Tuesday, 29 January 2019

Critically discuss, with reference to the international conventions and domestic laws addressed in class or in the assigned readings, how the United Nations Convention Against Corruption has improved on previous approaches to the regulation of international corruption, and how might it nonetheless still itself be improved.

There have been many domestic laws and international conventions which have had the objective of regulating international corruption. Many have met with limited success and have suffered from similar shortcomings. The United Nations brought into force the Convention against Corruption in 2005 with the aim of addressing these shortcomings. The UNCAC’s new approach is overall a step in the right direction, but there is still much room for improvement in this area.
Corruption was defined by the IMF in 2011 as the abuse of public authority or trust for private benefit. In the context of international trade and business, corruption often takes the form of payments by corporations to persons in authority in order that they exercise their discretion in their favour.
Regulation initially had a narrow definition of corruption and focused primarily on bribery, and the regulation was very soft and lacked bite. An example of a domestic law of this type is the USA’s Foreign Corrupt Practice Act which came into force in 1977; this law had a very narrow approach as it solely prohibits bribery of foreign public officials, and it expressly permitted ‘facilitating’ payments which do not involve the corruption of a discretion per se, but merely speed up a corporation receiving what it is entitled to, and it permitted payments which are legal in the country in which they are made. An example of an international convention is the United Nations Convention Against Transnational Organized Crime which came into force in 2003. Although this convention prohibited passive as well as active bribery, the scope of the Convention is still limited to bribery and fails to address other forms of corruption. Moreover, the only enforcement mechanism is self-reporting by member states; there is no external monitoring or sanctions on member states for breaching the Convention.
What the UNCAC brought to the regulation of international corruption is a convention which addresses a wide range of corrupt practices, is ratified by a large number of countries, and has a coordinated, deeply penetrating application.
UNCAC’s definition of corruption is not limited to bribery of foreign public officials, but addresses bribery of domestic public officials, bribery of officials of public international organisations and bribery of private individuals.
UNCAC is ratified by 140 member states and requires them to provide mutual assistance in combating corruption. Unlike its predecessors, it puts specific obligations on member states such as to allow damages against victims of corruption and to recover and return stolen assets. Another aspect of the UNCAC which contributes to its deep penetration is that it aims to mobilise societies at large against corruption, which can be seen in the establishment of the UNCAC coalition, a network of over 300 civil society organisations.
Despite the promising new approach of the UNCAC, its implementation has revealed some areas for improvement. One such area is the weakness of its monitoring system; in January 2008, only 52% of states had completed the self-assessment. Also, many developing countries have struggled to fulfil their obligations under UNCAC due to a lack of policy guidance and technical assistance.

Sunday, 13 January 2019

“A court’s only role in an international arbitration is to facilitate the process. It has no business intervening into a private process unless both parties have agreed that it can do so.” Critically discuss.

Court involvement in an international arbitration is a fact of commercial life. In England and Wales such intervention should always be confined to the extent specified in Part I of the Arbitration Act 1996. In particular, sections 42-45 provide examples of the court’s power to interfere with the process. Even though a court might be allowed to intervene, it can only do so to the degree and under the conditions prescribed therein. Moreover, the parties can agree to exclude the power of the court under these provisions altogether, with the exception of section 43 which enables the court to require the attendance of a witness in order to give oral testimony or to produce documents or other material evidence. These provisions are intended to supply the court with tools to facilitate the alternative dispute resolution mechanism selected by the parties.

Nonetheless, a party to arbitration may challenge the award issued by the tribunal in a court of law in accordance with sections 67-69 of the Arbitration Act 1996. While section 69, i.e. appeal on point of law, might be ousted by a contrary agreement of the parties, the other two provisions are mandatory in application. It is, however, to be borne in mind that both parties made themselves subject to the substance of the Arbitration Act 1996 by choosing the law of England and Wales as the curial law of the arbitration proceeding. Therefore, it cannot be said that such an intervention of a court would be contrary to the intention of either party.

Unquestionably, the facilitating role of a court of law in respect of an international arbitration is enshrined into the text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention). Pursuant to Article II, III and V of the New York Convention, court involvement is required as support for the arbitral process in the form of recognition and enforcement of an award, nothing else. Nevertheless, under Article V of the convention a court is provided with a substantive power of intervention. Out of the seven grounds for refusal of recognition and enforcement, two can be raised by the court ex officio, the other five being valid for consideration only if brought up by a party to the arbitration. First, recognition and enforcement may be refused if a court believes the subject matter of the dispute in question not to be arbitrable. Secondly, no recognition or enforcement is possible if such would constitute a breach of public policy. Consequently, a court might intervene in the process despite no agreement of the parties to such effect.

Wednesday, 2 January 2019

What is a comparative analysis and what is the difference between the shareholder value theory and the stakeholder theory?

Comparative law means that you look not just at the different laws of the country to see why they are different but also that you look at the characteristics of the countries and see how they are different. So, if you have a different economy or different social attitudes in the country towards something like corporations this could have an impact on the way in which a law or rule that works well in one country does not work as well in another country. Otto-Kahn Freund makes this point and argues that you must therefore consider not only the differences in law but also differences in culture, economy and political attitudes. In my dissertation I conduct a comparative analysis between Iran and the UK in which I too consider such differences between the countries. Important factors here include things like the size of the companies and the economic makeup of both the companies and the directors.

Furthermore, as far as the two primary corporate governance theories are concerned, they have an impact on the manner in which the directors are required to conduct their roles. The shareholder value theory requires directors to act in the interests of the shareholders without considering the interests of any other parties. Therefore the decisions directors make in this role must consider the impact on shareholders regardless of any negative impact that may be had upon the employees or suppliers or any other stakeholders. This approach has been regarded by some as being unsustainable because it causes problems for other stakeholders which can have a negative impact on the company – for example if the employees are unhappy they are unlikely to perform as well. The shareholder theory requires directors to act in the way that is more likely to increase the value of the shareholders’ interest in the company.

The stakeholder value theory on the other hand requires shareholders to consider the interests of other interested parties within a company – these can include the shareholders, employees, creditors, suppliers and many more. The problem with this theory is that sometimes these parties can have conflicting interests and it becomes difficult for directors to balance these interests without causing injustice to one party.

The UK had for a long time adopted the shareholder value theory. However, following the enactment of the Companies Act 2006, directors are now required to make use of the enlightened shareholder value theory which requires directors to consider the interests of other stakeholders in so far as this is beneficial to the shareholders of the company. The problem that was present with the stakeholder value theory remains present in the ESV approach in that the different interests often means that directors are not able to satisfy all parties and there is no guidance as to how to balance conflicting interest.

Furthermore, the ESV approach does not really empower other stakeholders as the only people that can bring an action should a director act contrary to his duties or contrary to the ESV are shareholders and it seems unlikely they will spend their money on an action that brings them no direct benefit.