The IBLA Returns from Mid-Summer Break to Celebrate Year One.

After taking part of the summer off to spend time with my family, I'm happy to be back blogging to celebrate year one of this blog. Ok, so it's technically still a few weeks away but I just  couldn't wait to get an early start on year two.

Stepping away from my work-life for a few weeks has been wonderful. My 20-month old daughter is growing-up so quickly.  I do look forward to the day when she will be able to participate as a guest blogger and share her unique worldview on international events. 

Spending time with her this summer has taught me  things about the world I might have otherwise overlooked but for this brief vacation from my hectic daily life.

I hope the insight and wisdom I have gained has made me a better listener and by extension---a better writer.

I look forward to another amazing year of blogging about the latest international developments and trends.

If you enjoyed year one, you're really going to love year two!

Enjoy the rest of the summer.

      -Santiago

BP is a British Corporation Funneling Profits Overseas, Right? Not Exactly.

The New York Times published an interesting article this past Sunday on the growing displeasure in Britain over use of the name “British Petroleum” by top federal officials in the United States in referring to the company responsible for the gulf oil spill.

It will be interesting to see whether President Obama will use the name "British Petroleum" tonight in his State of the Spill Speech.

If he does, it will be sure to stoke the embers of discontent into a firestorm of controversy among our friends in the United Kingdom.

The British will have good reason to be upset. And not just because the company did, in fact, formally change its name to BP several years ago.  

A large segment of the media has failed to highlight BP’s deeply intertwined financial interests with powerful forces in the United States.  

As the NY Times noted, 39 percent of the company is owned by American shareholders and six Americans – half the total – sit on its board of directors.

Here’s a partial list of America’s largest shareholders (courtesy of the NY Times):

The company’s single largest shareholder is the sprawling asset management firm BlackRock, based in New York City, which owned the equivalent of more than one billion shares of BP stock just two weeks before the Deepwater Horizon blowout, according to the financial analysis firm Capital IQ. (Bank of America owns a 34.1 percent stake in BlackRock.)

The second-largest American owner, and third largest over all, is State Street Global Advisors, based in Boston, with 307 million shares. After them are the mutual fund firm Capital Research and Management Company of Los Angeles, with 247 million shares, and the Vanguard Group, based in Malvern, Pa., with 140 million shares. Rounding out the top five is Franklin Resources of San Mateo, Calif., another publicly owned asset management firm, with 131 million shares.

More familiar names crop up further down the list, like Fidelity Investments, with 124 million shares; T. Rowe Price Group, with 93 million shares; and State Farm Insurance, with 79 million shares.

Then there are the banks: as of March 31, JPMorgan Chase held a respectable 76 million shares; Bank of America, 69 million shares; and Goldman Sachs, 42 million shares.

The Bill & Melinda Gates Foundation is another a major investor, with nearly 43 million shares

 

So to those watching President Obama's speech tonight thinking that BP is as an alien corporation stealthily invading United States waters and funneling the profits overseas, I say-- not exactly.

        -Santiago

Singapore and Hong Kong Surpass U.S. As World's Most Competitive Economies. This Year.

I'm a big fan of annual surveys and lists that rank the U.S. economy and business environment in one way or another.  They usually do a good job of capturing a moment in time in our nations' economic history. It's always interesting to look back and see how the U.S. ranks from one year to another.

This leads me to a new survey just out ranking the world's most competitive economies.

In the 2010 edition of the World Competitiveness Yearbook, just released by the Switzerland-based Institute for Management Development (IMD), Singapore and Hong Kong (technically a special administration region of China) have both moved up one spot to take first and second place respectively as the world's most competitive nations.

Both countries have now surpassed the U.S. for the first time in decades, knocking it into third place after its 16-year reign as No. 1. 

The World Competitiveness Yearbook is widely considered to be the most comprehensive up-to-date ranking of how industrialized and emerging nations are managing their governments, businesses, people and infrastructure.

While I'm not thrilled to see the U.S. fall a few notches, I'm pleased that the U.S. fared much better than others had predicted.

 The study lists 58 economies according to 328 criteria that measure how the nations create and maintain conditions favorable to businesses - a formula that long favored the U.S.--until now.

Switzerland and Australia rounded out the top five. Then came Sweden, Canada, Taiwan, Norway and Malaysia.

China continued its rise in the survey, reaching 18th and highlighting that it is no longer dependent on foreign markets buying up its cheap exports. It led fellow emerging economies India, 31; Brazil, 38; and Russia, 51.

Debt-laden Greece actually improved in the 2010 ranking, rising six places to 46th.

Not surprisingly, Venezuela ranked last for the fifth year in a row, preceded by Ukraine, Romania, Argentina and Croatia.

See the rest of the list below:

World Competitiveness 2010

 

So the U.S. fell to No. 3.  I'll take it. 

With all that's going on in the world right now, it will be interesting to see where things fall next year.  What do you think?

  -Santiago

International Thoughts: 7 Essential Chinese Proverbs for Lawyers (and everyone else too).

I worked on an international securities matter a few years ago and had to travel to Hong Kong to meet with a client.  While I was there, I bought a dusty old book of Chinese proverbs . I had long forgotten about it until I stumbled across it several months ago.  I recently sat down and selected the ones that resonated with me the most and came up with a few examples.

While the proverbs may not resonate with everyone, they are particularly well-suited for lawyers and business people who often lose sight of what’s important. I hope you enjoy them and can apply some of them to your daily life.

Here they are:

7.  A man who has committed a mistake and doesn’t fix it is committing another mistake.

We all make mistakes. Admit them. You learn more from what you do wrong than from what you do right. Denying mistakes or hiding them leads only to consternation, and that misguided effort will come back to bite you much more viciously than the original error. When a colleague of mine erroneously filed a legal memorandum citing a repealed statute, she immediately called the judge’s chambers upon discovering the error and filed an amended memorandum. You know what happened? Absolutely nothing. Even federal judges understand we all make mistakes. By taking swift action to correct the mistake rather than hoping the judge would not notice, the attorney avoided a much grander error and gained the respect of the judge in the process. In life, integrity is everything. Never let a mistake compromise yours. 

6.  A gem cannot be polished without friction, nor a man perfected without trials.

We’ve all been there.  We’ve had a great idea that just wouldn’t come together like we had hoped. Breaking past these obstacles are what set great businesses apart.  Meticulous fine tuning and expert attention to detail are the hallmarks of excellence. Consider Apple. After enduring monumental setbacks in the early development of its yet-unknown music player, Apple pressed on to release the industry-shattering iPod.   Despite all its success, Apple continues to tweak and polish its product line.  Just when you thought it could not out do itself, Apple released the iPad, which has already surpassed the iPod’s first-month sales numbers.  Friction and setbacks are part of life. Learn from them and you’ll blaze past any obstacle.

5.  To guess is cheap. To guess wrong is expensive.

In other words, don’t guess or assume--do your research. This is applicable across all professions. For lawyers this may mean, actually looking up a point of law that you think goes your way. For accountants, this may mean double-checking that tax code provision you think still applies.  And for retailers this may mean reexamining that global marketing strategy you think will succeed in every market. Coca-Cola learned this lesson the hard way when it first tried to market its name in China as Ke-kou-ke-la. Unfortunately, the Coke company did not discover until after thousands of signs had been printed that the phrase means "bite the wax tadpole" or "female horse stuffed with wax" depending on the dialect. Only then did Coke research 40,000 Chinese characters to find a close phonetic equivalent, "ko-kou-ko-le," which can be loosely translated as "happiness in the mouth."  Don’t guess. It will cost you.

4.  Failure is the foundation of success and the means by which it is achieved.

Failure's capacity to teach is exactly why venture capitalists often look for managers to run startups whose résumés include experience at failing. While this may seem counterintuitive, it makes perfect sense. The hands-on lessons learned from failure are priceless and almost impossible to replicate in business school.  Look beneath the surface of many great business successes, and you're sure to find a trail of failures that preceded them.  Thomas Edison going through 10,000 different filaments before he came up with the one that worked is a textbook example of success through failure.  Failure is both helpful and necessary--it provides the feedback that points the way to success. We’d all be reading in the dark but for the success of failure.

3.  An inch of time is worth an inch of gold, but it is hard to buy one inch of time with one inch of gold .

Efficient use of time is the hallmark of a streamlined—and profitable--business. UPS is a pioneer in the field of time architecture. Ever notice that their trucks make mostly right turns? They discovered that a truck idling while waiting to make a left turn wastes precious fuel and more importantly, time. By eliminating the left turn where possible, productivity skyrocketed saving the company at least $10 million per year.  For lawyers, this may mean eliminating unnecessary conferences.  For retailers, this may mean investing in inventory control software to reduce time wasted physically counting inventory. For manufacturers, this could mean consolidating a three step process into one.  What’s your left turn?

2.  If you want to know your past-look into your present conditions. If you want to know your future-look into your present actions.

So you’re business has been in a rut or has never gotten off the ground. Sounds like a great opportunity to turn things around, as this proverb counsels. Examine your present situation. Is there something that you are doing or better yet—not doing? What actions can you take that will speed you through the tipping point? For years, Cadillac was identified with stodgy retirees until the company re-evaluated its actions—in this case designing outdated cars. By implementing innovative design concepts, it captured the imagination of a new generation. Their present success is a direct result of applying the wisdom of this proverb. If a 108 year-old company can successfully reinvent itself, so can you.  

1.   Make happy those who are near, and those who are far will come.

All successful businesses deliver superior client service. This proverb captures the essence of what it means to focus on your current client base with laser beam precision. Be fanatical about great service. Focus on the small and the big will follow.  The most successful law firms strive to insure that their clients get the most consistent and best possible service experience they can.  One top 100 firm retains independent third-party professionals to conduct client satisfaction surveys.  Other law firms have developed service teams dedicated to serving specific clients or specific industries so that they become experts on those they serve.  

Don't just satisfy customers, amaze them.

               -Santiago

 

iPhone App for International Business Law: We've Got You Covered

We launched the International Business Law Advisor App several months ago and are thrilled with the overwhelming response.  We'd like to thank our readers for getting the word out and providing us with your feedback. 

The App is yet another way we can add exceptional value to our readers utilizing cutting edge technology.

In addition to keeping our readers up to date, the App allows users to take advantage of the latest social media tools.

With the App they can share each blog post with friends and colleagues through email and twitter--ensuring that everyone stays on top of breaking news and emerging trends in global business.

The International Business Law Advisor App is available as a free download here through the iTunes App Store.

Let us know what you think and please continue to share with your friends and colleagues!

      -Santiago

What the U.S., Europe and China Can Learn from Japan 1990 - 2005.

The folks over at BusinessInsider were kind enough to post  the presentation from Nomura Chief Economist Richard Koo's speech to George Soros' Institute for New Economic Thinking this weekend. The presentation lays out in clear detail how the U.S. and Europe are in the midst of a balance sheet recession.

Koo draws comparisons between the Japanese example, exhibited from 1990-2005, and what the U.S. and Europe are about to experience.

This presentation is required reading if you want to get an ideas of where we are headed based on Japan’s 15-year economic slumber. Or maybe not.

Gary Haubold does a great job of casting doubt on Koo’s analysis in his post A Rebuttal To Richard Koo: Why The US Is Not Inevitably The Next Japan.

NOMURA Research Presentation

 

Are we headed down the same path as Japan? What do you think?

   -Santiago

Top Ten International Economic Trends for 2010. It's Good News.

As an international business attorney, I’ve got to stay on top of global markets to provide my clients with the best possible service. But with things moving so fast these days, it can be hard to keep up.  

Thanks to a highly insightful presentation authored by Byron Wien, Senior Managing Director at The Blackstone Group, staying on top of things just got a little easier. The presentation centers on Wein’s Top 10 Global Economic Surprises for 2010.

Wein's predictions are summarized below (courtesy of Marketfolly):

  1. The US economy grows at a 5% real rate and unemployment drops below 9%.
  2. The Federal Reserve hikes the fed funds rate to 2% by year-end.
  3. Ten year treasury yields rise above 5.5%.
  4. The US dollar rallies against the yen and the euro.
  5. The S&P rallies to 1300 in the first half of the year, declines to 1000, then settles around 1115.
  6. Japan becomes the best performing market.
  7. President Obama endorses nuclear power development.
  8. The Obama administration becomes energized via US economic improvement.
  9. Financial service legislation will be passed (but in a softer form than originally feared).
  10. Civil unrest in Iran peaks.
     

While some of the predictions are already playing out like he predicted (the S&P marches higher and treasury yields picking up), I'm thrilled to see Japan pegged as the word's best performing market. Coincidentally (presciently?), Japan was the focus of my recent post, How to Set Up a Business in Japan (And Other Business Wisdom).  

Wein's presentation is embedded in its entirety below:

Top 10 Global Economic Surprises 2010

 

Be sure to check out Marketfolly, which has posted additional 2010 predictions including Doug Kass' 2010 predictions and the top 10 investment themes for 2010.

    -Santiago

Is Immigration the Answer to Stimulate the Economy?

 Thomas L.Friedman makes a compelling argument in the New York Times op-ed piece, Start-Ups, Not Bailouts, for stimulating the economy through immigration:

 Here’s my fun fact for the day, provided courtesy of Robert Litan, who directs research at the Kauffman Foundation, which specializes in promoting innovation in America: “Between 1980 and 2005, virtually all net new jobs created in the U.S. were created by firms that were 5 years old or less,” said Litan. “That is about 40 million jobs. That means the established firms created no new net jobs during that period.”

Message: If we want to bring down unemployment in a sustainable way, neither rescuing General Motors nor funding more road construction will do it. We need to create a big bushel of new companies — fast. We’ve got to get more Americans working again for their own dignity — and to generate the rising incomes and wealth we need to pay for existing entitlements, as well as all the new investments we’ll need to make. It was just reported that Social Security this year will pay out more in benefits than it receives in payroll taxes — a red line we were not expected to cross until at least 2016.

But you cannot say this often enough: Good-paying jobs don’t come from bailouts. They come from start-ups. And where do start-ups come from? They come from smart, creative, inspired risk-takers. How do we get more of those? There are only two ways: grow more by improving our schools or import more by recruiting talented immigrants. Surely, we need to do both, and we need to start by breaking the deadlock in Congress over immigration, so we can develop a much more strategic approach to attracting more of the world’s creative risk-takers. “Roughly 25 percent of successful high-tech start-ups over the last decade were founded or co-founded by immigrants,” said Litan. Think Sergey Brin, the Russian-born co-founder of Google, or Vinod Khosla, the India-born co-founder of Sun Microsystems.

That is no surprise. After all, Craig Mundie, the chief research and strategy officer of Microsoft, asks: What made America this incredible engine of prosperity? It was immigration, plus free markets. Because we were so open to immigration — and immigrants are by definition high-aspiring risk-takers, ready to leave their native lands in search of greater opportunities — “we as a country accumulated a disproportionate share of the world’s high-I.Q. risk-takers.”

In addition, because of our vibrant and meritocratic university system, the best foreign students who wanted the best education also came here, and many of them also stayed. In its heyday, our unique system also attracted a disproportionate share of high-I.Q. risk-takers to high government service. So when you put all this together, with our free markets and democracy, it made it easy here for creative, high-I.Q. risk-takers to raise capital for their ideas and commercialize them. In short, America had a very powerful, self-reinforcing engine for growing innovative new companies.

“When you get this happy coincidence of high-I.Q. risk-takers in government and a society that is biased toward high-I.Q. risk-takers, you get these above-average returns as a country,” argued Mundie. “What is common to Singapore, Israel and America? They were all built by high-I.Q. risk-takers and all thrived — but only in the U.S. did it happen at a large scale and with global diversity, so you had this really rich cross-section.”

What is worrisome about America today is the combination of cutbacks in higher education, restrictions on immigration and a toxic public space that dissuades talented people from going into government. Together, all of these trends are slowly eating away at our differentiated edge in attracting and enabling the world’s biggest mass of smart, creative risk-takers.

It isn’t drastic, but it is a decline — at a time when technology is allowing other countries to leverage and empower more of their own high-I.Q. risk-takers. If we don’t reverse this trend, over time, “we could lose our most important competitive edge — the only edge from which sustainable advantage accrues” — having the world’s biggest and most diverse pool of high-I.Q. risk-takers, said Mundie. “If we don’t have that competitive edge, our standard of living will eventually revert to the global mean.”

Right now we have thousands of foreign students in America and one million engineers, scientists and other highly skilled workers here on H-1B temporary visas, which require them to return home when the visas expire. That’s nuts. “We ought to have a ‘job-creators visa’ for people already here,” said Litan. “And once you’ve hired, say, 5 or 10 American nonfamily members, you should get a green card.”

We need health care, financial reform and education reform. But we also need to be thinking just as seriously and urgently about what are the ingredients that foster entrepreneurship — how new businesses are catalyzed, inspired and enabled and how we enlist more people to do that — so no one ever says about America what that officer says to Tom Cruise in “Top Gun”: “Son, your ego’s writing checks your body can’t cash.” 

Is he right? What do you think?

     -Santiago

The BRICfast Club: A Series of Posts Dedicated to Brazil, Russia, India and China (Part II)

India Needs Massive Investment in Physical Infrastructure to Catch China Growth

This is the second in a series of posts dedicated to the BRIC countries. While the late John Hughes would have appreciated the titular tribute to his Breakfast Club classic, the series is meant to stimulate a robust discussion among those interested in the subject.

For the uninitiated, BRIC is an acronym coined by Goldman Sachs to refer to the red-hot economies of Brazil, Russia, India and China. According to the investment group’s projections, the BRIC countries could become among the four most dominant economies by the year 2050.

Part I of this series centered on Brazil with the post Hey Brazil--Take Your Time With Those BITs, I Can Get Them Somewhere Else! Let’s pick things up with India.

Of all the emerging markets, India is the one for international business interests to watch. As the U.S., Europe and Japan struggle to recover from the worst recession in 60 years, India’s stock market index has soared over the last 12 months and its economy may grow 8.2 percent in the year starting April 1, the fastest in two years according to India’s finance ministry.

The video below does a great job of capturing India's ebullient optimism in its race to become the emerging market leader:

 

At what may come as a surprise to some, India's economy looks to be rebounding from the downturn in better condition than China's. India doesn't appear to be facing the same degree of potential dangers and downside risks as China, which means policymakers in New Delhi might have a much easier task in maintaining the economy's momentum than their Chinese counterparts.

According to Nouriel Roubini, the economist who predicated the financial crisis,

“China might be facing a greater challenge in maintaining its double-digit growth rate than India is facing in achieving a double-digit growth.”

Roubini added that he favors the “more balanced economy of India” over China.

What India needs most, Roubini cautioned is “physical capital in the form of infrastructure that can be provided by both by public and private investments or private-public partnerships.”

I agree with Roubini’s assessment concerning India’s urgent and primary need for investment in physical infrastructure. On my visit to India recently, I was stunned at the level of underdevelopment of the country’s ports and interior roadways compared to the economic centers of China.

Unless massive investments are made in these areas, India’s competitiveness among emerging markets will be sure to suffer.

If, however, India manages to make the proper investments and stay the course, it will give its BRIC brethren lots to worry about--just take a look at the graph below: 

India's upward trajectory is hard to ignore. If you're interested in learning more about investing in or doing business in India, be sure to visit the Embassy of India Washington D.C. website. There you'll find a host of resources to set you on the right path. Of course, you can contact me directly and I'd be delighted to point you in the right direction.

What do you think? Is India poised to take the lead among emerging markets?

Trend to Watch: Although not the most likely scenario, it is possible that Indian growth could overtake China's within the next few years should China slow and India maintain its current pace.

-Santiago

Strippers, Witches...and Bono: All Subject to the World's Most BizarreTax Laws

Government's view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.

                                     -- Ronald Reagan

While Halloween gets top billing as the scariest day of the year, it’s nothing compared to the shrieks and plaintive howls heard on April 15.  For U.S. taxpayers, April 15 is the deadline to file taxes.

In preparation of the filing deadline, millions of Americans bury themselves deep in the tax code looking for every conceivable exemption or deduction. Some of these include allowances for pet food, baby sitting fees and even a trip to Bermuda.

But bizarre exemptions and deductions are just part of the story.  The U.S. and many of its states also impose strange taxes on such things as bribes (hey, its earned income), playing cards and candy.

While the U.S.  provides its fair share of questionable tax laws, it’s nothing compared to  some of the tax laws found in other parts of the world.  Foreign Policy recently published an expose on some of the world’s strangest tax laws. Here are some of the most bizarre courtesy of Foreign Policy:

China’s Mooncake Tax

Country: China

Who's affected: Chinese pastry-lovers

The bottom line: In the midst of last year's economic downturn, Chinese authorities upped their tax-collection efforts (which are usually notoriously lax) in a bid to top up the state's coffers. One of their main targets was the mooncake -- a pastry stuffed with lotus seed paste and egg yolks, or "whatever the baker feels like chucking in," that is a ubiquitous delicacy especially popular in the

Mooncakes were traditionally given out during the Mid-Autumn Festival (historically a time of moon worship) to friends and family to cement relationships. But now, many businesses also offer mooncakes to employees or provide coupon vouchers redeemable at local groceries for the treat. Additionally, the cakes are given as a sort of soft bribe to employers, party officials. Where bakers saw a mooncake explosion, government officials saw yuan signs -- and launched an inspection of more than 3,100 companies last year, slapping 30 billion yuan worth of back taxes on gifted mooncakes and coupons. In modern China, apparently, you can have your cake and tax it too.

Webcam Stripper Tax

Country: Sweden

Who's affected: Online pornographers

The bottom line: The Swedish tax authority has apparently never heard of the phrase "not safe for work." Last year, the Skatteverket began cracking down on hundreds of online webcam strippers who had neglected to pay income taxes on money received for their services. Dag Hardyson, head of the investigation, told the BBC that initially the agency had difficulty identifying some of the strippers and that automated software failed to adequately target the culprits, but, "When we investigated the sites manually, it worked better."

The Skatteverket estimates the lost revenue to be north of 40 million Swedish kronor ($5.56 million). Hardyson's explanation probably raises more questions than it answers: "They are young girls, we can see from the photos. We think that perhaps they are not well informed about the rules." Creepy.

Artistic Exemption

Country: Ireland

Who's affected: Authors, playwrights, other writers, composers, painters, photographers, sculptors.

The bottom line: Starving artists may be a popular romantic image, but they're generally not given protected legal status, except in Ireland. A clause in the Irish tax code makes income derived from the sale of art (including books and other writings, plays, musical compositions, paintings or photos, and sculptures) exempt from taxation. Introduced in 1969 by then-Finance Minister Charles Haughey, the provision was created with the stated purpose of helping would-be Joyces and Becketts who've fallen on hard times.

After charges that not exactly down-at-the-heels groups like rock supergroup U2 were paying no taxes on income of millions of euros, the rule was modified in 2006, allowing only for 250,000 euros of income to fit under the exemption (Bono and Co. subsequently moved their official base of operations to the Netherlands). Last year, a report from Ireland's Commission on Taxation labeled the exemption unfair, but attempts to repeal the rule were stopped. So Ireland's penniless poets appear to be safe for now.

World Cup Tax Exemption

Countries: World cup hosts

Who's affected: South African residents, nonresidents

The bottom line: South Africa is understandably thrilled to be hosting the 2010 World Cup, which opens June 11. A financial boost is expected as infrastructure improvements reach a massive scale and thousands of foreign tourists travel to the country to support their favorite teams. But because of agreements that FIFA, the world's governing body for professional soccer, requires of all World Cup host countries, the boon to the state's bottom line will be minimal.

Before accepting any country's host bid, FIFA demands significant tax concessions. For its part, South Africa agreed to create a "tax bubble" around stadiums and other official World Cup sites, making any income earned off goods sold within them exempt from taxation. (Athletes, however, are not exempt from taxation. The South African national team, in particular, gets the shaft: They'll still pay normal income-tax rates, despite being participants.) Although FIFA promotes soccer as a way to bridge global divisions, the organization clearly isn't afraid to throw its weight around for its own benefit.

Presto ... Tax Breaks!

Country: The Netherlands

Who's affected: Witches and wizards

The bottom line: Hogwarts it may not be, but a school in the Netherlands provides tax-deductible course work on witchcraft. Margarita Rongen, the headmistress of Heksehoeve (Dutch for "witch farmhouse"), offers a yearlong curriculum in spell-casting, herbology, potions, and divination, among other classes. The class clearly has a large following: Rongen has received applications from as far away as Dubai.

In a case brought before Dutch tax authorities in 2005 by pupil Maaike Buurman, it was ruled that because the course was used "to extend her professional knowledge" -- as a tax official put it to Reuters -- it was eligible for a tax write-off. Buurman argued she enrolled in the school to help her in teaching the history of the Middle Ages -- but of course, a witch would say that.

What other strange tax laws are you seeing out there in the world?

    -Santiago

The International Business Law Advsior Goes to Washington to Lobby for Global Warming Legislation--or is it "Global Weirding?"

I traveled to Washington D.C. a few weeks ago and spent several whirlwind days on Capitol Hill meeting with an assortment of Cabinet Members, Senators and Congressmen on pending climate change legislation. Thanks to climate and energy advocate extraordinaire Susan Glickman for putting the trip together,

Before anyone says anything--the irony of the snow falling on me as I made my way up the Capitol steps did not escape me. 

My involvement with the pending climate change bill stems from an innovative program my firm launched to accept carbon offset credits as partial payment for legal fees. Our firm’s program was the subject of a Wall Street Journal article, which you can read about here.

While others may not follow my lead, that's quite all right—I'm beholden to a much higher authority: my 15 month-old daughter. 

Although the meetings went smoothly, it appears less likely that the pending legislation will make it to vote this year. But I’m glad to see that interest in this heated debate only continues to build.

Famed internationalist and New York Times columnist Thomas Friedman wrote a proactive op-ed piece on the subject today.

In the article, Global Weirding is Here, Mr. Friedman proposes, among other thins, that we abandon use of the term “Global Warming” and adopt the term “Global Weirding.”

I’ll allow Mr. Friedman to explain:

Avoid the term “global warming.” I prefer the term “global weirding,” because that is what actually happens as global temperatures rise and the climate changes. The weather gets weird. The hots are expected to get hotter, the wets wetter, the dries drier and the most violent storms more numerous.

The fact that it has snowed like crazy in Washington — while it has rained at the Winter Olympics in Canada, while Australia is having a record 13-year drought — is right in line with what every major study on climate change predicts: The weather will get weird; some areas will get more precipitation than ever; others will become drier than ever.

More importantly, Mr. Friedman also proposes that, wherever you sit on the issue, population growth alone will be reason enough to demand renewable energy and clean water. He also points out how China is way ahead of the game:

Even if climate change proves less catastrophic than some fear, in a world that is forecast to grow from 6.7 billion to 9.2 billion people between now and 2050, more and more of whom will live like Americans, demand for renewable energy and clean water is going to soar. It is obviously going to be the next great global industry.

China, of course, understands that, which is why it is investing heavily in clean-tech, efficiency and high-speed rail. It sees the future trends and is betting on them. Indeed, I suspect China is quietly laughing at us right now. And Iran, Russia, Venezuela and the whole OPEC gang are high-fiving each other. Nothing better serves their interests than to see Americans becoming confused about climate change, and, therefore, less inclined to move toward clean-tech and, therefore, more certain to remain addicted to oil. 

 These are valid points. What are your thoughts on the issue?

Leave a comment below and let's get this issue rolling.

    -Santiago

Official World Holidays for 2010 (Cajun Nation Included)

Because my international practice involves working with folks all over the world, I keep a keen eye on world holidays and do my best to schedule my work around them.  This is one of the best ways I can show my respect for other cultures.

The folks overseas always appreciate the extra attention to detail and you will be amazed how far this will take you in building long term relationships. 

There are several big holidays coming up in the next several weeks that will temporarily slow or even halt  the business activities of several countries. The two biggest holidays take place in China and Brazil. China celebrates its New Year next week and Brazil Celebrates Carnival the week of February 22.  

For other international holidays be sure to download the 2010 World Holidays Guide. The guide lists the main holidays of over 43 countries.   I’m not sure why Brazil and India were not listed but here they are:

Brazil

January 1 - New Year's Day
February 26-27 - Carnaval
February 28 - Ash Wednesday
April 13* - Good Friday
April 21 - Tiradentes Day
May 1 - Labor Day
May 13 - Ascension Day
June 14* - Corpus Christi
September 7 - Independence Day
October 12 - Our Lady of Aparecida
November 2 - All Souls' Day
November 15 - Proclamation of the Republic
December 25 - Christmas

India

January 26 - Republic Day.
February 12 - Mahashivratri.
February 26 - Milad-Un-Nabi
March 28 - Mahavir Jayanthi.
April 2 - Good Friday.
Aprril 5 - Easter Monday.
April 28 - Buddha Purnima.
August 15 - Independence Day.
September 2 - Janmashtami.
September 10-11 - Id ul Fitr (End of Ramadan).
October 2 - Mahatma Gandhi's Birthday.
October 17 - Dussehra (Vijaya Dashami).
November 2 Guru Nanak's Birthday.
November 5 Deepavali or Diwali (Festival of Lights).
November 16- 17 - 17 Idu'l Zuha/Bakrid (Feast of the Sacrifice).
December 7 Muharram (Islamic New Year).
December 25 Christmas Day.
December 26 Boxing Day.

*Cajun Nation

February 7-28  - Super Bowl celebration and Mardi Gras

*With so much going on, New Orleans might as well be a sovereign nation for the moment. Don't event think about getting anything done there in the next few weeks. With the Saints' Super Bowl victory and Mardi Gras, February will be a month-long holiday for these folks.

        -Santiago

The Ultimate Hidden Fee: U.S. Based Multinational Companies Face $122 Billion Tax Burden Under Proposed Bill

And Why Relocating to Switzerland May be the Best Corporate Strategy

There’s nothing more annoying than finding hidden fees buried deep inside obtuse and mangled contract language. The only thing worse than finding hidden fees is learning about these punishing provisions from someone else—after you’ve signed the agreement. 

If you thought hidden fees provisions were the exclusive craft of credit card and cable companies, I’ve got bad news. The biggest offender just might be the drafters of the proposed federal budget making its way through Congress.

International Tax Increase Buried in Proposed Bill

Thanks to the keen eyes of the Wall Street Journal’s Matthew Slaughter, U.S. based Multinationals have a chance to lobby against what may be the largest hidden fee--an obscure tax provision--ever levied against them. Matthew writes in the article “How to Destroy American Jobs:”

Deep in the president's budget released Monday—in Table S-8 on page 161—appear a set of proposals headed "Reform U.S. International Tax System." If these proposals are enacted, U.S.-based multinational firms will face $122.2 billion in tax increases over the next decade. This is a natural follow-up to President Obama's sweeping plan announced last May entitled "Leveling the Playing Field: Curbing Tax Havens and Removing Tax Incentives for Shifting Jobs Overseas."

A proposed $122 Billion international tax burden? Placed on pg. 161? On a chart? Apart from the obvious lesson to carefully scrutinize the details of everything, and I do mean e.v.e.r.y.t.h.i.n.g., that comes across your desk, the substantive point of the article is absolutely correct—the proposed tax hike on U.S. based MNCs will bankrupt those that earn a significant amount of their revenue overseas.

Proposed Tax Will Force US-based MNCs to Relocate Overseas

As one commenter noted, it is the fiduciary responsibility of the board of a company to protect the investors in that company, and to provide them with the maximum safe return on their investment. In the new tax and regulatory environment the U.S. is in the process of imposing, any company that earns a large percentage of their revenues outside of the US simply cannot remain U.S. based.

Under the proposed tax hike on U.S. based MNCs, what incentive is there for Coca-Cola to remain a US based multinational? Why not move the corporation to Switzerland, where the favorable corporate tax structure has long been lured the operations of large MNCs such as Johnson & Johnson and Burger King Holdings Inc.

Switzerland Offers Optimal Tax Environment for MNCs

The timing could not be better for companies looking to relocate their operations overseas-- and to Switzerland in particular.  The Wall Street Journal recently reported on an emerging trend among Swiss cantons to compete for the business of MNCs by lowering their corporate tax rates. In the article Switzerland’s States Compete on Tax Cuts, the cantons of Zug, Schaffhausen (just north of Zurich) and Lucerne have all cut their tax rates in a heated battle to lure more MNCs.

For U.S.-based MNC’s looking to dodge the proposed international tax bullet, Switzerland provides the most favorable corporate tax environment in which to relocate U.S. based operations.

Conclusion

According to KPMG’s Corporate and Indirect Tax Survey 2009, the current effective U.S. Corporate tax rate is 40%, while in Switzerland the effective tax rate is 21.2%--and considerably less in some cantons. Under the proposed bill, the tax gulf will only grow wider.

It will be interesting to see what happens with the proposed tax. Until then, MNCs should take a look at Switzerland.

Trend to Watch: If the Proposed International Tax is Enacted Look for an Exodus of U.S.-based MNCs to Switzerland and to Other Favorable Tax Climates.

       --Santiago

The Great Firewall of China: How Lessons from the Apartheid Era Can Lift the Information Curtain

Corporate Codes of Conduct Played a Major Role in the Collapse of Apartheid in South Africa and Are a Viable Means to End Digital Censorship in China.

 

The remarks of U.S. Secretary of State Hillary Clinton yesterday that “we stand for a single Internet where all of humanity has equal access to knowledge and ideas” echoed the stern tone of Ronald Reagan twenty years ago when he challenged Soviet leader Mikhail Gorbachev: "Mr. Gorbachev, tear down this wall!" 

Fast forward to 2010 where digital walls have replaced brick and mortar to divide repressed citizens of authoritarian regimes from the world’s free flowing current of information and ideas.

Corporate Codes of Conduct a Viable Means to Challenge Digital Censorship in China

Secretary Clinton’s remarks concerning the” information curtain” dividing the world, reminded me of the apartheid era where much greater injustice and unspeakable acts against humanity were challenged and ultimately overcome through the use of corporate codes of conduct.

These corporate codes of conduct, which came to be known as the Sullivan Principles, were pioneered by the African-American preacher Rev. Leon Sullivan, a zealous promoter of corporate social responsibility.

 In 1977 Rev. Sullivan was a member of the board of General Motors. At the time, General Motors was one of the largest corporations in the United States. General Motors also happened to be the largest employer of blacks in South Africa, a country which was pursuing a harsh program of state-sanctioned racial segregation and discrimination targeted primarily at the country's indigenous black population

Corporate Codes of Conduct Originally Developed to Challenge Apartheid

Rev. Sullivan developed the codes to apply economic pressure on South Africa in protest of its system of apartheid. Before the end of South Africa's apartheid era, the principles were formally adopted by more than 125 U.S. corporations that had operations in South Africa. Of those companies that formally adopted the principles, at least 100 completely withdrew their existing operations from South Africa. The principles eventually gained wide adoption among United States-based corporations and played a significant role in the collapse of that regime.

In reflecting on the success of his anti-Apartheid efforts, Rev. Sullivan recalled:

Starting with the work place, I tightened the screws step by step and raised the bar step by step. Eventually I got to the point where I said that companies must practice corporate civil disobedience against the laws and I threatened South Africa and said in two years Mandela must be freed, apartheid must end, and blacks must vote or else I'll bring every American company I can out of South Africa.

Given the success of the Sullivan principles in ending apartheid, we should look at applying the same principles to lift the information curtain in China.

Why Multinationals Should Adopt Corporate Codes of Conduct

Google, to its credit has pioneered this movement, albeit not under the auspices of any articulated corporate code of conduct as far as I know. Google's defiance of China's censorship mandate illustrates the power of corporate social responsibility initiatives to influence and reshape the repressive policies of authoritarian regimes.

While most major multinational companies consider a presence in China critical to their future success, Google has demonstrated that even the largest of corporations are willing to forgo short term gain in the interest of an ultimate triumph over censorship--similar to how corporations sacrificed profits to challenge apartheid in the 1970s and 1980s.

In Google's case this will come at a cost of an estimated $300 million a year in revenue. Although it will hardly make a dent in Google’s coffers, it’s a step forward in the right direction. Sure, China can thumb its nose at Google and Yahoo by pointing to Baidu and Alibaba.

But it risks the alienation of countless other multinationals who could conceivably adopt corporate codes of conduct and refuse to do business with China until the Great Firewall is torn down.

Conclusion

While the preferred course of action of companies concerned about censorship is to avoid repressive regimes altogether, it is likely that some companies will not choose that course. Those that do not should consider a corporate code of conduct so that they can turn their involvement in oppressive systems from a potential human rights liability to a neutral or maybe even positive act of engagement.

The challenge now will be to put these ideas practice by incorporating them into diplomacy and trade policy to apply meaningful pressure on companies to act responsibly through the adoption of corporate codes of conduct.

What do you think?

       -Santiago

 P.S.   A little about my interest in this area: I’ve been an advocate for corporate codes of conduct for well over a decade and authored an extensive note on the topic for the Florida Journal of International Law to address industrial oil pollution in Latin America:  Oil's Not Well In Latin America: Curing The Shortcomings Of The Current International Environmental Law Regime In Dealing With Industrial Oil Pollution In Latin America Through Codes Of Conduct  Viewed as a cutting edge proposition, the article has since been cited by numerous textbooks and academic journals including West’s Environmental Law treatise, the New York University Journal of International Law and the Georgetown University Journal of International Environmental Law.   

We Have an App for That: Introducing the International Business Law Advisor App for the iPhone

We are thrilled to announce the latest addition to the iTunes App Store--the International Business Law Advisor App for the iPhone. 

The App is yet another way we can add exceptional value to our readers utilizing cutting edge technology. In addition to keeping our readers up to date, the App allows users to take advantage of the latest social media tools. With the App they can share each blog post with friends and colleagues through email and twitter--ensuring that everyone stays on top of breaking news and emerging trends in global business.

The International Business Law Advisor App is available as a free download here through the iTunes App Store.

Let us know what you think and please share with your friends and colleagues!

      -Santiago

How European Union Anti-Trust Laws Impact the World Cup.

 Nothing is more interesting than the intersection of international business law and sports. Add Charlize Theron into the mix and things get, well, even more interesting. Over the weekend, Ms. Theron, representing the host country South Africa, announced the draw for World Cup 2010, the biggest sporting event on the planet.

If you haven’t already, you can read all about the draw in the Wall Street Journal article The Envelopes, Please and in the Financial Times article English hopes rise after World Cup draw. Also be sure to check out the Fédération Internationale de Football Association (FIFA) website, the go-to site for World Cup information.

EU Sports Are Big Business

Because of the massive revenue the World Cup generates for each participating nation, soccer  has become big business to which the rules on competitive and anti-competitive behavior apply. How these rules are applied often determine which teams ultimately qualify for the world’s greatest sporting event.

No region has more at stake than the EU, which is sending many of its members to South Africa. With so much on the table, it is unsurprising that the business decisions of EU football clubs are often contested under anti-trust laws. This is particularly true in the areas of M&A, salary caps and media rights.  

EU Anti-Competition Law Increasingly Applied to Sports

England, Spain, Germany, France and Portugal are considered the European Union’s top contenders to win the World Cup in 2010. And all of them are subject to the same EU Anti-Trust laws, which are contained in Articles 81 and 82 of the EEC, which state:

Agreements, decisions and concerted practices between undertakings which have as their object or effect the prevention, restriction or distortion of competition are prohibited by art. 81 (1) of the Treaty of Rome if and in so far as they may affect trade between EC member states.”

The following is an overview of the areas and issues where EU Anti-trust laws are frequently invoked to contest the business decisions made by EU football clubs.

  • M&A Activity: At present, no two or more clubs participating in a UEFA club competition may be directly or indirectly controlled by the same entity or managed by the same person. However, one might question how legitimate this rule is given the broad definition of 'control' that is typically adopted in the context of mergers. Should an investment fund be prevented from buying more than one club, if it is just a financial holding company with no right to influence the club's management?
  • Salary Caps: Salary caps have an inherent potential to breach EC competition rules. They may constitute an anti-competitive agreement or concerted practice between national or international sporting associations and either clubs or players' unions under article 81(1) EC. Equally, there is a potential for violation of article 82 EC, given that sporting associations can be dominant in the market for the competitions they control. Need I mention the Yankees?
  • Media Rights: The restricted structure of the broadcasting market has frequently raised issues under articles 81(1) and 82 EC. Team owners in the industry show a clear willingness to seek redress under EC law when their commercial interests are threatened, and may be even more likely to do so as bottom lines are squeezed in the current recession. As the largest revenue stream in sport, media rights will continue to be the focus of disputes across the EC and beyond. The next major battlegrounds are likely to include access to content on the internet and territorial broadcasting restrictions

As these issues illustrate, competition law remains at the heart of EU sports law disputes and often impact how each national team fills its roster. Ultimately, this plays a central role in which teams qualify for the World Cup.

Trend to Watch: Look for EU Anti-Competition Law to Be Increasingly Applied to Sports …And Look for Spain to Take the World Cup in 2010.

 

"Top 100 Global Thinkers" List Released: Some Names May Surprise You

Foreign Policy just released its first annual list of 100 Top Global Thinkers. While the list included many of the world's leading intellectuals, one person stood out for me— No. 57, Baltasar Garzón, Judge for the National Court of Spain. Garzon indicted Chilean dictator Augusto Pinochet in 1998 during the ex-president's trip to London and has since acquired a reputation as a legal crusader against corrupt government officials. Garzón believes that laws extend beyond national boundaries---- making him a hero to the human rights world, a pain to politicians, and a major intellectual force for international jurisprudence.

Another  person on the list that stood out for me was No. 70, Esther Dyson, for accurately forecasting how the Internet will shape us.  In a 1995 Wired magazine essay, the internet entrepreneur presciently theorized that the easy replication and distribution of digital content meant that companies would ultimately give it away for free and profit from other merchandise and services.

It was disappointing to see that Hernando de Soto, who Bill Clinton called "the world's greatest living economist.," did not make the list. I had the honor of meeting De Soto last month and wrote about his remarkable keynote speech in an earlier post.

There are some names on the list that surprised me--including one below.

Here’s the top 20:

1. Ben Bernanke  

2. Barack Obama

3. Zahra Rahnavard

4. Nouriel Roubini

5. Rajendra Pachauri

6. Bill Clinton and Hillary Rodham Clinton

7. Cass Sunstein and Richard Thaler

8. David Petraeus

9. Zhou Xiaochuan

10. Sayyid Imam al-Sharif

11. Fernando Henrique Cardoso

12. Bill Gates

13. Dick Cheney

14. Larry Summers

15. Martin Wolf

16. Mohamed El-Erian

17. Benedict XVI

18. Richard Dawkins

19. Malcolm Gladwell

20. Ashraf Ghani and Clare Lockhart

 

Did any names on the list surprise you?

 

The ABA International Law Section's Annual Meeting and the Credit Crisis Explained

I am back from attending the American Bar Association International Law Section’s Annual Conference in Miami. I had the pleasure of meeting the country’s leading legal bloggers including Dan Harris of the China Law Blog. I look forward to the Section’s Spring meeting in New York and the next annual meeting in Paris, France. I hope to see some of you there!

The key note speaker of the conference was Dr. Hernando de Soto, who Bill Clinton has described as "the world's greatest living economist."  His explanation of the credit crisis left me spellbound. Frankly, I'm still trying to make sense of it all.  His speech echoed his recent op-ed piece in the Wall Street Journal. Here is one of his most thought provoking quotes:

If you think about it, everything of value we own travels on property paper. At the beginning of the decade there was about $100 trillion worth of property paper representing tangible goods such as land, buildings, and patents world-wide, and some $170 trillion representing ownership over such semiliquid assets as mortgages, stocks and bonds. Since then, however, aggressive financiers have manufactured what the Bank for International Settlements estimates to be $1 quadrillion worth of new derivatives (mortgage-backed securities, collateralized debt obligations, and credit default swaps) that have flooded the market. 

These derivatives are the root of the credit crunch. Why? Unlike all other property paper, derivatives are not required by law to be recorded, continually tracked and tied to the assets they represent. Nobody knows precisely how many there are, where they are, and who is finally accountable for them. Thus, there is widespread fear that potential borrowers and recipients of capital with too many nonperforming derivatives will be unable to repay their loans. As trust in property paper breaks down it sets off a chain reaction, paralyzing credit and investment, which shrinks transactions and leads to a catastrophic drop in employment and in the value of everyone's property.

Whew. That's some pretty deep analysis.  What do you think?