International Conference on “The Rule of Law with Chinese Characteristics in Transition”: Abstracts of Conference Papers

It was my great pleasure to participate in the City University of Hong Kong's Centre for Comparative and Chinese Law International Conference on “The Rule of Law With Chinese Characteristics in Transition” held 5-7 June 2013 at the Connie Fan Multi-Media Conference Room, 4/F Chen Yick-Chi Building on the campus of CUHK.  My great thanks to the Centre's director, Dr. LIN Feng, for organizing a great conference on a very current and important project. Co-organizers included the Chinese Journal of Law, Institute of Law, Chinese Academy of Social Sciences, Beijing.

(Pix (c) Larry Catá Backer 2013)

As described by Professor LIN,

The objectives of the conference include three facets generally. The first objective is to provide a platform for scholars from different areas, and make the dialogue much more diverse and fruitful. Accompanied with much more openness of Greater China, more and more dialogues are needed for understandings and agreements among one another. The theme on the rule of law with Chinese characteristics is such a one needed to be explored and discussed for the future of China.

The second is to focus on this theme from comparative perspectives, get consensus on the pros and cons of the features of the rule of law with the so-called Chinese characteristics in transition so as to keep these characteristics, follow the track of the rule of law and arrive at Chinese rule of law eventually.

The third is to bridge the communications between China (including Hong Kong, Mainland China, Macau and Taiwan), North America, Europe, Australia and other countries and regions, so as to make Hong Kong academia know much more about the recent intellectual developments in these relevant areas.

This post includes the abstracts of the papers presented at that conference and short bios of the conference participants.

Ruminations 50: Edward Snowden and Polycentric Global Governance Orders Beyond the State

The last several weeks have brought much attention to issues of the cyber warfare that governments have been waging  amongst themselves and with a in increasingly larger set of non state actors--individuals and organizations, whose interests the state deems threatening it its interests. 

(Pix ("Edward Snowden and the NSA files – timeline," The Guardian, June 23, 2013).)

What started as a concerted effort by Western States to discredit Chinese cyber espionage activities against public and private targets ("China's Cyber Hacking: Getting Ugly," The Economist, Feb. 23, 2013; Shane Harris, "China's Cyber Militia", The National Journal, May 31, 2008, updated May 29, 2013; David E. Sanger, David Barboza and Nicole Perlroth, "Chinese Army Unit Is Seen as Tied to Hacking Against U.S.," The New York Times, Feb. 18, 2013; Michael Riley & John Walcott, "China-Based Hacking of 760 Companies Shows Cyber Cold War,"  Bloomberg, Dec. 14, 2011) took an unexpected turn at the beginning of June 2013 when Edward Snowden fled to Hong Kong after revelations of massive United States programs of cyber monitoring by the US National Security Agency of activities of public and private institutions and individuals through its Prism program, among others (Glenn Greenwald, Ewen MacAskill and Laura Poitras, "Edward Snowden: the whistleblower behind the NSA surveillance revelations," The Guardian, June 9, 2013; "Edward Snowden and the NSA files – timeline," The Guardian, June 23, 2013).

Most analyses tend to fall within the ancient framework of state based international relations and law (e.g., Matthew Belvedere, "McCain: Russia's Denials on Snowden Like Cold War," CNBC, 25 June 2013; Rob Quinn, "US, China, Russia Brawl Over Snowden," Newser, 25 June 2013; Max Boot, "Snowden's Quest Isn't About Civil Liberties," Commentary, 12 June 2013).  Lost in the two dimensional and anachronistic traditional analysis is the role that may have been by non-state orders in developing a normative framework within which Snowden made his decision to leak, and the support network that was critical to the success both of the disclosures and to his avoidance, at least for the moment, of capture.  This essay suggests that the real lesson of the Snowden affair has little to do with leaking the Prism program, something that people with no access to official documents could have easily surmised in any case.  The real revelation of the Snowden affair is the power and scope of non-state actors on the international stage.  

Beth Farmer on the Chinese Commerce Ministry's Interim Regulations on Standards for Simple Mergers

My colleague, Beth Farmer has written an excellent analysis of the new Chinese interim regulations on standards for simple mergers. S. Beth Farmer, "MOFCOM Publishes Interim Regulations on Standards for Simple Mergers and Requests Public Comments,"  Competition Policy (June 18, 2013).

 (Pix from Penn State Law Website.)

Professor Farmer’s research interests include U.S. and foreign antitrust and trade regulation law, issues of federalism, and comparative competition policy. She has served as a non-governmental advisor and rapporteur for the International Competition Network annual conferences in 2010 (Istanbul) and 2009 (Zurich) and is currently working the Agency Effectiveness Working Group on a chapter for the Competition Agency Practices Manual that will address agency prioritization and strategic planning, project management techniques and project evaluation. has written an excellent analysis of the new Chinese interim regulations on standards for simple mergers.

I have included the Introduction, and Background Sections.  The entire essay may be downloaded through the Social Science Research Network website: HERE. 

The Role of the Chinese Communist Party in Business Enterprises--Law, Politics and Policy in the Construction of a Global Political Economy With Chinese Characteristics

I am starting research on the role of the Chinese Communist Party within private and public companies in China, and eventually, on the role of the CCP in Chinese companies operating abroad. The object is to try to understand the way in which the separation of powers within the Chinese constitutional framework--administrative power in state organs and political authority in the CCP--may be contributing to a distinct evolution of relationships between traditionally constituted private and public power. This has implications both for the interactions between public and private regulatory systems but also to the evolution of connections between global and domestic regulatory regimes.

 

(Pix (c) Larry Catá Backer 2013)

 This post includes a report by Shan Gao, an SJD candidate at Penn State that proposes some preliminary ideas about the connection between state, Party and business in China as a matter of law and policy. .

On the Relationship Between the Chinese Communist Party and Non-State Enterprises--Translation of CCP Central Committee Policy “Opinions on Improving and Strengthening Party Organization’s Construction in Non-SOEs (Temporary)”

The relationship between Communist Party and State has been the object of substantial work among Chinese and foreign academics.  But perhaps more interesting is the emerging relationship between the Chinese Communist Party and private enterprises operating within the parameters of Chinese socialism.  This presents not merely another facet of law with Chinese characteristics, but also another aspect of the way in which polycentricity has become more naturalized even within the domestic legal orders of strong states.

(Pix (c) Larry Catá Backer 2013)

I have posited that the old boundaries between public and private law have been giving way to new and more complex polychromatic relationships between state and other transnational enterprises, principally those operating in corporate form. (Backer, Larry Catá, "The Structure of Global Law: Fracture, Fluidity, Permeability, and Polycentricity," 17(2) Tilburg Law Review 177-199 (2012). Chinese state and Communist Party authorities have begun to act on this understanding, both in the construction of internal policy and in the development of policy for the effective intervention int he construction of mulch-sourced governance frameworks.Patrick Boehler recently reported that "Beijing has for the first time established an advisory council of multinational heavyweights to help the leadership keep a finger on the pulse of major corporations in vital industries. . . .  The mechanism will gove Bejing a platform to directly lobby influential multinational leaders across different sectors in future trade disputes."  Patrick Boehler, "Beijing Sets Up Multinationals Advisory Body," South China Morning Post, June 7, 2013.

This approach stands in marked contrast to similar efforts to leverage international softy power by Norway. (Backer, Larry Catá, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets 29 American University International Law Review – (forthcoming 2013)(November 18, 2012). Yet in both cases, the state is seeking to leverage public power through private markets.  In China, as in Norway, that leveraging involves active participation i corporate governance. While the Norwegians pursue this goal through their active shareholder policy, the CCP has deepened their policy of integrating Party work and education within corporate governance.  In this way, state and enterprise are connected seamlessly through the mediating force of the CCP, the way in which the Party stands as the nexus poiint between domestic and foreign policy. (Backer, Larry Catá and Wang, Keren, 'What is China's Dream?' Hu Angang Imagines China in 2020 as the First Internationally Embedded Superpower (February 23, 2013). Consortium for Peace & Ethics Working Paper No. 2013-2). But in the case of enterprise power within globalization, that seamlessness requires recognition of distinct governance spheres, one public and the other private.

I will be writing more about this in the context of the Chinese system in future posts.  In this introduction, I present a translation of a basic document of CCP policy--the “Opinions on Improving and Strengthening Party Organization’s Construction in Non-SOEs (Temporary)” People’s daily 2012 May 25th.

New Paper Posted: "State and Party in the Scientific Development of a Legitimate Rule of Law Constitutional System in China: The Example of Laojiao and Shuanggui"

The City University of Hong Kong's Centre for Comparative and Chinese Law is hosting an International Conference on “The Rule of Law With Chinese Characteristics in Transition” to be held 5-7 June 2013 at the Connie Fan Multi-Media Conference Room, 4/F Chen Yick-Chi Building on the campus of CUHK.  My great thanks to the Centre's director, Dr. LIN Feng, for organizing a great conference on a very current and important project. More on the conference in a future posting.

(Pix (c) Larry Catá Backer 2013)

I will be presenting a paper at that conference, co-authored with Keren Wang, a PhD candidate at  Penn State, which we have titled "State and Party in the Scientific Development of a Legitimate Rule of Law Constitutional System in China: The Example of Laojiao and Shuanggui," which considers the constitutionality of extra-constitutional or extra-legal detentions undertaken by the state (in the case of laojiao “劳动教养”) and by the Chinese Communist Party (in the case of shuanggui "双规").

The conference draft is now available through the Social Science Research Network (SSRN) HERE and the abstract follows below. We would be grateful for comments and suggestions. 

The PowerPoint of the presentation (in English and Chinese) is available HERE or HERE.

Presentation at 2013 Annual Meeting Law and Society: Whose Crisis? Secular Liberalism, the Theocratic State and the Political Consequences of Privileging Religion for Multi-Religious States

The Law and Society Association held its 2013 Annual Meeting in Boston, Massachusetts this year.  I presented a paper, entitled, Whose Crisis? Secular Liberalism, the Theocratic State and the Political Consequences of Privileging Religion for Multi-Religious States for a panel  entitled, “An Existential Crisis for Secular Liberalism.

(Pix (c) Larry Catá Backer 2013)

My great thanks to Mark Modak Truran, Mississippi College for organizing a great panel and for leading the lively discussion.Additional contributions included The Scandal of Disenchantment within International Law, presented by John D. Haskell (Mississippi College School of Law), and The Antinomies of Religious Freedom: Reading the Egyptian Bahai Cases, presented by Peter Danchin (University of Maryland).

This post includes the abstract and short introduction to the conference draft of the paper and links to the paper.

POWERPOINT presentation may be accessed HERE.

Ruminations 49: "Society Knows What it Wants"-- Of Markets, Status Hierarchies and Knowldge Production

In his germinal text, Henry David Thoreau expressed a contradiction that is worth exploring in some detail.  He declared: the "greater part of what my neighbors call good I believe in my soul to be bad, and if I repent of anything it is very likely to be my good behavior."  (Henry David Thoreau, Walden (chp. 1 Economy) (1854)).  Yet this tension is made irrelevant by the framework within which it is confronted.  "Shams and delusions are esteemed for higher truth, while reality is fabulous. . . .By closing the eyes and slumbering, and consenting to be deceived by shows, men establish and confirm their daily life of routine, and habit everywhere, which still is built on purely illusory foundations." (Ibid., chp. 2, Where I Lived--What I Lived For). And the illusion of the foundation of life, of the basis of good and bad, is in turn reduced to irrelevance when one passes from one to another generation. Thoreau understood that "[o]ne generation abandons the enterprise of another like stranded vessels." (Henry David Thoreau, Walden (chp. 1 Economy) (1854)).

(Pix (c) Larry Catá Backer 2013)

Society knows what it wants!  The limits of knowledge are set by the desire to know certain things in certain ways; those who control the mechanics of knowledge relevance and the frame within which it is produced and interpreted, shape the way in which the possible is understood and veils the rest. The production of knowledge is commodified and disciplined through markets, like any other product.  What society knows is what it wants to know, and society always knows what it wants to know. The universe of that desire describes the totality of the reality of knowledge and its production; the rest is veiled. But the satisfaction of this demand requires an academic industry that is willing to meet the demands for knowledge that serves to meet societal needs. Thus the contradiction, knowledge exists to conform and advance intuition or to achieve an objective; knowledge production does not exist independent of the premises with which it is meant to engage.  It is only from time to time, when its essential contradictions are exposed, that one pauses, if only momentarily, to consider the character of the edifice thus constructed.  And so it is with the case of Diederik Stapel--who epitomizes all that is valuable in this framework structure, and semiotic incoherence of notions of "fraud" in the production of "useful" knowledge, when science is geared to tell people, and the institutions developed for their management, what they want to hear. Yudhijit Bhattacharjee, "The Mind of a Con Man: Diererik Stapel, a Dutch Social Psychologist, Perpetrated an Audacious Fraud by Making Up Studies That Told the World What it Wanted to Hear About Human Nature," The New York Times Magazine, April 28, 2013.

Chinese SOEs in Latin America--CSR and Culture

There has been much attention paid to the practices of Chinese multinationals, especially its State Owned Enterprises, in Africa (e.g., Lucy Corkin, "China's Emerging Multinationals in Africa," The Africa Journal, Spring 2007; Chris Alden, China in Africa: African Arguments (London: Zed Books, 2007); China Into Africa: Trade, Aid, and Influence (Robert I. Rotberg, ed., Washington, D.C.: Brookings, 2008); Párdraig Carmody, The New Scramble for Africa, Cambridge: Polity Press, 2011); Corporate Responsibility in African Development:  Insights From an Emerging Dialogue, Maya Forstater, Dr. Simon Zadek, Professor Yang Guang, Kelly Yu, Chen Xiao Hong, and Mark George, Working Paper No. 60, Harvard Kennedy School Corporate Social Responsibility Initiative, October  2010).

 (Pix (c) Larry Catá Backer 2013)

Considerably less attention has been paid to the increasingly important involvement of Chinese firms, private and state owned, in Latin American development.  I have previously suggested the U.S. emphasis on the strategic implications of China-Latin American Trade (See, Thoughts on the US-China Economic & Security Review Commission Report: China in Latin America,  Law at the End of the Day, March 5, 2012 (with useful citations)). My research assistant has prepared a general and brief preview of the issues of CSR in Chinese outbound investment in Latin America.  More to come.

Norwegian Sovereign Wealth Fund Excludes Makers of Reconstituted Tobacco Leaf in the U.S. and China

On May 8, 2013, the Norwegian Ministry of Finance published its decision to exclude the American company Schweitzer-Mauduit International Inc. and the Chinese company Huabao International Holdings Limited from the investment universe of the Norwegian Government Pension Fund Global (GPFG). The decision is based on a recommendation from the Council on Ethics for the Fund.

("Reconstituted Tobacco Leaf (RTL) was a concept pioneered by SWM and is now widely used throughout the tobacco industry for blend construction. By reclaiming remnants of virgin tobacco remaining after manufacture-elements that would otherwise be wasted-we combine them into a malleable sheet. This can then be used directly in the tobacco blend in combination with other tobacco leaf to form a very consistent and high quality cigarette blend."  SWM, Reconstituted Tobacco)

While the decision would not merit much notice--the NSWF has for years  excluded companies tyhat produce tobacco form its investment universe (NSWF Ethics Guidelines Section 2, Para. 1(b)--this decision merits attention because the Ministry this time considered the applicability of this exclusion rule to reconstituted tobacco leaf.  

The Minsitry's press release is available HERE.

The Ethics Council Recommendation is available HERE.

The post reviews these documents and briefly considers its effects on both form and function of due process.