No. 164 唐晓峰：亚洲视野：“边地”的主体性与多元性 No. 164 Tang Xiaofeng: Asian Vision: "frontier" Subjectivity and Pluralism

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference 


No.164:唐晓峰：亚洲视野：“边地”的主体性与多元性 Tang Xiaofeng: Asian Vision: "frontier" Subjectivity and Pluralism.

The essay considers the meaning of borders and borderlands in Chinese history and political philosophy.

The essay was posted to  叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

European Corporate Governance Research Foundation--Summary of Launch Conference With Links to Video

I am happy to report the launch of the European Corporate Governance Research Foundation.  The launch conference was held in Brussels on May 31, 2016.  Included below is a summary of the presentation made at the summary and links to videos of some of the events.

The work of the ECGRF is important not merely  for corporate law specialists but for those whose work intersects with advances in corporate governance theory and its contextual application within the domestic orders of states.  This is particularly the case for those who work in public law, especially regulatory governance, and those who work in transnational space, where corporate governance is as much an issue of societally constructed structures as it is of traditional stated enhanced rules. Lastly, a deep understanding of the ideologies of corporate governance and its intertwining with fundamental philosophies of national law will be a critical step in the move toward a comprehensive treaty for business and human rights, or in the present, for the operationalization of the UN Guiding Principles for Business and Human Rights.  While it is unlikely that such interfacing will come from the ECGRF itself, the principles, ideologies and approaches to law which are generated through their work will play a significant role in much that touches on the governance of business in global space.

No. 163-2 石 佳 友：治理体系的完善与民法典的时代精神 No. 163-2 Shíjiā Ju, Perfecting the Governance System and the Civil Code in the Original Spirit of the Times

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference 

No.163-2:石 佳 友：治理体系的完善与民法典的时代精神  Shíjiā Ju, Perfecting the Governance System and the Civil Code in the Original Spirit of the Times

The essay was posted to  叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

When Bare Legal Compliance Will Not Suffice--Corporate Responsibility to Mitigate and Environmental Damage: Norway's Ethics Council Recommends Exclusion of U.S. Duke Energy

The Secretariat of the Norwegian Pension Fund Global has just circulated the decision, taken in April 2016 by the Norwegian Ethics Council, to recommend exclusion of Duke Energy Corp. (Duke) and its wholly owned subsidiaries Duke Energy Carolinas LLC (Duke Carolinas), Duke Energy Progress LLC (Duke Progress) and Energy Progress Inc. (Energy Progress) due to the unacceptable risk of these companies being responsible for severe environmental damage.

On the surface the decision reflects the by now routine application of principles relating to environmental degradation.  Yet there are two additional wrinkles that merit consideration.  The first is the possible suggestion that mere legal compliance, and aggressive resistance to legal process, might itself constitute a breach of the Ethics Guidelines (thus aligning the Ethics Guidelines with the societal responsibility section of the U.N. Guiding Principles for Business and Human Rights (regrettably not taken up directly, though it should have).  The second is the continued incoherence in the Ethics COuncil's approach to remedial choice.  It remains unclear how the Ethics Council chooses to exercise discretion in choosing exclusion versus observation.  It is time for the Ethics Council to correct this quite grave deficiency in its operation.

My brief discussion of these issues follows, along with the Ethics Council Press Release  and the Council on Ethics’ recommendation here and below.

Breaches in the Walls of Corporate Autonomy, the Embedding of Regulatory Governance Mechanisms in Contract--and Corporate Liability for Upstreaming Human Rights Related Harms

 If only for a relative brief periods between the end of the First World War and the first decades of the 21st Century, there was a certain stability in the basic premises of corporate law within an international system grounded in the supremacy of states (discussed in Multinational Corporations, Transnational Law). Those basic premises were centered on the notion of corporate autonomy and its subsidiary principles, asset partitioning and entity welfare maximization.  These principles were incorporated into regulatory systems in which either the enterprise was understood as a social organ that could be managed by the state (centered in the U.S.) or as a creature of the state wholly dependent on the state for its  existence and character (flowing out of European civil law notions) (discussed in The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality).

This post considers the continuing erosion of the doctrine of asset partitioning as a means of transforming traditional legal concepts into vehicles fopr extending liability upstream to apex corporations in supply chains for human rights related injury.

Revealing Ideologies for a Comprehensive Treaty for Business and Human Rights

(Pix © Larry Catá Bacer 2016)

Quite belatedly, I have been thinking about the relationship between framing ideologies and the production of regulatory systems.  There has been an important focus recently on the effects of governance--the framing instruments and their provisions, that produce effects.  But there is somewhat less thinking about the aggregation of these effects on the conceptualization of the object of these effects.  A strong impulse is to work backwards--to extrapolate from effects the framing ideologies that give rise to the provisions producing effects. But this sometimes does small justice to the ideologies--the principles and normative frames of reference--from out of which the provisions are conceived and against which they might be judged. These may be found in orienting documents and provisions--preambles, objectives mandates for special procedures, or in the organizing ideologies of the political community in which the project is to be undertaken.

These issues are much implicated in current efforts to elaborate a comprehensive treaty on business and human rights through the work of a U.N. appointed  Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises (IGWG). The mandate of that enterprise provides a great opportunity to think through the way that framing ideologies may be created and manage the process of rule creation. 

What follows are some preliminary observations about what the Mandate might tell us about the framing ideology of the effort, now ongoing, to elaborate a comprehensive treaty for business and human rights.

The FARC-Columbia Peace Accord: A View From Cuba--Implementation, Realpolitik and Reconciliation

René Gómez Manzano is an independent journalist and critical outsider in Cuba. He has for many years reported on changed within the Cuban state and its ruling Communist Party. Educated in Havana and Moscow he began defending dissidents in 1990 and has served time in prison for his actions. He remains active in Cuba and tolerated by the state ad PPC. Amnesty International named him a prisoner of conscience in 1998 after his arrest and imprisonment in the late 1990s. (More on Gómez Manzano here):  

Mr. Gómez Manzano has recently written a series of essays on the recently concluded peace accords between FARC and the government of Columbia. The first, Colombia: ¡Llegaron los Reyes Magos!looks to the implementation of a document, 297 pages long, that is meant to be accessible to the people and that includes a number of aspirational goals. The fear is that the aspirational objectives of the accord can be threatened as the parties get down to operationalizing its provisions and that it is not clear that there will be substantial popular engagement. He worries that this broad list of aspirational goals will themselves threaten the stabilityof the acords on the long run. The second, El Acuerdo de Paz en Colombia: Una renuncia de las FARC a acceder al poder, raises issues about causes for the movement toward the finalization of negotiation, suggesting the realpolitik of the nacotrafficking and Chauvista path that failed FARC.  The third, Colombia: La paz bien vale un Acuerdo Final speaks to the truth and reconciliation process. The articles are in Spanish.

Conference Program: 11th Annual General Conference of the European China Law Studies Association (欧洲中国法研究协会 )

The 11th Annual General Conference of the European China Law Studies Association (欧洲中国法研究协会 ) will be held at the Faculty of Law of the Roma TRE University in Rome from 22 to 24 September 2016.

Since its founding in 2006, the European China Law Studies Association has become a major international venue for scholars and practitioners who are engaged in the study of Chinese law, from both comparative and interdisciplinary perspectives. The annual general conference provides an excellent forum for the exchange of information and ideas, as well as a platform for the development of research collaboration. Studies from disciplines other than law or interdisciplinary papers as well as submissions from young academics are expressly encouraged.

The 11th Annual ECLS Conference intends to focus on the following areas of Chinese law:

Codification of civil law and Roman law tradition in China
The Supreme People’s Court and judicial reform
Implementation and enforcement of legal reforms
Rule of law under Xi Jinping
International, national (central and local) law-making
Legal framework of the activities of NGOs
Legal consciousness and environmental challenges
Law and capital markets
Criminal Justice and human rights
China’s outbound FDI activism
Legal aspects of the developing relations between EU and PRC
Legal language and legal translation
Current issues in law and philosophy

The Conference Program follows:

Ruminations 64: Can Pragmatism Be Principled? With Application to the Elaboration to Comprehensive Treaty for Business and Human Rights

(Pix © Larry Catá Backer 2016)

In 2014, the UN Human Rights Council established an open-ended intergovernmental working group (IGWG) on transnational corporations and other business enterprises with respect to human rights, and mandated the working group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

The UN Human Rights Council decided that the first two sessions of the working group should be devoted to “conducting constructive deliberations on the content, scope, nature and form of the future international instrument.” At its first session, civil society refined their expectations for the scope and coverage of a treaty instrument under the mandate (¶¶ 21-105). The inter-governmental working group organized its consideration of the scope of a treaty around a number of broad concepts: (1) renewed commitment by states (¶¶37-39); (2) principles (¶¶40-54); (3) concepts and the legal nature of transnational corporations (¶¶55-61); (4) extent of human rights to be covered (¶¶ 62-66); (5) state obligations to guarantee respect for human rights by entities (¶¶ 67-77); (6) enhanced responsibilities for entities (¶¶78-87); (7) legal liability of entities (¶¶88-97); and (8) international remediation mechanisms (¶¶ 98-105). As might be expected at this early stage, there was little consensus on these questions except at a very general level.There may also be some fundamental disagreement between the position of the states supporting the treaty project and their civil society allies.

Such initial stage setting is usually of little interest except for what they might suggest of the underlying tensions that will be built into both the process and product of the treaty elaboration enterprise. This post considers these critiques--of relevance and of the contradiction of pragmatism and principle--in the context of an elaboration of a comprehensive treaty for business and human rights. The object is to consider the principles necessarily embedded in pragmatic choices, and the negative consequences--to coherence and effectiveness--of making choices about treaty specifics that neither adhere to framing principles nor are made on the basis of principles in making pragmatic choices among plausible alternatives.

Other State's Human Rights: The Congressional-Executive Commission on China (CECC) Decry China’s Repression of Civil Society and Rights Defenders

The Congressional-Executive Commission on China (CECC) tends to be a good barometer of legislative thinking about China in the United States. Not that this thinking is either coherent or well directed. But it does represent the way in which U.S. "China expert" elites and their legislative masters develop "knowledge" about China. This knowledge is then used to shape U.S. policy and legislative approaches U.S. China relations. It also suggests the way that U.S. ideological thinking shapes the way in which China is viewed as understood by the United States.

This characterization is not meant to suggest a personal position on either the outlook or work of the CECC, or of its advisers. That characterization, however, does suggest that ideological blinders tend to tell us more about the U.S. (in this case) than it does about the Chinese. It is with the object of helping to understanding American construction of China, rather than of helping to understand Chinese constructions of themselves (however "flawed either exercise may be in and of itself and to itself), that this announcement is offered.

On the eve of the 2016 G 20 Meetings CECC issued a press release "Chairs Say President Should Lead G-20 Effort To Raise Concerns about China’s Repression of Civil Society and Rights Defenders" which follows below along with my brief observations.