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Developments in the Law and Institutions of International Economic Relations٭

Published online by Cambridge University Press:  28 March 2017

Seymour J. Rubin
Seymour J. Rubin*
Affiliation:
Washington College of LawAmerican University
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Extract

A few years ago expert opinion seemed to be veering sharply toward the conclusion that the multinational enterprise had put national sovereignties “at bay.” As astute an observer as Raymond Vernon was writing that “sovereign states are feeling naked,” that concepts such as national sovereignty and economic strength appeared to be “drained of meaning,” that the consequent sense of “nakedness and dependence” had focussed interest on the “institutions which are thought to be the main agents of the change,” and that prominentamong these was the “multinational enterprise.”

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 3 , July 1974 , pp. 475 - 488
Copyright
Copyright © American Society of International Law 1974

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Footnotes

٭

Edited by Stanley D. Metzger.

References

1 Vernon, , Sovereignty at Bay 3 (1971)Google Scholar.

2 See, generally, Fayerweather, , The Internationalization of Business, 403 The Annals of the Amer. Academy of Pol. and Soc. Science 1 (1972)Google Scholar; Polk, , The New World Economy, Colum. J. of World Bus. (January-February 1968) at 7 Google Scholar; Hearings on the Multinational Corporation and International Investment before the Subcommittee on Foreign Econ. Policy of the Jt. Econ. Comm., 91st Cong. 2d Sess. (1970).

3 The largest dinosaur, brontosaurus, was not even ferocious; his small relative, tyranosaurus, was the combative one. Both were large, and both are extinct.

4 Administrators rise to the level of their maximum inefficiency.

5 Wall Street Journal, Feb. 20, 1974: “A Giant Multinational Finds Unified Activities Aren’t Easy to Set Up.”

6 See Gennahd, , Multinational Corporations and British Labour: A Review of Attitudes and Responses, British North American Committee (1972) at 5 Google Scholar. “There is concern that the existence of such companies may weaken the job security of their members because of the ability of corporations to switch production from one country to another. Up to the present, British unions have experienced little from this aspect of the multinationals. . .”

7 Deltec has argued that Compania Swift de la Plata, the plant originally declared bankrupt, is not in fact insolvent, and that the other Deltec subsidiaries in Argentina are in no way related to that corporation except that they are also Deltec subsidiaries.

8 For some time, an exception to the edict against trade with Cuba has been allowed, if the subsidiary had no U.S. connection other than ownership. Current disputes involve U.S. subsidiaries which desire, in accordance with the policy of their host countries, to ship to Cuba, and the items to be shipped include U.S. components and/or technology.

9 Société Fruehauf v. Massady [1968] D.S. Jur. 147 [1965] J.C.P. II 14, 247 bio (Cour d’Appel, Paris). See aho 5 ILM 476 (1966).

10 Generally on the subject of “extraterritoriality” as applicable to multinationals, see Rubin, , Multinational Enterprise and National Sovereignty: A Sceptic’s Analysis, 3 Law and Policy in International Business 1, 10–21 (1971)Google Scholar.

11 UN Doc. ST/ECA/190, August 1973.

12 Hearings on Multinational Corporations and United States Foreign Policy Before the Subcomm. on Multinational Corporations of the Senate Comm. on Foreign Relations. 93rd Cong., 1st Sess., Part 3, July-August 1973.

13 For example, multinationals operating across national frontiers and with some excess capacity can minimize the costs unions can impose upon them through industrial action. This problem is enhanced if the corporation can replace, from its own foreign sources, products which are the object of a national strike. But cf. Wall Street Journal, April 23, 1973: “Multinational Firms Face a Growing Power: Multinational Unions.”

14 See Multilateral Undertakings and Community Regulations. COM (73) 1930, Nov. 7, 1973. Additionally many private surveys and analyses have been and are being made. Some attempt to catalogue them is made in Lea and Webley, Multinational Corporations in Developed Countries: A Review of Recent Research and Policy Thinking, British-North American Committee (1973).

15 See Oliver, , The Andean Foreign Investment Code: A New Phase in the Quest for Normative Order as to Direct Foreign Investment, 66 AJIL 763 (1972)CrossRefGoogle Scholar.

16 The Subcommittee pointed out that the allegation of bulldozing is not supported by evidence before it.

17 See Wall Street Journal, March 27, 1974.

18 The memorandum was released by the Church subcommittee on March 28, 1974.

19 See Silk, “Multinational Morals,” in the N.Y. Times, March 5, 1974, at 33. “The multinational corporations would like to be world citizens, but since there is no world government, no world community to which they are responsible, they must feign loyalty to every country where they do business, concealing the flag under which they really sail—a Jolly Roger emblazoned with the motto ‘Short-run profit maximization’.” Mr. Silk somewhat abates his indignation by conceding that “corporations doubtless increase economic efficiency,” a concession which in turn is minimized by stating that “economics is not everything and the nation-state, when it is healthy and principled (italics added) is the appropriate institution for serving the social, political, and psychological goals of its citizens.” The burden of deciding whether or when the nation-state is in fact “healthy and principled” may be, in the light of practices of some governments of some nation-states, a heavy one.

20 (a) Foreign Ownership and the Structure of Canadian Industry. Report of the Task Force on the Structure of Canadian Industry (1968) (“The Watkins Report”).

(b) Eleventh Report of Standing Committee on External Affairs and National Defense, No. 33, House of Commons, 28th Pari., 2d. Sess. 1969–1970.

(c) Foreign Direct Investment in Canada (“the Gray Report”) 1972. Cf. “Canada Bill to Control U.S. Firms,” Washington Post, March 9, 1974, referring both to proposed Canadian legislation to compel Canadian subsidiaries to ignore Trading with the Enemy Act limitations, and to “a new foreign investment board” to block foreign investments that do not provide “significant” benefits to the economy.

21 Foreign Investment Law, approved by Congress Nov. 7, 1973; see 12 ILM 1489 (1973).

22 See 11 ILM 357, 373 and 374 (1972) as well as Decision 24 of the Andean Group, adopted Dec. 31, 1970.

23 See, e.g., Hirschman, How to Divest in Latin America and Why, Princeton Essays in Int. Finance (No. 76, 1969); but see Vernon supra note 1, at 266 et seq. “In narrow economic terms, a program of . . . formal divestiture could prove hurtful [to the host country] rather than otherwise” (Id., 267).

24 Other similar institutions exist, like Britain’s Industrial Reorganization Corporation, which are more likely to favor domestic than foreign-owned industry with low-interest loans. One case which has arisen in Canada involves a concessional development loan to a Michelin tire plant in Nova Scotia, a “less-developed” region of Canada. Are exports to the United States from such a plant subsidized, so as to be subject to countervailing duty? The U.S. Treasury has so ruled. See Wall St. Journal, Jan. 8, 1973; see also The Michelin Decision: A Possible New Direction for U.S. Countervailing Duty Law, 6 Law and Policy in International Business 237 (1974).

25 See Washington Post, Feb. 22, 1974, p. D9.

26 See N.Y. Times, Feb. 17, 1974: “Within the producer countries, anything resembling the traditional concessions is doomed. The governments will assume full control in a few years. In some places, this may mean 100 percent ownership of all production operations. The companies may stay on as contractors, or they may go altogether.”

27 “Profits of the world’s largest oil producing company and the four U.S. firms that own it have risen in direct proportion to price increases won by Saudi Arabia, Senate investigators said yesterday.” Washington Post, March 28, 1974. But see N.Y. Times, March 30, 1974, interview with George T. Piercy, Senior Vice President, Exxon Corp.: “Mr. Piercy said that Exxon, rather than making huge profits from its Arabian oil .in 1973, earned only about 34 cents a barrel, which was less than in 1972.”

28 Although hearings on so-called “windfall’ profits of oil multinationals seem to threaten no excess profits tax (see Hearings on Energy Windfall Profits, Senate Comm. on Finance, 93d Cong., 2d. Sess. Jan. 22–23, 1974), the prominence given to oil company profits seems likely to have unpleasant consequences for them, as well as for other industries enjoying depletion allowances. See N.Y. Times, April 2, 1974: Some state action may lead the Congress to this measure; see Washington Post, April 2, 1974, “Maryland Repeals Oil Depletion Allowance,” stating that the Maryland House of Delegates has passed a bill (already approved by the State Senate) which would “strip the nation’s oil companies of their right to use the 22 percent Federal oil depletion allowance in calculating their Maryland corporate income tax.” In addition, the foreign tax credit is in serious jeopardy. See Wall St. Journal, Feb. 28, 1974: “Oil Companies’ Use of Foreign Tax Credit Would Be Limited Under House Unit’s Plan.”

29 See editorial, Wall Street Journal, March 7, 1974: “Messrs McGovern, Nader et al. . . . are lending their support to a bill prepared by Senator Stevenson of Illinois which would set up, with some $500 million in taxpayer money, a federal oil company to go into competition with all the other companies . . . that do business in this country.”

30 The charge that the energy problems of the United States are “contrived” touches a particularly, and understandably, sensitive nerve. See statement of M. A. Wright, Chairman, Exxon Company, entitled “ ‘Contrivance’ Charges are Untrue,” “Profits in the oil industry are not out of proportion . . . and consumers have not been forced to pay excessive prices; quite the opposite is true . . . [t]he oil companies as economic entities have merely been responding to governmental policies and regulations, and to the prevailing economic climate.”

31 See the defense of the “Foreign Trade and Investment Act of 1972” (The Burke-Hartke proposals) by Elizabeth Jager, of the AFL-CIO, in 7 Columbia J. of World Business 16 (March-April, 1972). Also see A Trade Policy for America: AFL-CIO Program (Washington, D.C., AFL-CIO, May 1971). Concern of labor unions in Britain seems to take a different turn, see Motion of Association of Cinematograph, Television and Allied Technicians submitted to the Trade Unions Congress: “Congress can no longer tolerate foreign companies operating in Britain which deny their employees collective bargaining rights,” cited by GENNABD, supra note 6, at 50.

32 See United States Tariff Commission, Report on Implications of Multinational Firms for World Trade and for U.S. Trade and Labor, 93d Cong., 1st Sess. (1973).

33 Measured appraisals are contained in the comprehensive series of reports of the U.S. Commerce Department contained in Multinational Corporations, a Compendium of Papers submitted to the Subcomm. on International Trade of the Senate Comm. on Finance, chaired by Sen. Ribicoff (Washington, D.C.; Gov’t. Printing Office, 1973). See also Williams Commission Report, infra note 42.

34 See How Multinationals Play It, Business Week, Sept. 25, 1971, at 101 et seq.: “‘It’s like water sloshing from one side of a basin to the other’, says Keith Mc- Dermott of Morgan Guaranty Trust Co., describing how the giant multinational companies have shifted money from one currency to another in recent months.”

35 Arts. 11 and 12.

36 Draft Convention on the Protection of Foreign Property and Resolution of the Council of the OECD on the Draft Convention, OECD (1967).

37 See United States Multinational Enterprise: Report on a Multinational Enterprise Survey (1960–1970) (Wash., D.C., 1972).

38 See the interesting comments of Francisco Orrego Vicuña, El Control de la Empresas Multinacionales, 14 Foro Internacional (No. 1, 1973): “Certainly, national control would be an important element of whatever may be the regime, but everything indicates that the tendency is directed toward regional and international forms of control” (translation from the Spanish).

39 Recent information is that African nations are making some use of ICSID.

40 See Rubin, , Report on the Düsseldorf Conference on International Controls on Foreign Investment, 7 The International Lawyer 825 (1973)Google Scholar.

41 See the discussion of this proposal (put forward by the present writer) and of several others in Lea and Webley, supra note 14.

42 Compare United States International Economic Policy in an Interdependent World (Wash., D.C., July 1971) (the “Williams Commission Report”).