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Transparency Between Norm, Technique and Property in International Law and Governance—The Example of Corporate Disclosure Regimes and Environmental Impacts, 22 Minnesota Journal of International Law 1-70 (2013).

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Abstract:This article considers the role of transparency in corporate governance, focusing on the regulatory forms in international environmental law and policy.  It is divided into five sections. After this Introduction, Section II considers conventional sources of international environmental law for its transparency effects on the environmental impacts of business activity, looking at both hard law and soft law frameworks.  While there is a substantial and growing body of public international hard and soft law frameworks in environmental governance, much of that is focused on the role of states and the information and participation rights of affected communities in the political and regulatory processes that have environmental impacts.  Section III then critically examines transparency in international and transnational regulatory and governance regimes outside of environmental governance frameworks.  The focus is on regulatory regimes that might have an impact on environmentally related transparency involving business activities. Section III.A considers public sources of transparency regulation, focusing specifically on recent efforts at transnational regulation of economic actors. It concentrates on two examples—the OECD framework and the recently endorsed Guiding Principles of Business and Human Rights. Section III.B examines transparency at the intersection of domestic and international law, focusing on the projection of domestic law outward from the state.  It concentrates on the environmental transparency effects of extraterritoriality, of the incorporation of international norms within domestic legal orders, and the internationalization of domestic rule frameworks.  Section IV then considers transparency and governance beyond the state.  For that purpose three distinct regimes are identified and examined.  Section IV.A examines hybrid governance efforts—the ISO and Global Compact systems. Section IV.B considers private non-corporate governance regimes, principally the GRI and product certification programs. Lastly, Section IV.C analyzes private corporate governance transparency regimes that include elements of environmental disclosure. Section V then examines transparency inaction under these potential transparency enhancing governance frameworks.  Section V.A analyzes the potential and tensions in transparency are examined more closely in the context of environmental disclosure by BP during the time of the Deepwater Horizon explosion and oil spill of 2010,  which also suggests both the possibilities and limits of domestic and international law, in its transparency aspects. Section V.B examines transparency in environmental activities within the overall disclosure and sustainability reporting of a large multinational corporation—Wal-mart Stores, Inc.  Section VI then analyzes the results.  Section VI.A considers environmental disclosure within the context of regulatory incoherence and its effect on the utility of transparency as both a means of conveying information to corporate insiders and outside stakeholders and as a means of permitting engagement and participation in corporate decision-making affecting stakeholders.  Section VI.B ends with an analysis of these disclosure structures in the context of the framework developed in Section I with particular attention on the limits of transparency as both norm making and technique within the principles of property.

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The Cooperative as a Proletarian Corporation:  The Global Dimensions of Property Rights and the Organization of Economic Activity in Cuba, 33 Northwestern Journal of International Law & Business 527-618 (2013).

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Abstract:

Since the 1970s, the relationship between productive property, and the state and individual has been contested in Marxist-Leninist nations.  Though China has moved to permit robust private activity and the private aggregations of capital in corporate form, Cuba has strictly adhered to traditional communist principles.  In the face of recent financial upheavals, Cuba is seeking to liberalize its approach to economic organization, but in a way that would retain a state monopoly of the use of the corporate form while opening a small and well-managed consumer oriented private sector.  Among the most innovative alternatives being developed is the cooperative, which has the potential to develop into a useful form of what this Article calls a proletarian corporation.  But innovation faces substantial hurdles.  This Article examines in Part II the context for the development of this new approach to cooperative organization.  Part III then turns to a close study of the cooperative and its constraints, starting with a consideration of the agricultural cooperative as template for changes.  It then turns to a critical consideration of the development of a theoretical basis for changing the function and operation of cooperatives developed by Cuban intellectuals, and ends with an examination of the transposition of that theory into the guidelines for restructuring the Cuban economy (Lineamientos) adopted by the Cuban government, and then articulated through a regulatory framework.  Part IV then briefly considers the role of the cooperative in efforts to internationalize the Cuban economic model through vehicles such as the Alianza Bolivariana.  This Article concludes that while the cooperative fits nicely within Cuba’s efforts to develop a complex and well-integrated program of economic organization, its theoretical elegance remains in tension with the realities of Cuban politics.  This tension increases the risk that cooperatives will be reduced to little more than a means of privatizing central planning.