State Ownership and the United Nations Business and Human Rights Agenda: Three Instruments, Three Narratives

The rise of globally-oriented state ownership has emerged as a crucial issue across political, economic, and legal planes during the past decade. Contrary to the traditional approach where state ownership is viewed primarily through trade law, antitrust law, and corporate law, this article discusses the proliferating state shareholder power in relation to international human rights law. In particular, the article interrogates three recent U.N. human rights governance instruments by using narratives that highlight perils, potential, and specialty of state ownership in the emerging business and human rights agenda. It is argued that the U.N. instruments realize the changes in the architecture of globalized state ownership, portray it as a regulatory space, and seek to utilize this space by recalibrating states\u27 private shareholder identities with public ends. At the same time, however, the nascent human rights-based regulation of state ownership exposes a deeper market contingency underpinning the techniques of contemporary human rights governance

State Ownership and the United Nations Business and Human Rights Agenda: Three Instruments, Three Narratives

The rise of globally-oriented state ownership has emerged as a crucial issue across political, economic, and legal planes during the past decade. Contrary to the traditional approach where state ownership is viewed primarily through trade law, antitrust law, and corporate law, this article discusses the proliferating state shareholder power in relation to international human rights law. In particular, the article interrogates three recent U.N. human rights governance instruments by using narratives that highlight perils, potential, and specialty of state ownership in the emerging business and human rights agenda. It is argued that the U.N. instruments realize the changes in the architecture of globalized state ownership, portray it as a regulatory space, and seek to utilize this space by recalibrating states’ private shareholder identities with public ends. At the same time, however, the nascent human rights-based regulation of state ownership exposes a deeper market contingency underpinning the techniques of contemporary human rights governance.</p

Making International Legal Persons in Investment Treaty Arbitration: State-owned Enterprises along the Person/Thing Distinction

Investment treaty arbitration (ITA) has emerged as a space where the international legal personality of states and foreign investors is continuously created, maintained, and redefined. Focusing on treatment of state-owned enterprises (SOEs), this Article juxtaposes investment law’s doctrinal foundations with Roberto Esposito’s political philosophy to explore the dynamics, porosity, and ramifications of international legal personality in ITA. Skeptical of gradual conceptualizations of legal personality, this Article frames investment law in terms of Esposito’s person/thing distinction and argues for SOEs to form a liminal category that exposes malleability of legal doctrines when ITA tribunals make or break international legal persons. Ultimately, the ITA cases seem to open a distinct dispositif  of a SOE that both delineates the exact normative demarcation of the state as international legal person and creates pockets of indistinguishability and politics at its borders—often to the detriment of the Global South. This insight provides a new perspective on creation of international legal persons in ITA and international law more generally but, at the same time, also adds a new dimension to Esposito’s overarching framework resting on the asymmetric relationship between persons and things. </p

Governing the Good State Shareholder: The Case of the OECD Guidelines on Corporate Governance of State-Owned Enterprises

The newly revised Guidelines on Corporate Governance of State-Owned Enterprises (2015) by the OECD are fast emerging as a new regulatory paradigm for the administration of State-owned enterprises and the organization of the State ownership function. This article analyses the Guidelines’ policy prescriptions, governance strategies, and integration into global governance. Noting that the instrument operates by governing the shareholder’s internal make-up, decision-making and objective setting, the article argues that the Guidelines amount to a robust model for an ideal State shareholder—the Good State Shareholder. Efficient, engaged, and accountable, the Good State Shareholder emerges as a critical actor in the contemporary global economy, where States continue to amass and command immense shareholder power. However, when juxtaposed with the recent attempts by the UN to adopt State ownership as an instrument of human rights governance, the fault lines of the Good State Shareholder model, as well as the emerging techniques of shareholder governance, are exposed. </p

Traditions , Myths, and Utopias of Personhood: An Introduction

Legal personhood continues to serve an important role in the legal system. The millennial distinction of persons and things, while often unarticulated, is an essential building block of all legal relations. This introduction to persons and things outlines the past tradition, draws on present myths, and construes a utopia of which the articles on this special issue will comment, clarify, and criticize.The tradition of personhood has been well-established in recent academic commentary on personhood. Often construed as a gradual evolution and expansion from its modest original scope covering only adult male heads of household to present universal human personhood, the concept of legal person is tightly connected to the rule of law and the emergence of human rights. On this tradition, personhood is reserved an emancipatory role: Personhood is a legal fiction that sets everyone on an equal footing before the law. Due to its fictional character, also collective human enterprises from state to corporation are donned with personhood as tools for realization of humane personhood. As such, the tradition serves an important part in perception of law and justice as ultimately egalitarian and often blind.Recent interest in legal personhood has come to criticize the traditional narrative, claiming that it construes a myth concealing the fact that law remains profoundly discriminatory and unjust partly because of the way legal personhood is defined. A range of new entities commanding some or all features of a legal person—such as animals, cyborgs, and fetuses—are left outside legal protection due to their wanting personhood. Clinging on ideas equating humans to persons lead to affronts of morality in name of legality, the critics of the traditional narrative argue. According to them, rather than maintaining a material bind to a human being, a legal person should be a concept of art reserved to an artificial bundle of rights that can be allocated to anyone or anything. As truly artificial, legal personhood would better serve justice by providing rights to everyone and everything unlike the traditional account.The utopia proposed by this introduction as well as by all of the articles forming this special issue pushes both the tradition and its critics to their limits. The utopia, on the one hand, argues for a fully material account of personhood where all things stand initially on an equal footing and, on the other hand, demands that also artificiality takes itself seriously in its denouncement of any material bind. We argue that such a utopia will better highlight the functions personhood serves in law and allows for a reevaluation of our appreciation of things.</div

Introduction: Imagining Post-Neoliberal Regulatory Subjectivities

To explore these tentative diagnoses and conceptualizations we called for papers engaging different aspects of law\u27s subjectivity turn. A selection of papers that map the possible genealogies for the emergence of post-neoliberal law, address the implications of anthropomorphic corporate regulation, or analyze transformations in sovereign subjectivities is now published in this symposium issue. The papers take up and make salient an array of the big questions of our day. While overlapping, the papers can be broadly divided into two categories. The first category consists of papers that explore the internal make-up of legal and regulatory subjectivities. Drawing on history, queer theory and regulation studies, among others, the papers explore the most pertinent questions about the interaction of law with those it regulates.The second category of papers probes into the composition of the post-neoliberal order. Grounding the analysis in investment law, human rights, and contractual regimes, the papers expose a number of techniques through which the contours of post-neoliberal world[s] are shaped and contested

Introduction: Imagining Post-Neoliberal Regulatory Subjectivities

To explore these tentative diagnoses and conceptualizations we called for papers engaging different aspects of law\u27s subjectivity turn. A selection of papers that map the possible genealogies for the emergence of post-neoliberal law, address the implications of anthropomorphic corporate regulation, or analyze transformations in sovereign subjectivities is now published in this symposium issue. The papers take up and make salient an array of the big questions of our day. While overlapping, the papers can be broadly divided into two categories. The first category consists of papers that explore the internal make-up of legal and regulatory subjectivities. Drawing on history, queer theory and regulation studies, among others, the papers explore the most pertinent questions about the interaction of law with those it regulates.The second category of papers probes into the composition of the post-neoliberal order. Grounding the analysis in investment law, human rights, and contractual regimes, the papers expose a number of techniques through which the contours of post-neoliberal world[s] are shaped and contested

Transnational sustainability laws and the regulation of global value chains: Comparison and a framework for analysis

Several corporate disclosure and due diligence laws related to the social and environmental impacts of globalized production have been enacted across the world over the last decade. While the emergence, operation and impact of such ‘transnational sustainability laws’ have already been extensively analysed, their legal operability remains poorly understood. This a significant omission because transnational sustainability laws form a novel and increasingly important attempt to conceptualize and govern the new logic of global production networks—global value chains—and their regulatory infrastructure. Against this backdrop, this article deploys a comparison of eleven recent transnational sustainability laws and develops an analytical framework to probe legally-operative conceptualizations of global value chains. By analysing how transnational sustainability laws conceptualize the value chain, the lead firm and adequate value chain governance, we argue, these instruments emerge as proxies for a legally-operative framework that better delineates the emerging law of global value chains. Thus, our analysis contributes to growing literature on the potential and limits of transnational sustainability laws as well as to the development of nascent ‘global value chain law’.</p