects of recent U.K. National Contact Point decisions (with an eye to the project of OECD revisions of the Guidelines for Multinationals). I will be considering the way in which the emerging actions of the NCPs contribute to the creation of a coherent jurisprudence with the assumption that Ed may be looking more closely to the substantive issues that are touched on by the Guidelines and the cases.

I. Introduction

A. Brief overview of NCP system within context of Guidelines

B. Thesis—jurisprudence suggests the construction of a coherent governance framework that may serve as the foundation for customary principles of behavior  

C. Consequence: lawyers are now facing the emergence of multiple sources of law on the basis of which company transactions and relationships can be challenged simultaneously in multiple jurisdictions each with potentially distinct soft and hard law standards.

D. This will require lawyers to recognize their role in counseling clients with respect to corporate obligations under two distinct governance frameworks--those of the domestic legal orders  of home and host states, and those of transnational governance orders that can affect the functional operation of corporate entities.

II. The cases and their respective contributions.

A. Supply Chain liability and public obligations in weak governance states
•Afrimex
•DAS Air  

B. Multiple Law Sources (Polycentricity); autonomous obligations arising under Guidelines Framework and under national law (supplementary or inconsistent obligations?). 
•Vedanta
•Khanewal
•Sewri
•T&G Peugeot
•Rahim Yar Khan

C. Appeals; process rather than substantive focus
•BTC Pipeline

D. Inducement to Settle, Current and Prior Procedure; strategic use of Guidelines 
•Anglo American
•G4S

III. Drawing the Pieces Together

A. Governance themes emerging

1. Polycentricity and standing
2. Supply chain responsibility
3. Direct application of human rights instruments (entities as subjects of international law)

B. The Problem of Sources of Governance

1. External sources for internal governance
2. Ruggie Protect-Respect-Remedy Principles
3. Norway SWF and other CSR motivated institutional investors.

C. Institutional Elements

1. Role of the NCP
2. Role of Civil Society Stakeholders
3. Transparency, mediation and dispute Resolution
4. Role of investment community
–Sovereign Wealth Funds as indirect governance element
–Institutional investors and investment media as influential managers of public consensus

IV. Looking Foreword

A. Guidelines Revisions

•Make it easier to invoke procedure; issue of asymmetric availability among OECD members

B. NGO interventions

•implications of broadened standing
•Role in developing common standards within NCP system

C. Disclosure implications

•risk management and implications for financial disclosure

D. Strategic implications: uses as part of a multi-jurisdictional multi-forum strategy (courts, NCPs).

•Suggest the possibilities of a coordinated litigation-mediation-conflict strategy by non-shareholder stakeholders
•Vedanta: use of NCP procedure to put pressure on host state;
•Sewri, Khanewal: use of NCP procedure to put pressure to settle beyond requirements of host state law requirements.

V. Conclusion

A. Coherence or wishful thinking?

B. Coupling with other governance norms—interlocking systems or communication?

C. Forms of dispute resolution—mediation and its transparency implications. D. Role for Lawyers changing and broadening from formal law to governance and its implications for business relationships and liability exposure.

The PowerPoint presentation may be accessed here.

For further reading, see, e.g.,
1. Backer, Larry Catá, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal of International Law 258 (2009);

2. Backer, Larry Catá, On the Evolution of the United Nations’ 'Protect-Respect-Remedy' Project: The State, the Corporation and Human Rights in a Global Governance Context (June 3, 2010). Santa Clara Journal of International Law, Vol. 9, No.1, 2010.

3. Backer, Larry Catá, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order (August 13, 2010).

__________


IBA Annual Meeting 2010
Corporate Social Responsibility Committee:
OECD Guidelines for Multi-National Enterprises
Edward J. Waitzer
Speaking Notes

A. Problems with Current Governance Literature/Standards

(1) Governance isn’t a checklist, nor perfectible

(2) Governance standards/literature tend to be air sandwiches - empty in the middle

(3) There is an overriding sense of fatigue (even as more resources invested, distrust arises)

(4) Dumbing-down complexity to complication

(5) It’s all about values (e.g., Greece, Goldman Sachs)

B. Why we may be at an inflection point

(1) Traditional tension between corporate law (risk shifting instrument) and general tort law principles no longer works

(2) Opportunity created by crisis

(3) General renaissance in desire to discuss what values in business should be

C. Ways to get there

(1) Disclosure (as a process rather than output)

(2) Reconnecting process and purpose (e.g., integrated policies)

(3) Oppression remedy (based on (i) reasonable expectations (ii) unfairly disregarded)

(4) Stakeholder theory leading to shift towards trust law (or equivalent legislation)

(5) New institutional structures for business

(6) Moral stakeholder theory

(7) Obligation to act reasonably Enhanced duties

__________

Introduction on NCP dispute settlement
Martijn W. Scheltema
A) National contact points (NCP’s) are instituted by local governments which are OECD-member

(i) part of government (in many instances as a part of the ministry of trade or business development)

(ii) except from Dutch NCP (at arms length of government) and UK NCP which outsources its mediation function to independent alternative dispute resolution professionals

B) role of NCP:

(i) assess compliance with OECD guidelines

(ii) dispute resolution (mediation) by government officials (exception: Dutch and UK NCP)

C) supplementary mechanism (besides company-level grievance mechanisms (responsibility to respect human rights) and other mechanisms (local proceedings (e.g. based on foreign direct liability or responsibility for foreign subsidiaries) or arbitration)

(i) not available in all CSR-disputes; an ‘investment-nexus’ is needed

(a) this means there has to be a connection with a foreign investment by a (multinational) enterprise (MNE)

(b) e.g. supply chain conflicts and the provision of means from financial institutions do not have an investment nexus (at least uncertain as financial institutions are involved), but this does not mean that CSR issues cannot rise in such relationships; but NCP have rejected such claims

D) the dispute settlement mechanism appears adequate as an investment-nexus exists

(i) the advantage is this dispute settlement mechanism is restricted to compliance with the OECD-guidelines (therefore no problems with local law and regulations and the enforcement of these regulations arise)

(ii) in many instances relative quick procedure and with experienced mediators

E) there are many CSR-related disputes but this mechanism is not often used (5 cases out of 85 until January 2010)

(i) company level grievance mechanisms exist (especially human rights; framework of John Ruggie (legitimate, accessible, predictable, equitable, rights-compatible and transparent)

(ii) because of disadvantages

(a) lack of confidentiality (when the parties involved do not reach an agreement the NCP issues a statement whether in their view the OECD-guidelines are violated), this statement is made public (and sometimes communicated to the parliament (Netherlands)), transparency and visibility as is required by the OECD procedures is therefore sometimes difficult to align with confidentiality

difficult because there is a need to attach serious consequences to NCP decisions and to monitor compliance with decisions and recommendations (relevant organizations and individuals may assist when the decision and recommendations are made public)

(b) issues of impartiality (because the mediators are government officials and especially when part of the ministry of trade in favor of trade activities; and no or little communication with government entities charged with assuring the country’s protection of human rights; mixed messages to MNE’s)

(Australian prison case, where government itself was involved)

(c) defining investment-nexus is sometimes difficult, therefore it is not always apparent whether a NCP has jurisdiction

possibility of parallel proceedings or litigation for the complaints lacking investment nexus

(d) the lack of clear procedural rules and different (procedural) approaches by NCP’s in OECD-member countries; very little, if any information provided on how the NCP process is used

(e) fundamental problem of neutral conciliation versus authoritative evaluation (i.e. being supervisor (on obedience of OECD-guidelines) and mediator at the same time); better to separate those two functions (e.g. Advisor Ombudsman to the World Bank)

(f) no external review by e.g. NGO’s or other stakeholders (except Dutch NCP which has conducted a peer review by external stakeholders and UK NCP which has a steering board with external members)

(g) no (formal) rules on filing complaints and no timelines (except Australian NCP which recommends 30 days for initial assessment phase and 90 days for second mediation phase and UK NCP which has procedures for handling specific instances within a 12-month time frame); sometimes NCP have taken month or even a year to notify the complainant of the outcome of an initial assessment

(iii) conclusion is the NCP’s contribute to the solution of CSR-problems, but there is a need for an additional CSR-dispute settlement facility with the following features

(a) one worldwide facility (no more differences between NCP’s)

(b) clear procedural rules (e.g. on filing complaints and timelines)(cf. International Labour Organisation Administrative Tribunal (ILOAT), World Bank Administrative Tribunal (WBAT))

(c) jurisdiction in all CSR-related issues (not restricted to investment nexus), as long as a bona fide claim is made

(d) independent from local government

(e) confidential proceedings unless otherwise agreed on by parties (public final statement as a remedy on breach of the agreement?)

(f) experienced mediators from all over the world

(g) seat of the mediation is determined by parties (the mediation facility has a permanent secretariat which supports the mediations, but the mediations do not have to take place at the secretariat)

(h) external review by stakeholders and/or steering board

(i) certification procedure that would provide a certified MNE with a rebuttable presumption of compliance?

__________

Rodrigo Munoz Núñez, Muñoz y Cía. Ltda. Abogados Av. Isidora Goyenechea 3250, Piso 13. Las Condes, Santiago, Chile. Tel. (56 - 2) 431 9040  A. 102 Fax (56 - 2) 378 8060 Web site: www.nam.cl E-mail: rmunoz@nam.cl Mr. Muñoz graduated from University of Chile School of Law (1988).  He holds an MBA from the Catholic University of Chile (1999) and has pursued postgraduate studies at New York University, 1997-1998, including a Certificate in International Transactions and Finance (1997) and a Certificate in Foreign Exchange (1998). Mr. Muñoz has broad expertise in matters such as joint venture transactions, project finance in the mining industry, mining due diligences, mergers and acquisitions in the mining field.  He has represented both local as well as international mining companies. He is currently a member of the Chilean Bar Association, International Bar Association, Rocky Mountain Mineral Law Foundation and the Prospector and Developers Association of Canada, in addition to having been recently ranked among the top Chilean mining lawyers by Who’s Who Lawyers 2011. Larry Backer Professor of International Affairs Pennsylvania State University 239 Lewis Katz Building University Park, PA 16802 1.814.863.3640 (direct), lcb11@psu.edu  Larry Catá Backer: W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, and Professor of International Affairs at the Pennsylvania State University (B.A. 1977 Brandeis University; M.P.P. 1979 Harvard University Kennedy School of Government; J.D. 1982 Columbia University). Professor Backer is a member of the American Law Institute (ALI), the European Corporate Governance Institute (ECGI), and a founding director of the Consortium for Peace and Ethics, a policy NGO.  His research focuses on issues of globalization and governance issues where public and private law systems converge. He is particularly interested in the relationship of socialist systems to globalization, with particular attention to issues of human rights and corporate social responsibility.  He has published a casebook, "Comparative Corporate Law," an edited collection of essays, "Harmonizing Law in an Era of Globalization," and a number of articles on transnational corporate governance and public law.  He is completing a book, “Corporate Governance, Financial Markets And Development” and a casebook, “Transnational Law and Legal Issues.” Additionally, shorter essays on various aspects of globalization and governance, and the role of human rights frameworks therein, appear on his essay site, “Law at the End of the Day,” http://lcbackerblog.blogspot.com. Professor Backer CV may be accessed here.  Edward J. Waitzer Stikeman Elliott LLP 5300 Commerce Court West 199 Bay Street Toronto ON M4l 1B9 416-8695587 Mr. Waitzer was Chair of Stikeman Elliott from 1999 to 2006 and is a senior partner whose practice focuses on complex business transactions. He also advises on a range of public policy and governance matters. He served (1993-1996) as Chair of the Ontario Securities Commission (and of the Technical Committee of the International Organization of Securities Commissions) and (until 1981) as Vice- President of The Toronto Stock Exchange. He has written and spoken extensively on a variety of legal and public policy issues and serves or has served as director of a number of corporations, foundations, community organizations, editorial boards and advisory groups. Former Falconbridge Professor of Law at Osgoode Hall Law School, he currently holds the Jarislowsky Dimma Mooney Chair in Corporate Governance and is Director of the Hennick Centre for Business and Law at Osgoode Hall and the Schulich School of Business at York University. Earned his LL.B. (1976) and LL.M. (1981) from the Faculty of Law, University of Toronto. Called to the Ontario (1978) and the New York (1985) Bars. Janine Elliott Janine Elliott was Senior Legal Counsel at Shell International Limited in London where she was global legal focal point for, among other things, CSR issues in the Downstream Businesses. Janine has kindly agreed to speak to us today about a Complaint she worked on prior to her retirement from Shell earlier this year. The Complaint took three years to conclude and during that time several difficult legal issues arose. Janine’s experience provides insight into practical legal issues that can be encountered when responding to a Complaint. This session will be of particular interest to legal practitioners who may be asked to draft a Complaint, assist an NCP or help steer a multinational enterprise through the Complaint Process – and provide food for thought to those who are working on the Update to the Guidelines. Martijn Scheltema Pels Rijcken & Droogleever Fortuijn The Hague Pels Rijcken & Droogleever Fortuijn N.V. Postbus 11756 2502 AT The Hague The Netherlands Telephone +31 (0)70 515 30 00 Fax +31 (0)70 515 31 00 Since joining Pels Rijcken in 1997, Martijn Scheltema has dealt with all facets of private law in relation to the public sector, including the role and function of legal entities charged with statutory tasks, contracts concluded with the government, unlawful and lawful government acts and expropriation. As a supreme court lawyer, he deals with a wide range of procedural matters, and has a particular interest in arbitration and the ensuing setting aside proceedings. He has been involved in a number of defining cases in this area. His field of work includes international dispute settlement in relation to corporate social responsibility. As chair of the IP practice group, Martijn deals with a great many aspects of copyright law, law of databases, trademarks and designs, and patent law in relation to ICT and other areas as well. In that context he advises and litigates for government bodies and a number of prominent commercial and non-commercial organisations. He has held many teaching appointments, he has been a member of the editorial staff of professional journals and a committee member of lawyers' associations. John F. Sherman, III Sr. Fellow, Center for Business and Government Harvard Kennedy School of Government Cambridge, Mass.  USA Staying at West End Guest House 1362 Haro Street cell:  617-240-0832 johnsherman3@mac.com John is a Senior Fellow at the Mossavar-Rahmani Center for Business and Government at the John F. Kennedy School of Government at Harvard University, where he is working to progress the mandate of Prof. John Ruggie, the Special Representative of the Secretary General of the United Nations on business and human rights.  John retired in 2008 as deputy general counsel of National Grid, where he was its top US lawyer for litigation, safety, health and environmental law, and had executive responsibilities for business ethics, corporate governance, enterprise risk management, and corporate responsibility.  At National Grid, he represented the company at the Business Leaders Initiative on Human Rights (BLIHR), and was a member of the Executive Advisory Board of the International Institute of Conflict Prevention and Dispute Resolution.  John is a co-chair of the Corporate Social Responsibility Committee of the International Bar Association, a member of the UN Global Compact Human Rights Working Group, and an Executive Fellow at the Center for Business Ethics at Bentley University. John has written and lectured frequently to international business and legal audiences on business ethics and corporate responsibility. John is a graduate of Harvard Law School and Dartmouth College, and lives in Brookline, Massachusetts, USA.  He can be reached at johnsherman3@mac.com.