Rethinking institutional arbitrage: De jure exposure and de facto enforcement

Abstract

Research Summary: This article disentangles the de jure and de facto dimensions of institutional distances to examine their impact on firms embedded across heterogeneous jurisdictions. I argue that significant transaction costs occur only when the de facto implementations of regulations from both home and foreign jurisdictions become irreconcilable. Using an original dataset of the enforcement actions of the US Foreign Corrupt Practices Act (FCPA), I find that institutional arbitrage becomes infeasible for non-US-based firms with de jure exposure to the FCPA when the de facto judicial constraints over bureaucratic discretion are weak in these firms' home countries targeted by FCPA enforcement. De facto FCPA enforcement makes such US-listed firms more likely to divest from their home markets or voluntarily delist from US stock markets. Managerial Summary: Mangers should consider the divergence or convergence between the de jure and de facto dimensions of institutional distance in evaluating their international business strategies. In analyzing the operational obstacles for engaging in cross-jurisdictional activities, notably institutional arbitrage schemes, managers should realize that such obstacles do not simply arise from contradictions in officially stipulated regulations, but also from whether and the extent to which such de jure contradictions are activated. Assessing the feasibility of corporate political activities and other legally ambiguous nonmarket strategies as risk-mitigation measures thus needs to take into account this distinction. MNEs' global strategies should also recognize the increasingly intertwined national and supranational legal systems and their interactions as sources of operational risks.