Tuesday, August 22, 2017

Bashar H. Malkawi and Joel Slawotsky--Essay: "National Security Review of Chinese FDI into the GCC: Challenges and Opportunities"

(Bashar H. Malkawi)

(Joel Slawotsky)

Joel Slawotsky, of the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel. has written He has also guest blogged for "Law at the End of the Day"  on issues relating to corporate liability under international law  (e.g., "Rethinking Financial Crimes and Violations of International Law", Jan. 9, 2013; "Corporate Liability Under The Alien Tort Statute: The Latest Twist"April 26, 2014) and on issues of multilateral trade and finance (Joel Slawotsky Reports From Chinese University of Hong Kong: Asia FDI Forum II--China's Three-Prong Investment Strategy: Bilateral, Regional, and Global Tracks) He has also recently also served as Guest Editor of the Sovereign Wealth Fund special issue of Qatar University International Review of Law (IRL) (2015); Joel Slawotsky Reports From Chinese University of Hong Kong: Asia FDI Forum II--China's Three-Prong Investment Strategy: Bilateral, Regional, and Global Tracks (December 2016), and"On the potential shift from the present-day architects to new architects on the definition of international law" (Match 2017). 
Bashar H. Malkawi is Professor of Commercial Law at University of Sharjah, where he teaches courses in international trade law, intellectual property and business transactions. He received his S.J.D from American University, Washington College of Law in 2005, and LLM in International Trade Law from University of Arizona in 2001. He has also taught at the Hashemite University-Jordan (2005-2010) and the International University College of Turin, Italy (summer 2009-2010).

They have very kindly produced a marvelously insightful essay: National Security Review of Chinese FDI into the GCC: Challenges and Opportunities. The essay  considers the ramifications of one of the most potent an dynamic elements of global trade--the entry of a very muscular China into global trade flows.  China's One Belt, One Road Initiative has the potential to reshape the contours of global trade. The challenges are to some extent different from those the region faced with U.S. and Rueopean trade a generaiotn agop, and is in its own way as potent. This essay provides an excellent examination of key aspects of these transformations.
About the essay, this from the authors:
I want to thank my friend and colleague Larry Backer for inviting me to write a guest post in his magnificent legal blog regarding paper selected for publication in the Transnational Dispute Management Journal as an article for inclusion in an upcoming special issue on OBOR. See HERE.

I had the privilege of co-authoring this paper with a global expert on trade and finance, Bashar Malkawi, Dean of the University of Sharjah College of Law. Bashar and I hope readers of Law at the end of the day, will enjoy this summary. Obviously we can only provide a general overview as the article itself and in particular the specifics of our proposal are available only to TDM subscribers. The advanced publication is now available by clicking THIS LINK.  
The essay follows.

Sunday, August 20, 2017

“European China Law Studies Young Scholars Workshop” : Program and Summary of My Remarks

This year the European China Law Studies Association will host the “European China Law Studies Young Scholars Workshop” at its 12th annual conference, Wednesday, 23 August 2017 at Leiden University.

The Program follows.  

I have been asked to speak on methodological approaches to assess the legal development in China's One Party State. My remarks, "Methodological Approaches to Assess the Legal Development in China’s One-Party State-- A Personal Journey," also follow.

Friday, August 18, 2017

A View of Venezuela From the Cuban Independent Press Sector--Rene Gomez Manzano: ¡Ni hierba queda! La situación venezolana se caotiza cada vez más

The Western liberal press tends to be much more leery about covering the breakdown of a state, and its human rights abuses, as its slow motion leftist revolution descends toward chaos and violence.  It has no trouble at all investing time and outrage where the government has been more likely to be painted in classically fascist hues. Perhaps that is a function of the long pattern of socialization, especially covering Latin American politics, that Western media was taught in the wake of a generation of rightist dictatorships (and their horrors) during the middle third of the last century. That lesson, well learned, does not serve anyone well anymore. Venezuela tends to be the case in point. The pres sis the last to learn a lesson well understood by others--totalitarianism might well be the essence of fascism, but it has deep roots in European Marxism as well, especially European Stalinism.  The essence of the totalitarian tendency is manifested in the way in which a styate, lead by a unifying party, will sacrifice peopel for their own conception of the state and their overriding need to survive--to which ends no barrier, nor moral imperative, is superior. This has done the people of Venezuela no good. 
Perhaps, then, a view from the liberal press in Cuba, might provide a bit of an antidote to the usual approaches of the press toward the coverage of what was once the Venezuelan Republic. To that end, Rene Gomez Manzano has written an essay worth considering.  Not just because it avoids the turgid constraints of modern journalistic prose, but because of what it has to say from the perspective of people whose starting point is quite different form those of us comfortably hunkered down in the West.

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.
His essay, that appeared todaty in CubaNet,¡Ni hierba queda! La situación venezolana se caotiza cada vez más follows (Spanish only).

Thursday, August 17, 2017

If Everyone Overplays their Hand Are There any Hands Worth Playing?: Congressional-Executive Commission on China; Statements by Chairs on the “Political Prosecutions” of Umbrella Movement Leaders

("Student leaders Nathan Law and Joshua Wong walk into the High Court to face verdict on charges relating to the 2014 pro-democracy Umbrella Movement, also known as Occupy Central protests, in Hong Kong, China August 17, 2017." PIX: Tyrone Siu; Critics cry foul as Joshua Wong and other young Hong Kong democracy leaders get jail (REUTERS 17 August 2017))
The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (see, e.g., here, here, here, here, here, here, here, and here.

Heading into the end of summer, the internal and external relations of the People's Republic of China and the United States, respectively, have entered a sensitive time. Externally, both states face a number of challenges, some of them creatures of their own creation, and now in some respects substantially out of their effective control.  More interestingly, both states now face a number internal challenges that may trigger decisions with wider consequences. In the United States, the civil war among elites, deploying shock troops at the fringes of the political spectrum reminds one of early Weimar Germany and with that reminder, of the possibilities for destabilization. China finds itself weeks from its Communist Party Congress.  These are always, even in the best of times, sensitive periods where the exercise of inter-party democratic centralism can produce significant effects on the trajectories of senior Party cadres and substantially affect the meaning and application of the Basic Line of the Communist Party.  It is no surprise, then, that the run up to the 19th Communist Party Congress might also produce stress. 
It is in this environment, one where internal stresses may suggest the need for action, that key officials or institutions might be tempted to overplay their hands, that is, to threaten one's chance of success through action indicating an (over)excessive confidence in one's position.  One might to tempted to think along those lines as one follows the slow and painful long term consequences in and for Hong Kong of the so-called Umbrella Movement of several years ago.  "A Hong Kong appeals court jailed three leaders of the Chinese-ruled city's democracy movement for six to eight months on Thursday, dealing a blow to the youth-led push for universal suffrage and prompting accusations of political interference." (Venus Wu and James Pomfret, Critics cry foul as Joshua Wong and other young Hong Kong democracy leaders get jail (REUTERS 17 August 2017)).  That action, perhaps by a government eager to signal to higher authorities, produced a equally significant counter action in the United States, perhaps by officials also eager to signal, but in a very different direction. These signalling actions, in the face of the current internal situations of both states, are likely to bear fruit in unexpected ways. It is to the U.S. counter action that this post focuses: the Statements by Chairs on the “Political Prosecutions” of Umbrella Movement Leaders. See also here and here

Wednesday, August 16, 2017

More Changes Coming to the Norwegian Pension Fund Global--Private Equity Investing and Review of Active Management?

The Norwegian state has been busy over the last several years in a slow motion remaking of its sovereign wealth fund, the Pension Fund Global. It has rearranged the relationship between the Pension Fund Global and the Finance Ministry and it has substantially limited the extent of the effective authority of the Ethics Council (though not of the strength or scope of the Ethics Guidelines).  It has appeared to encourage greater reliance on the use of shareholder power (through the observation device) and less of the more formalist remedy of exclusion from the investment universe of the Pension Fund Global. Most recently it has released its released its Official Norwegian Reports NOU 2017:13 (Summary): The Act relating to Norges Bank and the Monetary System and the organisation of Norges Bank and the management of the Government Pension Fund Global New central bank act, which includes a number of relevant recommendations for the operation of the Norwegian Pension Fund Global and the structures for its embedding within the Norwegian State apparatus (see, e.g., here). 
 The Norges Bank is constructing itself (ironically given that it is, after all a bank) as at least risk neutral, and with it, has adopted the customs and behaviors of risk neutrality: pragmatism, objectives based approaches, and engagement grounded on the intuition that management and control is more effective than distance and judgement. For them, there are only objectives (for the Bank to make money; for the enterprise compliance with investment rules) and a functional approach to compliance, with a somewhat more flexible time horizon. (e.g., here).

Now Investment and Pension Europe is reporting studies that indicate a determination to make additional changes for the Norwegian SWF, its Pension Fund Global. It has constituted two groups, the first to analyze performance of the Pension Fund's active management. Active management, of course, has been reviewed periodically--for instance in 2009 and 2014 (also here) The second, perhaps more importantly, will consider modifying rules that would permit the SWF to invest in private equity. 
The story follows.

August 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HEREHERE, HERE, and HERE, HERE, HEREHEREHERE, HERE, and Here).

Professor Knox has just released his August 2017 newsletter on the progress of the mandate, which includes links to a number of important statements and activities. A section of special note: Professor Knox has contributed to action on the protection of human rights defenders. Here he announces the launch the Spanish-language website for environmental defenders, www.environment-rights.org, in Colombia that is scheduled to be available this fall. In this work he joins a number of other mandates with the work of the High Commissioner, one which I have noted in other posts (e.g., here, and here). His work on environmental access rights in Latin America and the Caribbean is also worth a close look.

The post includes the 16 August 2017 Newsletter of the Special Rapporteaur (with links).

Tuesday, August 15, 2017

The End of Socialist Regional Trade Models? The Alianza Bolivariana para los Pueblos de Nuestra América and the Cuba-Venezuela Axis

(Pix from Janier Álamo Zamorano, El sueño integracionista de José Martí, CubaTV (19/05/2017))

Back when petroleum was expensive and the hopes and expectations of a socialist road for Latin American (and Caribbean) integration was much more optimistic, I considered the emerging frameworks of a regional trade model that specifically rejected the basic structural foundations of globalized trade and sought to develop a model based on state to state bartering transactions as the driving force of trade, one that privileged political and social objectives over economic (profit) objectives, and one that sought to use economic transactions for quite specific cultural reconstruction ends.  This Alianza Bolivariana para los Pueblos de Nuestra América was going to remake Latin America (e.g., From Colonies to Collective:  ALBA, Latin American Integration, and the Construction of Regional Political Power, Routledge Handbook on Diplomacy and Statecraft (B.J.C. McKercher, ed., London:  Taylor & Francis/Routledge, 2012); Cuba And The Construction Of Alternative Global Trade Systems: ALBA And Free Trade In The Americas, 31(3) University of Pennsylvania Journal of International Law 679-752 (2010) (with Augusto Molina Roman)).

But that model has been fragile and a decade of shocks has substantially weakened all but its ideological structures.  Fidel Castro and Hugo Chavez are dead.  The price of petroleum remains low (relatively speaking). Normalization of U.S.-Cuba relations has changed the economic playing field (potentially). Venezuela's own experiment in soft socialist revolution has turned violent and the nation has been plunged into a period of instability in which many are suffering. And the rest of the ALBA universe has failed to provide substantial overt aid either to ALBA itself or to its key state driver. (though it is impossible to say what sort of covert aid might be provided). 

A key driver of ALBA was the Cuba-Venezuela axis.  That axis was founded on a state to state trade deal in which Cuba bartered medical and other social oriented programs (and people) for Venezuelan petroleum. It worked reasonably well for a while.  But that core program now appears to be imperiled. And with the effective end of that basis for cooperation one can only wonder whether what remains of ALBA (except as a rhetorical and political device for evidencing a solidarity of convenience among its members) will also wither away. One gets a sense of this from recent efforts at holding onto the regional and politically focused integration objectives of ALBA (Janier Álamo Zamorano, El sueño integracionista de José Martí, CubaTV (19/05/2017) ("Como nos enseñó Martí, como nos inculcó Fidel, sólo la alianza de todas las fuerzas progresistas permitirá establecer un plan de integración regional basado en la solidaridad, la reciprocidad, la justicia social, la preservación de la cultura y la paz.")).   In ALBA's place, it appears that China's One Belt One Road Initiative now takes center stage as the next generation model of global trade and regional integration on a Markets Marxist model

A recent excellent report by Marc Frank for Reuters suggests some of the contours of the current state of affairs.  It is well worth reading and follows below:

Monday, August 14, 2017

From the Conference Board--Measuring the Impact of Corporate Philanthropy

In many ways, enterprise engagement with corporate social responsibility (CSR) tends to find expression in corporate philanthropy. This is a global phenomena and one that is still central to corporate expression of societal obligation even in the face of the elaboration of business and human rights structures, including the methodologies of human rights due diligence. 

The issue of measurement is increasingly important both as a measure of effective targeting of corporate activities in the societal sector.  It may also serve as a means of determining the effectiveness of measures that may have positive human rights impacts. In countries like China, it will serve as a necessary element of the social credit system as applied to enterprises.  There the need to generate measures of effectiveness of giving will serve to assess and reward programs of giving that accord with broad policy objectives. The ability to measure and defend the choices for philanthropy are also likely to become important in the West especially in the context of the monitoring obligations of boards of directors and the exercise of their duty of care.    

Our friends at the Conference Board have recently done a little research on the extent to which companies attempt to measure or evaluate the business or social impacts of their corporate giving. The Conference Board Press Release, with links, follows, along with brief thoughts.

Sunday, August 13, 2017

China's Social Credit Initiative in a Global Context: First Attempt at FAQs

(Pix Credit 6th Tone))

I have started thinking through the issues around social credit generally, and the Chinese Social Credit project specifically (China's Social Credit Initiative in a Global Context: Introduction and the Problem of Transparency). I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates. 

This post provides a first cut at an FAQ. These are not so much questions frequently asked, but the sort of questions that ought to be asked with frequency--and then considered more dispassionately.  For more please see my colleague, Flora Sapio's post HERE

Friday, August 11, 2017

Call for Written Inputs: Human Rights Defenders and Civic Space – The Business & Human Rights Dimension

(Pix © Larry Catá Backer 2016)

Issues around the safety and scope of operation of individuals identified as human rights defenders has become an increasingly important area of concern.  "The term “human rights defender” has been used increasingly since the adoption of the Declaration on human rights defenders in 1998. Until then, terms such as human rights “activist”, “professional”, “worker” or “monitor” had been most common. The term “human rights defender” is seen as a more relevant and useful term." (Who is a Defender?). The United Nations human rights institutions have been devoting substantial efforts to developing a structure for the protection of human rights defenders compatible with the basic assumptions of the operation and division of power that constitutes the state system.  A mandate on the situation of human rights defenders was established in 2000 by the Commission on Human Rights (as a Special Procedure) to support implementation of the 1998 Declaration on human rights defenders (see here; Fact Sheet 29 - Human Rights Defenders: Protecting the Right to Defend Human Rights (Arabic | Chinese | English | French | Russian | Spanish)).

The protection of human rights defenders implicates a host of complex issues--from the sovereign authority of states to order their own internal political and social order, to the constraints that all states and other actors must exercise in the face of emerging fundamental norms of human rights--including the human rights to protect human rights against institutional actors. Threats to the safety and unnecessary constraints on the scope of action of human rights defenders appears to suggest substantial failures of domestic legal orders and of the international order committed to the defense of the dignity of individuals within the context of national cultures. The importance of the issue at the highest levels of the human rights community might be evidenced by the U.N. High Commissioner for Human Rights recent report on the continued threat to human rights defenders in a number of states (High Commissioner for Human Rights on the activities of his Office and recent human rights developments; Item 2: Annual Report and Oral Update to the 34th session of the Human Rights Council (8 March 2017)).

The UN Working Group on Business and Human Rights has also begun to consider the human rights implications of threats to human rights defenders within its own mandate. It's initial consultation can be accessed here: summary of expert workshop held in Geneva on 11 May 2017 ("The role of business has been called into question with respect to its role in contributing to attacks against HRDs, but also its role in helping to protect defenders and support human rights. While it is one of the most urgent issues for the business and human rights agenda, due to the increasing scale and seriousness, there are also emerging efforts by a range of actors seeking to address the problem.").
Against this background, the Working Group has decided to give focused attention to the issue human rights defenders and civic space. . .  The Working Group is undertaking this project in consultation with the Special Rapporteur on human rights defenders, who is dedicating his thematic report to the United Nations General Assembly (being presented in October 2017) to the situation of human rights defenders working in the field of business and human rights (here).
The Call for Written Inputs follows. PLEASE NOTE the short deadline. Inputs are due 1 September 2017.