Reflections on the Penn State Conference on New International Trade, and Rules Between Globalization and Anti-Globalization – Part 1

At a time when uncertainty still looms large over the future trajectory of globalization, in my capacity as a board member of the Foundation for Law and International Affairs, I had the privilege to be able to provide my (very limited) input to a conference on New International Trade and Investment Rules Between Globalization and Anti-Globalization.

During the Penn State “Blue-White Weekend”, State College becomes a second home to thousands of alumni and visitors pouring in from neighbouring cities and states. In such a festive atmosphere, Penn State Law provided a quiet retreat to fourty scholars from China, Europe, and the United States, who convened to examine the possible future scenarios and trajectories which may emerge out of the rebalancing of current geopolitical and geostrategic equilibria. More details on presentations are available at Law at the End of the Day.  

This event would not have been possible without the painstaking effort of Zhu Shaoming, and generous support from the Penn State University Center for Global Studies, The Business and Human Rights Catalyst, Alliance Manchester Business School, Manchester University, the Penn State University Research and Career Development Network for Law and International Affairs, the  Foundation for Law and International Affairs, the Coalition for Peace and Ethics, and Penn State Law. The conference program is included at the end of this post.

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The ground for our conference was paved by a pre-conference workshop on Scenarios for China’s Future. The workshop was brilliantly facilitated by Professor Nicholas Rowland, who is among the topmost experts in the sociology of infrastructure, and Dr. Matthew Spaniol, who is a leading scholar in Future Studies.

The workshop was immensely useful to familiarize legal scholars with scenario planning. A cutting-edge tool and technique used to study globalization, scenario planning is useful to formulate forecasts as to each one of the possible outcomes which may emerge from current trends, and contingencies.  This technique, which is still relatively new to the field of academic analyses in general, and to legal studies in particular

has been used by some of the world’s largest corporations, including Royal Dutch Shell, Motorola, Disney and Accenture.  . . . According to Bain & Company’s annual survey of management tools, fewer than 40% of companies used scenario planning in 1999. But by 2006 its usage had risen to 70%.

Held in a very informal, relaxed environment, the workshop saw the active participation of most conference speakers and graduate students, who pooled in their knowledge in a collaborative attempt to understand what possible scenarios globalization has in store for each one of us.

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The initial fruits of this his attempt became visible during our two-days conference. I already wrote, earlier, how the current scenario of globalization compels us to consider the respective roles we play, as  impartial academics, in producing new knowledge that is public, and can enable all interested parties make autonomous and better informed decisions in their respective fields.

The time I spent in Pennsylvania added a further layer to my understanding of the role academics can and should play in globalization.

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April 23, 2017. Picture by Zhu Shaoming.

We live at a time in history when the normative and regulatory structures that underpin globalization are undergoing a profound process of change.

By their own nature, processes of globalization are not amenable to being catalyzed around an organizing pole. We are rather dealing with a much more complex dynamic, one which is seeing the birth and development of rhizomatic networks. These complex networks are not alternative to national borders, national and international organizations, multilateral trade agreements, etc. Neither are they antagonistic to them. They coexist with national states and international organizations, yet they obey their own developmental logic and dynamics.

In this sense, globalization already is (and perhaps it has always been) a dual-layered process at least. The topmost layer of globalization is constitued by domestic borders, multilateral agreements, and international organizations. At the very core of globalization, however, we find multiple, transnational, non-hierarchical, eventually informal networks.

Considered in their dimension as abstract structures, these networks are resilient, because they do have an ability to remain in existence, and continue to fulfil their purpose, also in the face of challenges to their normal mode of operation. Such challenges are indeed beneficial to networks, in that they enable them to further develop their capability to adapt to new circumstances, to new conditions, and to new scenarios.

Considered as a social reality, transnational networks provide the backbone of globalization, the very structure that will continue to sustain globalization over a long time, despite occasional, short-term knee-jerks reactions on the part of one or more actors.

The dualism inherent in the geography of globalization highlights the importance of the normative structures that motivate all stakeholders, but academics in particular, to involve themselves in this process.

Globalization has seen the birth of international instruments such as the 2011 U. N. Guiding Principles for Business and Human Rights, bilateral investment treaties, the One Belt One Road Strategy, the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP), and the Trade in Service Agreement (TISA). These instruments situate themselves at the border between state and society, domestic and foreign, private and public, law and societal regulation. Their goal is to provide a meta-framework for globalization, albeit one still anchored to the realities of national states.

The existence of multiple instruments, each one of which attempts to serve as the organizing structure for globalization, has posed academics with an entirely new set of questions. These questions concern not just the resilience of each one of these structures. More important is their mutual relationship, and the extent to which new structures may supplant or even displace them.

Perhaps, the greatest contribution academics can bring to globalization is a respectful, informed conversation around these themes. As academics, we bear the responsibility to use the power of our intellects to find a common path to walk with confidence towards a future which still remains hard to predict.

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Conference Program

Day 1: April 22, 2017

Opening Remarks (9:00-9:20am)

Dean James W. Houck

Dean Designate Hari M. Osofsky

Keynote Speech (9:20-9:40am)

Kenneth McPhail (Professor & Associate Dean, Faculty of Humanities, Manchester      University): Accounting for Human Rights in International Trade

Panel 1 (9:40-11:40am)

The Convergence and Diversification of the International Trade and Investment Regimes

Panelists:

Yanmei Lin (Associate Professor, Vermont Law School) & Sheng Sun (Vermont Law School): Nation State in International Environmental Governance: a Chinese Perspective in the Context of Regulating International Trade of Illegal Timber Products

Oluwaseun Ajayi (Attorney, U.S. Department of Education): The Panama Convention on Recognition of Arbitral Awards

(Skype) Nishi Malhotra (Assistant Professor) & Priya Malhotra (Assistant Professor, Shri Ram College of Commerce, Delhi University):Impact of Antidumping Duties on International Trade

Armstrong Chen (Partner, King & Wood Mallesons): On Interim Measure of China (Shanghai) Pilot Free Trade Zone Arbitration Rules (English Version) and An Analysis of the Development of Cross-border Dispute Resolution in China’s Bankruptcy Laws and Regulations

Feng Li (Lecturer, China Foreign Affairs University): Research on FDI Regulation Framework at the Background of “OBOR” Implementation

Moderator: Flora Sapio

Lunch (11:40am-1:20pm)

Panel 2 (1:20-3:20pm)

The Constitutionalization of International Trade and Investment Rules Beyond the State or Among States

Panelists:

Wei Shen (Professor & Dean, Shandong University Law School): After TPP: China’s BIT’s and FDI Law

Flora Sapio (Professor, Australian National University; Board Member, FLIA): Private Management and Risk Mitigation Methodologies as the “Unwritten Constitution” in an Era of Anti-Globalization.

Paolo Farah (Professor, West Virginia University): Civil Society and National, Bilateral & Multilateral Instruments towards “Non-Trade Concerns” to Stem the Excesses of Globalization

Bin Li (Professor, Beijing Normal University): Linking Human Rights Norms to International Investment Rules: A Methodological Reflection

Xiaofu Li (Postdoctoral Researcher, Shanghai University of Finance and Economics): Legal Service of Chinese Market in New Era.

Moderator: Larry Catá Backer

Coffee Break (3:20-3:35pm)

Panel 3 (3:35-5:35pm)

The Rise of New Societal Orders and Global Supply Chains, Labor and Investment Markets

Panelists:

Larry Catá Backer (Professor, Penn State University): The Privatization of Governance

Nichlas Rowland (Professor, Penn State University) & Matthew Jon Spaniol (Professor, Roskilde University): Futures for China: Results from Pre-conference Scenario Planning Workshop

Shan Gao (SJD Candidate, Penn State Law School): The FDI Policy and Socialist Modernization

Sean Jorgensen (Attorney & Secretary of FLIA): Global Income Inequality and the Failures of Nationalism: A Case for the Globalization of Labor

Keren Wang (Ph.D. candidate, the Department of Communication Arts and Science of Penn State University): A Ritualist Perspective on the State of Chinese Legal System

Moderator: Kenneth McPhail

Day 2    April 23, 2017

Opening Remarks (9:00-9:10am)

            Wei Shen (Professor & Dean, Shandong University Law School)

Panel 4 (9:10-10:30am)

States and Stakeholders in the Construction of an International Economic Legal Order 

Sukru Say (SJD Candidate, Penn State Law School):  Civil Society Organizations’ roles in Promoting the Transparency of International Trade Negotiation

Jianzhi Zeng (Fulbright Visiting Researcher, Cornell University School of Law): Globalization or Anti-globalization: The Right to Regulate in International Investment Law

Aisi Zhang (SJD Candidate, University of Illinois at Urbana-Champaign): New Challenge: The Role of NGOs at the WTO

Moderator: Panagiotis Tridimas (Professor, Penn State University)

Coffee Break (10:30-10:40am)

Special Session (10:40am-12:20pm)

The New International Trade and Investment Rules: Chinese Perspectives

Panelists:

Paolo Farah: (Professor, West Virginia University): China’s “One-Belt One-Road” and Geopolitics in Eurasia: Cooperation in Energy and Infrastructures

Yi Liang (Ph.D. Candidate, University of International Business and Economics): The Enforceability of WTO-plus and WTO-extra Provisions in the New Generation of Chinese FTAs

Yewei Shi (Ph.D. Candidate, Peking University): A Research on Technology Transfer in China’s Outward FDI under Globalization

Mengshuang Sun (Master Candidate, China University of Political Science and Law): Rethinking the International Economic Order and China’s Role

Moderator: Wei Shen/Keren Wang

Closing Remarks (12:20-12:30pm)

            Professor Larry Catá Backer

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