从中外合营企业到中外合资公司: 内部组织机构体制的多样化

现行中外合营企业组织机构体制有其利弊。涉及中外合资公司组织机构体制有两种立法取向：保证公司决策的效率、质量及公正性;或强化股东“共同经营”,从而达到合资各方“优势互补”的目的。在这两种立法政策的主导下,中外合资公司应采取多样化的组织机构模式,以使中外投资者拥有选择各种公司组织机构形式的自主权。     

Do graduated university incubator firms benefit from their relationship with university incubators?

Business incubators have become a popular policy option and economic development intervention tool. However, recent research shows that incubated firms may not benefit significantly from their incubator relationships, and may even be more vulnerable to failure post departure (graduation) from an incubator. These findings suggest that the impact of business incubation on new venture viability may be contingent on the type of support offered by an incubator and attributes of business environments within which incubation services are provided. Incubation services that protect and isolate ventures from key resource dependencies may hinder venture development and increase subsequent vulnerability to environmental demands. Alternatively, incubation services that help ventures connect and align with key resource dependencies are likely to promote firm survival. We propose that incubators vary in the services and resources they offer, and that university incubators typically provide greater connectivity and legitimacy with respect to important contingencies associated with key industry and community stakeholders. This leads us to propose that university affiliation is an important contingency that affects the relationship between firms’ participation in incubators and their subsequent performance. The purpose of this study is to evaluate this contingency by examining whether firms graduating from university incubators attain higher levels of post-incubation performance than firms participating in non-university affiliated incubators. We test this by evaluating the performance of a sample of graduated firms associated with the population of university-based incubators in the US contrasted against the performance of a matched cohort of non-incubated firms. The analysis uses an enhanced dataset that tracks the number of employees, sales, and the entry and graduation (departure) points of incubated firms from a university incubation program, so as to delineate the scope of influence of the incubator.     

The joint venture alternative to mergers

However, while a joint venture may be "safe" from antitrust challenge, it is not without some practical difficulties, especially with respect to consolidating services at one location or jointly offering services provided at multiple facilities. These practical concerns include: 1. Who will exercise operational management of the joint venture? 2. How will the joint venture deal with different pricing for services that will be provided at multiple locations? 3. What criteria will be used to decide the location at which consolidated tertiary services will be offered? 4. In what circumstances can the joint venture be unwound, either in its entirety or as to discrete functions? When clinical services have been consolidated at one location, there is an appropriate concern by the other hospital that it will be unable to provide or re-enter the market for those services if the joint venture dissolves. These operational concerns, of course, are not addressed in the Consent Decree. Thus, even if a joint venture relationship survives antitrust scrutiny, the parties must still negotiate and resolve these operational issues in order for the joint venture to be viable.     

Database considerations in a technology-transfer network

A computer-based network to support technology transfer between campuses of the California State University and local industry is described. Options associated with designing the database and configuring the hardware are evaluated. The TECHNET system involves 20 campuses of the state university system and is designed to support 1,000 industrial firms. The database consists of faculty expertise in the forms of resumes and company products and capabilities. Member companies may query the database to identify faculty (preferably at a local campus) and/or another company that can help them solve technological and business problems. The benefit of TECHNET to companies in addition to problem solving is new business opportunities and to faculty is consulting opportunities. The work is supported by the California Competitive Technology Project office of the California Department of Commerce.     

对合资经营相关法律问题的几点思考

对于“JOINTVENTURE”,应突破仅从企业形态对其认识的藩篱,其实质上是一种直接投资方式,译为合资经营,指两个或更多主体共同致力于一项特定商业事业的结合。国家投资政策与投资法律的要求、外国投资者的天然劣势、分散风险与争取待遇上的优惠等诸多因素促使了合资经营的产生与发展。但我国在利用合资经营这种投资方式时视野较狭窄、立法欠缺统一性且诸多规定与实际不符。建议取消以三资企业法为主体的外资法群,将合资经营直接规定于统一的外资法典的投资形式一章,而合资经营的具体法律形式,则交由相应的国内部门法调整。     

The Welfare Effects of Research and Production Joint Ventures

This paper develops a model to analyze behavior and welfare effects of a research and production joint venture (JV). In the model, a research dollar is more productive if spent in the joint venture because it increases the achievable probability of new product introduction. This efficiency of research and production joint ventures offsets, to some degree, the loss due to higher consumer prices. For some parameter configurations and joint venture membership rules, research and production joint ventures yield higher social welfare than research-only joint ventures (RJVs). This contrasts with some of the industrial organization literature on research collaboration and with traditional antitrust views.     

企业合资行为的反垄断法考察

不当的合资行为因其与垄断的密切联系,可能造成对现有竞争秩序的破坏,对市场经济带来危害。因此,规范企业合资行为,有效防止企业利用合资的合理、合法外衣,从事限制竞争行为,降低企业间串谋的可能性,成了反垄断法研究领域的新课题。试从合资行为的概念、合资行为限制竞争的种种表现分析着手,对反垄断法规制合资行为的实体规则、程序规则和执行机构进行设想和探讨。     

Competing with MNEs: developing manufacturing capabilities or innovation capabilities

A challenge facing local firms in China is the selection of effective technology strategies to compete against MNEs in the era of globalization. The existing literature suggests two alternatives, developing strong manufacturing capabilities or developing innovation capabilities, but provides no clear answer to the question of how to select one strategy or the other. This paper explores this issue by introducing two concepts: “barriers to appropriability” and “opportunities for improvement.” We develop four propositions to specify the boundary conditions for local firms to choose their technology strategies and analyze two local firms’ technology strategies to illustrate two of the propositions. We find that development of strong manufacturing capabilities will not necessarily be an effective strategy for local firms competing against MNEs. If there are opportunities for improvement, it might be possible for local firms to compete against MNEs by developing innovation capabilities and core technologies.     

Strategy first in international joint ventures

International technology- based joint ventures are proliferating despite their inherent complexity and high risk of failure. US firms continue to employ international joint ventures as a vehicle for collaborative research and development (R & D); foreign investors prefer the joint venture for investing in the emerging market economies of Eastern Europe. Tipping the balance in favor of successful joint ventures requires a strategic approach from the very advent of entering into an international R&D arrangement: an approach in which clear objectives are set and alternative ways to reach these objectives are systematically evaluated. Several frameworks are presented that clarify and facilitate the decisionmaking process during the initial phases of considering a joint venture in which project objectives are developed, alternative R&D arrangements are evaluated, and potential partners are identified and eventually selected.     

Financing knowledge-intensive enterprises: evidence from CVCs in the US

Since the 1990s, the importance of corporate venture capital (CVC) programs has grown around the world. CVCs are investments that established firms make in entrepreneurial companies. At the most basic level, CVC describes an equity investment made by a corporation or its investment entity in a high growth, high potential, privately held business. There is no systematic evidence that corporate venture capital investments create value for the investing firms. Firm value, however, can be created as a result of other benefits from investing (e.g., accessing a new technology). These considerations can explain why many firms currently choose to operate venture units: They have recognized the importance of CVC for strategic innovation in addition to its potential to generate financial returns. Some evidence from the US context described in this paper supports this intuition.     

Spinouts from academic institutions: a literature review with suggestions for further research

This paper provides a comprehensive literature review of the phenomenon of spinouts from academic institutions. We systematically identified spinout papers in key management journals, categorised the literature and critically synthesised the findings. We present the findings of each literature stream in turn and also identify inconsistencies and directions for further research. We conclude that while the early literature has been mainly atheoretical and focused on describing the phenomenon, a core group of recent studies were theory-driven.

The M&;A dynamics of European science-based entrepreneurial firms

This paper investigates the dynamics of a sample of 131 science-based entrepreneurial firms (SBEFs), selected out of 500 innovative small and medium enterprises (SMEs) that went public in Europe in the period 1995–2003. We found that the market for control of these firms was active, with most of our sample firms being acquired after their Initial Public Offering (IPO), usually by companies operating within the same industry. Floated SBEFs showed a higher propensity to be acquired than independent firms; this distinction persisted after controlling for intellectual capital and other possible determinants. While university affiliation enhanced attractiveness in the eyes of other companies, it negatively affected the propensity for acquisition. We argue that university-based firms do contribute to the technology transfer process, as evidenced by the widespread interest of the business world in investing in these firms. The creation of a SBEF is a first step in the process of commercial exploitation of university-research, while the subsequent step of going public is a sign of the success of this entrepreneurial venture. The take-over of SBEFs may be a final outcome of the process of knowledge diffusion.     

Growth factors of research-based spin-offs and the role of venture capital investing

Using a proprietary dataset of 98 German research-based spin-offs (RBSOs) founded between 1997 and 2012, we assess which firm-specific and system-inherent factors are decisive for the spin-offs’ growth drawing on the resource-based view. Specifically, we aim to evaluate whether venture capital-backed RBSOs outperform non venture capital-backed RBSOs and whether a performance difference is explained by venture capitalists’ scouting or coaching capabilities. Our empirical findings detect that a homogeneous educational background of the academic entrepreneurs is positively associated with RBSO growth. A training provided by the parent research organization intended to develop entrepreneurial skills and to establish a network to outside professionals as well as the commercialization of a novel technology have a positive impact on firm growth. Concerning the involvement of venture capitalists, venture capital-backed RBSOs show a superior employment and revenue growth compared to non-venture capital-backed RBSOs. Our results support the view that this superior performance is attributed to venture capitalists’ coaching rather than their scouting capabilities.     

Intellectual property issues in joint ventures and collaborations

Legal context: The IP issues involved in forming, operating, and (inevitably)terminating a joint venture or collaboration are much more numerousthan would typically apply to a straightforward investment inan organic growth, or on a merger or acquisition. The pitfallsare also more insidious. Key points: The author approaches the topic within the commercial context,discussing the commercial rationale behind joint ventures andcollaborations and the life cycle of a joint venture or collaboration. The article explores the four key stages of a joint ventureor collaboration: (1) pre-contract stage: confidentiality andtrade secrets; due diligence; structural considerations; (2)formation stage: assignment and licensing of existing rights;the terms of transfer; valuation of IP contributions; (3) durationstage: future contribution of existing and future backgroundrights; ownership and exploitation of foreground rights; maintenanceand protection of rights; and (4) termination stage: providingfor both unexpected and expected events. The article also provides advice as to avoiding the pitfallsof joint ownership: understanding the differences between jurisdictions;potential problems; and avoiding the banana skins. Practical significance: Joint ventures and collaborations are widely used across a rangeof industry sectors, but particularly high-tech sectors, suchas pharma/bio, information technology, and communications, inwhich IP rights are particularly important. Parties consistently cite the loss of background IP rights asa major risk in joint venture collaborations, and dealing withIP that is generated in the course of a joint venture or collaborationcan also present particular problems, particularly if it isto be used or owned jointly by more than one party.     

The Legal Status of Free Economic Zones in the USSR

International economic life and the striving for more effective utilization of the advantages of the international division of labor has led to the creation of special economic zones in many countries. These exist in various forms in the Democratic People's Republic of Korea, France, Vietnam, Bulgaria, Hungary, Mexico, Ireland, South Korea, and a number of other countries. As regards the USSR, we have posed the question of forming joint venture zones, or free economic zones (hereafter FEZ) where it will be possible to provide conditions more advantageous than in other regions of the country or in other branches of the economy not only for foreign capital investments and the activity of joint ventures and foreign firms (tariff advantages, tax advantages, etc.), but also for the economic activity of Soviet state and cooperative enterprises.     

Health care joint ventures between tax-exempt organizations and for-profit entities

Health care exempt organizations have many options regarding their structure and affiliations with for-profit entities. As long as any joint ventures are carefully structured and the nonprofit retains control over the exempt health care activities, the Internal Revenue Service should not question the structure. However, as outlined above, if the for-profit entity effectively gains control over the activities of the venture, the structure is not likely to be upheld by the IRS or the courts, and either the exempt status of the nonprofit will be denied or revoked, or health care income will be subject to the unrelated business income tax. In summary, the health care industry has been severely impacted by many economic forces, including uncertainty in the area of joint ventures between nonprofits and for-profit health care systems. The uncertainty as to whether the joint venture would negatively impact the nonprofit's tax-exempt status undoubtedly caused many nonprofits to form for-profit subsidiaries and otherwise expanded operations in a for-profit marketplace. Fortunately, with the guidance that is currently available in the form of Revenue Ruling 98-15, Redlands, St. David's, and now Revenue Ruling 2004-51, health care institutions can move forward with properly structured joint ventures with greater confidence that the joint venture will not endanger the tax-exempt status of the nonprofit.     

Market Structure and R∧D Joint Ventures: The Case of Product Innovations

Departing from the received fact that research joint venture agreements are allowed on the grounds of a permissive ruling, we study what conditions are necessary for venture partners to carry on RD cooperation to the marketing stage. We treat the case of product innovations exploitable with different usages in unconnected markets. Two main results appear: firms always have incentives for a distribution of varieties, but not always agree on the distribution of products. The condition for the last result to happen gives a useful rule for antitrust authorities relating the degree of sustitutability across varieties and the relative profitability of the markets.     

Industrialization of hybrid electric vehicle technology: identifying critical resource dimensions

The purpose of this study is to identify critical resource dimensions for the industrialization of hybrid electric vehicle technology. This study focuses on small- and medium-sized technology-based firms in Sweden that employ between 1 and 500 employees and that could be potential suppliers of hybrid electric vehicle technology. The empirical data were collected using a survey (questionnaire) and it covers 40 technology-based firms in eight industrial branches in Sweden. We have included 18 variables in order to identify critical resources regarding Business and R&D networks in three dimensions: ideas and advice, production, and R&D. Two regression models developed for battery systems and battery cells have significant findings. Networks with universities and consultants are especially important. One operative way is building strategic alliances with other firms. The main contributions of this study are empirical support that network resources are necessary and important in battery systems and battery cells and, more broadly, networks are necessary systems for technology shifts in the hybrid electric vehicle industry.     

论我国外商投资企业合同审批制度的不合理性--兼论合同审批制度与合同自由原则的冲突

我国外商投资企业法规定,申请设立中外合资经营企业或中外合作经营企业必须提交中外合资 经营企业合同或中外合作经营企业合同,由审批机关进行审批。从实证的角度出发,分别从该制 度的成因及其实施二十余年的绩效以及对其他国家的相关制度的考察等角度分析论证我们现行 外商投资企业合同审批制度的不合理性,并根据合同自由原则的基本原理,提出尽快修改该制度 的立法建议。     

公司法律形态结构改革的走向

现行公司法上,公司法律形态存在着结构性问题。有限责任公司虽属封闭公司,但没有涵盖发起设立股份有限公司,而股份有限公司却容纳了公开公司和封闭性的发起设立股份有限公司。这种结构导致了封闭公司适用不同规则,公开性股份有限公司、封闭性股份有限公司适用同样的规则。公司法改革的取向是整合封闭公司资源,重塑有限责任公司形态,涵盖所有封闭公司,并使股份有限公司仅具有公开公司特点,不再涵盖发起设立的公司。在此基础上,同一法律形态的公司适用同样的规则,以利公司法现代化。同时,实现公司法体系一元化,外商投资有限责任公司与内资有限责任公司并轨,这是重塑有限责任公司形态的应有内涵。