20140509 【cvchen@nccu/aapbs】ethics today, law tomorrow今天倫理,明天法律
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20140509 【CVCHEN@NCCU/AAPBS】Ethics Today, Law Tomorrow今天倫理,明天法律(陳長文@政治大學)TRANSCRIPT
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Ethics Today Law Tomorrow
Dr. C.V. Chen9 May 2014
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1calligraphy by Admiral Liu Ho-chian
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The concept of Datong, or Great Communion, comesfrom the chapter Conveyance of Rites of the Book of Rites, aclassic text of Confucianism.
Datong describes an ideal state of human existence andsociety where
love and cooperation are practiced freely,peace and prosperity are enjoyed by all, andprejudice and war have long been abandoned.
This state is called the World of Great Communion.In the modern context, Datong encompasses political,
economical, technological, and cultural unity.L&L's vision for the World of Great Communion
It is Dr. C.V. Chen's belief that the "Rule of Law" illuminatesthe path to justice and harmony.
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31949Came to Taiwan. Father died in battle
1949Came to Taiwan. Father died in battle
1967Graduatedfrom NTU
1969 LL.M.University of British Columbia.
1970 1972Harvard
LL.M. S.J.D.
1971 Taiwan lost U.N. membership 2009
Cancer
About Me
Married
1944Birth
1963National Taiwan University
1972Returned to TaiwanBegan teaching & private practice.
*Law professor*Private practice*Straits Exchange Foundation
*Red Cross
2012 Received Order of Brilliant Star with Grand Cordon
2000-2012Stepped down as President of R.O.C. Red Cross
Daughter married
2003SD/Fox Incident
1989Received Order of Resplendent Banner with Special Cravat
2004 Mother Passed Away1974 Daughter Born1982 Son Born (severely mentally handicapped)
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Outline
I I Staring into an Abyss : A Story
costing US$100 Million
IIII Ethics Today, Law Tomorrow
and the Day after Tomorrow?
III III Can Ethics(Law) Be Taught?
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US$100 Million13 October 2003
Photo/ Flickr.CC/Ervins Strauhmanishttps://www.flickr.com/photos/ervins_strauhmanis/9544847065/
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Facts San Disk held 127.8 mm shares in its OEM, United
Microelectronics Corporation. L&L was SD's attorney authorized to file investment
applications with TW Govt. SD paid US$83 mm for those shares. US$106 mm was their worth on the market in Sept 2003.
Liu, an assistant, went on unpaid leave on the pretext of the upcoming bar exam.
In October 2003, Liu forged documents to withdraw all shares of SD from brokerage agency, sold the shares , and fled Taiwan on a fake passport.
He took off with US$92 million.Photo/ Flickr.CC/Ervins Strauhmanishttps://www.flickr.com/photos/ervins_strauhmanis/9544847065/
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The AbyssUS$83 million~US$106 million
In 2003Lee and Li was 38 years old Had 14 Partners 500 Staff 12,000 Clients Worldwide
Photo/ Flickr.CC/Ervins Strauhmanishttps://www.flickr.com/photos/ervins_strauhmanis/9544847065/
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The DilemmaThe Dilemma
Bargain with SanDisk? Dodge the
Responsibility?
Will staff abandon
ship?
Photo/ flickr.CC/ Nathan Siemershttps://www.flickr.com/photos/nosha/2980362505/
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The Settlement: US$86 million
US$20 million2003 down payment
US$48 millionOver 4 years L/C
~2007
US$18 million 1 m/year Legal Fees Pro bono
~2021
Photo/ flickr.CC/ SalFalkohttps://www.flickr.com/photos/nosha/2980362505/
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2004~2021 US$1,000,000 /yearTo defrayLegal fees Public interest initiatives Charity work
Photo/ flickr.CC/ SalFalkohttps://www.flickr.com/photos/nosha/2980362505/
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Traumatized L&L Emerged as an Iridescent Pearl
An explanation of the settlement reached between L&L and SD
SD VP & General Counsel:"We do not believe that
the acts of a single rogue employee should alter the
40+year solid reputation of one of the regions premiere
law firms."
Economic Daily News 17 Nov 2003
A satisfactory and productive settlementOne Thanksgiving: SanDisk's TrustOne Lesson: As you sow so shall you reapOne Reflection: No Lee & Li without TrustSupport from Society Sustains Lee & Li One Thanksgiving One Lesson One Reflection
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L&L and SD Honored CSRDespite Grave Predicament
Commercial Times 18 Nov 2003
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Considerations behind Decision Making
Photo/ flickr.CC/ Nathan Siemershttps://www.flickr.com/photos/nosha/2980362505/
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Business School Case Studies Kellogg-HKUST & Ivey-NCCU
How didL&L handleSD Crisis?
How did L&L demonstrate
ethical leadership
How can loyalty and
commitment be fostered?
The role of
corporate culture?
On the Settlement?
Photo. Flickr CC/ PromoMadridhttps://www.flickr.com/photos/promomadrid
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There Was No "I" But "We"A law firm is a group of people
24 Dec 2004
Photo/Flickr,CC/ Pablo Twose Vallshttps://www.flickr.com/photos/twose/887903401/
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We Care
We Excel
We Serve
L&L CORE STRENGTH--OUR PEOPLE!
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The Way The river is tranquil and yet dynamic.
It parts around a boulder and yet erodes it.There is action in inaction.There is force in non-force.
Jeffrey Hsu, L&L
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(ABA Journal / December 2000)
Volunteerism Long-Term Supporter of Red Cross Legal EducationBoth Sides ofTaiwan Strait *including teaching and L&L Moot Court project
1999 L&L Educational Foundationpromotes rule of law education. Created with endowment from L&L
and continues to be funded by theL&L partnership
1965~2003 Pro Bono
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(ABA Journal / December 2000)
2001 L&L honored withPro Bono Law Firm Award
2008 Dr. C.V. Chen honored with
Pro Bono Lawyer Award
1965~2003 Pro Bono
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Excellence in Legal Practice/ KM Judicial Reform Efforts Drafted Bills to Boost
Taiwan's Socioeconomic Growth Named Honest Taxpayer 3 times
(Recognition given out only between 1983~1985)
1965~2003 Excellence & Integrity
( Spring 2005)
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Lesson Learned:Lee & Li Is Founded on Trust
2004 Partnership restructured, pro bono commitment reduced to writing in new partnership agreement.
No less than 2% profit earmarked for
public interest & employee benefits
Embedding Public Interest in L&L's DNA
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2013 L&L Educational Foundation launched the Lee & Li Classroom
a series of lectures on law that is free to the public.
Lesson Learned:Lee & Li Is Founded on Trust
2014 50th AnniversaryPast, Present, & FUTURE
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Lee & Li after Baptism of FireEthics/LawHelp Us
Do the Right Things Right
Law serves to keep us from wrongIs that enough?
Start with legislative intent Cultivate strong FIRM culture Pursue specialization, integrity, and
trust
Ethics pushes us beyond legal minimum
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Ethics & Law: What's the Connection?Harmonization of Laws (Ethics included)
II. Ethics Today, Law Tomorrowand the Day after Tomorrow?
Business, Laws, Ethics
A Reflection on Teaching in Law/Business Schools
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Shang C.1750-C.1040 B.C.
Xia C.2200-C.1750 B.C. Wang Hai (ancestor of founder of Shang Dynasty) 1st businessman in China
Ended Xia Dynasty by outperforming in trade
Sping & Autumn Period Warring States Period
Western Zhou C, 1100-771B.C.
Many famous businessmen: Tse-Gung, Confucius's disciple; Fan Li, officer-turned-business tycoon of the state of Yue; Bai Kuei, a politician and business tycoon of the Warring States Period
From Qin (221-206 B.C.) onwards
Inferiority of businessmen in the social hierarchy of scholars, farmers, craftsmen and businessmen
Late Qing Dyansty to the early Republic Break through of capitalism; rise of commercialism
Establishment of P.R.C.
Surpression of private business Relocation of the Republic Government to Taiwan
Planned economy
Free economy Policy reforms/ liberalization rising social status of businessmen
Rising Social Status of business-men
Business in China (including Mainland China & Taiwan)
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SocialismPlanned Economy
Business
15-16th14-16th Renaissance 16-17th Protestant ReformationRise of the middle class EthicsProtestant Ethics
15-17thAge of Discovery/Maritime explorationnew ocean routes; trade expansion
16-18th Mercantilism 18th Industrial Revolution
ScholarsFarmersCraftsmen Merchants
Clergymen Nobles Knights FreemenPeasants/Serfs
China(including Mainland China & Taiwan)
The West
15th Zheng He's ExpeditionCommerce and Trade Flourished
Scholars become merchantsConfucius's Ethics Rise of
Merchants
GlobalEconomy
18th Qing Dynasty Closed-door policyBan on maritime trade
19th Late Qing Dynasty Rise of commercialism
CapitalismMarket Economy
Merchants
Merchants
Merchants
20-21th
the social hierarchy
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How Rule of Law Came to Be
Ethics alone no longer
adequate
WestSocial issues arose
after industrial revolution
EastAgricultural
Industrial
Photo.Flickr,CC,John Cooper,http://www.flickr.com/photos/atomicshed/311082285/
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Bringing order to human relationships.
Ethics in Chinese
The morals of a culture that often influence laws.
Ethics in English
Ethics
Person +Books/Order= =
Wheel
Human pic, http://www.fantizi5.com/jiaguwen/view/232.htmlBook Photo, from wikipedia.org
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The original form of the Chinese character for law consist of symbols representing water and a mythical unicorn capable of identifying people whose integrity is questionable.
The even surface of a body of water symbolizes fairness, impartiality. .
Law in Chinese
A body of rules of action or conduct prescribed by controlling authority, having binding legal force.
Law as defined by Black's Law Dictionary6th edition
Water =
= get rid of
_Pixelmaniac_,http://www.flickr.com/photos/_pixelmaniac_/4569185046/
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According to Yassa, scouts who returned with bad tidings shall be beheaded.Business operators often dismiss legal advice that is not pleasing to the ear.
Photo/ Flickr.CC/ Ludovic Hirlimannhttps://www.flickr.com/photos/lhirlimann/6076981200/
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Law Cannot and Should Not Be Dismissed in Business.
Individuals have personalities. But under the law, corporations have fictitious personalities and are considered legal persons.
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Ethics
Law
Ethics
6 Functionsof
Enterprises
Production
Marketing
Finance & Investment
Human Resources
R&DInformation Management
Laws on Environmental Protection, Waste Disposal, Pollution, etc.
Laws on Banking, Securities, Accounting, Insurance, Offshore Listing, etc.
Laws on Protection and Confidentiality of Personal / Corporate Data, etc.
Patent Law, Trademark Law, Copyright Law, etc.
Labor Law, Employment Act, etc.
Consumer Protection Law, Fair Trade Law, etc.
Thoughts of the
Management
Establishment and Governance of Enterprises
Company Act, M&A Act, etc.
Sound Knowledge of Domestic Law
Fairness
Clients
Employees
Business partnersNature
CommunitySociety
Business & LawsDomestic
Corporate Ethics
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World-class business: Legal advice should be sought tomake a proper business judgment; otherwise, a misjudgment will cause the company to suffer loss or the management tobear personal liability.
In-house LegalCounsel
Outside Legal Counsel
Providing Legal Consultation Providing Legal Consultation
Providing Legal Consultation
Convergence of legal advice and
business judgment
Duty
Set up support system for regular
information
Set up international
support system for special information
Role
Normal situation Decision-ma
king process
Emergency
Crisis Management
process
Business Judgment
Business Manager/CEO/
Board
Role
Decision-Making Must Include Legal Considerations
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Ethics & Law: What's the Connection?Harmonization of Laws (Ethics included)
II. Ethics Today, Law Tomorrowand the Day after Tomorrow?
Business, Laws, Ethics
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Morality
Norm SystemDynamic Wheel
Ethics & Law: What's the connection?
Photo/Flickr.CC/ Carl Jones(Cut Part)https://www.flickr.com/photos/_belial/4881763904/
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Morality
Ethics
Ethics & Law: What's the connection?
Norm SystemDynamic WheelPhoto/Flickr.CC/ Carl Jones(Cut Part)
https://www.flickr.com/photos/_belial/4881763904/
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Morality
Ethics
Law
Ethics & Law: What's the connection?
Norm SystemDynamic WheelPhoto/Flickr.CC/ Carl Jones(Cut Part)
https://www.flickr.com/photos/_belial/4881763904/
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Law and Ethics are Complementary
and Interdependent
Law Ethics
Law
Ethics
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Law's Inherent InadequacyToday's Law Is Obsolete Tomorrow
Lester Thurow (MIT) New laws are like generals fighting the previous war.
New laws cannot prevent fraud because loopholes in the new laws could be exploited.
Andrew Fastow (Enron) Rules versus Principles: How the ambiguity and complexity of laws and regulations breeds opportunity for problematic decisions.
"Not only follow the rules, but also uphold the principles behind them."
(Photo)Fastow, by Washington PostThurow, from http://web.mit.edu
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Law's Acquired InadequacyThree Branches of Govt. May Fail
Unrestrained Executive
Idle Legislature
Reactive Judiciary
Inherent adequacies can be remedied. But human failings lead to acquired inadequacies.
Those practicing law should study ethics, which includes understanding legislative intent and policy with CONSCIENCE.
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Eternal Wisdom"If the People be led by laws, and uniformity sought to be given them by
punishments, they will try to avoid the punishments, but have no sense of shame."
"If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will behave with the sense of shame, and moreover will become good." Confucius, BC 500.
Photo/ wikimedia.org
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Ethics & Law: What's the Connection?Harmonization of Laws (Ethics included)
II. Ethics Today, Law Tomorrowand the Day after Tomorrow?
Business, Laws, Ethics
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Ethics
Law
Ethics
6 Functionsof
Enterprises
Production
Marketing
Finance & Investment
Human Resources
R&DInformation Management
Laws on Environmental Protection, Waste Disposal, Pollution, etc.
Laws on Banking, Securities, Accounting, Insurance, Offshore Listing, etc.
Laws on Protection and Confidentiality of Personal / Corporate Data, etc.
Patent Law, Trademark Law, Copyright Law, etc.
Labor Law, Employment Act, etc.
Consumer Protection Law, Fair Trade Law, etc.
Thoughts of the
Management
Establishment and Governance of Enterprises
Company Act, M&A Act, etc.
Sound Knowledge of Domestic Law
Fairness
Clients
Employees
Business
partners
Nature
Community
Society
Business & LawsDomestic
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Business & LawsTransnational
An enterprise should have sound knowledge of the domestic laws of a country when doing business in that country, and if applicable, have knowledge of transnational law.
Think globally and act locally - understanding the regulations related to corporate governance
and the 6 major functions of business management of the country concerned.
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Space Axis: Accelerating Globalization
Ethics Today, Law Tomorrow
Ethics
Law
Ethics
Time Axis: Ethics Becoming Law
Business & Law
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Globalization SpursHarmonization of Law
Post-WW IIInstitutionalized multilateral cooperation regimes Multilateral covenantsUniversal values in form of Law (ethics included)
EthicsLAW
Ethics
Law
Ethics
EthicsLAW
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Developed NationsRule of Law Taken Root
Developing NationsImmature Rule of Law
Incompatibility in Transnational Law Setting
Pic,by(Tony Auth)http://creartivism.com/cartoons-about-nike-sweatshops/#2
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Example 1Code of Ethics
of Multinational Corporations
Market EconomyFairnessAnticorruption
WorkerConsumers
AirWater
Competition People Environment
Respect for competition, as a crucial instrument for the development of the economic system.
PRADA's Code of Ethics: The Value of . . .
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Example 2Labor Is Not a Commodity
U.N. ILOCovenants
Labor-Related Legislation
Child Labor
L&L Practice 1998-2014
Slave Labor
Labor Law
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Example 3Fair Competition Laws
Fairness: Core of corporate ethics19th century U.S.Antitrust Act End of 20th century Taiwan: Fair Trade Act(2009 Case) Asia LCD Price-Fixing
Prevent inappropriate concerted
action to fix prices
Antitrust Act
Impact on other nations'
legislation
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Ethics1976 Lockheed Corporation
Ethics1976 Lockheed Corporation
Law1977 U.S. FCPA
Law1977 U.S. FCPA
Transnational Impact1988 OECD Members
Transnational Impact1988 OECD Members
Global Harmonization2003U.N. Convention against Corruption
Global Harmonization2003U.N. Convention against Corruption
Example 4 Foreign Corrupt Practices Act
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Example 5Environmental Protection
Environmental Protection
Carbon Trading
Kyoto Protocol
RoHS
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Corporate Social Responsibility
LawObligationsSanctions
EthicsSocial Responsibility No Sanctions (Media/consumers/NGOs)
Non-binding Today, May Be Binding Tomorrow
Breach of ethics may trigger penalties in law
Through a free press, the people see everywhere.
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The Day after Tomorrow
Ethics ? Law
An Inconvenient Truth . . . or
Convenient Fiction?Photo, Flickr, CC, Patrick Hoeslyhttps://www.flickr.com/photos/zooboing/5426098861/
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Ethics Law
An Inconvenient Truth . . . or
Key to Sustainable Development?
E
L
EL
E
L
Photo, Flickr, CC, Patrick Hoeslyhttps://www.flickr.com/photos/zooboing/5426098861/
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Wheel in Motion!
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2006.Set-Oct
Can Ethics Be Taught?Baker Foundation Professor
Harvard Business School
III
Students have a strong sense of positive values, but have not yet had an opportunity to apply those values in an organization.
Allen S. Grossman, LCA faculty (Leadership and Corporate Accountability, Harvard Business School)
Thomas R. Piper
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12 May 2007 Many agreed with one commentator that the only way
to solve the ethical problems of corporate America was tofire everyone under 35 with an MBA.
Because they were not taught business ethics.
As business schools startto teach more ethics andpractical skills, enrolmentsare climbing again.
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April 30, 2014
Schools Try Philosophy to Get B-School Students
Thinking Beyond the Bottom Line
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. . . But People Never Learn 2001 Enron 2002 WorldCom 2005 AIG Inflated assets
American International Group 2008
Siemens AG (800 mm) Foreign Corruption Bernie Madoff Ponzi scheme Three Deer Toxic baby milk
2011 IBM, GlaxoSmithKline . . . Foreign Corruption 2014 AVON . . . Foreign Corruption
What next?
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SUMMARYObservation 1
Seeing Ethics and Lawin a Different Light
"Ethics Today, Law Tomorrow""Ethics Today, Law Tomorrow"the Day after Tomorrow
"Ethics Law" the Day after Tomorrow
"Ethics Law"
Law Requires Ethics at Its
Core to Operate
Law Requires Ethics at Its
Core to Operate
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Connect Universal values need to be backed by law. Harmonizing ethics into law to produce "universal
values in form of law."
Integrate
Interdisciplinary cooperation (theology, science, medicine, business management, etc.)
Businesspeople have greatly elevated their social stature.
Lawyers played an instrumental role.
Educate
Ethics and law, in equal measure, need to be taught and learned.
The wheel: Conscience is the hub, ethics are the spokes, and law is the rim.
Observation 2Harmonization of
Transnational Laws
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World-class business: Legal advice should be sought to make a proper business judgment; otherwise, a misjudgment will cause the company to suffer loss or the management to bear personal liability.
In-house Legal Counsel
Outside Legal Counsel
Providing Legal Consultation
Providing Legal Consultation
Providing Legal Consultation
Convergence of legal advice and business
judgment
Duty
Set up support system for regular
information
Set up international
support system for special information
Role
Normal situation Decision-making
process
EmergencyCrisis
Managementprocess
Business Judgment
Business Manager/CEO/
Board
Role
Observation 3 An Inconvenient Truth May Be the Key to
Sustainable Development
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What Is a World-Class Business?
Chaos & Disasters
Benchmark of Enterprise Value
Separation
Utility
Convergence
New Model of World-Class Business
Enhanced by Law
Enhanced by Self-discipline
Consumer Consciousness
Profit
Utility Profit
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Ethics Law Modern Way to Great Communion?