最近有报道称中海油与伊朗的石油开发协议可能违反了联合国制裁伊朗的协议，美国政府正在调查中海油是否同时违反了美国国内法–因为中海油在纽约证券交易所上市，所以受到美国国内法管辖。
来自China Signs Oil Deal with Iranian Company
…The U.S. State Department says Washington is looking into whether the CNOOC deal breaches U.S. law. The Chinese company has its shares listed on the New York Stock Exchange, and is therefore subject to American laws. …
证券交易所的法律地位*
——反思“与国际惯例接轨”
方流芳
1. 交易所的职能
在 一个国家的证券市场，同时进行着多种游戏，游戏参与者不断变换组合，呈现出错综复杂的关系。一方面，交易所提供交易场所、收取入场费、制定交易规则、维持 秩序，而为交易的组织者；另一方面，交易所和上市公司之间，交易所和证券商之间分别进行各有所图的交易。因此，交易所是我们观览证券市场全局的可选视角。
交易所的传统职能
交易所在证券市场中处于何种地位？一个经常被引用的回答是：“交易所和购物中心或者跳蚤市场的经济职能没有什么实质差别，它们都是将买卖双方聚集在一起而减少彼此发现对方的搜寻成本。1” 但是，传统的交易所毕竟不同于购物中心或农贸市场。首先，证券市场是场外委托和场内竞价双层结构的专业市场——投资者只能通过专业中介买卖股票，只有那些 付得起巨额入场费的专业中介才能进入场内，而交易所则是场内交易的组织者。其次，交易所是为自身利益而组织场内交易，“许多人将交易所看成一个公益机构， 这是不对的。交易所是一个为自身利益所主导的经济组织。2”最后，也是最重要的一点，几乎所有的交易所都会在自身利益的驱使下追求独占，独占倾向是交易所的全球性特征。
Professor Liebman and Milhaupt publish a paper on reputation sanction in Chinese securities market (also see a brief intro from Economist) with the finding that there is a significant effect of such sanction. These reputation sanctions are given by Shanghai and Shenzhen Stock Exchange. Given the ineffectiveness of legal sanction in China, they further suggest that it is quite conceivable that the exchanges may become better regulators than the official ones.
(pic from Economist intro)
This suggestion is along the line of pro-deregulation through self-regulation as an alternative. Much research on self-regulation has been done by US scholars with the case study of NYSE. NYSE was funded on May 17, 1792, when the Buttonwood Agreement was signed by 24 stock brokers outside of 68 Wall Street in New York. On March 8, 1817, the organization drafted a constitution and renamed itself the “New York Stock & Exchange Board,” which was shortened to its current name in 1863. John Coffee, a prominent corporate law professor, argues that it was NYSE’s regulation of security market, rather than legal or administrative regulation, lead to a large and liquid securities markets. Since NYSE is an association of brokers, the nature its regulation is deemed as private, or self-regulation, as contrasted to the governmental regulation through federal securities laws and SEC rules. Self-regulation is proved in NYSE case to be superior to the governmental regulation.
To be sure, Liebman and Milhaupt do not simply assimilate China’s Shanghai and Shenzhen Security Exchange to NYSE. The Chinese security exchanges are facing rather different situations from NYSE did. What makes Shanghai and Shenzhen Security Market better than their judicial and administrative peers is that the security exchanges are less submissive to the “rival interests and institutional capacity.” And it is for this reason, Liebman and Milhaupt argue, that Chinese Security Regulation Commission–roughly Chinese counterpart of SEC in the US–was willing to delegate its authority to Shanghai and Shenzhen Security Exchange. And since the two exchanges are doing well, Liebman and Milhaupt seem to see it as another triumph of a pro-deregulation thought: the private authority, or at least semi-private, beats the governmental authority.
This sounds like a cheerful conclusion. It releases some anxiety people have when investment is in an unknown market, it satisfies the curiosity on what kind of rules a market without legal rules would follow, and most importantly, it helps settle the puzzle why a non-rule-of-law regime can support such long-term economic growth. Nevertheless, the conclusion is built on sand.
All arguments Liebman and Milhaupt make are based on the assumption that the two Chinese security exchanges are private or semi-private. This assumption is questionable. Shanghai Security Exchange, for instance, is “created by the government, governed by the government, and hence it is a governmental entity that carries the authority of governing securities market and regulating its everyday business (是政府创设、政府管理之下的一个承担证券市场组织、营运职能的公权力机构),” according to Professor Fang Liufang’s research report in 2006. If we look at the current CEO and other personals in Shanghai Security Exchange, it is even more obvious–those who in Liebman and Milhaupt’s eyes in charge of the “private” regulations are all governmental officials. Shanghai Securities Exchange is doubtlessly not private or semi-private.
It is therefore unlikely that the triumph of China’s reputation sanction should be a pro-deregulation example as Liebman and Milhaupt have hoped. Now, what then may be a convincing explanation? And what could China do to improve its regulation?
Good questions. I surely do not have an answer for the first question. Professor Liebman and Milhaupt has shown us the richness and complexity of the Chinese case, and I do not think my understanding is any better than theirs. For the second, it is beyond my ability. To be sure, I am not trying to oppose deregulation proposal. What I have said is that deregulation does not seem to be supported by the reputation sanction practice.
“This is just finding quarrel in a straw,” you may say.
–You are right–it brings us nowhere. And therefore I should stop now.
[The fact that Chinese workers "quit and go to another manufacturer that doesn't follow the law (overtime regulation)" does not appear to me as a "dilemma." It is not a dilemma for workers. Workers can not earn enough wage with the amount of time prescribed under law, therefore they have to find a place to work overtime. Nor is it a dilemma for manufacturers--what they need to do is to raise the hourly wage. Manufacturers will surely get workers stay and do their job. Only when breaking law becomes a choice for manufacturers, it appears as a "dilemma". What a "dilemma!" ]
Understanding the Chinese overtime dilemma
By Bill Roberts, TFI Blog
(more…)
Poll Finds a Fluid Religious Life in U.S.
The Pew survey, available on the Web at http://religions.pewforum.org
[The following article from China Briefing suggest that Chinese anti-trust law, scheduled to take effect in August, has implications far more significant than curbing foreign investment interests, although it doesn't clearly say why and how.]
Will the Anti-monopoly Law assist central regional development?
Additional M&A activity anticipated if China can banish SOE cartels
The following Comment is made by Cho Suck-rai, the chairman of Hyosung Group, which is a Korean chaebol–a chaebol is a powerful family in control of a large group of public companies in Korea, after a meeting with the new “pro-chaebol” president Lee Myung-bak.
“Why is corporate governance so important?” Cho asked. “What benefits does the reform of corporate governance give? If ownership is separated from management, does it mean an improvement in corporate governance? The important thing is whether management is efficient. If the company owners seek only their own profits in management, they had better remain just shareholders. But not all business owners do that.”
[Some US companies doing business in China are walking on the line----the Foreign Corrupt Practices Act of 1977 (FCPA 1977) may nail them down once they are put under strict scrutiny. Think about this--how often do their managers hesitate to pay for a dinner to celebrate a deal, or to present a gift to honor the Chinese New Year? These payments, often being considered as business routine, are criminal under FCPA 1977. Great legal risks surround these US companies as they follow the local business routine.
These risks are not just for the US companies--they are probably more immediate for the Chinese companies listed in the US. ]
Federal act exposed bribery in corporations
By Rick Stouffer
TRIBUNE-REVIEW
Sunday, February 24, 2008
Claude C. Wild Jr., once Gulf Oil Corp.’s lone Washington lobbyist, was known in the 1960s and early 1970s, his attorney, Pittsburgher William Hundley has said, for distributing envelopes stuffed with cash to politicians.
After the Watergate scandal, his actions helped Congress realize a number of American corporations were using off-the-financial-books “slush funds” to dole out thousands of dollars in this country and abroad to curry favor and win contracts.
Take the example of the popular Apple video iPod. It’s a product with 450 parts made by companies around the globe, assembled in China and shipped to the United States, where it is sold for about $300. According to trade statistics, every finished iPod exported to the United States represents $150 of our trade deficit with China. But if you look closely at the value chain, you’ll see that most of the iPod’s value accrues to American companies and workers ($163), including $80 for the innovator, Apple. In fact, the final assembly in China is actually worth only $4 per unit, far short of the $150 that gets tallied officially in the attention-getting U.S. trade deficit with China.
from:Talk back