Service-Oriented Foreign Direct Investment: Legal and Policy Frameworks Protecting Digital Assets in Offshoring Information Technology (IT) - Enabled Services

This thesis examines challenges caused by global cyberspace, which continues to undermine the ability of regulatory instruments aimed at cyber security and deterring cybercrime so that digital assets including those associated with Foreign Direct Investment (FDI) are protected. Progress in information and communication technology (ICT) has brought about both challenges and opportunities for mankind. While ICT has enabled seamless communication on cyberspace, it has also made every phenomenon, positive or negative on cyberspace possible. The good side of ICT is the endless opportunities provided to harness multiple features and capabilities of associated technologies while its side effect being the enormous security challenge on cyberspace. Legal and policy frameworks are needed to help mitigate cyber security threats and safeguard digital assets against such threats while promoting the benefits of ICT. To this end nations attempt to regulate cyberspace within their territories, but may quickly find out that issues on cyberspace are both global and national at the same time, and as such not fully controllable at national levels only. If nations cannot fully regulate ICT and cyberspace, this will have negative implications for digital investor’s assets in their territories as well. That is investor’s information assets may not be adequately safeguarded by means of national legal instruments. This dissertation seeks to analyze the question as to whether it is entirely possible for nation-states to address the multifaceted challenges introduced by cyberspace with appropriate national legal and policy frameworks alone to protect digital investments. This dissertation argues that, on the one hand, nations are behind in providing proper regulatory coverage for cyberspace, while, on the other hand, existing regulations have largely been unsuccessful in containing cyber security threats primarily due to complications caused by the ubiquitous global presence of cyberspace per se. Consequently, investor’s digital assets are more susceptible to unauthorized access and use, or destruction, all of which cannot be fully accounted for with currently available legal or technical means. There is a strong indication that digital investor assets demand more protection efforts from both investors and forum nations alike compared to what is needed to protect and promote traditional FDI

Global and regional sourcing of ICT-enabled business services: upgrading of China, Hong Kong and Singapore along the global value chain

Offshoring, as part of globalisation, first started decades ago with manufacturing processes disintegrated along the global value chain and dramatically redistributed to low-cost regions. The next global shift of work involving ICT-enabled business services has arisen since the 1990s, especially featuring the success of India’s supplier role. The possibilities for the Global South to move up the value ladder are well demonstrated by the achievements of the newly industrialised economies in East Asia in the first shift and of India in the second. In the services sector, however, potential for upgrading is conditioned by quality-based elements, such as trust, culture and language, which vary both between producing and market areas. Flows are increasingly multi-directional, requiring attention to the neglected issue of demands from fast-growing Southern economies. So how do locations and firms in the Global South attempt to upgrade in the regime of rising services offshoring? The Indian experience especially in serving Anglophone markets in the Global North has been widely documented – but not that of East Asian economies, with their distinct characteristics and strong historic, ethnic and cultural ties with each other. This study examines the upgrading possibilities and constraints of China, Hong Kong and Singapore along the global services chain. For cross-case analysis, it focuses on three specific sets of services, including information technology, finance and accounting, and customer contact services. The concepts of global value chain, competitive advantage and capabilities are applied to reconstruct the phenomenon of services offshoring from both the demand and supply perspectives in the selected locations, and synthesise the dynamics between locational characteristics and firm strategies. A series of distinct upgrading strategies are identified, involving mixes of manufacturisation, knowledge-intensification and deepening relational capabilities to exploit both regional advantages of language/cultural proximity and established global links

The ongoing fight against tax avoidance in the perspective of the EU legal system: from ATAD I to the proposal for an "Unshell Directive"

openThe purpose of the thesis is to go deep into the EU anti-tax avoidance legislation's formation process, from ATAD I to the proposal for ATAD III. The first chapter provides an overview of EU tax avoidance situation, highlighting the huge problem of the tax compliance gap, its implications, and the future steps in the EU Agenda to oppose the problem. In the second chapter is presented an historical excursus of EUCJ case law, starting from the concept of abus de droit, passing through the introduction of the first anti-avoidance measures in the directives and ending with an explanation of the main measures introduced by ATAD I and II. This chapter faces up also the concept of shell entity. Then, are identified the main indicators that could be implemented to quantify the number of existent letterbox companies, and the countries in which the phenomenon is more widespread. Furthermore, it is provided an analysis of the red flags that commonly characterized no-substance entities. Lastly, some MNEs' tax schemes are investigated as real examples of aggressive tax planning accomplished with the establishment of shell entities in European Tax Heaven. The third chapter introduces the scope and the contents of Unshell Directive proposal, going deep into substance test’s steps, and sharing experts’ opinions and doubts. Moreover, are analysed the reactions and the possible future impact of ATAD III in Luxembourg and Netherlands. To conclude, are provided some insights and final observations.The purpose of the thesis is to go deep into the EU anti-tax avoidance legislation's formation process, from ATAD I to the proposal for ATAD III. The first chapter provides an overview of EU tax avoidance situation, highlighting the huge problem of the tax compliance gap, its implications, and the future steps in the EU Agenda to oppose the problem. In the second chapter is presented an historical excursus of EUCJ case law, starting from the concept of abus de droit, passing through the introduction of the first anti-avoidance measures in the directives and ending with an explanation of the main measures introduced by ATAD I and II. This chapter faces up also the concept of shell entity. Then, are identified the main indicators that could be implemented to quantify the number of existent letterbox companies, and the countries in which the phenomenon is more widespread. Furthermore, it is provided an analysis of the red flags that commonly characterized no-substance entities. Lastly, some MNEs' tax schemes are investigated as real examples of aggressive tax planning accomplished with the establishment of shell entities in European Tax Heaven. The third chapter introduces the scope and the contents of Unshell Directive proposal, going deep into substance test’s steps, and sharing experts’ opinions and doubts. Moreover, are analysed the reactions and the possible future impact of ATAD III in Luxembourg and Netherlands. To conclude, are provided some insights and final observations

Selected essays on international business law

Selected essays on Business La

Evaluating a Potential US-China Bilateral Investment Treaty: Background, Context and Implications

[Excerpt] This paper, prepared by the Economist Intelligence Unit for the US-China Economic and Security Council, summarises the context, current discussions and implications of a potential US-China bilateral investment treaty (BIT). The paper is organised in six sections: I. Existing US BITs II. China’s current BITs with other countries III. The potential US-China BIT IV. Major regulatory and transparency issues V. Implications for the US economy VI. Interviews Simply defined, a BIT is a treaty between two countries designed to promote and protect investments between the two signatory states. A BIT provides investors with a safer and more transparent investment environment by guarding against the risk of expropriation by the host state. Many countries, especially the larger economies, sign BITs with their main trading partners, both to ensure that companies from their country receive proper protection when they make investments abroad and to ensure that their rights can be protected and enforced through binding international arbitration

The Global Employer: The Employment Law Review and Reform Issue

[Excerpt] Although the economies of many jurisdictions are improving, there is still some lingering global economic uncertainty. It is no surprise that governments the world over continue to revisit their employment laws to see what else, if anything, can be done to further stimulate their economies. 2013 was another busy year for employment law reform. Baker & McKenzie’s Global Employment Practice Group is pleased to present its 55th issue of The Global Employer™ entitled “The Employment Law Review and Reform Issue.” In this issue, we review changes to the law in 2013 and a look at pending changes for 2014. Included, you will find information pertaining to the leasing of employees in Germany; new measures in Spain intended to promote employment among young people under 30 and employee privacy rights over employers\u27 controls; challenges to the applicable interest rate to worker\u27s claims in Argentina; how employment law reforms will significantly impact employers in Mexico and in some specific cases, may considerably elevate increase the cost of formal employment; and controversy around making the Colombian Social Security System more progressive. We also review several significant legal developments in China during 2013 that impact employers operating there; legislative changes that were expected in Hong Kong in 2013 that may be implemented in 2014 including a focus on discrimination in the coming years; and welcome changes to TUPE and automatic pension plan enrollment in the United Kingdom

Cloud outsourcing:Theoretical & practical evidence of cloud governance strategies by financial institutions in Europe, the United States and Canada

This study examined the risk and governance challenges experienced by financial institutions that outsource cloud technologies. Cloud outsourcing prompts a new way of working and fosters an environment in which technology and data are shared across groups and are housed in regional hubs, according to global standards that are influenced by various countries’ policies. Therefore, to effectively manage the cloud, institutions need a thorough understanding of the applicable laws governing the cloud relationship and those that influence the internal control environment. The study explains that, conceptually, the framework nature of cloud contracts and flexibility of the regulation makes it especially difficult for institutions to efficiently manage risks. A real case study on a cloud outsourcing transaction and survey data from financial institution experts were used to study expert perceptions on the severity of various types of cloud risks and the effectiveness of institutional risk management approaches. These findings were also confirmed in a comparative institutional study, where similarities were found in the risk and governance concerns of experts working at 13 different institutions in the United States, Europe, and Canada. Through this investigation, it was found that efficient governance can be more difficult for institutions that comply with US regulations owing to considerable differences in state policies on data privacy. Finally, this study examined how uncertainties in the evaluation of data breaches and network failures become visible in other internal practices, such as cloud risk assessments. A series of cloud risk experiments was created and distributed to 131 cloud risk experts working at financial institutions in the EU and the US to compare whether their risk assessments would differ significantly. The results show that the lack of specification in the regulations and experience of cloud experts can contribute to considerable differences in their risk and disclosure choices. In practice, most experts face significant challenges in assessing the severity of cloud risk events, which have broader implications for enterprise risk management. The results suggest that internal governance continues to be a challenge for firms as they outsource cloud technologies. The knowledge derived from this Ph.D. is useful, as it shows that institutions can benefit if they prioritize the evaluation of liability provisions in their cloud contracts, especially in cases where cloud risk events are a consequence of third-party risks. The findings also establish that internal governance is necessary to reduce the spillover effects of cloud contracts and that institutions can devise sufficient governance structures by implementing data policies and mechanisms that promote cooperation and coordination to oversee data management responsibilities. _Dit onderzoek onderzocht de risico- en governance-uitdagingen van financiële instellingen die cloudtechnologieën uitbesteden. Het uitbesteden van de cloud leidt tot een nieuwe manier van werken en bevordert een omgeving waarin technologie en data worden gedeeld tussen groepen en worden ondergebracht in regionale hubs, volgens wereldwijde standaarden die worden beïnvloed door het beleid van verschillende landen. Om de cloud effectief te beheren, moeten instellingen daarom een grondig begrip hebben van de toepasselijke wetten die de cloudrelatie regelen en van de wetten die de interne controleomgeving beïnvloeden. In dit onderzoek wordt uitgelegd dat, conceptueel gezien, het kaderkarakter van cloudcontracten en de flexibiliteit van de regelgeving het bijzonder moeilijk maakt voor instellingen om hun risico's effectief te beheren. Een echte casus over een cloud outsourcing-transactie en enquêtegegevens van experts van financiële instellingen zijn gebruikt om de percepties van experts te bestuderen over de ernst van verschillende soorten cloudrisico's en de effectiviteit van institutionele risicomanagementbenaderingen. Deze bevindingen werden ook bevestigd in een vergelijkende institutionele studie, waar overeenkomsten werden gevonden in de zorgen rondom risico en governance van experts bij 13 verschillende instellingen in de Verenigde Staten, Europa en Canada. Uit dit onderzoek blijkt dat effectieve governance moeilijker kan zijn voor instellingen die de Amerikaanse regelgeving naleven vanwege de aanzienlijke verschillen in het beleid van de staten met betrekking tot dataprivacy. Tot slot wordt in dit onderzoek gekeken naar hoe onzekerheden in de evaluatie van datalekken en netwerkstoringen zichtbaar worden in andere interne praktijken zoals cloudrisicobeoordelingen. Er is een reeks experimenten met cloudrisico's gemaakt en verspreid onder 131 deskundigen op het gebied van cloudrisico's die werkzaam zijn bij financiële instellingen in de EU en de VS om te vergelijken of hun risicobeoordelingen significant zouden verschillen. De resultaten laten zien dat het gebrek aan specificatie in de regelgeving en de ervaring van cloudexperts kan bijdragen aan aanzienlijke verschillen in risico- en openbaarmakingskeuzes. In de praktijk krijgen de meeste experts te maken met aanzienlijke uitdagingen bij het inschatten van de ernst van cloudrisicogebeurtenissen, die bredere implicaties hebben voor het risicomanagement van bedrijven. De resultaten suggereren dat interne governance een uitdaging blijft voor bedrijven die cloudtechnologieën uitbesteden. De bevindingen van dit proefschrift zijn nuttig, omdat ze laten zien dat instellingen er baat bij kunnen hebben als ze prioriteit geven aan de evaluatie van aansprakelijkheidsbepalingen in hun cloudcontracten, vooral in gevallen waarin cloudrisico's het gevolg zijn van risico's van derden. De bevindingen tonen ook aan dat interne governance nodig is om de overloopeffecten van cloudcontracten te verminderen en dat instellingen toereikende governancestructuren kunnen ontwikkelen door databeleid en -mechanismen te implementeren die samenwerking en coördinatie bevorderen om toezicht te houden op de verantwoordelijkheden voor databeheer

Development and validation of a conceptual framework for IT offshoring engagement success

“A thesis submitted to the University of Bedfordshire, in partial fulfilment of the requirements for the degree of Doctor of Philosophy”.The study presented in this thesis investigates Offshore Information Technology Outsourcing (IT offshoring) relationships from clients’ perspective. With more client companies outsourcing their IT operations offshore, issues associated with the establishment and management of IT offshoring relationships have become very important. With the growing volume of offshore outsourcing, the numbers of failures are also increasing. Therefore, both clients (service receivers) and suppliers (service providers) face increasing pressure to meet with the objectives of IT offshoring initiatives. Improving the quality of the relationship between client and supplier has frequently been suggested in the literature as probable solution area, however not much literature and empirical evidence is available in this respect. The aim of the study is to make a theoretical and practical contribution by studying the interplay between the critical factors influencing the relationship intensity level of the exchange partners and suggest measures that can potentially increase the success rate in IT offshoring engagements. The objectives of this study are: 1. To identify the relevant critical factors and explore its causes and effects (antecedents and consequences) on the relationship intensity significance level. 2. To develop an integrated conceptual framework combining the hypothetical relationship among these identified critical factors. 3. To empirically validate the conceptual framework. To accomplish the first objective and building the theoretical platform for the second objective, three research questions are identified and answered through empirical study backed by literature evidence. The second objective is addressed through an integrative conceptual framework by analysing the related studies across other disciplines, gaps in the existing theories and models in the outsourcing literature. Coupled with literature gap analysis, the researcher adopted some of the relevant features from across various disciplines of management and social sciences that are relevant to this study. After that, the third objective, the research hypotheses are validated with empirical examination conducted in Europe. Seven research hypotheses are developed based on literature analysis on the relationship of the key constructs in the conceptual framework. This study is explanatory and deductive in nature. It is underpinned mainly by a quantitative research design with structured questionnaire surveys conducted with stratified sampling of 136 client organisations in Europe. Individual client firm is the unit of analysis for this study. Data analysis was conducted using partial least squares (PLS) structural equation modelling techniques. In this research, empirical support was found for most of the research hypotheses and conclusions of the study is derived. An investigation into trust as a concept is used to denote relationship intensity, as the central construct of the framework. The validated conceptual framework and tested hypothesis results are the main contributions of this study. The results of this study will also be useful in terms of adopting the conceptual framework linked with hypotheses as a point of reference to begin with, in order to accomplish a healthy exchange relationship. However, a further deep dive and fine tuning the sub-units/composition characteristics of each critical factor may be needed for individual outsourcing initiative(s). This study is particularly relevant to the client-supplier firms already engaged in a relationship but can also be useful to those clients who are planning to begin their journey in IT offshoring in the near future, as a preparatory platform