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Strange But True III: In which your intrepid reporter bravely discusses "tragedy of the commons" and "property" with corrupted climate scientists and AGW co-religionists!

May 13th, 2009 No comments

[some snark in the title, reflecting the heat of the fight over the wheel of government]

Further to my prior posts, here is the full list of my comments over at the remarkable RealClimate thread started by climate scientist Gavin Schmidt, to specifically discuss the “tragedy of the commons” paradigm in the context of domestic and international wrangling over climate policy. 

 

So far, comments by yours truly are as follows:

134. TokyoTom Says: 

Gavin, thanks for a thoughtful post that I hope will be brought to the attention of every so-called “skeptic” – none of whom has any basis to deny that there are simply NO property rights protecting the atmosphere (or the oceans).

As a result, to prevent a continuing “tragedy of the commons” the nations of the world, we need to make a collective effort to manage what is, after all, a shared resource.

It`s nice to see that others see that where there are no formal or informal property rights or similar mechanisms, all incentives point to ruin.

 

171. TokyoTom Says: 

Property rights are not an end-all or be-all, but they are a linchpin in understanding the dynamics of the tragedy of the commons problem. Resources that are owned – formally or informally, in common or privately – are husbanded, at least much better that when they are not.

This is a key point to keep hammering home with “conservatives”, “skeptics” and ordinary people, whom can all recognize that market demands produce a tragedy of the commons whenever valuable resources are not owned (or cannot be protected) by those who use them.

When there is ownership, (1) users have incentives to invest in protecting what, after all, supports their own livelihoods and, even further, (2) those who also care about the resource have an ability to also protect the resource – by investing it themselves, or by making other private, market decisions, such as to boycott particular owners and to favor others.

When there is no ownership, there is very limited ability by anyone to protect the resource directly, and what we are left with is a battle of words.

Of course a corollary problem that requires attention is that when resources are “publicly” owned, such resources may in fact be treated as a commons, or something that politicians and bureaucrats dole out to whomever is in favor – witness the environmental destruction in communist states, the logging of “public” tropical forests, and our own continued mismanagement of public lands.

In that case of fisheries, this is so readily apparent that even the mainline environmental groups are now calling for giving fishermen property rights in the fish they catch in order to end the destructive race to catch them:

http://mises.org/Community/blogs/tokyotom/archive/2009/01/15/for-crashing-fisheries-coalition-of-mainline-us-enviro-groups-calls-for-property-rights.aspx

Meanwhile, concerned citizens continue to misunderstand the key dynamics of environmental problems, and to miss opportunities to rub the faces of “market” fundamentalists and “conservatives” in the obvious lack of property rights in the atmosphere (and a related inability of those adversely affected by using the atmosphere as a dumping ground to seek redress from those who profit from using it as one):

http://mises.org/Community/blogs/tokyotom/archive/2009/03/12/overlooked-by-those-warmed-by-climate-rhetoric-quot-alarmist-quot-or-quot-skeptic-quot-the-fact-that-our-most-important-commons-have-no-property-rights-rules.aspx

 

 

194.  TokyoTom Says: 

Chip, the last time we chatted, you were going to look into why Rob Bradley had decided – in the middle of an exchange of comments with you on a previous post at his supposedly “free market” Master Resource blog – to block a libertarian like me from commenting, even taking that decision away from you:
http://mises.org/Community/blogs/tokyotom/archive/2009/03/11/rot-at-the-core-rob-bradley-at-quot-free-market-quot-masterresource-blog-shows-his-true-colors-as-a-rent-seeker-for-fossil-fuels.aspx

Do you fail to understand that the fact that Master Resource is a soapbox for the coal industry, which has up to know had the political establishment in its pocket (a small investment that has created great profits while shifting costs to the public and future generations)? Or that this affects the willingness of people to listen to you?

Your hope for a deus ex machina government investment program to somehow save us further illustrates your lack of understand how markets malfunction with respect to unowned resources.

Far better for the government to simply impose rebated carbon taxes, as both Exxon (which no longer funds Rob Bradley`s ventures, BTW; see link above) and Jim Hansen have called for, than to have government itself try to guess what technologies to invest in.

 

240.  TokyoTom Says: 

#195: “The tragedy of the commons isn’t actually a tragedy of the commons – it’s a tragedy of the free-for-all. There are any number of ways to overcome the tragedy of the commons – from Mutually Assured Destruction, to consensual co-operation – (and in many societies around the world, the latter has worked for centuries to millenia), but the free market ain’t one of them.”

This is confused. The “free market” certainly pulls on the chain of destruction where resources are not owned or managed, and may, by introducing new technologies, even accelerate the destruction of commons and to the breakdown of communal systems. But broadly speaking, where there are adequately defined and protected “property rights”, the free market does not itself generate the destruction of commons.

And property rights, broadly speaking, are simply instituitions that societies have gradually developed to side-step tragedy of the commons situations

 

241:  TokyoTom Says: 

#196 Tamino, I share your sentiments.

Many of those who profess to be interested in protecting “free market capitalism” really have no clue themselves as to how it works, and why it DOESN’T work in the case of environmental problems.

By likewise, many “environmentalists” have very little understanding of how and why markets can go wrong.

A little discussed aspect of the problem is that there is also a rather apparent tragedy of the GOVERNMENT commons, as governments both tend to do a poor job of managing assets and frequently end up either serving special deal to special interests or as public battlegrounds (since different people can`t simply do independent deals to accommodate their differing perspectives).

It`s the battle to influence and win favors from government that leads to partisanship (and “ludicrous rationalization”), which is often hijacked by special interests.

It`s not clear to me how much Chip Knappenberger understands markets, or understands how his posts provide cover for fossil fuel firms/investors who profit while shifting risks to all of us.

But there`s plenty all around. I note that even Jim Hansen strongly favors taxes over cap and trade bureaucracy and green pork.

 

278.  TokyoTom Says: 

#188 / 245: Neal & Jim, thanks for the references to the successful experiments in Iceland, NZ and the Alaskan pollock fishery to replace the tragedy of the government commons with property rights approaches that gives the fishermen a stake in protecting the resources they harvest, instead of simply an incentive to invest in a mad race to catch fish before others do in a continually shrinking fishery with shorter and shorter seasons.

I continue to have problems with the spam filter (links and bad words?), so I have excised most of this post and put it up separately at my blog, linked at my name above (with links to some of my other posts on fisheries)

 

282.  TokyoTom Says: 

#262 Cardin, do you seriously think that there is ANY possibility of “the U.S. cap[ping] emissions independently of the rest of the world”?

US legislators (and presidents from Bush Sr through Clinton and Dubya) have made it crystal clear that we won`t act alone.

Rather, we face classic collective action problem with respect to a shared resource – like fishermen regulating a fisheries, ranchers agreeing on how to manage a range or farmers managing streamflows – with respect to which we have long been the major user (and remain so by far on a per capita basis), and very few are willing to act (other than to posture) unless we are.

We have long recognized that there are shared gains (in the form of avoided losses to ecosystems and economies) to acting to limit human-induced climate change and ocean acidification, and to improved environmental management in the third world – real costs that your “cost-benefit” analysis neatly ignores), and we have ample carrots and sticks to persuade others to follow.

The problem is that the wheel of our own government has long been captured by the investors and industries that reap short-term profits while shifting costs to all of us and future generations.

IOW, the supposedly cool and rational approach is, at its core, a mask by which particular interests continue to hijack the rest of society.

It`s this fact that drives others – frequently wealthy – who are not invested in fossil fuels to support the PR campaigns of Gore and others (not enviro-facists out to destroy capitalism).

 

284.  TokyoTom Says: 

270: Hank, what you`re bemoaning is the “property” is only as good as one`s ability to defend it. The battle we all face with spam is another example.

The rest of creation has long confronted the same, unending battle over resources; unfortunately nature is relatively defenseless before mankind, and our continuing technological/organizational innovation continues to ramp up our assault on “wild” nature.

The flip side is that progress also makes it easier for us to identify polluters and to protect assets.

 

288.  TokyoTom Says: 

#145: Jim, it seems to me that you and others have misunderstood Rene and are attacking strawmen rather than his points, which are fairly general – and fully acknowledge the undeniable point that resources that are unowned or unmanaged are abused.

Rather than seeing common ground or exploring how to address these classes of problems, you ll prefer to offer what are essentially red-herrings about how private property is itself imperfect, which is not a point that Rene has at all contested.

“Yeah, let’s just domesticate and privatize everything, that’ll solve it! You have absolutely no idea what you’re talking about, either with regard to endangered species protection, management of a commons, or the interaction between the two. Zip.”

Is Rene or anyone saying that we have to privatize all resources? Rather, he is giving you a great talking point for all those supposed “free-market” “skeptics” out there, who fail to recognize that markets don`t work with respect to resources that nobody owns or are not collectively protected/managed.

You are all so ready to fight that you are having great difficulty distinguishing friend from foe.

 

322.  TokyoTom Says: 

I`ll let Rene correct me if I`m wrong, but I don`t think that Rene has asserted that all resources MUST be privatized (as opposed to being owned and managed by communities or subject to some public regulation) or that private ownership is perfect, but that he`s simply pointing out that resources that are un-owned and are subject to open-access commons exploitation get trashed.

There is ample room for disagreement over the best approaches to such resource problems, as corruption, favoritism and incompetence are inescapably linked to government action. I think Rene was referring to this in connection to tropical deforestation, where what others call “commons” are in fact either lands held by indigenous peoples and stolen by government, or otherwise government-held “parks” and “reserves” that are liquidated by elites (look at the the Amazon, Kalimantan and the sources of the Marcos family wealth, for example).

But Rene is clearly on the side of those who want to see resources protected, and he should be credited for trying to give you guys tools to fight your real enemies – the so-called “skeptics” and “conservatives” (like George Will) who think that “markets” will magically solve problems relating to un-owned (and un-managed) resources (and who serve as deliberate or unwitting fronts for those who are happy to take profits now but leave costs for others).

I keep trying to make this point – see the post linked at my name – but some of you seem to be in “full hackles” mode, certain that you see an enemy, and single-mindedly dedicated to chasing your own tails.

 

325.  TokyoTom Says: 

#320: Jim, I think I just answered you in a pending post – the REAL point is that the REAL enemy in the climate change struggle are people ((VERY DIFFERENT from Rene) who think that modern markets work great but forget to note that they undeniably produce destruction where resources are either UNOWNED or UNMANAGED.

On bison and whales, I invite you to a quick read of my own writings:

http://mises.org/Community/blogs/tokyotom/archive/2007/12/16/bison-markets-the-tragedy-of-the-commons-and-the-indian-war.aspx

http://mises.org/Community/blogs/tokyotom/archive/2008/02/15/whales-and-fisheries-quot-standing-up-to-japan-quot-or-enclosing-the-commons.aspx

I think I have provided links upthread on fisheries, but the people who understand these issues best are the free market environmentalists at PERC who have documented how Indians used to own and manage fisheries and other resources. If the tribes` treaty rights and traditional rights to salmon, etc. had been respected, then there would be a resource owner that would have every incentive and right to sue landowners for destruction of watershed habitat; instead, the resource became a state-owned free-for-all, subject to further federal mismanagement.

As Mike G has noted, the successes in marine resource management have all come by restoring some measure of private ownership to “public” resources, which is the reason, as I have already noted, the even the mainline environmental community is united in calling for more property rights-related approaches to crashing fisheries.

 

328.  TokyoTom Says: 

Let me link to a post that makes my point – and I think that of Gavin`s extended metaphor – fairly clear:

“Overlooked by those warmed by climate rhetoric (”alarmist” or “denialist”) – the fact that our most important commons have NO property rights rules”

http://mises.org/Community/blogs/tokyotom/archive/2009/03/12/overlooked-by-those-warmed-by-climate-rhetoric-quot-alarmist-quot-or-quot-skeptic-quot-the-fact-that-our-most-important-commons-have-no-property-rights-rules.aspx

The point is not that “property” is an easy panacea to every problem, but that the biggest problems lie where there are no property rights (or other mechanisms that give users incentives to invest in sustainability) in place.

Why don`t you guys see that using this as an argument on climate change is what like throwing holy water in the face of almost every climate change vampire?

#326: Hank, who say there IS a purely private solution to every problem? Certainly not me.

 

336.  TokyoTom Says: 

#333: Yes, Silk, there are still “a few people are willing to take the Exxon dollar and sell their soul.”

However, as I noted upthread, Desmog Blog has shown that Exxon no longer funds Robert Bradley or his blog where Chip appears:

http://mises.org/Community/blogs/tokyotom/archive/2009/03/11/rot-at-the-core-rob-bradley-at-quot-free-market-quot-masterresource-blog-shows-his-true-colors-as-a-rent-seeker-for-fossil-fuels.aspx.

It wouldn`t surprise me if Exxon is joining others in pushing for oil & gas development at home, but for now they`re no longer funding climate denial shops – and like Jim Hansen actually calling for carbon taxes!

http://mises.org/Community/blogs/tokyotom/archive/2009/03/08/exxon-rex-tillerson-no-longer-willing-to-be-quot-conservative-quot-on-climate-risks-advocates-carbon-taxes-and-invests-in-carbon-lite-tech.aspx

So where is their money going? How about the Stanford University-centered Global Climate and Energy Project (GCEP), the world`s largest privately-funded effort to conduct basic research on energy technologies to reduce GHG emissions, which they are funding over 10 years to the tune of $100 million?

http://mises.org/Community/blogs/tokyotom/archive/2009/03/08/exxon-rex-tillerson-no-longer-willing-to-be-quot-conservative-quot-on-climate-risks-advocates-carbon-taxes-and-invests-in-carbon-lite-tech.aspx

Exxon is now a climate change story that the right no longer wants to hear, and is one of the reasons I`ve been banned from the “MasterResource” blog.

 

337.  TokyoTom Says: 

#328: “You completely ignore the numerous examples that have been given of property owners trashing natural resources for a quick profit.”

Nick, no I haven`t. Rather, as I note in 327, I`m making a different point, that as Gavin points out with his metaphor, one of the best arguments to make to denialists and skeptics is that, as their OWN principles tell them, the “market” reality is that the worst cases of resources abuse are where there are no property rights at all.

Unchecked by property rights (and consumer pressure, regulation, trade agreements), markets are very effective machines of destruction, as I have tried to explain elsewhere:

http://mises.org/Community/blogs/tokyotom/archive/2007/09/27/too-many-or-too-few-people-does-the-market-provide-an-answer.aspx

It`s a lack of understanding of this that makes market conservatives right / enviros wrong on SMALL issues (such as Ehrlich`s bet with Julian Simon on commodity prices), but wrong on the BIG ones. Those ranting about “neo-Malthusians seeking to destroy civilization” are simply not ignoring or are blind to how consumer and other markets are destroying unowned, unmanaged Nature around the world.

This partisan blindness is readily understandable; after all, we see the same thing here among enviros!

http://mises.org/Community/blogs/tokyotom/archive/2008/07/06/mind-games-how-an-absence-of-functioning-markets-means-that-i-m-right-but-you-re-a-delusional-neurotic-quot-zealot-quot.aspx

 

376.  TokyoTom Says: 

#338 Ike, thanks for the interesting link on Polynesia.

But spare me the slave economy argument, not only because slavery is hardly something libertarians would find at all morally justifiable, but because it`s unrelated from my point – and, I think, Gavin`s – which is not that there is an ideal form of ownership/management, but simply that, where resources are unowned or unmanaged, they tend to get trashed.

This is a long, tragic and continuing story. The primary point is that we need to start better managing our commons, including our shared atmosphere. The ancillary point, for the purpose of political jousting, is that it is highly effective to ask skeptics to show you where the property rights (or other management mechanisms) are in the air that ensure there is is no tragedy of the commons. This is a show stopper, because you`re talking a language
is familiar to them, but they are forced to realize that the market system does NOT work for the atmosphere, because it is a commons and without property rights.

Are you with me?

[I responded to this before, but it apparently didn`t post.]

 

378.  TokyoTom Says: 

#331 : “Nah… it’s the same gut reaction I have when folks are asserting that Jesus loves me, or giving me free links to mises.org… not my religion, and I’m beyond redemption thank you very much. I like to live on the reality side of things.”

I can understand your “gut” reaction, but it`s rather obviously getting in the way of your higher faculties. I am barely tolerated by many at Mises (to whom I come off as a commie left enviro Nazi fascist) and offer links only to my own thoughts there, and similarly have been shown the door by RedState, Freepers, NewsBusters and now the place that Chip Knappenberger blogs from. And I`ve spent many a comment thread at Mises battling similar nonsense that people concerned about climate change have drunk the the Koolaid of some religion or another; e.g,http://mises.org/Community/blogs/tokyotom/archive/2008/07/06/mind-games-bret-stephens-of-the-wall-street-journal-panders-to-quot-skeptics-quot-by-abjuring-science-and-declaring-himself-an-expert-on-quot-mass-neurosis-quot.aspx

Feel free read further or test me.

 

382.  TokyoTom Says: 

#349: John, George Reisman is your uncle? I`ve had the nerve to joust with him on the LvMI pages and my own blog over the past few years on environmental matters, where he is simply emotional and not reasonable:
http://mises.org/Community/blogs/tokyotom/search.aspx?q=reisman
http://blog.mises.org/archives/005916.asp

Thanks for your various questions and observations. I don`t think that we are actually that far apart, but we are drifting a bit off-thread. Let me make a few specific responses.

“Mankind did not create the resources so by what right has he to own them? People own oil, but oil is being drilled and used to its inevitable extinction of the resource. It might be better to think of the global resources as being lent to us by the mere fact of the existence of such resources, so what right of ownership should exist?”

My own view is that “ownership” is chiefly not so much about our individual relationships to “property” (can we really “own” any other life form? aren`t we just as much owned by the bacteria in our gut, parasites, diseases and predators that use us for food?), but more humbly about our relationships with each other regarding relative priority of claims to make use of particular things we find valuable. What those things depends upon place, time, culture and individual.

“Many owners have exploited a resource wile abusing it and destroying its capacity to survive simply to finish with it and move on to another resource to exploit.”

I don`t disagree. In fact, I think that this is endemic whenever there are open-access commons remaining for such exploiters to move on to. (In this regard, we differ from the rest of nature only in the leverage that technologies give us to wreak devastation.) While we have developed property rights institutions (communal and private, informal and formal) precisely to get a handle over tragedies of the commons (and even evolved possessive and cooperative behaviors) only a blind ideologue would assert that creating property has somehow changed human nature. But it is worth noting that property IS helpful, as it makes it possible for others to acquire and manage more beneficially resources that others mistreat.

“There is also ample room to see that corruption, favoritism and incompetence are inescapably linked to corporate greed through over manipulation of markets. The users and the looters are not always the government and the belief systems, they are also corporations.”

Again, I agree; my point is not that all use of government should be avoided (indeed, it might even be needed), but simply that use of government itself no panacea, but fraught with danger – as corporations and their owners are far more effective in Washington than the citizens who continually have to organize to do battle with them. Some corporations (not all, by any means) are looters, and use government to achieve their ends.

This goes back a long way, with the chief roots in the grant of limited liability to shareholders for bad acts by corporations:http://mises.org/Community/blogs/tokyotom/search.aspx?q=limited+liability

Sorry, but I need to wind this up.

 

383.  TokyoTom Says: 

#354: “So the protection of your property DEMANDS an overwhelming force and a force that no other power can bring against you.”

Mark, this is too simplistic. What is “property” and how it can be defended depends on context. In close communities, people don`t lock their doors, do deals based on handshakes and reputation, and little resort is made to law, police or courts. In other cases, weapons – or thick contracts or physical or technological locks – and constant vigilance are required.

Maine lobstermnen have an easier task defending their resources than do indigenous fishermen or forest-dwellers.

So what will work in the case of climate depends on available technology and the level of trust (and enforcement) that can be established.

 

385.  TokyoTom Says: 

#365: “Just as the Newfoundland fisherman remained blind to the consequences of their actions. In both cases, what was happening was obvious, yet in spite of the evidence of diminishing resources, they cut/fished as if there were no problem whatsoever.”

JSM, thanks for bring us back the tragedy of the unmanaged/government commons. Who owned the fishery, the government or the fishermen? Except in places where fishermen are being given transferable harvesting rights (or being completely locked our – very rare) government-management fisheries are all crashing, which is why mainline environmental groups are calling for more property rights in fisheries.

Ironic captcha: bickers Salmon!

 

416.  TokyoTom Says: 

#391: “A corporation which takes other factors than money into account can be taken over with money when their book value gets too high for their stock value. You forget that some resources are too large for a single owner (and single owners eventually die), and so crowd theory takes over. In a sense, corporations are a tragedy of the commons for everything they own.”

Richard, these are extremely important nuances, to be sure, but it is still helpful for Rene to generalize by saying that “Those who own a forest are not compelled to harvest it against their wishes.”

Rene was talking about what ownership of a forest (or a transferrable fishing permit, first use water rights, etc.) implies – and was surely correct – while what you are talking about what we mean by ownership of a public corporation, which is also an important area of inquiry.

Starting with the first state grant of limited liability to investors/owners for damages that corporations do to third parties, to other extensions of unlimited life, unlimited purposes and the Consitutional right as a “legal person” to lie and to purchase influence, moral hazard and risk-shifting has become rampant in the businesses closest to government:
http://mises.org/Community/blogs/tokyotom/search.aspx?q=limited

Back to resources, what we typically mean by “ownership” is the right, vis-a-vis non-owners, is to determine who has access to the resource and the terms under which they can use it. The nature and preference of the individuals, community or government that owns the resource may make all the difference between how well a resource is used and protected, but markets do allow people and groups with differing preferences to make deals regarding ownership and management.

It`s where there is NO ownership, or where ownership is in the hands of a kleptocracy or poorly-run bureaucracy that either the “tragedy of the commons” takes place, or deals cannot be done and everyone is stuck in a struggle for control over the wheel of government: http://mises.org/Community/blogs/tokyotom/search.aspx?q=wheel

“Private” and “community” property systems that put control in the hands of users are by no means perfect, but they avoid the worst of the tragedy of the commons, which is why mainline environmental groups are now together calling for property rights in fisheries (as linked above).

 

417.  TokyoTom Says: 

#373: “The increased logging clogged many salmon streams, in many cases permanently degrading them. This has been a large factor in the collapse of West Coast salmon fisheries (along with increasing diversions of water to agriculture and rising river water temps).

Now, if the salmon fishermen owned the redwood forests that surrounded all the salmon streams, they might have had a very different take on what the best thing to do was – a very different view from Wall Street bond traders. Which one is right?”

Good questions, but you`ve missed an important one – what would the result be if salmon fishermen actually owned rights in their FISHERY (as opposed to land, as you query), instead of just being allowed to catch fish when the government allows?

Wouldn`t they have an ability to sue landowners for messing up streams, and to make deals with then to enhance and maintain habitat? This (and water rights) in fact underpin river and stream fisheries in various parts of the world and US. It`s mainly the government ownership of the resource – after stealing it from the Indians – and the fact that users have no rights that they can protect or trade that is the reason why the great salmon fisheries are surely dying:

http://mises.org/Community/blogs/tokyotom/archive/2008/07/23/destroying-the-salmon-the-socialized-commons-and-climate-change-part-ii.aspx
http://www.perc.org/articles/article249.php
http://www.perc.org/articles/article884.php

 

433.  TokyoTom Says: 

#424 “Markets have their place, but they give individuals and corporations influence in proportion to their wealth – thus in practice, giving only corporations and very rich individuals any influence at all. This is why “libertarians” love them so much. “Propertarians” would be a far more accurate term for their views.”

Well said, but with more bark than bite. Consumer preferences on green issues – expressed by individual purchases and by group action – have done a great job of influencing markets and products provided, and there is ample room for more.

See Walmart working with fishermen and a sustainability certification group re: Copper River salmon:
http://mises.org/Community/blogs/tokyotom/archive/2008/12/09/save-wild-fisheries-buy-your-certified-sustainable-salmon-from-walmart.aspx

What we desperately need right now re: bluefin and other fisheries are consumer boycotts and demands for sustainability labelling.

 

#439:  TokyoTom Says: 

#429 Jim, people turn their backs on the rules because the rules create incentives for destruction and no incentives for compliance.

See what Defying Ocean’s End (cofounded by Conservation International, The Nature Conservancy, Natural Resources Defense Council, The Ocean Conservancy, Wildlife Conservation Society, The World Conservation Union, and World Wildlife Fund) says about protecting fish:

http://mises.org/Community/blogs/tokyotom/archive/2009/01/14/for-crashing-fisheries-coalition-of-mainline-us-enviro-groups-calls-for-property-rights.aspx

These crazy, dedicated cionservation groups are all pushing for poerty rights approaches to end the tragedy of this government-mis-managed commons.

[this is a short repost as it seems my initial post has been lost]

Climate spin: Who changed "global warming" to "climate change"?

April 8th, 2008 No comments

Answer:  It wasn’t the enviros who changed the use of this term, but rather high-powered corporate lobbying interests and their allies in Bush government and the Republican party, spearheaded by leading Republican pollster/ spinmeister Frank Luntz, who in 2002 pushed Republicans to move the public discussion away from “global warming” to “climate change”.  http://www.guardian.co.uk/environment/2003/mar/04/usnews.climatechange.

Luntz wrote that :

“’Climate change’ is less frightening than ‘global warming.’ … While global warming has catastrophic connotations attached to it, climate change suggests a more controllable and less emotional challenge”

http://www.ewg.org/node/8684.

This seems to be a surprising bit of news to more than a few, who seem to forget not only the constant efforts of various statist corporate interests to win advantageous policies from politicians and regulators, but the active interest of Republicans in selling favorable policies that has led to such corruption in this Administration and among Republican Congrescritters.  Yes, the same folks who brought us fear of “Islamofascists” also deliberately brought us fear of gay marriage, fear of abortion, fear of immigrants and fear of enviros, the better to divide and hoodwink us while giving valuable favors away to friends willing to grease the wheels.

Hmm.  And what else did Luntz set up in the way of political strategy for Republicans and fossil fuel interests?

In his memorandum on environmental issues, Luntz provided the following “communication recommendations” in a section devoted specifically to “Winning the Global Warming Debate”:

 

The scientific debate remains open.  Voters believe that there is no consensus about global warming within the scientific community. Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore you need to continue to make the lack of scientific certainty a primary issue in the debate, and defer to scientists and other experts in the field.”

 

The most important principle in any discussion of global warming is your commitment to sound science.”

 

The scientific debate is closing (against us) but not yet closed. There is still a window of opportunity to challenge the science.

 

You need to be even more active in recruiting experts who are sympathetic to your view, and much more active in making them part of your message … [because] People are willing to trust scientists, engineers, and other leading research professionals, and less willing to trust politicians.”

 

(emphasis added)

 

Luntz offered these specific language suggestions – which the careful reader would see are full of canards and misleading statements:

LANGUAGE THAT WORKS
We must not rush to judgment before all the facts are in. We need to ask more questions. We deserve more answers. And until we learn more, we should not commit America to any international document that handcuffs us either now or into the future.

WORDS THAT WORK
Scientists can extrapolate all kinds of things from today’s data, but that doesn’t tell us anything about tomorrow’s world. You can’t look back a million years and say that proves that we’re heating the globe now hotter than its ever been. After all, just 20 years ago scientists were worried about a new Ice Age.

Luntz has now changed his mind, as he noted in an interview last year – even though he is actively peddling to Canadians his spin program, which still runs on at home among Republicans and their pet rent-seekers: 

TONY JONES: It will be an interesting experiment anyway. Frank Luntz, let me come to another issue that may well be a defining issue in the 2008 US Presidential campaign and the elections, the congressional elections there, but also certainly will be in the Australian elections. That is the whole issue surrounding global warming. Have you crossed a sort of scientific rubicon here yourself?

FRANK LUNTZ: I have, and as have most people. When I started doing work on this issue about a decade ago, a majority, a clear majority of Americans, in fact all over the globe, did not buy the science at that point. But over the last 10 years the science has been much clearer. The results have been much more comprehensive and I, like millions of Americans, have changed my point of view and you will see across the globe that people now have come to accept that there is an issue here.

http://www.abc.net.au/lateline/content/2007/s1912828.htm.

How convenient that neither then, when Luntz knew that the scientific window was closing, nor now, when he has finally accepted the science, that his personal views haven’t gotten in the way of him making money by selling slick, convenient “truths” to those who profit by distracting voters with them.

Looks like Luntz has done a good sales job on himself, as well.

The discerning reader might note that all Luntz did was to repackage the devices that the tobacco industry deployed in the 60s, 70s and 80s:  viz., the game of “no consensus”, “scientific uncertainty”, and the “need for more facts”.  Not surprisingly, many of precisely the same people who helped the tobacco industry have been very busy helping fossil fuel interests – and their political enablers.

 

— “The first principle is that you must not fool yourself – and you are the easiest person to fool.” Richard Feynman
Categories: AGW, climate, Luntz, republicans, statist, tobacco Tags:

Oct. 17, 2019 Petition filed by Carlos Ghosn’s lawyer for Dismissal of Prosecution

January 5th, 2020 No comments
Note: The below is an English version of a Petition for Dismissal of Prosecution that was filed by Hiroshi Kawatsu, a member of Carlos Ghosn’s legal team, with the Tokyo District Court on October 17, 2019.
It was posted in the “NBR’s_Japan_Forum” email forum. I have edited the formatting to improve readability. At this point, I have not seen the Japanese original.
The attorney who apparently wrote this is Hiroshi Kawatsu, who is a partner in the Kasumigaseki-sogo Law Office (for twenty years) and is the Director of the Research Office for Criminal Affairs of the Japan Federation of Bar Associations. More on his background here:
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To: Tokyo District Court, 17th Criminal Division Department 2019 Toku (Wa) No.14 Companies Act Violation Criminal Case Defendant: Carlos Ghosn Bichara
Lead Defense Counsel:
Intended Claims Document
I. Petition for Dismissal of Prosecution
October 17, 2019
Hiroshi Kawatsu
The prosecution of this case is based on an extremely illegal and prejudicial investigation, and is an abuse of the official authority of criminal prosecution for unfair purposes against a backdrop of discrimination against Mr. Carlos Ghosn’s race, nationality and social standing. This prosecution should be dismissed.
1. Background — the Nissan-Renault integration “crisis”
Mr. Carlos Ghosn, from the time that he became the COO of Nissan in June 1999, understood that the key to the success of the alliance was mutual respect of each company’s autonomy and culture. With a deep understanding of Nissan’s history and corporate culture, Mr. Ghosn spearheaded the “Nissan Revival Plan.” In just 2 years, Mr. Ghosn was able to turn Nissan, which had an interest-bearing debt of more than 2 trillion yen and was on the verge of bankruptcy, back to being a profitable company and grow into one of the world’s leading automakers. Mr. Ghosn was consistent in his stance of protecting Nissan’s corporate identity. Even after he became the CEO of both Nissan and Renault in April 2005, thereby becoming responsible to the shareholders
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of not just Nissan but also Renault, his attitude, based on his management beliefs, never changed. Renault’s largest shareholder, the French government, occasionally began to talk about building the closeness of the alliance between the two companies, referring to it as “irreversible integration.” In 2015, Minister of Economy, Industry and the Digital Sector, Emmanuel Macron, increased the French government’s shareholding ratio of Renault, and then applied the Florange Law to Renault which doubles the voting rights of long-term shareholders. This enabled the French government to reinforce its voice with Nissan through Renault which owns 43.3% of Nissan stock. Even so, Mr. Ghosn did not change his policy. He made the French government recognize that Nissan was going to maintain its autonomy. He loved the company that is Nissan. Mr. Ghosn became the Director Chairman in April 2017, and Mr. Hiroto Saikawa (hereafter, “Mr. Saikawa”) replaced him as CEO. When Macron became President the same year, the pressure from the French government to move towards “irreversible integration” became stronger. Mr. Ghosn’s position to take a stand against the French government to protect Nissan’s autonomy did not change. However, at the same time, Mr. Ghosn came to think that there is no choice but to restructure the strategic partnership of the alliance in a way that can be explained to Nissan’s largest shareholder, Renault (the French government). Each company of the alliance would be placed under the umbrella of a newly incorporated holding company, and each company would get a say based on their performance. The French government ought to be satisfied with this new structure. Mr. Ghosn began to explain this idea to some of the directors
of Nissan as well.
Those in Mr. Ghosn’s inner circle, as well as other officers of the Company began to sense Renault’s (the French government’s) yearning for an integration with Nissan, and the subtle changes in Mr. Ghosn’s way of thinking. In particular, some of Nissan’s Japanese officers believed that the new structure of the alliance would essentially mean the “integration” of Nissan and Renault.
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Nissan is one of the group companies of the “Nissan Konzern [Conglomerate]” which was a newly-rising zaibatsu [family-run conglomerate] of the pre-war era, and has been manufacturing cars under the Datsun brand since before the war. The founder, Yoshisuke Ayukawa’s lineage is one of a father who was a feudal warrior of the Choshu domain and a mother who was the niece of former senior statesman Kaoru Inoue during the Meiji period. Ayukawa was a powerful entrepreneur and politician who also served after the war as a member of the House of Councilors and as Supreme Economic Advisor in the Kishi Cabinet. The company name “Nissan” derives from one of the group companies, “Nihon Sangyo” [Japanese Industry]. Some also believed that Nissan’s integration with Renault would mean that a company with the history of having a role in Japan’s key industry would pass over to the hands of foreigners. This belief was shared not only among the directors of Nissan, but also among key figures in the Japanese government, beginning with the Ministry of Economy, Trade and Industry.
2. Collusion between Nissan and the Task Force of the Tokyo District Public Prosecutors Office
After Mr. Ghosn stepped back as CEO in April 2017, Nissan’s business performance noticeably declined. Along with this, remarks by Renault (French Government), the largest shareholder, began to attract attention. The “integration” of Nissan and Renault became a realistic crisis to succeeding CEO, Mr. Saikawa, and other Japanese officers of Nissan.
Around January 2018, the French government informed the Japanese government that it intended to integrate the management of Nissan and Renault. In response, the [Japanese] Ministry of Economy, Trade and Industry (METI) sent a letter of opposition to the French Ministry of the Economy and Finance. Talks were held among the METI (Director-General Akihiro Tada, Manufacturing Industries Bureau), the French Ministry of the Economy and Finance (Director General Faure), the Agence des participations de l’État (APE) [French state holding agency] (Director Vial), among others, but no progress was made.
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In February of the same year, Renault’s Board of Directors passed a resolution reappointing Mr. Ghosn as CEO until 2022. Nissan’s Japanese officers believed that the “integration” has increasingly become more realistic. Around March of the same year, Senior Managing Executive Officer Hitoshi Kawaguchi, Statutory Auditor Hidetoshi Imazu, and former Vice-Minister for International Affairs, Ministry of Economy, Trade and Industry Masakazu Toyoda (who became a director of Nissan in June of the same year), with others, led a top-secret effort to form a group to investigate the “improper acts” of Mr. Ghosn. Their aim was to prevent the integration of Nissan and Renault by finding Mr. Ghosn’s “improper acts” and ousting him from Nissan. So as to absolutely ensure that non-Japanese officers including Mr. Ghosn and Mr. Greg Kelly would not find out, they went through a former prosecutor with the Tokyo District Public Prosecutors Office’s Task Force, Akihide Kumada and others, to consult with the prosecutors of the Tokyo District Public Prosecutors Office’s Task Force, and while receiving their instructions, conducted a top-secret investigation to search for “improper acts” that could be established as a criminal case against Mr. Ghosn.
They asked Senior Managing Executive Officer in charge of Legal and Compliance, Mr. Hemant Kumar Nadanasabapathy (hereafter, “Mr. Hari Nada”), and attorneys of one of Nissan’s legal advisers, the law firm of Latham & Watkins (L&W), to conduct an investigation of the companies affiliated with the alliance, not just in Japan but worldwide. Mr. Hari Nada and the attorneys at L&W sent out letters to the management of affiliate companies worldwide to cooperate with the investigation, to appear at the Tokyo District Public Prosecutors Office and comply with the interrogations by the prosecutors, and which outlined that related expenses, etc. would be borne by Nissan, etc. Mr. Hari Nada and L&W were deeply involved in the events that were the subject of the investigation in the first instance. Investigative activities led by them are a conflict of interest, and lack impartiality. They, who were themselves in charge of the investigation, cast a blind eye to their own “improper acts” as well as those of Mr. Saikawa and
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other Japanese executives, while single-mindedly searching for “improper acts” by Mr. Ghosn. The purpose of this unjust and biased investigation was to restructure the relationship between Nissan and Renault (French government) by unseating Mr. Ghosn and preventing the “integration” of the two companies.
The investigative team of the Tokyo District Public Prosecutors Office accepted the results of such unfair and biased investigation and commenced their criminal investigation. Furthermore, as described below, they also engaged in illegal investigative activities in Lebanon, Brazil, France, etc. using Nissan and its attorneys at its beck and call.
3. Illegal plea bargaining
(1) Illegality of the objective
The Public Prosecutors state that they reached an agreement with Mr. Hideaki Ohnuma (head of Nissan’s Secretariat Office; hereafter, “Mr. Ohnuma”) and Mr. Hari Nada (in charge of Nissan’s Legal Division) under the consultation and agreement program (the Japanese version of plea bargaining) of the 2016 Amended Code of Criminal Procedure to, in exchange for not indicting these two individuals, have them make witness statements and submit evidence to the prosecutors about the criminal charges against Mr. Ghosn who is believed to be an “accomplice.” However, this consultation and agreement (plea deal) was reached with the objective of ousting Mr. Ghosn from his position of Chairman and CEO of the Nissan- Renault-Mitsubishi Alliance based on discussions that were held between METI officials and the Japanese senior management executives of Nissan.
The objective is completely different from the intended purpose of the program, which is to, in cases where it is difficult to uncover the truth by conventional methods, offer accomplices advantageous prosecutorial treatment in exchange for cooperation with the investigation and prosecution of the case, so as to uncover the truth and prosecute the case appropriately.
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(2) The actual party is Nissan
The prosecutors claim that of the criminal charges that have been alleged against Mr. Ghosn, consultations were held and an agreement reached with Mr. Ohnuma and Mr. Hari Nada regarding only the Financial Instruments and Exchange Act violations case (falsification of securities reports), and that as a result of plea bargaining on matters related only to those charges, those charges were dropped against these two individuals, but nothing could be further from the truth. First, these two individuals are not the actual parties in the plea bargain. It was the attorneys that were hired by the corporate entity of Nissan and its Japanese senior management executives that brought the case to the Tokyo District Public Prosecutors Office, cooperated with prosecutors, and reached an agreement. These attorneys were hired by Nissan for the purpose of searching for “improper activities” that would make Mr. Ghosn a suspect and, together with attorneys from L&W, communicated with the Tokyo District Public Prosecutors Office and conducted an “investigation” — the search for something with which to charge Mr. Ghosn.
As a result of the “investigation,” Nissan and the Tokyo District Public Prosecutors Office determined that Mr. Hari Nada and Mr. Ohnuma could potentially be charged as accomplices in the case involving violations of the Financial Instruments and Exchange Act and the case involving violations of the Companies Act, and decided to adopt a scheme in which Mr. Hari Nada and Mr. Ohnuma would be made the parties to a plea deal. Mr. Hari Nada and Mr. Ohnuma did not take the initiative on their own, nor make the decision on their own will, to cooperate with the prosecution of Mr. Ghosn. They were persuaded by Nissan — the Japanese senior management executives and Nissan’s attorneys — and merely signed the written agreement in obeyance of basically what was a “Company order.” This kind of application of the consultation and agreement program goes against its intended purport, and is illegal.
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(3) Legal procedures were not carried out for crimes that were subject to plea bargaining
The content of the written agreements with Mr. Ohnuma and Mr. Hari Nada (Kou Exhibit 147, Kou Exhibit 148) in which the prosecutors demanded the examination of evidence state that an agreement was reached regarding the case involving violations of the Financial Instruments and Exchange Act, but there is no reference to the case involving violations of the Companies Act which is also a charge of the action — that an agreement was executed with Shinsei Bank that switched the party to swap agreements to Nissan (the charged facts in relation to the swap agreements), that payment of 14.7 million dollars was made to Khaled Juffali (the charged facts in relation to KJC), and that payment of 5 million dollars was made to Suhail Bahwan Automobiles (SBA) (the charged facts in relation to SBA). However, both Mr. Ohnuma and Mr. Hari Nada have provided witness statements regarding the case involving violations of the Companies Act (e.g. Kou Exhibits 40 through 44, Kou Exhibits 149, Kou Exhibits 174, Kou Exhibits175 of the Companies Act violation case).
With Mr. Ohnuma and Mr. Hari Nada, the prosecutors have engaged in plea deals in an informal manner, not based on the provisions of the law (to have accomplices make statements that implicate others in a crime by inducing them with advantages). It is illegal to engage in virtual plea bargaining without following the legal procedures, and it is not permissible to allow the resulting statements and evidence.
(4) An “under-the-table deal” was made
It was neither Mr. Ohnuma, the individual, nor Mr. Hari Nada, the individual, that brought up the idea of a plea deal with the prosecutors. It was Nissan, the company, its Japanese senior management executives, and the attorneys they hired, that proposed the criminal prosecution [of Mr. Ghosn] to the Task Force of the Tokyo District Public Prosecutors Office, and
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proactively promoted the transaction consisting of providing evidence and witness testimony from those involved in exchange for not prosecuting them. As a result, consultations and agreements were effectively carried out between Nissan CEO Mr. Saikawa and multiple other individuals at Nissan, and the prosecutors of the Tokyo District Public Prosecutors Office’s Task Force regarding the provision of testimony and evidence disadvantageous to Mr. Ghosn in exchange for the dropping of criminal charges against such individuals.
In particular, Mr. Saikawa is a submitter of the Annual Securities Reports said to contain “misstatements” in relation to Mr. Ghosn’s director compensation in the Financial and Instruments Exchange Law violation case. Furthermore, he himself is the person who approved and decided the payment from the “CEO reserve” in the Companies Act violation case. It is clear that he was investigated as a suspect in these cases, and that the Tokyo District Public Prosecutor’s Office did not prosecute him in exchange for providing testimony and evidence that is disadvantageous to Mr. Ghosn. However, the Toyo District Public Prosecutor’s Office has not revealed whether a consultation and agreement has been made with Mr. Saikawa, and has refused to respond to requests for disclosure of evidence regarding this.
There are numerous other directors and employees of Nissan other than Mr. Saikawa that were involved in the acts stated in the prosecutors’ charges in this matter. Facing threats displayed by Nissan and the prosecutors that they may be subject to criminal prosecution, they were pressured to make statements in accordance to the wishes of Nissan and the prosecutors – statements that Mr. Ghosn behaved like a “dictator,” and that because they couldn’t defy his authority, they had no choice but to take part knowing it was wrong. It was based on this kind of an extensive “under-the-table deal” and unjust inducements that the indictment was carried out.
4. Illegal search and seizure
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(1) Seizure of attorney Mr. Fadi Gebran’s personal computer and HDD, etc.
Mr. Ghosn’s personal residence that is also used as an office located in Beirut is managed by a local company called Phoinos, and Ms. Amal Abou Jaoude who was the representative of Phoinos was in charge of managing its affairs. Her salary and other expenses were paid by Nissan Middle East. Ms. Amal Abou Jaoude had at one time worked as a secretary of attorney Fadi Gebran, who passed away in August 2017, and managed the computer and other items he had left behind, as well as took care of his remaining affairs.
On November 19, 2018 (Beirut time), attorneys from L&W stole attorney Fadi Gebran’s PC and HDD which Ms. Amal managed, from her in Beirut. This PC and HDD contained a large amount of personal information such as email exchanges between attorney Fadi Gebran and his clients. The so-called evidence that prosecutors say they have obtained in this case as a result of analyzing the emails of attorney Fadi Gebran, etc. (for example, Kou Exhibit 182 forward of the Companies Act violation case) were discovered from the PC and HDD that the attorneys from L&W and others took without permission at this time.
They raided Ms. Amal Abou Jaoude’s office, and invaded Mr. Ghosn’s empty home while consulting with the Tokyo District Public Prosecutors Office in advance, and stole the PC, HDD and the contents saved therein without the consent of the proprietors, such as attorney Fadi Gebran’s surviving family and his clients. Acting as the hands and feet of the Tokyo prosecutors, they committed crimes of stealing data from other’s PC and HDD. The use by an investigator of a private citizen to carry out a search and seizure in order to circumvent the requirements of the warrant system (Article 35 of the Japanese Constitution) is, in itself, a serious illegal act that effaces the principles of the warrant system. It is also illegal and impermissible that the investigation authorities of the Japanese government use a private citizen, circumventing the formal legal process to gather information abroad where its investigative authority does not reach.
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Furthermore, an enormous volume of communications with clients and documents prepared for clients was saved in attorney Gebran’s PC and HDD. These [communications and documents] are strongly protected as attorney-client privilege, not only within Lebanon, but around the world by international human rights laws, domestic constitutions and domestic laws. If this were not the case, one would not be able to solicit [services] from attorneys overseas with respect to international matters. The Tokyo District Public Prosecutor’s Office, as well as the L&W attorneys, seized these being fully aware that they contained a large amount of information subject to the attorney-client privilege.
The admissibility of evidence obtained as a result of such an illegal investigation must, of course, be denied. However, the illegality of the investigation and prosecution in this case is not something that can be straightened by simply excluding part of the evidence.
(2) Invasion of home/office in Rio de Janeiro
Mr. Ghosn’s personal residence that is also used as an office located in Rio de Janeiro is managed by a company called Hamsa, and Ms. Vania Rufino was in charge of managing its affairs. On November 19, 2018 (local time), an employee of Nissan Brazil made an unannounced visit to Ms. Ruffino’s office and questioned her asking such things as, “Did you do personal work for Carlos Ghosn?” In addition to a cell phone, PC, etc., all documents were also seized, and without providing any reason, Ms. Rufino was ordered to take a leave of absence. After that, the employee of Nissan Brazil proceeded to lock Mr. Ghosn’s house so that Mr. Ghosn or any of his family could not enter the home.
This, too, was nothing other than an illegal search and seizure that was conducted upon discussion between the Japanese prosecutorial authorities and Nissan.
(3) Search and Seizure in Tokyo on April 4, 2019
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Early in the morning around 5:50 am on April 4, 2019, the Task Force of the Tokyo District Public Prosecutors Office arrested Mr. Carlos Ghosn on charges of violation of the Companies Act. At the time of his arrest, the Task Force also confiscated a personal computer, 3 smartphones, and a passport (issued by the country of Lebanon) that belonged to Mr. Ghosn’s wife, Mrs. Carole Ghosn, who was at the restricted residence where Mr. Ghosn was arrested. Mrs. Carole Ghosn who was shaken with fear was then intimidated and made to say the passwords on the smartphones.
The prosecutors claim that this seizure was a legitimate seizure carried out on the basis of a legally obtained search and seizure warrant. However, that warrant covered Mr. Ghosn’s belongings inside of his home, not Mrs. Carole Ghosn’s. The prosecutors deceived the court by lying that Mrs. Carole Ghosn’s PC, smartphones and passport were Mr. Ghosn’s possessions. The prosecutors and administrative officers of the Tokyo District Public Prosecutors Office who were involved in this search and seizure seized Mrs. Carole Ghosn’s PC, smartphones and the like having full knowledge of this.
Mrs. Carole Ghosn’s PC and smartphones that were seized based on this illegal search and seizure also included many e-mails and other communications between her and her lawyers. This is clearly an infringement of Mrs. Carole’s attorney-client privilege.
The PC and smartphones seized from Mrs. Carole also included data that related to communications between Mr. Ghosn and his lawyers. Furthermore, the notebook that Mr. Ghosn used while he was detained in the Tokyo Detention House to exchange information with his lawyers was also seized. Needless to say that this is illegal and a violation of Mr. Ghosn’s right to consult with his lawyers (Article 34 of the Constitution, Article 39, Paragraph 1 of the Criminal Procedure Code).
This illegal search and seizure should result of course in the exclusion of evidence; however, beyond that, this illegal [act], coupled with the other illegal [acts], invalidates the entirety of the
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prosecution in this case.
5. Infringement of the right to a speedy trial
It was from around the Spring of 2018 that the Tokyo District Public Prosecutors Office, together with Japanese top management officials at Nissan, began investigating Mr. Ghosn’s “improper activities” as well as engaged in investigative activities related to the violations of the Financial Instruments and Exchange Act and the Companies Act which became the causes of action. Yet, they broke up the facts that were the subject of the investigation into small pieces and detained Mr. Ghosn repeatedly. With respect to the Financial Instruments and Exchange Law violation case, they even repeated arrests for every fiscal year. With respect to the Companies Act violation case as well, irrespective of the fact that they had obtained statements from Nissan directors by the beginning of 2019, they delayed the timing of his arrest. Moreover, they arrested Mr. Ghosn for the fourth time for violation of the Companies Act just as he was about to start preparing for trial for the case he was released on bail and indicted. As a result, Mr. Ghosn was held in custody for as many as 130 days.
Even with regard to the pretrial conference procedures, the prosecutors took as many as 4 months to submit the facts that they sought to prove. Also, the prosecutors delayed their answers to requests that were made by Mr. Ghosn’s attorneys for the disclosure of evidence, and failed to make clear when the evidentiary disclosure period would end. Furthermore, the prosecutors are engaging in illegal acts, violating legal requirements such as by limiting the disclosure to viewing by Mr. Ghosn’s attorneys only and by deleting electronic data subject to disclosure at Nissan’s request. They are returning evidence seized at Nissan’s request, ignoring Mr. Ghosn’s attorneys’ request for disclosure of evidence. As a result, the Companies Act violation case is still remiss, and similarly with respect to the Financial Instruments and Exchange Law violation case for which [Mr. Ghosn] was indicted in December 2018, the disclosure of evidence has not been
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completed, nor is there even an outlook for completion.
In this way, the defense’s preparations have been obstructed and delayed, while on the other hand, the prosecutors continue to this day to conduct “supplementary investigations” by obtaining statements and evidence from involved persons residing overseas based on investigational assistance from the relevant foreign governments. They are still continuing the investigation that should have been completed prior to indictment. Even now, after more than 10 months since the initial indictment, there is no timeline for the start of a trial.
Mr. Ghosn’s right to a speedy trial (Article 37, Paragraph 1 of the Japanese Constitution; Article 14, Paragraph 3(C) of the International Covenant on Civil and Political Rights) has already been seriously infringed.
6. Illegal interference with personal life
From around March 6, 2019, ever since Mr. Ghosn was released on bail, Mr. Ghosn and his family have been followed by police officers or their affiliates. They are not inconspicuous in the way that they follow Mr. Ghosn and his family members, and in fact, linger around them in plain sight. This constant monitoring of Mr. Ghosn and his family even after his release has caused them mental anguish in their daily lives. This is a violation of Mr. Ghosn’s right to privacy and right to a peaceful everyday life.
Mr. Ghosn is not a terrorist, nor a member of an organized crime group. He is an international company executive. There is no legitimate reason, anywhere, for having to monitor him for the safety of the local community. Under this situation where Mr. Ghosn and his family are subject to regular psychological persecution by the investigational and prosecutorial authorities, Mr. Ghosn clearly cannot engage sufficiently in his defense activities. Mr. Ghosn’s right to a fair trial (Article 14, Paragraph 1 of the International Covenant on Civil and Political Rights; Article 37, Paragraph 1 of the Japanese Constitution) is also being compromised.
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7. Information leaks and comments about guilt
The prosecutors told some members of the media in advance about the pending arrest of Mr. Ghosn before his actual arrest, thereby enabling them to report on the scene of his arrest at Haneda Airport. The prosecutors then repeatedly leaked one-sided and arbitrary information about their investigation to the media, such as that there is an abundance of evidence that shows Mr. Ghosn’s guilt: that agreements with Mr. Ghosn pertaining to his compensation had been obtained from those involved at Nissan (Asahi Shimbun Newspaper, November 27, 2018, evening edition), that there is evidence that future payments of compensation had already been fixed (Asahi Shimbun Newspaper, November 29, 2018, morning edition), or that “there are documents outlining payment methods” (Asahi Shimbun Newspaper, December 11, 2018), thereby giving the impression that there was abundant evidence of Mr. Ghosn’s guilt. The prosecutors, even though they still to this day have not proven anything, continued to leak information one after the next to suggest there was ample evidence to support the suspicion of aggravated breach of trust, such as that: a total of 14.7 million dollars was remitted in 4 installments from a subsidiary of Nissan to an acquaintance in Saudi Arabia (Asahi Shimbun Newspaper, December 22, 2018, morning edition); “funds in excess of 5 billion yen were caused to be disbursed from Nissan to the companies of 2 acquaintances in the Middle East” (Nihon Keizai Shimbun Newspaper, January 4, 2019); an executive of a sales distributor in Oman to which 3.5 billion yen was disbursed from a “CEO discretionary reserve” that is “under the direct jurisdiction” of Mr. Ghosn “paid approximately 1.6 billion yen as payment for a cruiser” that was purchased by a company in which Mr. Ghosn is involved (Nihon Keizai Shimbun Newspaper, January 11, 2019); “There is suspicion that Nissan funds were funneled to former Chairman Ghosn through GFI” (Asahi Shimbun Newspaper, April 4, 2019, morning edition), etc.
The prosecutors continued to make one-sided comments that assumed Mr. Ghosn’s guilt such
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as that: “there was a cover-up to hide executive compensation” (Asahi Shimbun Newspaper, December 2, 2018, morning edition); “the Saudi business man [Juffali] has no actual business entity” (Asahi Shimbun Newspaper, December 26 2018); “falsifications were made to make it appear as though approval of the Board of Directors was obtained for the switching [of contract parties]” (Asahi Shimbun Newspaper, December 30, 2018); based on e-mails and the like that remained in a personal computer at the offices of a lawyer in Beirut, “it has been determined that the suspect, Ghosn, essentially owned GFI and allocated Nissan funds for private use” (Sankei Shimbun Newspaper, April 9, 2019, morning edition), etc. Based on these arbitrary and one- sided comments by the prosecutors, the media incessantly painted Mr. Ghosn as a villain who exploited the company for personal gain.
Meanwhile, the prosecutors also provided information about the investigation to the media that was in line with the interests of Nissan and its Japanese senior management executives such as that: Shinsei Bank demanded that the approval of the Board of Directors of Nissan be obtained, but Mr. Ghosn rejected it (Asahi, December 23, 2018, morning edition); Charges have been dropped against President and CEO Hiroto Saikawa who was accused of violating the Financial Instruments and Exchange Act due to “lack of evidence” (Asahi Shimbun Newspaper, May 18, 2019, morning edition), etc.
The media outlets competed in continuing coverage that was based on such information from the prosecution and in line with their intensions. As a result, Mr. Ghosn’s public reputation did a 180 from being the “’savior’ and ‘charismatic management executive’ who ‘saved Nissan which was in crisis on the brink of bankruptcy, and growing it into a world-class company’” to “a dictator that exploited the company to fatten his own wallet.” By now, his “improper activities” are treated as unquestionable facts, and the focus has moved onto “recurrence prevention.” In such an environment, there is no denying that it will be a virtual impossibility to have a fair trial in which Mr. Ghosn is afforded his right to a presumption of innocence and his right to an
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adequate defense.
Be that as it may, the prosecutors’ frequent leaks of information about the investigation while the prosecution of the case has been ongoing as well as comments made by them that assume the guilt of Mr. Ghosn are in and of themselves occupational crimes by the prosecutors, or comparable illegal acts.
The act of a prosecutor leaking information about the investigation to the media is “an act of leaking secrets that were learned in an official capacity on the job” (Article 100, Paragraph 1 of the National Public Service Act), which is itself a crime (Article 109, Item 12 of the National Public Service Act). As explained above, in this case, due to such crimes committed by the prosecutors, Mr. Ghosn has been denied of his right to receive a fair criminal trial (Article 14, Paragraph 1 of the International Covenant on Civil and Political Rights; Article 37, Paragraph 1 of the Japanese Constitution) which is a basic human right.
In this case, even though Mr. Ghosn has not been found guilty through a trial, he has repeatedly been publicly assumed guilty through the media at the hands of the prosecutors who are national public servants. This is a violation of another basic right of Mr. Ghosn, the right to be presumed innocent (Article 14, Paragraph 2 of the International Covenant on Civil and Political Rights; Article 11, Paragraph 1 of the Universal Declaration of Human Rights).
8. A cozy relationship with Japanese officers at Nissan and the Ministry of Economy, Trade and Industry
In Japan, prosecutors, who have a monopoly of authority over criminal prosecution, and furthermore, who are “given a broad range of discretionary power” in exercising said authority (Judgment of the Supreme Court of Japan, December 17, 1980, 1st Petty Bench Decision, Criminal Procedure Code precedent 34-7-672, p. 675) are not permitted to act simply as a unilateral party in a lawsuit. Prosecutors are not allowed to be a servant to some, or an advocate
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for a private benefit, and must carry out their functions impartially and avoid all discrimination as to race, nationality, etc. (Article 13 (A) of the United Nations Guidelines on the Role of Prosecutors), “in representation of the public interest” for the purpose of demanding “the proper application of the law in court” (Article 4 of the Public Prosecutor’s Office Act).
In this case, the prosecutors of the Task Force of the Tokyo District Public Prosecutors Office ignored this most basic of professional obligations of a prosecutor, and acted as a tool for realizing the objectives of the Ministry of Economy, Trade and Industry and Nissan’s Japanese senior management executives to prevent Nissan from becoming a French company. The prosecutors aided the objective to oust Mr. Ghosn by searching for “improper activities” committed by him and to building a criminal case against him, and used tax money to help them to that end. The prosecutors held discussions with Nissan’s Japanese senior management executives and the attorneys that represented them, and abused the “consultation and agreement (plea bargaining) system” so as to give one-sided consideration to Nissan’s interests. The prosecutors circumvented the requirement of obtaining a warrant and infringed on national sovereignty by using Nissan’s employees and attorneys as tools for carrying out their investigation overseas. The prosecutors, in order to shift the public’s focus away from these one-sided and unfair investigational prosecutorial activities and to gain the support of public opinion, committed the crimes of violating confidentiality and repeatedly leaking information about the investigation. The prosecutors, when asked during the pretrial conference procedure about their information leaks asserted that, “We believe there hasn’t been something like this,” which is factually impossible. And the prosecutors have delayed the disclosure of evidence to defense counsel, and moreover refused the disclosure itself in response to Nissan’s requests.
9. Prosecution based on an illegal investigation
This indictment could not have been realized without the egregiously illegal investigation
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involving white-collar crimes by public servants as described thus far, and constitutes “a case in which the illegal nature of investigative procedures is material, where the indictment would have been impossible or extremely difficult unless the illegal procedures were predicated, and in that sense, is a case in which the two situations are closely related and inseparable” (Judgment of the High Court of Sendai, October 17, 1967, High Court Decision Criminal Procedure Code precedent 20-5-699, p. 706).
Therefore, this case must be dismissed (Id.).
10. Arbitrary and discriminatory exercise of the authority of prosecution
This investigation originated with the Ministry of Economy, Trade and Industry and the Japanese senior management executives of Nissan who wanted to prevent the “irreversible integration” of Nissan and Renault and stop Nissan from becoming a French company, and with the aim of ousting Mr. Ghosn who, as CEO of Renault, was working to facilitate the integration of Nissan and Renault, searched for “improper activities” on the part of Mr. Ghosn, and bring criminal charges against Mr. Ghosn for such activities, requested the cooperation of the Tokyo District Public Prosecutors Office by way of conducting an investigation that included plea bargaining. The Task Force of the Tokyo District Public Prosecutors Office complied with this request and commenced an investigation into this matter. In carrying out their investigation, as described above, the prosecutors only took Nissan’s interests into account and worked collusively with Nissan and its attorneys. In this case, there is no doubt that Mr. Ghosn has been discriminated against based on his race, nationality and/or social status. This investigation and prosecution is a case of “the defendant being treated unfairly and unfavorably in an investigation compared to general cases because of their ideology, religion, social status, lineage, etc.” (Judgment of the Supreme Court of Japan, 2nd Petty Bench decision, June 26, 1981, Criminal Procedure Code precedent 35-4-426, p. 429, Akasakicho Case). This is a violation of Article 14 of the Japanese
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Constitution, and is also in violation of Article 13(A) of the United Nations Guidelines on the Role of Prosecutors.
As explained above, this criminal prosecution has been based on extremely illegal investigation activities that constitute professional crimes. In addition, the prosecution itself cannot be said to have been carried out “in representation of the public interest” for the purpose of demanding “the proper application of the law in court” (Article 4 of the Public Prosecutor’s Office Act). This prosecution falls under the category of “an extreme case in which the prosecution of the case itself constitutes a professional crime” (Judgment of the Supreme Court of Japan, 1st Petty Bench, December 17, 1980, Criminal Procedure Code precedent 34-7-672, p. 676, Chisso-Kawamoto Case).
Therefore, this prosecution is unconstitutional, illegal, and invalid.
II. Statute of Limitations
  1. With respect to the indictments stated in the Charging Sheet, dated January 11, 2019 (excluding, however, the one with payment date of March 27, 2012), the seven-year statute of limitations period (Article 250, Paragraph 2, Section 4 of the Code of Criminal Procedure) has passed, and the statute of limitations has expired. A judgment should therefore be rendered to dismiss them (Article 337, Paragraph 4 of the Code of Criminal Procedure).
  2. Article 255, Paragraph 1 of the Code of Criminal Procedure specifies that, “where the offender is outside Japan,” the statute of limitations shall be suspended during the period when the offender is outside Japan. In regard to this point, with respect to the meaning of “where the offender is outside Japan,” a judgment by the Supreme Court of Japan, 1st Petty Bench on October 20, 2009, Keishu Vol. 63, No. 8, p. 1052 (hereinafter, the “2009 judgment”) ruled that “according to Article 255, Paragraph 1 of the Code of Criminal
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Procedure, even in cases of temporary overseas travel, time during which an offender is outside Japan is interpreted as suspending the statute of limitations.” However, that ruling is not applicable to this case.
Rather, considering the legislative purpose and history of the system for suspending the statute of limitations, the interpretation of the requirement “where the offender is outside Japan” should be limited to not include overseas travel of less than two months.
  1. As an initial matter, this case is completely different from the 2009 judgment. Specifically, given that the purpose of Article 255, Paragraph 1 of the Code of Criminal Procedure concerns difficulty in the service of charging sheets, since the case of the 2009 judgment relates to Japanese nationals who were working in real estate brokerage, construction, and employment of foreign technical interns, it is believed to be a case where a “workplace” at which to effect service other than the defendant’s address or residence (Article 54 of the Code of Criminal Procedure, and Article 103, Paragraph 2 of the Code of Civil Procedure) could not be identified. In contrast, Mr. Ghosn was working consistently at Nissan’s main office, so service could have been effected at his workplace at any time, and there would have been no difficulty whatsoever in serving him charging sheets.
  2. In addition, considering the legislative purpose and history of the statute of limitations system, the ruling of the 2009 judgment is not applicable to this case.
(1) Given that the system for the statute of limitations exists, the benefit to defendants,
namely not being prosecuted after time has passed, is protected by law. As such, provisions depriving such benefits should be interpreted narrowly and in line with their substantial grounds.
(2) Furthermore, relative to when the 2009 judgment was made, new mutual legal assistance treaties with the E.U. and Russia have also come into effect, and there has actually been a marked increase in the number of cases where mutual assistance for investigations
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has been given. Therefore, there has also been a reduction in the degree of difficulty occurring in investigations when defendants are outside Japan.
(3) Considering the legislative history in the first place, given that the purpose of suspending the statute of limitations concerns difficulty in serving transcripts of charging sheets, since transcripts of charging sheets can be served in the event of temporary overseas travel, and in light of the aforementioned reduction in the difficulty of investigation, etc., there is scant substantial reason at this point to deprive this benefit.
Thus, cases where an individual who has a residence and workplace in Japan engages only in temporary overseas travel (specifically, overseas travel of less than two months, which is specified as the period to serve charging sheets (Article 271, Paragraph 2 of the Code of Criminal Procedure)) should be interpreted as not suspending the statute of limitations. Accordingly, in relation to Mr. Ghosn, who has a residence and workplace in Japan, the statute of limitations is not suspended for periods of overseas travel in which he re-entered Japan within two months from the date he left the country.
  1. Calculated excluding overseas travel of less than two months, of the [indictments] in Charging Sheet No. 2, dated January 11, 2019, the end date for the statute of limitations for the one with payment date of March 9, 2011, is August 7, 2018. Therefore, at the time of the indictment, the statute of limitations had already expired.
    Among the indictments stated in this Charging Sheet, the statute of limitations has also similarly
    expired for those acts that were completed on March 9, 2011, or earlier.
  2. Thus, among the indictments concerning Mr. Ghosn, the statute of limitations has expired for the indictments stated in the Charging Sheet, dated January 11, 2019 (excluding, however, the one with payment date of March 27, 2012). A judgment should therefore be
    rendered to dismiss them (Article 337, Paragraph 4 of the Code of Criminal Procedure).
III. Charged facts regarding the swap contracts
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1. Mr. Ghosn is innocent.
  1. (1)  There is no recognizable act committing an aggravated breach of trust in executing the novation agreement in this case because the act is not one that gave rise to an actual risk that Nissan would incur a “financial loss” (Company Act, Article 960 (1)).
  2. (2)  No “financial loss” (Company Act, Article 960 (1)) was inflicted on Nissan whatsoever.
  3. (3)  No intent (Criminal Code, Article 38 (1)) can be recognized either, because Mr. Ghosn
    was unaware of and did not affirm inflicting “financial loss” on Nissan.
  4. (4)  It is also not recognizable that the purpose of executing the novation agreement in this case was in contemplation of “his own interests or the interests of a third party”
    (Companies Act, Article 960 (1)) because the purpose contemplated the interests of Nissan.
2. (1) In 1999, Mr. Ghosn came to Japan and became a director to turn Nissan around. Because Mr. Ghosn’s family resided in the U.S. and their living costs were generally based on U.S. dollars, he asked to be paid in U.S. dollars; however, Nissan refused to do so. Therefore, from around 2002, Ghosn entered into foreign exchange swap agreements with financial institutions to periodically sell Japanese yen and purchase U.S. dollars.
(2) At the recommendation of a representative at Shinsei Bank, who stated that U.S. dollars can be purchased at favorable rates, Mr. Ghosn entered into the swap agreements between Canayany and Shinsei Bank. The purpose of the swap agreements was to exchange the yen that Mr. Ghosn received as remuneration from Nissan into dollars, and Shinsei Bank created the agreements based on Mr. Ghosn’s current and future yen cash flow. While the swap agreements provided that a certain amount of dollars will have to be purchased at a below-market exchange rate when the dollar/yen exchange rate was 100 yen or 80 yen or below per dollar, from 1999 (when Mr. Ghosn came to Japan) until 2007, not once did the
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dollar drop below 100 yen.
(3)  The bankruptcy of Lehman Brothers in September 2008 triggered a worldwide financial crisis. Because of the rapid appreciation of the yen, and at the same time the drastic decline of stock prices, the collateral Mr. Ghosn had offered Shinsei Bank based on the swap agreements became insufficient. After October 24, 2008, the person in charge at Shinsei Bank requested Mr. Ghosn for an immediate increase in collateral, or to terminate and pay penalty fees. In the midst of the financial crisis, it was not possible for Mr. Ghosn to procure the collateral required by Shinsei Bank in just a few days, and in order to terminate the contract and pay the penalty fees, Mr. Ghosn’s only option was to resign from Nissan and apply the retirement allowance to the payment. However, leaving Nissan in the midst of the financial crisis would cause irreparable harm to the company, and was not an option that Mr. Ghosn could choose. Mr. Ghosn proposed guaranteeing the obligations himself under the swap agreements to Shinsei Bank but Shinsei Bank rejected the proposal, and the idea was presented that Nissan’s guaranty would be acceptable. In this context, the proposal of shifting the contractual status of the swap agreements to Nissan until Mr. Ghosn could gather the collateral was considered, under the condition that the shift would be at no cost to Nissan.
(4)  After consideration by Shinsei Bank and Nissan’s Legal, on October 31, 2008, Nissan’s Board of Directors passed a resolution giving Ohnuma, the General Manager of the Secretariat Office, the authority to sign current or future FX forward contracts for non- Japanese executive officers (including directors) at no cost for the company.
(5)  The resolution granted authority to the General Manager of the Secretariat Office to
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execute transactions to sell yen and buy a foreign currency for the benefit of non-Japanese executive officers in relation to their remuneration payment. The resolution presumed that losses caused by a transaction would be attributed to the executive officer and would be at no cost to Nissan. Therefore, as Nissan passed the resolution assuming the transaction was not a conflict of interest (Article 365, Paragraph 1 and Article 356, Paragraph 1, No. 3 of the Companies Act) and Shinsei Bank had the same understanding, on the same day, Nissan, Canayany and Shinsei Bank entered into a novation agreement to transfer the swap agreements from Canayany to Nissan.
(6)  As a result of the novation agreement, Nissan took over the right and obligation to sell yen and buy dollars on the exercise date every three months in relation to Shinsei Bank; however, as stated above, it was presumed that the losses would be attributed to Mr. Ghosn and that Nissan would not bear any responsibility. In fact, when a loss of 62,580,000 yen was incurred on January 30, 2009, from purchasing dollars under swap agreement, Mr. Ghosn paid the amount and Nissan did not bear any losses. The swap agreements were created based on Mr. Ghosn’s cash flow, so the agreements were to sell yen and buy dollars in relation to Mr. Ghosn’s payment. Therefore, Mr. Ghosn had the ability to bear any losses that arose in the future, and there was no risk that Nissan would bear the losses. Furthermore, along with Nissan’s termination of its retirement allowance program in June 2007, it had been decided that Mr. Ghosn would be paid a retirement allowance, and based on the amount of said allowance, it was sufficiently guaranteed that Nissan would not bear any losses.
(7)  Unlike Canayany, Nissan did not bear an obligation to Shinsei Bank to provide required collateral according to “fair market value” under the swap agreements. Therefore, while
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the “fair market value” under the swap agreements was negative “1,850,405,142 yen” at the time of the execution of the novation agreement, Nissan did not receive a demand from Shinsei Bank to provide a required amount of collateral, nor did it receive a demand to pay penalty fees because collateral could not be provided.
(8) After that, while the contractual status of the swap agreements was returned from Nissan to Canayany on February 20, 2009, following Mr. Ghosn’s procurement of collateral, Nissan suffered no “decrease in asset value” whatsoever during this time.
IV. Charged facts regarding KJC
1. Mr. Ghosn is innocent.
(1) Each of the remittances to Khaled Juffali Company (“KJC”) underwent appropriate approval procedures as compensation, including expenses, for services that KJC, which is managed by Khaled Juffali, provided to assist Nissan’s business in Saudi Arabia, so Mr. Ghosn has committed no “act in breach of his duty” (Article 960, Paragraph 1 of the Companies Act).
(2) The $14.7 million that Nissan paid KJC in total are compensation, including expenses, for services conducted by KJC to assist Nissan’s business in Saudi Arabia. Accordingly, no “financial damages” (Article 960, Paragraph 1 of the Companies Act) have been incurred by Nissan whatsoever.
(3) As Mr. Ghosn did not recognize or approve of any “financial damages” to be incurred by Nissan, no intent can be recognized either (Article 38, Paragraph 1 of the Penal Code).
(4) Each of these remittances was executed for the purpose of promoting Nissan’s interest, namely the development of Nissan’s business in Saudi Arabia, so there is no purpose of promoting “his own interest or the interest of a third party” that can be recognized either (Article 960, Paragraph 1 of the Companies Act). Both the remittances from ParkView to the securities
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account under the name of Tomanaga Holding Limited and the provision of the standby letter of credit have no relation to the purpose of the remittances from Nissan to KJC.
2. Mr. Juffali is a highly regarded businessperson from Saudi Arabia and Mr. Ghosn’s trusted friend.
Mr. Juffali is a highly regarded businessperson from Saudi Arabia. His predecessors in the Juffali family formed the “Juffali Group” conglomerate in the 1970s, and the Juffali family has been managing the largest corporate enterprise in Saudi Arabia, dealing in a broad variety of businesses including manufacturing, distribution and trade. Since becoming Vice Chairman of the Juffali Group, Mr. Juffali has utilized his own experience and abilities to develop ties with companies all over the world. Mr. Juffali has managed Khaled Juffali Company (KJC) since 2004.
Mr. Juffali has been Mr. Ghosn’s trusted friend for more than twenty years. When Mr. Ghosn met with Mr. Juffali occasionally during return visits to Lebanon and when attending international conferences, etc. such as the Davos conference, Mr. Ghosn sometimes sought Mr. Juffali’s advice with respect to business in the Gulf region.
In September 2008, the collapse of Lehman Brothers led to a global financial crisis. As a result, Mr. Ghosn faced a situation in which the collateral that he had provided to Shinsei Bank became insufficient based on swap contracts. Shinsei Bank required Mr. Ghosn to either immediately provide additional collateral or cancel the contracts and pay to settle the margin calls. In order to avoid having to resign from Nissan to settle the margin calls, Mr. Ghosn asked his trusted friend Mr. Juffali for help. Mr. Juffali cooperated with the issuance of a standby letter of credit for 3 billion yen to Shinsei Bank, but that action is unrelated to the purpose of the remittances of this case.
3. Nissan, whose business in Saudi Arabia was sluggish, sought KJC’s assistance.
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The Middle East region is an important market for Nissan, and it was a region that was forecast to be especially profitable within the automotive industry. More specifically, Saudi Arabia, which has shown marked economic development, was a particularly important market for Nissan in the Middle East. However, Nissan’s business results in the Middle East were faltering and had largely fallen behind other Japanese and Korean companies in the industry. In particular, sales results in Saudi Arabia were very sluggish for many years. In 1957, Nissan designated Al Hamrani United Company (AUC) as a national sales company (“NSC”) for Nissan in Saudi Arabia, and it was selling Nissan vehicles as a local dealer. However, AUC’s business performance was very bad and it regularly failed to meet its objectives for unit sales. Against that background, there were circumstances of internal divisions surrounding management rights among the Al Hamrani family that manages AUC. It was very difficult to build a relationship between the Al Hamrani family and the Japanese company Nissan, as well as its subsidiary Nissan Middle East, and there were no signs of improvement. Nissan was in a predicament because it had signed an exclusive sales distributor agreement with AUC and had no choice but to sell Nissan vehicles through AUC.
In September 2008, since before the financial crisis, Nissan considered breaking through such circumstances in Saudi Arabia. As a means of doing so, Nissan decided to seek assistance from Mr. Juffali, who had cultivated connections due to his performance and reputation in business. As a result of repeated meetings from around May 2008 between corporate officer Gilles Normand of Nissan Headquarters, Atsuo Kosaka of Nissan Middle East and Mr. Juffali, the decision was made to establish a limited liability company through joint investment by Nissan’s 100% owned subsidiary Nissan Middle East and Al Dahana FZCO, which is jointly managed by Mr. Nassar Watar, an influential businessperson in the Gulf region. Upon receiving approval from Nissan Headquarters’ Executive Committee on July 18, 2008, Nissan Gulf FZCO was established in Dubai (United Arab Emirates). Nissan Gulf’s purpose was to oversee the NSCs in four countries in the
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region, namely Saudi Arabia, Abu Dhabi (United Arab Emirates), Kuwait and Bahrain, and expand Nissan’s local market share.
Nissan asked KJC to assist Nissan’s business in Saudi Arabia by utilizing its business network and knowhow. Mr. Ghosn was receiving communications from Mr. Juffali regarding overall matters, and Colin Dodge and Mr. Normand were in contact with Mr. Juffali regarding local operations in Saudi Arabia.
The development of Nissan’s business in Saudi Arabia increased in importance due to the financial crisis. The financial crisis had a substantial impact on the Japanese economy, and the automotive industry in particular, which is a key sector in Japan, was deeply affected. Exports overseas declined because of the high yen and sales fell globally. Nissan was no exception. Mr. Ghosn took every measure to save Nissan from the financial crisis, and developing business in the Middle East, which was experiencing remarkable economic growth, particularly in the market of Saudi Arabia, was part of those measures.
4. KJC took initiatives and paid expenses on Nissan’s behalf to develop Nissan’s business in Saudi Arabia for the benefit of Nissan.
Starting in the second half of 2008, for the benefit of Nissan, KJC began providing services to develop Nissan’s business in Saudi Arabia and also paid expenses for those efforts on Nissan’s behalf.
For example, relying on his business network, Mr. Juffali conducted negotiations with the Al Hamrani family, which manages AUC, and improved the relationship between AUC and Nissan. As stated above, one of the reasons that sales of Nissan vehicles were stagnant in Saudi Arabia was that a dispute over management rights had unfolded within AUC, which led to their sales efforts being neglected. Nissan was considering terminating its distributor contract with AUC by declining to renew it. However, in that case, it was expected that doing so would result in litigation risk, an
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accompanying loss of brand strength, and a further decrease in sales. Mr. Juffali negotiated with the Al Hamrani family and succeeded in reaching an agreement on a business plan targeting sales volume of 50,000 units for fiscal year 2009, along with the rough contours of an interim plan targeting sales volume of 100,000 units for fiscal year 2013, five years later. Results were achieved where AUC significantly increased the sales volume of Nissan vehicles, generating a sales volume in fiscal year 2009 that greatly exceeded the target of 50,000 units. Due to AUC’s significant improvement in performance, Nissan decided to renew their exclusive distributor contract on July 31, 2009. As a result, Nissan avoided the litigation risk, etc. that was expected in the event of not renewing the contract with AUC.
Furthermore, starting in 2007 or earlier, the Saudi Arabian government solicited various automobile companies to construct automobile plants in the hopes of cultivating an alternative industry to the crude oil industry and generating domestic employment. Around April 2007, Nissan was contacted by the Saudi Arabian government regarding construction of an automobile plant. Mr. Ghosn expected an increase in demand for automobiles in the Middle East and Africa, and an increase in production volume. He thought proactively that if an automobile assembly plant were constructed as a production base in Saudi Arabia, then depending on the requirements, it could be profitable in the future. Mr. Ghosn established a unit at Nissan Headquarters and assembled experts in various fields to consider constructing such a plant from the perspectives of logistics, manufacturing, the supply chain, etc. Mr. Juffali actively assisted in the negotiations with government agencies such as the Saudi Arabian General Investment Authority (SAGIA) regarding the requirements, and assisted Nissan’s plan to construct an automobile plant. Over time, from 2008 through 2013, Nissan continued to consider a plan to construct an automobile plant. However, this plan was not ultimately realized because the requirements for sustainability and profitability were not met.
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Mr. Juffali also engaged in establishing a limited liability company for Nissan in Saudi Arabia. Mr. Juffali utilized the network he had cultivated in business and actively negotiated to establish the limited liability company for Nissan. As a result, a license to set up a limited liability company owned by Nissan and KJC was obtained from SAGIA around mid-2013. Nissan Saudi Arabia (Nissan KSA) was established in November 2014, 75% owned by Nissan and 25% owned by KJC, and Nissan has been able to sell its vehicles in Saudi Arabia from that point.
5. Nissan greatly benefited from Mr. Juffali’s business expertise in Saudi Arabia.
After conducting appropriate approval procedures, Nissan paid compensation, including expenses, to KJC for services to assist the business in Saudi Arabia.
After conducting proper approval procedures, Nissan paid compensation, including expenses, to KJC for services to assist the business in Saudi Arabia. When making those payments, allocations were made from the CEO Reserve budget, which is merely a line item, and special cash or bank account for the Reserve does not exist (see Section V. 5 for details). In addition, the strict procedures necessary for allocating the CEO Reserve budget have been followed completely.
In May 2009, based on an evaluation of KJC’s contribution and performance, Nissan decided to pay $3 million as compensation, including expenses.. This proposal was approved at the Executive Committee meeting held on May 21, 2009. An application for allocating the CEO Reserve budget to make that payment (Application for Budget Adjustment) was subsequently prepared on June 1, 2009 by Gilles Normand who was in charge of the Middle East. Signatures were given by Greg Kelly, who was in charge of the Office of the CEO, and Emmanuel Delay, who was the corporate officer in charge of accounting, finance and management planning, as well as Colin Dodge, the corporate officer in charge of overseas markets in general, and then finally by Mr. Ghosn. Further, a Decision Form Concerning Execution of Remittances (Decision
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Form C) was prepared, and in addition to Colin Dodge and Gilles Normand, who both had knowledge of the local operations, this was also signed by Steven Ma who is Controller of the region.
The payments for the compensation, including expenses, from 2010 to 2012 were all completely executed by going through the same procedures and were approved by either a corporate officer handling finance functions or the CFO (Chief Financial Officer), as well as Gilles Normand and/or Colin Dodge, who were in charge of managing business in the Middle East.
V. Charged facts regarding SBA
1. Mr. Ghosn is innocent.
(1)  Mr. Ghosn has committed no “aggravated breach of trust” (Article 960, Paragraph 1 of the Companies Act). Of the July 25, 2017 payment of $5,000,000, approval for the payment of $2,500,000 was granted by Mr. Saikawa, not Mr. Ghosn. Additionally, the July 30, 2018 payment of $5,000,000 was granted by Mr. Saikawa, not Mr. Ghosn. For both of these amounts, there weren’t any “payments to be obtained by [Mr. Ghosn himself].” Both of these payments were made for the benefit of Nissan. There is no basis in fact that money was transferred, directly or indirectly, from SBA to Mr. Ghosn or his family.
(2)  No “financial damage” was inflicted on Nissan (Article 960, Paragraph 1 of the Companies Act).
(3)  Since Mr. Ghosn does not recognize or acknowledge that “financial damage” was inflicted on Nissan, intent cannot be recognized (Article 38, Paragraph 1 of the Penal Code).
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(4) Because the payments in this case were made for the purpose of Nissan’s interests, they cannot be recognized as made for the purpose of “[Mr. Ghosn’s] own interest or the interest of a third party” (Article 960, Paragraph 1 of the Companies Act).
By offering incentives such as sales incentives to regional dealers, automakers maintain and increase market share, so sales incentives are an essential sales strategy for increasing vehicle sales volume.
Nissan is a global company that has production and sales bases around the world. In terms of sales bases, Nissan has Regional Headquarters, which are mainly wholly owned subsidiaries, in North America, Central and South America, Africa, Asia, the Middle East, etc., and the Regional Headquarters sell Nissan automobiles to National Sales Companies (NSC), which are local dealers that form the foundation of sales in each country or region. When a Regional Headquarters receives orders for sales from an NSC, it procures the Nissan automobiles from production sites around the world and sells (exports) them to the NSC.
Needless to say, NSCs are necessary for selling Nissan automobiles around the world, and they act as the front line in competing with other companies’ brands. The NSCs’ market share, sales volume and revenue are directly connected with Nissan Headquarters’ business performance in their countries and regions. Consequently, since Nissan Headquarters provides the NSCs of each region with sales incentives, preferential treatment on the terms of payment, etc. through the local Regional Headquarters, those NSCs continue to be Nissan dealers (without switching over to Toyota or Hyundai) and they are encouraged to give their best efforts at expanding the market share and sales volume of Nissan automobiles.
Incentives such as sales incentives are not necessarily fueled by past or expected sales performance by an NSC. The level of achievement toward numerical targets is an important factor, but is not everything. Various factors are considered when determining incentives, for
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example the importance of that NSC’s existence as a Nissan regional dealer, its relationship with Nissan up to that point, and strategies for expanding Nissan’s market share and sales.
The Middle Eastern Gulf region is very attractive for Japanese automakers such as Toyota and Nissan for the following reasons.
1) The quality of Japanese and Asian-made automobiles, in particular the air- conditioners, engines, etc. which are highly durable in high temperatures and harsh climates, is highly regarded in the Middle East.
2) Profitability is higher than in other regions.
3) There is great potential as a developing market. For example, Toyota’s market
penetration is tremendous, which contributes to Toyota’s overall business
performance. Nissan also has room to recover the market share that it lost in the past. Nissan’s Regional Headquarters in the Middle Eastern Gulf countries is Nissan’s wholly owned subsidiary, Nissan Middle East F.Z.E. (NMEF). The following companies are representative NSCs in the region.
Arabian Automobiles Co. (AAC) (Dubai)
Saleh Alhamad Almana Co. (Almana) (Qatar)
Suhail Bahwan Automobiles LLC (SBA) (Oman) Rasamny Younis Motor Co. S.A.L. (RYMCO) (Lebanon) Al Masood (Abu Dhabi)
Bustami & Saheb Co. (Jordan)
Arata International (part of the SBA Group) (Iraq)
3. SBA was an essential NSC in Oman and other Gulf countries for expanding market share.
Suhail Bahwan Automobiles (SBA) is an automobile dealer belonging to Suhail Bahwan
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Group Holdings (SBGH), the largest conglomerate group in Oman. SBGH’s founder, Suhail Salim Bahwan Al Mukhaini, is a very well-known and respected businessman not only in Oman but also in the Middle East and other parts of the world. When he was 15 years old, he started a business by loading up a dhow sailing vessel with date fruits, spending 40 days travelling to India, purchasing rice, oil and clothing, and returning to sell them in the town of Sur. Bahwan used the money he gained as capital to open a shop selling construction materials and fishing nets. He became a distributor for Toshiba and Seiko of Japan, and subsequently expanded into various areas such as electric appliances, watches, construction, telecommunications, food products and transportation. He served as consul general of Sweden, head of the Omani chamber of commerce, etc. His eldest son Mr. Ahmed Suhail Bahwan Al Mukhaini, studied auto industry management in the U.S. and subsequently took over SBA and then afterwards he formed his family group under the name of Bahwan International Group Holdings (BIGH) which now holds the shares of SBA. During his time at the helm, Ahmed has poured substantial financial resources into all of his auto-related businesses.
SBA became a Nissan NSC in the Gulf region in 2004. SBA sold Nissan automobiles not only in Oman but also through an affiliate (Arata International Trading F.Z.C.; Arata) in Iraq, Libya, Saudi Arabia and China.
In the early 2000s, Nissan’s market share in the Gulf region began to fall, and was considerably behind Toyota and Hyundai. The Middle Eastern region, with its high rate of population growth, high young population rate and the anticipated increase of the middle class population, was a region with growth potential for auto manufacturers. From around the time of the financial crisis until today, the strategy to expand the market in the Middle Eastern region continues to be Nissan’s key issue.
In FY2004 when SBA became Nissan’s NSC, SBA purchased a little over than 2000
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automobiles with sales under $33 million. From that point on, its performance improved dramatically year on year, reaching sales of more than 23,000 automobiles for $400 million in FY2008. However, during the FY09, due to the effects of the global slowdown from the financial crisis sparked by the collapse of Lehman Brothers, sales failed to reach 20,000 automobiles. Both sales volume and revenue continued to pick apace after that year, reaching over 31,500 automobiles for $1 billion in FY2018.
SBA received awards practically every year granted to outstanding NSCs that significantly increased sales results for Nissan.
4. Changes to the terms of payment: usance
The financial crisis sparked by the collapse of Lehman Brothers that occurred in Fall of 2008 negatively affected auto sales throughout the world. The effects also extended to the Middle Eastern Gulf region.
Initially, SBA paid NMEF according to letters of credit (L/C) payable at sight. Around January 2009, SBA asked Nissan to make the terms of payment more flexible to achieve the double purpose of mitigating the effects of the crisis and supporting an aggressive sales strategy. Changes to the terms of payment cannot be made at the sole discretion of the Regional Headquarters. It needs to be approved by numerous people on various levels of responsibility and governance in accordance with Nissan’s strict internal procedures. In other words, the changes to the terms of payment will be approved when (1) the person in charge of sales at NMEF makes a proposal, (2) gets approval from the person in charge of NMEF Finance Department, (3) the head of said Department, (4) and from the President (MD) of NMEF, (5) is then reviewed by the department in charge of sales at Nissan Headquarters, (6) and subsequently by the Accounting Department, (7) and lastly, obtains final approval from either the Global Treasurer or the CFO at Headquarters. It is not possible for the CEO to make
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changes to the terms of payment at his sole discretion.
Procedures to review and approve were conducted from January to February 2009 by NMEF and Nissan Headquarters. Over 10 people, including NMEF President Toru Hasegawa, Accounting Department Deputy General Manager Takahiko Ikushima at Nissan Headquarters and Nissan Headquarters CFO Alain Dassas, participated in the review and approval process. Starting from the first half of FY2009, a change of the terms of payment were approved so that the payment deadline would be 210 days after issuance of an L/C (the so called “usance”) and so that 3.0% interest would be paid during that period for yen- denominated L/C and 5.0% interest for dollar-denominated L/C.
After that, SBA’s terms of payment continued to change. All of the changes were made after a strict review and approval process, and implemented after NMEF, through the President, proposed them to Nissan Headquarters and after they were approved by the CFO and the Accounting Department General Manager at Headquarters by following the approval procedures according to the internal company rules. Mr. Ghosn has never arbitrarily eased SBA’s payment terms. He has never instructed or approved a decision to ease SBA’s payment terms beyond the solid corporate governance processes involving the above mentioned Nissan officers.
5. Payment of sales incentives to SBA from the CEO Reserve
The CEO Reserve is not “money that can be freely used by the CEO.” There is no special cash or savings account. The CEO Reserve is a line item in the yearly Nissan global budget which serves to support various types of Nissan expenditure and investments during a given year. The CEO Reserve is not a system set up only for paying sales incentives. It is normally used for unexpected expenses or investments that occur during the fiscal year. For example, it is used for the following purposes.
36
  •  Payments to hire talented executives
  • Emergency measures against unexpected product defects
  • Ad hoc measures to make synergistic or organizational improvements, engage in mergers, etc.
All payments and/or allocations from the CEO Reserve are duly recorded in the financial statements under the corresponding field which reflects the nature and type of payment, and is naturally subject to internal audit. In order to disburse company funds from the CEO Reserve, it is necessary to carry out special procedures for application/approval/final decision.
In the case of allocation and payment of sales incentives, first, the proposer must prepare a proposal containing the reasons why the disbursement is necessary, the date and amount of disbursement, etc., and then must present the proposal in front of the appropriate members of the Executive Committee (EC). The application/approval documents must be filled out with all necessary information, and the CEO, who is the decision maker of disbursements, ultimately approves after consent is received from Executive Committee members, the CFO and others. After such approval is granted, application/approval documents to actually pay the funds are prepared, and payments will be made after final approval from the vice president in charge (CVP or SVP). Whether it is the “CEO Reserve” or something else, and whether it is at Nissan Headquarters or Regional Headquarters, it is not possible for the CEO to disburse company funds at his own discretion.
From June 2012 to July 2018, sales incentives were paid to SBA by NMEF from the CEO Reserve expense item a total of ten times.
June 10, 2012: $3 million
October 18, 2012: $2 million
37
June 20, 2013: $4.5 million
July 2, 2014: $2.5 million
March 11, 2015: $2 million
June 17, 2015: $3 million
December 30, 2015: $2 million
January 9, 2017: $3 million
July 25, 2017: $5 million
July 30, 2018: $5 million
These payments were generally determined and executed in the following way. In the beginning of each year, NMEF and SBA would check the sales results from the previous fiscal year and whether the numerical targets established in the previous year were achieved. They then would establish the numerical targets to be achieved for the current year and the conditions for payment of the incentive.
The General Manager of the Middle East at Nissan Headquarters (CVP or SVP) prepared an approval application for the use of the CEO Reserve (Application for Budget Usage). Final approval was received from the CEO after consent was obtained from the CFO, related EC members, the executive officer in charge of the office of the CEO and others.
After the approval is granted, the General Manager of the Middle East at Nissan Headquarters prepares a document to approve the disbursement (Decision Form C), and after review by the General Manager of the Accounting Department, the General Manager of the Middle East (CVP or SVP) makes the final decision.
Based on the approval process and final decision within Nissan, NMEF and SBA would enter into a Memorandum of Mutual Understanding (MoU) between them, and NMEF’s President and SBA’s President or Chairman would sign the MoU. NMEF would make
38
payments to SBA based on Nissan’s decision and following the signature of the MoU.
Of the July 25, 2017, payment of $5,000,000, which is the basis of the charge in this case, approval for the payment of $2,500,000 was granted in March 2017 when Mr. Ghosn was still CEO. However, the payment of the remaining $2,500,000 was approved by Mr. Saikawa, who was CEO at the time. In addition, Mr. Saikawa also approved the July 30, 2018 payment of $5,000,000.
From FY2011, which is the fiscal year before 2012 when these incentive payments started, to FY2017, SBA’s automobile purchases averaged 35,000 vehicles per fiscal year with a yearly average of procurement value of $807,000,000. The ratio of the average amount of yearly cash incentives ($4.28 million) to the yearly procurement value amount ($807,000,000) was 0.53%.
In this way, payments of the sales incentives were determined and executed following stringent internal company procedures. The amounts were also appropriate and reasonable as management strategy for Nissan to maintain and expand its market share in the Middle Eastern Gulf region.
END
39

 

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As we say, not as we do? Bloomberg has more on university endowments, with emphasis on Ayn Rand

May 11th, 2011 No comments

My reading on the kerfluffle about the Koch brothers’ funding of free market economics programs at FSU turned up an interesting report at Bloomberg.

The Bloomberg report makes discusses funding generally, with a focus on the efforts of John Allison, former chairman of bank holding company BB&T Corp. philanthropist’s efforts to get universities to teach Ayn Rand‘s Atas Shrugged, and makes no mention of the Kochs. FSU apparently has also accepted funds from BB&T.

While I agree that ideas must be fought for, I deplore that the various disputants appear to be ignoring that the very reason for the disputes over ‘private’ donations to universities is the very deep role that governments play in corporations and markets, and the resulting very deep role that corporations play in governments.

Would that ‘capitalists’ had a clearer understanding and more honest acknowledgement of their own unclean hands — then the libertarian message they purport to preach would be less like to be perceived as evil propaganda.

Here’s are excerpts of the report:

Schools Find Ayn Rand Can’t Be Shrugged as Donors Build Courses (Bloomberg Markets Magazine, May 5, 2011) (emphasis added)

 

John Allison, former chairman of bank holding company BB&T Corp. (BBT), admires author Ayn Rand so much that he devised a strategy to spread her laissez-faire principles on U.S. campuses. Allison, working through the BB&T Charitable Foundation, gives schools grants of as much as $2 million if they agree to create a course on capitalism and make Rand’s masterwork, “Atlas Shrugged,” required reading.

Allison’s crusade to counter what he considers the anti- capitalist orthodoxy at universities has produced results — and controversy. Some 60 schools, including at least four campuses of the University of North Carolina, began teaching Rand’s book after getting the foundation money. Faculty at several schools that have accepted Allison’s terms are protesting, saying donors shouldn’t have the power to set the curriculum to pursue their political agendas, Bloomberg Markets magazine reports in its June issue.

“We have sought out professors who wanted to teach these ideas,” says Allison, now a professor at Wake Forest University’s business school in Winston-Salem, North Carolina. “It’s really a battle of ideas. If the ideas that made America great aren’t heard, then their influence will be destroyed.”

Allison, 62, is one of a number of wealthy philanthropists who are making bold demands on schools as a condition of giving, says Jack Siegel, a lawyer whose Chicago-based Charity Governance Consulting LLC works with colleges and nonprofit groups.

Seeking to leave their imprint on everything from the direction of scientific research to the performance of sports teams, these benefactors are stirring conflicts when their causes don’t fit with the priorities of administrators and faculty.

Strings Attached

The strings attached to the gifts present university presidents with tough choices: While schools suffering from diminished endowments and government funding cuts following the recession need the money, administrators are sometimes forced to reject the offers to avoid a dust-up on campus.

“I have known some gifts in which the university just could not agree to the terms,” Ohio State University President E. Gordon Gee says. “If there are too many strings attached, you have done yourself a disservice. If someone gave me $100 million to start a school of massage at Ohio State University, I’d have to say, ‘Sorry, it’s just not in our strategic plan.’”

Donors as far back as John Harvard, the first benefactor of what was renamed Harvard College after his death in 1638, have gotten their names enshrined on buildings in a quest for immortality. “They’re building a tombstone,” Siegel says.

 

….

A C$35 million ($36 million) gift from the family foundation of billionaire Peter Munk has been met with as much scorn as appreciation at the University of Toronto. The money from Munk, chairman of Toronto-based Barrick Gold Corp. (ABX), was used to help create the Munk School of Global Affairs.

Paul Hamel, a professor of medicine, and John Valleau, an emeritus chemistry professor, attacked the university’s agreement to accept the donation in a 7,361-word essay published in February in an online campus magazine. Students also staged protests outside the university’s governing council meetings.

Barrick’s Mines

In the funding deal, the Munk foundation will release the final C$15 million at its own discretion and only if the university meets 23 requirements laid out in a 26-page memorandum of agreement. The professors claim that the structure of the agreement will make scholars at the Munk school reluctant to criticize Barrick, the world’s largest miner of precious metals.

Amnesty International and CorpWatch have alleged that Barrick’s operations have caused pollution and violated the human rights of workers in Papua New Guinea and Australia. In Tanzania, security guards at Barrick’s mines have allegedly shot and killed villagers who scavenge for small pieces of gold. Barrick has publicly denied that it’s responsible for these alleged violations.

“Anti-mining activists frequently make wide-ranging accusations against Barrick, often relying on information that is just plain wrong,” spokesman Andy Lloyd says. “The company is fully committed to responsible environmental stewardship and upholding human rights.”

Front Entrance

The essay also lashes out at the demands attached to Munk’s gift. Among the 23 requirements, the university must stage an opening celebration for the Munk school and hire a media tracking service to evaluate its branding strategy.

The professors were especially incensed at the rule that said lower-level staff will not be allowed to use the front entrance of the building, which they say violates the social norms of a public university.

“The main entrance of the school, remodeled at considerable public expense, is to be restricted to ‘senior staff’ (defined how?), while everyone else, including their assistants and students and even their less-senior faculty colleagues, are to walk around to a back door!” the professors wrote.

President David Naylor posted a spirited defense of the Munk agreement on the university’s website. “Personal attacks such as those we have seen on Peter Munk are a deplorable affront to the values of rational and respectful discourse that are supposed to characterize a university,” Naylor said.

The university also said that critics misinterpreted the requirement about the building’s front entrance, saying everyone was free to use it. Barrick declined to make Munk available for comment.

Exxon Donation

Benefactors rarely deviate from the university’s preferred projects, says Martin Shell, Stanford’s vice president for development. “We want to make sure we understand what the donor has agreed to and what we’ve agreed on, to make sure there’s a meeting of minds so there’s no confusion down the road,” Shell says.

Stanford’s tightly scripted fundraising program didn’t prevent a blowup with Hollywood producer Stephen Bing. After Bing pledged $2.5 million for an undisclosed purpose, he learned that Exxon Mobil Corp. (XOM) was running advertisements touting its earlier promise to donate up to $100 million to Stanford to support climate change and energy research.

Bing, who backs environmental causes, demanded that Stanford prevent Exxon from using the school’s good name in its marketing to promote itself as a green company. A group of alumni rallied to Bing’s cause and lobbied the school’s board of trustees to vote their shares in support of a 2007 Exxon shareholder resolution calling on the oil giant to reduce its contributions to global warming.

But that wasn’t enough for Bing, who rescinded his donation in 2007 because Stanford refused to end its relationship with Exxon. Bing declined to comment.

Ayn Rand

Allison, who promotes Ayn Rand’s writings, will likely generate more conflicts on campuses as he seeks to expand his foundation’s gifts to 200 schools nationwide. In 2006, Meredith College in Raleigh, North Carolina, gave up a seven-year, $420,000 grant from the BB&T foundation after some faculty bristled at the president’s decision to accept the money on the condition that the school teach “Atlas Shrugged.”

After Guilford College in Greensboro, North Carolina, accepted a 10-year, $500,000 grant from Allison’s foundation, Richard Zweigenhaft, a professor of psychology, protested the decision in an article for Academe, a magazine published by the American Association of University Professors. He said the appropriate faculty committees weren’t consulted before the school decided to take the money.

“This deal with BB&T was simply an egregious case of the college administration deciding to sell a chunk of the curriculum,” Zweigenhaft says.

As private donors gain more power on campuses, it’s just the kind of shift away from state control that Rand would applaud.

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Beyond ‘Nuclear Crony Capitalism’: Does state-created corporations mean we are stuck with a wonderfully confused ‘capitalist’ mess of socialized risk?

March 31st, 2011 No comments

Last night I was Sleepless in Tokyo because Matt Ridley and one of his commenters rewarded, with nice words and questions, a comment I left there on his “Nuclear Crony Capitalism” post.

So naturally I wrote more.

Here’s the relevant comment thread, plus my excited scribblings at the bottom (now up; thanks, Matt!). Skip to the bottom if you’re in a rush:

Posted by, TokyoTom (not verified)

Matt, great post — but I think you’ve only barely scratched the surface on the ‘crony capitalism’ institutionalization of risk.

I’ve spent a bit of time delving into this at my blog that Ludwig von Mises Inst kindly hosts:

– Sorry, but I can’t resist asking: Feel Sorry for Tokyo Electric Power Co?, http://tokyotom.freecapitalists.org/2011/03/27/39-resist-feel-tokyo-electric-power/, a tribute to Lew Rockwell’s ‘Feel Sorry for BP?’)

– Institutionalized moral hazard: Fun with Nuclear Power in Japan, or, prepare for a glowing twilight, with scattered fallout in the morning:  http://tokyotom.freecapitalists.org/2011/03/26/institutionalized-moral-hazard-fun-nuclear-power-japan-prepare-glowing-twilight-scattered-fallout-morning/

– My posts exploring the ramifications of the state grant of ‘limited liability’ corporation status: http://tokyotom.freecapitalists.org/?s=limited+liability

 – The case of BP: http://tokyotom.freecapitalists.org/?s=BP+gulf

 – Not surprisingly, similar issues arise with respect to the rest of the Govt-licensed energy sector and climate: http://tokyotom.freecapitalists.org/?s=climate+liability

 Thus small things contribute to the Road to Serfdom: http://tokyotom.freecapitalists.org/2011/03/27/rot-core-prophetic-words-hayek-grim-threat-posed-erosion-quot-market-morals-quot/ and http://tokyotom.freecapitalists.org/?s=prophetic+words+from+hayek+grim+threat

I hope you’ll take your concern for nuclear crony capitalism even further.

TT

Wednesday 30th March 2011 – 04:39am

 

Posted by, Matt Ridley

Tom,

very interesting. Thanks. will follow up.

Matt

Wednesday 30th March 2011 – 04:54am

 

Posted by, Robin Guenier (not verified)

Matt:

This is an intriguing post …. If one agrees (and I do) that the moral hazard enjoyed by financial institutions is deplorable, then logically it’s impossible not to take the same view of crony capitalism and nuclear power. And, as j ferguson and Tom have pointed out, it doesn’t end there. For example, I’ve been involved with the UK defence industry and recently with the appalling NHS computer system – in both cases, I’ve seen huge overruns and vast sums wasted. Classic examples, I suggest, of “government and capitalists colluding against the market”: neither the government nor its suppliers are penalised; all the pain is passed onto the public. And, if that is unacceptable – and surely it is – it’s hard to dispute Tom’s conclusion that the state grant of limited liability may be the problem: “one of the key roots of snowballing corporate statism”.

And yet … and yet: the industrial revolution and the huge benefits it has provided to society were built on the foundation of limited liability. Moreover, many major projects that would not have been implemented without an alliance between capitalists and government have turned out to be widely beneficial despite seemingly inevitable delays and cost overruns.

Is there a distinction to be drawn and, if so, where?

Robin

Wednesday 30th March 2011 – 07:32am

 

Posted by, Matt Ridley

Robin,

Yes. I agree with both points you make and see what you mean about limited liability’s role and the importance of govt-driven infrastructure. Compulsory purchase for railways and canals springs to mind: easier in Birtain than in France.

Not quite on the same lines, but sometimes I get criticised for being too hard on government and I reply that if Carnegie and Rockefeller and Maxwell were bad, then they weren’t half as bad as Hitler, Mao and Pol Pot.

I hope to get time to dig further into this issue.

Matt

Wednesday 30th March 2011 – 10:59am

My follow-up thoughts (readers may be disappointed that I haven’t loaded this down to cross-references to relevant posts from this blog):

Robin, your statement that “the industrial revolution and the huge benefits it has provided to society were built on the foundation of limited liablity” is a statement of fact – not one necessarily of causation – but so has been our financial house of cards: banks are corporations, shareholders have limited liability (and megabanks are public cos in which shareholders are even further removed from oversight), and depositors are insured by Uncle Same. As a result, depositors don’t bother to check out what a crapload of risk that traders and execs are piling on in order to get bonuses, and Uncle Sam and his legions of wizards set up regulations that the smart boys at Goldman and lawyers figure out how to finesse to load up ever more risk at the lowest possible capital – BANG! And all thanks to the wonders of institutionalized misincentives!

Sure, we got wonderful things from complex organizations, all of which remain in check somewhat by competitions. But there’s been a lot of abuse, alot of risk-shifting, alot of Superfund sites, alot of barriers to entry raised by the very regulations whose purported intent is to rein in the bad behavior, massive statism, and a ball and chain of costly and intrusive IP legislation and enforcement.

I’ve given a very short summary of the dynamics at this post but it’s a fairly obvious and understandable game of whack-a-mole, where government and the big boys – with their unlimited lives, purposes, facelessness, deep pockets and revolving doors – always seems to benefit while ordinary citizens and smaller firms and potential rivals get whacked.

It is very clear that limited liability of shareholders is a gift from government at the expense of un-consenting creditors (‘victims’ IOW), and thus is a subsidy from the public as a whole to the wealthier classes who owned corporations and still by and large are the shareholder class.

Corporations used to be very rare – the grants have a very dubious history, typically one of false justifications of offering a ‘public good’ in exchange for monopoly rights. The owners of very limited life, limited purpose firms somehow always managed to get the special deal extended. So we got bigger firms and more corruption, and labor unions and then regulations and workers and citizens finally started to get fed up.

The widespread statism and government-provided social welfarism – now falling into cynical kleptocracy and fuelling a breakdown in initiative, integrity and other virtues Hayek saw are necessary for market-based wealth generation to works to work – we now see are part of the price we’ve paid. The other part of course is damage to peoples’ lives, property, communities and to whatever public or community property that corporations can get their hands on and strip, without have an owner’s incentive to balance possible revenues over the long run.

Is this kit and caboodle a necessary part of “capitalism”? I don’t think so. Wall street banks and investment firms were private partnership for most of their lives, Amex was a listed corporation who owners had UNLIMITED liability, and Lloyds of London itself was not a firm but a private MARKET of names who all had unlimited liability. Many firms used to have only partially paid-in shares, so that managers had a call in case more capital was needed for new projects or to pay off debt.

Just because we’ve democratized corporate formation by opening the floodgates of socializing risk to anyone doesn’t mean ways can’t be found to put an end to institutionalized moral hazard. Eliminating unlimited liability would shift risk and responsibility for oversight back to a conveniently truant shareholder class from government and the public at large. It would of course mean that people not in a position to evaluate risks would be less likely to invest, making firms work harder to earn trust and get capital. Credit evaluation, rating agencies and insurers would all compete to step into the breach and to lower and spread risk.

Better-managed firms are more profitable than the big Frankensteins we have lumbering around these days; while reform would not happen overnight, it is not only desirable but possible. Firms whose shareholders bear the risk that they may be held liable for damages can be expected to be more cautious and thus could be exempted from the regulations that have been found needed for the Frankensteins. Thus both risks and barriers to entry could be lowered, and consumers and could determine what works best. Other initial steps could be to encourage firms whose shareholders have only fractionally paid-in shares. In the US, at least, corporations are creatures on state law, so just one state is needed to start such an experiment (which would be possible and protectable under the Constitution).

Well I’ve run on quite a bit in my excitement. My sincere apologies! Let me toddle off for a wee bit of sleep.

Tom

 

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Are Hayek’s essential "market morals" breaking down? Hmm … Is peace breaking out, or are things getting ugly?

March 30th, 2011 No comments

[Apologies for the weird font sizes – guess I’m too old to figure out the html stuff that creeps in when I cut and paste!]

I wanted to post a few additional and somewhat scattered thoughts I have had relating to the 1986 essay of Hayek that I recently stumbled across, “The Moral Imperative of the Market”.

What morals do we end up with as “market morals” are eroded?  In larger communities, the morals of a cynical or self-deluded selfishness and self-justification, accompanied by growing tribalism, insularity, suspicion, hostility, avarice, prejudice, jingoism and intolerance.

As the market breaks down, so also do market dynamics of broad exchange and sophisticated institutions, and things become each man for himself, finding friend and families to hunker down with, a hardening towards and less concern for others – who indeed may be viewed as either a threat or as fair game.

IOW, it’s the same load of aggressive, selfish and narrowly tribal stuff that once was ESSENTIAL to bands of humans when when we lived in a state of Nature and life was brutish and short, and that I’ve been giving other members of this and other communities grief over ever since I was marooned on these fertile but once hostile shores:

Cooperation comes naturally to man – among those we feel we can trust – but within limits, as so too does suspicion come naturally as to “others” who look like they might pose a threat. In building extended markets, we are always struggling with our predilection to form “Bands of Brothers”. In doing this work, we are always making use of our sophisticated yet at times quite reflexive native endowment.

As I noted a couple years back (you know, in ancient times when Al Gore won the Nobel Peace Prize) in a comment to libertarian science correspondent Ron Bailey at Reason Online:

you forget what evolutionary psychology, Ostrom and Yandle have explained to us so well about how our innate moral sense drives and underpins mankind’s success as a species by enhancing our ability to cooperate and to overcome commons issues.
Ostrom: http://conservationcommons.org/media/document/docu-wyycyz.pdf
Yandle: http://www.fee.org/publications/the-freeman/article.asp?aid=4064

Our long history of developed rules and institutions (informal and formal now overlapping) are based on our moral sense and the effectiveness of these rules depends critically on our moral investment in accepting their legitimacy – witness our views on murder, theft, lying and “not playing by the rules” – and in voluntarily complying with them.

Our moral sense reinforces our judgments about when rules/institutions are not working and the need to develop new ones in response to changing circumstances and new problems.  When we see a problem that we think requires change, it is unavoidable that we respond to the status quo, the behavior of people within it and the need for change with a moral sense. 

This is simply a part of our evolutionary endowment.  (Of course, other parts of our endowment accentuate our suspicions of smooth talkers and help us catch free riders and looters and to guard against threats from outsiders.)

Let all of us here at LvMI (and any strangers!) please be aware of our predilections, while we continue with the hard work of building strong, vibrant and open free societies.

I know, comrades, that you’re all dying for links to some of my relevant posts, which I certainly won’t begrudge to you :

Snicker-snack! We hold these truths to be self-evident: That WE’re right, and THEY are stoopid, deluded, evil AND cunning, out to destroy all that is good and holy

Bill Gates, Roger Pielke, Avatar & the Climate (of distrust); or, Can we move from a tribal questioning of motives to win-win policies?

I Can’t Stand Cant, Or, LeBron James and our Collectivist Scorn of “Collectivists”

Nick Kristof on politics: why we conclude that I’m right, and you’re evil (with a handy-dandy listing of a number of earlier fun posts!)

And a clip of a comment I made to Stephan Kinsella a little while back:

Austrians seem to act as if the love of reason requires a surrender of it in favor of the comforting distraction of a self-satisfied echo chamber of a type that would warm the cockles of any like-minded religious “alarmist” cult.

Mind Games: Bret Stephens of The Wall Street Journal panders to “skeptics” by abjuring science and declaring himself an expert on “mass neurosis”

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More curious blindness to corporate statism, or, fun with Bob Murphy's paid energy/enviro policy posts

February 11th, 2011 No comments

 I like Bob Murphy, and think he’s doing very important work in fighting nonsense from the Fed and from Keynesians.

But I am deeply disappointed with his ongoing shallow, partisan and decidedly non-libertarian work that he does for pay for the fossil fuel lobby. It’s not quite Dr. Jekyll versus Mr. Hyde, but it’s very clearly Bob Murphy/libertarian morphing into Bob Murphy/hired-gun-for-rent-seekers. I’ve got to admit that, as a hired gun, Bob still comes off well, even if not convincing to libertarians; the fossil fuel interests are getting their money’s worth!

Bob has a post up on his Free Advice blog  – EPA Will Destroy Jobs, Not Make Them – that excerpts a post of the same name that is now the lead item at the “free market” fossil-fuel lobbying outfit “Institute for Energy Research“(no comments allowed there, of course).

IER was started by fellow rent-seeking “libertarian” Rob Bradley (IER is now in DC; Bradley is CEO but has turned over operations to lobbyists; Bradley now focusses on the “Master Resource” “free market” for-pay fossil fuel think tank that features Bob and a host of other paid apologists for rent-seekers (Rob blocks dissenting libertarians like me).

I couldn’t resist making a few comments at Bob’s (emphasis added) 

TokyoTom says: Your comment is awaiting moderation.

Bob, WHY must you “press on” with your thin and one-sided analysis on environmental issues? Because you’re being paid by polluters to do so?

It pains me to see that the nuanced, libertarian Bob whom we see explaining what’s wrong with the Keynesians and the Fed always takes a leave of absence, and sends in his poor substitute, the utilitarian It-Grows-Jobs-And-Makes-Us-Wealthy-To-Destroy-Commons Bob.

Yes, CERES’/PERI’s argument that regulations create jobs ignores jobs likely to be lost by mandating investments in pollution controls, their overall argument is not as simple or as obviously stupid as you make it out to be. From the executive summary:

“Clean air safeguards have benefitted the United States tremendously. Enacted in
1970, and amended in 1990, the Clean Air Act (“CA”) has delivered cleaner air,
better public health, new jobs and an impressive return on investment—providing $4
to $8 in benefits for every $1 spent on compliance
.1″

“History has proven that clean air and strong economic growth are mutually reinforcing. Since
1990, the CAA has reduced emissions of the most common air pollutants
41 percent while Gross Domestic Product increased 64 percent.2″

“Focusing on 36 states3 in the eastern half of the United States, this report evaluates
the employment impacts of the electric sector’s transformation to a cleaner, modern
fleet through investment in pollution controls and new generation capacity and
through retirement of older, less efficient generating facilities. In particular, we assess
the impacts from two CAA regulations expected to be issued in 2011: the Clean Air
Transport Rule (“Transport Rule”) governing sulfur dioxide (SO2) and nitrogen oxide
(NOx) emissions from targeted states in the eastern half of the U.S.; and the National
Emissions Standards for Hazardous Air Pollutants for Utility Boilers (“Utility MACT”)
rule which will, for the first time, set federal limits for hazardous air pollutants such as
mercury, lead, dioxin, and arsenic. Although our analysis considers only employment-related
impacts under the new air regulations, the reality is these new standards will
yield numerous other concrete economic benefits, including better public health from
cleaner air, increased competitiveness from developing innovative technologies and
mitigation of climate change
.”

Given the externalities involved, you are wrong to assume that the new jobs are all costs and do not represent wealth-creating activity. If we junked the EPA and environmental laws and regulations altogether and replaced them with a strict enforcement of property rights (Block points out that we lost this because corporations bought off judges), THEN would the jobs created as people scrambled to sue and businesses scrambled to reduce pollution be wealth-creating? Surely such policies also would “stimulate productive investment and job creation”, right?

Why, then, do you consistently drop your libertarian principles when it comes to energy and environmental matters and adopt a shallow assumption than only corporations producing “desired goods” is a “productive purpose”? Why instead of a recognition of external effects/catallaxy problems, we get suggestions that government should help “the economy” via policies such as – surprise! – “lift[ing] arbitrary restrictions on domestic energy production” that would “stimulate productive investment and job creation.” (Um, remember BP, the Gulf of Mexico and all of the “wealth creation” and great new jobs that just got “created” down there?).

Why, indeed, if you’re still an honorable man? You’re better than this, Bob.

http://mises.org/Community/blogs/tokyotom/archive/2009/08/25/fun-with-self-deception-and-rent-seeking-bob-murphy-s-quot-man-in-the-mirror-quot.aspx

http://mises.org/Community/blogs/tokyotom/archive/2009/10/28/bob-murphy-rob-bradley-and-the-austrian-road-not-taken-on-climate.aspx

http://mises.org/Community/blogs/tokyotom/archive/2009/12/19/bob-murphy-speculates-on-quot-the-benefits-of-procrastination-the-economics-of-geo-engineering-quot-cui-bono.aspx

I’m sorry to be pushing meta-issues, but one of the reasons why the Left doesn’t listen to libertarians and ‘free market’ criticisms is that these criticisms seldom are acknowledge, much less directed at, the major impersonal corporate rent-seekers who REALLY are behind government and whom the Left rightly distrust.

Best,

Tom 

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The Eve of Destruction: Excellent post on how Government and statist corporations like BP are stifling community responses to the unfolding Gulf disaster

June 18th, 2010 No comments

Yes, another BP post! Another Avatar post, too!

Following a trail of crumbs, I have just chanced upon an insightful post at the “On ALLiance” group blog of left libertarians. The post, a reader submission on June 13 by “Keith” is entitled “BPUSA” and hits squarely on the head a couple of nails that have been bothering me. I cross-post it in it entirety below (emphasis added).

I would note that while I agree that we face very serious problems, I would not attribute the weakened state of our communities to deliberate acts of scheming individuals – but rather, individuals in many institutions acting in accordance with the incentives that they face within their respective institutions. Nevertheless, I agree with and strongly support the call to action.

BPUSA

By Keith

The BP Deepwater Horizon oil gusher demonstrates the necessity of building civil society within American communities.  In fact if anything it demonstrates how community agency, the capacity to act for collective purposes, has been eroded due to a persistent effort to erode civil society and create dependency upon state and corporate actors.  This is done through a number of mechanisms: (1) subsuming mutual aid and not-for-profit actors into government welfare; (2) slowly chipping away at the capacity of welfare and social service agencies through diminished funding, increased bureaucracy, and enhanced regulation that undermines the core mission of the agency and; (3) finally by transferring such services over to corporate actors who seek to maximize profit by distributing material (not social) goods that fail to offer a semblance of empowerment nor promises to build individual capacity for transformative change. The purposeful erosion of civil society leaves communities extremely vulnerable in times of crises, as the Deepwater Horizon disaster demonstrates.

Gulf coastal communities were assured by BP and the United States government that the effects of the spill were being mitigated through public-private partnerships without actively engaging the local level communities or regional working groups.  As a recent Rolling Stone article notes, these actors are attempting to protect their own interests to the detriment of an entire ecosystem. BP, the criminal perpetrator, is in essence being empowered to act as judge, jury, and I dare say executioner.

When the Deepwater Horizon originally sank, BP, with support from the Obama Administration, low-balled the estimated flow rate gushing from the well.  Initially the flow was placed at 1000 barrels a day; it is now looking more like 100,000 barrels of oil per day, equivalent to an Exxon-Valdez oil spill every 8 days [actually this is every three days] , a shocking figure by anyone’s standards – it should also be noted that little attention has been paid to the nitrogen-rich liquid natural gas leaking into the deep ocean waters which may be even worse than the oil itself.

The National Oceanographic and Atmospheric Administration has estimated the worst from the very start; their own models planned for the worst.  But why then did the Obama Administration actively seek to keep these estimates tamped down.  There can only be two reasons for this.  First, the Obama Administration desired to limit the political fall out.  Perhaps this means they did not want to worry the Gulf residents (unlikely), or perhaps they wanted to play it safe and attempt to reduce media interest in an attempt to craft the initial message that would (hopefully) dominate the media discourse.  Second, the Obama Administration, a major benefactor of BP political campaign contributions, is going to bat for BP. [Also, Obama was trying to craft a climate deal that required support by big oil, in exchange for expanded offshore drilling.]

Either which way, by limiting the information flow to the media and then to the Gulf communities, they severely reduced the capacity for communities to understand the problem, mobilize resources relative to the catastrophe, and become actively engaged side by side with the government and BP to save their communities.  BP themselves bragged about their ability to detect flow rates in an in-house magazine they produce. It is criminal that communities were, in essence, denied their rightful opportunity to prepare far in advance of the oil coming ashore.

But it is critical to understand that this is how these two entities are currently structured. BP is tasked with maximizing profit and ensuring a solid return on investment to their shareholders (brown pelicans and rural fishermen be damned, they don’t own BP stock).  From a community empowerment perspective, the U.S. government, itself a top-down, hierarchical organization much like BP, also seeks to demonstrate a return on investment to its shareholders (campaign financiers, the businesses they regulate, and the businesses government officials hope will cut them a fat salary when they exit public life to enter the private sector in a cyclical process known as the revolving door).  What’s worse is that the opposition Republicans, instead of feeling the pain wrought by irresponsible regulation, subsidy, liability caps, and corporate malfeasance, has called for a federal bailout, increased oil drilling, and unfettered access to the even riskier drilling ventures; in other words, we have no good option in terms of political representation.  We get a choice of two parties, each representing the same interest, but one being far more crass in its support of destructive business practices.

[Quick aside. What would happen if you killed a large number of endangered animals? Do you think BP faces similar penalties? Who then do these legal processes protect?]

We are seeing a massive failure of state-centralized governance before our very eyes.  This is what happens when we put all of our collective eggs in a solitary basket, and don’t build multiple institutions of governance for collective action. Communities have been trained to rely on singular institutions for their critical goods and services. Should the singular entity (the state-corporate partners know as BPUSA) fail, we have no other choice because, well… these profit-seeking actors diminished our choices and community capacity to address crises have thusly been destroyed. Communities simply need more options.

It is obvious that the elite-led mentality of our governance structure has inhibited community’s capacity to provide for themselves when both the titans of industry and the government has failed them.  State governments in the Gulf have been further hamstrung not because of capacity to prepare for the spill, but to give the illusion that the federal government was not “granting them permits,” for example, to perform immediate stop gap measures, never mind you these “conservative” government’s supposed belief in “states’ rights” which should have prodded them to take their Confederate rebel mentality to buck the federales and win over the hearts and minds of their people; when politics comes into the fray, the vast majority of politicians will let their constituencies suffer gravely in order to further their own political ambitions.

Louisiana governor Bobby Jindal skillfully demonstrated his destructive political acumen, pleaded desperately with the media to have the Obama Administration sign off on permits to allow the state to dump sand berms at the entryways to fragile wetlands. Why, if Jindal knew his cause was just and time was of the essence, did he not use his executive authority and his Confederate-derived states’ rights mentality to not only demonstrate his adept handling of the situation to save his people, but to also give Obama a nice political jab?  Because in the end, for Jindal, he wants to build a narrative of the destructive, oppressive, federal government through demonstrable evidence, forgetting that in this instance federal actions were more about ineptitude than oppressiveness.  But we cannot fault Jindal for living up to the rhetorical standards of the American right: incoherence and inconsistency reign king.

By the way, Jindal had the resources for the sand berms at his immediate disposal. Jindal simply decided he “needed” to wait on the Obama Administration. Odd that Jindal would trust in the process considering Jindal has long criticized the Obama-led government as inept.

Then there is the governor of Mississippi.  Governor Haley Barbour, in an effort to save the state’s tourism industry (I know you are asking “Mississippi has a tourism industry?!”) downplayed the oil coming ashore as “natural.” For Barbour, tar balls are just a trivial side effect of offshore oil drilling – again, never mind a tacit acknowledgement of the destructive side of our economic system where tar balls become a natural feature of our landscape.  Barbour would rather protect the special interest of the notoriously anti working class tourist industry than mobilize the working class themselves to save the local ecosystem.

See a pattern?

Instead of preparing Mississippi citizens for the worst, in order to engage and activate the civic infrastructure, Barbour is hamstringing civilian response efforts by essentially telling people to carry on as they normally would.  God forbid Barbour truly lead and ask the citizens of Mississippi to march to the coast, assist in clean up efforts, and prepare to pitchfork BP executives until they open their fat wallets and liquidate their assets to the people of the great state of Mississippi.

You see, civic engagement is simply not in the best interest of the status quo, even if it means disaster. Political hacks want communities to come to them for their critical needs in order to reinforce their importance.

And the feds, being the good community actors they are, have decided they better make sure that the scant BP financed clean-up crews don’t have any “illegal” immigrants in their midst. Clearly the government believes they must both be choosy, and are duty-led to drum up further anti-immigrant fervor in a crisis situation.  A political two-fer!

Then there is the Coast Guard, supposedly tasked to protect American assets (”our” assets) on the open seas.  The Coast Guard has limited civilian and media access to areas in the Gulf impacted by the Deepwater Horizon gusher.  People wish to see the damage with their own eyes, and damned if in the face of the looming catastrophe they shouldn’t have that right to do so.  But the Obama Administration, which is supposedly seeking someone’s ass to kick at BP, has decided to throw their executive weight behind preventing investigative journalism and civil protest as opposed to forcing BP to shift the bulk of it’s operations to the Gulf response effort.  Read this article posted on HuffingtonPost: http://www.huffingtonpost.com/riki-ott/from-the-ground-bp-censor_b_608724.html

What this has done is rightfully created mistrust in both the government and business.  The state has created the corporation through state charter.  With the corporate-state partnership, the corporation now receives the rights of a human being with virtually none of the risk or liabilities; the state is all too willing to proliferate this relationship too. Again, the opposition political party’s own minority leader, John Boehner, stood side by side with the president of the Chamber of Commerce, expressing their shared sense of outrage that BP might be liable, and that the government should be on the hook for the cleanup costs.

And here we were told by the Chamber that they wanted government OUT of the business of business.  Read more here: http://thinkprogress.org/2010/06/10/boehner-spill/

On one hand, when people cry out for critical social services – their only avenue being the government due to restrictive regulations preventing mutual aid type agencies – they are told that now is not the time due to severe economic situations (or the Democratic supermajority is not “super” enough).  On the other, when the government wants to bail out the banks, launch trillion dollar wars, or use our tax dollars to clean up after BP (who makes tens of billions in profits a year), all of a sudden the government can marshal its forces to meet these challenges.  The more reasonable amongst us are labeled as unreasonable or irrational when we point out that this spending orgy – resulting in irresponsible business practices and, worst of all, the death of millions of innocents – could simply be redirected toward crumbling U.S. infrastructure or, and I might sound crazy here, putting a massive collective effort toward stopping an impending, unprecedented environmental disaster.  No, you see, we have to find some guy in a cave and build a nation or two, modeled off this nation’s likeness (good luck with that Afghanistan!).

Have no doubt that we are facing critical times.  Government, which demands to be the end arbiter for rapid-response efforts, is failing us time and time again.  Corporations stand behind government to shield themselves from liability while profiting along the way (Naomi Klein wrote about this process in her book The Shock Doctrine). Government then downplays all disasters to protect the corporate interests while also downplaying the necessity to deploy the resources necessary to protect communities from catastrophic events.  Communities are then ill equipped to wage effective disaster responses or stop the absentee corporate business practices that cause the disasters in the first place.  This is a cycle that is increasingly playing out with global climate change, state-centralization of police power, and the growth of the corporate-state partnership. Communities, particularly rural and resource-constrained types, are suffering most and will continue to do so, so long as elite brokers have something to gain.

The state and corporate titans have done their fair share to blind local and regional communities to the realities of their destructive practices for the sake of the all-mighty dollar.  In doing so, it has now become common practice for communities, even in disaster situations, to have to vet their response efforts through cumbersome bureaucracies that are detached from the ground-level realities.  More troubling still is that local level communities seem to acquiesce to these power structures, presuming that it is in their best interest or that they could get punished for breaking the chain of command. In disaster scenarios, we know that a rapid response is the best remedy to ensure that chaos is mitigated, order restored, and peoples’ livelihoods are saved; time is of the essence.  We must engage communities to work collectively on the critical issues of our time, lest we face repeats of the Katrina, Haiti, and Gulf crises.

Don’t get me wrong, here. This disaster and the results are not solely the government’s blame. In the end, the criminal is BP. But the resulting disaster response should be simple and accountability should be clear. The problem is that reactions are slow, people are being lied to, authorities are dominating the response (and badly) and the government has led us to the position that we can’t do much about it.

Communities must work to build active capacity.  Communities must

challenge the rights of corporate and state actors over local autonomy.  We must have multiple institutions of governance for just such instances where the “patriarchs” fail us.  There is no valid reason, as NPR reported the other day, why the Coast Guard should prevent inland fisheries from setting up their own booms to prevent the flow of BP’s oil into their bays.  Not only should communities challenge the Coast Guard’s order, but they should, figuratively, deploy the booms when reason seems to dictate it is in their best interest. This is where civil disobedience is needed most.

Communities should not acquiesce when it means destruction.  It is long past time we challenge these obviously destructive state-corporate partnerships and build our own local capacity to work collectively.  Indeed it may be a necessity for communities to thrive.  The all too real and disturbing question to me is will we be allowed to do so, and will communities be willing to challenge such impediments?

h/t suburnanarchist http://suburbananarchist.tumblr.com/day/2010/06/13 11:42 pm

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Poor statists! If we close our eyes tightly enough, we can see clearly that Corporations are innocent VICTIMS, of governments that foist on them meaningless grants like limited liability & IP, and of malevolent, grasping citizens

May 10th, 2010 1 comment

I pulled out my peashooter the other day and levelled a few criticisms (“Risk-shifting, BP and those nasty enviros“) at  Lew Rockwell‘s Feel Sorry for BP?.  I don’t imagine that Lew noticed, but my buddy Stephan Kinsella did.

I have long noted the reflexive defense of corporations by prominent Austrians and the stubborn unwillingness to closely examine the role that the special grants to corporate investors that lie at the core of the problem of snowballing corporate statism, spiralling politicized rent-seeking battles, incompetent government and concupiscient and grand-standing politicians. So Stephan’s comments come as no surprise:

1.  Stephan chooses to set the stage with a bunch of labels –  “enviro-global-warming anti-corporation libertarian”. Whatever makes you happy, Stephan. I know you and others have a hard time resisting the urge, which is why I often playfully sign off as the resident friendly enviro fascist! Nah, couldn’t possibly be a “real” libertarian.

On corporations, the “environment”, and climate – as on central banking, fiat currency and the whole mess of banking and capital markets regulation – I’m simply anti-un-contracted-for-risk-shifting-and-government-enabled-moral-hazard and arguments against rent-seeking that ignore existing special deals.

But if it’s easier, just keep calling me”anti-corporation” and continue to lump me in with “enviro-fascists”.

 2.  I had wondered: 

Even if one concedes that some criticisms of BP will be unfair, how can BP possibly be cast [by Lew] as the LEADING victim – as opposed to all of the others whose livelihoods or property are drastically affected by this incident, which they had no control over whatsoever?

Stephan’s lame response?

BP is a victim in the sense that a terrible tragedy just happened to it, and it’s gonna cost it dearly. It’s the leading victim assuming the others damaged are going to be compensated from BP. The point is it’s a bad thing that’s happened to it.Why not feel sorry for them?

Really, Stephan?  BP deliberately measures and takes risks as part of its business; no one else who has been or maybe injured had a clear concept of such risks or either assumed them or had any ability to control them. Clearly, BP is the one that has interfered with others’ use and enjoyment of their own property, of common property and of government-owned property; in law, we call them “tort-feasors”.  They are not a “victim” in any sense that we commonly apply in situations like this. Empty word games like yours turn reality in its head. Right, Toyota is a victim when its cars’ brakes have problems, TVA is a “victim” when its coal fly ash dams break, and so are others who “unintentionally” injure the health or damage the property of others – when latent risks materialize or they are caught at it and suffer some economic loss as a result.

It’s hard to believe you want to further support Lew’s absurd claim that BP is the leading victim now – we simply have assume that in the future, BP or someone else will throw some compensation at all of those other unworthy, insignificant passive victims. Nice.

Sure, it’s too bad that this happened, all around. BP gambled (heroically?) to make money; everyone has lost. Poor BP!

3. Lew: “The incident is a tragedy for BP and all the subcontractors involved. It will probably wreck the company”

Me: 

The incident will certainly be costly for the firms involved, but the firms will survive the death of employees, and there is certainly very little risk indeed that BP will be “wrecked” by the spill. Far from it; it is unlikely that BP will even bear the principal costs of cleanup efforts, much less the economic damages to third parties that federal law apparently caps at $75 million.

Have you not heard of “INSURANCE”? A little thinking (and Googling) would tell you that BP (and its subcontractors) has plenty of it. To the extent BP is NOT insured, it has ample capability to self-insure, unlike all of the fishermen, oystermen and those in the tourist industry who are feeling significant impacts. Insurers will bear the primary burden, not BP.

Stephan:

Obama has threatened BP and they have caved in, agreeing to pay above the $75M cap. And the cap was in exchange for a tax on oil companies to be put into the Oil Spill Liability Trust Fund for such emergencies–do you think that BP will be able to get that tax refunded? Naah.

Sounds like you’re agreeing that this incident is unlikely to “wreck”BP, given insurance, self-insurance and the $1.6 billion Oil Spill Fund. But it sounds like you also are suggesting that BP has every right to negotiate with government for liability caps. Interesting.

4. Lew:   “we might ask who is happy about the disaster: 1. the environmentalists, with their fear mongering and hatred of modern life”

Me:

Sorry, but this is perverse: enviros might feel that they have been proven right – and you might be annoyed that they can make such a claim – but they certainly aren’t “happy” with any of the loss of life, damage to property or livelihoods of the little guy (or of bigger property owners), or to a more pristine marine environment that they value.

Stephan: 

Aren’t happy? Have you seen, say, Spill Baby Spill, Boycott BP! ? And another tolerant, caring liberal on Slate’s Political Gabfest Facebook page said, “I don’t get the calls for pity. Boohoo another oil giant might have bankrupted itself.” These misanthropic sickos oppose nuclear power, which makes fossil fuels necessary. They act like they hate BP. Why? For making a mistake? Mistakes are inevitable. For drilling for oil? Why? We need oil.

Let me repeat: some might feel vindicated and be eager to use this incident to bash BP, etc. – people/firms certainly are fighting over government – but that doesn’t make them “happy” that disaster has occurred.

You apparently missed it, but there were plenty of “misanthropic sickos” on Lew’s comment thread who expressed thoughts similar to “I don’t get the calls for pity. Boohoo another oil giant might have bankrupted itself.”

The rest of this is also packed with nonsense.  Funny that Austrians fail to overlook that enviro opposition to nukes and to other fossil fuels is more than a little related to government’s dirty role in the industries, including liability caps like those present here. Do Austrians “hate” banks, securities firms and AIG for making “mistakes”? But aren’t mistakes “inevitable”? And don’t we need lenders and insurers? And a domestic auto industry?

Just what do these utilitarian arguments have to do with libertarian principles, anyway?

5.   Me:

[Lew’s] projection of happiness at damages to common resources/private property and hatred of modern life is especially perverse, given your own explicit recognition that government ownership/mismanagement of commons, and setting of limits on liability both skew the incentives BP faces to avoid damage, and limit the ability of others (resource users and evil enviros) to directly protect or negotiate their own interests. Why is the negative role played by government any reason to bash others who use or care about the “commons”?

Stephan: No libertarian is in favor of liability caps. What is he talking about?

Simple, Stephan. Lew explicitly recognizes that government has screwed up  the ability of enviros and others who have conflicting preferences about the use of resources to engage in voluntary transactions that would advance mutual welfare – yet he chooses to bash those whose preferences are frustrated by government, while feeling sorry for those whose preferences are favored. What is remotely even-handed – or Austrian – about this imbalance? Is it simply that it’s okay for those who make omelets to take eggs from others, since the omelet “makers” are being “productive”?

6.  Me:

We have seen Austrians – sympathetic to the costs to real people in the rest of the economy – rightly call for an end to a fiat currency, central banking and to moral-hazard-enabling deposit insurance and oversight of banks. In an April 9 post by Kevin Dowd on the financial crisis, we even had a call “to remove limited liability: we should abolish the limited-liability statutes and give the bankers the strongest possible incentives to look after our money properly” – but Dowd’s comments simply echoed in the Sounds of Silence. Why do you and others refuse to look at the risk-shifting and moral hazard that is implicit in the very grant of a limited liability corporate charter – not only in banking, but in oil exploration and other parts of the economy?

Stephan:

Removing artificial caps on liability has nothing to do with the limited liability of passive shareholders in a corporation. Their liability is limited simply because they are not causally responsible for the torts of employees of the company in which they hold shares.

I suspect this is the key reason why Stephan troubled himself to respond, but surely he can see it is not only counterfactual, but dodges any consideration of the consequences of limited liability in terms of fuelling industrialization and fights over using government to check corporate excesses. Investors then and now deliberately choose to conduct business activities through corporations precisely because government absolves owners from any liability in excess of enterprise assets.  While it is possible for voluntary counterparties (employees, lenders and others doing business with the firm) to agree in advance to limit their resources solely to enterprise assets, those who are injured by acts of companies or their employees and agents do not in advance choose the nature of the those who are responsible for harming them. Accordingly, the broad blanket grant of limited liability to corporations is clearly anti-libertarian.

Accordingly, dividends received by shareholders from risky activities are not clawed back if risks are realized and claims exceed corporate assets. Further, shareholders are given disincentives from too closely directing manage risk (for fear of claims that they have direct responsibility for torts). When combined with other corporate attributes (unlimited life & purposes, relative anonymity of ownership, remoteness of owners from communities in which the firms operate, and ability of powerful firms and wealthy investors to influence judges, legislators, bureaucrats and other officials), we have seen a steady erosion of common law and growth in the regulatory state – as citizens fight to limit the risks and costs that corporations impose on individuals and communities. Is Stephan unaware of the central role of corporations in rent-seeking battles? In the perversion of the 14th Amendment – designed to protect emancipated slaves and Chinese coolies – into a weapon to elevate corporations over the states, and to permanently shift power to the Federal government?

Just as most commentators overlook the massive moral hazard and risk-shifting that is part and parcel of the federal oversight of banking (necessitated by deposit insurance and fractional banking), so do Stephan and Lew insist on keeping their eyes closed to the legacy of risk-shifting, statism and escalating fights over increasingly incompetent and corrupt government. Why?

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Crazy Bill Gates on the need for energy innovation: We need to "fix market barriers and dysfunctions"

February 18th, 2010 No comments

[Note: Snark inside.]

As I mentioned earlier, Bill Gates has recently posted his thoughts on how to address climate issues.

Since we know Gates has been funding scientific inquiry into (and patent rights regarding) methods to dampen “climate change” affects that are expected by many to arise as a result of CO2 emissions and other factors, astute group-thinkers know that Gates has already embraced lunacy.

I invite the free thinkers to read more about Gates’ wild and crazy thoughts (such as my own refrain that libertarians and conservatives should take advantage of climate concerns to put pressure on removing barriers to innovation); here are a few excerpts (emphasis added):

Why We Need Innovation, Not Just Insulation

Posted 01/24/2010
Conservation and behavior change alone will not get us to the
dramatically lower levels of CO2 emissions needed to make a real
difference. We also need to focus on developing innovative technologies
that produce energy without generating any CO2 emissions at all.

People often present two timeframes that
we should have as goals for CO2 reduction – 30% (off of some baseline)
by 2020 and 80% by 2050. …

To make the 80% goal by 2050 we are going
to have to reduce emissions from transportation and electrical
production in participating countries down to near zero. …

If the goal is to get the transportation and electrical sectors down to
zero emissions you clearly need innovation that leads to entirely new
approaches to generating power.

While it is all well and good to insulate houses and turn off lights,
to really solve this problem we need to spend more time on accelerating
innovation. …

Unfortunately, you can never insulate your way to anything close to
zero. But because 2020 is too soon for innovation to be completed and
widely deployed, behavior change and efficiency still matter.

Still, the amount of CO2 avoided by these kinds of modest reduction
efforts will not be the key to what happens with climate change in the
long run.

In fact it is doubtful that any such efforts in the rich countries will
even offset the increase coming from richer lifestyles in places like
China, India, Brazil, Indonesia, Mexico, etc.

Innovation in transportation and electricity will be the key factor.

One of the reasons I bring this up is that I hear a lot of climate
change experts focus totally on 2020 or talk about how great it is that
there is so much low hanging fruit that will make a difference.

This mostly focuses on saving a little bit of energy, which by itself
is simply not enough. The need to get close to zero emissions in key
sectors almost never gets mentioned. The danger is people will think
they just need to do a little bit and things will be fine.

If CO2 reduction is important, we need to make it clear to people what really matters – getting close to zero.

With that kind of clarity, people will understand the need for the goal
to be zero and begin to grasp the scope and scale of innovation that is
needed. …

To achieve the kinds of innovations that will be required I think a
distributed system of R&D with economic rewards for innovators and
strong government encouragement is the key. There just isn’t enough
work going on today to get us to where we need to go. …

We should at the least fix market barriers and dysfunctions that
prevent these gains from being realized. That’s just being smart.

But it’s not enough to slow the growth of CO2 given the strength of demand driven by the poor who need to get access energy.

No amount of insulation will get us there; only innovating our way to
what is essentially zero carbon energy technology will do it. If we
focus on just efficiency to the exclusion of innovation, or imagine
that we can worry about efficiency first and worry about energy
innovation later, we won’t get there.

The world is distracted from what counts on this issue in a big way.