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Multinational enterprises and the law Updated ed

Multinational enterprises and the law Updated ed

Material type
단행본
Personal Author
Muchlinski, Peter.
Title Statement
Multinational enterprises and the law / Peter Muchlinski.
판사항
Updated ed.
Publication, Distribution, etc
Oxford :   Blackwell,   1999.  
Physical Medium
lxii, 674 p. ; 23 cm.
ISBN
0631216766
General Note
Includes index.  
Subject Added Entry-Topical Term
International business enterprises -- Law and legislation. International business enterprises.
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001 000045578352
005 20100219132100
008 011224s1999 enk 001 0 eng
020 ▼a 0631216766
035 ▼a (KERIS)BIB000009956203
040 ▼a 011001 ▼c 011001 ▼d 999999 ▼d 211009
082 0 4 ▼a 346.065 ▼2 22
090 ▼a 346.065 ▼b M942m1
100 1 ▼a Muchlinski, Peter.
245 1 0 ▼a Multinational enterprises and the law / ▼c Peter Muchlinski.
250 ▼a Updated ed.
260 ▼a Oxford : ▼b Blackwell, ▼c 1999.
300 ▼a lxii, 674 p. ; ▼c 23 cm.
500 ▼a Includes index.
650 0 ▼a International business enterprises ▼x Law and legislation.
650 0 ▼a International business enterprises.
945 ▼a KINS

Holdings Information

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Contents information

Table of Contents


CONTENTS
List of Cases = xv
List of Statutes = xxviii
List of Treaties = xlii
List of Publications of Governments and International Organizations = xlvi
Preface and Acknowledgements = lv
List of Abbreviations = lviii
Parr Ⅰ The Conceptual Framework = 1
 1 Concern over Multinational Enterprises = 3
  1 The Origins of Post-war Political Concern over MNEs = 3
   1.1 The Attitudes of Countries and Regions = 3
   1.2 Sensational Abuses of Corporate Power by MNEs = 6
   1.3 Moves towards an Economic Theory of the MNE = 7
   1.4 The Ideological Dimension = 8
   1.5 Summary 8
  2 The Contemporary Position = 9
  3 Problems of Definition = 12
  4 Concluding Remarks = 15
 2 The Evolution of Modern Multinational Enterprises = 19
  1 The Principal Phases of MNE Growth = 19
   1.1 The First Period : 1850 - 1914 = 20
   1.2 The Second Period : 1918 - 1939 = 22
   1.3 The Third Period : 1945 to the Present = 25
    1.3.1 The period of American dominance : 1945 - 1960 = 26
    1.3.2 The period of renewed international competition : 1960 to the present = 28
    1.3.3 Possible future developments = 32
  2 Explanations for the Growth of MNEs and the Role of Legal Factors Therein = 33
   2.1 Theories of MNE Growth = 33
   2.2 The Role of Legal Factors = 38
    2.2.1 Ownership-or firm-specific factors = 38
    2.2.2 Locational factors = 42
    2.2.3 Internalization factors = 45
  3 Concluding Remarks = 47
 3 Business and Legal Forms of Multinational Enterprise : towards a Theory of Control = 57
  1 MNEs as Transnational Business Organizations = 57
  2 Legal Forms of Multinational Enterprise = 61
   2.1 Contractual Forms = 62
    2.1.1 Distribution agreements = 63
    2.1.2 Production agreements = 63
   2.2 Equity Based Corporate Groups = 65
    2.2.1 The Anglo-American ‘pyramid’ group = 65
    2.2.2 European transnational mergers = 66
    2.2.3 The Japanese keiretsu = 69
    2.2.4 Changes in business organization and effects on equity based structures = 71
   2.3 Joint Ventures = 72
   2.4 Informal Alliances between MNEs = 73
   2.5 Publicly Owned MNEs = 75
   2.6 Supranational Forms of International Business = 76
    2.6.1 Forms adopted by the European Community = 77
    2.6.2 The Andean Multinational Enterprise adopted by the Andean Common Market (ANCOM) = 78
    2.6.3 Public international corporations = 79
  3 Concluding Remarks : Business and Legal Forms and the Control of MNE Activities = 80
 4 Relations between MNEs and States : towards a Theory of Regulation = 90
  1 Developing a Regulatory Agenda : Interactions between MNEs and Home and Host States = 90
   1.1 The Neo-classical Perspective = 93
   1.2 The Orthodox Post-war Economic Perspective = 93
   1.3 The Marxist Perspective = 95
   1.4 The Influence of Nationalism = 97
   1.5 The Environmental Perspective = 99
   1.6 ‘Global Consumerism’ = 100
   1.7 Synthesis : Framework for a Regulatory Agenda = 101
  2 Jurisdictional Levels and Methods of MNE Regulation = 102
   2.1 The Regulatory Priorities of Home and Host States = 103
   2.2 Bargaining between Host States and MNEs = 104
   2.3 Jurisdictional Levels of Regulation = 107
    2.3.1 National regulation = 107
    2.3.2 Regional regulation = 111
    2.3.3 International regulation = 112
  3 Concluding Remarks = 114
Part Ⅱ Regulation by Home and Host States = 121
 5 The Jurisdictional Limits of Regulation through National or Regional Law = 123
  1 The Legal Bases for the Extraterritorial Regulation of MNEs = 123
   1.1 Nationality = 124
   1.2 Protective Jurisdiction = 124
   1.3 Objective Territorial Jurisdiction = 125
  2 The Extraterritorial Regulation of MNEs in State Practice = 126
   2.1 Jurisdiction to Prescribe = 126
    2.1.1 Nationality links = 127
    2.1.2 The ‘effects’ doctrine = 129
    2.1.3 Links of ownership and control = 133
   2.2 Personal Jurisdiction = 134
    2.2.1 Establishing a sufficient connection between the forum and the non-resident unit of the MNE = 134
    2.2.2 The doctrine of forum non conveniens as applied to non-resident units of MNEs = 141
   2.3 Jurisdiction to Enforce = 144
   2.4 The Disclosure of Evidence in Proceedings Involving a MNE = 145
    2.4.1 Disclosure of evidence in US antitrust proceedings = 146
    2.4.2 US disclosure orders and foreign secrecy laws = 148
    2.4.3 The reduction of conflicts over demands for disclosure of evidence located in a foreign jurisdiction = 151
  3 Concluding Remarks : the Limitation of Extraterritoriality Conflicts = 156
 6 The Control of Inward Investment by Host States = 172
  1 The Scope of Host State Discretion = 172
  2 Techniques For Restricting Entry and Establishment = 173
   2.1 Total Exclusion and Sectoral Exclusion of Foreign Investors = 174
    2.1.1 Total exclusion = 174
    2.1.2 Sectoral exclusion = 175
   2.2 Laws Restricting Foreign Shareholdings in National Companies = 177
    2.2.1 Indigenization laws = 177
    2.2.2 Restrictions on foreign ownership in privatized companies = 181
    2.2.3 Concluding remarks = 184
   2.3 Laws Regulating Equity Joint Ventures between Foreign and Local Enterprises = 184
    2.3.1 The post-socialist states of Eastern Europe = 187
    2.3.2 The People’s Republic of China = 188
    2.3.3 The Soviet Union and its successor states = 192
    2.3.4 Concluding remarks = 193
   2.4 ‘Screening Laws’ = 194
    2.4.1 Screening laws in LDCs = 195
    2.4.2 Screening laws in economically advanced countries = 197
    2.4.3 Concluding remarks = 203
  3 Concluding Remarks : the Movement towards Liberalization of Controls over Foreign Investors = 203
 7 Measures for the Encouragement of Inward Direct Investment = 222
  1 The Encouragement of Inward Direct Investment by Host States = 222
   1.1 Host States without Specialized Controls on Inward Direct Investment = 223
   1.2 Investment Incentives = 225
   1.3 Export Processing Zones(EPZs)and Related ‘Policy Enclaves’ within the Host State = 228
    1.3.1 The evolution of EPZs = 228
    1.3.2 The principal legal and administrative features of EPZs in developing host states = 230
    1.3.3 The performance of EPZs = 233
    1.3.4 The Chinese ‘special economic zone’ policy = 234
  2 Bilateral and Multilateral Measures for the Encouragement of Direct Investment = 238
   2.1 Regional Arrangements Dismantling Barriers to Inward Investment = 238
    2.1.1 The North American Free Trade Area = 239
    2.1.2 The Single European Market = 245
   2.2 Multilateral Arrangements Dismantling Barriers to Inward Investment = 247
    2.2.1 The OECD Codes of Liberalization = 248
    2.2.2 The Uruguay Round and direct investment issues = 250
  3 Concluding Remarks = 260
 8 Taxation Problems Associated with MNEs = 277
  1 International Double Taxation and MNEs = 277
  2 Location of Investments and Tax Considerations = 280
  3 Tax Avoidance and MNEs = 282
   3.1 The ‘Transfer Pricing’ Problem = 282
    3.1.1 Establishing transfer prices in MNE networks = 283
    3.1.2 Incentives, disincentives and empirical evidence for transfer price manipulations = 286
    3.1.3 The regulation of transfer price manipulations : arm’s length and comparable profit interval(CPI) = 288
    3.1.4 Formula apportionment = 299
   3.2 The Use of ‘Tax Havens’ by MNEs = 303
  4 Concluding Remarks = 307
 9 Group Liability and Directors’ Duties = 322
  1 The Regulation of MNE Group Liability under Existing Legal Principles = 323
   1.1 Equity Based MNE Groups = 323
    1.1.1 Direct liability of the parent company = 323
    1.1.2 Lifting the corporate veil = 325
   1.2 Liability of Transnational Network Enterprises = 327
  2 New Approaches to MNE Group Liability = 328
   2.1 The ‘Enterprise Entity’ Theory and Its Limitations = 328
   2.2 Towards a New Law of MNE Group Liability? = 330
  3 Protection of Minority Shareholders in the Subsidiary of a MNE = 333
  4 Protection of Creditors upon the Insolvency of the Subsidiary of a MNE = 336
  5 Concluding Remarks = 339
 10 Accountability and Disclosure = 346
  1 Principal Motives and Interests behind Enhanced MNE Accountability and Disclosure = 346
  2 Reforming the Internal Structures of MNEs to Ensure Accountability = 349
   2.1 The Use of Non-executive Directors on the Managerial Boards of MNEs = 349
   2.2 European Initiatives for the Enhancement of MNE Accountability = 350
  3 Disclosure by MNEs in Annual Accounts and Other Statements = 354
   3.1 Consolidated Financial Statements = 355
   3.2 Segmental Disclosure = 361
   3.3 Social Disclosure = 366
    3.3.1 Employee disclosure = 366
    3.3.2 Value-added statements = 367
    3.3.3 Environmental disclosure = 368
   3.4 Foreign Currency Translation = 371
  4 Concluding Remarks = 372
 11 Regulation through Antitrust Law = 384
  1 The Use of Antitrust Laws in the Regulation of the Anti-competitive Activities of MNEs = 384
   1.1 The Nature and Aims of Antitrust Regulation = 384
   1.2 The Incidence of Anti-competitive Conduct on the Part of MNEs and Regulatory Responses = 386
    1.2.1 Anti-competitive agreements and concerted practices = 387
    1.2.2 ‘Abuse of a dominant position’ or ‘monopolization’ = 393
    1.2.3 Mergers and acquisitions = 395
  2 International Developments in the Regulation of Restrictive Business Practices Undertaken by MNEs = 403
  3 Concluding Remarks = 411
 12 Technology Transfer = 425
  1 The Nature of Technology Transfer = 425
   1.1 ‘Technology’ and ‘Technology Transfer’ = 425
   1.2 The Generation and Use of Technology : the Interests of Technology-exporting and Technology-importing States Compared = 427
  2 Technology Transfer by MNEs and Its Legal Effects = 431
  3 Restrictive Terms in Technology Transfer Transactions = 433
   3.1 Restrictions on the Commercial Policy of the Technology Recipient = 433
   3.2 Restrictions on the Use of Technology on the Part of the Recipient = 435
  4 The Two Principal Models of Technology Transfer Regulation = 436
   4.1 The Developed Country Model = 437
   4.2 The LDC Model = 438
    4.2.1 Reserved approach to the protection of intellectual property rights = 438
    4.2.2 Specialized technology transfer laws = 442
  5 The Draft UNCTAD Code of Conduct on the Transfer of Technology = 444
  6 Concluding Remarks : the Demise of the LDC Challenge to the International System of Technology Transfer? = 446
 13 Labour Relations = 457
  1 The Evolution of the ILO and OECD Codes = 458
  2 General Policies of the Codes and Their Relationship to National Laws = 459
  3 Employment Issues = 461
   3.1 Employment Promotion = 462
   3.2 Equality of Opportunity and Treatment = 462
   3.3 Security of Employment = 464
  4 Training of Workers = 466
  5 Conditions of Work and Life = 467
   5.1 Wages, Benefits and Conditions of Work = 467
   5.2 Safety and Health = 469
  6 Industrial Relations = 470
   6.1 Freedom of Association and the Right to Organize = 470
   6.2 Collective Bargaining and Consultation = 476
   6.3 Examination of Grievances and Settlement of Industrial Disputes = 480
  7 Concluding Remarks = 480
Part Ⅲ The Emerging System of International Regulation = 491
 14 Renegotiation and Expropriation = 493
  1 The Restriction of State Sovereignty in the Field of Contractual Relations with Foreign Investors = 493
   1.1 The ‘Internationalization’ of International Investment Agreements = 494
   1.2 Sanctity of Contract and Stabilization Clauses = 496
  2 Renegotiation of International Investment Agreements = 497
  3 Expropriation of Foreign Corporate Assets = 501
   3.1 What Constitutes Expropriation? = 501
   3.2 The Legality of Expropriatory Measures under the Law of the Host State = 502
   3.3 The Legality of Expropriation at International Law = 503
    3.3.1 The conflict of norms in this area = 503
    3.3.2 The elements of lawful expropriation = 504
   3.4 The Issue of Compensation = 506
    3.4.1 The valuation of expropriated property = 506
    3.4.2 The measure of compensation = 511
    3.4.3 The settlement of claims through lump sum agreements = 513
  4 Investment Guarantee Schemes = 514
  5 Concluding Remarks = 519
 15 The Settlement of International Investment Disputes = 534
  1 The Limitations of Traditional International Dispute Settlement Mechanisms in MNE-Host State Relations = 534
  2 Alternatives to Diplomatic Protection : International Dispute Settlement Mechanisms Involving the MNE and Host State Inter Se = 537
   2.1 Ad Hoc Arbitration and Conciliation = 538
   2.2 Institutional Systems for International Dispute Settlement = 538
   2.3 The Contributions of UNCITRAL = 539
  3 The International Centre for the Settlement of Investment Disputes = 540
   3.1 The Aims of ICSID = 541
   3.2 The Washington Convention and Its Effect on State Sovereignty over Investment Disputes = 542
    3.2.1 The Contracting State’s ability to control jurisdiction = 542
    3.2.2 Subject matter jurisdiction = 546
    3.2.3 The delocalized character of ICSID arbitration = 547
    3.2.4 The extent to which an unfavourable decision of an ICSID tribunal can be challenged by the losing party = 551
    3.2.5 Enforcement of ICSID awards = 553
    3.2.6 Procedure and costs = 553
   3.3 The Use of the Convention = 555
    3.3.1 The membership = 555
    3.3.2 The caseload = 556
    3.3.3 The use of references to ICSID arbitration in investment agreements and national laws = 557
   3.4 Conclusion = 559
 16 The Codification of International Standards for the Treatment of Foreign Investors = 573
  1 The Andean Common Market(ANCOM) = 575
  2 The OECD Guidelines on Multinational Enterprises = 578
   2.1 The Policy of the Guidelines = 579
   2.2 The Legal Nature of the Guidelines = 580
   2.3 The Role of International Minimum Standards = 580
   2.4 The Scope of Application = 581
   2.5 National Treatment = 583
   2.6 Dispute Settlement = 587
   2.7 Substantive Provisions = 588
   2.8 International Investment Incentives and Disincentives = 591
   2.9 Concluding Remarks = 592
  3 The Draft UN Code of Conduct on Transnational Corporations = 592
  4 The Contribution of the World Bank : the 1992 Guidelines on the Treatment of Foreign Direct Investment and Standard Setting by MIGA = 597
   4.1 The 1992 World Bank Guidelines = 598
   4.2 The Standard Setting Provisions of MIGA = 602
  5 Concluding Remarks = 604
 17 Bilateral Investment Treaties = 617
  1 The Origins of BITs = 617
  2 The Principal Provisions Common to BITs = 619
   2.1 Preamble = 619
   2.2 Provisions Defining the Scope of Application of the Treaty = 620
    2.2.1 Application ratione materiae = 620
    2.2.2 Application ratione personae = 622
    2.2.3 Application ratione territoriae = 624
    2.2.4 Application ratione temporis = 624
   2.3 Standards of Treatment = 625
    2.3.1 General standards of treatment = 625
    2.3.2 Specific standards of treatment = 628
   2.4 Dispute Settlement Clauses = 632
    2.4.1 Disputes between the contracting parties = 632
    2.4.2 Disputes between the host state and the foreign investor = 633
  3 The Effect of BITs within the National Legal Systems of the Contracting States = 634
  4 The Use of BITs = 637
  5 Concluding Remarks : the Effect of BITs on the Content of International Law = 638
Index = 649


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