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The Ambassador

TNK-BP, Party Autonomy, and Third-Country Mandatory Rules

By Delphine Nougayrède

Abstract: This Article describes the tension between party autonomy in contractual matters and the ability of states to regulate activities that affect their economy through competition laws. Focusing on the example of a recent dispute between British oil giant BP p.l.c. and Russian oil company TNK-BP regarding a noncompete clause, this Article illustrates what little effect third-country mandatory rules actually have on transnational contractual practice. This is true despite provisions in European private international laws that were intended to give courts and tribunals discretion to give effect to such “mandatory rules” or “overriding mandatory provisions,” including the 1980 Rome Convention and the 2008 Rome I Regulation on the Law Applicable to Contractual Obligations. This Article illustrates the power of party autonomy and transnational corporate and contractual structuring to circumvent the application of third-country laws—in this case, Russian competition law.

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Data Protection in India: The Legislation of Self-Regulation

By Adrienne D’Luna Directo

Abstract: As the importance of data privacy has garnered national and global attention over the past two decades, nations around the world have struggled to effectively and timely regulate the protection of sensitive personal information. India, the widely recognized country of choice for outsourcing, faces stiff competition from countries seeking to capture some of India’s outsourcing market share. The Indian Central Government and Indian outsourcing firms thus have a particular stake in assuring American and European corporations that their data privacy concerns are being proactively addressed. This Comment explores the history of outsourcing, including the popularity of outsourcing as a corporate cost-savings mechanism, and why India has been favored by corporations in developed nations seeking viable outsourcing destinations. Additionally, this Comment discusses data privacy and its relation to outsourcing, and concludes that the Indian Central Government has a unique opportunity to leverage the work done by the Data Security Council of India— the Indian Information Technology-Business Process Outsourcing industry’s self-regulatory organization—to ensure that Indian outsourcing firms adhere to a more comprehensive regulatory regime governing data privacy. By utilizing its opportunity, India can maintain its position as the outsourcing destination of choice for American and European corporations.

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Patenting Human Genes Violates Laws of Nature, Impedes Patient Care, Stifles Research, and Inhibits Long-Term Business Opportunities

By Anna Farias-Eisner

Whether human genes should be patentable is highly contested. While
Australia and the European Union support the patentability of isolated human genes, the U.S. Supreme Court held otherwise in Association for Molecular Pathology v. Myriad Genetics, Inc. (AMP), sending shock waves through the medical, legal, and pharmaceutical arenas. Using the AMP decision as a legal framework and viewing the debate through a biological lens, this Note argues that human genes are products of nature and therefore are not patentable. Patents on human genes violate the purpose of patent laws in the United States, Australia, and the European Union. They also perversely affect patient care, scientific research, and the pharmaceutical marketplace. Science, medicine, and business will flourish without these gene
patents.

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Competition Law and Policy in the Developing World

By Alexander Spano

Competition Law and Development is the second book in the new series Global Competition Law and Economics edited by D. Daniel Sokol, Thomas K. Cheng, and Ioannis Lianos and published by Stanford University Press.  This volume provides “a number of viewpoints of what competition law and policy means both in theory and practice in a development context.” As the volume makes clear, developing countries have certainly made great progress in the area of competition law.  Still, the application of new competition rules inevitably encounters several obstacles, and their effectiveness also depends on the implementation of other institutional and legal reforms.  Expected challenges relate to issues pre-dating the enactment of competition law: the ongoing process of economic transition that developing countries pursue.  Thus, although competition law and policy certainly represent a stimulus to accelerate economic reforms and establish a competitive market environment, this should not be seen as an isolated step.  Without an adequate legal and institutional infrastructure, the ambitious market reform initiatives of developing countries may not achieve their desired success.

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Reversing the Tide: A Targeted Approach to the Regulation of Chinese Reverse Mergers in the United States

By Josh Steinman

With the unprecedented growth of the Chinese economy, an increasing number of Chinese companies have sought to access the American capital markets.  In recent years, many Chinese companies have done so by employing transactions known as reverse mergers.  A Chinese Reverse Merger (CRM) involves a privately held Chinese operating company utilizing a suitable shell company, or kegongsi, as a vehicle for trading its shares in the United States.  Over the past several years, reverse mergers have been the preferred mode for Chinese companies to become publicly traded in the United States, and CRMs have comprised a substantial proportion of the overall number of reverse mergers.  These transactions have garnered a significant amount of public scrutiny due to numerous instances of fraud, accounting deficiencies, and other nefarious activities.

 To a certain extent, the skepticism of CRMs expressed by commentators, scholars, and regulators is warranted.  However, the current regulatory trend aimed at reverse mergers, and CRMs in particular, is not the ideal approach to curb fraud among CRM companies.  CRMs are not inherently problematic, and regulations that unduly burden reverse merger transactions in the United States may have a chilling effect on American capital markets.  More efficient laws would involve a continued push towards cooperation with Chinese authorities.  This collaboration should allow the Public Company Accounting Oversight Board to play a more prominent role in the inspection of Chinese audits and provide the U.S. Securities and Exchange Commission with the ability to require the disclosure of filings with Chinese regulators.  These measures would target the primary means by which CRM companies engage in fraud—namely, misrepresenting their financial health and taking advantage of the lack of cooperation between China and the United States to provide Chinese and U.S. regulators with drastically different filings.

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Getting the World Bank Out of Development’s Way: The Case for a Project Finance Exception to the World Bank Negative Pledge Clause

By Kate Barth

During the tumultuous fiscal years of the past few decades, the World Bank, acting in its capacity as a lender of last resort, granted unsecured loans to debt-ridden sovereigns.  Instead of taking a lien over the state’s assets, the World Bank protected its interests via a broadly worded Negative Pledge Clause.  This clause ensures that any lien created on any public assets as security for external debt that results in priority for a third-party creditor equally and ratably secures all amounts payable by the borrowing state.  In short, should such a lien be granted, the World Bank shares in the amounts paid out to the third party creditor, thus preventing the creditor from enjoying senior creditor status and undermining the value of any later-granted lien.  Including the Negative Pledge Clause in World Bank loan agreements helps mitigate the World Bank’s risk of providing unsecured loans by ensuring that a developing nation will not give a later creditor priority over its assets.  In theory, such a pledge protects both the World Bank as a creditor and the sovereign nation as the debtor.  However, the barrier that the Negative Pledge Clause constructs around a state’s ability to engage with other creditors is so formidable that the clause may prevent the state from attracting commercial investment for project financings.

As currently drafted, the Negative Pledge Clause dissuades commercial lenders from investing in exactly the kinds of projects that might further development and enrich a nation (thus strengthening the nation’s ability to pay back its debts).  This is not only unfortunate for the developing countries involved, but also challenges the raison d’être of the World Bank, a multilateral institution designed to promote development.  This article proposes reforming the Negative Pledge Clause by clarifying the language of the text and the consequences of a breach in a way that narrows the breadth of the clause.  This article also argues that the World Bank would better achieve its overall purpose of promoting development by including a project finance exception to the Negative Pledge Clause in an effort to attract investors to projects that help expand the debtor nation’s infrastructure.

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India’s SEZ: Victims of Ideology

By Amitendu Palit

In response to Sumeet Jain’s article, “You Say Nano, We Say No-No:” Getting a “Yes” Instead for Special Economic Zones in India, Amitendu Palit challenges Jain’s position that greater incorporation of public views and procedural reforms will generate more favorable perceptions of India’s Special Economic Zones (SEZs) policy.  Though Palit acknowledges that the opposition to SEZs stems from the lack of debate or discussion around the implementation of these development zones, he does not agree that SEZs will gain more support with an increased induction of public opinion and technical improvements in SEZ policy.

At bottom, the underlying conflict between “market-based” and “rights-based” approaches to industrial development in India must be settled.  According to Palit, it is unclear whether regulation negotiations, even if fixed specifically on the issue of acquiring land for industry and SEZs, can yield the right solutions unless proponents of both approaches are primed to better appreciate each other’s positions.

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Mapping the (New) Limits of Antitrust

By Marek Martyniszyn

The Global Limits of Competition Law is the first book in the new series Global Competition Law and Economics, edited by Ioannis Lianos and D. Daniel Sokol, and published by Stanford University Press.  The aim of this new series is to analyse “how law, economics, and institutions respond to an increasingly global and interconnected antitrust community.”  While acknowledging that economic concepts are used as a common vocabulary in the ongoing international discourse on competition law, the series editors recognize that there are also other important features calling for analysis and understanding.  For example, institutional framework and culture play an important role in competition law and policy.  In their words, “Too often policy makers merely reference the ready-made solutions adopted by more established competition law systems . . . without due regard to local factors.”  Hence, this series carries a promise of being a valuable outlet for rigorous thinking about competition law from a broader perspective, both geographically and more importantly conceptually.

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