sharing in governance of extractive industries

TDM Call for Papers: "The Changing Paradigm of State-controlled Entities Regulation: Laws, Contracts and Disputes"

We're pleased to announce this Special Issue of Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) titled "The Changing Paradigm of State-controlled Entities Regulation: Laws...". 

Editors: Christophe Bondy, Prof. Julien Chaisse, Dr. Helena Chen, Dr. Jędrzej Górski, Dini Sejko, and Romesh Weeramantry.

In recent years, the operations of state-controlled enterprises (SCEs) have increasingly been interwoven with the problem of foreign direct investment (FDI). On the one hand, SCEs headquartered in post-communist, and operating under state-capitalism paradigm, have increasingly gone global investing in a wide range of economic sectors (investment by SCEs). On the other hand, in domestic operations, SCEs have been increasingly co-operating with foreign investors (including both foreign private enterprises and SCEs) as minority stakeholder, or partners in various forms of public-private-partnership (PPP) (investment in SCEs). SCEs broadly raise issues in regulatory fields as diverse as company law, trade law, investment law, competition law and international taxation. This leads to many normative (whether legislative or contractual) conflicts and complex transnational disputes which will be the focus on this TDM Special Issue.

SCEs include a wide panoply of entities that have various structures with different degrees of control by states at the central or regional level. The control can be exercised through ownership, right to appoint the management, and special-voting-rights. SCEs can be structured as entities without separate legal capacity (such as units of public administration carrying out economic activities). They can also be structured as legal entities of public law such as sovereign wealth funds (SWFs) or crown corporations. They are foremost ordinary companies established under private law which fully or partly owned by states or stat organs. The number of private minority shareholders in SOEs might range from one or a few, in case of joint-ventures between states and public investors, PPPs etc., to listed SCEs with free float in listed SCEs. In case of diluted ownership, states can often still effectively exercise a control over a SCEs with a concentrated equity share-holding below 50%.

SCEs also include other business organisations controlled by SWFs or parent holding SOEs, or through government licensing (especially utilities), or through contractual measures like public-private partnerships (PPPs) in the field of infrastructure and joint-operating-agreements/production sharing agreements (JOAs/PSAs) in extractive industries which can but do not need to be separate legal entities. The control over business organisation by states might also be exercised through the leverage which state owned banks have over their borrowers.

The present Call for Papers identifies two broad categories of topics which raise important legal issues for discussion:

With regard to investment by the SOEs/SCEs:

  • issues stemming from specific legal form of SCEs when acting as investors such as business organisation operating under private/company laws, public-law enterprises, SWFs, state-controlled banks,
  • governmental supports of expanding SOEs/SCEs, such as including subsidised/soft loans, equity injections, debt write-offs, export credits (e.g. in violation of the OECD Arrangement on Export Credits), direct governmental grants, preference treatment in terms of access to production factors (commodities and row material, utilities, land etc.) or government procurement, or other forms of subsidies.
  • Remedies by host states to anti-competitive practices by foreign SIEs like takeover-controls (e.g. by the US Committee on Foreign Investment/CFIUS), countervailing measures (e.g. under the WTO Agreement on Subsidies and Countervailing Measures), competition laws etc.
  • International instruments addressing business practices of SCEs such as OECD Guidelines on Corporate Governance of State Owned Enterprises, TPP's chapter on SOEs,
  • Protection of loans granted by state-controlled financial institutions, including concessional loans on the verge of development aid, along with investor/creditor-state and state-state dispute resolutions methods.

With regard to investment in the SOEs/SCEs

  • Issues stemming from specific legal form of SCEs when acting as investment recipients, such as gradually privatised SCEs, strategic enterprises, utilities, PPPs, JOAs/PSAs,
  • International liberalisation of access to investment in strategic enterprises, utilities, PPPs, JOAs/PSAs.
  • Participation of foreign investors in privatisations and issues in privatisation process affecting foreign investors such as continued advancement of non-commercial goals by partly privatised SCEs despite commercialisation.
  • Conditions imposed by the host states on joint ventures with domestic SOEs/SCEs with regard to preferences for purchases of domestic content, or forced technology transfers by investors
  • Stability of fiscal regimes and of income/tariffs for foreign investors in business organisations with special rights /concessionaires like utilities, PPPs/JOAs/PSAs long with protection of foreign investors in such ventures and arbitrability of related-disputes.

Time line and submission guidelines

Proposals, along with authors' profiles (150-200 words) should be submitted to the editors - contact details here - and copied to info@transnational-dispute-management.com until 30 November 2018. Full paper papers should be submitted until 28 February 2019. The release of the special issue is planned for the end of first quarter 2019. Articles accepted for publication ahead of this schedule can also go through TDM's on-line advance publication process allowing your work to reach its target audience as soon as the paper completes peer review and editing process.

More information - including contact details and article guidelines - on TDM here https://www.transnational-dispute-management.com/news.asp?key=1719

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