英国行业性组织在公司治理中的作用

英国公司治理研究致力于解决因所有权和控制权分离而产生的经典代理问题,理论界和实务界分别提出了两种机制:董事会内部监督机制和"要素市场"外部治理机制来约束监督管理层,降低代理成本。在机构化持股时代,机构投资者越来越积极参与所投资组合公司的治理事务,代表机构投资者的行业性组织在一般性参与方面起着举足轻重的作用,机构监督已成为英国公司治理的新机制。     

Looking for the Nature of Law: On Shapiro’s Challenge

This article critically focuses on the methodological aspects of Scott Shapiro??s book Legality. Indeed Shapiro??s book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The article is divided into two parts. In the first two sections I shall analyze Shapiro??s jurisprudential approach by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections I will consider some of the problems that this approach gives rise to, and outline an alternative view on the nature of law stimulated by the discussion of Shapiro??s work.     

Holding (Quasi-)Autonomous EU Administrative Actors to Public Account

Abstract:  This article addresses problems of accountability in relation to two specific kinds of administrative actors in the EU system of multilevel governance, namely comitology committees and EU-level agencies. With regard to both sets of actors, the accountability issue is often framed in terms of delegation from a principal to an agent. This article explores the delegation of powers discourse and the question whether this framing adequately covers accountability forums and mechanisms that are emerging as a matter of legal and institutional practice. The latter sub-constitutional level is particularly relevant given the high degree of institutionalisation of both categories of administrative actors. Using these two categories of administrative actors as case studies, this article suggests that a delegation model of accountability in a democratic sense is not adequate and only captures part of emerging practice. A looser conceptual framing, understanding public accountability as a process in which power is checked and balanced by various actors, fits better within a more constitutional perspective on holding EU executive power to account.     

Rule‐Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements

The boundaries between public and private actors are increasingly blurred via regulatory governance arrangements and the contracting out of rights enforcement to private organizations. Regulation and governance scholars have not gained enough empirical leverage on how state actors, private organizations, and civil society groups influence the meaning of legal rules in regulatory governance arrangements that they participate in. Drawing from participant observation at consumer law conferences and interviews with stakeholders, my empirical data suggest that consumer rights and, in fact, consumer law, mean different things to different stakeholders tasked with adjudicating consumer rights. Rights afforded consumers who purchase warranties are now largely contingent on first using alternative dispute resolution structures, some created and operated by private organizations with soft state oversight and others run by stakeholders but with greater state oversight and involvement. Using new institutional sociology and regulatory governance theories, I find that stakeholders involved in overseeing and administering these dispute resolution systems filter the meaning of consumer rights through competing business and consumer logics. Because consumer laws mean different things to stakeholders tasked with adjudicating consumer rights, two different rights regimes simultaneously exist in this field. I conclude that how rule‐intermediaries administering private and state‐run dispute resolution systems conceptualize what consumer laws mean in action may have implications for regulatory governance and more broadly, consumers' access to justice.     

Integrating Organizational Justice and Affect: New Insights, Challenges, and Opportunities

Building on the foundation offered by Cropanzano et al. in their recent book titled Social Justice and the Experience of Emotion (Cropanzano et al. in Social justice and the experience of emotions, Routledge, New York, 2011), we argue that further integrating the literatures on organizational justice and affect has the potential to create important insights that can further our understanding of both literatures. In order to capitalize on these opportunities, however, we argue that justice scholars must increase the clarity of our constructs, address critical gaps in the literature, and question underlying assumptions in the field as well as within the paradigms that have traditionally been adopted to explore justice issues. We propose a number of research avenues that can not only facilitate our understanding of organizational justice by addressing challenges and gaps in the literature, but can also help further integrate the organizational justice and affect literatures. We conclude by discussing methodologies and approaches that can help organizational justice researchers to explore these new research opportunities.     

Executive–Legislative Relations in Poland, 1991–2005: Institutional Relations in Transition

This paper relates factors previously identified as significant for parliamentary governance to general developments in post-communist CEE and proceeds to assess their relevance to the development of executive–legislative relations in Poland. The Sejm was institutionally strong, while governments were inexperienced, internally divided, and unstable. Governments could not assume the support of their parliamentary parties. Tensions with coalition partners were rife, and only in the period 1993–97 did the coalition survive intact. Periods of ‘cohabitation’ with a relatively strong president complicated governance even after the new Constitution of 1997. These factors suggest weak government, amply borne out by the experience of the two minority governments of the first term. Yet governments gained greater control of the legislative agenda and, regardless of their type or extent of parliamentary support, they usually succeeded in enacting their legislation and proved highly successful in defending individual ministers from votes of no confidence. We explain this apparent contradiction by contrasting institutional weakness with an underlying consensus on broad outlines of both foreign and domestic policy. Despite a discourse of hostile confrontation between government and opposition, much legislation was passed with the broad endorsement of the legislature. Governments were receptive to modifications of policy. When needed, they could often rely on cross-party support or that of independent-minded deputies. Parliament thus remained a key legislative actor; it was never merely the pawn of majority governments. Governments also benefited from opposition disunity. The opposition proved incapable of defeating ministers, even of minority governments.     

A model of dynamic climate governance: dream big, win small

In this article, I develop and evaluate a model of dynamic climate governance. The model is based on the premise that global warming is such a complex problem that present political realities do not allow an immediate solution to it. I propose that current mitigation activities should focus on building technological and political transformation potential to enable more ambitious climate cooperation in the future. Successful international climate cooperation could comprise a series of politically feasible “small wins” guided by a “big dream” of a comprehensive future climate regime. The analysis contributes to the emerging literature on the dynamics of climate governance by showing how coherence between multiple independent climate policies can be achieved, both across policymakers and over time. To illustrate how the model can be used, I apply it to technology agreements and North–South climate finance.     

‘European Governance’ or Governmentality? The European Commission and the Future of Democratic Government

The word ‘governance’ has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of ‘European governance’. The paper is set out in four steps. The first analyses the European Commission's claims for ‘governance’ as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion.     

A Preliminary Perspective of Negotiations of EU–China PCA: A New Bottle Carrying Old Wine or New Wine or Both?

The EU–China Partnership and Cooperation Agreement (PCA) is a relatively new type of agreement between the EU and a third country, and its negotiation and conclusion will bring about a new landscape for the comprehensive strategic partnership between the two sides. However, owing to the broadness, importance and complexity of EU–China relations, and the unique multiple-level governance within the EU itself, the negotiation and conclusion of the new PCA deems to be a hard and time-consuming process. In light of the EU internal aspects, the new PCA seems to be related to several treaty-making competences and procedures, thus probably with the form of a mixed agreement as the final outcome. In terms of substantive issues, market access, transparency, intellectual property rights, China's full market economy status, abandonment of embargo on arms sales and high-tech trade, democracy, human rights, rule of law, good governance and dispute settlement clauses, etc are all inevitably the tough and core issues. Nevertheless, it is believed that both sides will strive to lay down a systematic, stable and sustainable treaty law basis for a comprehensive EU–China strategic partnership in the spirit of seeking commonality, mutual respect and trust, and equal consultation.     

Analysis of the governance architecture to regulate GHG emissions from international shipping

Despite the substantial and likely increasing contribution of greenhouse gas (GHG) emissions from international shipping and the related adverse impacts on global climate change, GHG emissions from international shipping are yet neither regulated by the Kyoto Protocol, nor through any other legally binding, internationally accepted regulation. This paper is looking into the governance architecture that is currently in place to regulate GHG emissions from international shipping with a view to analyze whether the institutional degree of fragmentation within this architecture is contributing to the current situation where no legally binding, internationally accepted regulation has been set up yet. Following the hypothesis that the degree and the characteristics of governance fragmentation have a crucial impact on the effectiveness and performance of a governance system, this paper focuses on the current architecture of climate change governance in international shipping and the institutional interplay between its actors. Therefore, the analytical framework builds on approaches from international environmental governance, regime theory, institutional interplay, and fragmentation in international governance architectures.     

Corporate governance of Chinese state-controlled listed companies: Evidence from the exit of Chinese domestic venture capital

The existing literature on the corporate governance of Chinese state-controlled listed companies (SCLCs) focuses more on agency costs. There is inadequate attention being paid to its adaptive efficiency through the standard of venture capital (VC). This paper tries to fill this gap on the basis of the evidence from the exit of Chinese domestic VCs. The existing research has proved that the availability of stock market as an exit is essential for the vitality of a country’s VC industry. Unfortunately, with the institutional barriers imposed by the control-based model of the SCLCs, the exit ways of Chinese domestic VCs via stock market are still uneven. The implication from this study is that adaptive efficiency and agency costs are equally important factors which ought to be considered when any reform proposals for the corporate governance of the SCLCs are put forward. While either of the two factors is neglected in this process, the overall efficiency is to be jeopardized.     

Principle,Discretion, and Symbolic Power in Rousseau's Account of Judicial Virtue

Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open‐textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy—and correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy.     

Black Box Production of Paper Fish: An Examination of Knowledge Construction and Validation in Fisheries Management Institutions

In this paper I examine the relationship of institutional structures of governance to the production, acceptance and legitimization of knowledge by various stakeholder groups participating in fisheries management arenas. I focus first on the New England groundfishery where the stock assessments of federal scientists have come under intense criticism by fishermen. As a counterpoint, I examine knowledge production for management purposes in two fisheries where cooperative management institutions have emerged: the Puget Sound region of Washington and the Kuskokwim River watershed of Alaska. Knowledge is produced and legitimated differently by the different stakeholders in the management process. The findings highlight the critical importance of two-way communication, in which stakeholder groups both listen and are listened to, in creating a legitimated and more robust knowledge base with which management decisions can be made.     

Reinforcing or Challenging Stigma? The Risks and Benefits of ‘Dignity Talk’ in Sex Work Discourse

The concept of ‘human dignity’ sits at the heart of international human rights law and a growing number of national constitutions and yet its meaning is heavily contested and contingent. I aim to supplement the theoretical literature on dignity by providing an empirical study of how the concept is used in the specific context of legal discourse on sex work. I will analyse jurisprudence in which commercial sex was declared as incompatible with human dignity, focussing on the South African Constitutional Court case of S v Jordan and the Indian Supreme Court case of Budhadev Karmaskar v State of West Bengal. I will consider how these courts conceptualise dignity and argue that their conclusions on the undignified nature of sex work are predicated on particular sexual norms that privilege emotional and relational intimacy. In light of the stigma faced by sex workers I will explore how a discourse, proclaiming sex work as beneath human dignity, may impact on the way that sex workers are perceived and represented culturally, arguing that it reinforces stigma. I will go on to examine how sex workers subvert the notion that commercial sex is undignified, and resist stigma, by campaigning for the right to sell sex with dignity. I will demonstrate that an alternative legal approach to dignity and sex work is possible, where the two are not considered as inherently incompatible, concluding with thoughts on the risks and benefits of using ‘dignity talk’ in activism and campaigns for sex work law reform.     

A historical institutionalist view on merging LULUCF and REDD+ in a post-2020 climate agreement

In the context of the UNFCCC negotiation process on a global climate agreement, policy makers are looking for approaches on how to significantly raise the mitigation ambition of all relevant sectors, including the land use sector. Aside of the formal negotiations some Parties to the UNFCCC have started an informal dialogue and discuss how to merge the fragmented accounting rules for mitigation relevant land use activities, in particular those concerning forest-sector emissions. Stressing that ‘history matters’, we use a historical institutionalist perspective to assess the institutional pathways of the different accounting rules for developed and developing countries, their mutual relationship, and in how far they are supportive or counterproductive for this endeavour. Our empirical analysis shows that Parties tend to use any modification phase in the negotiation process to water down already achieved agreements, and that negotiating modalities after targets have been agreed is not conducive either. In the efforts of specifying the Paris agreement, merging existing rules into a common accounting framework is likely to further compromise the exisiting weak rules and modalities, and potentially what negotiators consider as ‘environmental integrity’. With this, a formal negotiation of common rules for the accounting of the land use sector may yield an outcome below what has been achieved since the negotiations on a post-2020 agreement started in 2005. We conclude that politically acceptable approaches for the land use sector that also contribute to the overall objective of raising ambition should avoid reopening already agreed decisions on rules and modalities.     

International environmental agreements between developing countries only: learning from the Brazil–Uruguay case over the suspicion of acid rain

This article is about the process of negotiation and implementation of a bilateral environmental agreement between two developing countries. It analyzes the case of the Act of Jaguarão between Brazil and Uruguay on assessing the risk of transboundary air pollution by the President Medici (UTPM) coal-powered thermo-electrical facility in the Candiota region of southern Brazil. The article adds to the scarce literature on international environmental conflict resolution and negotiations between developing countries, especially in Latin America. First, it explains that even with the asymmetry of power between Brazil and Uruguay, negotiation was possible due to a series of factors, such as the interest of Brazilian environmental agencies in improving the monitoring of emissions from UTPM and the international scrutiny of Brazil prior to the upcoming Rio-92 Earth Summit. Both states obtained mutual gains from the agreement by developing ‘joint fact finding’ research and monitoring. Second, different from most of the mainstream literature, the research reveals that weaknesses in institutional agreements, such as a lack of sanctions or deadlines, were not an implementation impediment. In fact, the very weaknesses of the agreement actually enabled authorities in both countries to cooperate in the development of an acid rain monitoring program in the Candiota region, and as a result, to improve air monitoring capacities in both countries. Third, this research shows that the implementation process (1991–2003) produced different results and impacts: it helped to develop technical capacities of environmental agencies in both countries, increased the political power of Brazilian environmental agencies to control UTPM, and pushed for behavioral changes to enable UTPM to respond to the demands of both governments.     

Breaking the Circle. Dharmakīrti’s Response to the Charge of Circularity Against the Apoha Theory and its Tibetan Adaptation

This paper examines the Buddhist’s answer to one of the most famous (and more intuitive) objections against the semantic theory of “exclusion” (apoha), namely, the charge of circularity. If the understanding of X is not reached positively, but X is understood via the exclusion of non-X, the Buddhist nominalist is facing a problem of circularity, for the understanding of X would depend on that of non-X, which, in turn, depends on that of X. I distinguish in this paper two strategies aiming at “breaking the circle”: (i) conceding the precedence of a positive understanding of X, from which a negative understanding (i.e., the understanding of “non-X”) is derived by contrast, and (ii) denying any precedence by proposing a simultaneous understanding of both X and non-X. I consider how these two options are articulated respectively by Dharmakīrti in his Pramāṇavārttika cum Svavṛtti and by one of his Tibetan interpreters, Sa skya Paṇḍita, and examine the requirements for their workability. I suggest that Sa skya Paṇḍita’s motivation to opt for an alternative solution has to do with his criticism of notions shared by his Tibetan predecessors, an outline of which is given in Appendix 1. In Appendix 2, I present the surprising use of the charge of circularity by an early Tibetan logician against his coreligionists.     

Government(ality) by Experts: Human Rights as Governance

The suggestion that the general economy of power in our societies is becoming a domain of security was made by Michel Foucault in the late 1970s. This paper takes inspiration from Foucault’s work to interpret human rights as technologies of governmentality, which make possible the safe and secure society. I examine, by way of illustration, the site of the European Union and its use of new modes of governance to regulate rights discourse—in particular via the emergence of a new Fundamental Rights Agency. ‘Governance’ in the EU is constructed in an apolitical way, as a departure from traditional legal and juridical methods of governing. I argue, however, that the features of governance represent technologies of government(ality), a new form of both being governed through rights and of governing rights. The governance feature that this article is most interested in is experts. The article aims to show, first and foremost, how rights operate as technologies of governmentality via a new relation to expertise. Second, it considers the significant implications that this reading of rights has for rights as a regulatory and normalising discourse. Finally, it highlights how the overlap between rights and governance discourses can be problematic because (as the EU model illustrates) governance conceals the power relations of governmentality, allowing, for instance, the unproblematic representation of the EU as an international human rights actor.