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Transnational Business Governance Interactions, Regulatory Quality And Marginalized Actors: An Introduction, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott Apr 2019

Transnational Business Governance Interactions, Regulatory Quality And Marginalized Actors: An Introduction, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott

Faculty Publications

In what circumstances can transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—be harnessed to enhance the quality of transnational regulation and advance the interests of marginalized actors? This chapter introduces the concept of transnational business governance interactions (TBGIs), summarizes the TBGI analytical framework and defines regulatory quality and marginalized actors. It proposes to investigate the relationship between TBGIs, regulatory quality and marginalized actors at three levels: regulatory capacities, outputs and outcomes. The chapter presents the plan of the book and summarizes the ...


Harnessing Tbgis For Regulatory Quality And Marginalized Actors, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott Apr 2019

Harnessing Tbgis For Regulatory Quality And Marginalized Actors, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott

Faculty Publications

The chapters of this book paint a mixed and not particularly optimistic picture of the prospects for harnessing transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—to improve the quality of transnational regulation and advance marginalized interests. This chapter synthesizes key findings about the impact of TBGIs of regulatory quality and marginalized actors, explores the implications of these findings for identifying and shaping TBGIs that foster regulatory quality or advance marginalized interests, and presents concluding reflections on lessons learned and future research directions.


Say On Purpose: Lessons From Chinese Corporate Charters, Li-Wen Lin Mar 2019

Say On Purpose: Lessons From Chinese Corporate Charters, Li-Wen Lin

Faculty Publications

No abstract provided.


Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin Mar 2019

Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin

Faculty Publications

Corporate social responsibility (CSR) is often understood as voluntary corporate behavior beyond legal compliance. The recent emergence of CSR legislation is challenging this typical understanding. A number of countries including China, Indonesia and India have expressly stated in corporate law that companies shall undertake CSR. The CSR law is controversial. Critics of CSR see the law as an unwise effort to challenge profit maximization as the only social responsibility of the corporation. Even CSR advocates welcome the CSR law with great caution. Given the vague statutory language of CSR, the practical application of the law places high demands on the ...


Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin Mar 2019

Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin

Faculty Publications

No abstract provided.


Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Janis P. Sarra, Cynthia Williams Jan 2019

Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Janis P. Sarra, Cynthia Williams

Faculty Publications

While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this study addresses two critically important issues: fiduciary obligation of corporate- and pension-fiduciaries, and national action on environmental, social and governance (“ESG”) financial disclosure, including climate-related financial risk disclosure. The Canadian economy is facing significant challenges and disruptions in the transition to a lower carbon world. Absent clear and innovative steps to ensure our corporations and financial institutions act to address carbon emissions and other environmental, social and governance risks and opportunities, we will be seriously prejudiced in a world that is rapidly moving ...


Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra Oct 2017

Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra

Faculty Publications

Fiduciary obligation, under both corporate law and the common law, requires directors and officers to identify and address climate-related financial and other risks. In fulfilling their obligations to act in the best interests of the company, directors and officers must directly engage with developments in knowledge regarding physical and transition risks related to climate change and how these risks may impact their corporation. Depending on the firm’s economic activities, the risk may be minor or highly significant, but directors and officers have an obligation to make the inquiries, to devise strategies to address risks, and to have an ongoing ...


The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty Jan 2017

The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty

Faculty Publications

Although the past few decades have seen numerous cases of human rights violations within corporate supply chains, companies are frequently not held accountable for the abuses because there is a significant governance gap in the regulation of corporate activity abroad. In response, governments have begun to pass mandatory disclosure laws that require companies to release detailed information on their supply chains in the hopes that these laws will create pressure that will improve corporate accountability. In this paper, we argue that supply chain disclosure regimes are unlikely to have a large effect on consumer behavior, and as a result, their ...


A Critical Canadian Perspective On The Benefit Corporation, Carol Liao Jan 2017

A Critical Canadian Perspective On The Benefit Corporation, Carol Liao

Faculty Publications

There has been much fanfare surrounding the possible implementation of a legal model of social enterprise similar to the American benefit corporation in Canada. This article points out that some of the fundamental legal characteristics of the benefit corporation are already reflected in existing Canadian corporate laws, and in some instances Canadian laws are comparatively more progressive. Directors owe fiduciary duties to the best interests of the corporation, and minority protections such as the oppression remedy oblige directors to consider non-shareholder stakeholders. Landmark judgments from Canada’s highest court have affirmed the board requirement to consider stakeholder interests, and that ...


Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison Jan 2017

Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison

Faculty Publications

Despite the economic integration of the several states and the broad regulatory authority of the federal government, the internal affairs of business corporations remain primarily governed by state law. The origins of this system are closely tied to the decentralized history of the United States, but the reasons for its continued persistence—in the face of significant federalization pressures—are not obvious. Indeed, federalization of corporate law was a major political goal during the Progressive Era, a period which witnessed significant expansion of federal involvement in the national economy. By examining the historical record of Progressive Era policy debates, this ...


Micro, Small And Medium Enterprise (Msme) Insolvency In Canada, Janis P. Sarra Mar 2016

Micro, Small And Medium Enterprise (Msme) Insolvency In Canada, Janis P. Sarra

Faculty Publications

Insolvency law is broadly recognized as an essential tool in well-functioning economies. A balance of mechanisms that allow for timely and effective liquidation, but also for a “fresh start” for individual entrepreneurs and the rehabilitation of viable businesses, tends to enhance creditor recoveries and lender confidence. This study examines the treatment of micro, small and medium enterprises (“MSME”) under the Canada Bankruptcy and Insolvency Act. It undertakes a qualitative examination of 200 business insolvencies in 2015, in order to try to understand the reasons for insolvency, types of debt, and outcomes of proceedings. The study reports on the results of ...


The Modern Corporation Statement On Company Law: Summary: Fundamental Rules Of Corporate Law, Lynn Stout Et Al., Carol Liao Jan 2016

The Modern Corporation Statement On Company Law: Summary: Fundamental Rules Of Corporate Law, Lynn Stout Et Al., Carol Liao

Faculty Publications

Corporations play a central role in modern economies. Certain beliefs about corporations and corporate law are widely held and relied upon by business experts, the financial press, and economists who study the firm. Unfortunately, some of these widely-held beliefs are mistaken. This has led to numerous common errors in the way corporate law concepts are understood and applied. The authors of this Summary are experts versed in a variety of national legal systems, including those of the U.S. and U.K. as well as the E.U. We provide this simple Summary of certain fundamentals of corporate law, applicable ...


Bonded To The State: A Network Perspective On China's Corporate Debt Market, Li-Wen Lin, Curtis J. Milhaupt Jan 2016

Bonded To The State: A Network Perspective On China's Corporate Debt Market, Li-Wen Lin, Curtis J. Milhaupt

Faculty Publications

A corporate bond market is thought to play an important role as a supplement to bank-oriented financial systems in emerging markets – functioning in effect as a “spare tire.” Yet bond markets typically rely upon a formal institutional foundation that is often lacking in developing economies. China’s corporate bond market is huge, yet scholarly analysis of it is relatively scarce and some of its elements remain poorly understood. In this paper, we use a network perspective to explore the formation, operation and function of the Chinese corporate bond market. Our effort begins by unpacking the complexities of the market’s ...


Shining Light On Global Supply Chains, Galit A. Sarfaty Jan 2015

Shining Light On Global Supply Chains, Galit A. Sarfaty

Faculty Publications

This Article analyzes the effectiveness of emerging domestic legislation on global supply chain transparency with respect to human rights and labor practices. It draws from a quantitative and qualitative study of the implementation of recent U.S. conflict minerals legislation, section 1502 of the Dodd-Frank Financial Reform Act, which is driving global norms in this area and serving as a guide for comparable domestic legislation abroad. My analysis of section 1502 reveals a due diligence gap among firms, with only about 7% of companies reporting strong due diligence measures in their 2014 Conflict Minerals Reports. I also identify several factors ...


China's National Champions: Governance Change Through Globalization?, Li-Wen Lin Jan 2015

China's National Champions: Governance Change Through Globalization?, Li-Wen Lin

Faculty Publications

China is regarded as the world’s leading practitioner of state capitalism in which important capitalist enterprises have a close relationship with the state. One prominent feature of China’s state capitalism is the fundamental role of about 100 large state-owned enterprises (SOEs) controlled by organs of the central government in critical industries such as oil, telecom, and transportation. These SOEs are often dubbed “China’s national champions.” They are not only important players in China’s domestic economy but also major contributors to China’s fast growing global investment. Their global expansion however often encounters political and regulatory challenges ...


Complicity In Business And Human Rights, James G. Stewart Jan 2015

Complicity In Business And Human Rights, James G. Stewart

Faculty Publications

These remarks, delivered on April 9, 2015 at the American Society of International Law’s Annual Conference, address the context of complicity discussions in public international law generally then their significance and scope in Business and Human Rights in particular. The Panel on which I delivered this talk was one of the first to discuss the topic of complicity across different fields, including International Criminal Law, the Alien Tort Statute, Business and Human Rights and the Public International Law of State Responsibility. In my comments, I offer five initial points contextualizing these discussions for the field of public international law ...


Taxation Of State Owned Enterprises: A Review Of Empirical Evidence From China, Wei Cui Jan 2015

Taxation Of State Owned Enterprises: A Review Of Empirical Evidence From China, Wei Cui

Faculty Publications

This chapter reviews empirical evidence from China that bears on the general theory of the income taxation of state-owned enterprises (SOEs). Prior theoretical literature has offered three conflicting views of SOE taxation. The first is that SOE taxation is superfluous, because the government shareholder can simply demand profit distributions. The second is that SOE taxation is necessary to put state-owned and private firms on an equal competitive footing. The third view holds that the significance of SOE taxation lies in the fact that SOE managers, like managers of private firms, may be dividend averse; in the absence of other effective ...


Disruptive Innovation And The Global Emergence Of Hybrid Corporate Legal Structures, Carol Liao Jan 2014

Disruptive Innovation And The Global Emergence Of Hybrid Corporate Legal Structures, Carol Liao

Faculty Publications

There is considerable legal scholarship focused on reforming the shareholder primacy model of governance embodied within the modern day corporation. While these efforts are worthwhile and must continue, there are certain ideological and practical limitations that make true reformation of this model difficult. It is important, therefore, that in the midst of ongoing efforts, one does not lose sight of available alternatives.

This article promotes a novel perspective that does not spring from traditional-style efforts of corporate reform, but rather, on how a growing trend in corporate law may create 'disruptive innovations' in the marketplace and foster an environment where ...


A Canadian Model Of Corporate Governance, Carol Liao Jan 2014

A Canadian Model Of Corporate Governance, Carol Liao

Faculty Publications

What is Canada’s actual legal model to govern its corporations? Recent landmark judicial decisions indicate Canada is shifting away from an Anglo-American definition of shareholder primacy. Yet the Canadian securities commissions have become increasingly influential in the governance sphere, and by nature are shareholder-focused. Shareholders’ rights have increased well beyond what was ever contemplated by Canadian corporate laws, and the issue of greater shareholder vs. board control has now become the topic of live debate. The future of Canada's overall model seems to rest on what will be more compelling: the constancy of the corporate statutes and trajectory ...


A Canadian Model Of Corporate Governance: Where Do Shareholders Really Stand?, Carol Liao Jan 2014

A Canadian Model Of Corporate Governance: Where Do Shareholders Really Stand?, Carol Liao

Faculty Publications

This feature article in the Director Journal summarizes the findings from the report, "A Canadian Model of Corporate Governance: Insights from Canada's Leading Legal Practitioners," produced for the Canadian Foundation for Governance Research and the Institute of Corporate Directors (also available on SSRN).

In the report, interviews were conducted with 32 leading senior legal practitioners across Canada to opine on the fundamental principles that are driving the development of Canadian corporate governance. The report found that Canadian common law has made the process of considering stakeholders in the "best interests of the corporation" more overt, well beyond what is ...


Regulating Through Numbers: A Case Study Of Corporate Sustainability Reporting, Galit A. Sarfaty Jan 2013

Regulating Through Numbers: A Case Study Of Corporate Sustainability Reporting, Galit A. Sarfaty

Faculty Publications

Over the past two decades, there has been a drive to reduce complex concepts into simple numbers. Corruption, rule of law, human rights, and more have all been reduced to quantitative indicators. Under the theory that what gets measured gets done, international law has begun relying on these tools to operationalize global norms and assess compliance. In particular, private regulatory bodies are using indicators to claim scientific authority as they set global standards and shape domestic law. Yet legal scholarship has been largely silent about the implications of these statistical tools for governance. In this Article, I analyze the prevalence ...


Human Rights Meets Securities Regulation, Galit A. Sarfaty Jan 2013

Human Rights Meets Securities Regulation, Galit A. Sarfaty

Faculty Publications

Recent domestic legislation is blurring the line between securities regulation and human rights law. Securities law has traditionally regulated corporate disclosure on financial information, such as income statements and investment risks. By contrast, human rights law has traditionally operated in the international sphere and focused on state obligations. That all changed in 2010 with the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which includes sections 1502 and 1504 on non-financial disclosure related to human rights and anti-corruption. In particular, section is the first regulation to create binding rules on due diligence with regard to a company ...


State Ownership And Corporate Governance In China: An Executive Career Approach, Li-Wen Lin Jan 2013

State Ownership And Corporate Governance In China: An Executive Career Approach, Li-Wen Lin

Faculty Publications

China’s state-owned enterprises (SOEs) now comprise over 60 percent of the largest 500 companies in China and more than 10 percent of Fortune Global 500 companies in the world. Despite their importance to China’s domestic economy and foreign investment strategy, many governance characteristics of the SOEs remain a black box, one of which is the SOEs’ executive composition and recruitment development. This Article shifts away from the typical focus on how the things function (e.g. ownership structure and board of directors) to who the people in charge are, which is an important approach to understanding corporate governance ...


Innovation-Framing Regulation, Cristie Ford Jan 2013

Innovation-Framing Regulation, Cristie Ford

Faculty Publications

This paper aims to provide insights into the effective regulation of private sector innovation. It coins a term – “innovation-framing regulation” – to describe a particular quality of the regulation that characterized much of financial regulation in the recent era. After briefly sketching a particular financial innovation (securitization and the marketing of securitized assets on the derivatives markets) it describes three regulatory interactions with that innovation: the Basel II Capital Accords, the Asset-Backed Commercial Paper Crisis in Canada, and the ongoing notice-and-comment rulemaking process surrounding the Volcker Rule in the United States. While each case study is different, in each one the ...


The Next Stage Of Csr For Canada: Transformational Corporate Governance, Hybrid Legal Structures, And The Growth Of Social Enterprise, Carol Liao Jan 2013

The Next Stage Of Csr For Canada: Transformational Corporate Governance, Hybrid Legal Structures, And The Growth Of Social Enterprise, Carol Liao

Faculty Publications

The period when corporate social responsibility (CSR) only referred to corporate philanthropic donations has passed. Present day CSR is intimately intertwined with sustainable development, and its growth in the last several decades has been evident in Canada. The recent appearance of “hybrid” corporate legal structures on the international stage marks a growing trend toward enabling the dual pursuit of economic and social mandates for businesses. It suggests that the next significant stage in the CSR movement will be in the reformation and creation of corporate legal models that not only enable, but require, CSR concepts to be embodied within corporate ...


Kigyo No Shakai-Teki Sekinin: Challenges For Corporate Social Responsibility In Japan, Janis P. Sarra, Masafumi Nakahigashi Jan 2012

Kigyo No Shakai-Teki Sekinin: Challenges For Corporate Social Responsibility In Japan, Janis P. Sarra, Masafumi Nakahigashi

Faculty Publications

Globally, there is increasing discussion about corporate social responsibility (CSR). Many large multinational enterprises, particularly in mining and other resource sectors, have voluntarily adopted CSR programs, having concluded that social, economic, and environmental sustainability measures are good for the "bottom line" and fro the communities in which they operate. Companies in Japan have yet to move in that direction, although there are a few notable exceptions. In part, this lack of adaptation to the growing interest in CSR internationally is due to cultural and social norms in Japan that suggest that many aspects of CSR properly belong to the domain ...


Prospects For Scalability: Relationships And Uncertainty In Responsive Regulation, Cristie Ford Jan 2012

Prospects For Scalability: Relationships And Uncertainty In Responsive Regulation, Cristie Ford

Faculty Publications

Ian Ayres’s and John Braithwaite’s book Responsive Regulation: Transcending the Regulatory Debate (1992) gave us many significant insights. The book has transcended its own time. At the same time, on the 20th anniversary of its publication, two things about Responsive Regulation are striking. The first is the direct, personal relationship on which the regulatory interaction is premised. The second is the boundedness and manageability of the regulatory project. At least in prudential regulation of global financial institutions in the wake of the recent financial crisis (though surely elsewhere too), neither of these features can be taken for granted ...


The Case For Leverage-Based Corporate Human Rights Responsibility, Stepan Wood Jan 2012

The Case For Leverage-Based Corporate Human Rights Responsibility, Stepan Wood

Faculty Publications

Should companies’ human rights responsibilities arise, in part, from their “leverage” – their ability to influence others’ actions through their relationships? Special Representative John Ruggie rejected this proposition in the United Nations Framework for business and human rights. I argue that leverage is a source of responsibility where there is a morally significant connection between the company and a rights-holder or rights-violator, the company is able to make a contribution to ameliorating the situation, it can do so at modest cost, and the threat to human rights is substantial. In such circumstances companies have a responsibility to exercise leverage even though ...


Corporate Governance Reform For The 21st Century: A Critical Reassessment Of The Shareholder Primacy Model, Carol Liao Jan 2011

Corporate Governance Reform For The 21st Century: A Critical Reassessment Of The Shareholder Primacy Model, Carol Liao

Faculty Publications

This article questions the efficiency of the shareholder primacy model of corporate governance in light of the financial calamities that have plagued the first decade of the 21st century. Reform efforts following the global financial crisis have focused on failures in securities regulation, but that is only part of the story. Effective reform measures must also address the legal and normative prescriptions found within existing governance structures, and the collateral effect those prescriptions have on political and regulatory inaction.

There was strong ideological support for the shareholder primacy model at the start of the century. Following the corporate and accounting ...


We Are The (National) Champions: Understanding The Mechanisms Of State Capitalism In China, Li-Wen Lin, Curtis J. Milhaupt Jan 2011

We Are The (National) Champions: Understanding The Mechanisms Of State Capitalism In China, Li-Wen Lin, Curtis J. Milhaupt

Faculty Publications

While China appears to present a new variety of capitalism, frequently labeled "state capitalism," the features of this system - particularly the organizational structure surrounding China’s most important state-owned enterprises (the national champions) - remains a black box. Corporate governance scholarship on China has focused on listed firms, but listed SOEs in China are nested in vertically integrated corporate groups, and the groups are strategically linked to other business groups, as well as to the Communist Party and to governmental organs. While the parent company of the listed firms has a governmental controlling shareholder in the form of an agency called ...