国际商法英文版：Chapter 4 Multinational Enterprise

1、CHAPTER 4THEMULTINATIONALENTERPRISE4-1CHAPTER 4THE MULTINATIONAL ENTERPRISETopics for this chapter:lStrategies for Doing Business GloballylThe Business FormlThe Multinational OrganizationlInternational Regulation of Multinational EnterpriseslHome State Regulation of Multinational EnterpriseslHost St

2、ate Regulation of Multinational Enterprises4-2Strategies for Doing Business Globally: Exporting and Importing Exporting does not require having a subsidiary in a foreign nation, nor does it require a joint venture or partnership with a foreign business entity. Exporting creates issues of transportat

3、ion, financing, contracting, and obtaining correct export licenses. An exporter will need an export manager, foreign sales agent(国外销售代理）, or a foreign distributor（分销商）.4-3Cargo ship loaded for another oceanic crossingStrategies for Doing Business Globally: Branches（分支机构） & Subsidiaries（子公司） Branch o

4、ffices can be set up by foreign companies in the US by registering with the appropriate state agency. A company may hire a foreign agent to act as a company representative. The agent may: Conduct market analysis Engage in product promotion Serve as an import representative The laws of the host count

5、ry determine what an agent may or may not do. Company is not subject to foreign nations regulations when all they have is an agent.4-4Strategies for Doing Business Globally: Bank Branches China Merchant Bank has received approval from the Federal Reserve to open a NY branch. With the heightened thre

6、at from unstable banks, the Federal Reserve is tightening the application process to establish foreign branches in the U.S. The foreign parent bank must be subject to comprehensive supervision by banking authorities in the home country.（母国）4-5Licensing Intellectual Property（知识产权） and Franchising（特许经

7、营） Licensing a companys intellectual property rights is a common way to gain entry into a foreign market. A license is a contractual grant of a legally recognized right. In addition to allowing use of material that is protected by patent, trademark, or copyright, the licensee may also be allowed to

8、use: trade secrets（商业秘密） trade dress（商业外观设计） technological methods, or （技术方法） business plans and processes. （商业计划和程序）4-6The Business Form:In Civil Law States In civil law states, every form of business organization is a company（社团）. A company is an association of persons or of capital organized for

9、the purpose of carrying on a commercial, industrial, or similar enterprise. These companies may be a corporation or a partnership.4-7Business Forms in Civil Law States In some civil law states like France, all companies are viewed as juridical entities(法人法人), meaning they have a legal existence inde

10、pendent of their owners. In Germany and the US, corporations are juridical entities, but partnerships are not. A partnership(合伙) is a company of two or more persons who co-own and manage a business and are each liable to the full extent of their personal assets. 4-8Civil Law Partnerships In a limite

11、d partnership（有限合伙）（有限合伙）, at least one partner must be a general partner（普通合伙人） with unlimited personal liability for the debts of the business. There must also be at least one limited partner（有限合伙人） who is liable only up to the amount of their investment. Some countries allow silent partnerships（隐

12、名合伙）（隐名合伙） where one partner carries on the business in his or her own name without revealing the participation of a limited liability partner.4-9Civil Law CorporationsTwo basic types of civil law corporations:1. Stock corporation（股份公司）: Can raise money in the public marketplace through the sale of

13、freely transferable shares. Financial statements（财务报表） must be disclosed to the public.a. Articles of Incorporation（公司章程）: instrument creating and defining a particular corporation. Must be filed with state agency at time of formation.4-10Formation of Stock Corporationb. By simultaneous incorporatio

14、n, promoters（发起人） form a syndicate to purchase the shares. Only after formation are the shares sold to the public.c. A minimum capitalization（最低注册资本）is required. Civil law states generally do not recognize authorized but unissued shares. Entire capital must be subscribed（认购） before formal organizati

15、on. 4-11Formation of Stock Corporationd. Once subscriptions have been paid, board of directors（董事会） are elected at organizational meeting.e. After registration of Articles of Incorporation and notice of registration is published, the stock corporation comes into existence.f. Must be more than one su

16、bscriber, but shares can be transferred to anyone. France requires at least seven shareholders.4-12Formation of Stock Corporationg. Once subscriptions have been paid, board of directors are elected at organizational meeting.h. After registration of Articles of Incorporation and notice of registratio

17、n is published, the stock corporation comes into existence. 4-13Formation of Stock Corporation i. Shareholders:1) Elect board of directors2) Review annual statements3) Declare dividends（红利）j. Quorum（法定人数）: Number of persons or number of total shares represented, that must be present at a meeting for

18、 official action to be taken.k. Financial statements（财务报表） are public. 4-14Civil Law Corporations2. Limited Liability Company（有限责任公司）（有限责任公司）: A corporation that does not issue negotiable share certificates and is subject to minimal public disclosure laws.a. Popular corporate business entity.b. Wide

19、ly used for setting up subsidiaries.c. Formation is similar to corporate formation in France and Germany. The LLC files Articles of Incorporation, capital is subscribed, organizational meeting is held, board of directors is elected, articles are registered. 4-15Limited Liability Companiesd. Minimum

20、required capitalization varies from country to country.e. Investors are called members, not shareholders.f. Members do not own shares, they own a participation.g. Members meet informally if agreed.h. Transferring ownership is difficult and may be subject to “right of first refusal”（优先购买权） of other m

21、embers to purchase. 4-16Business Forms in Common Law States: Common law states include England, the US, and British Commonwealth countries. Common Law Partnerships: Association of two or more persons who co-own and manage a business for profit. Each partner is liable to the full extent of their pers

22、onal assets for debts. Not a tax-paying or juridical entity. Income of partnership is allocated to partners as personal income. 4-17Common Law Partnerships Limited Partnership （有限合伙） Consisting of one of more general partners who manage the business and are liable to the full extent of their assets

23、and one or more limited partners whose liability extends only to the amount of their investment. Limited partnership is not a juridical entity. Secret partnership （隐名合伙） participation of one or more partners is not disclosed to the public. All of the partners have unlimited personal liability. 4-18C

24、ommon Law Partnerships: The Limited Liability Company Recognized only in the United States. The LLC is an unincorporated association that is treated as a partnership for tax purposes and provides limited liability for its members. Popular because not subject to corporate taxation. Members in LLC may

25、 participate in management without subjecting themselves to personal liability.4-19Limited Liability Company May delegate management to managers who do not need to be members of the LLC. Formed by filing Articles of Organization with the state. Must file yearly report but pays no yearly franchise ta

26、x or income tax. Management set out in Operating Agreement that is not a public document. Agreement deals with voting rights, right to distributions, and restrictions on transfer of members interests.4-20Common Law Business Trust （商业信托） Business arrangement that exists only in the US in which: Owner

27、s of a property, known as beneficiaries（受益人）（受益人） Transfer legal title（普通法上的所有权） to that property to a trustee（受托人）（受托人） Trustee manages property for them Beneficiaries hold transferable trust certificates entitling them to income generated by the property and a residual equitable share at the time

28、the trust is terminated Trustee has unlimited personal liability Beneficiaries have limited liability4-21Common Law Corporations The three kinds of common law incorporated business entities are: Public corporations Private corporations Limited liability company Some common law countries also recogni

29、ze: Unlimited liability corporations No liability corporations4-22Public CorporationsRecognized throughout the common law world.Organized by filing two documents:1.Memorandum of Association （组织大纲） describes the basic details of the firm.2.Articles of Association（组织章程） describe the internal regulatio

30、ns of the corporation.In England, only two subscribers are needed but there is a minimum capitalization requirement of 50,000.4-23Public Corporations In the US, there only has to be one subscriber and there is no minimum capitalization requirement. May issue a larger number of shares than are needed

31、 to start. Authorized but unissued shares are allowed in addition to the issued shares that constitute the corporations capital. Par shares（额面股）（额面股）are the only shares allowed in England. No par shares are the norm in the US. Their price is set by the board of directors.4-24Public Corporations: Sto

32、ck Stock issued in US and England can be classified. Preferred stock Entitles owners to: guaranteed dividend priority at the time of liquidation priority over common shares The U.S. allows cumulative voting（累积投票）（累积投票）, a system of voting by which a voter, having a number of votes equal to the offic

33、es to be filled, may split their vote as they see fit.4-25Public Corporations:Shareholder MeetingsFormal shareholder meeting required in England while actions in the US can be by written consent rather than at a formal meeting.Quorum（法定人数） for meetings: England two shareholders US simple majority（1/

34、2以上）of voting shares, though Articles of Incorporation may set at lesser amount, such as a third or a fourth of voting shares.4-26Public Corporations:Shareholder MeetingsIn US, board of directors may set dividends subject to requirements that:1. The corporation be solvent.2. Issuance does not violat

35、e the Articles of Incorporation.3. The source of the dividends be of a certain type (i.e., earnings surplus).4-27Private Corporations(U.K.)Corporation that may not ask the public to subscribe to its shares, bonds, or other securities. It is subject to less stringent public disclosure laws.Incorporat

36、ion documents usually restrict transfer of shares.In US, these small corporations are known as close or closely held corporations.(U.S.)4-28Advantages of Private or Closely Held Corporations Advantages of organizing as close corporation: May dispense with many corporate formalities. In England, may

37、appoint a single director instead of a board. Shareholder may grant proxy rights（代理权）（代理权）. In US, may entirely dispense with board of directors and corporation run by shareholders. Unlimited liability company (U.K.) Only in England and Commonwealth countries. Members are liable in the event that it

38、 is wound up and assets are insufficient.4-29Importance of Separate Legal Identity Important consequences of the separate legal identity of juridical entities: Liability of owners is limited to their investment. Rights and benefits accruing to the company belong to the company, not the owners. The c

39、ompany can own its own property, trade secrets, formulas, etc. Owners are neither managers nor agents nor representatives of the company. They cannot act for the company or create liability for the company by their actions.4-30Case 4-1Case Concerning Barcelona Traction, Light & Power Co. (Belgium v.

40、 Spain) Barcelona Traction (BT) was Canadian corporation injured by the actions of Spain. Alleged 88% of shareholders were Belgian. Canada chose not to bring suit in the ICJ. Belgium brought suit. Spain objected because only BT was injured and was not a Belgian corporation.4-31Case 4-1Case Concernin

41、g Barcelona Traction Court found that the injured party was the company and not its owners. Therefore, Belgium could not bring suit against Spain on behalf of the Belgian owners. A corporation is an entity independent of its shareholders. When a shareholders interests are harmed by an act done to th

42、e company by a nation-state, it is the company that must seek judicial remedies. 4-32Seal of the International Court of JusticeThe Multinational OrganizationLarge business firms use differing organizational structures to carry on operations internationally. Parent companies take on the following for

43、ms:The Non-multinational EnterpriseA domestic firm that operates internationally through independent foreign agents. The agent （代理人）may act for the principal（委托人）as:A sales representative to sell goods or services, orA factor（代理商）（代理商） to buy good or procure services for the principal.Relationship g

44、overned by agency contract law.4-33The Multinational OrganizationThe National Multinational EnterpriseAn enterprise organized around a parent firm established in one state that operates through branches and subsidiaries in other states.Branch （分支机构） a unit or a part of the parent (assembly plant, pu

45、rchasing office, manufacturing plant).Subsidiary（子公司） a company organized as a separate entity that is owned by the parent. 4-34The National Multinational Enterprise The following chart demonstrates part of the DaimlerChrysler corporate organization. DaimlerChryslerGerman ParentChryslerUnited States

46、Division of Parent FreightlinerUnited StatesTruck Mfg.SubsidiaryWestern StarCanadaTruck Mfg.SubsidiaryDetroit DieselUnited StatesHeavy Motor Mfg.Subsidiary4-35The InternationalMultinational Enterprise An enterprise made up of two or more parents from different states that co-own subordinate operatin

47、g businesses in two or more states. The Royal Dutch/Shell Group is an example: 4-36The Subordinate StructureA company may create the following subordinate entities to establish a foreign presence: Representative office A contact point where interested parties can obtain information. It does not cond

48、uct business. Agent An independent person or company with authority to act on behalf of another. Branch Unit or part of a company, such as an assembly plant. It is not separately incorporated. 4-37The Subordinate StructureDisadvantages of representative offices, agents, and branches are:1. Parent ha

49、s to assume all of the risk of investing abroad,2. A foreign firm is often taxed at a higher rate,3. Many developing states require local participation in order for foreign firm to invest or expand its local environment.4-38The Subordinate StructureSubsidiary Company owned by a parent or a parents h

50、olding company. Unlike a branch, it is separately incorporated.Joint venture An association of persons or companies collaborating in a business venture.Can assume any type of business form, e.g., LLC, limited partnership, or association.Can be a specific limited project or a continuing business rela

51、tionship.Holding company Company owned by a parent or parents to supervise and coordinate the operations of subsidiary companies. 4-39 2009 Pearson Education, Inc publishing as Prentice HallThe International Regulation on Multinational Enterprise International guidelines for ethical behavior by mult

52、inational enterprises are mostly voluntary.The exception is the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The convention requires state parties to outlaw the active bribery of foreign officials. States pass their own anti-bribery criminal sta

53、tutes.The US passed the Foreign Corrupt Practices Act in 1977.4-40Home State Regulation of Multinational EnterprisesMultinational enterprises are regulated within a state the same as a national enterprise. Important forms of national regulation are:1.Regulation of competition（竞争法）2.Regulation of inj

54、uries caused by defective products（不合格产品的侵权）3.Prohibition of sharp sales practices（禁止欺诈销售）4.Regulation of securities（证券法）5.Regulation of labor and employment（劳动法）6.Establishment of accounting standards（会计准则）7.Taxation （税法）4-41Home State Regulation of Multinational Enterprises Unfair Competition Laws

55、 In the US, the principal law regulating anticompetitive practices is the Sherman Antitrust Act of 1890. Section 1: Forbids combinations & conspiracies in restraint of interstate and international trade. Apply this section by using the rule of reason. Factfinder weighs all of the circumstances of th

56、e case in deciding whether a restrictive practice should be prohibited.4-42Home State Regulation of Multinational Enterprises Certain acts are automatically illegal or per se（本质上） violations of Section 1:Horizontal price fixing（横向价格固定）（横向价格固定） Competitors at same level agree to charge same price. Ve

57、rtical price fixing（纵向价格固定）（纵向价格固定） Seller at one level sells to buyer at different level who agrees to not resell below a set price.Horizontal market division（横向市场划分） Agree not to sell in each others territories.Joint refusals to deal （联合抵制） Group boycotts. 4-43Home State Regulation of Multinationa

58、l Enterprises Section 2 of the Sherman Antitrust Act Forbids monopolies and attempts to monopolize interstate and international trade. Applies to the conduct of one firm if it is a dominant firm. To show violation usually look for circumstantial evidence such as: Discriminatory pricing（歧视性定价） Dumpin

59、g（倾销） selling goods for less than production cost Using tying clauses （附带条款） requiring purchaser of one product to buy another product4-44Home State Regulation of Multinational Enterprises Clayton Act of 1914 expanded enforcement provision and defined certain illegal acts, including: Exclusive deali

60、ng （排他性交易）and tying clauses（附带条款） Mergers（兼并） that result in monopolies Interlocking directories（连锁董事） Robinson-Pitman Act of 1936 forbids price discrimination. Law may be enforced by U.S. Justice Department (criminal suits), U.S. Federal Trade Commission (civil suits and injunctions禁令), and by priv