State and Enterprise: Legal Issues in the Global Market

Contents
General Introduction: State and Enterprise in the Global Market
	1 State and Market in the International Order After World War II
	2 The Trends of International Economic Relations in the Post-War Scenario and the Role of Multinational Enterprises (MNEs) in ...
	3 The Rise and Demise of the Role of the State in the Market (1950-2000)
	4 Enterprise and International Trade in the Second Half of 20th Century
		4.1 1950/1980: The Predominance of the Western MNEs
		4.2 1980/2000: Liberalization, Privatization, and Rise of Financial Markets and New Actors
	5 The European Union Approach to the State-Enterprise Relation
	6 State and Market at the End of the 20th Century and the Beginning of the 21st Century
	7 The Business Firm in the 21st Century: From the Shareholder Value Principle to the New Role of SOEs and of Sustainable MNEs
	8 The Impact of the COVID-19 Pandemic and of the Russia-Ukraine Conflict on the International Economic Relations: from the Saf...
	Appendix
		A. Value of Global Trade in Millions of US Dollars at Current Price from 1950 to 2019 (Data Source: UNCTAD)
		B. Value of Global FDI in Millions of US Dollars at Current Price from 1970 to 2019 (Data Source: UNCTAD)
		C. Trade: Flow of Exports 1950-1980 (Percentage on the World´s Total; Data Source: UNCTAD)
		D. Trade: Imports 1950-1980 (Percentage on the World´s Total; Data Source: UNCTAD)
		E. FDI: Outward 1970-1980 (US Dollars at Current Prices in Millions; Data Source: UNCTAD)
		F. FDI: Inward 1970-1980 (Percentage on the World´s Total; Data Source: UNCTAD)
		G. Trade: Exports 1980-2000 (Percentage on the World´s Total; Data Source: UNCTAD)
		H. Trade: Imports 1980-2000 (Percentage on the World´s Total; Data Source: UNCTAD)
		I. FDI: Inward 1980-2000 (Percentage on the World´s Total; Data Source: UNCTAD)
		J. FDI: Outward 1980-2000 (Percentage on the World´s Total; Data Source: UNCTAD)
		K. Trade: Exports 2001-2019 (Percentage on the World´s Total; Data Source: UNCTAD)
		L. Trade: Imports 2001-2019 (US Dollars at Current Prices in Millions; Data Source: UNCTAD)
		M. FDI: Inward 2001-2019 (Percentage on the World´s Total; Data Source: UNCTAD)
		N. FDI: Outward 2001-2019 (Percentage on the World´s Total; Data Source: UNCTAD)
		O. State-Owned Enterprise in the Global Economy 2005/2014
		P. Share by Revenues of SOEs Included in Fortune Global 500 List
		Q. Sectoral Distribution of Chinese Companies in 2020
	References
Part I: State Versus Enterprise
	Introduction
	The National Security Clauses in International Economic Agreements: A Loophole for States to Escape Their Obligations?
		1 Introduction
		2 The Economic Agreements Providing for Security Clauses: From the Havana Charter to the Roar Years of Globalization
			2.1 GATT Art. XXI: A Crucial Text Forgotten for Long Time
			2.2 International Investment Agreements and Security Clauses: From German BITs to the First Generation of US Investment Agreem...
			2.3 IIAs and NSC in the First Era of Globalization (From Mid-90s to Mid-2000s)
		3 Economic Agreements, Security Clause, and Reaffirmation of Sovereignty
		4 International Case Law on National Security Exceptions: The Question of State Discretion
			4.1 The Argentinian Cases
			4.2 The Recent India Cases
			4.3 GATT Art. XXI in the Russia-Ukraine Dispute
		5 Concluding Remarks
		Case Law
		References
	The US Regulation of Foreign Direct Investments
		1 Introduction
		2 FDIs from the EU to the US, in a World of Increasing Governmental Controls
		3 Some Introductory Notions of the American System of FDI Control
		4 The Review of FDIs Under Sec. 721 Defense Production Act of 1950
			4.1 The Establishment of CFIUS in 1975
			4.2 The Exon-Florio Amendment of 1988
			4.3 The Byrd Amendment of 1992 - Addressing FDIs from Foreign Government-Controlled Investors and the Dubai Port World Case in...
			4.4 The FINSA of 2007
			4.5 The Executive Order 13456 of 2008
			4.6 The FIRRMA of 2018
		5 The Current System of FDI Review in the US
			5.1 The Notice of the Covered Transaction
			5.2 The Review of the Covered Transaction
			5.3 The Mitigation Agreements
			5.4 The President´s Powers and the Justiciability Regime
		References
	Golden Powers in Strategic Sectors: A European Perspective
		1 Golden Share v. Golden Powers: Definitory Issues and the Italian Avant-Garde Position
		2 The Protection of Critical Interests and the Emblem of the Huawei Case: The U.S.A. Concerns
		3 The French Reaction with the Loi Pacte
		4 Germany and the Centrality of the BNetzA
		5 A New Pathway: Italian Decree Law No. 22/2019-Decree Law No. 105/2019-Decree Law No. 23/2020
		6 The EU Reaction: The Framework Arising Out of the European Council Sessions of 21-22 March 2019 and the EU-China Summit
		7 A Landing: Regulation (EU) 2019/452
		8 Proceduralization
		9 Objectivation
		10 Institutionalization
		11 Concluding Remarks
		References
	The PRC Regulation of Foreign Direct Investments
		1 China´s Legal System: An Overview and Warnings
		2 China´s Opening Policy Towards Outside World
		3 Regulation of Foreign Investments: The Foreign Investment Law
			3.1 Foreign Investment Law: Investment Management
		4 Foreign Investment Security Review
		5 Circular on the Establishment of a System for Security Review of Acquisition of Domestic Enterprises by Foreign Investors
			5.1 Trial Measures for the National Security Review of Foreign Investments in Pilot Free-Trade Zones, 2015
		6 Measures for Security Review of Foreign Investment, 2020
			6.1 Field of Application: Indirect Investment Covered
			6.2 Joint Working Mechanism
			6.3 Covered Sectors Under the Measures of the Foreign Investments
			6.4 Staged Review Process
			6.5 Decision and Conditional Decision of the FISR Office
			6.6 Whistle Blower Mechanism
			6.7 Consequences of Violations
			6.8 Fraudulent Material
			6.9 Credit Information System
		7 Law and Economy
		8 Anti-Foreign Sanctions Law
		9 Provisional Findings
		References
			Website References
Part II: State as Enterprise/Enterprise as State
	Introduction
	Management of Public Economic Entities: Fair, Accountable, and Controlled
		1 Introduction: This Turn of the Century Is Very Gloomy
		2 The Legal Unification of the Belgian Economic World
			2.1 The New Belgian Codes
			2.2 The Scope and Limits of the Legal Unification of the Belgian Economic World
				2.2.1 The Unifying View of the Belgian Legislator by Virtue of the Reality of the Enterprise
				2.2.2 Offering Goods or Services on a Market
				2.2.3 The Superiority of Competition Law in the Intended Unification Pursued by the Enterprise Law
			2.3 Reconciliation, Spirit, and Action of Public Economic Actors and Private Economic Actors
		3 The Creation, Management, and Control of Public Corporations in the National and Transnational Economy
			3.1 Economic Law in General and Transnational Economic Law in Particular
			3.2 Economic Corporations Under Public Law
			3.3 Belgian Intercommunals
			3.4 The Intercommunal Publifin/Nethys
			3.5 Transparency
			3.6 Public Added Value
			3.7 Corporate Governance and Control
			3.8 Improving Confidence
		4 Concluding Remarks: Utopia and Dreams
		References
	The Role of State-Owned Enterprises in the Economic Transnational Relations
		1 The Role of SOEs in Free-Market Economies and Socialist Market Economies
		2 The Marginal Role of SOEs in the USA and United Kingdom
			2.1 The SOEs in the USA
			2.2 The SOEs in the United Kingdom
		3 The SOEs in the European Union
			3.1 The National Models of SOEs
			3.2 The SOEs in France: From Colbertism to the National Champions´ Policy
			3.3 The SOEs in Germany: The SOEs in the Welfare State Model
			3.4 The SOEs in Italy: From the ``State-Holding System´´ to the Minority Shareholding
			3.5 The SOEs in the European Union Law
		4 The SOEs in Russia
		5 The SOEs in China
			5.1 History and Feature of Chinese SOEs
			5.2 The Chinese SOEs in the International Trade
		6 The SOEs in the International Commercial Agreements
			6.1 The SOEs Between WTO Neutrality and ``Competitive Neutrality´´
			6.2 SOEs in WTO Agreements
				6.2.1 Scope of Application of WTO/SCM Rules
				6.2.2 SCM Agreement and SOEs Qualification and Transparency
			6.3 The SCM Agreement and the Problematic Application to Chinese SOEs
			6.4 The SOEs in the Preferential Trade Agreements
		7 Concluding Remarks
		References
	The Emergence of Sovereign Wealth Funds as New ``Foreign Investors´´: Problems and Perspectives
		1 Sovereign Wealth Funds as New Players in the International Economic Relations
		2 The Origins and the Dissemination of SWFs
		3 Some Thorny Issues Emerging from the Relationship State-SWF: Transparency, Accountability, and Immunity
		4 The International Legal Framework: The Non-Binding Instruments
		5 The Application of International Investment Law to SWFs
			5.1 International Investment Law Scope and SWFs
			5.2 Admission, Treatment, and Protection of SWFs
			5.3 Disputes Settlement
		6 Domestic Investment Screeing Laws and SWFs
			6.1 USA
			6.2 Italy
		7 Concluding Remarks
		Caselaw
		References
	Sustainable Procurement: The Active Role of the State in Building a Sustainable and Inclusive Economic Growth
		1 Introduction
		2 Sustainable Public Procurement
			2.1 Sustainable Award Criteria
			2.2 Multilevel International Rules and Preferred Procurement Policies
			2.3 The European Union Approach and Recent Trends
		3 Sustainable Private Procurement
			3.1 The Essential Role of the Private Sector
			3.2 Multilevel Sources of Private Procurement
			3.3 The Governance of Private Procurement: From Self-Regulation to Statute Law
		4 A Proposal for the Human-Centred Business Model´s Procurement Policies
			4.1 The Human-Centred Business Model (HCBM) Project
			4.2 HCBM and Public Sustainable Procurement
			4.3 HCBM and Private Sustainable Procurement
		5 Concluding Remarks
		References
Part III: Enterprise Versus State
	Introduction
	The Relationship Between a Host State and a Foreign Corporate Investor: A Few Remarks Under International and the EU Law
		1 Introductory Remarks
		2 How to Adjust the Relationship Between a Host State and a Foreign Investor? The Search for International Standard of Corpora...
		3 Corporate Social Responsibility Through International Treaties Applicable to Investments
		4 Concluding Remarks
		References
	Antitrust Law in Digital Markets
		1 The Characteristics of Digital Markets
		2 The Search for a Shared Tax Applicable to Multinationals Operating in the Digital Sectors
		3 The Difficulties of Applying Antitrust Rules to Digital Markets
		4 The European Commission´s December 15, 2020 Proposal for Regulation of Digital Platforms
		5 The Relationship Between the Digital Markets Act, Antitrust Law and Data Protection Regulation
		References
	Clip Their Wings! Developments in the ``Fight´´ Against Vulture Funds
		1 Sovereign Debt and Vulture Funds
		2 Vulture Funds as ``Holdout´´ Creditors: Case Studies
			2.1 Early Cases
			2.2 Zambia
			2.3 Democratic Republic of the Congo
			2.4 Argentina
			2.5 A Brief Assessment
		3 Legislative Measures Targeting Vulture Funds
			3.1 Belgium
			3.2 United Kingdom, Isle of Man, and Jersey
			3.3 France
		4 The Way Forward: Other Initiatives and the Need for a Binding Mechanism for Debt Restructuring
		References
	When the Protection of Private Investors Prevails on the Interest of the Host State (or Almost So): The Perenco v. Ecuador Case
		1 Introduction
		2 Fair and Equitable Treatment in BITs
		3 The Perenco v. Ecuador Case: A Legal Background
			3.1 The Arbitration and the Award
			3.2 Perenco v. Ecuador: Some Reflections on the Issues Raised in the Case
		4 Concluding Remarks
		References
Part IV: State and Enterprise in State Capitalist Economies
	Introduction
	Emerging International Rules on Fair Trade and Their Revelation for Reform of State-Owned Enterprises in China
		1 The Discourse on Fair Trade
		2 Pros and Cons of the Fair Trade Discourse
			2.1 Pros
			2.2 Cons
		3 Rule-making Attempt on the Basis of the Fair Trade Discourse
		4 China Is Specifically Targeted by Fair Trade Rules
			4.1 Effect of Tearing Apart the WTO Multilateral Trading System
			4.2 Spillover Exclusive Effect
			4.3 Possible Strong Demonstrative Effect
			4.4 Contextualizing Rule-Making on Fair Trade
		5 China´s State-Owned Enterprise Reform and Its Logical Ambivalence
		6 Towards a New SOE Reform Agenda: Using the Emerging Fair Trade Rules as a Catalyst
		Bibliography
	White Stains of State Support Measures for Small and Medium-Sized Businesses in Russia
		1 State Measures: Effective Support for the Development of Entrepreneurship in Russia?
		2 Building an Entrepreneurial Spirit in Russia
		3 Limits of State Support for Entrepreneurship in Russia
		4 Concluding Remarks
		References
	Reflections on Foreign Investment and the New Subjects on the Cuban Economy
		1 Foreign Investment: Historical and Legislative Background
		2 New Subjects on the Cuban Economy
		3 Concluding Remarks
		Bibliography
Part V: Conclusion
	Final Remarks