A principles-based Anglo governance system is not a science but an art

Anglo governance systems rely of a number of controls to align shareholder and boards of director’s interests. In general they are referred to as market control, regulatory control, and political and cultural control. Agency theory proposes that these control mechanisms are necessary as human nature is such that directors and managers act in a self-interested and boundedly rational manner in decision-making that can result in sub optimality. Notwithstanding that each country within the Anglo system accepts such controls are necessary they have their own foci and priorities, being a product of their own system’s characteristics. This paper through interviewing a number of Australian business executives adds to the academic literature by providing evidence from the field of the important characteristics of the Australian governance system, the drivers of change and the effectiveness of the principles-based approach. It argues that debate needs to move beyond the principles versus rules approach to look at how firms can be provided with more guidance in operationalising some of the principles that appear to be key to governance effectiveness. It concludes that there is a need for a holistic model of governance that is broader than that focusing on the control/legalistic approach; that top management is important in setting and driving the in-firm governance agenda; that the public needs to be informed and educated about governance and its importance; and that disclosure still requires an improvement in quality.

Relating practice to theory in indigenous entrepreneurship : a pilot investigation of the Kitsaki partnership portfolio

In Canada and elsewhere around the world, Indigenous Peoples are struggling to rebuild their "nations" and improve the socioeconomic circumstances of their people. Many see economic development as the key to success. This is certainly true for Indigenous people in Canada (the First Nations, Metis, and Inuit, collectively called Aboriginal or Indigenous people). Among them, participation in the global economy through entrepreneurship and business development is widely accepted as the key to economy building and nation "re-building." As elaborated in the next section, the demand is that this participation must be on their own terms for their own purposes, and traditional lands, history, culture, and values play a critical role. There is an intriguing symmetry between the modernity of the desire for global business competence and competitiveness and the insistence upon the distinctive importance of cultural heritage in developing new enterprise. The way that the two superficially contrasting concepts of innovation and heritage are combined in the field of Indigenous entrepreneurship has been expounded by Hindle and Lansdowne.1

Recognizing the challenges they face in attempting to compete in the global economy on their own terms, Indigenous people are increasingly developing enterprises in the form of partnerships of all types among themselves and with non-Indigenous enterprises. As both a form and a context of business organization, the partnership or alliance model is particularly fraught with the need to blend the old with the new, heritage with innovation. This study is a preliminary investigation of the Kitsaki initiative of the Lac La Ronge Indian band. In it we:

* explore several ventures involved in the partnership, asking key operatives for their opinions about the factors that explain success and failure;

* distill the explanations into as few, all-embracing factors as possible;

* relate the findings to the emerging theory of Indigenous entrepreneurship, with particular reference to the suggested paradigm of Indigenous entrepreneurship developed by Hindle and Lansdowne (2002);

* project the results of the investigation into suggestions for a more structured program of future research.

From what we know to how we use it : five principles for turning entrepreneurship research and practitioner action guidelines

This and the companion paper that follows owe their existence to a paper presented by Kevin Hindle at the AGSE Regional Entrepreneurship and Innovation Research Exchange in February 2004. In his paper, Hindle (2004) argued passionately that entrepreneurship researchers must ensure that the best of their hardwon wisdom does not find its beginning motivation and final resting place in the pages of arcane journals that practitioners never read. He suggested that if every entrepreneurship researcher committed, say once every two years, to write a "how to" article it would significantly enhance the status of the research community in the eyes of practising entrepreneurs and those who provide support and services to them.

The argument was well-received, particularly by two people in the audience, Robert Anderson, the managing editor of the Journal of Small Business and Entrepreneurship, the journal of the Canadian Council for Small Business and Entrepreneurship/Conseil Canadien des PME et de l'entrepreneuriat (CCSBE/ CCPME), and Brian Gibson, the editor of Small Enterprise Research, the journal of the Small Enterprise Association of Australia and New Zealand (SEAANZ). For both editors, Hindle's argument was a familiar one. The membership of CCSBE/CCPME and SEAANZ consists of academic researchers, educators, government employees in both policy and program areas, and those offering support and services to entrepreneurs and the managers of small enterprises. In both organizations, there is a general consensus that the needs of "academics" are well met, but not so the needs of the non-academic constituents.

Risk allocation in public-private partnership projects : an innovative model with an intelligent approach

Both the increasing private participation in public projects and the critical importance of appropriate risk allocation to the success of Public-private partnership (PPP) projects justify specific research on how to establish effective risk allocation strategies in PPP projects. Partner’s risk management capability is currently the main concern to risk allocation in PPP projects. Following the transaction cost economics, it is argued that factors such as partner’s commitment and risk management structure should be considered simultaneously in order to develop effective risk allocation strategies. Based on the holistic capability-commitment governance-driven view, this paper proposed a model for generating an optimal risk allocation strategy in PPP projects. The model is demonstrated and described. An artificial intelligent technique integrated with fuzzy logic for model testing and validation is then introduced and justified. The innovative model is expected to provide a logical and complete understanding of the risk allocation strategy selection process, and to provide stakeholders with a richer framework than previously existing ones to guide their decision-making on risk allocation strategies.

Interjurisdictional allocation of multinational banking income : aligning taxation principles with economic activity

This thesis argues that one type of multinational entity – the multinational bank – poses particularly significant challenges to the international tax regime in terms of its current profit allocation rules. Multinational banks are a unique subset of multinational entities, and as a consequence of their unique traits, the traditional international tax regime foes not yield an optimal interjurisdictional allocation of taxing rights. The opportunity for tax minimisation, achievable because of the unique traits, and realised through exploitation of the traditional source and transfer pricing regime, results in a jurisdictional distribution of taxing rights which does not reflect economic reality. There are two distinct ways in which the traditional international tax regime fails to reflect economic activity. The first way that economic activity may not be reflected in the distribution of the taxing rights to income from multinational banking is through the application of traditional source rules. The traditional sources rules allocate income where transactions are completed rather than where the intermediation services are arranged. As a result of their unique commercial role as financial intermediaries, by separating intermediary economic activity from legal transactions with third parties, multinational banks may distort the true location of the activity giving rise to income. The second way in which the traditional tax regime may fail to reflect economic activity is through the traditional transfer pricing regime requiring related or internal transaction to be undertaken at an arm’s length price. The arm’s length pricing requirement is theoretically deficient in its failure to recognise the highly integrated nature of multinational banking. In practice, the arm’s length pricing requirement is also difficult, if not impossible, to apply to multinational banks because of the requirement of comparability. The difficulties associated with the current model have resulted in a subtle move by multinational banks towards global formulary apportionment. This thesis concludes that, for the international taxation of multinational banks, the current source regime should be replaced with a system that allocates profits for tax purposes on the basis of income source, with source determined using a unitary taxation or global formulary apportionment system. It is argued that global formulary apportionment is a theoretically superior model that provides both jurisdiction to tax and allocated profits on the basis of the economic activity that generates the income.

Concepts and principles in unjust enrichment : a comparative study

The Thesis was inspired by a perceived need better to understand the unique description of unjust enrichment by the Australian courts, as a unifying legal concept. It demonstrates that concepts and principles are essential features of the common law because they identify the character and taxonomy of rules. The comparative study, encompassing Australian and English law primarily, and law of other jurisdictions, modern and ancient, elucidates the special characteristics of the concepts and principles of Anglo/Australian unjust enrichment and of concepts and principles generally. A like concept has had a place in the common law since its inception under several characterisations. It bears the mark of ancient Roman jurisprudence, but relates to independent principles. The jurisprudence was formed by special characteristics of its history. It is distinct from modern Roman/Dutch law but the doctrinal overtones of its foundational case law reflect the basis of reasoning which in Continental law, is found in the adopted ancient codes. It is this foundation of reasoning and the firm rejection of a normative general principle that makes Anglo/Australian law different in character and jurisprudence from unjust enrichment in USA and Canada. Stifled for centuries by quasi contract misconceptions, the law of unjust enrichment entered the modern law in the 20th C through the seminal judgements of Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Coombe Barbour Ltd, and related cases and through the strong judicial and juristic following they inspired. That “…any civilised system of law is bound to provide remedies for … unjust enrichment…” became an imperative across the common law world: it has long held a place in the Roman Dutch jurisdictions of South Africa and Continental Europe. The special character of unjust enrichment in Anglo/Australian law is focussed upon a unique action where-by the law imposes an obligation upon the establishment of a recognised ground. The notion of breach of a primary rule does not arise: the obligation is therefore a primary obligation imposed by law, as distinct from a remedy for a breach. Important consequences flow from the characteristic. The juristic development of unjust enrichment in the common law has long been the sole prerogative of the superior courts. The place of historical features of the jurisprudence has however been subsumed by modern judicial methodology that is slowly assuming a unifying pattern of reasoning from case to case; from one ground to another. This is the special characteristic of the unifying legal concept and English principle of unjust enrichment. The thesis draws widely based conclusions about concepts and principles of unjust enrichment and the actions and obligations they sponsor. It portrays them as the substance of legal reasoning and analyses underlying theory. to this end, it addresses counter juristic and historical arguments. Its central conclusion are that there are sound jurisprudential arguments for actions based upon a unifying legal concept and English principle of unjust enrichment, and that the explanation of the unjust enrichment concept as the foundation of an independent branch of the common law and taxonomy is theoretically sustainable. In this manner concepts and principles of the common law are demonstrated as critical characteristics of the common law at large.

Allocating risks in public-private partnership projects using a transaction cost economics approach - a case study

Public-private partnership (PPP) projects are often characterised by increased complexity and uncertainty due to their idiosyncrasy in the management and delivery processes such as long-term lifecycle, incomplete contracting, and the multitude of stakeholders. An appropriate risk allocation is particularly crucial to achieving project success. This paper focuses on the risk allocation in PPP projects and argues that the transaction cost economics (TCE) theory can integrate the economics part, which is currently missing, into the risk management research. A TCE-based approach is proposed as a logical framework for allocating risks between public and private sectors in PPP projects. A case study of the Southern Cross Station redevelopment project in Australia is presented to illustrate the approach. The allocation of important risks is put under scrutiny. Lessons learnt are discussed and alternative management approaches drawing on TCE theory are proposed.