恶意犯规引发球场大打出手 湖人耻辱性输球又输人

冰火NaNaUID: 2287862

Week 2

·
Sources of investment law
o
Domestic Law
o
Multinational Conventions and International Organizations
o
MITs and BITs
·
Conflict of (Investment) Laws

Suggested reading:

·
UNCTAD, World Investment Report 2008, Chapters 1 and 2: http://www.unctad.org/en/docs/wir2008overview_en.pdf
·
OECD Guidelines for Multinational Enterprises: http://www.oecd.org/daf/investment/guidelines

·
Folsom et. al., International Business Transactions, 8th ed., St. Paul, Minn. 2005, pp. 918-937
·
Chow/Schoenbaum, International Business Transactions, New York 2005, pp. 393-448
·
Masa’deh, International Rules for Investment and Investors: Light at the End of the Tunnel?, European Business Law Review 2000, pp. 157-178 (on reserve at GLC Resource Centre)
·
Sornarajah, The International Law on Foreign Investment, 2nd ed., Cambridge 2004, pp. 204-268

Sources of

Cross-border Investment Law

Who governs cross-border activities?

·
governance by home nation law

·
governance by host nation law

·
governance by int. organizations and international law

·
governance by investors and their partners

Sources of

Cross-border Investment Law

Domestic Law

UNCTAD, World Investment Report 2008: http://www.unctad.org/en/docs/wir2008overview_en.pdf

·
Years 2005 and 2006 saw intense discussions in many parts of the world on merits of liberalization vs. the need for economic protectionism

·
Despite growing concerns and political debate over rising protectionism, the overall policy trend remains one of greater openness to FDI.

·
Most countries continued to liberalize their investment environment, but others took steps to protect their economies from foreign competition or to increase State influence in certain industries.

·
UNCTAD identified a total of 100 policy changes in 2007 (as opposed to 185 in 2006 and 205 in 2005):
o
Number of countries that
introduced changes:
58 (93 in 2006)
o
Number of regulatory changes
more favorable to FDI:

74 (147 in 2006)
o
Number of changes less
favorable to FDI:
24 (35 in 2006)

Sources of

Cross-border Investment Law

Multilateral Attempts

·
1948: Havana Charter of the International Trade Organization
·
1976 (last revised 2000): OECD Guidelines for Multinational Enterprises
·
1980: UNCTAD Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices
·
Regional Agreements
o
1987: ASEAN Agreement for the Promotion and Protection of Investments
o
1989: Fourth Lomé Convention between the EEC and the African, Carribean and Pacific (ACP) States
o
1958: Treaty of Rome
o
Others
·
1965: Convention on the Settlement of Investment Disputes Between States and Nationals of Other States
·
1985: Convention Establishing the Mulitlateral Investment Guarantee Agency (“MIGA”)
《多边投资担保机构公约》 （Convention Establishing the Multilateral Investment Guarantee Agency，MIGA），
·
1992: World Bank Guidelines on the Treatment of FDI (1982)
·
1994: TRIMS

与贸易有关的投资措施协议》
[size=-1]中文简称
[size=-1]英文名	Agreement on Trade-Related Investment Measures
[size=-1]英文简称	TRIMs

·
OECD Multilateral Agreement on Investment (“MAI”) >>> negotiations discontinued in 1998
Organisation for Economic Co-operation and Development

000UID: 111755

2级恶意犯规~~~高科技~~

冰火NaNaUID: 2287862

Problem 1/2
In 2002 your client, HK Global Invest Co. Ltd. (“Global”), had established an equity joint venture (the “JV”) in Nanjing with Sunshine Ltd. (“Sunshine”), a Chinese state-owned enterprise. According to Global’s business plan Global will operate
the JV together with Sunshine (only) for a start-up period of 5 years during which the JV is scheduled to generate substantial returns. Global intends to sell the JV-equity interest owned by it to any third party against payment of a profitable purchase price afterwards. In order to cover related risks Global had entered into an investment insurance contract with Printemps S.A., a French private insurance company. Article 4 of the contract reads as follows:
“ Compensation is payable for total expropriation … if an act or a series of
acts satisfies the following requirements:
(a)
the acts are attributable to a foreign governing authority which is de facto in control of part of the country in which the project is located;
(b)
the acts are violations of international law or material breaches of local law;
(c)
the acts directly deprive the Investor of fundamental rights in the insured investment;
(d)
the violations of law are not remedied and the expropriatary effect continues for six months.”

On 1 June 2008 Global had informed Sunshine about its intention to sell all its JV-equity interest
to German Investa
GmbH. This letter and 5 other letters subsequently sent to Sunshine and the JV-examination and approval authority requesting “all necessary approvals and consents for the share transfer” have remained unanswered.
The Managing Director of Global is very angry. He asks how the situation can be solved, whether claims are available against Printemps S.A. and how the existing problems can be avoided in the future.



PRC EJV Law Implementing Rules (22.7.2001)

Art. 20:
“Where one party to an EJV transfers all or part of its equity interest to a third party, consent of the other parties is required and approval of the examination and approval authority as well as the change of the registration with the related administrative authority must be obtained.
When one party to an EJV intends to transfer all or part of its equity interest the other parties shall have the right of preemption. Conditions for the transfer of equity interest by one EJV-party to a third party shall not be more preferential than those for the transfer to other EJV-parties.
Where the afore provisions are violated the related transfer of equity shall be invalid.”


MOFTEC and SAIC, Changes in Equity Interest of Investors in Foreign Investment Enterprises Several Provisions (28.5.1997)

Art. 3:
“Any change in the equity interest of an investor in an FIE shall conform with the relevant Chinese laws and regulations and be subject to approval by the examination and approval authority in accordance with these Provisions, whereupon the registration with the registration authority shall be changed in accordance with these Regulations. Any changes in equity interest that have not been approved by the examination and approval authority shall be invalid.”

第三条 企业投资者股权变更应遵守中国有关法律、法规，并按照本规定经审批机关批准和登记机关变更登记。未经审批机关批准的股权变更无效。

000UID: 111755

Week 3

·
Corruption and cross-border investments
·
Responses to corruption
o
international levels
o
national levels
o
company levels


Suggested reading:

·
Folsom et. al., International Business Transactions, 8th ed., St. Paul, Minn. 2005, pp. 723-754
·
Chow/Schoenbaum, International Business Transactions, New York 2005, pp. 448-473
·
ICAC
website http://www.icac.org.hk/en/home/index.html
·
Transparency International website
http://www.transparency.org/news_room/in_focus/2008/cpi2008/cpi_2008_table






Problem 3/1

Eagle Invest Co. Ltd. (“Eagle”) is a Hong Kong company. In November 2006 Eagle was approached by Pattaya Resort Ltd. (“Pattaya”), a Thai company. Pattaya proposes that Eagle and Pattaya jointly establish a “wellness resort” (the “Project”) in Hua Hin, Thailand. According to Pattaya the Project will require a total amount of investment of 98 million USD of which Eagle shall contribute 60% while Pattaya shall contribute the remaining 40%. Further, a so-called “Special Purpose Vehicle” (the “SPV”) shall be established in Hong Kong. The SPV shall take the form of a limited liability company and own 49% of the shares of a company to be established in Thailand in order to operate the Project.

On 10 January 2007 the South China Morning Post (“SCMP”) published an article titled “Thailand imposes fresh limits on foreign holdings”. Excerpts of the Article are as follows:

“Thailand’s military government imposed new restrictions on foreign ownership in the country, rattling investors two weeks after a bungled attempt to impose capital controls. … Loopholes under which foreigners invest through nominees would be tightened …The new rules are the latest blow to investor confidence in Thailand, already dented by a September coup and last month’s decision to impose capital controls.
‘Companies that already invest and use the nominee structure will have to liquidate or find a partner within one year,’ said Ekachai Chongvisal, a fund manager at Tisco Asset Management.…
Thailand redefined ‘alien’ to mean foreigners and their Thai nominees who must reduce combined ownership to 50 per cent on voting rights. Local joint venture partners, known as nominees, had 90 days to disclose their stakes and 12 months to comply with the revised rules, Mr Chongvisal said.”

(1) The managing director of Eagle feels that he does not completely understand Pattaya’s proposal. He asks you for your comments in this regard.
(2) Further, the managing director of Eagle wants you to explain how the measures taken by the Thai government (discussed in the SCMP article quoted above) may impact on the implementation of Pattaya’s proposal and, if so, whether there are any ways to avoid such impact.




·
Etymologically “corruption” comes from the Latin verb “corruptus” (to break); it literally means broken object.

·
Classic definition (followed by the World Bank and Transparency International):
“the use of one’s public position for illegitimate private gains”
>> problem: abuse of power and personal gain can occur in both the public and private domains and often in collusion with individuals from both sectors

·
Lebanon Anti-Corruption Initiative Report 1999:
“Corruption is behavior of private individuals or public officials who deviate from set responsibility and use their position of power in order to serve private ends and secure private gains.”

·
Although perceived differently from country to country, corruption tends to include the following: conflict of interest, embezzlement, fraud, bribery, political corruption, nepotism and extortion.



Problem 3/2


If you can give 10 points for a corruption-free country and 0 points for a totally corrupt country …

… how many points would you give
o
Hong Kong
o
Mainland China
o
Germany
o
UK
o
USA
o
Canada?

… which country should receive the highest number of points?

… which country should receive the lowest number of points?

Transparency International:

Corruption Perception Index 2008

·
Rates 180 countries on a score out of a possible perfect 10 (= no corruption). CPI reflects perceptions of business people and country analysts, both resident and non-resident.

·
“CPI is only a snapshot … There is not sufficient data on other countries, many of which are likely to be very corrupt.”

·
CPI Ranges: from 10 (highly clean) to 0 (highly corrupt)

·
Persistently high corruption in low-income countries creates an “ongoing humanitarian disaster.”

·
Against a backdrop of continued corporate scandals, wealthy countries are backsliding as well.

·
Countries with significantly higher scores in 2008: Albania, Cyprus, Georgia, Mauritius, Oman, Nigeria, Quatar, South Korea, Tonga, Turkey

·
Countries with a significant worsening in perceived levels of corruption in 2008 include Bulgaria, Burundi, Maldives, Norway and the UK.

Transparency International:

Corruption Perception Index 2008

(1)
Denmark 9.3; Sweden 9.3; New Zealand 9.3
(4) Singapore 9.2;
(5) Finland 9.0

(5) Switzerland 9.0
(7) Iceland 8.9

(7) Netherlands 8.9
(9) Australia 8.7

(9) Canada 8.7

(11) Luxembourg 8.3
(12) Austria 8.1

(13) Hong Kong 8.1

(14) Germany 7.9
…
(16) UK 7.7
…
(18) Japan 7.3
(18) USA 7.3
…
(39)
Taiwan 5.7
(43) Macau 5.4
(72) Bulgaria 3.6; China 3.6; Mexico, 3.6; Peru 3.6; Suriname 3.6; Swaziland 3.6; Trinidad/Tobago 3.6
…
(178) Iraq 1.3
(178) Myanmar 1.3
(180) Somalia 1.0

What causes corruption?

Reasons vary from country to country:

·
Homo economicus

What facilitates corruption?

·
Faulty government and development policies

·
Programs that are poorly perceived and managed

·
Failing institutions

·
Inadequate checks and balances

·
Weak (corrupt) criminal justice system

·
Inadequate civil servants’ remuneration

·

Lack of accountability and transparency

What are the consequences of corruption?

·
Rule of law affected?

·
Reduced investment or even disinvestment.

·
Social polarization.

·
Lack of respect for human rights and democratic values?

·
Diversion of funds intended for development and essential services.

·
Government’s ability to provide basic services to its citizens and to encourage sustainable economic, social and political development may be weakened.

·
Health and safety of citizens can be jeopardized (e.g. poorly designed infrastructure projects; scarce or outdated medical supplies).

·
Greatest impact on most vulnerable part of a country’s population, the poor.

Multinational Response to Corruption

·
1995: WTO/GATT

·
1995: European Union Convention on the Protection of the European Communities’ Financial Interests

·
1996: United Nation’s Declaration against Corruption and Bribery in International Commercial Transactions

·
1996: Inter-American Convention Against Corruption

·
1997: OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

·
1999: Council of Europe Criminal Law Convention on Corruption



US Foreign Corrupt Practices Act ·
enacted in 1977 as result
of Watergate investigations

·
amended in 1988

·
applicable basically to any US corporation and foreign companies’ acts conducted while in US

·
US parent corporation may be liable for payments made by foreign subsidiaries, if parent company knew or should have known of subsidiaries’ action

·
FPA contents
o
certain accounting standards must be complied with
o
substantive documentation re foreign transactions must be maintained
o
persons subject to FCPA may not make use of mails or instrumentality of interstate commerce corruptly where the act is in furtherance of any of several action, including an
§
offer, payment, promise to pay or authorization to pay
of any money, or an
§
offer, gift, promise to give, or authorization of the giving
of “anything of value”
o
to
§
foreign officials or foreign political party, party officials, candidates or any person, while “knowing” it will be offered, promised or given to any of the afore-mentioned.



Problem 3/3 Hong Kong PowerInvest Co. Ltd.
(“Power”) is negotiating an investment project with BlueEyesDontCry Co. Ltd. of Hanoi, Vietnam. In order to facilitate matters in Vietnam the CEO of Power has appointed Mr. Ho, General Manager of Vietnamese DarkTears Ltd., as Power’s agent. The Power CEO has asked Mr. Ho to contact the competent approval authority in order to find out if the planned project will face any problems. Mr. Ho now calls and reports
that the government official in charge was kind enough to indicate, that for the time being no problems are to be expected. Mr. Ho also explains that the government official has pointed out that a face-to-face discussion with Power’s CEO would be very helpful and that she would be happy to accept an invitation to travel to Hong Kong for this purpose. Mr. Ho also mentions that the official has talked in a more private part of their discussion about “her problems to find the money (5000 USD) necessary to buy two notebook computers for her children.”You and your team are asked by Power’s CEO how to deal with the report of Mr. Ho.



Problem 3/4

The government of Singapore is concerned that corrupt practices of multinational enterprises with headquarters in Singapore will hinder the globalization of Singapore’s economy. In order to address the problem it has been suggested to draft a Code of Honest Business Practice (the “Code”). The Code would be meant to provide principles and standards of non-corrupt business practices and measures to be taken in order to combat corruption. Observance of the Code shall be voluntary and not legally enforceable. However, the government of Singapore would encourage the most possible observance of the Code and the publication of adherence to the Code by respective multinational enterprises.
You and your team have been asked to draft the Chapters of the Code on “Corrupt Practices Enterprises Should Not Engage In” and on “Measures to Be Taken by Enterprises to Combat Corruption”

OECD Guidelines

for

Multinational Enterprises http://www.oecd.org/daf/investment/guidelines