The Asian Century?

February 26, 2010


Professor Afsharipour

Rising Multinationals: Law and the Evolution of Outbound Acquisitions by Indian Companies

When Tata Motors bought Jaguar and Land Rover from Ford in 2008 it was one of the first Indian multinational firms to gain world-wide recognition. The transaction was celebrated in India with newspapers heralding the acquisition of two marquee British brands. Tata Motor's $2.3 billion acquisition of Jaguar/Land Rover was, however, only one among many high-profile overseas acquisitions carried out by Indian multinationals since the late 1990s. Indian conglomerates such as the Tata group or the Birla group, have made overseas acquisitions in numerous sectors, including among others consumer products (such as Tata Tea's acquisition of Tetley in the UK), steel (Tata Steel's acquisition of the Anglo-Dutch firm Corus), and aluminum (Hindalco's acquisition of the US-Canadian Novelis). Moreover, in the past decade, other Indian companies have launched multimillion and multibillion dollar deals to acquire companies around the globe, with a significant concentration of targets in developed economies, in particular the United States and the United Kingdom.

Finance and business scholars have begun to explore outbound acquisitions by Indian multinationals, emphasizing the business and economic motivations for these ever increasing transactions. However, there has been little analysis of the significant role of India's legal norms and rules, including recent shifts in the country's regulatory and legal regimes, in the rapid expansion of Indian multinationals.

In this Article, I argue that law plays a number of important roles in the emergence of Indian multinationals. First, legal reforms since economic liberalization have set the stage for outbound acquisitions by Indian multinationals. Second, legal norms and legal history provide Indian multinationals with competitive advantages that are largely distinct from that of firms from other emerging economies. Third, legal constraints on mergers and acquisition activity by Indian firms impose substantial restrictions not only on the methods used by Indian multinationals in pursuing outbound acquisitions, but also on the future potential of Indian multinationals. An analysis of the role of law and legal norms not only presents a more complete picture of the environment that has both facilitated and constrained outbound acquisitions by Indian multinationals, but also explains in part why Indian multinationals have targeted firms in the West. I conclude by discussing the implications of this analysis for debates about the process of legal reform and the convergence of corporate law.

Professor Aoki

The Yellow Pacific: Transnationalism, Diaspora and The Asian Century

This essay refers to Paul Gilroy's landmark book, The Black Atlantic: Modernity and Double Consciousness and uses the racial metaphor "The Yellow Pacific" to reframe discussions of nations such as India, China and Japan in the twenty-first century. First, this essay asks the question: In what sense(s) is the "Asian Century" using the term "Asian?" Is it being used in a racial sense, such as referring to a group of persons whose ancestors were from Asian nation-states? If so, what is the relation of the "Asian Century" to the "American Century" or the "British Century" both of which refer to nation-states, albeit with racialized populations. However, as Paul Gilroy might point out, understandings of race and white and black have shaped in complex ways trans-Atlantic politics, culture, economics and societies for over four centuries. There is no nation-state called "Asia," however one could say that Anglo-American attitudes towards the peoples and nations of Asia have profoundly shaped U.S. politics, culture and economics for over a century and a half.

After analyzing what "Asia" we are speaking of when we speak of an "Asian Century," this essay proceeds to ask "which century?" This essay will examine a broad range of situations, cases and laws from the mid-nineteenth century onward to the present that indicate a pervasive U.S. anxiety about the nations of Asia from China, to Japan, to Korea, to China again, to Vietnam, and India that has colors and continue to color U.S. relations with those countries militarily, politically, economically and culturally. Looked at his way, much of the twentieth century may be understood retrospectively, as the U.S. has repeatedly attempted to deal with racialized fears of cyclic Asian ascendance.

Taking a more contemporary focus, the essay then argues that diasporas in an era of globalization has resulted in a fracturing of the idea of "Asian," in the context of transnationalization of politics, economics and culture, creating a profound interpenetration of national, political and individual and group ideas. Anupam Chander has written about "Diaspora Bonds" arising as individual move relatively porous borders, made more so by technological advances in transportation and communication, remittances and other contacts between immigrants from the "home" and "host" countries. However, Amy Chua has warned that all may not be well in the newest iteration of the global village. Racial and ethnic strife violence, exacerbated by increasing disparities in access to resources as both a version of "free markets" and a version of "democracy" come head to head with one another in country after country. Countries such as Indonesia have a small ethnic Chinese minority that controls a majority of the wealth of the country.

Finally, this essay will ask what might we usually learn from a discussion of an "Asian Century" and what should we be on guard against.

Professor Ginsburg

Westphalian International Law and the Asian Century

The emergence of Asia poses an excellent opportunity to assess grand theories of international relations and international law. Realists have argued that states pursue their interests and are reluctant to accept constraints on sovereignty. The approach of Asian countries to international law seems at first glance to reflect this position. Asian nations have been conservative players in the international level, reemphasizing values of non-interference, mutual respect and sovereignty, in contrast with Europe-led ideas of human rights. The Asian position is epitomized in the ASEAN Way, the trademark stance of the leading regional organization. This stance made good sense during a phase of post-colonial state building. On the other hand, constructivist scholars have emphasized the possibility of socialization and acculturation of states, in which case we ought to observe a transformation in the preferences of Asian states away from the reinforcement of sovereignty and toward a more progressive vision associated with human rights.

This paper assesses the theories and argues that, as political and economic power continue to shift to Asia, the consequences for international law may well be the reinforcement of traditional Westphalian notions of sovereignty.

Professor Kang

Legal Confucianism in East Asia: An Oxymoron?

The "liberal transformation" of East Asia has been the subject of considerable academic attention over the last decade. "Western" democratic regimes have been adopted in countries such as Taiwan and South Korea through both transnational legal transplants and national level reforms. In an age of universalism and globalization, the combination of the WTO, the international financial institutions, and domestic interest groups appears to be irresistible. In the process, authoritarian regimes have been displaced, sometimes with alarming speed. Defenders of traditionalism or East Asian exceptionalism have been barely visible, particularly in the legal context. If there was any traditionalism or pluralism in the legal systems of these countries before, then they are long gone and only convergence towards a liberal "rule of law" regime remains. If the foregoing is true, in the twenty-first century traditionalism and pluralism are both passé in East Asian legal systems.

Yet this diagnosis of the death of traditionalism and pluralism in East Asia may be premature. Despite successive waves of what the sociologist Gilbert Rozman has called the "de-Confucianization" of East Asia, it is widely acknowledged that Confucian influences continue to persist, in families, businesses and bureaucracies. Accounts of "Confucian capitalism," kinship networks, bureaucratic elites, paternalistic conglomerates, etc., abound in political and economic analyses of various East Asian democracies. In light of these accounts, what is puzzling is the relative dearth of commentary on Confucianism and the legal system. In the legal context, explicit discussions of Confucianism are almost entirely absent. Despite considerable evidence of the persistence of Confucianism in daily life, within the legal system Confucianism appears to be persona non grata, rejected as backward, irrelevant, and antithetical to both individualism and the rule of law. How could this be? If Confucianism does indeed continue to exert a profound influence in economic and social life, could it be the case that its influence stops at the doors of the courthouse?

In this paper, I discuss the persistence of Confucianism and analyze its continuing influence on the legal system. Focusing on Korea, in this paper I propose to dissect and categorize the different mechanisms by which Confucianism either does or could persist in a post-democratic legal system characterized by the rule of law. In setting forth a taxonomy of the ways in which Confucianism continues to assert an influence on the legal system in Korea. Such influences can be direct and doctrinal, in the form of particular statutes that are explicitly Confucian in content. But more often, the influences are indirect, arising, for example, in the application of seemingly non-Confucian legal rules. In the course of this analysis, I discuss the theoretical debate regarding the conflict between Confucianism and the Rule of Law, and argue that any alleged conflict has been overblown in both popular and academic discourse. In conclusion, I will discuss the continuing diversity in Korean modes of jurisprudential thought, and offer some speculative thoughts on the continued life of Confucianism in Korean law and beyond.

Professor Nussbaum

Democracy, Education, and the Liberal Arts: Two Asian Models

The economic success of several Asian nations has led American leaders to call for emulation of Asia's educational achievements. President Obama, for example, invokes Singapore. Columnist Nicholas Kristof often praises China. But the nations of Asia exemplify two antithetical models of education. One model — represented in India by the thought and practice of Rabindranath Tagore and numerous other experimenters, and in Korea by significant strands of contemporary university practice, focuses on empowering thoughtful and unsubmissive citizens through the liberal arts,critical thinking, and the cultivation of imagination. Another strand, prevalent in both Singapore and China, and in most of contemporary India's government schooling, discourages critical engagement and focuses on the mastery of technical skills. I shall argue that the liberal arts model is of critical importance for democracy in both Asia and the United States: it is the example of Tagore, not the Singapore success story, that we should all be imitating.

Professor Pruitt

Human Rights and Development for India's Rural Remnant

The cachet that India currently enjoys on the world stage is linked largely to the booming high-tech and service economies associated with megacities like Mumbai and Dehli. Yet in terms of sheer numbers, India is not an urban nation. As of 2001, only 28% of India's population lived in urban areas, though that figure is rising quickly. One projection indicates that 31 villagers will continue to show up in an Indian city every minute over the next 43 years — 700 million people in all.

Lack of sustainable development in rural areas is a major force behind the massive rural-to-urban migration. An enormous challenge facing India today is thus how to manage the migration, and one aspect of that challenge is providing for the nation's rural remnant. This means responding to infrastructure deficits in order to meet some very basic needs (e.g., water, sanitation, health care), but it also means developing rural economies in terms of education and job creation.

Martha Nussbaum's capabilities framework for universal human rights has been greatly informed by her time in India and by the Indian situation. She argues for universal human rights based on a recognition of each human being "as an agent and an end" and calls for a "threshold level of each capability" below which citizens are not truly functioning as humans. My paper will consider India's policies regarding rural development through the lens of Nussbaum's capabilities theory, with particular attention to the "life" and "bodily health" capabilities.

Professor Ruskola

Asian Values vs. Human Rights

It has been asked whether "Asian values" are a counterpoint to "human rights." In my presentation, I will analyze the cultural asymmetry that informs the way in which the question is posed in the first place. It seems evident that Asian values are not a counterpoint to human rights; to concede the silent premise of the question would be to concede that Asians are somehow not included in the category "human." Yet the term "Asian values" is itself far from innocent, at least insofar as it is taken to refer to a set of stable, pre-political norms which ought to be valued positively simply because of their (putative) cultural particularity and authenciticy. In my presentation, I will use the dialectic opposition between universal "human rights" and particular "Asian values" as an opportunity to re-consider the conventional opposition between international law and comparative law as well.

Professor Yu

Bilateral Competition and Sino Trade Agreements

In the past decade, the European Community and the United States have pushed aggressively for the development of bilateral and regional trade agreements. Termed Economic Partnership Agreements (EPAs) by the European Community and Free Trade Agreements (FTAs) by the United States, these instruments seek to transplant laws from the more powerful signatories to the less powerful ones.

Although the use of the bilateral strategy is not limited to the European Community and the United States, scholarly literature thus far has focused mostly on the EPAs and the FTAs. To fill the void, this Article examines closely the bilateral and regional trade agreements established by China — the Sino Trade Agreements (STAs).

The Article begins by discussing how the increasing ability to initiate bilateral and regional trade agreements outside the multilateral process indicates a country's growing national strength. The Article then examines the underlying goals of the STAs and the negotiation strategy behind the development of these agreements.

Using as illustrations the STAs' intellectual property provisions, this Article explores the differences between the STAs and similar agreements initiated by the European Community and the United States. The Article concludes by identifying three future battles that these differences may precipitate.