Thèses sur le sujet « Legal regime of foreign capital »

Este trabalho tem como objetivo analisar o Plano Real e o Balanço de Pagamentos do Brasil. O que se pretende verificar é se o Plano Real é consentâneo ao sistema de Direito Brasileiro. Para tanto, a análise foi dividida em três blocos. No primeiro, que compreende os Capítulos I e II, foram apresentadas noções indispensáveis para a compreensão do assunto: de preço, poder de compra da moeda e taxa de câmbio. Na oportunidade, também se esclareceu que o Plano Real tinha como principal objetivo combater a inflação no país causada, segundo seus idealizadores, pela indexação da economia e pelo déficit público. A partir deste diagnóstico, o Plano Real é elaborado com base em três principais medidas: ajuste fiscal, criação da Unidade Real de Valor (URV) e adoção de uma âncora cambial. O segundo bloco deste trabalho, integrado pelos Capítulos III a V, vai esmiuçar esta última medida e seus efeitos, bem como as alterações legislativas provocadas pelo Plano Real (principalmente Emendas Constitucionais nº 5 a 9, todas de 1995, e Lei nº 9.069/1995). Aqui também se demonstrará como o Plano Real consagrou a ideologia preconizada pelo Consenso de Washington. No último bloco, composto pelo Capítulo VI, são analisados os efeitos provocados no nível de endividamento público decorrentes das medidas adotadas pelo Plano Real e a alteração das regras jurídicas que tratam da dívida pública que vieram ao encontro dele (principalmente Lei Complementar n° 101/2000). Neste ponto, a partir de um estudo sobre os princípios jurídicos que regem a atividade da administração pública, concluímos que o sistema jurídico brasileiro oferece fundamento suficiente para superação das regras jurídicas (e ideologia) adotadas no país com o advento do Plano Real.
The purpose of this thesis is to analyze the Real Plan, the Brazilian Balance of Payments and if the Real Plan is supported by the Brazilian law system. The analysis is divided into three blocks. First, in Chapters I and II, some indispensable concepts are presented: price, purchasing power of money and exchange rate. On the occasion, it was clarified that the Real Plan had as its main objective fight inflation in the country caused by, according to its creators, the indexation of the economy and the public deficit. Based on that diagnosis, the Real Plan counted on three measures: fiscal adjustment, creation of the Real Value Unit (URV) and adoption of a fixed exchange rate. The second block, through Chapters III to V, scrutinizes the latter measure and its effects, as well as legislative changes brought by the Real Plan (mainly Constitutional Amendments 5-9, all of 1995, and Law nº 9.069/1995). It also demonstrates that the Real Plan established the ideology advocated by the Washington Consensus. In the final section, composed of Chapter VI, the effects of Real Plan on public debt and the change of legal rules on that matter (mainly Law nº 101/2000) are analyzed. At this point, from a study of constitutional principles, we conclude that the Brazilian legal system provides sufficient basis to overcome the legal rules (and ideology) adopted in the country with the advent of the Real Plan.

Foreign direct investment (FDI) is widely considered to be an essential source of capital for developing countries. A broad consensus is developing amongst academics, multilateral development organisations and bilateral aid donors that a states' legal system is an important factor affecting the location of FDI; that predictable and efficient legal systems are the most effective in attracting FDI; and that efficiency and predictability are best achieved by adopting a Western- style legal system (Ideal Paradigm). A case study is presented of foreign investment in Sri Lanka, which is reforming its legal system to attract FDI. Interviews with the wider community, and a survey of foreign investors are used to test (1) whether the legal system is a factor in investment decisions in Sri Lanka, and (2) whether investors react negatively to a legal system which is not of the Ideal Paradigm. The research findings indicate that, in the case of Sri Lanka, the legal system is probably not a factor in the investment decisions of many investors in the sample, and many investors generally; that most investors do not react negatively to legal systems which are not- of the Ideal Paradigm;-and that the role-of the legal-system as -a-determinant of FDI may be affected by investors' characteristics, such as their size or nationality. It is concluded that current legal reform recommendations may be flawed, in that they reflect misconceptions about foreign investors' expectations of host state legal systems. These misunderstandings may result from a lack of research, and an excessive emphasis upon an international liberal economic agenda. A better understanding of the expectations of different types of investors is required if the costs of legal reform are to be rewarded with adequate benefits.

O presente estudo denomina-se A burguesia perdida: empresariado industrial e desenvolvimento econômico (1960-1974). A partir da década de 1950 o Brasil vive um processo de internacionalização da economia, em decorrência da reorganização das burguesias metropolitanas e do limite do modelo de indústria substitutiva de importações. No período posterior ao golpe de 1964 esta internacionalização será acentuada, configurando um novo modelo de desenvolvimento, dependente e associado. O objeto de pesquisa é o comportamento da burguesia brasileira e as mudanças na estrutura industrial frente aos avanços do capital estrangeiro e à dinâmica do novo modelo implantado pelo Estado na economia. A perspectiva adotada será a de observar as estratégias de sobrevivência das pequenas, médias e grandes indústrias perante as empresas estrangeiras e a crescente presença do Estado na economia.
The present study is entitled The lost bourgeoisie: industrial enterprise and economical development (1960-1974). Starting 1950s, Brazil undergoes a process of internationalization of its economy, due to the reorganization of the metropolitan bourgeoisie and to the verge achieved by the importation substitutive industry model. In the period after the 1964s coup detat, such internationalization will be more emphasized, configuring a new model of development: dependent and associated. The research object of the present study is the Brazilian bourgeoisie behavior and the changes in the industrial structure towards the progress of foreign capital and the dynamics of the new model adopted by the State in the economy. The chosen perspective will observe the survival strategies of small, medium and major enterprises towards foreign companies and the growing presence of the State within economy.

Infrastructure is one of the main parameters of economic growth and a country‘s competitiveness depends on the provision and maintenance of efficient and productive infrastructure assets. However, Nigeria, like most countries in Sub-Saharan Africa has the lowest quantity and poorest quality of stocks of infrastructure assets in the world and this phenomenally poor infrastructure has remained an impediment to development in the country. Decades of sub-optimal investment, poor maintenance culture and the fact that the required infrastructure investments could not be accommodated within the available fiscal space as a result of budgetary constraints have all contributed to the Nigeria‘s infrastructure deficit. The immediate outcome of this however is that the available infrastructure assets across the Nigerian landscape are in decrepit state and absurdly inadequate. Besides, the present demand for basic infrastructure services has grown astronomically out-stripping the supply capacity of the existing ones. Closing the infrastructure financing gap will however require increased investment by private investors through creative financing in an enabling legal and financial environment. Outside the budgetary constraints, the absence of efficient maintenance and management of infrastructure assets and quality service delivery by the public sector are some of the reasons why procurement of public infrastructure stocks by government through the traditional approach is no longer plausible and hence, the general appeal of the public-private partnership framework. However, despite all the potentials, the public private partnership technique in Nigeria has not made an appreciable impact in closing the infrastructure gaps due to lack of access to long-term financing. It is against this back-drop that this study has sought to investigate how reforms of the legal and financial infrastructure could widen access to financing through innovative financial resource mobilization in scaling-up infrastructure development and service delivery to the teeming Nigeria population. Therefore, the central thesis of this study is that the inadequacy of appropriate laws and inefficient financial system are partly responsible for the huge financing gaps in the Nigeria‘s infrastructure market and with the legal and financial reforms, an enabling legal and financial environment that would open up space for resource mobilization through innovative financing techniques and sources will be created thereby widening access to long-term financing and increasing the appetite for private investment in the nation‘s public infrastructure assets and services. So, the overarching objective of this thesis is to explore how legal and financial system reforms can facilitate the development of financial models and instruments that can help mobilize financial resources to fund infrastructure and bridge the huge infrastructure financing gaps in Nigeria in a sustainable fashion. Given the infrastructure poverty that constrains economic growth and development in Nigeria, the outcomes of this proposed study would help inform the need for the legal and financial system reforms to unlock resources in addressing the problems of financing gaps in infrastructure projects development in Nigeria. Besides, such outcomes based on the Nigerian experience in infrastructure financing and development may be turned into valuable knowledge for policy –making and further research in Nigeria. Copyright
Thesis (LLD)--University of Pretoria, 2012.
Centre for Human Rights
unrestricted

Magister Legum - LLM
The main objective of this study is to review the legal and regulatory framework of corporate governance in Tanzania with the focus on corporate governance laws and regulations. The study is intended to discuss the main legal and regulatory framework in Tanzania which plays a part in the corporate governance. The Companies Act No. 12 of 2002 will be reviewed in order to establish which corporate governance principles are provided and to what extent they are effective. The capital markets and securities laws, guidelines on corporate governance in Tanzania with a focus on the listing requirements and other regulations applied at the DSE will also be reviewed in order to establish their effectiveness in attracting investors to the market. Given the comparative value of South Africa and Kenya in SADC and EAC respectively, this work will also discuss the legal and regulatory framework of corporate governance in Kenya and South Africa and compare with those in Tanzania in areas such as shareholders rights; stakeholder’s right; board control and effectiveness and the effectiveness of compliance. Such comparative analysis is done in order to single out areas of focus in legal and regulatory framework in corporate governance law such as companies’ law and stock market and security laws in Tanzania.

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CAPES - Coordenação de Aperfeiçoamento de Pessoal de Nível Superior
Este trabalho analisa a influência do recente ciclo de alta dos preços das commodities sobre a entrada de capital externo no Brasil. Para o alcance desse objetivo, foram utilizadas duas metodologias econométricas diferentes: Modelos de Mudanças de Regimes Markovianos e Modelo Vetorial de Correção de Erros (VAR/VEC). O primeiro modelo foi utilizado para delimitar o ciclo de alta dos preços das commodities e para verificar se este período é concomitante ao período de elevação da entrada de capital externo no Brasil. Os resultados apontam que o recente período de alta dos preços das commodities ocorre entre os anos de 2002 e 2014, que é o último ano da amostra utilizada nesta pesquisa. Ademais, os regimes de alta estimados para as exportações, Investimento Estrangeiro Direto (IED) e Investimento Estrangeiro em Carteira (IEC), que são os três principais agregados do Balanço de Pagamentos que representam o ingresso de capitais externos no país, ocorrem em períodos similares ao observado para a série dos preços das commodities. A partir destes resultados, a influência da alta dos preços das commodities sobre a entrada de capital externo no Brasil foi analisada através do emprego da metodologia VAR/VEC, para o período entre o ano de 2002 e 2014, a partir da estimação de três modelos diferentes, um para cada agregado do Balanço de Pagamentos brasileiro. Os resultados apontam que o ciclo de alta dos preços das commodities influenciou significativamente a entrada de dividas externas no Brasil, sendo que os efeitos mais expressivos ocorrem via comércio e entrada de capitais de curto prazo.
This study analyzes the influence of the recent cycle of high commodity prices on foreign capital inflows in Brazil. To achieve this goal, it was used two different econometric methodologies: Markov-Switching Model and Vector Error Correction Model (VAR/VEC). The first model was used to define the cycle of high commodity prices and to check if this period is concomitant to the raise period of foreign capital inflows in Brazil. The results show that the recent period of high commodity prices occurs between the years 2002 and 2014, which is the last year of the sample used in this research. Moreover, the estimated high regime for exports, Foreign Direct Investment and Foreign Portfolio Investment, which are the three main aggregates of the Balance of Payments representing the inflow of foreign capital in the country occur in similar periods to that observed for the series of commodity prices. From these results, the influence of higher commodity prices on foreign capital inflows in Brazil was analyzed through the use of VAR/VEC methodology for the period between 2002 and 2014, from the estimation of three different models, one for each aggregate of the Balance of Payments. The results show that the cycle of high commodity prices significantly influenced the foreign capital inflows in Brazil, with the most significant effects occur via trade and short-term capital inflows.

The aim of this paper is to investigate if it is compatible with the free movement of capital (Article 63 TFEU) to levy a withholding tax on Swedish-sourced dividends paid to non-EU investment funds with legal personality (in the paper referred to as investment companies). This question is of relevance since several Swedish intermediaries do not pay any income tax on dividends, either due to a formal tax exemption or to de facto practice. As such, it is clear from CJEU case law that non-EU investment companies should also be exempt from withholding tax on dividends, provided that they are in an objectively comparable situation with any of these Swedish entities and that no justification ground is applicable.   The conclusion of the thesis is that there are indications of that the current Swedish lower court practice, which is to deny comparability between non-EU investment companies and Swedish tax-exempt investment funds with reference to that the foreign entities have a different legal form, is contrary to EU law. Alternatively, it is possible to find discriminatory treatment when comparing the dividend tax treatment of a non-EU investment company with the dividend tax treatment of a Swedish fiscal investment enterprise (investmentföretag). For this reason, it is welcome that leave to appeal was recently granted by the Supreme Administrative Court of Sweden in one of the lower court cases dealing with this issue.

A presente dissertação tem por objetivo discorrer sobre a disciplina jurídica do câmbio no direito brasileiro e a sua relação com a política pública. A taxa de câmbio, ao expressar a relação de troca entre a moeda nacional e a moeda estrangeira, está sujeita à influência de diversos fatores que extrapolam os poderes de compra das respectivas moedas e que não refletem a noção de equivalência presente na determinação do preço nas compras e vendas, como a relação internacional de troca e atos de política econômica dos Estados envolvidos. O Estado, ao exercer a política cambial, dever agir conforme os princípios e fundamentos previstos na Constituição Federal. Sua atuação deve ser direcionada à implementação dos objetivos eleitos pela sociedade como prioritários, os quais estão fixados na Carta Magna. Esses objetivos encontram possibilidade de concretude nas políticas públicas.
This paper aims at discussing the legal framework of foreign exchange transactions in the Brazilian legal system and its relation with public policy. The exchange rate expresses the relation between the exchange of local currency and foreign currency. The rate is subject to the influence of several different factors other than the purchasing power of the relevant currencies (i.e. the terms of foreign international relations and economic policy acts of the respective countries), and does not reflect the notion of equivalence that is present in the determination of price in buy and sell transactions. When exercising the exchange rate policy, the Brazilian government shall act in accordance with the principles and fundamental roles provided for in the Federal Constitution, and shall endeavor the realization of the objectives determined as priority therein. Public policies are an important tool in the realization of those objectives.

Ao redor do mundo, a maioria das companhias listadas de grande porte tem acionista controlador, à exceção dos EUA e do RU, em que o comando da atividade empresarial é exercido, de fato, pelos administradores. A conformação de controle dominante em cada país resulta de uma série de fatores, muitos deles de ordem jurídica, os quais levam ao surgimento e permanência de uma dessas variantes, ao mesmo tempo em que parecem inibir o desenvolvimento da estrutura alternativa. A gradativa convergência global dos padrões de propriedade acionária a um denominador comum, aparentemente em curso - dos extremos da dispersão e concentração absolutas para o cenário intermediário dos blocos de participação minoritária relevante detidos por investidores institucionais não tem sido acompanhada de transformações significativas nas estruturas de poder de controle interno dominantes em cada país, as quais, em essência, continuam as mesmas. Isso significa que os fatores (jurídicos, especialmente) que levam à predominância de tais estruturas continuam em atuação, não obstante modificações havidas no grau de dispersão do capital com direito a voto de companhias listadas. Este trabalho visa apresentar um conjunto mais específico de fatores jurídicos que, ao mesmo tempo e de modo decisivo, favorecem a proliferação de uma dentre as duas estruturas de controle consideradas (controle acionário ou gerencial) e inibem o desenvolvimento de outra. Trata-se dos instrumentos jurídicos de dissociação entre representatividade política e participação econômica de acionistas, os quais exercem papel central na conformação do regime jurídico das companhias abertas com elevada dispersão do capital votante, integrantes do Novo Mercado da BVSP.
Most of the large listed companies outside USA and UK have a controlling shareholder. The dominant control structure in each country is the result of multiple determinants, many of them arising from the legal system. The gradual convergence of ownership patterns around the world from the extremes of the total concentration and separation of ownership and control to the intermediate scenario of significant blockholdings held by institutional investors - has not been accompanied by a relevant shift in the control structures in listed companies of most of the countries, specially those in the Brazilian Novo Mercado. This Doctorate Thesis presents a specific subset of legal factors contributing for that outcome: the legal instruments separating voting rights from cashflow rights.

We begin with a short analysis of the history of Investor-State Dispute Settlement (ISDS). We then discuss the merits and demerits of the regime, such as the arguments between finality, speediness, and correctness. Following from this, historical reforms are discussed, and whether those issues have gotten worse or better since these discussions. The modern problems are discussed, leading to the explanation of the “legitimacy crisis”. As Appellate Mechanisms (AM) and Investment Court Systems (ICS) both propose multi layered systems, we argue whether ISDS must be a “one bite at the apple” system. We expand on the issues of regulatory chill, before showing the contradictions in the granting of awards. From this, a discussion is raised on the advantages of a tenured system of adjudicators, particularly in reference to their apparent bias. We delve deeper into the direct consequences of the perceived issues of ISDS, in the context of human rights, the environment, and other issues of sovereignty.As more reforms are suggested, the question of “what makes arbitration, arbitration?” is raised. From here, we may begin to suggest reforms based on which key factors are to be preserved. Firstly, we discuss current reform options, such as the Mauritius Convention. We take inspiration from existing AM, and prior discussions on the implementation of such a system across the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) frameworks. We analyse whether these discussions have led to change by comparing trends in drafting.Thereon, we offer suggestions of reform. ICS and how this would be implemented, what it would look like structurally, and its positive and negative effects. Using the Comprehensive Economic and Trade Agreement (CETA) and other contemporary ICS reform suggestions, we gain some knowledge of what an ICS regime could and should look like, the implementation of AM previously discussed in this regime, and other. Finally, we offer a different solution to the problems, yet less pragmatic, the termination of arbitration.

This Master’s thesis has been elaborated on the basis of a real issue, which a company, which decided to procure it’s full time presence in the Austria’s market, is facing. The analysis of the present state, which proved the rationality of the decision, is followed by a theoretical fundament of this thesis, that lays the foundations of the specific proposal leading to reach the aim given by the company. The theoretical part of the thesis deals with the core of the international trade and its brief history. The thesis is further focused on the areas of the international trade important for solving the given issue. The main areas are as follows: international trade legal regime, law of international trade, risks in the international trade, ways of penetration into a foreign market. Based on the knowledge attained in the theoretical part of this thesis, while applying them, I have come to the conclusion, that it would be best for the company to establish a branch office in the Austria. The conclusion is followed by a factual proposal of progress supplemented by a calculation of costs of establishing the branch office and calculation of operating costs for the first year. I am also proposing a strategy for legal relationships being concluded by a branch office and marketing strategy for the first year.

碩士
國立交通大學
科技法律研究所
91
Since its inception after World War II, venture capital has had a profound impact on the US and world economy. Through the development of start-ups, innovation process and high-tech advances, venture capital has changed fundamentally the way we live and has played as one of the most powerful engines of the world economy. The concept and operation of venture capital were formally introduced to China in early 1980s, about the same period when Taiwan successfully established its venture capital and high-tech industries. However, the development of venture capital in China had been comparatively slow due to the prolonged transformation process from the planned economy into the market economy system. Besides, one of the major concerns is the lack of a comprehensive legal framework to accommodate the sophisticated operation mechanism of venture capital. Knowing venture capital is an important catalyst to foster its high-tech industries and economic growth, China has been getting serious in establishing and perfecting its policy and regulatory framework. Both the central and local governments have been active in introducing related legislation in recent years. This article focuses on China’s recently adopted “Regulation on Administration of Foreign-Invested Venture Capital Enterprises” (the “2003 Rules”), which was effective from March 1, 2003 and superseded the “Provisional Regulation on the Establishment of Foreign-Invested Venture Capital Enterprises”(the “2001 Rules”), which had been in operation for only 18 months. The 2003 Rules represents a substantial re-write of the 2001 Rules. There are major breakthroughs in relaxation of terms and conditions for foreign investors to enter and exit China’s venture capital market. Moreover, the 2003 Rules provides a practical structure effectively similar to the limited partnership in US and allows the establishment of “venture capital management enterprises” which are both familiar to international fund investors and venture capitalists. While the 2003 Rules is much more practical in handling the operation mechanism of venture capital, there are still many questions remain unanswered in the context of China’s legal framework because of its conflicts with the Company Law, Partnership Law and others. Further, the author surprisingly found several most updated regulations enacted by various local governments are not in compliance with the 2003 Rules. All these conflicts create not only confusion to the foreign investors but also uncertainties in the investments. Besides the 2003 Rules, this article analyzes the obstacles in related laws and regulations that may hinder the development of venture capital, mainly the fund raising constraints, the lack of tax incentives and lack of exit mechanism, especially the best mode of exit, i.e., initial public offerings (IPO) in the proposed “Second Board” or “Growth Enterprises Market Board”( GEM Board) in China.

碩士
國立臺灣海洋大學
海洋法律研究所
95
Abstract Due to the fact that dealings and contacts among people from different countries have become more frequent, there are more civil relations involving foreign-related elements. If the procedural justice during foreign-related civil proceedings is well protected, related judgments will be considered having extraterritorial effect generally. Each country has its own independent sovereignty and pattern of litigation. Therefore, it depends on international assistance mechanisms on service abroad of judicial documents to link every proceeding of litigation. This way, foreign litigates’ rights can be protected and the implementation of judiciary proceedings can be ensured at the same time. To solve controversial issues on service abroad of judicial documents in civil and commercial matters, the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” was passed at the Hague Conference on Private International Law with enormous help from academics and professionals in the legal field. Under the convention, differences of service abroad of judicial documents in civil and commercial matters are unified and accommodated. A fast and efficient mechanism of assistance was therefore established to protect the rights of foreign litigates. The legal system of civil proceedings in Taiwan has focused on value studies over a long period of time. Service of judicial documents has been categorized in the area of law commentaries. Moreover, judicial authorities in Taiwan have not paid much attention to the service of judicial documents, and have treated it as a simple technical issue. The importance of making an accommodation to the international related system has been disregarded. Therefore, neither any legal regulations concerning service abroad of judicial documents in reciprocal assistance in the international society have been legislated, nor any related treaties or agreements between Taiwan and other countries have been signed. It is extremely complicated to regulate practiced procedures concerning service of judicial documents unilaterally, and a lot of problems involving sovereignty offense as well as illegality must also be considered. The goal of the service abroad of judicial documents is to protect litigants receiving fair services in the legal mechanism. It also provides legitimacy to judgments. However, the concept is missing in the design of service of judicial documents in Taiwan. There should be more effort put on learning new concepts from others, improving the efficiency of the system, and making the system stronger. This way, justice in the civil proceedings that is guaranteed in the international society can be realized in Taiwan as well. Keywords: Private International Law, Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, civil proceedings, service of judicial documents, service abroad of judicial documents

碩士
中國文化大學
法律學系碩士在職專班
104
Using foreign capitals to boost economic development can be said to be the fundamental national policy of Mainland China. Chinese government has taken a series of policy measures since 1979 in order to improve relations with other countries and obtain loans from their governments and world financial organizations, and, on the other hand, improve the investment environment itself, creating business opportunities to attract companies around the world to invest in the Mainland. Viewing from the trend of China’s development of employing foreign investment, there were mainly international loans in the 1980s, while foreign direct investment gradually has stayed at a dominant position since the early 1990s. Since joining the WTO, Taiwan has gradually changed from the policy of attracting foreign investment to mainly carrying out investment plan and promoting and strengthening post-investment services respectively so as to comply with the rules of the WTO, including selecting investment subjects, offering all-round investment services, implementing “Japan Window Plan”, implementing foreign investors invitation plans to Taiwan, providing investment information, eliminating barriers to investment and amending decree, investing strong strategic services, as well as planning global annual investment assembly. In terms of tax, Taiwan promotes imputation tax system, tax credits for 5% to 20% of investment spending, five-year tax exemption from emerging and important strategic industries, logistics center establishment, exemption from business tax for enterprise mergers and acquisitions, exemption from business tax for operational headquarters’ relevant income obtained from overseas affiliate enterprises, free customs duty, excise and sales tax from imported raw materials and machinery equipment after stationing in free trading ports. Finally, free sales tax of goods output after stationing in Science Park, processing export zone, bonded factory or warehouse, as well as free customs duty, excise and sales tax from imported raw materials and machinery equipment after stationing in free trading ports. However, the two sides have made many concessions and compromise in the process of attracting foreign investment over the years, prompting the two sides make a face-lift and station separately in the name of foreign investment after their funds relocation; in the form of foreign investment, they enjoy many government grant and concession given by the two sides in exchange for supernational treatment. In 2006, the scale of return investment of the Mainland almost reached one third of overall foreign investment, promoting Chinese offices such as Ministry of Commerce, Administration of Foreign Exchange, the Customs Department and the SAIC to issue “Implementation Opinions on Some Issues concerning Law Application for the Administration of Examination and Approval and Registration of Foreign-funded Companies” in the same year, which had a major blow and purge to fake foreign investment. This paper also discussed the legal and actual nature of foreign investment for illustrative purposes. Moreover, the early Taiwan M & A activity was limited to the merger cases; with the cooperative formulation of relevant authorities act specification as well as the expansion of strategic policy framework design space in recent years, mergers and acquisitions patterns increasingly become diversified, hence the gradual increase in convertible case, split case, and acquisition cases of all types; enterprises could acquire shares of target company or acquire the business and property of target company by means of issuing new shares as the consideration of the business. For Mainland regions, the political optimization and legal optimization of the investment environment also make foreign investment in China ascendant. While transnational mergers and acquisitions have been one of the main direct international investment, Mainland China cannot quit this investment feast; in addition to working on relevant policies, Beijing authority needs to solve the problems generated in foreign acquisitions of Mainland enterprises in the past ten years. And this article will join in the discussion. Currently, related laws rewarding M & A and in Taiwan include Company Act, Statute for Upgrading Industries, The Financial Institutions Merger Act, Financial Holding Company Act, EnterprisesMergers and Acquisitions Act, etc, among which mergers and acquisitions have the most preferential tax. Nevertheless, each act differs more or less in the provision content of acquisition tax, and different types of M & A will apply to different promotions; for businesses aiming for mergers and acquisitions, how to choose to apply the most favorable Act will be the focus of consideration for mergers and acquisitions; for the current status of the legal system and applicable laws and regulations in Mainland China, the text will make comparison and illustration as for how to apply the most favorable and the least restriction.

JEL Classification: E44 G18
The five-year transitional period after China’s entry into WTO has expired. To fulfil her promise of opening up the financial service market, China has cancelled all the restrictions on the scope of business and regional access for foreign-funded banks. Although the State Council has enacted the recently revised «Regulation of the People’s Republic of China on the Administration of Foreign-funded Banks» and the «Rules for Implementing the Regulations of the People’s Republic of China on Administration of Foreign-funded Banks» as the main legal document on regulating foreign-funded banks, and, as obvious, flaw is unavoidable. And we must improve the supervisory legal system of foreign-funded banks in China to dissolve the risk arising by the entry of foreign-funded banks. This research work analyses and discuss the practical impact of the current legislation for supervision of foreign-capital banks, supervision of market access of foreign-capital banks, the supervision on RMB business management in foreign capital banks and the legal system for internal control of foreign banks. In the end of the dissertation, the improvement towards the perfection supervision of the foreign banks in PRC will be emphasized with respect to the new opening situation.
O período de transição concedido à República Popular da China (RPC) na sua admissão na Organização Mundial do Comércio (OMC) já caducara. Segundo os compromissos de admissão na OMC, o sector financeiro da China passou a estar completamente aberto no final de 2006, e são abolidas todas as restrições para os bancos de capital estrangeiro no que respeita ao tipo de operações bancárias e no que respeita à extensão geográfica de operação. O Conselho de Estado promulgou a lei denominada de “Os Estatutos de Administração dos Bancos de Capital Estrangeiro” e ainda o decreto-lei de “Regulamentação para a implementação dos Estatutos de Administração de Bancos de Capital Estrangeiro” e estes constituem os principais documentos jurídicos que servem de base para uma efectiva administração e supervisão dos bancos de capital estrangeiro. Subsistem, no entanto, muitos aspectos por melhorar, sobretudo no que respeita aos limites e abertura do sistema. O presente trabalho cinge ao estudo e análise de como melhorar a supervisão dos bancos de capital estrangeiro, através da análise de vários discursos de dirigentes do Estado, da análise do estado actual da legislação de administração e supervisão dos bancos de capital estrangeiro, do sistema de leis de administração e supervisão no acesso ao mercado financeiro, de operação de RMB e do sistema legal de supervisão e controle interno das empresas. Discutiremos no final do trabalho as ineficiências do sistema legal de administração e supervisão dos bancos de capital estrangeiro da China, com base na realidade de que os bancos de capital estrangeiro entraram na China para explorar o mercado financeiro nacional. Proporemos sugestões e recomendações com vista a melhoria do sistema legal de administração e supervisão dos bancos de capital estrangeiro na China.

For eighty-six years up to the year 2000, the South African income tax system was based primarily on the source principle. This meant that only income which was from a source in the Republic or deemed to be from a source in the Republic was taxable in the hands of residents. The election of a new Government in 1994, and the subsequent relaxation in exchange controls, necessitated a change from the source-based system of taxation to a residence-based system of taxation. The residence-based system of taxation in turn necessitated the introduction of new legislation to ensure that South African residents were taxed on their foreign source income, and appropriate anti-avoidance provisions were in place in order to prevent an erosion of the South African tax base. The residence-based system of taxation was phased into South Africa by the introduction of section 9C to the Act. Section 9C was introduced in 1997 as an interim and partial provision which provided for the taxation of foreign passive income on a residence-basis. A possible loophole that the revenue authorities needed to deal with at the time was the fact that residents could establish controlled foreign companies in low tax jurisdictions and divert and accumulate income in such foreign jurisdictions, thereby escaping the South African tax net by avoiding or at least deferring South African tax on such income. Section 9D was introduced simultaneously with section 9C in 1997 as the specific antiavoidance provision in this regard. With the introduction of a residence-based system of taxation effective from years of assessment commencing on or after 1 January 2001, section 9C was repealed. As a result section 9C and the concepts of 'active, and 'passive' income are of historical significance, and the main focus in terms of a residence-based taxation system now remains a decision regarding whether or not a taxpayer is a 'resident' as defined in the Act. This dissertation critically analyses the structure, application, exemptions and shortcomings of section 9D as an anti-avoidance provision consequential upon the introduction of a residence-based system of taxation, and states the law up to and including the Revenue Laws Amendment Act 74 of 2002, which took effect from the commencement of years of assessment ending on or after 1 January 2003.
Thesis (M.Com.)-University of Natal, Pietermaritzburg, 2003.

Emerging markets such as India have witnessed waves of domestic and cross-border mergers and acquisitions. This historical analysis, which consists of two parts, tests central tenets of resource dependence theory. The first part entails an analysis of the transition in public policy governing corporations between 1991 and 2005. The second part tests hypotheses derived from resource dependence theory relating to a firm’s decision to acquire. The analysis explores the factors that explain why firms engage in mergers and acquisitions by examining three specific policy periods (i.e., 1991-1996, 1997-2001 and 2002-2005). The findings from the historical analysis suggest that firms did not merely react to the conditions (i.e., constraints on capital) in their environment by undertaking merger and acquisition activity, but attempted to alter them as resource dependence theory suggests. Findings from the event history logit model also support resource dependence theory. Overall, the study shows that merger and acquisition activity increased during a period of intense deregulation (i.e., 1991-2005) brought about by the adoption of neo-liberal reforms, change to the multilayer subsidiary form, deregulation of the banking and financial sectors’ and reforms in foreign direct investment and equity markets. During this period of uncertainty, firms controlling more resources in terms of earnings, efficiency and number of subsidiaries were more likely to undertake acquisition activity as they have leverage in organization-environment relationships. The effect of number of subsidiaries on acquisition activity was the most consistent across policy periods’. This dissertation is organized in the following manner: Following the introductory chapter, Chapter II is a historical examination of the three policy periods and includes an analysis of the effect of the political-legal environment on mergers and acquisitions between 1991 and 2005. Chapter III reviews the propositions of resource dependence theory that pertain to organizational change and presents research hypotheses related to mergers and acquisitions. Chapter IV describes the data, measurement and methodology employed in the quantitative analysis. Chapter V presents the findings from the quantitative analysis and discusses the results. The concluding chapter (Chapter VI) includes a presentation of the theoretical findings and discussion of the limitations and scope of the study.

Dissertação de Mestrado em Direito apresentada à Faculdade de Direito
A responsabilidade penal das pessoas jurídicas e os programas de compliance são, atualmente e cada vez mais, dos assuntos mais controvertidos no âmbito do nosso Direito Penal. A importância crescente no seio jurídico-penal destes programas urge-nos a não evitar questões, problemas ou dilemas mas sim, antes, a uma procura constante de soluções e de respostas. Uma das muitas questões que se podem colocar a propósito dos programas de compliance é a de saber se estes programas podem ter efeitos no regime sancionatório das pessoas coletivas? Ou seja, se uma pessoa jurídica adotar e implementar eficazmente um programa de compliance poderá obter alguma vantagem caso, porventura, venha a cometer algum crime? E se adotar apenas depois de praticado o crime? Se sim, quais? E para além disso, existirá algo que explique esses efeitos? Poderá haver alguma relação entre o modo de como o facto é imputado ao ente coletivo que ajude a justificar uma certa opção do legislador em detrimento de outras? Poderá existir alguma relação entre o plano processual e o plano sancionatório que permita retirar algum entendimento que justifique estes efeitos? Para responder a esta vexata quaestio partiremos de uma análise, estritamente legal, a quatro ordenamentos jurídicos distintos. Antes, porém, é primeiro necessário perceber qual a origem da responsabilidade penal das pessoas jurídicas e dos programas de compliance, pois só assim, com esta perspetiva, poderemos compreender a verdadeira dimensão destas duas realidades. Por fim, atentaremos no nosso próprio ordenamento jurídico e às suas respostas de iure constituto para, posteriormente, atendendo à experiência dos ordenamentos jurídicos estudados, propormos soluções de iure condendo.
Corporate Criminal Liability and the Compliance Programs are, currently and increasingly, two of the most controversials issues regarding our Criminal Law. The ever growing importance of these programs in the context of Criminal Liability urges us not to avoid any questions, problems or dilemmas but rather to a constant search for solutions and answers.One of the many questions that can be asked about compliance programs is whether or not these programs can have an effect on the sentencing stage? If a legal person adopts and effectively implements a compliance program, can the legal person obtain any advantages if, somehow, they commit a crime? And what if they only adopt it after the crime has been committed? If so, what are those advantages? And beyond that, is there anything that could explain those effects? Could there be any connection between the way a legal person may be held criminally liable that helps to justify a certain choice of effects instead of diferent ones, by the legislator? Could there be any relation between the procedural stage and the sentencing stage that allow us to withdraw any understanding that justifies those effects?To answer to this vexata quaestio we will begin with an analysis, strictly legal, to four different foreign legal systems. First, however, we must understand the origins of both corporate criminal liability and compliance programs because only if we fully understand them will we be able to reach the real dimension of those two different realities. At the end, we will focus our attention on our own legal system and to it’s answers of iure constituto so that, afterwards, taking into account the experience of the studied legal systems, we suggest solutions of iure condendo.