International business transaction law

While I’m open to ideas about the topic, the treatment has to be practice-oriented, rather than theoretical or scholarly, as that is the orientation of this course. Thus, a paper examining IP challenges in business transactions in emerging markets could not simply research and report on challenges arising in a particular country and with a particular type of IP (theft of trade secrets, counterfeit trademarks, etc.); it would need to report the problems and then propose ways for a practitioner to address them.

To explain this another way, consider Bhopal, as we discussed last week. The situation in Bhopal presents something of a conundrum for a parent or otherwise related company. On the one hand, your clients (the shareholders) may be well served by having the parent company as insulated as possible from potential liability by having the subsidiary be as independent as the law allows, by being locally incorporated, having little or no management direction from the parent company, and so forth. This was the situation for Union Carbide.

On the other, a corporation (shareholders) may be best served by having significant parent-company oversight, which can ensure the subsidiary’s management is well-trained and has resources available through the parent company (such as health and safety expertise) that the local company does not have (and cannot afford) , and that the parent company’s brand and reputation can be protected. (We did not discuss it last week, but Union Carbide’s name was painfully synonymous with Bhopal for many, many years after the accident, which severely damaged its public image and reputation.)

If someone were to do a paper on this subject, I would expect to see a detailed discussion of the problem/issues, and then very specific approaches that a practitioner could take in crafting the relationship between the parent company and an emerging market sub (or other legal relationship) that would address these issues.

There are no solutions in any of these situations, of course (otherwise, who would need lawyers?); rather, there is a weighing of risks and benefits relative to the business needs of the specific client.

Another approach to a paper could be to address a present-day issue facing a well-known company and craft several popular solutions. So, for example, when the Wal-Mart de Mexico issue first hit the newspapers last year, it was not yet known the nature or extent of the problem. If an early article had simply presented the question of bribes being presented, a student could have taken that as a starting point for the paper, do research related to the issues, and then present suggested approaches.
Thus, you could choose to do that with some current news, such as the news article you read for the first class on the Pakistan fire, where it appears that organizations have subcontracted out their certification responsibilities. Has there been this problem elsewhere, in other countries and/or other industries? How can a company like Wal-Mart or Nike be sure that its goods are being produced in manufacturing facilities that are safe and have decent working conditions, both to comply with its own company values (as stated in its ethics policy or otherwise) and to protect its reputation and sales? It’s easy enough to say that they should inspect the facilities regularly themselves, but that would be prohibitively expensive. What are some reasonable approaches?

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