In world first, New Zealand passes climate change law that targets financial firms

New Zealand is set to become the first country in the world to mandate that financial firms report on the environmental impact and exposure of their investments. From 2023, companies must report on how their lending and investments effect ongoing efforts to reduce carbon emissions. They must also divulge the extent to which their investments are exposed to climate-related risks and opportunities. According to James Shaw, New Zealand’s Minister of Climate Change and Co-leader of the Green Party, “This law will bring climate risks and resilience into the heart of financial and business decision making.”

The legislation, which will affect around 200 domestic and foreign firms with assets totaling over $703 million U.S. dollars, is part of New Zealand’s broader effort to set ambitious environmental targets for its public and private sectors. The country recently overhauled its Resource Management Act, one of the world’s first laws focused on sustainable management. In its place will be three separate pieces of legislation, one of which exclusively focuses on New Zealand’s response to climate change. Proposed plans include switching to environmentally friendly farming practices, reducing livestock numbers, taxing farmers for emissions, and planting more permanent, native forests. The country aims to be carbon neutral by 2050.

New Zealand is tiny and comprises only 0.17% of global emissions. However, on the issue of climate change, the country sees itself as a role model for the rest of the world. Indeed, regulators in Europe have also start to turn their attention towards banks and asset managers that are too exposed to climate-related risks. Last November, the European Central Bank announced that it will start assessing how banks should account for real estate holdings vulnerable to climate related risks like flooding, and storms.

In general, governments and corporations seem more willing than ever to consider new legislation and taxation to tackle climate change. Earlier this week French lawmakers voted to ban short haul flights where the same journey could be taken by train in less than 2.5 hours. Similarly, after receiving government bailout with provisions to cut its carbon footprint, Austrian Airlines replaced one of their shorter routes with increased train services. In the U.S. JP Morgan and Goldman Sachs have launched plans to reduce investments in the fossil fuel industries, and better align their financial activities with the Paris Climate accord. Also this week, more than 300 corporations, including Target, Verizon, and Google, asked President Biden to double the emissions targets set by the Obama administration. According to Anne Kelly, vice president for government affairs at sustainability nonprofit Ceres, “this signals a major shift in the corporate community’s understanding of the urgency of climate change as a systemic financial risk.”

Back in New Zealand, the one-of-a-kind bill is expected to receive its first reading in parliament this week. And it’s likely that still more ambitious legislation is on the way. Shaw, chief architect of the country’s plans to fight climate change doubts that global heating can be restrained, but, he says, “that’s all the more reason to try.”

Treasury Secretary Janet Yellen Advocates for a Global Minimum Tax Amid the Debate Over Infrastructure Spending

On Monday, Treasury Secretary Janet Yellen called for a global minimum tax rate for multinational corporations. Yellen criticized the “race to the bottom” approach to corporate taxation that has been adopted for decades as statutory tax rates have continuously fallen for forty years from an average rate of 40% in 1980 to the current average of 24%. Also, she emphasized the operation of companies within a global economy where the fortunes of countries around the world are intertwined. When considering a taxation strategy, countries have to prioritize revenue collection, protecting domestic industries, attracting foreign investment, and tax efficiency. But with the globalization of corporations and the increase in companies built around intangible capital, taxation has become increasingly difficult. It is estimated that governments miss out on between $200 and $600 billion in revenues each year due to tax havens and the use of tax loopholes.

The Organization for Economic Cooperation and Development (OECD) has been working for years on developing a global minimum tax and now over 135 countries are supportive of the concept. From these discussions several debates emerged, such as whether companies should be taxed based on where their headquarters are located or where the income is earned and how digital companies should be taxed. To try to resolve these questions the OECD has proposed a framework for a global minimum tax where businesses are taxed based on the location of their customers rather than the location of their headquarters. This structure would lead to more taxation of U.S. tech companies in Europe and other countries (but less taxation in the U.S.) while the U.S. would be able to raise more taxes from European and other companies selling to American consumers. Additionally, Yellen told her counterparts at a G20 meeting in February that the U.S. would no longer demand a safe harbor rule that would allow U.S. tech companies to opt out of paying this tax overseas, dropping a major point of the Trump-era negotiations that served as a roadblock to an agreement.

In her speech, Yellen highlighted the need for governments to have tax systems that enable them to raise revenue for investment in public goods and crisis response measures. This sentiment reflects how Yellen’s advocacy for a global minimum corporate tax rate is tied to the Biden administration’s push for the $2.3 trillion infrastructure proposal. President Biden has proposed to pay for the eight years of infrastructure spending with higher corporate taxes. While the 2017 tax overhaul cut the corporate rate from 35% to 21%, Biden plans to raise the rate to 28% and impose a 21% tax on U.S. companies’ foreign profits, which is designed to limit the benefits from loading profits into low-tax countries. While supporters say the tax increase must be viewed with respect to how much domestic companies and the American people stand to gain from the infrastructure proposal, critics urge caution under the belief that a higher tax rate will hurt U.S. companies’ ability to compete with foreign companies facing lower rates of taxation. This criticism underscores the importance of a global minimum tax rate as a way to shrink the potential tax advantage of foreign companies by requiring other countries to increase their corporate tax rates.

A higher domestic corporate tax rate obviously cuts into the profits of businesses, but analysts see the increase in taxes as costing some companies more than others. Those with a high proportion of domestic earnings are more directly impacted by the rate increase while multinational corporations will feel the effects of the minimum tax on foreign income. The primarily domestic companies that are most likely to endure some losses are essentially the same companies that benefitted most from the 2017 corporate tax rate cut, including utilities, regional banks, and retailers. There is concern that a tax increase would cut into corporate profits just as the economy is starting to recover from the pandemic. For instance, retailers are heavily reliant on domestic income and have experienced lots of struggles with the rise of e-commerce and the pandemic’s limits on in-person shopping. However, companies hit hardest by the pandemic will not feel any immediate changes from the tax increase because businesses pay taxes only when they have profits. Also, struggling companies would be able to carry those losses forward to offset future taxes.

As an alternative to the Biden tax proposal, Senators Wyden, Brown, and Warner have drafted a framework that is more friendly to companies but still leaves many details to be ironed out. The focus of that proposal is how U.S. companies should be taxed on foreign income and how foreign companies should be taxed on U.S. income, but issues such as the actual rates are still up for discussion. Republican lawmakers have indicated that they do not support a corporate rate increase (despite their concern about the national debt) and pushback from more moderate Democrats, like Senator Joe Manchin, reflect a 25% rate as more realistic than the 28% the Biden administration favors. But what needs to be remembered in the coming discussion over rates is that prior to 2017 the corporate rate was 35%, providing proof that corporations can exist – and even thrive – in a world with a much higher corporate rate.

Finance ministers during a G20 meeting this past week said that they hope to agree on a global minimum tax by the middle of this year. And with Yellen’s concerted efforts to re-establish America as a global leader engaged in shaping the world’s economy that ambitious goal might be reached.

Bristol Myers Squibb Allegedly Skirts $1.4 Billion in U.S. Taxes with Abusive Offshore Scheme

The IRS is pursuing Bristol Myers Squibb for allegedly using an abusive offshore tax shelter to avoid paying nearly $1.4 billion in U.S. taxes. The agency claims that Bristol Myers, which is headquartered in New York, moved intellectual property to offshore subsidiaries in violation of U.S. profit-shifting rules. The existence of the inquiry only became available after the IRS published a document detailing the arrangement that inadvertently contained ineffective redactions.

In 2012, Bristol Myers implemented a tax strategy whereby the company moved patents and other intellectual property to Irish subsidiaries. The arrangement sharply reduced Bristol Myers’ U.S. tax liabilities: during the three years before Bristol Myers implemented the arrangement, the pharmaceutical company’s tax rate was close to 24%. After the company moved patents to the Irish subsidiary, however, Bristol Myers paid an effective negative 7% tax rate in the United States. The company’s offshore tax scheme was described as particularly aggressive because the IRS recently challenged similar schemes attempted by General Electric, Merck, and Dow Chemical.

Public knowledge of the IRS’ inquiry into Bristol Myers’ tax arrangement came about by chance. The IRS routinely drafts reports detailing complex audits and publishes redacted versions online with anonymized taxpayer information. Bristol Myers’ report, however, contained superficial redactions that could be removed. The disclosure of the Bristol Myers’ tax shelter comes as the Biden Administration has put the spotlight on multinational companies shifting profits abroad. President Biden’s tax plan proposes increasing the corporate income tax rate, increasing tax revenues derived from a U.S. corporation’s foreign profits, and establishing a global minimum corporate tax rate to prevent companies from diverting profits to foreign tax havens.

The Future of the NCAA’s “Business Model” is in Jeopardy

For over a century, the National Collegiate Athletic Association (“NCAA”) has served as the regulatory body that governs the majority of intercollegiate athletics. The NCAA and its member institutions provide a platform for almost half a million student-athletes to compete in 24 different sports across three divisions. Undoubtedly, the NCAA’s system has provided millions of educational opportunities for student-athletes that would not otherwise exist, but at an enormous cost to those the student-athletes.

The NCAA’s eligibility requirements for student-athletes to compete are based on the principle of “amateurism” – an arbitrary definition created and implemented in the NCAA’s Bylaws. In order to remain eligible, student-athletes must adhere to a laundry list of NCAA Bylaws, including the requirement not to receive any form of payment for their athletic skill. The NCAA has attempted to justify this decision by continuously stating that lack of pay for intercollegiate athletes marks a definitive point of demarcation between “amateur” and professional athletics. On the surface, this seems like a plausible defense: ensuring that student-athletes do not receive pay certainly does make intercollegiate athletics separate and distinct from professional sports. However, if this is indeed what distinguishes the NCAA from other leagues like the National Football League, then why do carve-outs—such as allowing student-athletes to receive pay for Olympic accomplishments or tennis athletes to accept prize money based on place finish or performance—exist?

A simple answer exists: to maintain control of their monopsony enterprise. The NCAA has become a multi-billion-dollar business, raking in lucrative television deals in excess of $8.8 billion. Rather than sharing those profits with the athletes who produce the NCAA’s notable product, the NCAA shares that wealth with the member institutions, including at least 20 schools that already possess endowments north of $5 billion. As a nonprofit organization, like its member institutions, the NCAA currently generates over $1.1 billion in annual revenue. Yet, none of those profits are shared with the individuals who are the lifeblood behind that revenue—the student-athletes.

Despite these shortfalls, there may be light at the end of the tunnel for student-athletes. On March 31, 2021, the United States Supreme Court heard oral arguments in NCAA v. Alston – the first time since 1984 that an antitrust claim against the NCAA reached the nation’s highest court. Stemming from a Ninth Circuit decision that found the NCAA and its member institutions’ limits on education-related benefits was a violation of the Sherman Antitrust Act, the implications of the case before the Supreme Court may further jeopardize the NCAA’s business model.

Although the NCAA v. Alston case surrounds education-related benefits, depending on the Supreme Court’s decision, the landscape for student-athletes and their fight for pay could drastically change. First, suppose the Supreme Court does in fact rule in favor of the NCAA’s position. In that case, there is the potential to create a de facto antitrust exemption for the NCAA, forbidding antitrust scrutiny and challenges brought against its rules and regulations. This decision would derail student-athletes’ aspirations to receive compensation for their athletic skill in the future. Alternatively, if the court rules in favor of the student-athlete side, it could mark the end of the fictitious “amateurism” standard the NCAA is adamant on retaining.

Under the current Ninth Circuit ruling, student-athletes can receive unlimited education-related benefits, including paid post-graduation internships. This decision, alongside the increasingly widespread legislation enacted by states that permits collegiate athletes to profit from their name, image, and likeness, may force the NCAA to change their business model much quicker than they anticipated. What may be a coincidence—or possibly a sign of the impending changes destined to occur—NCAA President, Mark Emmert, met with several NCAA athletes on April 1, 2021, to discuss the athletes’ request for a temporary waiver permitting them to receive compensation from endorsements next academic school year. These attacks on the NCAA’s business principles show no signs of slowing down, and in fact, continue to gain more traction. Depending on the outcome of the NCAA v. Alston case, the NCAA could suffer a devastating blow to its illustrious revenue stream it has fought so hard to keep away from student-athletes.

The Role of Ethics in Shareholder Security: Doomed or Destined?

Embroiled in yet another legal debacle, as of December 2020 Goldman Sachs Group Inc. (Goldman Sachs) is immersed in a securities class action litigation in front of the United States Supreme Court – Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System.

Beginning with the financial crisis in 2007 – 2008, Goldman Sachs’ shareholders lost millions of dollars after the bank successfully marketed “a synthetic collateralized debt obligation” (CDO) known as “Abacus” that ultimately failed and led to a widespread Securities and Exchange Commission (SEC) investigation. Goldman Sachs neglected to inform shareholders of the investment’s unlikelihood to yield strong returns, and instead ignored clear conflicts of interest and relied on vague, overly broad ethics statements to convince investors of their effective transparency, corporate governance, and accountability mechanisms. Goldman Sachs had reason to know that the hedge fund manager who played a part in orchestrating the portfolio “of subprime mortgages” wagered the investment would fail. The CDO’s collapse led to a $1 billion payout for the manager, and a comparable loss for Goldman Sachs customers, further exacerbated by the negative impact on the stock price from the SEC investigation.

This inundation of financial jargon, and summary of Goldman Sachs’ decade-long flirtation with securities fraud, culminates with the ensuing class-action litigation involving the Arkansas Teacher Retirement System as well as a pension fund – two entities devastated by the impact of the failed investment and allegations of fraud.

The litigation addresses the legal question of “whether a securities defendant can rebut a presumption that the class relied on alleged misleading statements by pointing to their generic nature.” The Court’s holding will impact class action procedures such that future plaintiffs could more easily bring, and win, securities-fraud lawsuits by referencing major corporate entities’ blanket language regarding their integrity, transparency and honesty towards shareholders. At the risk of espousing dangerously anti-capitalist views, it is worth noting that such a holding could “open the floodgates” for costly and arguably unnecessary litigation or rather incentivize companies to “stay silent.

As noted by several experts, this litigation begs the question: how will the future holding impact the rigidity, efficacy and enforceability of corporate governance and legal ethics practices going forward? But as a current first-year law student, and a shareholder and future shareholder, I cannot help but ask how this litigation – and the light shed on such opaque governance and financial practices by leading corporations – will impact the actions of the everyday investor. And, perhaps unrelatedly, it makes me wonder how phenomena out of our control, such as a global pandemic, could potentially influence companies’ likelihood to mislead investors for the sake of healthy portfolio performance to benefit the elite?

Over the past thirty years, class-action securities fraud cases dramatically increased, with the hope of compensating victims of misleading statements and deterring additional fraudulent activity. With a more conservative Supreme Court majority, potentially inclined to direct the resolution of these complex issues to the legislature, how will the holding of this case impact the already tenuous relationship between corporate entities and their shareholders?

The Glass Ceiling for Asian Americans in Corporate America

Asian Americans are the best-educated, highest-income earning, and fastest growing racial group in the United States, according to a Pew Research study. UC Berkeley graduate student activists, Emma Gee and Yuji Ichioka, first used the phrase “Asian American” in 1968 to bring together the diverse groups that fell under the Asian diaspora. The term “Asian American” encompasses over 20 ethnicities and 20 million citizens in the U.S. According to the Census Bureau, a person of Asian descent is defined as “having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, for example, Cambodia, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.” Despite the sizable subgroup differences in culture, language, and religious beliefs, Asian Americans are distinctive in comparison to U.S. adults in terms of higher college degree attainment, median annual household income, and median household wealth. And still, a wide gap exists in Corporate America: Asian American white-collar professionals are the least likely group to be promoted into management and executive positions in the United States.

Jane Hyun articulated how barriers, such as stereotypes and racism, hinder Asian Americans from ascending the corporate ladder, and coined the term, “bamboo ceiling” in her book, Breaking the Bamboo Ceiling: Career Strategies for Asians. These biases are built on structural racism, perpetuated by the “model minority” myth and stereotypical cultural differences. In particular, Hyun discussed how Eastern cultural norms focus on collectivism over individualism, with a particular respect to authority and deference to elders.

Hyun stated, “Unfortunately, this reticence gets mistaken for aloofness or arrogance or inattention, when it is usually just the Asian habit of respecting authority. We wait for our turn to speak—and often our turn just never comes.”

The difference in cultural norms, coupled with research that indicates Asian Americans are perceived as less ideal leaders has affected the group’s leadership advancement. The studies published in the Journal of Applied Psychology found that “Asians’ lack of prototypical attributes of masculinity, charisma, and tyranny” affected the group’s perception in comparison to Caucasian Americans in Western contexts. Existing leaders, subconsciously and consciously, seek cultural and personality characteristics that reflect their own styles in hiring and promotion practices. Thus, the current homogenous composition of leadership teams across industries mostly comprised of cis white men further exacerbates this perpetual cycle of non-promotion.

The term “model minority” has origins in the Civil Rights era, when Asian Americans were “inserted as an intermediate group between Black people and whites.” According Berkeley School of Law Professor Leti Volpp, the model minority is premised on the idea that a strong work ethic and family cohesion has led to Asian American success, without the need to rely on government welfare. In turn, the perception that Asian Americans have prosperously attained “the American Dream” as the model minority has stunted the group’s growth and contributed to the widening leadership gap across industries.

Asian Americans’ economic and educational successes have created a blind spot for promotion and attrition rates across industries like tech, business, and law. The Ascend Foundation report analyzed EEOC data on Silicon Valley’s management pipeline and found that Asian Americans are the most likely to be hired into high-tech jobs. However, they are the least likely group to be promoted in management and executive levels. In Asia Society’s Corporate Survey, 27% of participating companies had no AAPI presence in C-Suite, and a report based on data from Google, Intel, Hewlett Packard, LinkedIn, and Yahoo showed that Asians only made up 14% of executives. When further incorporating gender and race, the hurdles become steeper. Ascend’s analysis of Google’s published EEO-I reports revealed that Asian women in leadership at Google has not changed since 2015. These issues, however, are not exclusive to Silicon Valley. In law, Asian Americans have the highest attrition rates and lowest ratio of partners to associates among all racial groups. In the business arena, Asian Americans only account for 1.4% of Fortune 500 CEOs and 1.9% of corporate officers.

Although Asian Americans are not considered an underrepresented minority, making up 12% of the professional workforce, there is a discrepancy in the group’s advancement as leaders in corporate America. It is critical that companies use an intersectional lens to analyze data from diversity reports, accounting for factors such as race and gender, to create initiatives that dismantle the glass ceiling. In doing so, this requires businesses to explore dominant Western standards and attitudes that are embedded in the corporate industry standards that have historically been deemed valuable at the expense of Asian Americans, and people of color broadly. As U.S. companies further integrate diversity and inclusion to its business models, they must institutionalize Asian American leadership to close a gap that has gone unchanged for too long. The elevator should not stop just before the upper echelons of the corporate realm for Asian Americans.

Harlem Capital Raises a Successful Fund II, but Diversity Remains a Major Issue in the Startup Ecosystem

Harlem Capital, a New York City venture capital firm based in — you guessed it — Harlem, was originally founded in 2015 as an angel syndicate. However, in 2019, the VC firm raised over $40 million for its inaugural fund, with half of the fund’s individual LPs being women or people of color. Fund I has invested in 23 companies, 61% of which are led by Black or Latinx founders and 41% are led solely by women.

While the first fund remains active — with hopes to invest in five more companies — the diversity-focused venture capital firm recently announced that it raised $134 million for its second fund. Harlem Capital’s Fund II well exceeded its initial target of $100 million. This time, Harlem Capital has received investments from big names like Paypal, and continues to work on its diversity mission with 42% of Fund II’s LPs being women or people of color.

Another one of Harlem Capital’s investors is Apple, which announced back in January that it would pledge $100 million for its Racial Equity and Justice Initiative. Apple will invest $10 million with Harlem Capital over the next 20 years as well as continue to work closely with the VC firm to improve Apple’s own diversity efforts and develop an internship program with Harlem Capital.

Despite these efforts, investors and VC-backed companies are seriously lacking in terms of diversity. Crunchbase’s 2020 Diversity Report found that Black and Latinx founders received only 2.6% of all venture capital funding in 2020. Meanwhile, Fortune found that female founders received only 2.2% of all VC funding for the same year, less than they received in 2019. Harlem Capital’s Fund II is still looking to invest in businesses founded by women and people of color but much more funding is needed to actually change these low numbers. While Harlem Capital itself is led by a diverse group of investors, it shouldn’t be hard for other, less diverse VC firms to see the value in investing in underrepresented founders — or even hiring diverse investors. Until then, much of the burden to diversity the industry will fall on groups like BLCK VC and Harlem Capital.

Is Law Obsolete? Absence of Liability in a Decentralized World

There is a new trend in the world of finance: after crypto tokens, non-fungible tokens (NFTs) appeared in the cluster of digital assets spurred in recent years. These tokens are effectively certificates of authenticity– non-fungible- for a digital asset. The digital asset could be a photo, video or even a tweet and the token verifies its ownership on the online distributed ledger of blockchain. Everyone can see who owns the relevant digital asset in a new form of proof of title. But what is the use case of NFTs? No one knows yet as, until now, they have been catching the world’s attention for the mouth-watering prices they have garnered despite being seemingly of no value, rather for their utilitarian position in the spectrum of financial instruments.

NFTs, however, have been the perfect segue for an innovation that could change how society views equity and investment in human capital. By digitizing an un-digitizable asset in a decentralized way, NFTs seemed to open the eyes for the digitization of something unthinkable: human potential. Yes, that’s right. But before we go into that, I have to share a short story. Around four months ago, I approached a talented software engineer of a Fortune 500 company in order to create something together that would “revolutionize crowdfunding.” A way for individuals to capitalize on their potential and on their marketing prowess to raise capital for whatever they promised to do or provide value with. A real world monetizable “like” button if you will. However, his response made me re-think. He asked me, “which side of history do you want to be?” Well, back then, NFTs were not the new craze that would create a fertile ground for the monetization of human potential and social status. Now, however, others rushed in to fill the market gap that seemed rather apparent.

Enter Bitclout. This new concept was formally coined a couple of weeks ago creating a storm of reactions and has rapidly amassed $160M in market capitalization with rumors suggesting famous VC personality Chamath Palihapitiya backing the project. Bitclout aims to commoditize people by offering coins as a form of stock. Simply put, it is a new form of speculative trading of a new asset named “creator coins.” The value of the coins will fluctuate depending on the demand, as supply is regulated automatically to effectively remove it from the equation. The value of the coin will increase the more people buy it and will be reduced the more people sell it in a linear manner. Every personality that is buzzing on the news will see their price rise (Elon Musk’s coin will always seem a good “investment”).

The most important aspect of this new asset class is that it operates on a distributed ledger on a custom blockchain with its code being open-source. This means that it is fully decentralized with no management or company behind it. While this characteristic excites the imagination of retail investors who are promised a decentralized financial system where they can finally monetize themselves, it also opens Pandora’s box. The creators of Bitclout created coins for the 15,000 biggest Twitter accounts in order to kickstart the “asset catalogue” and capitalize on their brand names to advertise the concept. However, people were quick to notice that this is a lawsuit waiting to happen, as not one of these Twitter personas agreed to be made into a coin yet. The problem is, who is the defendant in this lawsuit? Who is going to be liable for damages on individuals’ misappropriation of name or likeness claims? How will an individual be removed off of the “stock market of people” if they do not wish to be commoditized? What about market manipulation (pump and dumps) and the protective role that the SEC performs in its regulatory capacity for the stock market?

Apart from the legal implications and the market risk that this new vast asset class creates, one must also consider its ethical implications. If we thought social media changed our society, the way we communicate and interact, then the monetization of people will amplify that effect by the hundreds. The difference is that unlike social media, which can be regulated and controlled, this Pandora’s box is already open and would be impossible to close. The future is exciting and lawyers and bankers alike are probably in for a wild ride but one thing that is for sure is that there are no “sides of history” when there is no defendant…

The Changing Role of China’s Corporate Venture Capitalists: From Monopolization to Decentralization

In December 2020, following the last-minute block of Ant Group’s November IPO, which was set to be the largest IPO in world history, China’s market regulator (the State Administration for Market Regulation) opened an antitrust investigation into the e-commerce giant Alibaba. This investigation reflected China’s increased scrutiny of large, deep-pocketed conglomerate corporations. But while the government is targeting conglomerates like Alibaba,  China is also making great efforts to encourage new startup growth. According to a report jointly released by China’s Development Research Center of the State Council (DRC), China’s Ministry of Finance, and the World Bank Group (WBG), the country is aiming to stimulate efficient innovation, boost productivity and build a modern economic system. These efforts to curb conglomerates while encouraging startup innovation will likely have an effect on China-based investors’ domestic and international investment theses and corresponding corporate governance activities, in particular, it will likely have great effects on the role of corporate venture capital in the international startup ecosystem.

According to the Wall Street Journal, investments by Asian VCs represented 40 percent of the record $154 billion in global venture financing in 2017 with Silicon Valley leading the field at 44 percent. It also noted that “U.S. investors now lead less than half of all venture finance, while China’s share is nearly a quarter and growing fast.” Most Chinese VCs are offshoots of China’s tech giants, including Baidu, Alibaba, and Tencent, referred to collectively as BAT. These VC market players are known as corporate venture capitalists (CVCs) – investment groups backed by large corporations. Easily identified, the venture arms of these corporate giants take on their parent company names like Baidu Ventures and Alibaba Entrepreneurs Fund, mirroring that of their American counterparts like Google Ventures (now GV), Intel Ventures, and Microsoft Ventures.

While CVCs invest in startups that traditional VCs also target, their governance structure may not reflect that of traditional VC firms. While traditional VCs report to their limited partners (LPs), CVCs may answer to executive management teams or other company departments. Reporting to a CEO rather than managing partners or LPs gives rise to many different pressures beyond traditional financial returns. That is, when a CVC invests in a startup, many times the startup will then be “invited” to join their company’s unique startup ecosystem, providing them valuable access to the company’s expertise and guidance. Thus, through CVCs’ investment, these giant technology companies can form their own “factions” of small companies domestic and abroad. Once it has joined the “faction,” each startup is only available to their Chinese tech parent’s payment and social media platforms, which hinders their long-term success, limiting them within its parent conglomerates. A significant exception to this “faction” rule is China’s most popular ride-hailing app—Didi Chuxing—which accepts both AliPay (Alibaba) and WeChat pay (Tencent). In fact, Didi Chuxing even expanded its own in-app financial services and is aiming for independence from Alibaba’s Alipay and Tencent’s WeChat Pay. Didi’s long-term success reveals how companies may find success in not being part of a corporate “faction.”

Given that the Chinese government has expressed its interest in breaking up domestic tech giants as well as enthusiasm for cultivating startups (thus promoting innovation), these CVC’s behavioral patterns, particularly the “faction” phenomenon, will also be changed. While nobody can be sure where these Chinese CVCs go, given these CVCs play a huge role in the Asian venture capital ecosystem as well as China’s goal to continue investment in startups, it’s unlikely that they will cease to exist. However, when these tech giants try to “invite” their invested startups to participate in their “clique,” stringent regulatory scrutiny, including antitrust litigation, will likely play a bigger role, leaving room for other investors and other CVCs to contribute to innovation. Thus, no matter the real concerns behind China’s current policy, it at least has one probable effect: to stimulate innovation and prevent the already giant tech companies from becoming supergiant.

Shopify: Amazon’s Antitrust Counterargument?

Last week, the Wall Street Journal published a piece titled With Shopify, Small Businesses Strike Back at Amazon. WSJ Reporter Christopher Mims described Shopify as the emerging “third option” for retailers to use instead of “list[ing] their goods on marketplaces run by giant companies, or sell[ing] to consumers directly, hoping they’ll make more on each transaction despite fewer sales.”

Shopify is a subscription-based service that allows retailers to set up an online store and sell their products. The company’s website describes it as a “commerce platform that offers a way to quickly launch your dream business and start selling to your customers.” It’s possible that you’ve bought products online not realizing that the retailer is using Shopify’s platform. For online merchants, that is part of the appeal: it gives them access to cloud-based e-commerce tools while letting them maintain control of their branding and customer relationships, which is very much in contrast to the experience of selling through Amazon.

As Shopify grows, it has begun competing more directly with Amazon. According to the WSJ, Shopify is building its own network of fulfillment warehouses, intended to rival Amazon’s sprawling logistics operation. Shopify has also taken a few shots at Amazon on Twitter as well, poking fun at how the company treats third-party merchants (“Corporate meme warfare has commenced,” declared Bloomberg columnist Tae Kim in response to the tweet). The competition between the two companies was further highlighted last month when Amazon acquired Selz, a startup that mirrors Shopify’s service by helping merchants set up their own online retail experience.

Ironically, Shopify’s escalating competition with Amazon could be in Amazon’s self-interest in a different domain: Shopify’s growth offers Amazon a strong data point to show antitrust regulators that it isn’t an e-commerce monopoly.

Over the last few years, Amazon has faced scrutiny from antitrust regulators in the US and the EU. Last week, President Biden appointed Columbia Law Professor Lina Khan to the Federal Trade Commission. Khan is best known for being an outspoken critic of Amazon’s alleged market dominance. Her widely circulated 2017 paper “Amazon’s Antitrust Paradox” argued that US antitrust law needs to evolve to better address competitive harms caused by Amazon’s market power. Biden also recently appointed Tim Wu, another antitrust scholar who has been critical of large tech companies, to the White House’s National Economic Council.

While Biden’s appointments indicate that Amazon could be in the regulatory crosshairs of the FTC, Shopify’s accelerating growth during the pandemic raises questions about the strength of Amazon’s alleged monopoly. In 2020, Shopify’s revenue grew 86 percent to $2.9 billion. Although that is only a fraction of Amazon’s online retail revenue (which is still by far the largest), it demonstrates that Amazon’s power in the e-commerce space might not be as durable as critics claim. In October, the House Judiciary Subcommittee on Antitrust released its report on competition in digital markets, which Lina Khan co-authored. The subcommittee’s final report argued that Amazon “has monopoly power over many small- and medium-sized businesses that do not have a viable alternative to Amazon for reaching online consumers.” Shopify – a viable alternative and arguably the biggest threat to Amazon’s power in the online retail space – was only mentioned once in the 450-page report.

As Shopify takes market share from Amazon with its tools now being used by over 500,000 e-commerce businesses in 175 countries, it could be indirectly making an argument that Amazon might not be the dominant monopolist that critics claim it is. Before making any definitive determination on that, we’ll have to wait to see what Amazon does with its newly acquired Selz platform.