Larry Catá Backer, Regulating Multinational Corporations — Trends, Challenges and Opportunities, Brown Journal of World Affairs 22(1):153-173 (2015) Backer.pdf
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Abstract: In prior work, I suggested the way in which private enterprises have been developing coherent systems of governance that draw on but are autonomous of law and state based legal systems. In this essay I suggest the challenges to the erection of a similar coherent system of legal regulation by or through states. This essay has two objectives. The first is to examine the difficulties of current approaches to use law and legal frameworks to manage MNEs through law. The second is to examine the way that current contradictions impede efforts act developing coherent regulatory models and on that basis to sketch out alternatives beyond the quite limited and repetitive discursive approaches to the regulations of MNEs through law. The fundamental impediment to the legal regulation of the MNE, then, may well be the conceptual cage within which this use of regulation is constrained. As long as the “problem” of MNEs is understood as an institutional problem, that is as a problem of managing something that can be conceived at some level of generality as an institution, an appropriate regulatory response will be elusive. And it will be elusive precisely because the object of regulation cannot focus on the regulation of an object (the MNE as enterprise), but the management of a system (production chains beyond and within the state). For that enterprise, the traditional tools available to states and exercised on “things” will continue to increasingly elaborate legal interventions produce failure.
Keywords: multinational corporations, corporate social responsibility, international taxation, governance, bilateral investment regimes, foreign direct investment
JEL Classification: F02, F23, K20, K22, K33, L23, M14, P41
Larry Catá Backer, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States, Cornell International Law Journal 48:51-104 (2015) http://www.lawschool.cornell.edu/research/ILJ/upload/Backer-final.pdf
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Abstract: Religion has returned to the secular state; does crisis result? Conflating variations of Marxist-Leninist states, whose godless communism of the 20th century sought to marginalize religion as a political adversary, with the Westphalian state that sought to avoid sectarian conflict by separating the institutional state from the apparatus of religion, modern secular liberal theory has long problematized the role of religion in modern “secular” states. Critics of secular liberal modernity never fully accepted its premises and “post” modernists have sought to undo to “reform” the structures of secular liberalism to provide for a larger space for “religion” in politics and economics. This essay considers the issue of the “return” of religion from a comparative constitutional perspective. Its central premise is that where institutional religion is both protected and engaged in political life through which it seeks to harmonize institutional state and religious government, the resulting system tends to advantage a privileged religion in political life over its political rivals. This has implications for the way in which the fundamental ordering premises of liberal societies are understood and applied — rule of law, direct democracy, popular sovereignty, the protection of foreigners and the approaches to the interpretation of constitutional text. These implications contain lessons that might be considered by the United States as it seeks to carve a privileged role for religion while protecting its status as something special that cannot be touched by politics. The essay develops this thesis by weaving together several stories from developing and developed states where religion has acquired a more privileged role. These illustrate the ways that blasphemy and apostasy laws and the incorporation of religious values skew the nature and application of the rule of law, the nature and limits of direct democracy, the relationship between apostasy and treason, the language of interpretation and the power to participate in that dialogue, and the role of the foreign or minority. The effect is especially pronounced in states formally organized on global secular liberal principles of neutral and tolerant process and values neutrality. It suggests a context for the insight, at the center of secular liberalism’s solicitude for religion, that where the apparatus of institutional religion seeks to enter into the political life of a state its religious beliefs ought not to be accorded any particular deference. It will suggest the nature of the shocks to the constitutional settlement of the U.S. constitution and its now misunderstood model of secularism, which touches on the construction of a shadow religious state within American secular liberalism. To that end the Supreme Court decision in Hobby Lobby is considered in light of the prior discussion. The essay concludes that for secular liberalism the price of preserving the privileging of the practices and autonomy of religion in a multi-religious state is the disbarring of institutional religion (though not religious values) from organized political life. The alternative, privileging (institutional) religion and permitting it a broad institutional right to participate in politics, is very much in evidence abroad.
Larry Catá Backer, Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law That Might Bind Them All, Fordham Int’l L.J. 38:457 (2015)
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ABSTRACT: From its from its inception, the U.N. Guiding Principles for Business and Human Rights (GPs) have occupied a contentious and dynamic space — at once setting the framework for operationalization of regimes of business and human rights by states and enterprises, and simultaneously posing as either as a gateway or obstacle to the production of international law and national legal regulation of the activities of business enterprises. This article considers the issues emerging from the front lines of these battlegrounds: (1) the conceptualization of the state duty to protect human rights through the framing of national action plans, (2) the operationalization of the corporate responsibility to respect human rights through the framing of societally constituted reporting and assessment programs, and (3) the re-invention of the GP project as an expression of two dimensional internationalized state power and its challenge to the GP’s three dimensional project. Section II examines the way states might approach their obligations to protect human rights as elaborated most recently in the GPs. Using the framework of National Action Plans recently encouraged by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises, the section suggests that these plans, and the approach undertaken by many states to implement the GPs may be misdirected. Section III turns to a consideration of the equally thorny issue of enterprise approaches to their obligations to respect human rights under the GPs. Two are examined more closely: (1) the quite promising framework, the Human Rights Reporting and Assurance Frameworks Initiative (RAFI) Project, and (2) the recent efforts of the World Federation of Exchanges’ (WFE) new sustainability working group to consider an Investor Listing Standards Proposal. Both are promising yet might be modified to better operationalize the corporate responsibility to respect human rights. Section IV turns to the effect of a move to supplement or supplant the GPs with a treaty framework. Yet, if the NAP framework and the RAFI/WFE processes can be most usefully understood as mapping projects preliminary to the hard substantive work of constructing rule of law norms in the legal and societal spheres, then the current treaty making effort represents both a culmination of the GP process and an effort to return to the state of things before the GP process started. That contradiction requires resolution. The article proposes a way in which the move toward treaty making may be integrated with the GPs state duty to protect prong and the discipline of NAPs and may help to frame interactions with the corporate responsibility. The current efforts to develop a treaty for business and human rights, then, might be most usefully understood and applied in this light — to use the treaty machinery to construct a well-integrated, long term, and ultimately comprehensive rule of law system for business and human rights, binding on all states, which can serve as a means of connection with the development of transnational business behavior norms that fall within the social (non-state) sphere. Together these three efforts suggest the current context of the project of business and human rights, a context in which the role of state, enterprise and international community remains fluid, contingent and undefined. The choices made by each of these critical players will determine the shape of business and human rights governance systems for some time to come.
Larry Catá Backer, The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform, Northwestern Interdisciplinary Law Review 8:71-129 (2015).
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Abstract: Under the leadership of Raúl Castro, Cuba has embarked on a series of perplexing changes that have focused on internal institutional reforms and their impact on the Cuban economy. No consideration of these reforms can be complete without a study of the Cuban Communist Party (PCC), especially in comparative perspective. The thesis of this essay is that ideology is decisively important in any discussion of “reform” in Cuba. Western analysts have sought to subsume ideological issues within “transition” arguments—that ideological issues will evaporate once Cuba makes the jump from a Marxist-Leninist planned economy model to a Western oriented free market democracy. This essay argues that the inverse provides a more useful basis of analysis: that transition arguments are necessarily subsumed within ideological arguments. The ideological basis of state organization provides the key to understanding the likelihood of the success and direction of reforms to any of the sectors of state policy. The PCC’s now quite mature ideological framework has helped shape and constrain the organization and operation of the Party. That ideological framework also shapes and constrains all efforts to “reform” or develop Cuba’s economic, social or political model. Yet the tensions created by these contradictions between PCC ideology and the conditions of Cuba need not lead invariably to a choice between Marxist-Leninist and Western style democratic state organization. After the Introduction, Section II, considers the centrality of ideology to the ‘problem’ of Cuba. In Section III, the essay examines the consequences for Cuba of the choice, made by its vanguard party, to follow a distinct path toward the articulation and application of Marxism-Leninism in the organization and exercise of power. Section IV then connects the ideological path of Cuban Marxism-Leninism tio state practice. With a focus on the possibilities and constraints of the reform efforts since Raúl Castro assumed power. Section V then focuses on the alternative to ideology and economic reform offered through Chinese Party and state practice. Section VI then unpacks the consequences of ideological possibilities by considering Cuban approaches in the shadow of the Chinese alternative. Lastly, Section VII weighs the consequences of the quality of the transition that is coming to Cuba, one that need not lead Cuba away from Marxist-Leninism and a Party-State system. Each is considered in turn in light of the essay’s thesis: Variations in Marxist ideology matter (no monolithic communist ideology), sustainable economic reform is possible within a Marxist Leninist State-Party system, and that ideological systemic ossification in Cuba, as in the United States, can lead to crisis and paralysis. It is in that context that one considers the questions: does the Chinese model provide a framework for Cuba? Is it too late for reform of the Cuba CP? If reform is possible, what should be its objectives and strategies?
Larry Catá Backer, International Financial Institutions (IFIs) and Sovereign Wealth Funds (SWFs) as instruments to combat corruption and enhance fiscal discipline in Developing States, International Review of Law 2015:swf.5; http://dx.doi.org/10.5339/irl.2015.swf.5
Larry Catá Backer
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ABSTRACT: Especially since the start of the second decade of the twenty-first century, once more we have seen more focused interest in the use of SWFs by home states—less as a means of projecting sovereign financial power outwards and more as a means of internal financial management, and development. What makes this interesting from the perspective of SWF development is the role of International Financial Institutions (IFIs) in SWF development. This article takes a first look at the way in which IFIs have also begun to use SWFs in their interactions, with a emphasis on developing states. A review of some recent efforts to establish SWFs with a stabilization or development focus suggests the way in which these funds now may better serve the project of fiscal and governance internationalization, and the development of global policy coherence around the fiscal ideologies of IFIs, rather than as an instrument of national policy. Part II briefly sketches the IFI’s interest in and approach to SWFs as a part of their investment, capacity building and rule of law toolkits. Part III then reviews the manifestation of this approach in the development of SWFs in a number of developing states. The article suggests ways in which stabilization and development SWFs may better serve financial globalization than the particular interest of states establishing them precisely by transposing global standards of fiscal and governance behavior into the internal workings of states. In this sense, development and stabilization SWFs serve as an instrument of globalization from the top down (through IFI policy operationalization) perhaps as effectively as SWFs that seek to project national financial power through private market investments abroad. But it also creates the possibility of divergence in SWF character as the consequences of the use of SWFs as governance devices may produce substantial deviation from the traditional organizational parameters of SWFs as instruments of macroeconomic policy.
Keywords: International Financial Institutions, Sovereign Wealth Funds, corruption, fiscal discipline
依宪治国与从严治党格局下 党内反腐惩戒制度的法治考察 08-08-外译
白 轲 王可任 著 王可任 译 邵六益 校 **
内容提要:当今中国正在探寻一条既反映中国历史和特殊国情,又符合世界 普遍遵循的宪政原则的道路,以实现具有中国特色的社会主义宪 政和法治。中国宪政秩序立足于这样的分权原则之上,即政府行 使行政权,而中国共产党掌握政治权力,这一宪政秩序可以从“双 规”相关的法律制度中看出来。在解读中国社会主义宪政的基础上, 本文将阐明为什么双规在中国现行宪政框架下是合宪的。“双规” 处理的是党员干部违反政治纪律的行为,其权能超越了政府的行 政权力,主要依据在于党章而非宪法文本。当然“双规”的合法 性有待加强,本文提出了对“双规”的改革建议,以使其更好地 契合中国共产党的组织路线和中国社会主义宪政原则。(本文“双 规”一词使用频度较高,以下正文省去双引号)
关 键 词:执政党和国家分权 宪政体制 双规 党章 宪法