International Issues Legal Resource Materials
Entrepreneurship Law Editorial Team
Aspatore, Employing International Workers: Leading Lawyers on Navigating Compliance Requirements, Understanding Changing visa restrictions, and Leveraging the Latest Technology (2011).
Abstract (adapted from Amazon):
Employing International Workers provides an authoritative, insider's perspective on the challenges facing U.S. companies with international workforces. Chapters include: Advising the Small Business Client: Needs, Expectations, and Reality. Top lawyers reveal strategies for bringing companies into compliance with new regulations and enforcement guidelines, and examine how the focus of the Department of Labor and Department of Homeland Security has changed under the current administration. From leveraging technology such as E-Verify to understanding key forms and filings, the authors also examine how to protect companies from investigations.
Bernard Bishop, EUROPEAN UNION LAW FOR INTERNATIONAL BUSINESS: AN INTRODUCTION (2009).
Abstract (from product description at Amazon.com):
Written specifically for exporters and those without legal training, this book is an introduction to the business laws of the European Union that need to be understood by those operating outside the EU. It is a practical guide to the regulatory and procedural issues that exporters and businesses need to be aware of. While providing an overview of how the EU operates as a governing body, the book addresses the key matters that exporters will face during their business transactions. Topics covered include: Direct export transactions to the EU; Exporting via an agent or distributor; Customs laws and procedures; Resolving international business disputes; How to establish a permanent business presence within the EU. The book uses case studies to illustrate how these transaction types can be applied to real world business dealings. This book is an essential resource for anyone involved in international business with customers in the European Union.
Sarah Lacy, Brilliant, Crazy, Cocky: How the Top 1% of Entrepreneurs Profit from Global Chaos (2011).
Abstract (from Amazon):
A portrait of the emerging world's entrepreneurial dynamos, Brilliant, Crazy, Cocky is the story about that top 1% of people who do more to change their worlds through greed and ambition than politicians, NGOs and nonprofits ever can. This new breed of self-starter is taking local turmoil and turning it into opportunities, making millions, creating thousands of jobs and changing the face of modern entrepreneurship at the same time. To tell this story, Lacy spent forty weeks traveling through Asia, South America and Africa hunting down the most impressive up-and-comers the developed world has never heard of....yet. The individuals profiled in Brilliant, Crazy, Cocky are distinct products of their own cultures, yet they share that same unmistakable cocktail of delusion, ambition, and brilliance that drove Bill Gates, Fred Smith, Donald Trump, and every other iconic American entrepreneur of the last few decades.
Justin Malbon & Bernard Bishop, Australian Export: A Guide to Law and Practice (2006).
Abstract (from Amazon Product Description):
Australian Export: A Guide to Law and Practice provides students and business people interested in international trade with a clear and concise guide to the main procedures and regulatory environment for international business transactions. The book contains details on the steps involved in a direct sale of goods including: international sales law, trade terms, payment mechanisms, transport, insurance, customs arrangements (including importing) and dispute resolution. It also canvasses the legal and procedural considerations for exporting via an agent or distributor, via licensing and franchising arrangements or through the establishment of an overseas presence in the target market.
Niina Nummela, International Growth of Small and Medium Enterprises (2011).
This book provides a comprehensive overview of international growth of small and medium-sized enterprises from diverse points of view. It verifies that SMEs in all parts of the globe share similar characteristics, but also differ significantly. New explanations emerge, such as ownership, steering of the company, or the negative consequences of international growth. It discusses how the changing external environment of SMEs pushes them to create innovative solutions in order to survive and succeed. This collection of new and international perspectives sheds much-needed light on how founders and management teams of SMEs can succeed in fostering the growth process, and what specific characteristics are instrumental in initiating and maintaining international growth.
Dean A. Shepherd & Jerome A. Katz, eds., INTERNATIONAL ENTREPRENEURSHIP (2005).
Claudia Alvarez & David Urbano, Environmental Factors and Entrepreneurial Activity in Latin America, 48 Academia Revista Latinoamericana de Administración 126 (2011), also available at http://ssrn.com/abstract=1974138.
Abstract (adapted from authors):
The main purpose of this paper is to analyze the influence of environmental factors on entrepreneurial activity, focusing on Latin America, and using the institutional approach as theoretical framework. Through a panel data model with information from the Global Entrepreneurship Monitor and Doin Business, the authors demonstrate that informal institutions, such as political stability, control of corruption and role models are related to the entrepreneurial activity. Likewise, contrary to the expected results, formal institutions, such as procedures and time for starting a new business, and business and entrepreneurial skills, do not have a significant influence on entrepreneurship in Latin American countries
Elin Cohen, Doing Business Under The Hot Sun: How Small Firms Do Business and Process Conflicts in Kenya, 11 Chi.-Kent J. Int'l & Comp. L. 1 (2011).
Considerable amounts of money have been spent on reform projects aiming to strengthen institutions supporting business transactions in developing countries. To be able to evaluate the type and extent of reforms needed, this article presents a thick description of business practices among smaller businesses in Nyanza Province, Kenya. Entrepreneurs in developing countries form long-term relational contracts with a very limited number of suppliers, with whom disputes are rare and generally resolved without third party involvement. However, when entrepreneurs are unable to rely upon relational contracts with their customers, disputes are common and often remain unresolved. Due to the limited availability of suitable fora, firms are cautious to expose themselves to riskier transactions. Private mediation options have emerged in certain locations, but have, at present, limited reach. This article expands our understanding of business practices among smaller businesses in Africa and highlights institutional gaps, which if addressed, could prevent disagreements and facilitate dispute processing.
Juan Pablo Couyoumdjian, Who Walks Out? Entrepreneurship in a Global Economy, 32 Int'l Rev. L. & Econ. 158 (2012).
Abstract (from author):
This article examines how entrepreneurs decide in what country to locate their businesses. The quality of a location's institutions, measured by factors such as political security, bureaucracy, and good governance, play an important role this decision.
Danielle M. Conway, Promoting Indigenous Innovation, Enterprise, and Entrepreneurship Through the Licensing Of Article 31 Indigenous Assets And Resources, 64 SMU L. Rev. 1095 (2011).
One means of implementing the goals and objectives of the Declaration [on the Rights of Indigenous Peoples ] and operationalizing the use of indigenous assets and resources in a collective entrepreneurial effort is the use of licensing to govern transactions, create value, and promote the exercise of indigenous management and control over assets and resources. Focusing specifically on the controlled use of valuable indigenous assets and resources, Part II of this Article describes indigenous entrepreneurship and innovation pre-colonization, the negative effects on indigenous social and economic development post-contact, and colonization's interruptive impact on innovation and enterprise across indigenous diasporas. Part II also presents a discussion about the revival of indigenous innovation and enterprise through the rekindling of traditional knowledge and practices within indigenous communities. Part III analyzes the rights reasserted by Indigenous peoples in the Declaration on the Rights of Indigenous Peoples. The discussion specifically addresses the framework, purpose, and goals of the Declaration to promote authority and control over indigenous lands, resources, and assets. Moreover, there is an examination of the perceived paradox between indigenous values and indigenous participation in the mainstream marketplace. Part IV focuses on licensing as a mechanism to both implement the goals and objectives of the Declaration and to reassert indigenous authority and control over indigenous assets and resources. Part V addresses perceived obstacles to implementing the Declaration through use of licensing. Finally, Part VI concludes with observations and recommendations for universal implementation of the Declaration on the Rights of Indigenous Peoples to secure self-determination through, among other relevant public policy initiatives, indigenous entrepreneurship and economic development.
Alexander E. Csordas, Note, Funding Entrepreneurial Ventures in China: Proposals to More Effectively Regulate Chinese Foreign Private Issuers, 38 Brook. J. Int'l L. 373 (2012).
Abstract (adapted from author): Over the past thirty years, the People's Republic of China has emerged into an economic juggernaut. China has leveraged its population of 1.3 billion people to industrialize at an incredible rate. Three decades of 9 percent average annual growth in gross domestic product (“GDP”) resulted in China supplanting Japan as the world's second largest economy in 2010. Moreover, by focusing on infrastructure spending and the export of consumer goods to drive economic growth, China has managed to largely avoid the financial turmoil that has roiled developed economies, particularly the United States and the European Union, since late 2007. The vibrancy of China's economy has led to the emergence of a middle class and a generation of “budding entrepreneurs” who seek to build new businesses and raise capital. Western investors have been eager to seek investment opportunities in these fast-growing Chinese businesses and to enter a market that, a generation ago, was off-limits to outsiders. Foreign investment in Chinese firms, however, has been plagued with problems. Regulators have discovered numerous instances of corruption and fraud, often perpetrated through deceptive accounting practices, within Chinese companies publicly listed in the United States. These revelations have resulted in international finger pointing between the United States Securities and Exchange Commission (“SEC”) and the China Securities Regulatory Commission. This Note explores the issues raised by such tainted firms and suggests policy changes that may result in more effective regulation of Chinese public companies. Specifically, this Note argues that by implementing legislation that mirrors provisions of the United States' Sarbanes-Oxley Act of 2002, China may be able to develop and, more importantly, enforce a stricter regulatory regime that will reduce corporate fraud.
Matthew F. Doeringer, Fostering Social Enterprise: A Historical and International Analysis, 20 Duke J. Comp. & Int'l L. 291 (2010).
Abstract (from author):
Several states in the United States are attempting to nurture the growth of social enterprise by adopting statutes which enable the registration of Low-Profit Limited Liability Companies (“L3Cs”). The L3C is the first American legal form to embrace and facilitate social enterprise. However, Belgium and the United Kingdom created legal forms to achieve similar ends many years prior to the creation of the L3C. The Belgian and U.K. experiences with these legal forms as well as the historical treatment of social enterprise in the United States provide lessons for how the United States should regulate the L3C and social enterprise in general. This paper tracks the development of social enterprise in the United States and Europe and ultimately proposes that effective government policies need to stimulate capital investment in social enterprise and generate greater public understanding of the sector's potential benefits. Part I discusses the history and development of social enterprise as a concept and as a sector of the economy in the United States and Europe. Part II discusses the difficulties of adapting the nonprofit and the for-profit corporate forms to entities operating as social enterprises in the United States. Part III discusses social enterprise in Europe and how the governments in Belgium and the United Kingdom have attempted to stimulate growth of social enterprise by creating new business entities which bridge the gap between nonprofit and for-profit forms. Part IV discusses the recent government effort to aid social enterprise in the United States through the creation of the L3C and the difficulties which have slowed the impact of the L3C. Part V discusses lessons from the experiences in Belgium and the United Kingdom which can help guide social-enterprise policy in the United States.
Rochell Cooper Dreyfuss, Fostering Dynamic Innovation, Development and Trade: Intellectual Property as a Case Study in Global Administrative Law, 2009 Acta Juridica 237 (2009).
Abstract: International intellectual property law furnishes a case study on the need for norms of global governance. In an earlier era, multilateral intellectual property instruments recognized the dynamic nature of information production; under their terms, nations could balance the interests of producers in earning a return from their intellectual investments against the interests of users in accessing new knowledge for both consumptive and productive purposes. Now that IP is part of the WTO trade regime, information streams have been intensely commodified and an emphasis has been placed on raising IP protection to ever-higher levels. While there are traders in the North and in some emerging economies that are reaping rewards from this system, the TRIPS Agreement is operating as a tax on the South and is chilling innovation is the North. Ostensibly, TRIPS permits nations to strike the appropriate local balance between proprietary and access interests. However, because the drafters of TRIPS incompletely theorized the function of exclusive right regimes, WTO adjudicators have had difficulty evaluating challenges to public-regarding legislation and nations have little guidance for enacting TRIPS-compatible law. But TRIPS does include two potential saving graces. It contemplates close cooperation with WIPO, which now administers upward of 20 intellectual property instruments. Furthermore, the Agreement sets up a Council to oversee compliance. The combined expertise of these two entities could be exploited to rectify the deficits in TRIPS. This paper explores the institutional design issues that must be resolved for these institutions to function effectively. These include mechanisms for incorporating WIPO's expertise into the interpretive process, for insuring that WIPO and the Council operate within the scope of authority delegated by WTO members, for controlling forum shopping, and ensuring transparency, competence, and participation. It ends with suggestions for substantive reform to supplement these administrative devices.
Eric J. Gouvin, Foreword: Entrepreneurism in a Flat, Green, Cash-Strapped World, 31 W. New Eng. L. Rev. 581 (2009).
Leah Chan Grinvald, Resolving the IP Disconnect for Small Businesses, 95 Marq. L. Rev. 1491 (2012).
Abstract (by author): Small businesses are an important component of the American economy. In fact, the jobs created by small businesses could assist the United States in overcoming its most recent economic downturn. Paradoxically, though, the failure rate of small businesses is quite high. Although various factors contribute to this high failure rate, one of the factors the U.S. government has focused on has been the disproportionate impact that intellectual property laws, policies, and their enforcement may have on small businesses. While the U.S. government has paid attention to the impact of domestic intellectual property laws on small businesses, the government has paid little attention to the impact that the implementation of international intellectual property obligations may have on small businesses. This disconnect threatens to undo the efforts of the U.S. government, as implementation of these obligations in the United States pose similar hurdles to success for small businesses. One recent example of this disconnect and potential for serious harm to small businesses is the Anti-Counterfeiting Trade Agreement (ACTA), where the U.S. government has seemingly all but ignored small businesses. This Article uses ACTA as an example of how the U.S. government should be analyzing and negotiating international intellectual property agreements with an eye toward the impact on small businesses, which would thereby resolve the disconnect and create a coherent policy approach.
Jolanda Hessels, Andre van Stel, Peter Brouwer & Sander Wennekers, Social Security Arrangements and Early-Stage Entrepreneurial Activity, 28 Comp. Lab. L. & Pol'y J. 743 (2006-2007).
Abstract: This exploratory study defines a number of propositions regarding the relation between social security arrangements and the rate of early-stage entrepreneurial activity at the country level. We state that in investigating this relation it may be relevant to distinguish between social security contributions paid by employers and employees, and to look at micro-based indicators (replacement rates) for the benefits an individual is entitled to in case of unemployment and illness. Furthermore, we state that it may be especially relevant to focus on the social security position of self-employed relative to the social security position of employees. Using a sample of countries participating in the Global Entrepreneurship Monitor, we explore how various measures of entrepreneurial activity are related to various measures of social security arrangements. Our analysis using aggregate indicators shows that the height of employer social security contributions negatively influences entrepreneurial activity at the macro level, but that the height of employee contributions has no impact. The results of our analysis using micro-level based indicators suggest that the replacement rate of employees has a significantly negative influence on the level of early-stage entrepreneurship at the macro level.
Max V. Kidalov, Small Business Contracting in the United States and Europe: A Comparative Assessment, 40 Pub. Cont. L.J. 443 (2011).
There are both numerous similarities and differences among the small business-specific procurement policies developed by the U.S. Government and by the various levels of government in Europe. As shown in this article, these policies are rooted in the peculiar public procurement systems created on both sides of the Atlantic and in the specific economic, social, or other goals that public authorities hoped to accomplish. This article examines small business procurement policies across several key considerations, including the overall policy framework, definitions of small firms, creation of specialized institutions to assist small business with breaking into public procurements, access of small firms to suitable contracts, increasing transparency, promotion of economic and social sustainability, stimulation of innovation, and related considerations. Although attempts will be made to make comparisons between policies that are representative of the U.S. approach and one or more European approaches, this article is not meant to provide a comprehensive review of small business procurement laws and regulations in every U.S. government agency or in every European country. While the recently enacted Small Business Jobs Act of 2010 directs major pro-competition, pro-accountability, and pro-integrity reforms in U.S. small business procurement policy, it will take time for most of its provisions to be translated into federal regulations and policies. In addition, the role of political considerations in developing small business procurement policy is outside the scope of this article.
Yasser Killawi, Note, Preserving an Entrepreneurial America: How Restrictive Immigration Policies Stifle the Creation and Growth of Startups and Small Businesses, 8 Ohio St. Entrepren. Bus. L.J. 129 (2013).
Abstract (by author): America has always been a land of immigrants. Likewise, America has always been a nation of entrepreneurs. The immigrant entrepreneurial spirit is an essential part of this nation's identity. From its inception, America has attracted entrepreneurial individuals-men and women who left their birthplaces and all they ever knew to pursue the “American Dream.” Today, the immigrant entrepreneur remains relevant and is key to the American economy. Immigrant entrepreneurs are starting new businesses, creating jobs and driving economic growth. Many of America's most iconic companies, such as AT&T, Kraft, Proctor & Gamble, Goldman Sachs, Kohl's, Nordstrom and Capital One were started by immigrant entrepreneurs. However, despite the tangible benefits the American economy has realized as a result of the entrepreneurship and innovation of immigrants, U.S. immigration laws remain unwelcoming to immigrant entrepreneurs. Restrictive immigration policies are turning away many current and future innovative entrepreneurs and inhibiting the creation of new business essential for economic growth. This note will analyze the effect of our restrictive immigration policies on the creation and growth of startups and small businesses. While there is no doubt that our current immigration system is in need of comprehensive reform, this note will not address the wider immigration debate. Rather, this note will focus on the shortcomings of our immigration policies that stifle the creation and growth of startups and small businesses.
Phillip H. Kim & Mingxiang Li, Seeking Assurances When Taking Action: Legal Systems, Social Trust, and Starting Businesses in Emerging Economies (Organization Studies, forthcoming 2013), available at http://ssrn.com/abstract=2297439.
Abstract (adapted from authors): This study examines how institutional conditions provide assurances founders seek when creating businesses. Classical theories predict legal institutions promote supportive conditions that foster business creation. The authors develop an alternative theory for why this relationship is not as straightforward in emerging economies. In these regions, people may be discouraged from taking entrepreneurial action because of the difficulties in accessing legal protections efficiently. This paper also introduces theory regarding the moderating role of generalized social trust because of its normative influences on business creation. The authors argue generalized trust in strangers exerts positive moderating effects on the direct relationship between legal protections and entrepreneurship. The findings from our multilevel analysis of 30 emerging economies are consistent with their theory. This work advances a new framework for how entrepreneurs cope with uncertain business conditions in emerging economies where informal, normative social structures offer more privately oriented safeguards than do formal, publically oriented institutions. The study also reconnects macro-institutional theories with individual-level accounts of entrepreneurship.
Kenji E. Kushida, Entrepreneurship in Japan’s ICT Sector: Opportunities and Protection from Japan’s Telecommunications Regulatory Regime Shift, 15 Soc. Sci. Japan J. 3 (2011), available at http://ssrn.com/abstract=2118810.
Abstract (by author): Entrepreneurs and entrepreneurship played a critical role in transforming Japan’s telecommunications sector. Between the mid-1990s and mid-2000s, in a sector long dominated by a stable set of large actors with well-established patterns of interaction, entrepreneurs introduced new technologies, new business models, and new norms of interaction. The subsequent transformation of Japan’s telecommunications sector was dramatic, providing consumers with not only fast and sophisticated services but also low prices and an entire new ecosystem of mobile content — a considerable departure from Japan’s long track record of being known as producer — rather than consumer-oriented, with consumers enjoying high-end services and products, but at high prices. Yet, these transformative entrepreneurs were not acting in a vacuum. Regulatory shifts in telecommunications were critical in providing opportunities for entrepreneurs, while simultaneously protecting them from large incumbent ﬁrms. These regulatory shifts were driven by the political dynamics of the 1990s as Japan struggled through its post-bubble economic malaise and political changes.
Craig S. Morford, Note, H To B Or Not To Be: What Gives Foreigners The Right To Come Here And Create American Jobs?, 6 Entrepren. Bus. L.J. 299 (2011).
(adapted from journal):
Congress, realizing the growing importance of immigrant entrepreneurs, created a permanent allocation of H-1B visas for skilled workers in 1990. Since then, the program has fed skilled workers to top-tier U.S. technology companies and universities. Sponsoring employers are able to secure talented computer programmers and engineers from around the world. In fact, companies often seek foreigners through this program because they are unable to find Americans with the skills they need. However, while the current administration claims to be trying to lower administrative barriers, the reality is that it is harder than ever for companies to hire foreign technologists. As the debate rages on, technology companies must deal with stagnating H-1B cap levels, increasingly restrictive administrative rulings, court cases and attorney's fees. In fact, President Obama recently signed legislation that increases overall application fees, in addition to recently enacted administrative fees. High-tech companies, business leaders and venture capitalists are complaining that the new rules and regulations have made it increasingly difficult to hire the world's top talent and are lobbying Congress to curb fees and loosen restrictions. However, on the other side, proponents of the recently enacted regulations advocate for protecting jobs for American citizens. Politicians and interest groups are seeking more restrictions in response to their concern over displaced U.S. workers. The debate is not a new one--it has existed since the inception of the H-1B program. This article examines both the history of the H-1B program and the impact that recent changes in immigration policy will have on innovation and entrepreneurial business.
Michael B. Sichter, Note, Pumping Up America: Using The EB-5 Visa To Inject Entrepreneurial Steroids Into A Struggling U.S. Economy, 79 UMKC L. Rev. 1007 (2011).
(adapted from author):
This article closely examines the EB-5 visa as it was originally created, and the practical reality of how it is currently administered and adjudicated. It provides a description and background of EB-5 visas, then outlines the basic procedure for application. It then describes many of the practical considerations, including precedent court decisions, that practitioners must take into account during the application process and points out the commonly encountered problems with EB-5 visas. It ends with policy arguments for change and suggestions for improvements.
Frank H. Stephen et al., The Responsiveness of Entrepreneurs to Working Time Regulations, 32 Small Bus. Ec. 259 (2011), available at http://ssrn.com/abstract=1837240.
(adapted from author):
In this article, the authors analyse the impact of enforcement practices (proxied by judicial formalism) and the regulation of working time on entrepreneurial activity by opportunity. The authors find that higher enforcement formalism mitigates the negative impact exerted by rigid working time regulations on the number of entrepreneurs. While it is agreed that regulatory rigidities may increase labour transaction costs, the authors show that entrepreneurs are less sensitive to labour regulations the higher the level of enforcement formalism in which they operate. Higher formalism is associated with lower enforcing efficiency and lower probability of being punished for transgressing laws. A policy implication is that encouraging labour flexibility might not improve conditions for entrepreneurial activity in procedurally formalist countries. This is due to the fact that, in those countries, flexibility de facto characterises employment relations, no matter what the law says.
United Nations Industrial Development Organization (UNIDO), UNIDO Industrial Development Report Breaking In and Moving Up: New Industrial Challenges for the Bottom Billion and the Middle-Income Countries. (February 2009).
UNIDO launches its Industrial Development Report entitled 'Breaking in and moving up: New industrial challenges for the bottom billion and the middle-income countries' focuses on countries that have been left behind. It is about the opportunities and constraints faced by two groups of countries: the countries of the 'bottom billion' trying to break into global markets for manufactured goods, and the middle-income countries that are striving to move up to more sophisticated manufacturing. The report focuses predominantly on manufacturing, but it also discusses resource extraction, which is the other major type of industrialization in developing countries. It also highlights three aspects of structural change in industry. The report seeks to improve our understanding of these processes of structural change, and sets out some economic policy responses to support breaking in and moving up in the global industrial economy.
Michael D. Scott, International Legal Issues Checklist
Abstract (from author):
This document is designed for use by both lawyers and non-lawyers considering direct overseas investment or any investment (debt or equity) in enterprises outside the U.S. (although some of these questions are also relevant in highly regulated states like New Jersey and California). In short, these are good issues to consider when making any investment, but are particularly important when considering investments overseas. As with all my documents, nothing in this document expresses any opinion on the law of any jurisdiction, and all such opinions are expressly disclaimed. Also, nothing in this document is intended to constitute "investment advice." Non-lawyers should, of course, engage competent counsel to advise them before making investments. Both lawyers and non-lawyers should engage competent investment advisers before making a decision on any overseas investment.