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  Brigham Young University International Law & Management Review
    International Law & Management Review (v.1 2005 - v.2 no. 1 2006)
  Volume 2, Number 1, Winter 2005
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  • The New Challenges to the International Patentability of Biotechnology: Legal Relations Between the WTO Treaty on Trade-Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity
        Jonathan Curci
        Since the treaty on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization Agreement internationalized the patentability of living forms, the international community has engaged a lively debate on the interstate exchange of biological diversity and the benefit sharing thereof. This controversy concerns the well-known opposition between industrialized and developing countries. The latter, rich in biological resources, must provide patents for the exclusive rights to products or processes based upon raw material allegedly misappropriated from their countries by private corporations from industrialized countries. The author analyzes the legal conflicts between intellectual property treaties and the Convention on Biological Diversity (CBD) and TRIPS. He then utilizes the rules of treaty interpretation under the 1969 Vienna Convention on the Law of Treaties to suggest ways in which parties to both bodies of law can interpret and implement them in a mutually supportive manner. Finally, the author outlines the current WTO Members' opposing positions and reviews the TRIPS Agreement as appropriate in leading future WTO Ministerial Conferences.
  • Corporate Governance, Strategy, and Supply Management Performance: an Empirical Analysis of Companies Listed in the São Paulo Stock Exchange
        Wesley Mendes-da-Silva and Ervin L. Black
        Most studies of corporate governance focus on economic and financial considerations, concentrating on the impact of governing structures on companies' economic and financial development. Consequently, studies of corporate governance structure and its effect on supply management are nonexistent. Recognizing that supply management constitutes a significant part of corporate management, especially in industrial companies, this study fills the performance measurement gap by examining the relationship between corporate governance structures, supplier diversification strategies, and the supply management performance. The author ultimately concludes the independence of corporate directors is strongly and positively linked to the breadth and diversity, and thus the value-maximizing performance, of a corporation's supplier pool. The study is comprised from a multiple cross section covering the period between 1997 and 2001, including data from 176 industrial companies from fourteen different industries trading on Bovespa, the São Paulo Stock Exchange. - Three ILMR editors (Nicole W. Empie, Alexander Fuentes, and Thomas J. Campbell) translated this article from Portuguese to English.
  • Much Ado About Nothing: Looking Past the Drama of the Sarbanes-Oxley Act and Reevaluating the U.S. Delisting Trend Among Non-U.S. Firms
        Kalani A. Morse
        In response to the shocking succession of corporate securities and accounting scandals, the U.S. Congress swiftly enacted the Sarbanes-Oxley Act of 2002 (SOX), drastically overhauling corporate governance regulations and standards, creating enormous compliance costs for publicly traded firms. Consequently, many non-U.S. firms are considering delisting strategies and the few that have pursued such strategies have generated a firestorm of media speculation about an impending delisting tidal wave with firms abandoning U.S. capital markets as a means of avoid compliance costs. This article argues that non-U.S. firms should not allow the SOX drama to push them into delisting strategies that inevitably carry high opportunity costs and prohibitively high and often unexpected delisting expenses when markets will eventually pressure such firms into adopting SOX-like reforms. This article illustrates how although Congress' knee-jerk reaction to the financial scandals had the short-term effect of rejuvenating investor confidence, the stringent reactionary approach is already subsiding. The author illustrates how, in recent years, U.S. regulators have increasingly approached SOX enforcement with cooler, pragmatic, and cost-conscious heads. The article outlines other important considerations for non-U.S. firms weighing delisting strategies: opportunity costs, decreased compliance cost mitigation, and other regulatory and pragmatic ramifications associated with delisting. The article then illustrates how most of these factors weigh in favor of pursuing compliance initiatives that enable or preserve participation in U.S. capital markets. Finally, the article highlights the globally expanding culture of proactive corporate governance focused on increased accountability and transparency and then points to cross-cultural expectations and competitive and regulatory forces that will eventually disadvantage delisted firms.
  • Antimonopoly Law in China: A Socialist Market Economy Wrestles with Its Antitrust Regime
        Jared A. Berry
        This article explores China's efforts in developing its first set of comprehensive antitrust laws and analyzes the current antitrust landscape in Communist China. Although China's antimonopoly law is currently only a draft, the draft may become law in 2008. First, the article provides an overview of the historical evolution of China's economic and legal systems, including a detailed examination of events that have influenced the creation and submission of the new proposed antimonopoly law. Second, the article addresses the likely effects of the proposed antimonopoly law and analyzes the probability of it successfully accomplishing its stated goals of regulating multinational corporations and reforming state-owned enterprises and administrative monopolies. Finally, the article summarizes the author's concerns with communist China's ability to effectively implement antitrust law and concludes that, unless Beijing experiences major philosophical changes, China's recent attempts at regulating monopoly will be less than successful.

  • Whither the DOHA Round?
        Michael L. Jensen