CHAPTER THREE

THE POLITICAL AND LEGAL ENVIRONMENTS FACING BUSINESS

OBJECTIVES

•To discuss the different goals and functions of political systems

•To profile trends in the emergence and diffusion of political systems

•To identify the idea of political risk and approaches to managing it

•To understand how different political and legal systems affect the conductof business

•To profile trends in the evolution and diffusion of legal systems

•To examine the major legal issues facing international business companies

•To profile the idea of intellectual property and the basis of concern and controversy

Chapter Overview

When firms source, produce, and/or market products in foreign countries, they encounter dynamic and challenging political and legal environments. Chapter Three provides a conceptual foundation for the examination of the political and legal dimensions of international business operations. It compares major political regimes, discusses their potential influence upon the development of effectivebusiness strategies, and considers the relevance of political risk. The chapter also examines the major types of legal systems that exist today, as well as the strategic and operational concerns they pose. It concludes with a discussion of intellectual property rights and the associated challenges confronted in an age of globalization.

Chapter Outline

OPENING CASE:CHINA’S BUSINESS ENVIRONMENT

[See Map 3.1.]

During its thirty years of communist rule, China prohibited foreign investment and restricted foreign trade. Then, China enacted the Law on Joint Ventures Using Chinese and Foreign Investment in 1978. China’s subsequent transformation has been fueled by a landslide of foreign investments made in response to the country’s market potential, market performance, improved infrastructure, enormous resources, and strategic position. Frustrating this process, however, have beenthe politics of China’s elaborate bureaucracy, as well as its ill-defined legal system and pervasive corruption. Historically Chinahas relied upon “the rule of man” and the belief that legal rights are derived from the power of the individual. It has also endured a long-running legal battle between the central and local Chinese authorities. Upon joining the WTO in 2002,China agreed to continue to reform its business environment and to move toward transparent, rules-based, enforcement-oriented standards. Coming full circle, today’s fully-owned Chinese enterprises are themselves becoming global investors, both by acquiring foreign firms and investing in greenfield facilities in foreign lands.

Teaching Tips: Carefully review the PowerPoint slides for Chapter Three. Also, review the corresponding video clip, “Counterfeiting in China” [World News Tonight,3:10].

I.INTRODUCTION

For a multinational enterprise to succeed in countries with different political and legal environments, its management must carefully analyze the fit between its corporate policies and the political and legal conditions of each particular nation in which it operates. Then its must determine how these factors affect the ways in which the firm can capture opportunities and deflect threats. [See Fig. 3.1.]

II.THE POLITICAL ENVIRONMENT

A political systemis the complete set of institutions, political organizations, and interest groups, the relationships among those institutions, and the political norms and rules that govern their functions. Thus, it integrates the various parts of a society into a viable, functioning entity. It also influences the extent to which government intervenes in business and the way in which business is conducted both domestically and internationally. The ultimate test of any political system is its ability to hold a society together.

A.Individualism and Collectivism

It is useful to profile the similarities and differences among political systemsaccording to the general orientation within a society about the primacy of the rights and role of the individual versus that of the larger community. Under an individualisticparadigm(e.g., the United States), political officials and agencies play a limited role in society. The relationship between government and business tends to be adversarial; government may intervene in the economy to deal with market defects, but generally it promotes marketplace competition. Under a collectivistparadigm, whether democratic (Japanese) or authoritarian (Chinese) in nature, the government defines economic needs and priorities, and it partners with business in major ways. Government is highly connected to and interdependent with business; the relationship is cooperative.

B.Political Ideology

A political ideology is the body of constructs, theories, and aims that constitute a sociopolitical program (e.g., liberalism or conservatism). Pluralism indicates the coexistence of a variety of ideologies within a particular society. Although shared ideologies create bonds within and betweencountries, differing ideol-ogies tend to split societies apart. The two extremes on the political spectrum are democracyand totalitarianism. [See Fig. 3.2.]

  1. Democracy.

A democracy represents a political system in which citizens participate in the decision-making and governance process, either directly or through elected representatives. Contemporary democracies share the following characteristics: freedom of opinion, expression, and the press; freedom to organize; free elections; an independent and fair court system; a nonpolitical bureaucracy and defense infrastructure; and citizen access to the decision-making process. In decentralized democracies, e.g., Canada and the United States, companies mayface different and sometimes even conflicting laws from one state or province to another.) The defining characteristic of democracy is freedom. Measures of political rights and civil liberties have been developed to assess levels of freedom; a country may be rated as free, partly free, or not free. [See Map 3.2.]

  1. Totalitarianism.

Totalitarianismrepresents a political system in which citizens seldom, if ever, participate in the decision-making and governance process; power is monopolized by a single agent and opposition is neither recognized nor tolerated. In theocratic totalitarianism, religious leaders are also the political leaders. In secular totalitarianism, the government imposes order through military power. Variants of totalitarianism include authoritarianismand fascism.

  1. Trends in Political Systems.

Several factors have powered the democratization of the world. First, many totalitarian regimes failed to improve the economic lives of their citizens, who eventually challenged the right of the state to govern. Second, vastly improved communications technology weakened the ability of regimes to control people’s access to information. Third, many people who champion democracy truly believe that greater political freedom leads to economic freedom and higher standards of living. Although the world is experiencing general movements towards democracy and more open economies, this does not necessarily indicate an increasing homogenization of political systems. In fact, “differentialism”, i.e., the clash of civilizations, refers to the argument that apparently innate and largely irreconcilable differences among cultures can trigger a backlash against Western ideas regarding political rights and civil liberties.

LOOKING TO THE FUTURE: Will Democracy Survive?

There is a clear link between political and economic freedom and economic growth. However, democracy does not necessarily mean stability; in fact, in a transition economy political risk is often quite high. The emergent democracies of the 1990s, especially those of the former Soviet bloc, still wrestle with domestic unrest and security threats. Although challenges to democracy are many, terrorism stands out above all others. Some people argue that if a country is to flourish as a democracy, certain preconditions such as economic development must be present. However, others argue that democracy is the result of having political leaders who exhibit both the determination and the skills required to assure that democratization occurs. Still others feel that indirect support may flow from Asia’s alternative conception of democracy, where economic freedom is progressing more rapidly than political freedom. If democracy proves resilient and resourceful, then managers will face the task of adjusting their operations during periods of economic crisis, but if democracy falters, then managers will face the task of rethinking their operations in a world of increasing state control and repression.

  1. Political Risk.

Political risk reflects the expectation that the political climate in a country will change in such a way that a firm’s operating position or investment value will deteriorate. Leading sources of political risk are: expropriation or nationalization, international war or civil strife, unilateral breaches of contract, destructive governmental actions, harmful actions against people, restrictions on the repatriation of profits, differing points of view, and discriminatory taxation policies. [See Table 3.2.] The following types of political risk range from the least to the most destructive.

  1. Systemic Political Risk. Systemic political riskcreates risks that affect all firms because of a change in public policy. However, such changes do not necessarily reduce potential profits.
  2. Procedural Political Risk. Procedural political risk reflects the costs of getting things done because of such problems as government corruption, labor disputes, and/or a partisan judicial system.
  3. Distributive Political Risk. Distributive political riskreflects revisions in such items as tax codes, regulatory structure, and monetary policy imposed by governments in order to capture greater benefits from the activities of foreign firms.
  4. Catastrophic Political Risk. Catastrophic political riskincludes those random political developments that adversely affect the operations of all firms in a country.

POINT—COUNTERPOINT: Political Risk Management

POINT—ACTIVE POLITICAL RISK MANAGEMENT: Active political risk management reasons that if one measures the right set of discrete events, one should be able to calculate the degree of political risk in a country and estimate the likelihood that politically risky disruptions, (e.g., civil strife, terrorism, regime change, ethnic tensions, contract repudiation, financial controls) will occur. Hence, rigorous quantitative analysis and modeling should detect, measure, and predict future instances of political upheaval. Others opt to assess such risk with qualitative measures by polling a panel of country experts who possess an expert sense of the situation. Then, likely scenarios are developed and probabilities assigned for a finite period of time.

COUNTERPOINT—PASSIVE POLITICAL RISK MANAGEMENT: Many firms choose to treat political risk as an unpredictable hazard of international business. Given that, the strategically responsible thing to do is find a cost-effective way to hedge the firm’s exposure. Typically, these companies shield themselves from political risk by purchasing insurance that protects their operations from various sources of risk, including government expropriation, involuntary abandonment, or damage to assets due to political violence. Organizations that offer such insurance include the Overseas Private Investment Corporation (OPIC), multilateral development banks such as the World Bank (IBRD) and its regional counterparts, as well as private insurance firms.

III.THE LEGAL ENVIRONMENT

A legal system is the mechanism for creating, interpreting, and enforcing the laws in a specified jurisdiction. It is the means and methods a country uses to regulate business practices, define how companies conduct business transactions, specify the rights and obligations of those engaged in business transactions, and spell out the methods of legal redress for those who believe they have been wronged. Generally, legal systems fall into one of the following categories: [See Map 3.3.]

•Common law. Common law originated in the United Kingdom and is based upon tradition, judge-made precedent, custom, and usage; therefore, courts play an important role in interpreting the law. Common-law nations include Australia, Britain, Canada, New Zealand, and the United States.

•Civil law. Civil law, akaRoman law, originated with the Romans and is based upon a detailed set of laws that comprise a code that includes rules for conducting business; therefore,courts play an important role in applying the law. Civil law nations include France, Germany, and Japan.

•Theocratic law. Theocratic law is based upon religious precepts; ultimate legal authority is conferred upon religious leaders who govern society. The best example is Islamic law, or Shari’a,which is based on the Koran,the Sunnah, the writings of Islamic scholars, and the consensus of Muslim countries’ legal communities. (The key for business success is to adhere to the constraints of ancient Islamic lawswhile maintaining sufficient flexibility to operate in a modern global economy.)

•Customary law. Customary law anchors itself in the wisdom of daily experience or great spiritual or philosophical traditions. Customary law may play a significant role in matters of personal conduct in countries with mixed legal systems.

•Mixed Legal System. A mixed legal system emerges when two or more legal systems are used within a single country. Although the majority of such countries are found in Africa and Asia, the United States’ legal system combines both common and civil law.

A.Diffusion of Legal Systems

The evolution and diffusion of the civil and common law systems gives managers a sense of the degree of current and likely convergence across countries. The diffusion of the common law system is embedded in the colonization of the British Commonwealth. Other European countries followed the lead of the Romans in developing their own civil law traditions and then influenced the legal systems of many neighboring, African, and North and South American countries. More recently, successful efforts to standardize laws, particularly with respect to the conduct of business, can be seen in the actions of the European Union and in the development of worldwide standards in accounting, disclosure, and bankruptcy. [See Fig. 3.4.]

IV.LEGAL ISSUES IN INTERNATIONAL BUSINESS

National laws may affect day-to-day operations and a firm’s long-term competitive-ness both within and beyond a country’s borders and pertain to both domestic and foreign firms. Areas addressed include health and safety standards, employment practices, antitrust prohibitions, contractual relationships, environmental practices, intellectual property, cross-border investment flows, tariffs, and non-tariff barriers, to name but a few. In addition, international treaties among nations may also affect the nature and extent of business operations.

A.Operational Concerns

Efforts to start a business, to enter and enforce contracts, to hire and fire employees, and to close a business are all affected by national laws and regulations. While there appears to be an inverse relationship between a country’s per capita income and its tendency to regulate business, the legal systems of the more highly developed countries tend to regulate the major operational features of business activity more consistently than do the less developed nations. Further, those countries that make it easy to start a business also tend to impose fewer and simpler regulations to hire and fire workers and impose less regulation in their courts and bankruptcy systems. [See Table 3.3.]

B.Strategic Concerns

Many legal issues affect the process of value creation. The following legal contingencies often shape an international competitor’s strategic plans.

1.Product Safety and Liability. Often products must be customized in order to comply with local standards, which may be higher than those found in a firm’s home market. While product liability laws are very stringent in markets such as the United States, they are spotty, absent, and at times even arbitrary in many less developed countries.

2.Marketplace Behavior. National laws determine permissible practices in pricing, distribution, advertising, and the promotion of products, and they vary widely from one country to another.

3.Product Origin. Local content is important to all nations, and most countries push foreign firms to add value locally. In addition, product origin determines applicable fees and may be subject to quantitative restrictions as well.

4.Legal Jurisdiction. Every country specifies which law should apply and where litigation should occur when agents are involved—whether they are legal residents of the same or different countries.

5.Arbitration. Most arbitration is governed by the New York Convention, a protocol specified in 1958 that allows parties to choose their own mediators and resolve disputes on neutral ground.

C.Intellectual Property Rights

Intellectual property rights (IPRs)consist of ownership rights to intangible assets, i.e., the right to control and derive the benefits from writing and other creative art forms (copyright), inventions (patents), and identifiers (trademarks). Problems arise because intellectual property, whether in the form of literature, music, design, software, scientific patents, or brand names, is difficult to create but easy to duplicate. Cross-national and cross-cultural legal differences complicate specifying, regulating, and enforcing intellectual property rights. The costs of piracy, whether in terms of lost sales and royalties or future creativity, are very high for registered owners.

1.Level of Economic Development. Generally, less developed countries provide weaker legal protection for intellectual property than do industrialized nations. While less developed nations feel they have little to gain by protecting intellectual property, developed nations feel it is critical to assuring continuing creativity.