"Llevan a cabo lanzamiento oficial de la Academia Empresas y Derechos Humanos": Due Diligence Training Along the Japan-Mexico Production Chain

 

In a quite interesting announcement, and perhaps as a worthwhile form of operational capacity building across global production chains, the UN Development Program announced the institution of an Academy of Business and Human Rights, with the support of the Government of Japan, and in alliance with the Japanese Chamber of Commerce and Industry of Mexico, to train employees  "affiliated with more than 30 Japanese companies interested in promoting due diligence."

The text of the announcement "Llevan a cabo lanzamiento oficial de la Academia Empresas y Derechos Humanos" (in the Original Spanish and English translation) follows.

Closed Platform Governance--Call for inputs for (Appel a; Solicitude de) the Working Group's report on development finance institutions and human rights

 

As part of its outreach  plan, the Business and Human Rights Working Group is seeking input from a variety of sectors.  Perhaps it will inform its work; more likely it will inform it of the state of mind of those willing and able to supply input. These include the classes of actors that might have been directly asked, those who would have been invited, those who form part of cliques around highly motivated factions with specific agendas, and those with a supervisory role of the special procedures and their respective networks.  That will be helpful, however limited or curated the pool of data sources.  

Nonetheless, as usual in these types of efforts, the issue of input bias is always present. And that bias is in turn a reflection of skewing in which the universe of inputs is assumed to reflect the universe of opinion.  Sometimes skewing is a useful strategy, especially where one is attempting through effective skewing but formal neutrality, to enhance the legitimacy of conclusions or choices--or to add weight to either. Sometimes skewing is most effective at the input level.  Least helpful are efforts that effectively exclude voices that might be deemed threatening to the core agendas already embraced and that would, in that context, appear to get in the way of the forward march of objectives the trajectories of which are not subject to change. None of this matters, of course, except to the extent that what is produced from these inputs are then used as evidence of a consultation that accurately represents the positions of the universe of stakeholders, including those who voices are undervalued  or which are nowhere to be found.  

 Sometimes skewing comes at the sorting and valuation of input stage. Here it is up to the Working Group to consider and value input--and transparency in the way that is done. That transparency might in turn extend to the metrics used (qualitative, quantitative, political, social, representational, or whatever) might add a useful bit of data for those inclined to assess the assessments and conclusions produced by this highly influential and representative body. traditionally this was unnecessary--the idea here is that the representatives are vested with the authority, on behalf of the institutions they serve, to exercise discretion which one expects ought to grounded in duties of loyalty, of care, and of transparently visible good faith.

This is also neither unusual nor problematic--it sounds in the sort of politics the cultures of which are now fairly well established especially in the operations of international public bodies and their instruments. In this case the Working Group continues its  four tiered consultation harvesting framework--private meetings with selected  states, business, and civil society, 

Sessions of the Working Group are closed to the public, except for specific “public consultations”. For this session there will be no public consultation.  The Working Group will convene separate meetings with different stakeholders: 

9 February, 15:00-16:15: private meeting with States
9 February, 16:30-18:00 private meeting with Business
10 February, 15:00-16:30 private meeting with Civil Society

topped off by a general call for input. Or, in this case that call might eb made somewhat more problematic by the construction of a quite definitive territory the participants in which are specifically identified: "The Working Group seeks the input of all stakeholders (including international organisations, national human rights institutions, civil society organisations, research centres, academia, lawyers, law firms, DFIs, businesses, industry associations, trade unions, human rights defenders, and indigenous peoples) to some questions.

It is however, impossible to understand the hearts or minds the passions, ambitions, visions, and agendas, of human beings.  And that is a natural risk of collective governance, as well as a reminder of those serving on behalf of others or in the service of an institutional collective whose objectives may not always align with personal desire, to be mindful of the all-to-human impulse of augment what aligns with the personal and resist or ignore that which does not. Indeed, it is to that effort that the Working Group explains the need for the general call: "In order to obtain a broad representation of views to inform the thematic report, the Working Group is seeking written contributions from all relevant actors through responses to a questionnaire." (Call for Inputs).

In that respect it may fall on the rest of us to aid our representative and influence responsive brothers and sisters in their efforts.  To that end one can only add one's voice to those of others, including our friends on the Working Group and their staff (whose hard and essential work I acknowledge here with great thanks), whose input may make a difference, or may otherwise aid those who are more sensitive to skewing in assessing and therefore weighing the value of the report produced.  

 In a sense, one can understand these efforts in contemporary terms as a closed platform governance--meaning management model. That is, it represents the construction of a well curated space where producers and consumers of solicited data (information, opinions, 'facts', etc.) can be contained within a space from which it can be used both by the platform manager (the UN special procedures, in this case), and those others who might be granted access to some to all of the data (in this case for the general public as posted to the Working Group space on the UN-Geneva website). The platform operates on at least two levels, likely three.  The most general level is that in which the general public may produce data and to some extent consume. The "private level" is limited to those invited to the private consultations. The third level would be limited to the special  procedures themselves and those higher in the hierarchy  whose consumption and production of data (the analytics and opinion formation serving as the textual foundation of conclusions and program suggestions to be articulated  in text in the form of the generated report) is of a character different from the production-consumption function at the lower levels. The ability to assess consumption and production from the outside is at best quite limited--though it is to the outside that the product of these interactions is directed (eventually) though in the first instance to the bodies of responsible public and private players with authority to transpose the product into their own governance systems int he form of public and private hard and 'soft' law-rules-policies-expectations, etc. in accordance with the governance styles of the actors. Here, automated data analytics might be useful, though it cannot effectively reach the fundamental system challenge of skewing and the out-of-platform effects and practices of politics, capacity, social structures that contribute to the production and implementation of skewing. 

The Inputs are expected by 3 March 2023. 

Email address: hrc-wg-business@un.org

Email subject line: DFIs QUESTIONNAIRE

Word limit: Maximum of 2,500 words

File formats: Word, PDF

Accepted languages: English, Spanish, French

Postal address: Office of the United Nations High Commissioner for Human Rights,
United Nations Office at Geneva, CH 1211 Geneva 10, Switzerland

The text of the Informational materials posted to the Web Page:Call for inputs for the Working Group's report on development finance institutions and human rights (English) follows below.

New law book series « Gender, Justice, and Legal Feminism » Now Accepting Proposals

Pix Credit © Larry Catá Backer; Max Ernst, Logique sans peine (1966); Vienna Freud Museum

Anne Wagner (Liile) and Angela Condello (Messina) have announced the launch of a new law book series «Gender, Justice, and Legal Feminism » for Springer. The website is still under construction and will be completed soon.

The Series Gender, Justice and Legal Feminism seeks to harness the diverse and innovative work within and across the boundaries of jurisprudence and gender studies, with a specific attention to approaches inspired both by traditional and more recent feminist movements (e.g., both by difference feminism and LGBTQ+ streams – with their different conceptualizations of identity and neutrality). 

Sexual difference can be considered as one of the characteristics that differentiate individuals (like for instance age, or ethnic belonging) and such difference plays a focal function in issues of equality, justice, discrimination, as the philosophical concept of “différence” as properly shown. Such difference is indeed linguistic, logica, theoretical and must be studied in all its aspects.

Through the lense of the difference, the series aim to publish works engaging with the intrinsic bond between justice and gender studies (through language and psychoanalysis), encouraging perspectives that can be defined as feminist according to the various meanings attributed to such term. For example, like in the meaning attributed to the term by the project of Feminist Legal Judgments, which demonstrated that legal practice can be “rewritten” and re-imagined from a point of view that includes diverse subjectivities and does not consider the male subject as the dominant and principal subject of the law. The main objective of the series is to build on theories on gender and feminism in order to propose a different perspective on legal science and method.

In pursuing these tasks, the series aims to engage with the connections between gender identity, gender relations and political systems, and with all the societal aspects interacting in the construction and depiction of gender through language and human action. Such type of inquiries challenges the positivist view of law and constitutes a privileged critical point of observation.

The series welcomes proposals – be they edited collections or single-authored monographs – emphasizing the conflicts and connections between justice, gender, and law, proposing critical approaches to law and feminist studies, offering analyses in areas such as jurisprudence, legal theory, gender studies, legal semiotics, law and language.

Keywords: Justice, Law, Feminism, Gender Studies, Jurisprudence, Equality, Language, Symbolic Order, Difference Feminism, Abuse, Violence, Stereotypes, Neglection, Vulnerability, Welfare, Mental health and Social Care, Anti-Discriminatory/Affirmative Actions, Human Rights, Freedom of Expression and Choice, Resilience, Queer studies, LGBTQ+ studies

https://www.springer.com/series/17265

The State as Organ Master: Massachusetts Considers a Bill to Create a Limited Market for Prisoner Body Parts (Donations to "Earn" Sentence Reductions)

Pix Credit here

It ha snow been widely reported that a bill has been introduced in the Massachusetts state legislature HD.3822, "would allow incarcerated people in Massachusetts to trade one precious commodity, donated organs, for another: Time." (A Mass. bill would cut prison time for organ donations. An advocate is calling the measure ‘unethical and depraved.’).

The bill was advanced on anti-racist and social justice grounds by State Rep. Carlos González, one of the legislators behind the bill.

González, a Springfield Democrat, noted that a number of comorbidities put people of color at risk for organ failure, pointing to higher risks of diabetes and heart disease among Hispanic and Black populations, and higher rates of chronic liver disease among Hispanic people. Broadening the pool of potential donors, he argues, is an effective way to increase the likelihood of those patients receiving critical care.

The bill would establish a bone marrow and organ donation program within the Massachusetts Department of Correction, to be administered by a committee that would include in its ranks MADOC representatives, a donation specialist, and an advocate for incarcerated individuals’ rights. Benefiting institutions would bear donation-related costs, and the Department of Correction wouldn’t profit from donations.

“We must provide every person who is incarcerated with the guidance of medical experts and advocates in order to ensure them the same rights and opportunities that every individual in Massachusetts has to save the life of their mother, father, brother, sister, child or friend,” González said. 

He added: “In my view, there is no compelling reason to bar inmates from this. One of our goals is to provide information and education on the disproportionate number of Blacks and Latinos dying while waiting for donors.” (A Mass. bill would cut prison time for organ donations.).

The road to potentially severe violations of human rights is sometimes paved with the best of intentions.  While it is not clear how that works out in this case there are a number of warning signs that do not augur well for the compatibility of the worthwhile goals with the potentially human rights breaching means. The prison environment is not necessarily conducive to free and fair consent. The potential for abuse given the relationship between the incarcerated and the state, may be significant--and corruption and abuse likely difficult (and expensive) to do well. The risk tolerance for abuse and error is likely low (how many mistakes are too much?). Connecting sentencing policy to donations  in a highly controlling environment suggests issues of capacity, coercion, and abuse.  The issue of the monetization of the body remains highly contested as a matter of law, morals, and ethics. It also touches on religious sensibilities--the results of which might also produce substantial claims for bias and burdening of religion by effectively imposing a penalty on those whose religious convictions preclude negotiating away rights to their bodies (assuming the discussion goes that far in the first place).  And so on., and social

There are alternatives:

1. Sensitively design a reward system that encourages donation from all citizens.

2. Ensure complete and honest and comprehensive counseling before donation

3. Protect for abuse or moral market failure (lie blood donations where prople trade their bodies for life's essentials)

It should be noted that the impulse here is not unique to Massachusetts.  It has been reported  that 

South Carolina state legislators debated a similar plan in 2007, but a discussion on lower penalties was postponed owing to worries about potential violations of federal law. . . . No state permits the donation of organs from executed prisoners, even if they are registered as organ donors. According to the United Network for Organ Sharing (UNOS), there are now 104,413 individuals awaiting an organ transplant in the United States, of which 58,970 are on an active waiting list. (Massachusetts Inmates May Get Reduced Sentence for Organ Donations)

The text of the Bill follows below.

New Discussion Draft Posted: "Chinese State-Owned Companies and Investment in Latin America and Europe"

 

Pix Credit here

 

I take this opportunity to let people know that I have posted a new discussion draft, "Chinese State-Owned Companies and Investment in Latin America and Europe." The abstract describes its objetives:

The Chinese state owned enterprise (CSOE) presents an anomaly in the operation of the well-ordered construction of a self-referencing and closed system of liberal democratic internationalism, especially as that system touches on business responsibilities under national and international human rights and environmental law and markets driven norms. The anomaly is sourced in the increasingly distinct and autonomous framework principles within which it is possible to develop conduct based systems respectful of both human and environmental rights which is emerging as between liberal democratic and Marxist-Leninist systems. This essay considers the forms and manifestations of these disjunctions where CSOEs are used as vehicles for the projection of Chinese economic activity beyond its borders. The essay first situates the CSOE within the political ideology of its home state. The CSOE cannot be understood except as a specific expression of that ideology suited to the times and the context in which it operated. The essay then examines the outward projection of the CSOE national model. To that end the essay focuses on the formal structures for CSOE surveillance by state organs that operationalize the guiding ideology through which they are conceived and operated. This provides the basis for a deeper consideration of the way that the projection of CSOEs abroad is structured within a conceptual cage of policy objectives: specifically the Belt & Road Initiative and emerging conceptions of socialist human rights, including environmental rights and obligations, as these are manifested when CSOEs operate abroad. The focus is on the development of conceptions of risk in that context guiding decisions about the conduct of economic activity. The essay concludes with a suggestion of the greater rift between Marxist-Leninist and liberal democratic approaches—the differences in embracing risk models grounded in prevent-mitigate-remedy strategies.

The analysis centers political ideology and its formal expression through law, regulation, guidance, and operational supervision (theory does matter in this context, perhaps a lot). Nonetheless, at its core, the study is about risk--its ideology and the way it is expressed through governance expectations and principles. One speaks here about legal risk (to align the discussion with the 1st Pillar of the UN Guiding Principles), but also of business risk (aligning the markets driven, private law structures of the UNGP 2nd Pillar).

Pix credit here

More importantly, the sort of risk that one encounters here, in comparing the liberal democratic and Marxist-Leninist models of human rights and sustainability, is intimately tied to the principle of "prevent-mitigate-remedy, and its administrative-compliance overlay.  In a sense, when one speaks to human rights and sustainability, and especially climate change, one is using the  qualitative language of rights to speak to the quantitative probabilities of risk of harm, and more importantly risk of irremediable harm. The function of those principles, then, framed through the prevent-mitigate-remedy principle is to provide a formula for valuing those risks, and for placing them within a hierarchy of risk tolerance. Increasingly in liberal democratic regimes, risk tolerance for strategies that do not privilege prevention (and then mitigation and last remedy) are reduced, or in some cases, risk aversion is implicitly or explicitly the result of the application of the "principles" analysis.  That is fair enough and represents the culmination of conversation about value choices.  Nonetheless, Marxist-Leninist systems approach risk, and risk tolerance in a different way.  That difference is in part a function of differences in the conceptualization of both human rights and sustainability as a function of development and collective prosperity. But it is also in part a reflection, effectively, of what might be preferences for mitigation-remediation (or otherwise exit if the costs of prevention exceed the anticipated vale of an activity), at least indifference as between the strategies as a function of expected value. That poses some challenges for any project that seeks global consensus on  what had once been the unchallenged valuations and framework of liberal democracy.   

The Abstract, Introduction and Conclusion follow. The text of the draft may be accessed HERE. Engagement always welcome as this moves from draft tp more finished versions. 

 

The Conundrums of Current Iterations of ESG in Market Economies--Utah et al v. Walsh: Challenging the Biden Administration's Rulemaking Incorporating of Certain ESG Factors in Pension Investment Decisions

 

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ESG, has been driven by the private sector and intensely debated in the context of privately ordered responsible business conduct standards, and formed part of a rich debates among market actors and public international organizations about the role and nature of so-called non-financial siclosure in genmeral, and sustainability and climate related factors in decision making. The idea has been that consideration of these factors could substantially change the way that businesses approach value maximizing deciswions by giving value to these non-financial factors.   

Over the past few years, massive asset managers and financial institutions have increasingly focused on prioritizing ESG factors when making key investment decisions. They have particularly set their sights on investing in companies based on those companies' efforts to combat climate change and curb their carbon footprints.Companies like BlackRock, State Street and Vanguard, which collectively manage trillions of dollars in assets, have taken lead roles in the ESG movement. (25 states hit Biden admin with lawsuit over climate action targeting Americans' retirement savings)

The problem, however, has always been the reluctance to embed these within financial disclosure regimes and to preserve their role as qualitative risk factors. The move to metrics has produced additional challenges.

Regarding ESG metrics, there is a strong argument that the quality and reliability of ESG metrics need to improve. The role of ESG metrics as a proxy of sustainability performance is highly prominent in empirical studies in the SRI performance theme. However, there are two main measurement problems with ESG metrics: lack of transparency and lack of consistency or convergence. (A Systematic Literature Review of Socially Reposnible Investing (SRI) and Environmental Social Givernnace (ESG), p- 25).

On the other hand, for the World Bank Groups Internaitonal Finance Corporation, "ESG Standards comprise the Performance Standards, which define clients' responsibilities for managing their environmental and social risks, and the Corporate Governance Methodology, which sets out an approach to evaluate and improve the corporate governance of clients." (IFC, Environmental, Social, and Governance).

The goal oriented policy objectives of ESG have also been underscored by the OECD, one that seeks to recionceive the traditional focus on value maximization grounded in traditional financial analysis to  a more generalized set of public objectives toward which economic actoivity can contribute, on e in which the markers of financial value are made more a function of public good objectives. 

While noteworthy progress has been made, considerable challenges hinder the efficient mobilisation of capital to support ESG and climate-related objectives. Greater comparability of climate transition methodologies, as well as transparency and interpretability of climate finance and ESG metrics are urgently needed. In response to the rapid growth of market practices with respect to ESG investing to assess and manage climate transition risks in financial markets, the OECD Committee on Financial Markets (CMF) has developed a substantive body of work that provides analysis on challenges with respect to current market practices, and proposes policy considerations to improve them (OECD, Policy guidance on market practices to strengthen ESG investing and finance a climate transition. p. 7)

ESG initiatives have been tied to the UN Sustainability Development Goals and its 2030 Agenda. It has also become a focus of shareholder actions within enterprises, and regulatory programs in the US federal government.

ESG breakthroughs last year included a surge in shareholder proposals meant to pressure corporations to do better on climate, diversity and similar topics. Meanwhile, the Securities and Exchange Commission unveiled a slew of guidance and rule proposals to improve disclosures and add clarity to ESG investing, including the agency’s controversial proposal for climate risk disclosure. (Investors defend ESG ‘materiality’ in expectation of more attacks).

More recently it has become lumped together with a host of what opponents call an ideological push to transform society in all sorts of ways--and that has in turn produced an increasingly vocal and organized resistance. It has now also become a focus of politics, one with increasing importance. "EU rules require large companies and listed companies to publish regular reports on the social and environmental risks they face, and on how their activities impact people and the environment."  (EU Corporate sustainability reporting (disclosure touches on environmental matters; social and employee aspects; respect for human rights; anti-corruption and bribery issues; diversity on board of directors)). 

The emergence of ESG narratives and methodologies has generated reaction--not only in the economic but in the political sphere as well. ESG has been increasingly treated as an ideological movement the object of which is the erosion  of a key element of core objectives in the economic sector. That assault is undertaken through sideways strategies, ESG included, that seeks to transform purpose by changing the focus of fiduciary duty (and director discretion in decision making), and by adding categories of risk into decision-making analytics. Even if the traditional core purpose of economic activity, to maximize the value of the economic value of collective activity, is retained, its meaning and the factors that must be considered can substantially change the environment in which decisions are made and analytics are fashioned. The core concept of value maximization, remains highly relevant. It was nicely summarized, even in an environment friendly to ESG analytics, in instruments such as the Santiago Principles (Principle 19: "The SWF’s investment decisions should aim to maximize risk-adjusted financial returns in a manner consistent with its investment policy, and based on economic and financial grounds."). And in this form the concept of value maximization serves political ends in transnational spaces. It underlines the strong connection between purpose, concepts of maximization, and the protections of markets as the driving force of economic activity (around which states serve to protect their own interests through regulation and the protection of a level playing field in which they shed their political advantage when they enter the market (and the market distinguishes between between public (political) and private (economic) activity on the basis of some sort of value maximization theory based on financial, rather than social, governance or other criteria. 

Yet ESG is still in search of a disciplinary maturity. Issues of consensus, scalability, quantification, and comparability remain unresolved.  The marketplace for ESG modalities is vigorous. Its anchoring in qualitative analytics and risk analysis produces a temptation for speculation that can be used to advance strategic agendas. No one has been particularly shy about trumpeting these background objectives.  Yet risk based analysis produces it own problems. The issue emerges from the essential political ideology of risk in economic activity.  The thrust of much public policy over the last century has been both to unearth, but also to constrain risk and risk taking.  Prevent-mitigate-and remedy strategies, for example, suggest a preference for risk aversion.  The state and its instrumentalities tend to be risk averse--the essence of the ideology of compliance based governmentality.  However, the ideology of risk taking in markets based economies had, at least in its inception, been grounded on notions of facilitating, and in some respects (eg asset partitioning) encouraging risk. Risk taking is an essential feature of the value of capital and labor pooling to achieve value growth.  The state, then, in a markets privileging environment is caught on the horns of potentially incompatible objectives: the convergence of economic and administrative collectives around notions of compliance and state duty; or the promotion of risk taking in economic ventures to create prosperity and enhance the production of value that can then be tapped for all kinds of purposes.  Conundrum follows--yet most participants in the chattering about this remain blissfully oblivious to the analytics of that conundrum.

It ought to surprise few people, then, that in this anarchic and dynamic environment, the concept of value maximization, its meaning, and its relevance remains hotly contested, sometimes as part of the debate about corporate purpose (see Brief Thoughts on Martin Lipton: "ESG, Stakeholder Governance, and the Duty of the Corporation" (Harvard Law School Forum on Corporate Governance). That aligns with the continued robustness of the core principles of globalization based on idea of a level playing field in which states have a duty to enhance value in the macro community, while economic enterprises have a micro obligation of value enhancement (mindful of business, legal, and financial risk) toward its community of investors or in some instances for the enhancement of its value as a going concern (discussed here).  The investment industry has tried to push back, "pressing the importance of environmental, social and governance considerations in U.S. financial markets ahead of an expected pushback from Republican Party aligned officials as they take control of the House. Firms and funds with acute interest in ESG are adamant that issues such as climate change and human capital management are financially material, albeit non-traditional, issues. The fight against ESG may even add to the growing body of evidence that such factors are critical to investors, according to some." (Investors defend ESG ‘materiality’ in expectation of more attacks).

It has also taken a turn toward law. In late 2022sit was reported that some influential senators threatened to use their oversight powers to consider the implications under US antitrust laws, of the development of ESG reporting and decision making modalities (Senate Republicans warn U.S. law firms over ESG advice). 

The senators cited a "collusive effort to restrict the supply of coal, oil, and gas, which is driving up energy costs across the globe and empowering America’s adversaries abroad." They said Congress would refer anticompetitive actions made in the name of ESG to federal antitrust authorities and told the firms they have a duty to inform clients of such regulatory risks. (Ibud.).

More recently 25 State Attorney's General have recently filed a lawsuit challenging a Biden Administration effort to incorporate ESG in Pension fund investment decision making. The Press Release issued by the Attorney General of Virginia nicely summarizes the action and its rationale:

Attorney General Jason Miyares filed a lawsuit alongside 24 other state attorneys general challenging a Department of Labor rule which would affect the retirement accounts of millions of people. The rule would allow 401(k) managers to direct their clients’ money to ESG (Environmental Social Governance) investments and runs contrary to existing rules and the Employee Retirement Income Security Act of 1974 (ERISA). 

The new rule, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” will take effect on January 30, 2023. Two-thirds of the U.S. population’s retirement savings accounts would be affected, totaling $12 trillion in assets. Strict laws placed in ERISA are intended to protect retirement savings from unnecessary risk. 

“The Biden Administration continues to use other people’s money to achieve its political goals. Virginia families have worked hard to build their retirement accounts. The federal government should be protecting that money, not putting it at risk to support the progressive ESG agenda. But this new rule—created by an unelected and unaccountable bureaucracy without input from Congress or the American people—puts progressive politics above Virginians’ financial wellbeing and security. It is another unilateral and illegal power grab by the Biden Administration,” said Attorney General Miyares.  

From the complaint: “[T]he 2022 Investment Duties Rule makes changes that authorize fiduciaries to consider and promote “nonpecuniary benefits” when making investment decisions. ... Contrary to Congress’s clear intent, these changes make it easier for fiduciaries to act with mixed motives. They also make it harder for beneficiaries to police such conduct.” 

The complaint may be accessed here and below.

 

‘Regulation of State-Controlled Enterprises' - Hybrid Book launch Event; University College London, 10 February 2023

 

 I am delighted to invite interested people to attend the book launch of Regulation of State-Controlled Enterprises:An Interdisciplinary and Comparative Examination (Julien Chaisse, Jędrzej Górski, and Dini Sejko (eds); Singapore, Springer, 2022).

This book analyses actual and potential normative (whether legislative or contractual) conflicts and complex transnational disputes related to state-controlled enterprises (SCEs) operations and how they are interwoven with the problem of foreign direct investment. Moreover, SCEs also fall within the remit of international political economy, international economics and other SCE-related fields that go beyond purely legal or regulatory matters. In this connection, research on such economic and political determinants of SCE’s operations greatly informs and supplements the state of knowledge on how to best regulate cross-border aspects of SCE’s and is also be covered in this book.

The Book Launch event will be organized in hybrid form with some speakers present in person and some attending online via Zoom.

In person attendance: Denys Holland Lecture Theatre, Bentham House, Endsleigh Gardens, London WC1H 0EG.

Online attendance: You will receive a Zoom link via email before the event. REGISTER HERE.

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

Hope you will be able to attend. More information about the book follows below. 

The Costs of Financing Arms Sales--Norway Pension Fund Global Excludes AviChina Industry & Technology Co and Bharat Electronics Ltd.

 

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In a recent press release, the Norwegian Pension Fund Global announced two interesting exclusions from their investment universe:

Following recommendations by the Council on Ethics, Norges Bank today announced the exclusion of the companies AviChina Industry & Technology Co and Bharat Electronics Ltd.
The companies were excluded due to an unacceptable risk that the companies sell arms to a state that uses them in ways that constitute serious and systematic violations of international humanitarian law.
The background for this recommendation is the companies’ sale of arms to the Government of Myanmar.
Please find the Council’s recommendation below.

Council’s recommendation to exclude AviChina Industry & Technology Co
Council’s recommendation to exclude Bharat Electronics Ltd.

In both cases the Council (and thereafter Norges Bank) drew a red line that they actually refused to cross: "the Council takes the position that anyone selling weapons to Myanmar since 2018 should have understood that they could be used in violation of international law." (Bharat Electronics Ltd.; AviChina Industry & Technology Co).

AviChina is a Chinese company that engages in the development and sale of aircraft and aviation products. In December 2021, several light combat aircrafts, of the type K-8, were delivered to the armed forced in Myanmar. The aircrafts are thought to have been produced by a company AviChina controls. It has been reported that such aircrafts have previously been used in combat in Myanmar.

BEL is an Indian producer of aviation and defence electronics. In July 2021, BEL delivered a remote-controlled weapons station to Myanmar. This weapons station has been developed to remotely control weapons from inside an armoured vehicle. It is reported that such vehicles are used in attacks on civilians in Myanmar.

The Council continues to apply a broad foreseeability standard that is grounded on their own interpretation of conclusions that can be gleaned from their investigation and assessed against their "reasonable company" standard: " With respect to the company’s knowledge of the weapons’ use, the Ethics Commission’s report states that it must be possible “with a reasonable degree of certainty to substantiate that the company had knowledge of or should have been able to foresee use that constitutes a violation of international humanitarian law” (Recommendation to exclude Bharat Electronics Ltd from investment by the Norwegian Government Pension Fund Global (GPFG), p. 3). The rationale for this standard is also equally straightforward and grounded in the policy choices that the Norwegian state has made as implemented through their global financing instrumentality: "In keeping with the ethical guidelines as a whole, exclusion under this criterion is not intended to punish companies but to sever the GPFG’s association with unacceptable conditions that are ongoing or may occur in the future. In other words, the decisive factor is the risk of norm violations forward in time." (Recommendation to exclude AviChina Industry & Technology Co Ltd from investment by the Norwegian Government Pension Fund Global (GPFG), p. 3).

Also interesting is the categorical analysis; assessment is based on the potential for a particular class of product to be used militarily, rather than based on an assessment either of intent or of effect (actual use). 

The first question in this case is whether the K-8 aircraft is a weapon encompassed by the criterion. Since such aircraft can be used in combat and it has been reported that such planes have previously been used in this way, the Council concludes that the aircraft does fall within the scope of the criterion. The damage potential is substantial and attacks made using this type of aircraft could impact civilians. (Recommendation to exclude AviChina Industry & Technology Co Ltd from investment by the Norwegian Government Pension Fund Global (GPFG), p. 6).

The first question in this case is whether a remote-controlled weapons station (RCWS) is a weapon encompassed by the criterion. The product is not, in and of itself, a weapon. However, it is an item of military equipment that is also encompassed by the criterion. The RCWS may be installed in armoured vehicles, which are known to be used against civilians in Myanmar. The Council notes that this was a one-off delivery. (Recommendation to exclude Bharat Electronics Ltd from investment by the Norwegian Government Pension Fund Global (GPFG), p. 6)

Invitation to Virtually Attend Lecture: Keren Wang, "Social and Moral Engineering in the Age of Big Data: Personalized 'Pillars of Shame' and the Chinese Social Credit System"

 



 It is my great pleasure to pass along the announcement of what is going to be a fantastic lecture by my colleague, friend and former student, Keren Wang, now an ACLS Post-Doctoral Fellow at Emory University (Atlanta, Georgia USA).  The lecture, "Social and Moral Engineering in the Age of Big Data: Personalized 'Pillars of Shame' and the Chinese Social Credit System" examines one of the most sensitive areas of legal development--the transformation of the modalities and language of law from text to symbolic action, and its enforcement from an administrative task exogenous to the act, to the development of systems of governmentality (the governance of modes of thought in this case) grounded in quantification and nudging strategies that internalize compliance.  The way that traditional textual-qualitative-exogenous legalities will be aligned with symbolic-quantitative-endogenous legalities will reshape our understanding of law for some time to come.

The specific focus in this case is China and its  pioneering work in this context organized within regimes we have come to label generically Social Credit. 

The construction of the Chinese Social Credit System (SCS) represents one of the most ambitious social engineering projects in post-Mao China. It is also arguably the most significant governance-by-data experiment thus far in the 21st Century. This lecture explores the ways in which the SCS project was prompted by a ritual impulse to inculcate Chinese social moral character in the big data age.

The lecture will take place Monday 6 February 2023 from 7.00 to 8.00 PM (US East Coast Time) and may be accessed via ZOOM:

https://emory.zoom.us/j/94409772969 

 The lecture is sponsored by the Department of Russian and East Asian Languages and Cultures (REALC) at Emory University, an interdisciplinary department dedicated to the study of languages and cultures in the geographic continuum from Eastern Europe through Eastern Asia. It is the first of this semester's Faculty Spotlight Lecture Series.

I hope you will consider attending.

Instruments in the Marketplace of Liberal Democratic Multilateralism: Brief Thoughts on Stewart Patrick, "Four Contending U.S. Approaches to Multilateralism"

 

Pix Credit here

 The narrative, carefully cultivated in the United States and even more carefully cultivated by on set of factions of the leading forces of American collective society, is that the period between 2016-2020 was some sort of aberration and that the correction gloriously brought forth by the voting choices of a bare majority of those participating in the 2020 American presidential election, has set to rights the otherwise well tended course of American engagement in the world.  

Pix Credit here

It is, if nothing else, comforting. And to the extent that there was a correction from the crude boorishness of communication during those years (expressed in brutalist style text and policy) to the more refined Neo-classical style of post -1945 American discursive and policy engagement, the forms of discourse and policy have again assumed an outward appearance more in keeping with the expected forms of politesse among stakeholders in the international community. Nonetheless, it remains unclear whether the forms of engagement continue to mask an affirmation of precisely many of those products of that brutalism and many of the fundamental re-orienting frameworks that were so boorishly rolled out  after 2016. And, indeed, the even more interesting question is one of continuity--that the manufacturing of the narrative of aberration and break between 2016 and 2020, and the return to Neo-classicism  actually serves to mask a strategic set of continuity choices of trajectories of choices with respect to which the political climate before 2016 made substantially harder to advance.

The Biden Administration National Security Strategy (October 2022) made this later point somewhat clearer:

Our goal is clear—we want a free, open, prosperous, and secure international order. We seek an order that is free in that it allows people to enjoy their basic, universal rights and freedoms. It is open in that it provides all nations that sign up to these principles an opportunity to participate in, and have a role in shaping, the rules. It is prosperous in that it empowers all nations to continually raise the standard of living for their citizens. And secure, in that it is free from aggression, coercion and intimidation.
Achieving this goal requires three lines of effort. We will: 1) invest in the underlying sources and tools of American power and influence; 2) build the strongest possible coalition of nations to enhance our collective influence to shape the global strategic environment and to solve shared challenges; and 3) modernize and strengthen our military so it is equipped for the era of strategic competition with major powers, while maintaining the capability to disrupt the terrorist threat to the homeland. (NSS, supra, pp. 9-10).

The President made this quite clear in the introduction to NSS:

The 2022 National Security Strategy outlines how my Administration will seize this decisive decade to advance America’s vital interests, position the United States to outmaneuver our geopolitical competitors, tackle shared challenges, and set our world firmly on a path toward a brighter and more hopeful tomorrow. . . Around the world, the need for American leadership is as great as it has ever been. We are in the midst of a strategic competition to shape the future of the international order.

To a large extent, then, one might be forgiven if the thought creeps in unbidden that the current iteration of the American foreign policy vision appears to be to preserve and augment the effective goals of America First but without its impolite and offensive discursive rabble rousing. In its place is a language and practice better conforming to international practices of discursive politesse.  That state of things would, at the very least, have the salutary effect of aligning the discourse and intentions of the United States and of China, each incarnating quite distinct visions of and for the world for each each has reserved for itself the position of apex vanguard leadership. At the same time, however, it becomes discursively critical to take the opportunity of personnel and discursive shifts to suggest that the change in discourse also has produced a change in objective. Moreover, it leaves open the question of the constitution of the amalgamation of willing states assuming various relationships with the leading forces of American functionaries and others with the authority operationalization of discourse and policy.   

This all becomes clearer as one considers the quite interesting contribution that that important mission, Stewart Patrick, "Four Contending U.S. Approaches to Multilateralism," published 23 January 2023 through the Carnegie Endowment for International Peace. The core purpose of the contribution is to think through modalities of multilateralism and their risk-reward profiles. The four that serve as the basis of analysis reflect what is put forward as the core consensus strategic approaches around which American leaders and their allies now strategize and with which they now argue among themselves. 

 

("Four Contending Approaches to Multilateralism," supra)

True to the times, the essay situates its contribution within the four corners of the new American foreign policy discursive orthodoxy. "The era of U.S. president Donald Trump exposed the shortcomings of a unilateralist and hypernationalist approach to the pursuit of U.S. global objectives. . . Biden has turned the page on Trump’s “America First” foreign policy, but the debate over alternative approaches to intergovernmental cooperation has just begun." (Four Contending U.S. Approaches to Multilateralism," supra). Patrick aligns the analysis, quite rightly, to the necessity of bending strategy to the realization of the NSS core objectives of American leadership over a rules based multilateral order.

The essay may be accessed HERE. The essay is an important one and well worth reading and thinking through. Brief reflections follow below.