Nota Bene Podcast Ep. 157
Analyzing Risks and Opportunities Facing Multinational Companies with Michael P.A. Cohen and Scott Maberry
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Listen to the original podcast released January 18, 2023 here:
Sheppard Mullin's Nota Bene is a horizon-scanning podcast targeted at the C-suite that explores the risks facing multinationals doing business without borders. Multinational businesses have always been affected by major developments in international trade, global risk, and geopolitical shifts. The importance of these issues is increasing every day in light of events such as the U.S.-China trade war, the global response to the war in Ukraine, and the risks posed by rogue state actors such as Iran and North Korea.
In order to provide actionable insights into global law and policy developments, Sheppard Mullin has relaunched Nota Bene, which was in hiatus in 2022. In this very special episode, former host Michael P.A. Cohen offers his reflections and insights as he prepares to retire and hand over the hosting reins to Sheppard Mullin international lawyer Scott Maberry, who also holds the distinction of being Michael's first and favorite Nota Bene guest.
About Michael P.A. Cohen
For more than thirty years, Michael P.A. Cohen has advised multinational businesses in all aspects of their cross-border competition practices and strategies. He's also defended those practices in global government investigations and enforcement actions spanning continents.
As the creative force behind Sheppard Mullin's Nota Bene podcast, Michael hosted all 156 episodes produced from its inception in 2018 through 2021. Already an accomplished artist and poet, he's looking forward to devoting more time to his writing and painting pursuits in retirement.
About J. Scott Maberry
As an international trade partner in Governmental Practice, J. Scott Maberry counsels clients on global risk, international trade, and regulation. He is also a past co-chair of the Diversity and Inclusion Working Group for the Washington D.C. office, serves as its representative on the firm's pro bono committee, and is a founding member of the Sheppard Mullin Organizational Integrity Group.
Scott's practice includes representing clients before the U.S. Department of Treasury Office of Foreign Assets Control (OFAC), the Department of Commerce Bureau of Industry & Security (BIS), the Department of Commerce Import Administration, the Department of Homeland Security (DHS), the Department of State Directorate of Defense Trade Controls (DDTC), the U.S. Department of Justice (DOJ), the International Trade Commission (ITC), and the Committee on Foreign Investment in the U.S. (CFIUS). He also represents clients in federal court and grand jury proceedings, as well as those pursuing negotiations and dispute resolution under the World Trade Organization (WTO), North American Free Trade Agreement (NAFTA) and other multilateral and bilateral agreements.
As a member of the World Economic Forum Expert Network, Scott advises the WEF community in the areas of global risk, international trade, artificial intelligence and values.
Welcome to Sheppard Mullin's Nota Bene, a twice monthly podcast for the C-Suite. Where we tackle current, national and international headlines affecting multinationals doing business without borders. I'm your host, Scott Maberry. Let's get started.
Welcome to episode 157 of the Nota Bene podcast. This is a very special episode. We're announcing some big changes for the podcast. Michael P.A. Cohen, the creator of the podcast, is moving on to bigger and better endeavors. We are going to take Nota Bene into the future with the same focus he created. We're providing C-suite executives of multinational businesses with actionable insights on international law and policy.
This is Michael Cohen coming back to you after about one year hiatus for the show and there's a reason for that, which I'll get to in a minute. But I wanted to pause and thank all of our listeners on this show for following us around the world. Well, let's get back to it.
There was a reason for my hiatus. I took some time and have decided to retire from the practice of law, and I will be pursuing other interests full-time. Mainly I will be taking tender care of my two dwellings on the Atlantic Ocean and Pacific Ocean respectively, doing a lot of painting and poetry and surfing, and moving between those homes in a new 23-foot Airstream trailer called the International Serenity. And I think that says it all.
But I'm here today with the very good news that my favorite guest of all time on the show, my first guest, my 100th episode guest, and if had there be a 200th episode, he would've been my guest for that show too. He was my guest throughout. He is one of the most accomplished international trade attorneys in the United States and throughout the world. And that is, for all of you listeners who may, remember Scott Maberry who is with me today.
I am so thrilled to announce that Scott is not only my guest on episode 157, but he is my guest to at least accept the baton that I will be passing today. Scott Maberry will be the new host of the Nota Bene podcast, and will take that baton forward. And I am so thrilled to not only welcome Scott back to the show today, but to be able to announce his hosting the show going forward and the resurrection of Nota Bene, which reached so many of you around the world so enthusiastically week to week and with so much feedback, which we all appreciate so much.
Scott, I did not, and I'm not going to introduce your full bio. It is available on the Shepherd Mullen website. Scott is a member of the World Economic Forum. He is so accomplished that it would be to repeat myself as I have I think seven to 10 times on the show already to go through all of that. But Scott, I wanted to welcome you back to Nota Bene, and welcome you as the new host forward. How are you?
I'm great. Thank you so much. It's just great to be here with you, and thanks so much for having me. And I really look forward to the chance to talk about the journey that brought you to founding Nota Bene and where you're going forward. The podcast itself has been a big inspiration to me, both in my practice of law and also in my advising clients about international issues. It's really humbling for me to be able to start taking over the hosting of this amazing podcast. So yeah, I'm really excited about it. And what do you think we should cover today? I'd love to hear your origin story on Nota Bene, and I'd like to think about what we're going to do with the podcast going forward.
The entire world trade order completely changed during the course of the show, and that's as good an origin story as any. My own thought behind the podcast was this, we're entering a new era of politics in the United States that really, in all manner shapes or form, departed from an international trade policy and a world trade order that the United States itself had largely structured and formed in a post-World War II world. And as the United States departed from that well-established world trade order rather abruptly, there was chaos, right? That developed in international trade. Your area of expertise, Scott. And as attorneys in involved respectively in international trade and international competition, we both at that time, heard the murmurings in our C-suites well ahead of marketplace reports. Because like everything in the real world, it actually hits multinational businesses way before it hits the newspapers, when it comes to the real bread and butter of doing business around the world. And we decided to start a show on it. And naturally I invited you to be the first guest on that show because it was the very topic I wanted to discuss, the disruption to the sweet suite of multinational businesses.
And that's how we got it together. I have to give somebody who's behind the scenes a lot of credit on this show and that's Michelle O'Driscoll, because I'm not sure whether Michelle came up with the name or whether I came up with a name. I'm sure Michelle has a view on that. And whatever her view is, it's right.
Let's go back to where we started that origin story, world trade disruption and how we can meaningfully communicate and have a dialogue about the issues that matter to multinational businesses around the world trying to do business in these environments. Scott, I asked you to be on the first guest on the show, and this is where I do want to come back to your biographical information. I asked you to be the first guest on a show for a reason. You know were, to me, the most well-informed and thoughtful world trade expert that I would routinely speak to about what I thought were fanatical thoughts at the time. It turned out to be thoughts that may have been more prescient than I realized. And we developed over the show's history.
And I know you probably have an agenda, but I thought it might help our listeners just to start out and refresh them a little bit about how you got to your present expertise, how you got to your present position, where did this passion for world trade come from, and how have you applied it? And I think if we talk about that a little bit, they'll be context in the back that slips in and people understand and we'll have some assurance and confidence that this show is in the right and capable hands going forward. Tell us a little bit about those things, if you don't mind.
Sure. Well, my passion for international law came very early, but my ability to advise people on it comes not necessarily from being smart, as the old saying goes, but from being old. And having been through a lot of things helps you see the way patterns tend to repeat. To directly answer the question, as an undergraduate, I was quite convinced that my future lay in becoming an arms control negotiator. Because at that time, it was during the depths of the Cold War, and my course of study really focused on US Soviet nuclear strategy. And when you think about it really, nuclear strategy is in a way a pinnacle of international relations. It's all about signaling intention ,and all about affecting action on the other side. And so even though the Cold War fell apart shortly thereafter, and my interests broadened out into international relations generally and then to specifically to international business, the same principles apply in the sense that it's all about how the world fits together, geostrategically and what the various parties do to gain and maintain influence in the world.
You just touched on something that is so amazing in the sense that I had hoped I'd have a chance to speak with you someday before I retired about it, and didn't know if I was going to get that chance. Only because the topic I'm about to raise was a thought that surfaced with me the other day as I was taking in the sun, which is my new favorite activity.
And it's this, almost the entire world population lives on a very narrow latitude around the earth. Right? If you draw a band around the earth that captures 90% of the world's population, it's so narrow, it would shock you. It would shock you. Almost everybody lives on just this tiny ribbon that goes around the globe, and there's a natural reason for that. Right? 450,000 years of human survival and existence have led human populations and modern technology too, to a place of habitability.
So tell me, Scott, and this will be I think my last question for the show, and then I'd like you to ask me some if you'd like to. Or we can end whenever you'd like. But my last question is host of this show, and this is my baton passing question for you is this, tell our listeners, if you would, about your own vision for the show forward, what's it going to look like? What's the schedule going to be? What are you going to focus on?
First of all, we're going to try to do some of the same things that you've always done on Nota Bene. I think that the mission, which I've mentioned a couple of times in my own discussions with others about this, has been really compelling to me. That's to provide insights on international legal and policy developments geared to the C-suite of multinational companies with actionable observations that can help our listeners operate in this new world order. We're going to continue that. The idea is we're going to try to help identify risks and opportunities facing these firms and figure out how we can help people understand those things. We're going to continue to focus on international trade and global risk and the effects of geopolitics on international business. I think you'd agree, and this has been part of the whole mission up to now, these issues are increasingly important to global businesses, especially in light of the US China trade war, the global response to the war in Ukraine, the risks posed by rogue state actors like Iran and North Korea. So we'll continue to do that.
We will also continue to do something that you innovated, which I think is extremely useful and interesting. That is quarterly updates, the US legal and legislative update, the Asia update, the Europe update, and the Africa update. We'll do those quarterly. Our format, we're going to be not quite as ambitious as you were. We're not going to do every week, we're going to do every two weeks and we'll probably commence now with this episode in January, 2023. So every couple of weeks we will try to give as keen insights as we possibly can to our C-Suite executive listeners. And what I'd like to do with you before we let you go, first of all is to extract a commitment from you that maybe you'll come back and be a guest on the show from time to time because our conversations have been the most fascinating that I've really ever had. And I want to continue that for our benefit of our listeners.
Sure. I'd always be happy to come back and appear, although I probably a lot less appealing to people as a poet and an artist on your show than as a retired person. But I will tell you and the listeners that I still start every morning listening to the BBC's Global World News, then I match that up against the Economist morning edition, followed by a gut check with the New York Times and Wall Street Journal. And then I listen to Economists Editors Picks every weekend. So I'll try to keep at least a toe in all of this to see the broad swaps, but not being in practice, Scott, certainly takes away a lot of stress, but also a lot of value that I might otherwise add to the conversations.
Well, I'm sure on the former, but not so sure on the latter. I think we'll still have some very interesting discussions. And they may include poetry and surfing, so we'll keep that in mind.
That's good. They're the same thing to me, so.
One thing I want to do before I let you go is have you talk about past episodes. I'd like to have you pick out a few episodes that you liked and what you like about them. But even before getting into that, it'd be interesting to hear in your mind, what makes a Note Bene episode successful? If you were advising, let's say a hypothetical future host of the podcast, what would you want them to know about making great content?
I mean, make something that matters to the business people on the C-suite, right? I mean that was the basis for the show. Lawyers walk around and they talk in lawyer language about lawyer issues. And the show was to overcome that, right? The show was to have, and I think it's the responsibility of the host, right? To sit in the chair of a CFO, a CEO, a COO of a multinational organization. And try to get a feel for the issues that they're facing in a present way. And then pull together content that discusses and creates conversation around those issues. As lawyers, we become specialists in the 21st century, and that specialization really in my own view, creates a blinder around any of us. We really just focus on what we're doing, and that particular world becomes narrower and narrower as the legal field becomes more and more specialized in those areas.
But as an international trade lawyer or international competition lawyer, which was my field, you're really talking to the business on a day-to-day basis, about their strategic visions. And that's a C-suite conversation anytime you're practicing. So you have a different opportunity to hear the client and to experience the client's business. Even corporate lawyers just experience that client's business in the case of a deal, not the strategic sense of the acquisition. Right? I mean, they'll pick up on it, they'll understand it, they'll know it, but they don't have to get it through, right? The FTC or in the United States Department of Justice Antitrust Division, they don't have to have economic arguments for why the deal doesn't substantially lessen competition. Those are the things that hit the core businesses of clients, or in your world, the ITC, and I shouldn't have left that out, Scott, or any of this corresponding world trade organizations around the globe. And the European Union or in Asia and its Ministry of Foreign Commerce.
So that opportunity to relate to the client every day in your practice with respect to the reach of their multinational business, creates both an opportunity, perhaps a responsibility of a host of Nota Bene, to have a larger conversation with those clients and understand where they need more conversation on the air and put together content on a weekly or biweekly basis as the case may be, that addresses those needs. So you have a special place with your clients. In the areas where we practice, you occupy a special seat that is different than most law practices. And it creates this opportunity to serve a business audience differently than many fields of law. So I'd say use that seat wisely and to take your legal goggles off as I know you do, in so much of your practice every day, and bring the world of conversation into that C-suite in a needed basis. It's not so much advice, probably just sharing my own experience with that.
I love that. I think that's one of the things that makes it so compelling for me, and why I've enjoyed listening to it so much over the 156 episodes we've had so far. And to add another point that's very much related, one of the things that's really been inspiring to me is how you've gotten lawyers onto the podcast, and help them express and communicate with the listeners in language that just expresses, first of all, the goals and aspirations of the businesses out there in the world, and also the amazement and wonder at what we are doing out here in the world in business. And one great example of that, we've talked about our episodes together a little bit, but you had an episode back in 2020 with Brian Weimer, prominent satellite and communications lawyer, about space law, and I thought that that episode was interesting and I know you flagged it as one of your favorites. What'd you like about that episode?
Well, first of all, Brian is just great man, because you think law and business and you walk around, and if Brian is talking about these places like Washington DC and Paris, France as headquarters for the space industry. And I'm like, "Well, what is the space industry?" And then to listen to them, explain it and understand the different levels of satellite, all the stuff running around the earth and how it all matters and how much it costs and why there's a fight for it. And these jurisdictions compete internationally, right? To be the preferential choices for where those industries develop. And then who's going to clean up all the junk? And what's going to happen if something goes wrong? And what law even applies to that? And the risk that's at stake, and the money that's at stake.
And how does that even happen? There's this whole world out there that we're all dependent on for 100% of our technology in our lives every day. And no one really controls it. There's no rules around it and it's getting congested. Stuff needs to be sorted up. I loved that episode with Brian because it opened my eyes to this place that is extra territorial from the planet's perspective, where business is going on. It's business going on and outer space with no rules and potential problems that everybody needs to know and sort out and no real method to do it. And I found that just to be massively interesting.
You've just captured the joy and wonder of that episode for me too, because it's just amazing how satellite and telecommunications tech developed, and how Brian's been there with a lot of it. And to think about, even at the time of that episode back in March of 2020, there was a lot in that episode that predicted where we're at right now. You guys talked about CubeSats, you talked about multiple satellites launching on the same vehicle. You talked about this wondrous new technology that a couple of the space billionaires were developing of reusable spacecraft launch vehicles, all of that stuff was just enough ahead of the curve to make it seem almost sci-fi. And have Brian talk about it in ways that were both really insightful and also really approachable. I love that episode.
And you mentioned something that was interesting there to me, Scott, like the ahead of the curve side of the podcast. The podcast has been ahead of the curve. But to define that, what curve? Not ahead of curve to businesses that are experiencing the issues, but ahead of the curve of the conversation about those issues. And for a long time when we first started doing this podcast, I mean it really was a long time, we'd do an episode and then a week or 10 days later you'd hear media discussion about it. And I think it was one of the great things about the podcast is, that media listened to the podcast, business media listened to the podcast, and that was really great and important because it helped our clients raise the visibility and conversation around important issues to multinational businesses organically.
In other words, this wasn't purchased media. The Nota Bene podcast is not even earned media. It's literally a public education show for businesses and for the world of information that's out there. And we played a real role raising those things "ahead of the curve," because we were catching questions and issues as the rubber meets the road for the client's wheels. So I'm sure that will continue, but that was always something that I enjoyed about the show. There was a real-time dynamic to our conversations that was not something other people were discussing.
I love that about it. And in fact, what you've just said about it gave me a new insight into it. You're right, you were ahead of the curve. But the question sometimes is ahead of what curve? And we're talking about issues where real business is starting to get done, real lawyers are having to figure out how to make that business happen. Real companies are starting to put things together, and we are putting it into language that others can start to see and think about as a field of business. And I think that's super interesting. That's a nice segue into another episode you flagged is one of your favorites. And I liked it a lot too. The episode with Mark Sundback who is a prominent energy lawyer talking about seismic changes in renewables and the energy transition.
Yeah. Mark literally, in real time, flagged every single major turn that has happened since. He was on the complete inside of the economics and finances behind renewables. He saw the market move economically to renewables. And not fossil fuel companies being disrupted by that. Fossil fuel companies were leading the capital markets to the renewables. I mean, he saw these trends and made some predictions about it, but those predictions weren't wild speculation. Those predictions were based on information about what industry and business was actually doing for its own futures.
Yeah, that's right. And Mark, gosh, I think that that ability to see the turn as it's occurring, that ability to feel the centrifugal force of a pivot in an industry, man, that is not something young people that just start out practicing can ever. You need so much experience with a business, and a field, and an industry to actually share with them the feeling of being in the cockpit as that industry makes that bank man. And he was right there.
Mark's got that.
And he was right there.
And he's still doing it. I heard him speak a couple weeks ago about carbon capture and green hydrogen. We're going to have to have him back on the show because that part of the transition now is something where he's seeing the future there too as it's unfolding right now. And to have him come on and give his expertise on where that's going will be fantastic. And the other thing that Mark brings to it, as I know you observed in that episode, is an encyclopedic knowledge of the law out there. Because the existing rules for pipelines and rights of way and all that stuff are going to be the new rules for carbon capture and green hydrogen and how firms take advantage of that. It's fascinating, and I can't wait to have him back.
Yeah, no, it'll be super interesting. And Tony Toranto is very well informed in the green hydrogen arena as well, and with one of his clients, Janice Lynn at the Green Hydrogen Coalition. And we did a show with both of them, Scott, that I think marked green hydrogen as something on the front end of the curve in America. But what I took away from that show with Tony and Janice was that America's way behind other places when it comes to green hydrogen, like Germany is way ahead of America when it comes to green hydrogen. And so is one of the South American countries, I think it's Chile, but it may have been a different one.
And after that show, is one of those perspective shifts again, where I went out and did some post-show research and said, "Holy crap man, we were an energy leader for so many years, and now we're going to be struggling to continue that leadership because other countries have more nimble ability to change their infrastructure than America does." In some ways, it's great to be a giant geographically, in other ways it's cumbersome, it's a big shift to turn. Nations that are as small as some of our states can make that turn much more effectively. And I do wonder in our own system whether it will be states that make that turn before federal rules catch up to it, and Mark would be just the right person to address that patchwork.
Yep, he's very good on those. And you're right, the show with Tony Toranto and Janice Lynn, for our listeners, that was 9/21/21, on the international race toward green hydrogen. Also a really great episode. Also really helping people understand what is green hydrogen. And most importantly, the thing I liked about that show was what's green about green hydrogen? And what stands between the current status quo and an environmentally sound way to get to green hydrogen? And one thing I've heard Tony and Mark both talk on, is the use of existing legacy energy infrastructure in the race toward green hydrogen. So there's a lot of interesting stuff at work there, which suggests to me that there'll be probably faster developments in some states than in other states. And you're probably right, that there'll be state developments in parallel with, and even probably before federal level developments on that. So yeah, we'll definitely have to have both Mark and Janice and Tony back on sometime in the near future.
It's the beauty, right? Of the American commercial model. It is still, regardless of what happens on Capitol Hill, and I've always thought there's too much focus on that frankly, because what happens in America happens in the incubators, which is the entire band that we occupy of North America. And those incubators are states and we have 50 laboratories and more territories that have their own organic experiences that give rise to industry and invention.
And what is the beauty of America in that commercial perspective is that the federal system, the constitutional system is literally built to foster that, it's baked in. It's not something that can be tinkered with. It is what the nation is all about. And it will be interesting to see the state laboratories experiment with green hydrogen and other renewables on a forward looking basis, and they are likely right to pull things behind. It should be that way. What's good for one state when it comes to energy may not be good for another state when it comes to energy. And when I hear people say, "Well that state's crazy." Well, you don't live there, man. What works for head state may not work for your state, but doesn't mean that state's crazy and thank God they are, if they are, because that's how inventions get made. They get made by crazy people, because no invention is mainstream. It's anything that matters is by definition crazy. It's because it's disruptive.
And you've got to have both innovative business people figuring that out and running with it. And also people who understand the regulatory regime and the global consequences. And when you put all that together, it's a really powerful mixture.
And people willing to take financial risk and capitalize that invention. And it's another great thing about all parts of the world right now when it comes to the major economies, is that everybody gets that. And there's obviously a lot of structure around those questions when it comes to capitalizing innovation. And we tried to cover that a lot in the show as well. And I think Mark some of those early turns, again toward green investment, and private equity governance rules imposed on industries and companies and so many other things that were part of a cultivation of really a new movement in corporate law.
Yep. That's another nice topic for some future episodes. And when you're talking about the deployment of capital toward new or innovative business models, it reminds me of your episode with Siraj Husain on artificial intelligence back in January of 2021. There's another one where even that amount of time ago, many of the things that we're seeing now, particularly on the widespread adoption of AI within businesses, that was really forward-looking that episode.
Yeah, Siraj and I, I mean that was such an interesting episode, really one of my favorites. Siraj was so much fun to talk to about AI because he had a foot in the actual deployment of the technology that folks were building out for commercial purposes. And those are oftentimes, when it comes to technology, there are two things that lead it, right? Capital markets, whether it's venture funds to private equity to public markets, so capital markets all around, I guess capital markets can be used as a public market term, but I use it to mean capitalization. And then the others, the military, right? Military is still the leading developer of technology, the US military in particular, the leading developer of technology I think ever. And those things are still going on, we just don't know about them, and we can't know about them largely.
But Siraj knew about the commercial side of a lot of deployments in artificial intelligence and had a real pulse on a lot of questions including ethical questions. And he even had a little bit of a pulse on military artificial intelligence. And we got to talk a lot about AI. And what remains fascinating to me about AI from an industry perspective is that, in the western nations, everybody's trying to put rules around AI, how it's walked out, what types of AI you should be putting your money into, and what types of AI we need to put a stop on and not scale up because it's dangerous. And what's funny about that to me is that it implies that you have some ability to control over that in a world that you can't control.
Yeah, we'll try to have him back and talk about artificial intelligence and where it's going. I share your view that it's going to be increasingly important to all areas of business and the pace at which it's being adopted just by almost every area of commerce is increasing all the time. So it's a continuing fascination and a continuing risk, I think, and really, really important to track.
Yeah. I second all of those premonitions, and we'll look forward to listening to your episodes going forward in that area as well as all your episodes, frankly.
Great. Well that might be just a good place to end it. I am really thrilled to be having this opportunity to start the hosting duties for Nota Bene. And I'm really grateful to you for the creation of the podcast and for all of the inspiration that you've provided to me, and for the services you're doing to our listeners. And I'll continue to try to do that for our listeners.
I have no doubt you will. Thanks for the opportunity to pass the baton, sort of all happened as naturally as it could have having done so many episodes together. And tell your listeners now, Scott, may I say thank you and farewell.
Well, and thank you. And it's been wonderful working with you and it's been great to have a chat with you about it.
Great. I'd be failing if I didn't give a plug for my art and poetry at www.mpac.art. Always.
We'll put that in the show description too. That'll be great. All right.
Great being with you.
Michael's Favorite Nota Bene Episodes Mentioned in This Episode:
- Nota Bene Episode 72: Space Law: License, Launch, Finance, Insurance, and Responsible Space Stewardship with Brian Weimer?
- Nota Bene Episode 144: The International Race toward Green Hydrogen with GHC President Janice Lin and Tony Toranto
- Nota Bene Episode 150: Building an AI Risk Management Framework with Siraj Husain
Michael’s paintings and published poetry collections can be found at www.mpac.art.
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