The document summarizes a presentation on governance polycentrism in business and human rights regulation. It discusses:
1) How globalization has produced overlapping governance regimes beyond any single state's control, leading to collisions between state, corporate, and international rules.
2) How the UN Guiding Principles on Business and Human Rights and OECD Guidelines for Multinational Enterprises create a framework for coordinating these regimes around human rights. They emphasize coherence, coordination, and remedies without a centralized authority.
3) How effectively managing collisions requires moving beyond state-centric legal paradigms to embrace diverse, autonomous governance orders coexisting without a single ruler or hierarchy. Law may impede solutions by privileging
Human Rights Fracture in Context--Differences in Approaches to Realizing Huma...Larry Catá Backer
The early fracture of the unity of human rights in the Universal Declaration of Human Rights into a focus on social economic and cultural rights on the one hand, and on political and civil rights on the other has deep implications for the focus and practice of human rights in context, especially within home states in multinational enterprise supply chain systems. These differences are more pronounced where the political context of home states may be different from accepted forms common in developed states. This is particularly the case with two of the most important emerging states--India and China. India provides an example of the approach to human rights protection in which economic and social rights are vindicated through the application of political and civil rights within a state in which individual rights are understood as constraints against state power and courts serve a critical mediating role. In China, on the other hand, civil and political rights are vindicated through the state and its role in ensuring the provision of social, economic and cultural rights through the administrative apparatus of the state, within a state in which individual welfare is understood as a core obligation fo the state to be vindicated through governmental action. These differences have important ramification for the way in which international human rights frameworks, like the UN Guiding Principles, may be successfully transposed in context. These are explored in the paper through examples from both states.
Human Rights Fracture in Context--Differences in Approaches to Realizing Huma...Larry Catá Backer
The early fracture of the unity of human rights in the Universal Declaration of Human Rights into a focus on social economic and cultural rights on the one hand, and on political and civil rights on the other has deep implications for the focus and practice of human rights in context, especially within home states in multinational enterprise supply chain systems. These differences are more pronounced where the political context of home states may be different from accepted forms common in developed states. This is particularly the case with two of the most important emerging states--India and China. India provides an example of the approach to human rights protection in which economic and social rights are vindicated through the application of political and civil rights within a state in which individual rights are understood as constraints against state power and courts serve a critical mediating role. In China, on the other hand, civil and political rights are vindicated through the state and its role in ensuring the provision of social, economic and cultural rights through the administrative apparatus of the state, within a state in which individual welfare is understood as a core obligation fo the state to be vindicated through governmental action. These differences have important ramification for the way in which international human rights frameworks, like the UN Guiding Principles, may be successfully transposed in context. These are explored in the paper through examples from both states.
The Corporate Social Responsibilities of Financial Institutions for the Condu...Larry Catá Backer
Abstract: Corporate social responsibility (CSR) can be split along two distinct lines. The first touches on the nature of corporate personality and is rooted in domestic law regulating enterprises specifically and legal persons generally. The second touches on the nature of the rights of individuals and is rooted in international law (and sometimes domestic constitutional law) defining the scope of the human rights of individuals and the consequential obligations of states and legal persons. Both conversations intertwine though they tend to operate autonomously. In both cases, however, the traditional focus of corporate responsibility has focused on the relationship between an operating company and its direct effects on individuals, society and the environment. That discussion remains contentious, conflicted and unresolved. But it ignores a critical actor—the financial institutions which provide operating capital to enterprises. This paper considers the corporate social responsibilities of financial institutions, including sovereign wealth funds, for the conduct of their borrowers. The focus will be the extent of any duty or responsibility of lenders to ensure that their borrowers comply with CSR obligations (or alternatively conforms to international human rights standards) as a core aspect of their own CSR obligations (or alternatively) of their responsibility to respect human rights. Section II examines the general regulatory framework. There are two aspects that are relevant. The first is to understand the scope and character of the legal norms that may be applied to enterprises generally with respect to their operation’s that might be understood as CSR-human rights related in nature. The second is to consider the range of non-legal normative governance rules that might apply. In the process it will be important to distinguish between a CSR based regulatory approach and a human rights based approach. Section III considers the application of these norms to financial institutions. This requites distinguishing between those obligations that apply to the internal operations of financial institutions generally, and those obligations that apply to the financial institution’s obligations with respect to its lending activities, that is with respect to its relationship with its borrowers. The essay ends with a brief examination of recent cases in which financial institutions undertook such a responsibility, and the ways in which that obligation was undertaken. Three different types of institutions are considered—private banks, sovereign wealth funds and international financial institutions (IFIs). The paper ends with a preliminary consideration of the consequences of this movement for domestic CSR in the U.S.
What is Constitutional governance? The presentation is a lecture delivered at the Lahore University of Management Sciences (LUMS), which explores the normative aspects of Constitutional justice and the constitutionality of actual practise, politics and policy.
Leszek Balcerowicz, Professor of Economics and Architect of Poland´s economic reforms, on June 11, 2018 in Bratislava. Video is available at www.institute.sk
Programmes designed to bring about a fair and efficient system of justice in the interest of the people have not fully lived up to expectations. Building a Legal Empowerment Programme will require a mix of features: prioritising the needs and concerns of the disadvantaged; emphasising civil society, including legal services and development NGOs, as well as community-based groups; using whatever forums (often not the courts) the poor can best access in specific situations; encouraging a supportive rather than lead role for lawyers; cooperating with government wherever possible, but pressuring it where necessary; using community organising or group formation; developing paralegal resources; integrating with mainstream socioeconomic development work; and building on community-level operations to enable the poor to inform or influence systemic change in laws, policies, and state institutions ...
The mission is to secure, enforceable rights, within an enabling environment that expands business opportunity, entrepreneurship and access to justice to the poor...
What does it mean to be a lobbyist? What does it mean to work in public affairs? This internal dialogue and our collaboration with the members of the Public Affairs Work Group form the basis of a report which we quote and elaborate below.
Global Corporate Social Responsibility (GCSR) Standards With Cuban Characteri...Larry Catá Backer
This paper suggests the issues that may face Cuba and enterprises, including U.S. based enterprises, in the wake of normalization. After the introduction, Part II considers briefly the local legal and political context in which enterprises may operate in Cuba, with particular focus on Ley No. 118/2014 (De la Inversión Extranjera), and its contextualization within the legal structures of Cuban macro-economic policy. Part III then outlines two important standards systems for global CSR with effect in Cuba, the OECD’s Guidelines for Multinational Enterprises and the U.N. Guiding Principles for Business and Human Rights. Part IV then considers the ways in which MNEs may have to approach their investment activities in light of these standards, the pressures for change they might produce, and the adverse effects their adverse effects on MNE decisions to invest or operate in Cuba.
INT’L COOPERATION POLICY SEMINAR (Prof. Hirotsune KIMURA)
December 11th, 2002
Tri Widodo W. Utomo (M1-DICOS)
John Pierre, DEBATING GOVERNANCE
Chapter 3: B. Guy Peter, GOVERNANCE AND COMPARATIVE POLITICS
The Corporate Social Responsibilities of Financial Institutions for the Condu...Larry Catá Backer
Abstract: Corporate social responsibility (CSR) can be split along two distinct lines. The first touches on the nature of corporate personality and is rooted in domestic law regulating enterprises specifically and legal persons generally. The second touches on the nature of the rights of individuals and is rooted in international law (and sometimes domestic constitutional law) defining the scope of the human rights of individuals and the consequential obligations of states and legal persons. Both conversations intertwine though they tend to operate autonomously. In both cases, however, the traditional focus of corporate responsibility has focused on the relationship between an operating company and its direct effects on individuals, society and the environment. That discussion remains contentious, conflicted and unresolved. But it ignores a critical actor—the financial institutions which provide operating capital to enterprises. This paper considers the corporate social responsibilities of financial institutions, including sovereign wealth funds, for the conduct of their borrowers. The focus will be the extent of any duty or responsibility of lenders to ensure that their borrowers comply with CSR obligations (or alternatively conforms to international human rights standards) as a core aspect of their own CSR obligations (or alternatively) of their responsibility to respect human rights. Section II examines the general regulatory framework. There are two aspects that are relevant. The first is to understand the scope and character of the legal norms that may be applied to enterprises generally with respect to their operation’s that might be understood as CSR-human rights related in nature. The second is to consider the range of non-legal normative governance rules that might apply. In the process it will be important to distinguish between a CSR based regulatory approach and a human rights based approach. Section III considers the application of these norms to financial institutions. This requites distinguishing between those obligations that apply to the internal operations of financial institutions generally, and those obligations that apply to the financial institution’s obligations with respect to its lending activities, that is with respect to its relationship with its borrowers. The essay ends with a brief examination of recent cases in which financial institutions undertook such a responsibility, and the ways in which that obligation was undertaken. Three different types of institutions are considered—private banks, sovereign wealth funds and international financial institutions (IFIs). The paper ends with a preliminary consideration of the consequences of this movement for domestic CSR in the U.S.
What is Constitutional governance? The presentation is a lecture delivered at the Lahore University of Management Sciences (LUMS), which explores the normative aspects of Constitutional justice and the constitutionality of actual practise, politics and policy.
Leszek Balcerowicz, Professor of Economics and Architect of Poland´s economic reforms, on June 11, 2018 in Bratislava. Video is available at www.institute.sk
Programmes designed to bring about a fair and efficient system of justice in the interest of the people have not fully lived up to expectations. Building a Legal Empowerment Programme will require a mix of features: prioritising the needs and concerns of the disadvantaged; emphasising civil society, including legal services and development NGOs, as well as community-based groups; using whatever forums (often not the courts) the poor can best access in specific situations; encouraging a supportive rather than lead role for lawyers; cooperating with government wherever possible, but pressuring it where necessary; using community organising or group formation; developing paralegal resources; integrating with mainstream socioeconomic development work; and building on community-level operations to enable the poor to inform or influence systemic change in laws, policies, and state institutions ...
The mission is to secure, enforceable rights, within an enabling environment that expands business opportunity, entrepreneurship and access to justice to the poor...
What does it mean to be a lobbyist? What does it mean to work in public affairs? This internal dialogue and our collaboration with the members of the Public Affairs Work Group form the basis of a report which we quote and elaborate below.
Global Corporate Social Responsibility (GCSR) Standards With Cuban Characteri...Larry Catá Backer
This paper suggests the issues that may face Cuba and enterprises, including U.S. based enterprises, in the wake of normalization. After the introduction, Part II considers briefly the local legal and political context in which enterprises may operate in Cuba, with particular focus on Ley No. 118/2014 (De la Inversión Extranjera), and its contextualization within the legal structures of Cuban macro-economic policy. Part III then outlines two important standards systems for global CSR with effect in Cuba, the OECD’s Guidelines for Multinational Enterprises and the U.N. Guiding Principles for Business and Human Rights. Part IV then considers the ways in which MNEs may have to approach their investment activities in light of these standards, the pressures for change they might produce, and the adverse effects their adverse effects on MNE decisions to invest or operate in Cuba.
INT’L COOPERATION POLICY SEMINAR (Prof. Hirotsune KIMURA)
December 11th, 2002
Tri Widodo W. Utomo (M1-DICOS)
John Pierre, DEBATING GOVERNANCE
Chapter 3: B. Guy Peter, GOVERNANCE AND COMPARATIVE POLITICS
In this third and last part of the course :
- we add a couple more ideas on how to apply CSR in SMEs
- reporting, yes / no, how?
- how to connect - personal - actions with the company’s purpose?
- what is my personal role of influence in the workplace and in society?
- what is the right structure and right environment to allow CSR to thrive in an SME?
- how can we best communicate internally and externally CSR in an SME?
Central Planning Versus Markets Marxism: The Cuban Communist Party Confronts ...Larry Catá Backer
The 7th Congress of the Cuban Communist Party stands in stark contrast to its predecessor. The 6th PCC Congress appeared to usher in an era of at least limited opening up and the institutionalization of a private sector of sorts. Yet the 7th PCC Congress in many respects appeared to disappoint. Procedurally it appeared to mark a step back from the openness of the 6th Congress. And it offered little by way of political opening up, even an opening up ushering in more robust intra-Party democracy. Most importantly, the 7th PCC Congress appeared to fall far short of confronting the economic model reaffirmed in the 4th PCC Congress—a model of central planning and Soviet bureaucratic mechanisms substituting for any sort of markets based regulation of economic activity. This paper considers the potential and the missed opportunities of the 7th PCC Congress. A close reading of the 7th PCC Congress will suggest the limits of reform in Cuba. Ideological limits are suggested by a political timidity that has been built into the operating culture of the PCC. As a consequence the PCC is finding it hard to move even from soviet style central planning ideologies to Marxist market ideologies that have proven more successful in other states. The PCC is suffering from a paralysis that may be more dangerous to its long term authority than any machinations originating in its enemies. The paper ends with a consideration of options and likely movement over the short term moving forward.
Democratizing International Business and Human Rights by Catalyzing Strategic...Larry Catá Backer
Democratizing International Business and Human Rights by Catalyzing Strategic Litigation: The Guidelines for Multinational Enterprises and the U.N. Guiding Principles of Business and Human Rights From the Bottom Up
Fundamental of Public Administration PPA 101NANCY GENOVADustiBuckner14
Fundamental of Public Administration PPA 101
NANCY GENOVA, MPA
INSTRUCTOR/ CHAPTER 2 (P.35-75)
Learning Objectives Chapter 2Understanding the organization and function of the branches of the federal governmentUnderstanding the organization and function of the other levels of governmentUnderstanding the policy processExploring the controls exerted by the legislative branch on administratorsExploring the controls exerted by the judicial branch on administrators
Administrative Organizations
The Executive Office of the PresidentCabinet-Level Executive DepartmentsIndependent Agencies, Regulatory Commissions, and Public CorporationsAgencies Supporting the Legislature and the Judiciary
The State Level
Its own constitutionIts own asssetsNumerous departments and commissions
The Local Level
CitiesCountiesNative American TribesSpecial Purpose GovernmentsNonprofit Organizations and Associations
RELATIONSHIPS WITH THE LEGISLATIVE BODY
The Policy Process
Exploring Concepts: STAGES IN THE POLICY PROCESS
Agenda SettingPolicy FormulationPolicy LegitimationPolicy ImplementationPolicy Evaluation and Change
Political Context of PA Public administrators need awareness of how all the government systems work in an effort to become more effective in regards to what they doAttention to how leadership works in our political settings is essential to understanding how to get things done as a public administrator
Public AdministratorsPublic administrators are responsible for implementing public policyProposals are written and submitted the process includes….Organizations develop policies to guide their activitiesPublic agencies work together with executive, the legislature and the judiciary to seek important policy goals
Federal Government 3 BranchesExecutiveLegislatureJudiciary‘Founding Father’s’ had fears of concentrated power that’s why they divided the power
Administrative Organizations & Executive Leadership
Executive Office of the President- Office of Management & Budget, National Security Council, Council of Economic Advisers
Cabinet level executive departments- Department of Defense, Health & Human Services, Treasury, Agriculture, Housing & Urban Development, Education, Veterans Affairs, Homeland Security (2002,) Ambassador to United Nations
Independent Agencies, Regulatory Commissions, and Public Corporations
Jurisdiction & Federalism
Jurisdiction- territorial range of government authority is sometimes used as a synonym for city or townFederalism- a system of government in which powers are divided between a central (national) government and regional (state) goverments.
Relationship Among 3 Levels of the GovernmentFederalStateLocalCooperation vs. conflictWho has policy making authority?
The Capacity of States & LocalitiesIn the 1950’s & 60’s policy reflected the interest of the elite1980’s state government transformed from weak links to progressive political units1990’s brought about local governments being ‘proact ...
The Roles and Functions of Law in Business and Society Introduct.docxoreo10
The Roles and Functions of Law in Business and Society
Introduction William O. Douglas said, "Common sense often makes good law." Well that is what laws essentially are, rules and regulations that make sure common sense is followed. One could even say that laws are enforced ethics. Laws serve several roles and functions in business and society, and this paper will discuss those roles and functions.
What is law?
According to Reference.com (2007), law is defined as: "rules of conduct of any organized society, however simple or small, that are enforced by threat of punishment if they are violated. Modern law has a wide sweep and regulates many branches of conduct." Essentially law is the rules and regulations that aid in governing conduct, handling disputes, and dealing with criminal actions.
Roles of Law
The law serves many roles in business and society. Where this is most apparent is in its three classifications:
1. Criminal and Civil Law – Criminal law is the law through which public commitment of crimes are prosecuted by governing bodies, whereas civil law is the law through which private parties may bring lawsuits against one another for real or imagined wrongdoings. That is, criminal law would deal with the prosecution of a crime such as one person hitting another with their car, and civil law would deal with the lawsuit, as the person hit would sue the driver of the car for monetary compensation.
2. Substantive and Procedural Law – Substantive laws are the social rights and duties of people, and procedural law are guidelines through which government bodies or courts deal with breaches in substantive law. In other words, substantive law would state that hitting someone with a car and driving off is a crime, while procedural law would define how the courts could try and sentence in the case.
3. Public and Private Law – Public law is the framework of guidelines defining the relationship between the government and individuals, and private law is the guidelines through which individuals or groups interact with one another. For example, public law has subdivisions that include constitutional, administrative, and criminal law, whereas private law would cover such areas as contracts and privately-owned properties.
These three classifications of law affect both business and society, through not only the guidelines defining what is and is not a crime, but also through protection for both. The examples above talked about a car hitting an individual. If it were taken one step further and the car belonged to a business, there are laws in place safeguarding the culpability of the business from the incident since though it is a company car, the company itself was not driving it. Instead the driver and only the driver would be the one at fault, and the victim would have only the driver to seek compensation or prosecution against.
Functions of Law
Whether it is corporate, personal, or societal, laws are created to prot ...
The concept of rule of law is that the state is governed by the law, not by any particular government. This paper displays the present condition of the rule of law in curriculum and students’ intention in getting a course or a training program on the rule of law in their curriculum. In this study, 23 in-depth interviews with different university going students of different disciplines—science, social science, medical and engineering, 2 key-informant interviews, and 3 focus group discussions (FGDs), along with intensive studies from various secondary sources, were conducted.
Corporate Social Responsibility in Weak Governance ZonesLarry Catá Backer
Abstract: This paper considers the evolution of governance standards for determining the extent of an enterprises’ responsibilities to protect human rights in weak governance zones. The paper briefly describes the development of the standard and then evaluates the standard as it has been developed and framed within the U.N. Guiding Principles for Business and Human Rights and in the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises (OECD Guidelines). Particular attention will be paid to the Risk Awareness Tool for Multinational Enterprises which was developed to complement the OECD Guidelines following the call made by 2005 G8 Summit for the development of OECD guidance. The paper suggests the ways that CSR has been transformed, in some respects, to a mandate for assuming governance responsibilities in those states unable ort unwilling to institute systems of law that conform to international consensus standards on human rights. It also explores the challenges of the approaches of both efforts. Both acknowledge the autonomy of enterprises as directly responsible for the operationalization of international norms wherever they operate. Yet both also open the door to extraterritorial application of law. The same framework that advances the governance autonomy of enterprises also envisions them as the vehicles through which home states may project national power within host states with weak governance regimes. And this tension built into both frameworks, a tension that goes to the dual character of enterprises as both autonomous governance actors and as creatures of the states n which they are domiciled, that mark the potential and the challenge to the internationalization of regimes of CSR.
Soraya Ghebleh - Selected Theories in International RelationsSoraya Ghebleh
This presentation describes some of the major theories in international relations and their subsets including liberalism, realism, constructivism, and critical issues theories.
presentation on law as an instrument of social engineering contains- WHAT IS LAW. Why Law Is Needed In Society. SOCIAL ENGINEERING. What Would Happen If There Are No Laws. ROSCOE POUND’S THEORY. Interests . • Law As Social Engineering Theory of Balancing of Interests. Law as Purposive Functional and Need- Based. Summary
The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s N...Larry Catá Backer
Short Abstract: The development plans of Marxist Leninist states are usually given short shrift as expressions of ideology (at best) and propaganda (at its most pathetic). Yet there is value in considering critically these development plans, if only to get a sense of the mindset of high level functionaries with control over macro-economic policy, and to get a sense of the administrative cultures within which governmental middle managers will actually exercise discretionary authority. Especially useful in that context is the Cuban Communist Party 7th Congress’s Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos in which the PCC posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal elaborated in the Cuban National Economic and Social Development Plan 2030 (PNDES) suggests behavior and choice algorithms with interesting implications even if only partially realized. It is particularly important as a vision for transition developed in the wake of anticipated changes in higher leadership and the effects of normalization with the United States. This essay critically considers PNDES in the current context national and regional context. It starts with a brief analysis of PNDES for what it can reveal about entrenched ideological perspectives that shape decision making and analysis within Cuban Party and administrative elites. It then considers the way these appear to manifest themselves as a set of self-referencing decision systems that substitute or supplant market or regulatory determinations. Those premises are tested against Cuban approaches to the pharma sector, among the most important targets of centrally planned development. The essay ends with an assessment of the consequences of Cuban current approaches for national and regional affairs.
“One Belt One Road and RMB Internationalization—A Strategic Alliance” Larry Catá Backer
Focus: Consideration of the peripheral structures of Chinese trade and investment policy and its potential effects on RMB internationalization. Thesis: RMB internationalization is one small part of a larger more ambitious project: (1) External: An integral part of Chinese trade and development policies; an interlocking set of objectives to solidify the all around central position of China; (2) Internal: Core of socialist modernization and development of productive forces within China; situating China at center of global commerce essential for next stage of economic and political development.
Structures of discussion: (1) Situating RMB internationalization within broader issues of Chinese policy; (2) The OBOR initiative and related development efforts. Last section considers putting the pieces together; and (3) Tie it back to issues of reality (trade and investment use) and perception (consensus of others states)
Why are OBOR and RMB internationalization linked? (1) Stability; (2) Development; and (3) Control
Unpacking Accountability: The Multinational Enterprise, the State, and the In...Larry Catá Backer
Businesses, states and civil society are thought to be accountable. But to whome, and how? Effective imposition of accounting regimes requires a more nuanced understanding of the structures of the character and ecologies of accounting. Thesis:
In a working system of accountability Corporate Violations of Human Rights, Labor and Environmental Standards all stakeholders in the system must (1) bring each other to account, (2) be brought to account and (3) bring oneself to account.
The Privatization of Governance: Emerging Trends and ActorsLarry Catá Backer
Globalization's challenges, tensions and contradictions, indeed all of the variables that contribute toward the trajectory of globalization and its relationship to its principal actors, merely reinforce the primacy of globalization itself as a singular orthodoxy. And it is an orthodoxy that is itself embedded in the more fundamental governance orthodoxy of the mid-1945s from out of which the framework of its conception and operation was itself embedded. That orthodoxy itself posited a hierarchy in which politics served as the legitimating instrument of power, and that the state served as the apex organization of politics. That organization, itself, was expressed as the institutionalization of mass power framed within a set of fundamental substantive norms the limiting principles of which would be set by the community of states dominated by its leading members. Thus, the appearance of challenge and opposition that has been more sharply drawn since the start of this century might be understood as occurring within a carefully protected orthodoxy the object of which is to protect the primacy of politics (and law) with the state as its apex.
And yet, one of the great ironies of globalization is the way in which its effort to cement a framework orthodoxy after 1945 has served to overturn orthodoxy itself, and in its place, has ushered in an age of heterodoxy that is both ordered but anarchic. This presentation introduces some of the basic trends and actors that have emerged from out of the orthodox conceptual framework of globalization, and the extent to which these are contributing to its transformation as a vector of governance.
The Responsibilities of Banks, Sovereign Wealth Funds and Other Financial Ins...Larry Catá Backer
Extractive industries have been at center of CSR and environmental responsibilities debates at the national and international level. It has been noted that "The sector faces unique social and environmental challenges when operating in developing countries. Faced with these challenges, a number of Canadian companies are engaging in corporate social responsibility (CSR) initiatives, generally defined as the voluntary activities undertaken by a company to operate in an economically, socially and environmentally sustainable manner" (Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector). These generally involve direct compliance. Domestic law focuses on the law and regulatory frameworks of home and host states. Soft law focuses on national (to a small extent) and more generally in international framing mechanisms and indigenous law (national an international). In addition, private law also applies--to the extent that extractive enterprises build their own internal governance systems applicable through their production chains worldwide.
But increasing there is a need to think about indirect compliance: especially the responsibilities of financial institutions, suppliers, and upstream customers to gauge their conduct by the legal/normative compliance of the extractives enterprise itself.
This presentation focuses on financial institutions and their responsibilities with respect to the human rights responsibilities of their borrowers.
Sovereign Wealth Funds, Capacity Building, Development, and Governance Larry Catá Backer
Abstract: Though operating in some form or another for over half a century, sovereign wealth funds (SWFs) did not become an object of general attention until the early part of the 21st century when a combination of the need of developed states for investment and the growing acceptability of state investment in private markets abroad made them both threatening and convenient. Assured by the framework of the Santiago Principles most states now view SWFs as a useful multi-purpose sovereign investment vehicle. Yet over the last decade or so, SWFs appear to have developed the potential to become an important instrument in good governance and development, especially for resource rich and capacity poor developing states. Following the lead of Chile, and with the patronage of IFIs, these SWFs have begun to serve objectives as and with development banks both within and beyond their home state. This paper considers the capacity of SWFs to serve ends beyond mere fund value maximization as envisioned in the Santiago Principles. It explores the value of SWFs as a means of enhancing governance capacity in weaker states, its utility in enhancing development objectives, the emerging landscape of joint ventures among SWFs for development and their intersections with emerging infrastructure and development banks, and their importance in enhancing the operationalization of emerging international business and human rights standards not only within their own organizations but through their investment activities. A brief assessment of these trends ends the paper. Lastly it develops a set of transformative changes in approaches to SWF instrumentality that SWFs, especially the smaller SWFs and those in developing states, might deploy in structuring and operating their SWFs within a globalized economic order. These strategies are meant to avoid the circular characteristics of current discussions grounded on premises of finance instrument silos and state based systems that no longer accord with the realities of, and fail to take advantage of the possibilities now offered through, global finance and can be grouped into the three transforming categories suggested in Section III: regionalization strategies; financial objectives strategies; governance strategies.
Diversity in Legal Education: Considering the Hollow Spaces Between Speech an...Larry Catá Backer
Prepared for Event: All in at Penn State Law: Addressing Diversity & Implicit Bias; Sponsored by the Diversity Committee Penn State Law. March 16, 2017.
Institutions of post secondary education, has been struggling with the very hard work of moving from the embrace of flowery statements of solidarity respecting diversity to actually making it a lived reality in the environment in which students, staff, faculty and particularly administrators operate. (Statement From the Penn State University Faculty Senate Chair ). Much of the discussion has focused on obligation centers--students, faculty and others at the lowest end of the institutional pyramid. But fairly little attention has been paid to responsibility centers--middle Managers (deans and their staff), central university administrators. Is it time to refocus the analysis of diversity and diversity related programs from conformity at the bottom to shaping responsibility at the top? How does an institution create robust measures to assess and discipline those whose responsibility is to shape the organizational cultures of their units?
Presentation Delivered January 26, 2017Johns Hopkins University School of Education. his presentation will help to build a broader understanding of governance issues and models within academe and provide an overview of challenges to shared governance derived principally from a university model of faculty senate. Professor Backer has served as a member of Penn State’s University Faculty Senate in the capacities of Senate Chair, Parliamentarian, Representative for the Law School, and Chair, Co-Chair and Member of various senate committees. He maintains a website devoted to faculty voice entitled Monitoring University Governance with the mission of “promoting transparency and engagement in shared governance in universities and colleges.”
Between the Judge and the Law—Judicial Independence and Authority With Chines...Larry Catá Backer
Abstract: What is the scope and nature of judicial reform? To what extent does borrowing from Western models also suggest an embrace of the underlying ideologies that frame those models? It is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply that interpretation to individual cases and the litigants that appear before the courts. That presumption, however, embeds premises about the organization of political and administrative authority that may be incompatible with those of states developing Socialist Rule of Law structures within Party-State systems. In Common law states those deep presumptions touch on the disciplinary role of judicial opinions as a constraint on judicial interpretation. In civil law states that discipline arises from the constraining principles of the legal codes themselves. In both the legislatures serve as the ultimate check in a complex dialogue with courts in three respects. First, judges serve a political role in their relation to law. Second, cases themselves serve an important political role as well. Third, courts begin to serve as the place where societal narratives are forged and popular expression is constructed and applied. In Socialist rule of law systems, the disciplinary systems are quite different and ought to produce a different relationship between courts, law, and the cases they are bound to apply fairly and consistently under law. This paper considers the way that the logic and grounding principles of Chinese Marxist Leninism may provide guidance in the construction of a judicial enterprise that is both true to its organizational logic and which enhances the authority of judges to serve litigants fairly. It suggests the points of compatibility and incompatibility in the ideologies of these distinct systems of judging and what it may mean for judicial reform in China. That consideration, in turn is based on a fundamental difference, in Socialist Rule of Law systems, between the authority to interpret law and the authority to apply law to an individual case. For Chinese judicial reform it is in the perfectibility of the judge that lies the perfectibility of law that in turn ensures the perfectibility of the judge. Part II considers in very broad strokes the relationship between the judge and law in the West. Part III then considers Chinese reforms touching on the relationship between the judge and the law, and the evolution of normative structures within which one can speak to judicial independence. Part IV then considers the project from the perspective of the grounding ideology of the Chinese state. From that fundamental distinction, the paper will propose a Socialist approach to the judicial function compatible with its own logic and legitimacy enhancing under global consensus principles for a well-organized and functioning judiciary.
中国,法律与外国人:国际舞台上的相互交融 ("China, Law, and the Foreigner: Mutual Engagements on a...Larry Catá Backer
外国人在中西法律交流中的角色类似于新中国前的情形。
这表明了中西法律交流的典型形态
这表明了中国人自身在“走出去”的战略中可以从中西法律交流中摄取经验。
内部思考:是否可以从党的“建设社会主义现代化”中发展出一套思维—以实事求是的态度来发展现代化。
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China, Law and the Foreigner: Mutual Engagements on a Global StageLarry Catá Backer
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Does it fail to describe the reality of TNCs (the problem of definition)?
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Should we consider TNCs instead as the constitution of production chains (the conflation issue)?
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[Note: This is a partial preview. To download this presentation, visit:
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Sustainability has become an increasingly critical topic as the world recognizes the need to protect our planet and its resources for future generations. Sustainability means meeting our current needs without compromising the ability of future generations to meet theirs. It involves long-term planning and consideration of the consequences of our actions. The goal is to create strategies that ensure the long-term viability of People, Planet, and Profit.
Leading companies such as Nike, Toyota, and Siemens are prioritizing sustainable innovation in their business models, setting an example for others to follow. In this Sustainability training presentation, you will learn key concepts, principles, and practices of sustainability applicable across industries. This training aims to create awareness and educate employees, senior executives, consultants, and other key stakeholders, including investors, policymakers, and supply chain partners, on the importance and implementation of sustainability.
LEARNING OBJECTIVES
1. Develop a comprehensive understanding of the fundamental principles and concepts that form the foundation of sustainability within corporate environments.
2. Explore the sustainability implementation model, focusing on effective measures and reporting strategies to track and communicate sustainability efforts.
3. Identify and define best practices and critical success factors essential for achieving sustainability goals within organizations.
CONTENTS
1. Introduction and Key Concepts of Sustainability
2. Principles and Practices of Sustainability
3. Measures and Reporting in Sustainability
4. Sustainability Implementation & Best Practices
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Governance Polycentrism--Hierarchy and Order Without Government in Business and Human Rights
1. Conference: Contested Collisions
Collaborative Research Center 597 “Transformations of the State”;
Juridification of Dispute Settlement in International Law
Project A2: The
Jan. 10-12, 2014
Governance Polycentrism--Hierarchy and Order Without
Government in Business and Human Rights Regulation
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar and
Professor of Law ; Professor of International Affairs,
Pennsylvania State University
lcb911@gmail.com
2. Context: From Out of Order, Anarchy
• 1940’s. 1970’s the culmination of the drive toward a global
order made up of a community of law-states
• The greatest fruit of that drive was globalization
– Public (rise of autonomous regulatory public internaitonal bodies WTO, etc)
– Private (great economic and social organs)
• Globalization
– produce a reality of economic and social interactions beyond the ability of any
single political system to control; or even of the international community, given the
premises on which it operated
• Consequences; whither the ancien regime?
– Proliferation of non-state governance orders and “legal” regimens
– Crisis of legitimacy (specific and systemic)
– Counter-revolution led by states and their allies (and a nostalgia for the simplicities
of the old order)
2
3. From Out of Anarchy, Order?
• A new reality: Collisions of governance orders with overlapping jurisdictions and
expanding ambitions
• Regime collisions are messy; Are they marks of institutional deviance, a pathology
in need of the therapeutic? Or marks not of ordered anarchy but (temporary)
disequilibrium in search of a steady state?
• Heterodox Governance regimes can be tamed; comforting to transpose the
premises and habits of law and law-state systems (including its systems of justifications
and legitimacy) onto emerging governance regimes
3
4. Human Rights Governance
An Important Site for Collision
• Issues of collisions among heterogeneous governance
regimes much in evidence in the context of the adverse
human rights consequences of economic activity.
– Efforts to mediate collisions between emerging centers of
governance that all touch on the human rights impacts of economic
activity
• Markets for Management of anarchy
–
–
–
–
Domestic legal orders;
Civil Society (standards and certification regimes)
Societally constituted MNE governance
International efforts—from failed Norms through Global Compact to
Guiding Principles for Business and Human Rights and OECD
Guidelines for Multinational Enterprises
5. Issue: How to Order Collisions
– Purpose of essay:
• to consider the issue of collision within the elaboration of governance
frameworks touching on the human rights impacts of economic
activity by states, enterprises and individuals.
• FOCUS: framework of Guiding Principles of Business and Human Rights
and OECD Guidelines for MNEs
– Three pillar framework (states, enterprises, remedies) frames collisions
between states, international organizations, enterprises and civil society in
their governance roles in distinct `parts of the transnational sphere
– Enforcement through OECD “soft” structurest
– Points to
• necessity of moving away from state-focused legal paradigms,
redolent with hierarchy and order, and
• to embrace ἄναρχος, an aggregation of systems without rulers but
with an order quite distinctly from the late feudalism of the law-state
system embedded within it
6. Thesis
• the development of governance regimes for the
human rights impacts of economic activity
suggests:
– 1. the way in which non-legal approaches play a crucial
role in the creation of structures within which the
collisions of polycentric governance, its necessary
character as ἄναρχος, can be managed (but not
ordered), and
– 2. consequently the way in which law (and its principles
of hierarchy and unitary systemicity) plays a less
hegemonic role, that is, the way in which law has less to
contribute toward the governance problem thus posed.
6
7. Roadmap:
• Part I considers the structures and premises of the emerging
governance framework built into the Guiding Principles, and
its points of collision with law based systems .
• Part II considers the ramifications of collision (fragilities and
debilitating trends), and the possibilities for systemic
equilibrium by reference to three questions suggested by
the thesis:
– (1) what may be the role of law for the solution of collision problems, and
how does that role relate to non-legal regimes?
– (2) what may be the role of non-legal approaches to a solution, and how
do they relate to law?; and
– (3) what might concrete solutions look like .
8. Conclusion
• First, law both supports and impedes solution to collision
problems precisely because, by its nature, it invariably seeks
to privilege itself over non-law regimes.
• Second, the societally constituted autonomous regulatory
regimes that, in the absence of the state, can produce
increasingly dense networks of jurisprudence with the
functional effect of customary law, is threatened by law,
which seeks to subsume societally constituted systems, and
the social norms that animate it, within the domestic legal
orders of states.
• Third, the concrete solution to this collision may well look
like the GP-OECD Guidelines framework itself.
8
10. Crafting a Self Referencing Collision
Managing Universe
– capture the essence of the emerging diffusions of governance
among distinct political organizations only one group of which are
nation-states
• Reject traditional approach (the essence of the failed Norms for
Transnational Business based) Recognize
– Recognize
• The legal sphere—based in conventional conceptions of law and its
connection to the state and its domestic order
• The social sphere—based in the societally constituted governance
organizations (economic enterprises) and the social norms under which
it both operates and constitutes
• The transnational sphere—based on the authority of collectives of
governance organs (states and non-state actors) to develop rules
(international law or transnational social norms)
• The incarnate individual as the object and repository of rights (the
remedies problem); avoid abstraction of the objects of these efforts
11. Conceptual Framework
– establish a framework within which these groups might harmonize
their interactions—minimize the friction of their collisions—in the
service of a singular objective in three ways
• Coherence: weave together the domestic legal order regimes
of states, the societally constituted governance orders of
enterprises, and the autonomous multilateral law-norm
regimens of international organizations
• Coordination: to intermesh this framework into the internal
governance orders of these three groups of regimes
• Resolution: describe a governance space within which remedial
projects might be undertaken in the service of the objective
11
12. Managing Collisions of Legal to Societal
Norms: Guiding Principles
• U.N. Guiding Principles for Business and Human Rights
– Three Pillar framework for elaborating system of human rights
consequences of economic activity
• State duty to protect
– Undefined
– Each state defines its own relationship to international law Multilateralism
– Coordination between law and policy
• Corporate Responsibility to respect
– Defined: International Bill of Rights and ILO Conventions
– Includes international law and international norms, grounded in customs
and practices
– Effectuated through Human Rights Due Diligence
• Obligation to provide remedies
– State based and non-state based remedial mechanisms
– Multilateral non-judicial frameworks encouraged
• No independent enforcement mechanism
13. Managing Collisions of Legal to Societal
Norms: OECD Guidelines
• OECD Guiding Principles for Multinational Enterprises
– Voluntary principles addressed by governments to MNCs, but OECD
member states bound to provide a complaint (National Contact Point)
process
– Focus on key areas: disclosure, human rights, employment and industrial
relations, environment, bribery, consumer interests, science and
technology, competition and taxation
– Provide a basis for creating regulatory and behavior coherence at the
international level for transposition to domestic legal orders
13
14. Vision: Managing Collision
• The SRSG envisioned the creation of a (transnational) space
in which the principal actors in the context of the human
rights effects of business might align their interests and
develop common cultures that is respectful
– of the business imperative to profit (in ways to foster the welfare of
its stakeholders including its investors and lenders),
– states to govern (in ways that give effect to the democratic will of
their respective policies), international organizations (in ways that
enhance the elaboration of common norms), and
– civil society (in ways that give effect to monitoring and
accountability roles).
14
15. Method: Accepting Collision
and Anarchy
• Method
– Self discipline and participation (Andreas FischerLescano’s notion of the force of law without violence?)
– Dispute resolution (collision) through non-binding state
centered mechanisms that apply non-law with no
mandatory legal effect BUT with consequences in the
social and legal spheres
– Contemplates possibility of no resolution of conflicting
norms (Vedanta) and mobility
15
17. Realizing the Promise of
Theory
• The possibilities inherent in the GP system
– Provides a common language through which collisions are mediated
– Recognizes the autonomy of governance spheres of states and
enterprises
– Permits fluidity among governance regimes—national, international,
contractual, hortatory, legally or societally binding
– Hints at superiority of international law as against states and
international norms as against societally constituted enterprises
– Avoids hyper-rigidity of legal regimes through objectives based
functional approach to identifying and mediating consequences of
adverse human rights actions effected through a variety of means
system
• Possibilities are quite fragile.
18. Fragilities: Fora on Business and Human
Rights (2012/13)
– 1st Forum: refocus on the state duty to protect human rights and on traditional/
conventional mechanisms of international law to elaborate a mechanics to that end
– 2nd Forum: exposes possibilities of anarchy and disorder
• For states: the focus on extraterritoriality lends itself to the augmentation of the
hegemony of those states, some of which tend to be the most skeptical about
the GP project
• For businesses: freeing enterprises from the constraints of societally constituted
social norms replacing these with a singular obligation to “obey binding law”
permits the regulatory fracture within which MNC abuse is strategically
compelling.
• Civil society: leaving them to their own devices produces both nihilism and
extremism, grounded in principle and passion, that substantially reduces the
relevance and effectiveness of civil society efforts except as a power strategy.
– While the interventions of business sought to essentialize the world of governance,
and restrict it to its most narrow and traditional jurisdictional bases, civil society
interventions sought to fragment discussion to the listing of a litany of highly
particularized wrongs in need (and quite rightly to be sure) of redress.
– They also look to law, and thus away form the GP, though either at the national or
international level, to avoid or resist human rights obligations as non-legal norms
18
19. Debilitating Trends
• The first: transformation of the second pillar responsibility to respect human
rights (operationalized in part through the GP human rights due diligence
mechanics) from a source of privatizing international norms into the culture of
corporate activities and the social norm structures of globalized economic
activity beyond the state to a mere channel through which the state duty is
realized (indirectly) through the corporation.
• The second: the emphasis on the state as the center of the GPs might militate
in favor of the move toward an adoption of a comprehensive treaty creating an
apparatus for specifying (if not remedying) human rights wrongs committed by
states and businesses, with little hope of success
• The Third: the emphasis on legalization invites the dead end debates
about the direct obligations of corporations under international law; a
debate that the recognition of the second pillar responsibility to respect
was meant in part to make irrelevant.
19
20. Consequences of Trends
• From force of internalized societal norms to violence of
externalized law (imposed form outside)
• From societally constituted actors to the class structures and
rigidity of the law-state system and its physical borders
• From horizontal equality among states to conflict or weak
governance zone interventions by states in the name of
internationalism but for their interests or those of societally
constituted groups acting through them
• From the autonomy of international law and norms to its
reduction to transnational strategic internationalism as a
function fo the willingness of a state to incorporate its terms
20
21. The Three Questions in Search of Answers
• Which role does the law play for the solution of
collision problems?
– the GP’s state duty to protect human rights suggest that
law both supports impedes solution to collision problems
precisely because, by its nature, it invariably seeks to
privilege itself over non-law regimes.
• Law does not merely trip over itself, as a manifestation of
state power,
• but also trips over public international law systems
resisting any inversion of legal relationship on which
domestic legal orders must give way to an international
order construct.
21
22. Questions, Cont.
• How does it relate to non-legal regimes?
– the GP’s corporate responsibility to respect offers a more
horizontal relationship between law and the societally
constituted autonomous regulatory regimes of
corporations and other non-state actors.
• But that relationship is threatened by the foundational
premises of classical law systems.
• The logic of these law system premises would seek to
subsume societally constituted systems, and the social
norms that animate it, within the domestic legal orders of
states, or ignore them altogether to the extent they could
not be translated into law or harmonized within existing
legal norms.
22
23. Questions Cont.
• Which non-legal approaches to a solution are
there, and how do they relate to law?
– might require independence rather coordination;
cooperation rather than the construction of a singular
system bounded by law and its idiosyncrasies.
– The solution may, indeed, require the rise of a new class
of governance facilitator,
• something more than a lawyer (bound by the normative
cultures of the law-state)
• and flexible enough to move between governance
cultures.
23
25. The Big Picture
•
The GP-OECD Guidelines framework posits order without hierarchy and the
management of collision between three great autonomous governance
communities—states, enterprises and public international organizations—
whose interactions produce intermeshing around specific normative challenges,
but which necessarily resist the hegemony of law.
•
The resulting framework may not produce unified law, as classically understood,
but it may manage ordered interaction among systems in a governance universe
without a center (one that in the classical period had been provided by the ideal
of “law” and the Rechtsstaat).
•
But rather than order and the privileging of law, the emerging framework
suggests a constitutional framework within which fracture and polycentric coexistence, of short duration, appear to be emerging as the stable state.