Transnational Law Commons^™

Australia’S Experience With Foreign Direct Investment By State Controlled Entities: A Move Towards Xenophobia Or Greater Openness?, Greg Golding

Seattle University Law Review

Over the last few years, there has been considerable debate in Australia as to the appropriate regulation of foreign direct investment by entities affiliated with foreign governments. During that time, Australia has been a significant beneficiary of investment by sovereign wealth funds from many foreign jurisdictions, particularly by Chinese state owned enterprises. The Australian government, similar to governments of many developed Western countries, has struggled to properly calibrate its policy settings for regulating this type of investment activity. This Article considers the Australian regulatory regime and assesses Australia’s experience in regulating those investment flows during this period.

State Capital: Global And Australian Perspectives, George Gilligan, Megan Bowman

Seattle University Law Review

The activities of state-related pools of capital need to be understood within the context of an era of globalization, in which economic and political ties between many jurisdictions are deepening, A variety of modes of governance are emerging that have a capacity for impacts of broad international scope. The rising influence of more proactive state-led capitalism is one of the shaping variables in how the global economy has been changing swiftly in recent decades, and the effects of the Global Financial Crisis have arguably accelerated these structural shifts. This Article identifies three discrete phenomena in the state capital arena. First, …

Apologies In The Marketplace, Kish Vinayagamoorthy

Pace Law Review

In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational …

Transnational Business Governance Interactions: Conceptualization And Framework For Analysis, Burkard Eberlein, Kenneth W. Abbott, Julia Black, Errol Meidinger, Stepan Wood

Articles & Book Chapters

This special issue demonstrates the importance of interactions in transnational business governance. The number of schemes applying non-state authority to govern business conduct across borders has vastly expanded in numerous issue areas. As these initiatives proliferate, they increasingly interact with one another and with state-based regimes. The key challenge is to understand the implications of these interactions for regulatory capacity and performance, and ultimately for social and environmental impact. In this introduction, we propose an analytical framework for the study of transnational business governance interactions. The framework disaggregates the regulatory process to identify potential points of interaction, and suggests analytical …

Organizational Fields, Transnational Business Governance Interactions And The Diffusion Of Csr, Melanie Coni-Zimmer

Transnational Business Governance Interactions Working Papers

The paper analyzes the process of global diffusion of Corporate Social Responsibility (CSR) in the oil industry and how interactions between different actors have contributed to this outcome. It starts from the empirical puzzle that CSR has spread globally among transnational corporations since the mid 1990s (diffusion of CSR as a dependent variable). To explain this phenomenon, the paper presents a theoretical argument based on insights from sociological neo-institutionalism. It uses the concept of organizational fields as social spaces where organizations interact with one another. The structuration of an organizational field leads to processes of homogenization among the organizations belonging …

Business And Human Rights: Understanding The Un Guiding Principles From The Perspective Of Transnational Business Governance Interactions, Karin Buhmann

Transnational Business Governance Interactions Working Papers

This article analyses the United Nations (UN) Guidelines on Business and Human Rights adopted in 2011 by the UN Human Rights Council from the perspective of Transnational Business Governance Interactions (TBGI) analytical framework (Eberlein et al. 2014). The article identifies and discusses dimensions of interaction and components of regulatory governance which characterise the Guiding Principles, focusing in particular on the rule formation and implementation. The article notes that the Guiding Principles actively enrolled other actors for the rule-making process ensuring support in a politically and legally volatile field. It identifies mutual 'piggy-backing' by the Guiding Principles and other TBGI Schemes, …

The Rise Of Transnational Private Meta-Regulators, Paul Verbruggen, Tetty Havinga

Transnational Business Governance Interactions Working Papers

In recent years scholars from various disciplines have turned their attention to transnational regimes of regulation that are chiefly developed outside state-driven frameworks. The rise of such "transnational private regulation" has also led to the emergence of private meta-regulation. The term 'meta-regulation' commonly refers to processes through which a regulatory body oversees another and sets standards for its activities or performance of regulation. In the public domain, meta-regulation has been associated with the devolution of regulatory activities by a statutory body to private actors with the view to enhance voluntary rule compliance, awareness of responsibilities among the regulated and reduce …

Toward Greater Guidance: Reforming The Definitions Of The Foreign Corrupt Practices Act, Matthew W. Muma

Michigan Law Review

The Foreign Corrupt Practices Act of 1977 is the cornerstone of the United States’ efforts to combat the involvement of U.S. companies and individuals in corruption abroad. Enforced by both the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”), the Act targets companies and individuals that pay bribes to “foreign officials,” a nebulous category of persons that includes everyone from foreign cabinet members to janitors at companies only partially owned by a foreign state. After only sporadic enforcement in the early years of the Act’s existence, the SEC and DOJ now bring many cases annually. This increased …

Transnational Business Governance Interaction And Competition Between Standard-Setting Initiatives: Labor Standards In Garment, Toys And Agriculture, Nicole Helmerich, Christopher Kaan

Transnational Business Governance Interactions Working Papers

This paper analyzes interactions within standard-setting networks in the area of social and labor rights. We examine the shape of transnational business governance interactions (TBGI), pathways, and interaction mechanisms in three sectors: garments, toys and agriculture. Our comparative analysis of each of these sectors reveals meaningful differences in both the organization of regulation networks and the resulting level of competition among participants. Overall, we find that the creation of a more inclusive and more coherent standard in a whole business sector comes with the cost of weaker rules and less monitoring. These industry-specific observations provide a springboard for future studies …

Private Governance, Public Implications And The Tightrope Of Regulatory Reform: The Isda Credit Derivatives Determinations Committees, John Biggins, Colin Scott

Transnational Business Governance Interactions Working Papers

Regulatory relationships in financial markets exemplify the importance and changing nature of transnational business governance interactions (TBGI). These interactions involve reciprocal forces of influence between private and public regulators. This paper examines one key case of private governance in financial markets: the emergence, structures and decision-making of Credit Derivatives Determinations Committees (DCs) of the International Swaps and Derivatives Association (ISDA). The paper highlights the mechanisms or 'pathways' of interaction between ISDA, governments, courts and public regulators. Interactions between state and non-state actors are shown to occur in both operational and policy spheres. ISDA is found to be a particularly resilient …

A System Of Transnational Business Interactions: The Case Of The Living Wage, David J. Doorey

Transnational Business Governance Interactions Working Papers

The subject of transnational business governance (TBG) interactions is an emerging field of study. These interactions are complex, involving multiple public and private actors crossing vast geopolitical spaces, with sometimes shared, but often conflicting interests. This complexity makes TBG interactions both an exciting new field of inquiry for scholars, but also an extremely challenging one. In these early days of theory development, it is useful to engage in a mapping exercise that will help scholars identify and test the relationships between the many inputs and outputs of TBG interactions. This new systems framework is demonstrated by reference to the complex …

Apologies In The Marketplace, Kish Vinayagamoorthy

Scholarly Articles

In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational …

The Alien Tort Statute As Transnational Law, Jaye Ellis

Maryland Journal of International Law

No abstract provided.

Legal Framework For Soviet Privatization, Olga Floroff, Susan Tiefenbrun

Pepperdine Law Review

No abstract provided.

Negotiating A Deal In Korea: Reflections Of A Battle-Scarred Veteran, Michael E. Zacharia

Pepperdine Dispute Resolution Law Journal

In 1996, for an international widget company focused on selling to the Japanese tourist and looking to expand its business, Korea was the Promised Land. Korea had a widget business well in excess of (U.S.) $500 million, and was the second most popular Japanese tourist destination. No foreign companies were in the market, and my client BWC (a world-renowned widget company), sought to change that. They did, for a while. This paper analyzes select aspects of the twelve months of Round One negotiations that led to the triumphant signing of a Joint Venture Agreement with SY, a leading Korean widget …

Transnational Copyright: Misalignments Between Regulation, Business Models And User Practice, Leonhard Dobusch, Sigrid Quack

Transnational Business Governance Interactions Working Papers

In this paper we analyse discursive struggles over what is referred to as legal and illegal user practices in the internet as an outcome of regulatory uncertainty. The latter, in turn, is examined in the context of a multi-layered transnational copyright regime characterised by three features: the absence of an universally recognized single authority in charge of law-making, fragmented and partially contradicting forms of regulation of global, national and sectoral scope, and considerable indeterminacy of rule interpretation and application arising from the variety and distinctiveness of local usage contexts. We argue that notions of legality and illegality are used strategically …

Transnational Business Governance And The Management Of Natural Resources, Virginia Haufler

Transnational Business Governance Interactions Working Papers

In the last two decades, the international community has intervened directly to reduce the conflict and corruption that accompany natural resource development in weakly governed states. These efforts converge on the norm of information disclosure by a number of different transnational business governance initiatives. This article examines how the successive failures of public and private efforts led to patterns of convergence and divergence in the transnational governance of the extractive sector. The timing of the effort, combined with variation in industry structure, differences in the targets of information disclosure, and learning over time influence the outcome in each case. This …

Iso 26000: Bridging The Public/Private Divide In Transnational Business Governance Interactions, Kernaghan Webb

Transnational Business Governance Interactions Working Papers

This paper explores the proposition that the ISO 26000 social responsibility guidance standard represents an innovative form of global social responsibility (SR) rule instrument that performs five key distinctive bridging functions in addressing public and private transnational business governance interactions: (1) top down transpositions of key concepts from inter-­‐governmental instruments directed at first instance at states into a non-­‐state global SR rule instrument applying directly to transnational corporations (TNCs) and other organizations; (2) bottom up transpositions of key concepts from non-­‐state SR instruments of narrow focus to apply more broadly to all SR activities; (3) innovations in the standards development …

Transnational Business Governance Interactions And Technical Systems In Global Finance, Tony Porter

Transnational Business Governance Interactions Working Papers

Most transnational regulatory problems involve technical systems: extended sets of productive connections between humans, organized knowledge, and material objects. The functioning and relations between transnational business governance (TBG) schemes in any particular issue area are usually shaped by these technical systems. These technical systems and the material world that they interact with are not simply exogenous environments for tBG schemes. Individual TBG schemes can enhance their power and influence by expanding their function in a technical system, by incorporating the material aspects of the system into their activities, or by producing the system's technical knowledge. I hypothesize that where a …

The Architecture Of Transnational Private Regulation, Fabrizio Cafaggi

Transnational Business Governance Interactions Working Papers

Conflicting interests among private actors constitute an important factor to explain why and how transnational private regulation has grown and the proliferation of standards and standard setting organizations that has followed. This essay provides a map of transnational regulatory space suggesting that the different levels are related to various governance responses to conflicts within the private sphere and between private and public actors.Three levels of the global regulatory space are considered: (1) the single global regulatory body, where interests are integrated into one organization, (2) the regime, in which multiple organizations operate, regulating within the same policy field, (3) multiple …

Emerging Private Governance: The Challenges Of Choosing A Policy Focus, Graeme Auld

Transnational Business Governance Interactions Working Papers

Across sectors of the global economy, private governance has emerged as a new instrument for addressing pressing social and environmental problems. Although better suited for tackling the challenge of reaching agreements among states to address problems transcending national borders, these initiatives create new boundaries based on what problems they choose to focus on and which actors they choose to regulate – that is, the different policy foci of individual programs. Specialization is not inherently problematic. Private governance can focus attention on the problems of a single-issue area and build capacity among actors to resolve its problems, but equally a particular …

From Institutional Misalignments To Socially Sustainable Governance: The Guiding Principles For The Implementation Of The United Nations Protect, Respect And Remedy And The Construction Of Inter-Systemic Global Governance, Larry Cata Backer

Faculty Scholarship

Once upon a time, and for a very short time, there was something that people in authority, and those who manage collective memory, considered a stable system of political and economic organization. It was grounded on a complex division of authority between states, economic entities and social collectives. Contemporary economic globalization has destabilized this traditional system. Corporations are no longer completely controlled by the states that chartered them or within complex enterprises, even by those in which they operate. Social collectives now operate to change the political cultures that affect the public policy of states and the economic behavior of …

Transnational Corporations As Steering Subjects In International Economic Law: Two Competing Visions Of The, Karsten Nowrot

Indiana Journal of Global Legal Studies

Transnational corporations (TNCs) not only occupy an important status as economic actors on the international scene, but they are also political actors who are increasingly involved in the progressive development and enforcement of the regulatory structures of the international economic system. Against this background, this article focuses on the current status and potential future development of TNCs as steering subjects in international economic law (IEL). It evaluates the role played by this category of nonstate actors in two of the central public international law fields of IEL, namely the legal order of the World Trade Organization (WTO) and the international …

The Transnational Law Market, Regulatory Competition, And Transnational Corporations, Horst Eidenmuller

Indiana Journal of Global Legal Studies

In many regions of the world and across various fields, law has become a product. Individuals and companies seek attractive legal regulations, and countries advertise their legal wares globally as they compete for customers. Transnational corporations in particular are prominent actors in the emerging transnational law market. This article investigates the causes of this development and discusses these changes with respect to company law, contract law, the law of dispute resolution, and insolvency law. It assesses the market for legal rules and its practical consequences, and it provides legal policy recommendations for an efficient framework of the transnational law market. …

The Coevolution Of Transnational Corporations And Institutions, Sarianna M. Lundan

Indiana Journal of Global Legal Studies

While economic theories of the firm have traditionally focused on the ownership of assets, the increasing use of contractual partnerships is beginning to challenge our conception of the firm by emphasizing its coordinating role. In structuring their contracts, as well as in managing the relationships governed by the contracts, firms try to mitigate uncertainties that could destroy the value-adding potential of such transactions. These uncertainties may be specific to the transaction partner, but they might also arise from the institutional context of the contracting parties, particularly in the case of transactions that cross borders. The coevolutionary process whereby firms both …

The Changing Face Of Transnational Business Governance: Private Corporate Law Liability And Accountability Of Transnational Groups In A Post-Financial Crisis World, Peter Muchlinski

Indiana Journal of Global Legal Studies

This article seeks to critically assess the recently dominant financialized model of corporate law and governance and its contribution to the creation of the "asocial corporation" geared only to the enhancement of shareholder value. This article places corporate law in a wider context of national and international legal developments that, together, create a framework for the financialization of transnational corporate activity. This article shows that a new approach to transnational corporate governance is emerging from a number of sources. These predate the crisis but have been given impetus by it. In particular, three important phenomena are examined: the rise of …

Introduction: Transnational Corporations Revisited, Gralf-Peter Calliess

Indiana Journal of Global Legal Studies

Articles first presented at a symposium in the context of the biannual conference of the German Law & Society Association (Vereinigung fur Recht und Gesellschaft e. V) on "Transnationalism in Law, the State, and Society." This conference was organized together with the Collaborative Research Center (CRC) 597 "Transformations of the State" at the University of Bremen from March 3-5, 2010. The Collaborative Research Center 597 'Transformations of the State," U. BREMEN, www.staat.uni-bremen.de

Private Actors And Public Governance Beyond The State: The Multinational Corporation, The Financial Stability Board, And The Global Governance Order, Larry Cata Backer

Indiana Journal of Global Legal Studies

Transnational corporations are at the center of extraordinary and complex governance systems that are developing outside the state and international public organizations and beyond the conventionally legitimating framework of the forms of domestic or international hard law. Though these systems are sometimes recognized as autonomous and authoritative among its members, they are neither isolated from each other nor from the states with which they come into contact. Together these systems may begin to suggest a new template for networked governance beyond the state, but one in which public and private actors are integrated stakeholders. This provides the source of the …

Self-Constitutionalizing Tncs? On The Linkage Of "Private" And "Public" Corporate Codes Of Conduct, Gunther Teubner

Indiana Journal of Global Legal Studies

What is special about the intertwining of private and public corporate codes? It is not only tendencies of juridification but also of constitutionalization that materialize in this interplay. Both types of corporate codes taken together represent the beginnings of specific transnational corporate constitutions conceived as constitutions in the strict sense. This point is based on a concept of constitutionalization that is not limited to the nation-state and implies that also nonstate societal orders develop autonomous constitutions under particular historical circumstances. The following arguments highlight how corporate codes feature functions, structures, and institutions of genuine constitutions:

1. To the extent that …

Transnational Corporations, Global Competition Policy, And The Shortcomings Of Private International Law, Gralf-Peter Calliess, Jens Mertens

Indiana Journal of Global Legal Studies

In this article we criticize the so-called more economic approach to European competition law for disregarding the importance of a functional system of private law. Based on the availability of market governance as an alternative mode for organizing transactions, it is presumed that vertical integration, which is the central organizational structure of transnational corporations, is economically efficient. Since the enforcement of cross-border contracts by state-organized systems of private law, however, is insufficient, "make-or-buy" decisions in international commerce are prejudiced against arms' length transactions in markets. Consequently, international transactions are integrated vertically into firms' structures to a higher degree than comparable …