In Comrades We Trust--the Expatriation of Us Legal Managers by Chinese Multinationals

Abstract : The expansion of China-based multinational companies (MNCs) present new theoretical and policy questions. A pressing one, in light of the rising tensions between China and the US, concerns Chinese MNCs’ capacity to navigate the intricate US legal system. This article begins to address the question by analyzing Chinese MNCs’ US legal managers. Survey data and in-depth interviews reveal considerable heterogeneity in the US legal management positions at the MNCs, and among those having established such positions, a significant minority chose to deploy expatriates instead of relying on local recruits. Moreover, due to home-state institutional pressure and high transaction and agency cost, state-owned Chinese MNCs are more likely to assign trusted colleagues to supervise the US legal matters. The findings contribute to ongoing debates about Chinese MNCs and outbound investment, US-China relations, state-owned enterprises, corporate legal capacity of MNCs, and human resource management in specialty areas.

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Levelling the Field Through Transnational Regulation

Abstract : This paper identifies factors that may lead businesses to advocate for transnational regulation addressing business conduct. While businesses may initially resist such regulation, they may opt for it in situations of differential regulation that raises their costs relative to their peers. Transnational regulation offers them a means to reduce competitive losses by distributing compliance costs on to peers. Differential regulation is necessary but insufficient to result in corporate advocacy for an international agreement or other form of transnational regulation. Instead, other factors influence the strength or weakness of those preferences for transnational regulation, such as (a) extent of global footprint, (b) net gain or loss resulting from heightened compliance costs, (c) targets for regulatory change: (domestic, foreign, or global), d) pathways for regulatory change (private ordering, lobbying, and transnational), and (e) market participation rates. These factors explain business preferences for transnational regulation when that company is regulated in a jurisdiction that mandates a higher standard. It also explains that similar factors may also lead companies incorporated in unregulated jurisdictions to prefer transnational regulation when they adhere to a higher standard because of standardization drivers and susceptibility to private regulation.

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A Theory of Boilerplate in International Agreements

Abstract : In international agreements, states use language that has stood the test of time. Such settled language may be efficient and further legal certainty but may also have a dark side. In private contracts, boilerplate is Janus-faced: efficiency and certainty; but also take-it-or-leave-it unilateralism. In that context, boilerplate has been found to confer significant advantages on companies at the expense of consumers. By contrast, we know little about boilerplate’s role in public international law, despite its theoretical and practical importance. How boilerplate operates in international law could differ substantially from domestic law. This paper develops a theory on boilerplate in public international law and asks: (1) how does boilerplate affect bargaining, and (2) why do states use boilerplate? (3) where does boilerplate come from and what are the patterns of its diffusion; and (4) how does boilerplate contribute to international law making. It challenges the conventional wisdom that international agreements are closely negotiated and highly responsive to varying constellations of national interests and country circumstances. The implications for the negotiation of agreements and for international cooperation could be significant.

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