Issues

The growing importance and sophistication of State capitalism and associated implementation of governmental policies through State economic entities, such as State-owned banks, State-owned enterprises, monopolies, and other entities close to the government, has given rise to a perception that existing international law rules are inadequate to effectively accommodate the activities of such entities. Sole reliance on customary international law principles of attribution has proven particularly problematic where governments maintain links with their economic entities that create a risk of the latter being used as conduits for governmental action. Such links may exist in a variety of forms beyond mere ownership, such as voting rights, appointment powers, the occupation of board seats by governmental ministers, private firms’ managers’ concurrent governmental posts, the imposition of governmental oversight committees within firms, coordination of economic activity in a given industry through chambers of commerce composed of former governmental ministries, overlapping board membership amongst private and State firms, and other means of directly influencing such entities beyond general regulation. This opaque relationship between the government and State economic entities may allow governments to circumvent international law obligations by channeling acts through those entities and casting such acts as private economic activity not attributable to the State. States are increasingly elaborating primary rules to overcome the perceived risks associated with State capitalism, most prominently in modern preferential trade and investment agreements. While varying in content and scope, these rules generally hold States accountable for the activities of their State economic entities by requiring the State to ensure that such activities be in compliance with the State’s treaty obligations. In this regard, they resemble classic international law standards of due diligence. Commentators and tribunals, however, have struggled in construing these provisions on State economic entities and how they interact with underlying attribution principles. This paper considers to what extent these provisions are characterized by the due diligence standard of international law. It argues that they provide a flexible means of regulating the activities of State economic entities without regard to whether their acts would be attributable under secondary attribution rules. Requiring States to exercise due diligence over their State economic entities thus addresses the perceived risks arising out of the closeness of those entities to the State without the need to make the State fully responsible for all their actions in all scenarios.

We provide a comparative analysis of regulatory competition among Singapore, Hong Kong, Mainland China, and Taiwan regarding the process, purpose, and actual results of deregulating Dual-Class Share (“DCS”) structure. The comparative analysis focuses on the role of regulatory competition in the convergence or divergence of DCS-structure regulations. To attract unicorn companies and China Concept Stock (“CCS”) companies to choose public offerings in regional exchanges, Hong Kong, Singapore, and Mainland China sequentially announced their amendments to listing rules, particularly in 2018, to allow public offerings of DCS-structure companies while considering their preference for the ownership structure of unicorns. We employ theories of regulatory competition and convergence to analyze the regulatory trajectories of the four jurisdictions in the Asia-Pacific region and how such jurisdictional competition would accelerate the transplantation of corporate governance regulations and, therefore, converge with the US permissive model in appearance. Hong Kong, Singapore, and Mainland China have transplanted the DCS-structure listing regulatory framework and added shareholder protection, particular disclosure, and sunset restrictions, which converge more in concert with each other towards the US model. We also discuss why and how stubborn path dependence would bring non-convergence towards the US model for listing companies in Taiwan, which is an outlier of the regulatory competition for global listings. By analyzing this competition by supplying DCS legal products among the four jurisdictions, we enrich the regulatory competition theory and study how this competition produces formal convergence and functional divergence of DCS structures in corporate governance regulations. We contribute to the existing literature by providing a comparative view of regulatory competition among the four jurisdictions and examining the potential impact of the US-China trade war on the deregulation of the DCS structure in the Asia-Pacific region.

Currently, the European data protection regime has become one of the most influential legal frameworks regulating data privacy protection and cross-border personal data transfers. Despite a burgeoning body of scholarship on EU data protection law, the questions of why and how the EU adopted this regulatory approach remain understudied. Contrary to conventional wisdom, European data protection regulation is neither preordained by Europe’s historical or cultural legacies, nor simply a result imposed by powerful EU member states out of national economic interests. Instead, this work argues that this legal regime is the result of contentious lawmaking processes aimed at addressing regulatory challenges and altering existing institutional rules. Drawing on the analytical lens of forum-shifting from international relations scholarship, it provides a novel explanation for the emergence and evolution of European data protection law, revealing salient power dynamics shaping the legal and policy outcomes. At the core, this article explores how a powerful coalition of privacy-focused institutional actors in Europe leveraged asymmetrical power resources to impose their policy preferences at the Union level, and deployed forum-shifting as a lawmaking strategy to create, reform, and develop EU data privacy standards, thereby profoundly shaping supranational rulemaking. Further, this article also examines the normative and policy implications of these forum-shifting processes for the transatlantic legal frameworks governing personal data transfers from Europe to the U.S. By analyzing the pivotal role of these pan-European rulemaking efforts in shaping EU-U.S. commercial data transfer mechanisms, it delves into the power dynamics underpinning the establishment and iterative development of the transatlantic data governance regime.