This chapter explores how the interpretation of customary international law (CIL) can be shaped by the underlying premises and political values of a system. The argument it develops focuses on how investor–state arbitration has interpreted the CIL law rule establishing that the actions of state-owned enterprises will be attributed to the controlling state, as expressed in Article 8 of the Articles on the Responsibility of States for Internationally Wrongful Acts.

Chapter 8 traces the EU governance of transport services from the Treaty of Rome to the new economic governance (NEG) regime adopted by the EU after the 2008 financial crisis. Initially, European public sector advocates were able to shield transport from commodification, but, over time, the Commission gradually advanced a commodification agenda one transport modality after another. Sometimes, however, the Commission’s draft liberalisation laws encountered enduring resistance and recurrent transnational protests by transport workers, leading the European Parliament and Council to curb the commodification bent of the Commission’s draft directives. After 2008 however, NEG provided EU executives with new means to circumvent resistance. Despite their country-specific methodology, all qualitative NEG prescriptions on transport services issued to Germany, Italy, Ireland, and Romania pointed towards commodification. But the more the Commission succeeded in commodifying transport services, the more the nature of counter-mobilisations changed. Accordingly, the European Transport Workers’ Federation’s Fair Transport European Citizens’ Initiative no longer targeted vertical EU interventions, but rather the social dumping pressures created by the horizontal free movement of services and fellow transport workers. This target made joint transnational collective action more difficult.

The doctrine of attribution in international law has been defined, in large part, by the International Law Commission’s (ILC) provisions on attribution of conduct in the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA). It is uncontroversial to note that despite the influence of the ILC’s rules on attribution, the regime of international responsibility remains underdeveloped. In addition to being underinclusive, the rules of attribution in ARSIWA are beginning to appear outdated. The central question, therefore, is whether the rules of attribution in ARSIWA are flexible enough to accommodate two disparate trends. On the one hand, we have witnessed an outsourcing of public functions to private actors in areas such as immigration, prison management, and education, whereby privatization has reduced state control and, consequently, potential state responsibility. On the other hand, there is a marked centralization of power in SOEs, some of which are now playing a global role as investors. This chapter assesses whether the default rules on attribution are flexible enough to manage both ends of the spectrum of state activity, which will be a crucial issue for regulators going forward.

The past decade has witnessed a growing number of investor-state arbitration (ISA) cases based on China’s bilateral investment treaties (BITs). Given that China hosts many BITs that allow ISA and is a leading state in investment-exporting and investment-importing, China and its investors are likely to face more ISA cases. China’s ISA cases are not substantively different from others, but they give rise to a few systematic issues, relating to the applicability of Chinese BITs in the special administrative regions (SARs), state-owned enterprises (SOEs), and the interpretation of typical BIT provisions. China’s position paper on investor-state dispute settlement (ISDS) reform suggests that it prefers ISA as a major ISDS option and supports the inception of a WTO-style appeal mechanism for ISDS. China’s position is based on its ISA and WTO litigation experiences and conforms to its development strategy.

Upon the enactment of Chinese Civil Code, the previous rules that allowed for enlarged state power to annul contracts were dropped. Chinese law has gone one step further in promoting freedom of contract. The validity rules have been streamlined and the previous contradictory and inconsistent treatment between civil juristic acts and contracts, state and private parties eliminated. However, the new legislative technique will unavoidably facilitate asset stripping, the very reason that the paternalistic rules were in place. Through a historical, doctrinal, and logical lens, we will show why there can be no effective model of a neutral set of validity rules that deals with state-owned enterprises in a less than free and competitive market. The only way to make it work is to have SOEs exit most of the competitive industries and focus on areas that serve the policy goals. Also, paternalistic rules concerning the validity of a contract in trading state-assets should be enacted either in the Civil Code or through special legislations and applicable to government, state-owned enterprises and private parties alike

Chapter 3 examines business cultures in East Asia, explores their origins, and identifies characteristics that may assist in designing and implementing competition law and policy. It is argued that authoritarianism, paternalism, and collectivism engender dependence on and subservience to corporate authority. Further, business groups (SOEs in China, zaibatsu and keiretsu in Japan, and chaebol in Korea) have played an important role in industrialization. The chapter underlines the links between culture at the level of society and at the level of business communities and enterprises, the norms and practices of such enterprises, and their competitive effects. Given these links, it would be constructive to take account of elements of culture in developing and implementing a well-designed competition law and policy. The chapter discusses six dimensions that should be taken into account in competition law: competition goals, the enforcement of competition law against government-linked companies, the management of family firms, the enforcement of competition law where business groups are prevalent, the design of compliance programmes and the promotion of ‘competition culture’ in East Asia.

This chapter shows that state-owned enterprises (SOEs) still play a major role within the Chinese corporate ecosystem, but even after a long period of reforms, they are still plagued by skewed government incentives leading to irrational investment decisions, huge waste of resources, and widespread defiance of central government regulations. The chapter includes case studies of the coal and power sectors to demonstrate the unholy "tripartite" relationship among SOEs, local government officials, and corrupt central regulators, all engaging in rent-seeking activities in their own vested interests. Current reform programs fail to address these key defects.

The United Kingdom’s idea to adopt a stewardship code sparked a global shareholder stewardship movement. Unsurprisingly, Singapore as a corporate governance leader in Asia, adopted a stewardship code. Based on a superficial textual analysis, the Singapore Code appears to be a near carbon copy of the UK Code. However, this Article, which provides the first in-depth comparative analysis of stewardship in Singapore, demonstrates how Singapore has turned the UK model of stewardship on its head. Rather than enhancing the shareholder voice of institutional investors, shareholder stewardship has been used in Singapore as a mechanism for entrenching its successful state-controlled and family-controlled system of corporate governance. This development has been entirely overlooked by prominent international observers and would be beyond the wildest imaginations of the original architects of the UK Code. Viewed through an Anglo–American lens, this use of “stewardship” may suggest that Singapore has engaged in a corporate governance sham. However, this Article argues the opposite: it appears to be a secret to Singapore’s continued corporate governance success and provides a much-needed Asian (as opposed to Anglo–American) model of good corporate governance for Asia.

This chapter outlines potential failures of privatization and presents a sequence of steps to successfully design, implement, and monitor privatization processes. Regarding cases where proposals for offering privatized services face strong opposition and become unfeasible, the chapter also examines how various reform initiatives can lead to better and more effective public organizations, which may also interact with and complement the services of private firms. The chapter concludes by observing that, over time, societies have learned to propose and build on diverse experiences, often exploring multiple paths of improvement where public and private organizations coexist and experiment with plural solutions.

The chapter introduces State-owned entities (SOEs) and frames the reminder of the monograph. This chapter also provides the necessary definitions and carves out the monograph's sphere of applications to entities such as state-owned multinational enterprises, state-owned enterprises, national oil companies, sovereign wealth funds, export credit agencies and other types of entities that are State-owned. A short history of the State as an economic actor follows next then the focus turns to some of the traditional concerns associated with SOEs such as unfair competition, national security and resource security. The discussion then moves on to address the human rights dimension of State corporate ownership. Several case studies demonstrate concretely how SOEs become involved in human rights violations. The last section of this chapter provides an overview of human rights in international law, the most fundamental human rights instruments, a general introduction to the 'respect, protect and fulfil' framework, the nature of State's obligations to 'respect, protect and fulfil' human rights and the relationship between international law, human rights and State ownership.