National and International Regulation of Global Business

This seminar will provide an overview of the multiple ways in which the United States and other national governments and the European Union have sought to regulate and otherwise influence the conduct of multinational enterprises (MNEs), state-owned enterprises (SOEs), private equity firms, and their cross-border business transactions. The conduct of MNEs has for many years given rise to a range of concerns: MNEs are often large and wealthy, in some cases with annual revenues that dwarf the GNPs of many of the countries in which they do business. MNEs can move financial resources and operations across borders with relative ease, resulting in the relocation of factories and jobs, and potentially undermining national efforts to regulate their conduct. They can influence political and governmental decision-making, both legally and through corrupt payments. Their size may drive out local businesses, or create market dominance that undermines competition. They may threaten national security, or exercise control over national natural resources or critical infrastructure. In recent years SOEs have raised additional concerns, due to the potential for their governmental owner to use them as instruments of political influence, the level of subsidy that their government’s support may provide, and other perceived threats. In response to these concerns, national governments have limited or prohibited foreign investment in one or more sectors, imposed conditions on investment or trade, prohibited MNEs from investing in, doing business with, or transferring technology to, certain other countries, and prohibited harmful corporate bribery, abusive labor practices, etc. But the capital, technologies and expertise that MNEs (and SOEs) can bring to new markets is often highly sought, as a driver of economic growth, a provider of jobs, and a source of foreign exchange. As a result, investments are encouraged by bilateral investment treaties (BITs), bilateral tax treaties, and national policies designed to attract foreign investment. These arrangements are not without their critics, who argue they can undermine legitimate exercises of national sovereignty, facilitate tax avoidance, and give rise to unnecessary economic distortions. Businesses are today under both legal and social pressures to consider environmental, social and governance (ESG) factors, exercising what has been labelled corporate social responsibility. These initiatives, while applauded by many, face sharp criticism by others. The objective of this seminar is to provide participants with both a practical and conceptual introduction to this rapidly evolving legal environment. For a summary of the range of topics to be discussed, see Seminar Schedule below.