Saturday, September 1, 2018

Should Corporate Lawyers and Business Law Professors Be Talking About DAOs?

Did I lose you with the title to this post? Do you have no idea what a DAO is? In its simplest terms, a DAO is a decentralized autonomous organization, whose decisions are made electronically by a written computer code or through the vote of its members. In theory, it eliminates the need for traditional documentation and people for governance. This post won't explain any more about DAOs or the infamous hack of the Slock.it DAO in 2016. I chose this provocative title to inspire you to read an article entitled Legal Education in the Blockchain Revolution.

The authors Mark Fenwick, Wulf A. Kaal, and Erik P. M. Vermeulen discuss how technological innovations, including artificial intelligence and blockchain will change how we teach and practice law related to real property, IP, privacy, contracts, and employment law. If you're a practicing lawyer, you have a duty of competence. You need to know what you don't know so that you avoid advising on areas outside of your level of expertise. It may be exciting to advise a company on tax, IP, securities law or other legal issues related to cryptocurrency or blockchain, but you could subject yourself to discipline for doing so without the requisite background. If you teach law, you will have students clamoring for information on innovative technology and how the law applies. Cornell University now offers 28 courses on blockchain, and a professor at NYU's Stern School of Business has 235 people in his class. Other schools are scrambling to find professors qualified to teach on the subject. 

To understand the hype, read the article on the future of legal education. The abstract is below:

The legal profession is one of the most disrupted sectors of the consulting industry today. The rise of Legal Tech, artificial intelligence, big data, machine learning, and, most importantly, blockchain technology is changing the practice of law. The sharing economy and platform companies challenge many of the traditional assumptions, doctrines, and concepts of law and governance, requiring litigators, judges, and regulators to adapt. Lawyers need to be equipped with the necessary skillsets to operate effectively in the new world of disruptive innovation in law. A more creative and innovative approach to educating lawyers for the 21st century is needed.

For more on how blockchain is changing business and corporate governance, come by my talk at the University of Tennessee on September 14th where you will also hear from my co-bloggers. In case you have no interest in my topic, it's worth the drive/flight to hear from the others. The descriptions of the sessions are below:

Session 1: Breach of Fiduciary Duty and the Defense of Reliance on Experts

Many corporate statutes expressly provide that directors in discharging their duties may rely in good faith upon information, opinions, reports, or statements from officers, board committees, employees, or other experts (such as accountants or lawyers). Such statutes often come into play when directors have been charged with breaching their procedural duty of care by making an inadequately informed decision, but they can be applicable in other contexts as well. In effect, the statutes provide a defense to directors charged with breach of fiduciary duty when their allegedly uninformed or wrongful decisions were based on credible information provided by others with appropriate expertise. Professor Douglas Moll will examine these “reliance on experts” statutes and explore a number of questions associated with them.

Session 2: Fact or Fiction: Flawed Approaches to Evaluating Market Behavior in Securities Litigation

Private fraud actions brought under Section 10(b) of the Securities Exchange Act require courts to make a variety of determinations regarding market functioning and the economic effects of the alleged misconduct. Over the years, courts have developed a variety of doctrines to guide how these inquiries are to be conducted. For example, courts look to a series of specific, pre-defined factors to determine whether a market is “efficient” and thus responsive to new information. Courts also rely on a variety of doctrines to determine whether and for how long publicly-available information has exerted an influence on security prices. Courts’ judgments on these matters dictate whether cases will proceed to summary judgment and trial, whether classes will be certified and the scope of such classes, and the damages that investors are entitled to collect. Professor Ann M. Lipton will discuss how these doctrines operate in such an artificial manner that they no longer shed light on the underlying factual inquiry, namely, the actual effect of the alleged fraud on investors.

Session 3: Lawyering for Social Enterprise

Professor Joan Heminway will focus on salient components of professional responsibility operative in delivering advisory legal services to social enterprises. Social enterprises—businesses that exist to generate financial and social or environmental benefits—have received significant positive public attention in recent years. However, social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Professor Heminway will discuss how these legal uncertainties have the capacity to generate transaction costs around entity formation and management decision making and the pertinent professional responsibilities implicated in an attorney’s representation of such social enterprises.

Session 4: Beyond Bitcoin: Leveraging Blockchain for Corporate Governance, Corporate Social Responsibility, and Enterprise Risk Management

Although many people equate blockchain with bitcoin, cryptocurrency, and smart contracts, Professor Marcia Narine Weldon will discuss how the technology also has the potential to transform the way companies look at governance and enterprise risk management. Companies and stock exchanges are using blockchain for shareholder communications, managing supply chains, internal audit, and cybersecurity. Professor Weldon will focus on eliminating barriers to transparency in the human rights arena. Professor Weldon’s discussion will provide an overview of blockchain technology and how state and nonstate actors use the technology outside of the realm of cryptocurrency.

Session 5: Crafting State Corporate Law for Research and Review

Professor Benjamin Edwards will discuss how states can implement changes in state corporate law with an eye toward putting in place provisions and measures to make it easier for policymakers to retrospectively review changes to state law to discern whether legislation accomplished its stated goals. State legislatures often enact and amend their business corporation laws without considering how to review and evaluate their effectiveness and impact. This inattention means that state legislatures quickly lose sight of whether the changes actually generate the benefits desired at the time off passage. It also means that state legislatures may not observe stock price reactions or other market reactions to legislation. Our federal system allows states to serve as the laboratories of democracy. The controversy over fee-shifting bylaws and corporate charter provisions offers an opportunity for state legislatures to intelligently design changes in corporate law to achieve multiple state and regulatory objectives. Professor Edwards will discuss how well-crafted legislation would: (i) allow states to compete effectively in the market for corporate charters; and (ii) generate useful information for evaluating whether particular bylaws or charter provisions enhance shareholder wealth.

Session 6: An Overt Disclosure Requirement for Eliminating the Duty of Loyalty

When Delaware law allowed parties to eliminate the duty of loyalty for LLCs, more than a few people were appalled. Concerns about eliminating the duty of loyalty are not surprising given traditional business law fiduciary duty doctrine. However, as business agreements evolved, and became more sophisticated, freedom of contract has become more common, and attractive. How to reconcile this tradition with the emerging trend? Professor Joshua Fershée will discuss why we need to bring a partnership principle to LLCs to help. In partnerships, the default rule is that changes to the partnership agreement or acts outside the ordinary course of business require a unanimous vote. See UPA § 18(h) & RUPA § 401(j). As such, the duty of loyalty should have the same requirement, and perhaps that even the rule should be mandatory, not just default. The duty of loyalty norm is sufficiently ingrained that more active notice (and more explicit consent) is necessary, and eliminating the duty of loyalty is sufficiently unique that it warrants unique treatment if it is to be eliminated.

Session 7: Does Corporate Personhood Matter? A Review of We the Corporations

Professor Stefan Padfield will discuss a book written by UCLA Law Professor Adam Winkler, “We the Corporations: How American Businesses Won Their Civil Rights.” The highly-praised book “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’ – the centuries-long struggle for equal rights for corporations.” However, the book is not without its controversial assertions, particularly when it comes to its characterizations of some of the key components of corporate personhood and corporate personality theory. This discussion will unpack some of these assertions, hopefully ensuring that advocates who rely on the book will be informed as to alternative approaches to key issues.

 

September 1, 2018 in Ann Lipton, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, Current Affairs, Employment Law, Human Rights, Intellectual Property, International Business, Joan Heminway, Joshua P. Fershee, Law School, Lawyering, LLCs, Marcia Narine Weldon, Real Property, Shareholders, Social Enterprise, Stefan J. Padfield, Teaching, Technology, Web/Tech | Permalink | Comments (0)

Monday, July 30, 2018

日本からのご挨拶 - My Japanese Adventure

Hello to all from Tokyo, Japan (Honshu).  I have been in Japan for almost a week to present at and attend the 20th General Congress of the International Academy of Comparative Law (IACL), which was held last week in Fukuoka, Japan (Kyushu).  By the time you read this, I will be on my way home.

Fukuoka(Me+Sign)

As it turns out, I was at the Congress with old business law friends Hannah Buxbaum (Indiana Maurer Law), Felix Chang (Cincinnati Law), and Frank Gevurtz (McGeorge Law), as well as erstwhile SEALS buddy Eugene Mazo (Rutgers Law).  I also met super new academic friends from all over the world, including several from the United States.  I attended all of the business law programs after my arrival (I missed the first day due to my travel schedule) and a number of sessions on general comparative and cross-border legal matters.  All of that is too much to write about here, but I will give you a slice.

I spoke on the legal regulation of crowdfunding as the National Rapporteur for the United States.  My written contribution to the project, which I am told will be part of a published volume, is on SSRN here.  The entire project consists of eighteen papers from around the world, each of which responded to the same series of prompts conveyed to us by the General Rapporteur for the project (in our case, Caroline Kleiner from the University of Strasbourg).  The General Rapporteur is charged with consolidating the information and observations from the national reports and synthesizing key take-aways.  I do not envy her job!  The importance of the U.S. law and market to the global phenomenon is well illustrated by this slide from Caroline's summary.

Fukuoka(GlobalCrowdfundingSlide)

The Congress was different from other international crowdfunding events at which I have presented my work.  The diversity of the audience--in terms of the number of countries and legal specialties represented--was significantly greater than in any other international academic forum at which I have presented.  Our panel of National Rapporteurs also was a bit more diverse and different than what I have experienced elsewhere, including panelists hailing from from Argentina, Brazil, Canada, France, Germany, Poland, and Singapore (in addition to me).  At international conferences focusing on the microfinance aspects of crowdfunding, participants from India and Africa are more prominent.  I expect to say more about the individual national reports on crowdfunding in later posts, as the need or desire arises.

A few outtakes on other sessions follow.

Continue reading

July 30, 2018 in Conferences, Contracts, Corporate Finance, Corporate Governance, Crowdfunding, Current Affairs, International Business, International Law, Joan Heminway, Research/Scholarhip, Securities Regulation, Social Enterprise | Permalink | Comments (0)

Monday, March 26, 2018

Teaching Corporate Law Globally - Recommended Text

I am committed to introducing my business law students to business law doctrine and policy both domestically and internationally.  The Business Associations text that I coauthored has comparative legal observations in most chapters.  I have taught Cross-Border Mergers & Acquisitions with a group of colleagues and will soon be publishing a book we have coauthored.  And I taught comparative business law courses for four years in study abroad programs in Brazil and the UK.  

In the study abroad programs, I struggled in finding suitable texts, cobbling together several relatively small paperbacks and adding some web-available materials.  The result was suboptimal.  I yearned for a single suitable text.  In my view, texts for study abroad courses should be paperback and cover all of the basics in the field in a succinct fashion, allowing for easy portability and both healthy discussion to fill gaps and customization, as needed, to suit the instructor's teaching and learning objectives.

And so it was with some excitement--but also some healthy natural skepticism--that I requested a review copy of Corporations: A Comparative Perspective (International Edition), coauthored by my long-time friend Marco Ventoruzzo (Bocconi and Penn State) and five others (all scholars from outside the United States), and published by West Academic Publishing.  I am pleased to say that if/when I teach international and comparative corporate governance and finance (especially in Europe) in the future, I will/would assign this book.  It is a paperback text that, despite its 530 pages, is both reasonably comprehensive and manageable.

The book is divided into ten chapters, starting with basic "building blocks" of comparative corporate law and ending (before some brief final thoughts) with unsolicited business combinations.  U.S. law is, for the most part, the centerpiece of the chapters, which consist principally of original text, cases, statutes, law journal article excerpts, and (in certain circumstances) helpful diagrams.  The methodological introduction, which I found quite helpful and user-friendly, notes that the coauthors "often (not always) start our analysis with the U.S. perspective."  (xxvi)  Yet, despite the anchoring use of U.S. law throughout the book, it somehow has a very European feel.  The coauthors note the emphasis on "U.S., U.K., major European continental civil law systems (France, Germany, Italy) and European Union law, and Japan," (id.) but my observation is that the words and phrasing also have a European flair.  Of course, this is unsurprising, given that all but one of the coauthors hail from European universities.  I note this without praise or criticism, but I mention it so others can assess its impact in their own teaching environments.

I recommend that those teaching in study abroad (or other courses focusing on comparative corporate law) review a copy of this book.  I will look forward to teaching from it the next time I need an international or comparative law teaching text for use in or outside the United States.

March 26, 2018 in Business Associations, Comparative Law, Corporate Finance, Corporate Governance, Corporations, International Business, International Law, Joan Heminway, Teaching | Permalink | Comments (0)

Thursday, December 21, 2017

Trump, Trade, and Human Rights

Earlier this week, President Trump gave his annual speech on national security. As in the past, he failed to stress human rights (unlike his predecessors) but did allude to cooperation, even with China and Russia, when warranted by geopolitical interests. Over the last several months, he has touted bilateral trade agreements. Coincidentally, my latest law review article on a potential bilateral investment treaty with Cuba came out the same day. As you may recall, Trump recently reversed some Obama-era policies on Cuba over human rights. My article may help his administration reconcile some of the apparent contradictions in his policies. The abstract is below. 

You Say Embargo, I Say Bloqueo—A Policy Recommendation for Promoting Foreign Direct Investment and Safeguarding Human Rights In Cuba

The United States is the only major industrialized nation that restricts
trade with Cuba. Although President Obama issued several executive orders
that have facilitated limited trade (and President Trump has scaled some
back), an embargo remains in place, and by law, Congress cannot lift it until,
among other things, the Cuban government commits to democratization and
human rights reform. Unfortunately, the Cuban and U.S. governments
fundamentally disagree on the definition of “human rights,” and neither side
has shown a willingness to compromise. Meanwhile, although some U.S.
investors clamor to join their European and Canadian counterparts in
expanding operations in Cuba, many have an understandable concern
regarding the rule of law and expropriation in a communist country. Bilateral
investment treaties aim to address those concerns.

After discussing the legal and political barriers to lifting the embargo, I
propose a partial solution to the stalemate on human rights, which will: (1)
facilitate foreign direct investment in Cuba; (2) protect investor interests
through a bilateral investment treaty; and (3) require an examination of
human rights impacts on the lives of Cuban citizens before investors can 
receive the protection of the treaty. 

Specifically, I recommend the inclusion of human rights clauses in bilateral 
investment treaties (BITs) and investor-state dispute mechanisms as a condition precedent 
to lifting the embargo. My solution also requires “clean hands” so that investors seeking relief must
provide proof that their business interests have not exacerbated or been
complicit in human rights abuses, rebut claims from stakeholders that their
business interests have not exacerbated or been complicit in human rights
abuses, or both. Finally, I propose revisions to the 2016 U.S. National Action
Plan on Responsible Business Conduct to incorporate human rights
requirements in future BITs and other investment vehicles going forward.

Anyone with connections to Rex Tillerson is free to pass it on. Happy Holidays to all.

 

December 21, 2017 in Current Affairs, Human Rights, International Business, International Law, Law Reviews, Marcia Narine Weldon | Permalink | Comments (0)

Wednesday, November 8, 2017

Martin: Hiding in the Light: The Misuse of Disclosure to Advance a Business and Human Rights Agenda

My friend and colleague at West Virginia University, Jena Martin, has posted her new paper, Hiding in the Light: The Misuse of Disclosure to Advance a Business and Human Rights Agenda. The paper is forthcoming in the Columbia Journal of Transnational Law and can be accessed at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3028826 

It's worth a read. Here's the abstract:

In June 2017, Waitrose, a top UK supermarket, pulled its cans of corned beef off the shelves after an investigation revealed that the meat might have been produced with slave labor. At the time of the recall, Waitrose was in compliance with the UK Modern Slavery Act (MSA), a 2015 law enacted to prevent human trafficking and modern-day slavery. Under the MSA, corporations are required to file annual reports disclosing what action they had taken to eradicate slavery and human trafficking in their supply chains. The Modern Slavery Act, in turn, was a much-lauded law that is part of the growing trend of States to move the international business and human rights agenda forward. A key component of that agenda involves disseminating the UN’s Protect, Respect and Remedy Framework and implementing the UN Guiding Principles, which have been praised by States around the world as a framing mechanism for issues of corporate accountability for negative human rights impacts in a corporation’s operations and relationships with its suppliers.

The aim of this article is to analyze whether the business and human rights agenda (as embodied by the Three Pillar Framework and UN Guiding Principles) is well served with national laws that focus on disclosure. The article will focus primarily on rules being implemented in the United States at both the subnational and national level, however, it will also discuss approaches being used in European jurisdictions such as the United Kingdom and France and the overall trend towards a transparency model for human rights protection from business activities. The increased use of disclosure-based regulation (and the resulting compliance efforts by corporations) seems to come, at least in part, as a result of the efforts by States to address the duties laid out for them in the UN Guiding Principles. As such, it seems appropriate to undertake an analysis regarding whether these laws are in fact effective at implementing the Guiding Principles.

For decades now, disclosure has been held out as the ultimate curative for every corporate woe. The expansion of disclosure initiatives from mere investment-related issues to increasingly social policy issues would indicate that this trend will continue. Yet as this article demonstrates, disclosure to right now is at best a temporary stop gap measure that can lead to limited corporate change on the issue of business and human rights. At worst, disclosure is being used by corporations as a way to obtain a reputational advantage without actually making substantive changes – by simply hiding in the light.

November 8, 2017 in Corporations, Ethics, International Business, International Law, Joshua P. Fershee | Permalink | Comments (2)

Wednesday, November 1, 2017

The Hypocritical US Vote on the Cuban Embargo and What It Means for US Businesses

Every year, the United Nations holds a symbolic but important vote on a resolution condemning the U.S. embargo against Cuba and every year the United States and Israel are the only two countries to vote against it. Last year, the United States abstained in accordance with the rapprochement that the Obama administration began in 2014. A few hours ago, the U.S. and Israel stood alone and voted once again against the UN resolution, while 192 other nations voted for it. Ambassador Haley explained that the vote demonstrated, “continued solidarity with the Cuban people and in the hope that they will one day be free to choose their own destiny.” Prior to the vote she announced to the General Assembly that "today, the crime is the Cuban government's continued repression of its people and failure to meet even the minimum requirements of a free and just society… The United States does not fear isolation in this chamber or anywhere else. Our principles are not up for a vote … We will stand for respect for human rights and fundamental freedoms that the member states of this body have pledged to protect, even if we have to stand alone." The United States is indeed isolated in its thinking. Furthermore, the vote and the embargo inflame tensions with allies in Latin America that the U.S. needs for the war on terror and drug smuggling.

I feel strongly about this issue having visited the island three times in the past two years to research business and human rights issues. I’ve sat on a panel with Cuban lawyers and judges in Havana to discuss the embargo.  I’ve attended countless seminars and meetings with lawyers and businesses who want to trade with Cuba. At the American Bar Association International Law Section meeting last week there were at least 6 sessions on Cuba. The world wonders why the United States places so much attention on this tiny island nation.  

A few minutes ago, I put my finishing touches on my third law review article on Cuba (I had to wait to add in the UN vote). I argue that if and when the U.S. lifts the embargo and considers a bilateral investment treaty, it should require human rights provisions as a condition precedent for investor-state dispute resolution. I will post more about the article when it’s finally published but here’s a sneak peek of an argument relevant to today’s UN vote and the United States’ purported concern about the lack of human rights in Cuba:

[P]rior to lifting the embargo, the United States needs to examine its own record on human rights and how it treats other violators, otherwise it will have no credibility with the Cuban government. The U.S. Congress demands human rights reform in Cuba but has not been consistent in its own business dealings with other authoritarian or socialist regimes. For example, although the U.S. Department of State has criticized Cuba’s human rights record, China, another communist country with a poor human rights record, is the United States’ third largest trading partner. The United States lifted its trade embargo with Communist Vietnam twenty years ago and major U.S. companies now operate there today even though the U.S. government has leveled some of the same human rights criticism against Vietnam as it has against Cuba. The communist government of Laos did not fare much better than Cuba in human rights states department reports, but the U.S. government actively promotes potential investment opportunities there. This inconsistency in approach to human rights violators diminishes the U.S. government’s integrity in negotiating with Cuba. Tellingly, in its 2017 World Report, Human Rights Watch, a respected NGO, warned of the dangers of the Trump Administration from a human rights perspective. This hardly puts the U.S. in a strong bargaining position with Cuba when discussing the conditions on lifting the embargo.

The Trump Administration still has not released its official changes to the trade rules that it announced in June. In the meantime, although it’s hardly easy to do business in Cuba or with the Cuban government, U.S. businesses now remain in limbo until the implementing rules come into force. To be clear, I do not condone the human rights violations that the Cuban government commits against its people. In my upcoming article, I propose mechanisms to prevent foreign investors from perpetuating violations themselves. However, these same businesses that cannot do business with Cuba have no problem doing business with Russia, China, or other regimes with oppressive human rights records. Perhaps the Trump administration has not read State Department and NGO reports on those countries, but I have. Today, the hypocrisy was once again on full display for the world community to see.  

November 1, 2017 in Corporate Personality, Corporations, CSR, Current Affairs, Human Rights, International Business, Marcia Narine Weldon | Permalink | Comments (1)

Thursday, October 19, 2017

Faculty Development Opportunity -- Business Innovation in Chile: A Case Study of the Wine Export Sector

If you're a fan of wine (I am) and international business if of interest (it is), this Faculty Development might be for you.  It overlaps with the AALS Annual Meeting, so it won't work for me this year, but it looks like a good program.  Have a look: 

Temple University’s Center for International Business Education and Research (CIBER) presents

Faculty Development in International Business: Santiago, Chile (January 5-11, 2018)

Business Innovation in Chile: A Case Study of the Wine Export Sector

Leave winter behind this January and join us for a summer experience in Chilean wine country. As an innovation-driven economy, the United States prides itself on developing and delivering innovative goods and services domestically and globally through high-tech exports, creative branding, and in-demand services. Among those exports is our growing wine sector, led by Napa Valley but recently expanding into other parts of California, Oregon, Virginia, and other lesser-known wine producing regions of the United States. Despite this expansion, the United States remains behind old world wine producers in Europe. Chile and Australia also outpace the United States in terms of wine exports and have been leading the way in innovative production and marketing techniques.

On this faculty/professional-oriented immersion experience, participants will visit a number of innovative businesses in the wine export sector and related industries in Chile to better understand how innovation in a highly-regulated sector can disrupt the traditional approaches taken by Old World producers in Europe and provide a comparative advantage for modern producers.

Some of the key learning outcomes on this immersion include:

  • An understanding of how innovation is utilized to drive growth in emerging markets;
  • A comparative perspective of an innovative sector active in the home and target market;
  • A better sense of the supply chain for a commodity such as wine and how innovation can accelerate movement along that supply chain and;
  • Tools that can be used to leverage enhancements in innovation for U.S. exporters.

The immersion experience is being led by Fox School of Business Assistant Professor, Dr. Kevin Fandl, a Latin America specialist with deep knowledge of the region. Dr. Fandl’s research emphasizes the relationship between law, policy, and business in global markets. He takes his extensive experience at senior levels of federal government policymaking to the marketplace by examining how laws and regulations drive or inhibit innovation and business opportunity. His knowledge of Chile, as well as the wine industry, add significant academic value to this immersion experience.

Program Fee: $2,700 per person (fee includes: hotel accommodations, corporate visits, cultural activities, some meals, visits to Chilean Vineyards, and in-country transportation)

Deposit:  A $500 non-refundable deposit is due at initial time of registration. Final payment will be due on October 27, 2017. To register: https://noncredit.temple.edu/templeciberfdib

Space is limited. A guest package is also available.

For questions or additional information, please contact Lauren Letko at lauren.letko@temple.edu

October 19, 2017 in Conferences, Food and Drink, International Business, International Law, Joshua P. Fershee, Travel | Permalink | Comments (0)

Thursday, August 10, 2017

University of Nebraska College of Law - Tenured/Chaired Position in International Trade and Finance

From an e-mail I received this week:

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The UNIVERSITY OF NEBRASKA COLLEGE OF LAW invites applications for lateral candidates for a tenured faculty position to hold the Clayton K. Yeutter Chair at the College of Law. This chaired faculty position will be one of four faculty members to form the core of the newly-formed, interdisciplinary Clayton K. Yeutter Institute for International Trade and Finance. The Institute also will include the Duane Acklie Chair at the College of Business, the Michael Yanney Chair at the College of Agriculture and Natural Resources, and the Haggart/Works Professorship for International Trade at the College of Law. The Yeutter Chair, along with the other three professors, will be expected to support the work and objectives and ensure the success of the Yeutter Institute. The Yeutter Chair will teach courses at the College of Law, including International Finance. Other courses may include Corporate Finance and/or other classes related to business and finance. More on the Yeutter Institute can be found at http://news.unl.edu/free-tags/clayton-k-yeutter-institute-of-international-trade-and-finance/.

Minimum Required Qualifications: J.D Degree or Equivalent; Superior Academic Record; Outstanding Record of Scholarship in International Finance and/or other areas related to international business; and Receipt of Tenure at an Accredited Law School. General information about the Law College is available at http://law.unl.edu/. Please fill out the University application, which can be found at https://employment.unl.edu/postings/51633, and upload a CV, a cover letter, and a list of references. The University of Nebraska-Lincoln is committed to a pluralistic campus community through affirmative action, equal opportunity, work-life balance, and dual careers. See http://www.unl.edu/equity/notice-nondiscrimination. Review of applications will begin on September 15, 2017 and continue until the position is filled. If you have questions, please contact Associate Dean Eric Berger or Professor Matt Schaefer at lawappointments@unl.edu.

August 10, 2017 in Financial Markets, Haskell Murray, International Business, International Law, Jobs, Law School | Permalink | Comments (0)

Monday, August 7, 2017

University of Akron School of Law International Law Faculty Position

The following comes from the University of Akron School of Law:

The University of Akron School of Law anticipates hiring a tenure-track or tenured faculty member with a focus in the area of international and comparative law to begin teaching in Fall 2018.  We seek a candidate demonstrating general international law expertise with a preference for private international law, including but not limited to international business transactions, international trade, and/or international commercial arbitration.  Both entry-level and lateral candidates are encouraged to apply.  The appointment may include opportunities for administrative leadership overseeing study abroad programs, programs for foreign lawyers, and other international programs.  The committee is interested in candidates with scholarly distinction or great promise as demonstrated by strong early scholarship and a thoughtful agenda for future work, as well as a commitment to excellence in teaching.

The University of Akron School of Law is a public, mid-size law school of approximately 500 students located in the Akron/Cleveland metropolitan area.  With a new building, a new dean, and strong enrollments, Akron Law provides an energized community and faculty environment.  The School of Law has a strong tradition of teaching and offers students low tuition, a commitment to student success, strong job placement, award-winning clinical programs, a national trial team program, and unique mentorship with the local and regional bars.  It has research centers in Intellectual Property, Constitutional Law, and Professional Responsibility.  Akron Law has recently enhanced its international initiatives including new collaborative relationships with universities in Asia, an accelerated juris doctor program for international students, visiting international scholars, and a four-week, three-city, two-country study abroad program in Japan and South Korea.  In addition, the larger University has been expanding international initiatives and programming.  The University of Akron is a public research university of 25,000 students, with a national reputation in polymer science, engineering, and business in addition to law.  It is centered in Akron, Ohio, a city with a population of 200,000, known for its low cost of living and high quality of life, its surrounding natural beauty including the Cuyahoga Valley National Park, its history of industrial innovation, and its multitude of cultural, artistic, athletic, and recreational opportunities.

Continue reading

August 7, 2017 in International Business, International Law, Jobs, Stefan J. Padfield | Permalink | Comments (0)

Thursday, February 9, 2017

What do we know about the future of corporate governance and compliance so far under Trump?

Shortly after the election in November, I blogged about Eleven Corporate Governance and Compliance Questions for the President-Elect. Those questions (in italics) and my updates are below:

  1. What will happen to Dodd-Frank? There are already a number of house bills pending to repeal parts of Dodd-Frank, but will President Trump actually try to repeal all of it, particularly the Dodd-Frank whistleblower rule? How would that look optically? Former SEC Commissioner Paul Atkins, a prominent critic of Dodd-Frank and the whistleblower program in particular, is part of Trump's transition team on economic issues, so perhaps a revision, at a minimum, may not be out of the question.

Last week, via Executive Order, President Trump made it clear (without naming the law) that portions of Dodd-Frank are on the chopping block and asked for a 120-day review. Prior to signing the order, the President explained, “We expect to be cutting a lot out of Dodd-Frank…I have so many people, friends of mine, with nice businesses, they can’t borrow money, because the banks just won’t let them borrow because of the rules and regulations and Dodd-Frank.” An executive order cannot repeal Dodd-Frank, however. That would require a vote of 60 votes in the Senate. To repeal or modify portions, the Senate only requires a majority vote.

Some portions of Dodd-Frank are already gone including the transparency provision, §1504, which NGOs had touted because it forced US issuers in the extractive industries to disclose certain payments made to foreign governments. I think this was a mistake. By the time you read this post, the controversial conflict minerals rule, which requires companies to determine and disclose whether tin, tungsten, tantalum, or gold come from the Democratic Republic of Congo or surrounding countries, may also be history. The President may issue another executive order this week that may spell the demise of the rule, especially because others in Congress have already introduced bills to repeal it. I agree with the repeal, as I have written about here, because I don’t think that the SEC is the right agency to address the devastating human rights crisis in Congo.

As for the whistleblower provisions, it is too soon to tell. See #7 below.

Based on an earlier Executive Order meant to cut regulations in general and the President’s reliance on corporate raider/activist Carl Icahn as regulation czar, we can assume that the financial sector will experience fewer and not more regulations under Trump.

  1. What will happen with the two SEC commissioner vacancies? How will this president and Congress fund the agency? 3. Will SEC Chair Mary Jo White stay or go and how might that affect the work of the agency to look at disclosure reform?

President Trump has nominated Jay Clayton, a lawyer who has represented Goldman Sachs and Alibaba to replace former prosecutor Mary Jo White. Based on his background and past representations, we may see less enforcement of the FCPA and more focus on capital formation and disclosure reform. Observers are divided on the FCPA enforcement because 2016 had some record-breaking fines. As for the other SEC vacancies, I will continue to monitor this.

  1. How will the vow to freeze the federal workforce affect OSHA, which enforces Sarbanes-Oxley? 

The Department of Labor enforces OSHA, and the current nominee for Secretary, Andy Pudzer, is a fast food CEO with some labor issues of his own. His pro-business stance and his opposition to increases in the minimum wage and the DOL white-collar exemption changes don’t necessarily predict how he would enforce SOX, but we can assume that it won’t be as much of a priority as rolling back regulations he has already publicly opposed.

  1. In addition to the issues that Trump has with TPP and NAFTA, how will his administration and the Congress deal with the Export-Import (Ex-IM) bank, which cannot function properly as it is due to resistance from some in Congress. Ex-Im provides financing, export credit insurance, loans, and other products to companies (including many small businesses) that wish to do business in politically-risky countries. 

The U.S. has pulled out of TPP. Trump has not specifically commented on Ex-Im, but many believe that prospects don't look good.

  1. How will a more conservative Supreme Court deal with the business cases that will appear before it? 

I will comment on this after the confirmation hearings of nominee Neil Gorsuch. Others have already predicted that he will be pro-business.

  1. Who will be the Attorney General and how might that affect criminal prosecution of companies and individuals? Should we expect a new memo or revision of policies for Assistant US Attorneys that might undo some of the work of the Yates Memo, which focuses on corporate cooperation and culpable individuals?

Senator Jeff Sessions was confirmed yesterday after a contentious hearing. During his hearing, he indicated that he supported whistleblower provisions related to the False Claims Act, and many believe that he will retain retain the Yates Memo. Ironically, prior to that confirmation, President Trump fired Acting Attorney General Sally Yates, for refusing to defend the President’s executive order on refugees and travel.

  1. What will happen with the Consumer Financial Protection Bureau, which the DC Circuit recently ruled was unconstitutional in terms of its structure and power?

Despite, running on a populist theme, Trump has targeted a number of institutions meant to protect consumers. Based on reports, we will likely see some major restrictions on the Consumer Financial Protection Bureau and the rules related to disclosure and interest rates. Trump will likely replace the head, Richard Cordray, whom many criticize for his perceived unfettered power and the ability to set his own budget. The Financial Stability Oversight Council, established to address large, failing firms without the need for a bailout, is also at risk. The Volker Rule, which restricts banks from certain proprietary investments and limits ownership of covered funds, may also see revisions.

  1. What will happen with the Obama administration's executive orders on Cuba, which have chipped away at much of the embargo? The business community has lobbied hard on ending the embargo and eliminating restrictions, but Trump has pledged to require more from the Cuban government. Would he also cancel the executive orders as well?

I will comment on this in a separate post.

  1. What happens to the Public Company Accounting Board, which has had an interim director for several months?

The PCAOB is not directly covered by the February 3rd Executive Order described in #1, and many believe that the Executive Order related to paring back regulations will not affect the agency either, although the agency is already conducting its own review of regulations. In December, the agency received a budget increase.

  1. Jeb Henserling, who has adamantly opposed Ex-Im, the CFPB, and Dodd-Frank is under consideration for Treasury Secretary. What does this say about President-elect Trump's economic vision?

President Trump has tapped ex-Goldman Sachs veteran Steve Mnuchin, and some believe that he will be good for both Wall Street and Main Street. More to come on this in the future.

I will continue to update this list over the coming months. I will post separately today updating last week’s post on the effects of consumer boycotts and how public sentiment has affected Superbowl commercials, litigation, and the First Daughter all in the past few days.

February 9, 2017 in Compliance, Corporate Governance, Corporations, Current Affairs, Financial Markets, Human Rights, International Business, Legislation, Marcia Narine Weldon, Securities Regulation | Permalink | Comments (0)

Friday, January 13, 2017

Controlling Corruption: Possibilities, Practical Suggestions & Best Practices

On Friday, I will present as part of the American Society of International Law’s two-day conference entitled Controlling Corruption: Possibilities, Practical Suggestions & Best Practices. The ASIL Conference is co-sponsored by the University of Miami School of Business Administration, the Business Ethics Program of the University of Miami School of Business Administration, UM Ethics Programs & the Arsht Initiatives, the Zicklin Center for Business Ethics Research, Wharton, University of Pennsylvania, Bentley University, and University of Richmond School of Law.

I am particularly excited for this conference because it brings law, business, and ethics professors together with practitioners from around the world. My panel includes:

Marcia Narine Weldon, St. Thomas University School of Law, “The Conflicted Gatekeeper: The Changing Role of In-House Counsel and Compliance Officers in the Age of Whistle Blowing and Anticorruption Compliance”

Todd Haugh, Kelley School of Business, Indiana University, “The Ethics of Intercorporate Behavioral Ethics”

Shirleen Chin, Institute for Environmental Security, Netherlands, “Reducing the Size of the Loopholes Caused by the Veil of Incorporation May lead to Better Transparency”

Edwin Broecker, Quarles &Brady LLP, Indiana,& Fernanda Beraldi Cummins, Inc, Indiana, “No Good Deed Goes Unpunished: Possible Unintended Consequences of Enforcing Supply Chain Transparency”

Stuart Deming, Deming PLLC, Michigan, “Internal Controls and Compliance Programs”

John W. Fanning, Kroll Compliance, “Lessons from ‘Sully’: Parallels of Flight 1549 and the Path to Compliance and Organizational Excellence”

I will discuss some of the same themes that I blogged about here last July related to how the Department of Justice Yates Memo (requiring companies to turn over culpable individuals in order to get cooperation credit) and to a lesser extent the SEC Dodd-Frank Whistleblower program may alter the delicate balance of trust in the attorney-client relationship. Additionally, I will address how President-elect Trump’s nomination of Jay Clayton may change the SEC’s FCPA enforcement priorities from pursuing companies to pursuing individuals, and how that will change corporate investigations. If you’re in Miami on Friday the 13th and Saturday the 14th, please consider attending the conference.

January 13, 2017 in Behavioral Economics, Compliance, Conferences, Corporate Governance, Corporations, Current Affairs, Ethics, International Business, Marcia Narine Weldon, Securities Regulation | Permalink | Comments (0)

Thursday, December 15, 2016

What happens when a company is as powerful as a country?

This post is not about politics, although it does concern President-elect Trump's cabinet pick, ExxonMobil head, Rex Tillerson. I first learned about Tillerson during some research on business and human rights in the extractive industries in 2012. I read the excellent book, "Private Empire" by Pultizer-prize winner Steve Coll to get insight into what I believe is the most powerful company in the world.

Although Coll spent most of his time talking about Tillerson's predecessor, Lee Raymond, the book did a great job of describing the company's world view on climate change, litigation tactics, and diplomatic relations. Coll writes, “Exxon’s far flung interests were at times distinct from Washington’s.” The CEO “did not manage the corporation as a subordinate instrument of American foreign policy; his was a private empire.” Raymond even boasted, “I am not a U.S. company and I don’t make decisions based on what’s good for the U.S.” Indeed, the book describes how ExxonMobil navigated through Indonesian guerilla warfare, dealt with kleptocrats in Africa, and deftly negotiated with Vladmir Putin and Hugo Chavez. 

Before I read the book, I knew that big business was powerful--after all I used to work for a Fortune 500 company. But Coll's work described a company that was in some instances more influential to world leaders than the UN, the US State Department, or the World Bank. I don't know if Trump has read the book, but no doubt he knows about the reach of Tillerson's power. I won't comment about whether this pick is good for the country. I will say that this choice is not outrageous or even surprising given Trump's stated view of what he wants for America. The key will be for Tillerson, if he's confirmed, to use the skills he has honed working for ExxonMobil for the country. 

If you have time after grading for a really good read (it's a fast 700 pages), pick up the book. Coll's view on the Tillerson nomination is available here.

December 15, 2016 in Books, Corporations, Current Affairs, Human Rights, International Business, Marcia Narine Weldon | Permalink | Comments (0)

Monday, November 7, 2016

Stock Market Politics

As we gear up for the final show down and hopefully the end of the 2016 election (please, please, please let it end) I write today about the relationship between the markets and politics.  It is apparently THE business angle in the news cycle this week. This is an admitted punt on substantive work and am instead providing you with a host of hyperlinks to nervously check and re-check in between nervously checking and re-checking polling estimates and vote counts.  Please note, I am passing along a compilation of articles, a list that I have not editted to reflect a certain viewpoint.

Historical Accounts of the Relationship between politics and the markets

Call Levels, History of Past Presidential Elections and Their Effect On Stock Market

Merrill Lynch, How Presidential Elections Affect the Markets

ABC, History on how presidential elections affect stock markets

Predictions regarding market reactions to the outcome of the 2016 election

Forbes, Trump Vs. Clinton: How Will The Stock Market React To The Election?

CNBC, Wall Street reacts: Here's what the markets will do after the election  

The Street, If Hillary Clinton Is Elected President, Here's What Will Happen to the U.S. Economy

Market Watch, Here are all possible election outcomes -- and how markets will react

Telegraph, US election 2016: this is the global market turmoil that would be triggered by a Donald Trump victory

The Guardian, Wall Street surges and FTSE 100 posts biggest rise since September ahead of US election – business live

Fortune, Citigroup: Stock Market Will Fall if Donald Trump Is Elected President

 

-Anne Tucker

November 7, 2016 in Anne Tucker, Current Affairs, Financial Markets, International Business | Permalink | Comments (0)

Friday, October 21, 2016

Legal Issues for Startups and Small Businesses

Sadly, I am still in the midst of grading business associations and civil procedure midterms so I cannot finish my substantive post on Wells Fargo yet. WF is the gift that keeps on giving from a teaching perspective, though. Yesterday I showed students some of the litigation that has come out of the debacle to illustrate the difference between a direct and derivative suit (and to reinforce some civil procedure principles too).

Last night I took a break from grading to go to a Meetup called Ask a Start Up Lawyer. I hope to teach a 2-credit skills course on legal issues for startups, small businesses, and entrepreneurs next semester and I have found that going to these sessions and listening to actual entrepreneurs ask their questions helpful. Last night's meetup was partcularly enlightening because a number of international entrepreneurs here in Miami for a State Department initiative attended. While in the past some of these sessions have focused on funding options and entity selection, last night's "students" mainly wanted to learn about intellectual property and international protection. Many of them come from countries with no copyright law, for example. Others come from countries where owning shares is a rarity. Although my course will focus on domestic entities, given the South Florida market in which I teach, I may need to add some of these comparative components to my already ambitious draft syllabus covering tax, employment, entity selection, governance, IP, business torts, basic securities regulation, social entrepreneurship, and exit strategies. 

If you have taught a course like this or have any ideas on materials to use, please comment below or send me a message at mnarine@stu.edu. 

October 21, 2016 in Intellectual Property, International Business, Lawyering, Marcia Narine Weldon, Teaching | Permalink | Comments (3)

Wednesday, October 12, 2016

University of Nebraska College of Law - Chair in International Trade and Finance

Job posting from an e-mail I recently received:

--------------------

The UNIVERSITY OF NEBRASKA COLLEGE OF LAW invites applications for

lateral candidates for a tenured faculty position to hold the Clayton K. Yeutter Chair at

the College of Law. This chaired faculty position will be one of four faculty members to

form the core of the newly-formed, interdisciplinary Clayton K. Yeutter Institute for

International Trade and Finance. The Institute also will include the Duane Acklie Chair at

the College of Business Associations, the Michael Yanney Chair at the College of

Agricultural Sciences, and the Haggart/Works Professorship for International Trade at the

College of Law. The Yeutter Chair, along with the other three professors, will be

expected to support the work and objectives and ensure the success of the Yeutter

Institute. The Yeutter Chair will teach courses at the College of Law, including

International Finance. Other courses may include Corporate Finance and/or other related

classes pertaining to issues arising in international business and finance. More on the

Yeutter Institute can be found at http://news.unl.edu/newsrooms/today/article/giftsestablish-

endowed-chairs-for-yeutter-institute/ .

 

Minimum Required Qualifications: J.D Degree or Equivalent; Superior Academic

Record; Outstanding Record of Scholarship in International Finance and/or other areas

related to international business; and Receipt of Tenure at an Accredited Law School.

General information about the Law College is available at http://law.unl.edu/. Please fill

out the University application, which can be found at

https://employment.unl.edu/postings/51633, and upload a CV, a cover letter, and a list of

references. The University of Nebraska-Lincoln is committed to a pluralistic campus

community through affirmative action, equal opportunity, work-life balance, and dual

careers. See http://www.unl.edu/equity/notice-nondiscrimination. Review of applications

will begin on November 5, 2016 and continue until the position is filled. If you have

questions, please contact Associate Dean Eric Berger, Chair, Faculty Appointments

Committee, University of Nebraska College of Law, Lincoln, NE 68583-0902, or send an

email to lawappointments@unl.edu.

 

October 12, 2016 in Financial Markets, Haskell Murray, International Business, International Law, Jobs, Law School | Permalink | Comments (0)

Monday, September 26, 2016

Diversity & Herstory in the Boardroom

Fresh from the presidential debate,** I find myself writing about board room diversity.*** Over the 2016 summer, SEC Chairwoman Mary Jo White signaled intent to revisit diversity in U.S. boardrooms.  In 2009 the SEC adopted a diversity disclosure rule requiring companies to disclose how their nominating committees considered diversity and whether the company had a diversity policy. The full rule can be viewed here.  The SEC did not define (nor did it mandate a singular definition of ) diversity, and companies have been left to define diversity individually, often without regard to gender, ethnic, racial or religious identities.  The result, criticized by Chairwoman White,  has been vague disclosures without apparent impact. 

SEC diversity rule making (past and future) was the backdrop for a recent corporate governance seminar class where I asked students:  Why should they care about board room diversity? And if the 2009 disclosure rule changes, how should it change? How do other countries approach the issue of boardroom diversity?  Can it be a mandated or legislated endeavor?  To guide our discussion we read  Aaron A Dhir's brilliant and thorough: Challenging Boardroom Homogeneity: Corporate Law, Governance and Diversity and consulted Catalyst.org to understand the panoply of diversity choices from other jurisdictions.  

Dhir's Challenging Boardroom Homogeneity was a helpful and powerful book, equipping students with facts and language to think about and discuss diversity.  Dhir engaged in a qualitative, interview-based methodology to investigate, and ultimately compare the Norwegian quota system with the U.S. diversity disclosure experience.  While noting the costs and the translation problems from Norway to the world writ-large, Dhir interpreted his results as follows: 

"female directors, present in substantial numbers, may enhance the level of cognitive diversity and constructive conflict in the boardroom.  They are more apt to critically analyze, test and challenge received wisdom.  In doing so, they appear to have harnessed for their boards the value of dissent, a key driver of effective governance."

In focusing on the U.S. experience, however, Dhir found that U.S. firms defined diversity in terms of experience not identity, and that this initiative fell short of the goal of encouraging or promoting boardroom diversity.  Dhir recommended that the SEC  define diversity as containing socio-demographic  components and encourage companies to incorporate such considerations in governance by imposing a comply or explain regime in the U.S.  While some have lamented that the SEC's primary challenge is how to define what diversity means, Dhir, through his research and analysis has a pretty good staring point.  Should someone send Chairwoman White a copy of this book? 

More than even the careful methodology, the refreshing comparative perspective and thoughtful recommendations tied to data and observable trends, the book provides a common language to explain the phenomenon of why diversity, as an initiative, is even necessary in the first place. Chapter two engages with a nuanced set of issues, irrefutable fact and explanations of bias--implicit and explicit.  Here I think, more so than even other parts of the book, students connected with the materials linking language to real experiences and observations in their own lives. The attack on the pool problem critique (there aren't enough qualified women and it variant:  we hired the most qualified candidate from our pool) alone warrants my effusive praise for its persuasive presentation and ability to generate thoughtful student debate.

-Anne Tucker

**The debate wasn't the impetus, rather writing this post is just an exercise in settling my nerves before trying to sleep.  

***I have previously written about gender-diversity issues (classroom and boardroom) on the blog here and here.  

September 26, 2016 in Anne Tucker, Compliance, Corporate Governance, Corporations, International Business, Securities Regulation | Permalink | Comments (1)

Thursday, September 22, 2016

What Do Donald Trump, Hillary Clinton, and 220 Law Professors Have in Common?

Lately, I’ve been researching the twelve nation Trans-Pacific Partnership Treaty (“TPP”) because I am looking at investor-state dispute settlements (ISDS) in my work in progress proposing a model bilateral investment treaty between the U.S. and Cuba.

The TPP, which both Trump and Clinton oppose, has the support of U.S. business. Although President Obama has pushed the treaty as part of his legacy, just this morning, Vice-President Biden added his pessimistic views about its passage. More interestingly, over 220 law and economics academics, led by Harvard’s Laurence Tribe, have come out publicly to oppose TPP, stating:

ISDS grants foreign corporations and investors a special legal privilege: the right to initiate dispute settlement proceedings against a government for actions that allegedly violate loosely defined investor rights to seek damages from taxpayers for the corporation’s lost profits. Essentially, corporations and investors use ISDS to challenge government policies, actions, or decisions that they allege reduce the value of their investments... Through ISDS, the federal government gives foreign investors – and foreign investors alone – the ability to bypass th[e] robust, nuanced, and democratically responsive legal framework. Foreign investors are able to frame questions of domestic constitutional and administrative law as treaty claims, and take those claims to a panel of private international arbitrators, circumventing local, state or federal domestic administrative bodies and courts. Freed from fundamental rules of domestic procedural and substantive law that would have otherwise governed their lawsuits against the government, foreign corporations can succeed in lawsuits before ISDS tribunals even when domestic law would have clearly led to the rejection of those companies’ claims. Corporations are even able to re-litigate cases they have already lost in domestic courts. It is ISDS arbitrators, not domestic courts, who are ultimately able to determine the bounds of proper administrative, legislative, and judicial conduct… This system undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law.

Senator Warren, who also opposes TPP has argued, "“ISDS allows a small group of ultra-rich investors to extract billions of dollars from taxpayers while they undermine financial, environmental and public health rules across the world.”  I look forward to the upcoming debates to see whether either Trump, who has labeled the proposal the “rape of our country,”  or Clinton, who previously supported the deal, will cite the academics' letter as additional reason to oppose TPP. 

September 22, 2016 in Constitutional Law, Corporations, Current Affairs, International Business, International Law, Marcia Narine Weldon | Permalink | Comments (1)

Thursday, September 8, 2016

Guest Post from William J. Magnuson of Texas A&M University School of Law

Many thanks to the Business Law Prof Blog for giving me the opportunity to post here.

I’d like to start off with a brief observation: corporations are more international than they have ever been.  Just in the last week, we have witnessed the European Commission ordering Apple to pay $14 billion in back taxes to Ireland, Samsung recalling its Galaxy Note phones from 10 countries due to battery fires in the devices, and Caterpillar announcing a global restructuring that could lead to the closing of its factory in Belgium in favor of a location in Grenoble, France.

While the globalization of international business today benefits society in a number of ways, it also has costs.  One of these costs is the increasing difficulty of regulating globalized companies.  When companies can easily restructure and relocate in order to avoid burdensome regulation, government regulators face a stark choice: they can pursue their policy priorities and risk causing companies to flee their jurisdiction (see the inversion craze of the last few years), or they can abandon those priorities in the hopes of attracting and retaining corporate business.  Neither of these is a particularly attractive option.

International cooperation provides one resolution to this dilemma.  By binding countries to particular regulatory frameworks, multilateral agreements can prevent the kind of “race to the bottom” dynamic that government regulators fear.  And indeed, a growing number of scholars have argued that international agreements are necessary to solve the regulatory problems associated with the internationalization of business.  But multilateralism suffers from a number of well-known flaws, including the difficulty of negotiating, monitoring and enforcing international agreements. 

In my forthcoming article, Unilateral Corporate Regulation, due out next semester in the Chicago Journal of International Law, I argue that the emphasis on multilateral solutions obscures the extent to which individual countries, and in particular large economic powers like the United States, China and the European Union, can unilaterally impose their domestic regulations on international firms.  This kind of unilateral corporate regulation can solve, or at least mitigate, many of the global problems that government decisionmakers face.  The United States, for example, imposes its corruption norms (the FCPA) and banking rules (FATCA) on foreign companies, even when those companies have minimal ties to the US.  The European Union does the same with its data privacy rules. 

At the same time, the rise of unilateralism raises a number of important questions for the future of corporate regulation.  How can we ensure that unilateral regulation by individual countries is fair and balanced?  How can we prevent biased and conflicting regulation from sprouting up around the world?  And what are the ethical limits on a country’s imposing its laws on businesses outside its borders?  These are difficult questions, and ones that are largely overlooked in the current debate.

September 8, 2016 in International Business | Permalink | Comments (0)

Thursday, June 23, 2016

The Cuba Conundrum: Corporate Governance and Compliance Challenges for U.S. Publicly-Traded Companies

My latest article on Cuba and the US is out. Here I explore corporate governance and compliance issues for US companies. In May, I made my third trip to Cuba in a year to do further research on rule of law and investor concerns for my current work in progress.

In the meantime, please feel free to email me your comments or thoughts at mnarine@stu.edu on my latest piece
Download Here

The abstract is below:

The list of companies exploring business opportunities in Cuba reads like a who’s who of household names- Starwood Hotels, Netflix, Jet Blue, Carnival, Google, and AirBnB are either conducting business or have publicly announced plans to do so now that the Obama administration has normalized relations with Cuba. The 1962 embargo and the 1996 Helm-Burton Act remain in place, but companies are preparing for or have already been taking advantage of the new legal exemptions that ban business with Cuba. Many firms, however, may not be focusing on the corporate governance and compliance challenges of doing business in Cuba. This Essay will briefly discuss the pitfalls related to doing business with state-owned enterprises like those in Cuba; the particular complexity of doing business in Cuba; and the challenges of complying with US anti-bribery and whistleblower laws in the totalitarian country. I will also raise the possibility that Cuba will return to a state of corporatism and the potential impact that could have on compliance and governance programs. I conclude that board members have a fiduciary duty to ensure that their companies comply with existing US law despite these challenges and recommend a code of conduct that can be used for Cuba or any emerging markets which may pose similar difficulties.

June 23, 2016 in Comparative Law, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Human Rights, International Business, Law Reviews, Marcia Narine Weldon, Research/Scholarhip | Permalink | Comments (0)

Tuesday, May 31, 2016

Energy Policy: Trump Won't Let Facts Get in the Way of A Good Sound Bite

Donald Trump was in my home state of West Virginia recently, and he promised to bring back coal jobs: 

And West Virginia. And we’re going to get those miners back to work. I’ll tell you what. We’re going to get those miners back to work . . . 

Let me tell you, the miners in West Virginia and Pennsylvania which was so great to me last week and Ohio and all over, they’re going to start to work again. Believe me. You’re going to be proud again to be miners.

How he plans to do this is not clear, but part of it will be to attack the EPA's Clean Power Plan.  Okay, but that's a relatively recent development, and was certainly not the cause of the decline in coal production since the last production peak in 2008. The primary cause: cheap and abundant natural gas from horizontal drilling and hydraulic fracturing. 

In my former home state of North Dakota, Trump was telling voters he would rescind President Obama’s climate change rules and work to make the Keystone XL pipeline a reality to ship petroleum from Canada’s oil sands to the U.S. Gulf Coast refineries.  Further, Trump has stated that he would relax regulations that limit coal leases on federal lands and reduce hydraulic fracturing regulations on federal lands.  

It appears, then, that his plan to support the coal, oil, and natural gas industries will be to lower costs.  That should increase supply, right?  The problem for each industry, though, is that excess supply has lowered prices so much that all three areas are cutting back on activity (and jobs). Reducing governmental restrictions would lower costs even more, which is not likely to increase jobs or production in the current climate. Any such change might increase margins for existing activities, but it would not likely incentivize a change in behavior that would lead toward the state goals of increased employment. As the Financial Times recently explained:

One of the factors behind that [oil market] collapse was Saudi Arabia’s strategy of continuing to produce at high levels above 10m barrels per day, rather than cutting output to ease the glut of oil. 

More oil (or gas or coal) equals lower prices.  Lower taxes and regulations equals lower cost of exploration and production, which leads to? More oil (or gas or coal) and lower prices.  Even worse, low prices tend to encourage automation, which is particularly not good for jobs. 

One can debate whether there is value in reducing these kinds of regulations, but one needs to explain how greater supply and lower prices is going to help any of these industries in the way the policies are purporting to (or another justification is needed). But then, Trump has not explained how he intends to implement any of his promises or how any of his proposals would work.  

Newsflash: Just saying something, no matter how confidently and assertively it is said, doesn't make it true. I sure hope a majority of voters recognize this come November.   

May 31, 2016 in Current Affairs, International Business, Joshua P. Fershee, Law and Economics | Permalink | Comments (0)