CHAPTER 19 Nationalizing, Expropriation, and Privatization Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Theories Relating to Takings of Foreign Property • Traditional theory: prohibition of all takings. • Modern-Traditional theory: “prompt, adequate and effective” compensation for all takings. • Non-Western theories: State has sovereign right to take, based on the Calvo Doctrine: sovereign placed ahead of foreign investor. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 2 Theories Relating to Takings of Foreign Property • Calvo rejected the modern-traditional theory’s prerequisites: Public Purpose and NonDiscrimination. • But sovereign rights states do take property based on “public purpose”. – Nationalization: taking an entire industry e.g. steel. – Expropriation: taking a single company. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 3 INA Corp. v. Islamic Republic of Iran • INA Corp. v. Islamic Republic of Iran: INA acquired a 20% share of an Iranian insurance co. In 1979 Iran passed a law of Nationalization. INA sought the value of its shares with interests and costs from the Iran-US Claims Tribunal. • The Tribunal awarded what INA was seeking. • Why? What factors were weighed? • What did the Tribunal say about nationalizations of a “lawful” character? Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 4 Creeping Expropriation • • • • Gradual erosion of value. Discriminatory taxes. Price controls. License cancellation. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 5 Guarding Against Political Risk • U.S. investors in countries that once held sovereign rights theory, is now at risk from raw political power. • Political Risk Insurance. – Government: OPIC, MIGA – Private: insurance syndicates. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 6 Resolving Disputes with Foreign Nations • Foreign Sovereign Immunities Act. – Generally the state is immune from suit – Exceptions: waiver, commercial activity and noncommercial torts. – In light of terrorism, Congress amended the FSIA to allow U.S. citizens to bring suit against the sovereign for state sponsored acts of terrorism. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 7 Resolving Disputes with Foreign Nations: FSIA • Saudi Arabia v. Nelson: FSIA warrants dismissal of the case brought by a former U.S. employee of a Saudi hospital. Supreme Court ruled that Nelsons could not bring suit in US court over actions in Saudi Arabia. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 8 Resolving Disputes with Foreign Nations: Act of State Doctrine • Even if court can hear case under FSIA, investor must still move past Act of State doctrine, a shield to prosecution. • Prevents court from passing on the validity of a foreign government’s action. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 9 Resolving Disputes: Act of State Doctrine • W.S. Kirkpatrick v. Environmental Tectronics Corp. – Case allowed to go forward because it involved the successful bidder and the unsuccessful bidder on a government contract and only tangentially brings in government’s action. • Act of State would not be an obstacle when there is a treaty applicable to investors. • Act of State also has commercial activity exception. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 10 International Adjudication • National Thermal Power Corp v. The Singer Co.: foreign investor failed to structure a contract that allowed binding arbitration under local law. • International Center for the Settlement of Investment Disputes (ICSID). • Arbitration. • What is the role of a BIT treaty? • Insurance. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 11 Preparation for Privatization • Creation of an Independent Government Corporation. • Preparation of a Legal System for Privatization. – “Clearing” of any expropriation claims. – Development of property rights and contract law. – China, Russia, East Germany examples. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 12 Methods of Distribution • Assets are transferred to new entity, run as private entity during transition. • Private and public equity placements. • Voucher systems. • Debt-for-Equity swaps. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 13 Models of Privatization • Sale of a Noncontrolling Interest (Partial Sale). – Advantage: simple – Disadvantage: depends upon perspective. – Lack of control, conflicting interests (full employment v. efficiency), may not invest in what can’t be controlled. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 14 Partial Sale Assets Government New Company Shares (100%) Shares New Operator $ Underwriters Shares General Public Local Government Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 15 Trade Sale • Stock or Asset “trade” sale. – Advantages: speedy, useful in small enterprises. New – Disadvantages: backlash, require capital Operating & Investment infusion, conditions subsequent. Group Government Assets $ Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. New Company 16 The Sale to Employees • Similar to leveraged buyouts (LBO’s). • Advantages: gives government employees a stake in the outcome, may bring in labor unions. • Disadvantages: if management was poor- now they are owners, layoffs difficult. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 17 The Sale to Employees Government Assets $ Management or Employees New Company Government Management or Employees Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 18 Concessions: BOTs and BOOs • Two major types of concessions: BOT and BOO. – BOT: Build-Operate-Transfer. – BOO: Build-Operate-Own. • Government uses private sector to build infrastructure. • Joint venture: mix of trade sale and non- controlling interest model. • What about anticompetitive considerations? Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 19 BOT Transaction Developer Contractor Banks Concession Government Services Payment for Services Private Users Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. New Company Shares Equity Investment Payment for Equipment Equipment Equipment Manufacturer Operator 20 Models in Combination: Joint Venture Privatization Assets Government Shares (50%) New Company $ Shares (50%) New Operating & Investment Group Shareholder Agreement Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 21 Mixed Example Assets Government Shares (40%) New Company Shares (30%) $ Underwriters Employees New Operating & Investment Group Shares (20%) Shares (30%) Payment for Shares Payment for Shares General Public Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 22 Conclusion • Major issue for business in 21st century • Transition of nonmarket economies to market economies • Business must assess political risk and use contracts to protect interests • Consider arbitration clause Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 23