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Going Global Responsibly: Practical Legal
            Considerations

                       Michelle J. Rozovics
             Managing Partner, Rozovics & Crawford LLP
                  263 King Street, Crystal Lake, IL 60014
                815-479-9733 mrozovics@rozovicslaw.com


        Comprehensive Legal Advice
          for Growing Businesses
          www.RozovicsLaw.com
Summary
- Goods bought by U.S. companies from abroad, or sold by
  U.S. companies to foreign individuals or entities are
  subjec to a myriad of laws, regulations and restrictions
   - Like everything else, advance planning can save you thousands
     of dollars and many headaches in your business deals
- Many roles are assumed by non-legal professionals
   -   Business Managers
   -   Bankers
   -   Accountants
   -   Insurance agents
   -   Trade specialists, eg freight forwarder, foreign sales agents, foreign distributors,
       export trading companies, export management companies

                                    www.RozovicsLaw.com

                     Comprehensive Legal Advice For Growing Businesses
Summary
- Role of legal counsel is to determine what laws apply -
  both here and abroad
   -   How can compliance with these laws be achieved?
   -   Who is responsible for achieving compliance?
   -   How will risk be allocated for non-compliance?
   -   How can enforcement of non-compliance be ensured?


- Clearly the QUESTIONS are similar to those of a domestic sales
  contract
- The ANSWERS, however, require clients and their legal counsel to
  implement a completely different way of approaching the
  transaction

                                 www.RozovicsLaw.com

                    Comprehensive Legal Advice For Growing Businesses
What Legal Resources Apply to Cross-Border
                     Contracts
Country-Specific Laws
•   National/domestic laws which may apply to the substantive law of the contract, or
    the remedies sought
     – In U.S., UCC Article 2
     – In foreign state, applicable civil code, case law, etc.
    •    This is called “localizing” a contract – making sure it does not violate the local
         laws of the country that the performance will take place in.
•   Your initial research about the law of the country you are doing business with can
    be performed through English language resources; however, any opinions regarding
    substance of foreign law must be obtained through local counsel
•   Be particularly careful – merely choosing U.S. law to apply to a contract does not
    mean that no foreign laws apply; they may still prohibit what the parties are trying
    to do (eg in Germany, no private contract can prevail over public civil code,
    including tariffs and nontariff barriers)

                                           www.RozovicsLaw.com

                          Comprehensive Legal Advice For Growing Businesses
Some Resources to Consider When Working With
                Cross-Border Transactions
•   Conventions and Treaties, eg United Nations Convention on Contracts for the International Sale of
    Goods
•   Soft Laws, eg International Institute for the Unification of Private Law (UNIDROIT) and Principles of
    International Commercial Contracts
•   Customary International Business Laws, eg International Chamber of Commerce Uniform Customs and
    Practices for Documentary Credits addressing Letters of Credit
•   International Commercial Arbitration Decisions, which are based on the application of international
    commercial law, eg International Centre for Dispute Resolution (ICDR), London Court of International
    Arbitration (LCIA), China International Economic and Trade Arbitration Commission (CIETAC)
•   Doing Business Guides (as secondary resources to determine application of treaties, laws and other
    country conditions affecting trade)
•   International Organizations (United Nations, World Bank)
•   Government Agencies (export.gov, buyusa.gov)




                                               www.RozovicsLaw.com

                               Comprehensive Legal Advice For Growing Businesses
Commonly Overlooked Aspects of International
                   Contracts

• THERE IS NO SUCH THING AS A BOILERPLATE INTERNATIONAL CONTRACT!!
   Everything will change depending on your parties, your location, your risk,
      and what it is you are most afraid of going wrong with this transaction.
• Start with the Choice of Law – the content of the contract will be dependent
  on this.
• Acts of God Provisions – can be very sensitive depending on beliefs
• Force Majeure clauses - Don’t think these things will never happen.
  Allocating risk is very important in international contracts (e.g.,
  foreseeability vs. unforeseeability, impossibility of performance vs. increased
  cost and complete excuse of performance vs. delayed performance
  required.)
• Severability Clauses - Determine and define “essential” provisions.
• International Arbitration – Benefits and drawbacks of ADR in international
  transactions; special considerations with government parties; neutrality of
  venue and arbitrators significant considerations.
Commonly Overlooked Aspects of International
                     Contracts
•   Currency (do NOT assume USD; consider exchange rates and convertibility of
    currency)
•   Payment (cash in advance/wire transfer; documentary letters of credit;
    documentary collection procedures; drafts or bills of exchange; credit)
•   Official Language (do NOT assume English)
•   Designated Holidays (very significant for computation of business days and notice
    provisions)
•   Effects of customs duties and tariffs
•   Export and other necessary international transaction authorizations from pertinent
    governments
    » Don‟t forget incorporating an Addendum to prevent violation of Foreign
        Corrupt Practices Act if someone is your agent!!!!
•   Cultural/Business attitudes and practices, particularly at signings and closings
•   Time Zones
Commonly Overlooked Aspects of International
                      Contracts
• U.S. Tax rules: IRC; Treas. Regs; IRS rulings; cases; Federal excise taxes; State and
  local income, sales & franchise tax rules

• Foreign Income Tax rules: national and provincial taxes & exemptions; “in lieu of”
  income tax rules; withholding tax rules; VAT or sales taxes; caution about
  “permanent establishment” rules

• U.S. Double Taxation Treaties: Treaties with most industrialized countries; define
  scope of each country’s tax rules for cross-border transactions; establish
  withholding rules; establish procedures to resolve conflicts between tax
  authorities

• EU Directives: Most favored country provisions; Arbitration of transfer pricing
  disputes
Commonly Overlooked Aspects of International
       Contracts – Intellectual Property
BE VERY CAREFUL – These treaties do not give you international protection merely if you
   have a U.S. registration. They are a vehicle to give you priority filing, and streamlined
   filing, in other countries. Understand these rights thoroughly BEFORE YOU STEP A TOE
   OUTSIDE THE U.S. – OR IT MAY BE TOO LATE AND YOUR PROTECTION MAY BE LOST!!
Patents
– International protection under Paris Convention & Patent Treaties (PCT)
Copyrights
– International protection under Berne Union & Universal Copyright Convention
Trademarks
– International protection - Paris Convention, Madrid Agreement
Trade Secrets
– No international convention
• Trade secrets should be listed clearly in a contract; or, an agreement can state that trade
   secrets must be kept secret, and subsequent correspondence containing such secrets can
   be marked as „confidential‟.
• U.S. Practical Tip – for small and mid-size companies, know-how and trade secrets can
   be their most valuable assets. These can and should be protected.
Intellectual Property
• WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
   – • “National Treatment” – signatories must treat IP rights of other WTO
     members no less favorably than their own
   – • “Most-Favored Nation Treatment” – any IP right granted to party of another
     WTO member must be granted to all
   – • Enforcement by host nation courts
• World Intellectual Property Organization (WIPO) UN agency established in 1967
   – Led to adoption of Patent Law Treaty
   – Joint initiative with TRIPS to assist developing countries comply with TRIPS
     commitments




                                  www.RozovicsLaw.com

                     Comprehensive Legal Advice For Growing Businesses
Intellectual Property Provisions

• Protection varies widely, depending on the jurisdiction
U.S. Practical Tip:        Keep in mind that if you do not create and properly register
   your IP in the U.S., you will have nothing to protect abroad. Take the time here first
   to properly register TM, Copyrights and Patents. Understand how to protect trade
   secrets, and have processes in place to guard them.
    – If your local agent needs to promote, advertise or manufacture your products,
       they are going to need a Trademark and Patent License from you.
         • You can‟t grant them a license abroad if you don‟t have registration in the U.S.
         • You can‟t grant them a license abroad if you don‟t have registration in the foreign country.
         • You need to do your registrations properly abroad – and don‟t wait or a foreign agent or
           competitor may register them for themselves.
    – You should have provisions in your contract that makes the sourcing agent
      responsible for policing your rights
         • At a minimum, to alert you if they become aware of any incidents of infringement
• Even though a contract may state patents and trademarks are the property of the U.S.
  purchaser, this may not be a enforceable argument
Intellectual Property Provisions
So What Can You Do To Protect Your Intellectual Property Abroad?
                          Always Remember -- NNN
  Non Disclosure Agreements – in addition to normal NDA terms, you also need to prevent
    internal disclosure within the contracting party‟s network of subsidiaries and subcontractors
                 (disclosures to entirely unrelated third parties is much less of a risk)

 Non-use Agreements need to prevent “copycat” manufacturing, eg the Chinese party uses the
  U.S. company‟s product design to create a same/similar product which directly competes with
                     the U.S. company (produced under a Chinese trademark)
This is especially important for products that are not covered by patent or other IP registrations.

   Non Circumvention Agreements -- prevents the foreign party from approaching the U.S.
     company‟s current or future clients, saying they are the company making the product and
                soliciting them directly, eventually cutting out the U.S. business

Combine the above contractual protection with the appropriate international and foreign national
   filings to protect your patents, trademarks and copyrights – this is our “belt and suspenders”
                                         method of protection.
Choice of Law
Most, but not all, countries’ courts will honor a contractual provision specifying governing
  law agreed upon by parties.

Parties may choose from:
• Law of a particular country/state
• General principles of law
• International law

The choice of law may apply to the entire contract or to parts of contract.

Choice of law provisions cannot be invoked to defeat a choice of forum stipulation.
The law chosen will incorporate the state’s arbitration laws unless the parties specify
   otherwise.

This is probably the most important provision in the contract because every provision is
   impacted by its choice. Know and understand the applicable law BEFORE negotiations
   begin.
                                          www.RozovicsLaw.com

                            Comprehensive Legal Advice For Growing Businesses
Key Issues Regarding Choice of Law
         KEY CONSIDERATIONS IN MAKING A CHOICE OF LAW

1.   What are the potential areas of conflict which you might cause?
2.   What are the potential areas of conflict which you fear the other party might cause?
3.   Which laws are most favorable to you, in either preventing you from being found
     in breach (on #1) or finding a breach by the other party (on #2)?
4.   What kind of remedies might you, as the buyer, need most in the event 1. or 2.
     occurs?
5.   What does the foreign country, Illinois, the U.N. Convention on the International
     Sale of Goods, and any other potential governing laws say about these topics?
6.   Which one is best for your purposes? Will it matter?
Key Issues Regarding Choice of Law

U.S. Choice of Law
   –     Complicated body of law, varies between jurisdictions (individual states and federal);
         however, you are free to choose own governing law. Suggest do so “without regard to
         conflict of laws principles.”

   –     Note that the Convention on the International Sale of Goods will preempt the UCC when it
         is applicable, because it is a self-executing treaty with the preemptive force of federal law.

   –     U.S. jurisprudence is clear that the only way to truly get around the CISG is to explicitly
         disclaim it in a contract
       •      “PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS
              FOR THE INTERNATIONAL SALE OF GOODS (UN CONVENTION), THE PARTIES AGREE
              THAT THE UN CONVENTION SHALL NOT APPLY TO THIS AGREEMENT.”




                                           www.RozovicsLaw.com

                            Comprehensive Legal Advice For Growing Businesses
United Nations Convention on Contracts for the
            International Sale of Goods
• CISG (UN Convention on Contracts for the International Sale of Goods) was
  an international response to calls to standardize country differences in
  contract law, similar to Article 2 of the UCC’s standardization across the 50
  states (with some retained individual state variation)
   – negotiated in 1980 became effective in 1988
   – 74 countries have ratified; there are some significant exceptions to
      industrialized countries
• For certain international sales contracts, and international convention,
   the CISG will determine the legal interpretation and implementation of
   the contract, even if it is an oral contract, UNLESS the parties explicitly
   make its terms INAPPLICABLE to the contract.
    – It is noteworthy that many important industrial, developed and trading
       nations are NOT parties to the CISG, including Japan and the United
       Kingdom.
Applicability of CISG

• Commercial sale of goods
   – Between parties whose places of business are in different countries
   – Unless the parties opt out under Article 6 of the Convention
• The places of business are in countries that have ratified the
  CISG
   – You should always look at reservations and declarations of the country
     where the contracting party resides, as it limits applicability
• As self-executing treaty law, it takes preeminence over state
  laws and equal to federal laws in U.S.
• Parties may exclude its application, or any particular parts
  thereof.

                               www.RozovicsLaw.com

                  Comprehensive Legal Advice For Growing Businesses
Transactions Excluded from the CISG
•   Consumer goods
•   Auction
•   Stocks
•   Vessels, aircraft, ships
•   Contracts predominantly for labor or services
•   No product liability for death or personal injury




                                www.RozovicsLaw.com

                   Comprehensive Legal Advice For Growing Businesses
Differences Between UCC and CISG

• The CISG's rules closely follow Article 2 of the Uniform Commercial
  Code ("UCC"), and therefore U.S. practitioners will be familiar with
  most of its terms and rules.
• However, several important distinctions between the UCC and the
  CISG should be highlighted. This can help practitioners determine
  whether they should select CISG, or disclaim CISG when drafting a
  contract, or if they should argue about this issue during litigation.




                                   www.RozovicsLaw.com

                      Comprehensive Legal Advice For Growing Businesses
UCC v. CISG – Key Areas of Comparison

•   Writing
•   Parole evidence
•   Custom practice and trade usage
•   Battle of the forms
•   Disclaiming implied warranties
•   Remedies for breach
•   Specific performance




                                 www.RozovicsLaw.com

                    Comprehensive Legal Advice For Growing Businesses
Must Contract be in Writing?
 • UCC: contracts for the sale        • CISG: need not be in writing
   of goods $500 or more must           ( but some countries, eg
   be in writing to be                  Russia, have elected writing
   enforceable                          requirement)
    – However, there are
       many exceptions



• You CAN verbally commit under the CISG, unless the country has a
  reservation on this issue. If that is important to you, you may want
  the CISG to apply instead of a knee-jerk reaction to apply U.S. law. If
  you want no part of a verbal commitment, you need the disclaimer of
  the CISG to be clear.
Parole Evidence
• UCC: If contract is final              • CISG: Court may
  written expression,                      consider all relevant
  then parole evidence is                  circumstances.
  not admissible to
  contradict
   – Only resort to parole
     evidence if contract
     terms ambiguous
  •Are you a businessperson with horrible recordkeeping? Someone whose
  obligations are likely to be on a cocktail napkin, a half a dozen emails, and
  a couple of conversations? Then you may be someone who likes to apply
  the CISG instead of the UCC, if your goal is to enforce an obligation of
  another party.
                                                                                  22
Custom Practice and Trade Usage

   • UCC: Allow past                     • CISG: limited to those
     practice and industry                 which parties agree to or
                                           past dealings or those
     practice to fill in the
                                           usages that the parties
     gaps.                                 ought to have known are
                                           observed in trade or
                                           industry
•Are you always saying this jerk should have known that we in (fill in
the blank industry) do not do (fill in the blank activity that you find
offensive). If so, you are likely to prefer a choice of UCC over the
CISG, and will need to disclaim application of the CISG to your sale
of goods contract.
                                                                          23
Battle of the Forms
UCC: written confirmation                        CISG:Acceptance
   is acceptance even                                 containing new terms
   though additional            Are you               that do not materially
   terms unless                 constantly            alter becomes part of
   acceptance is                proposing             the contract unless
   conditional on assent        changes to            there is a prompt
Special rules for               the purchase          objection
   merchants: new terms         order terms      If the terms materially alter
   become part of               that others           then it is rejection of
   contract unless              give you?             the offer and a
     – materially alter         Are you               counteroffer (not a
         terms, or                                    contract without the
                                afraid this
     – notifies of                                    new terms)
                                might kill the
         objection within                              – Include such things
                                deal? Then
         reasonable time, or                               as arbitration
                                UCC is your                clauses, other
     – purchase order           body of law,
         expressly limited to                              terms significantly
                                and CISG                   changing parties’
         terms in order
                                should be                  obligations
                                disclaimed
                                                                                 24
Avoidance
• UCC: perfect tender               • CISG: buyer can avoid
  rule (performance must              only if fundamental
  match specifics of                  breach
  contract perfectly)               • Buyer need not take
                                      delivery - avoid the
                                      contract




                       www.RozovicsLaw.com

          Comprehensive Legal Advice For Growing Businesses
                                                              25
Remedies

Specific Performance

• more prevalent internationally

• Under the UCC - only allowed where money damages are inadequate (eg
  if goods are unique)

• Under the CISG - allowed without conditions

    – Based on the civil law traditions
    – Exemption for countries that do not have such a provision under their own
      law




                             www.RozovicsLaw.com

                Comprehensive Legal Advice For Growing Businesses
Liquidated Damages



• Easily allowed under international laws
• UCC less receptive




                          www.RozovicsLaw.com

             Comprehensive Legal Advice For Growing Businesses
Excuses for Performance
•   Impossibility - supervening illegality
•   Frustration of purpose (rare)
•   Commercial impracticability
•   CISG - impediments beyond control exemption
•   Force majeure: unforeseen events beyond control of
    parties, act of God



                            www.RozovicsLaw.com

               Comprehensive Legal Advice For Growing Businesses   28
Forum Selection Clauses
• Forum Selection is different from Choice of Law!!!!
   – Domestic courts of one of the parties vs. a neutral court (country/state).
   – Foreign parties prefer to avoid US courts when possible.
   – US parties should recognize that foreign jurisdictions have substantially
      different procedures.
• Disputes should be resolved fairly, quickly, economically and without disrupting the
  business relationship.
   – Courts v. Arbitration
   – Mediation is encouraged – most international disputes are resolved by
      negotiation amongst the parties




                                    www.RozovicsLaw.com

                       Comprehensive Legal Advice For Growing Businesses
International Dispute Resolution

• International business transactions vs domestic transactions
   – • different nationalities;
   – • different cultures and methods of doing business;
   – • different commercial and legal systems.




                                    www.RozovicsLaw.com

                       Comprehensive Legal Advice For Growing Businesses
Arbitration
•   Arbitration allows parties to resolve disputes fairly, quickly and economically.
•   • Institutional vs. ad hoc
•   • Scope of arbitration
•   May also be bilateral treaties between U.S. and country in question
•   New York Convention- incorporated in the Federal Arbitration Act at 9 U.S.C. §§
    201-208 (signatory states - US and all major commercial countries).
     – The purpose of the New York Convention is to encourage the recognition and
        enforcement of commercial arbitration agreements in international contracts
        and to unify the standards by which such agreements are observed and the
        awards rendered are enforced by the signatory states.
     – An arbitration award is final and its enforcement is reliable.
     – A judicial proceeding is necessary to enforce an arbitration award.


                                       www.RozovicsLaw.com

                          Comprehensive Legal Advice For Growing Businesses
Enforcing Foreign Judgments
• Enforcement of Judgments and Arbitral Awards
• American courts historically have recognized and enforced foreign judgments
• Foreign judgments may be enforced if:
   – There is a final judgment;
   – The foreign court had subject matter jurisdiction;
   – Proper and timely notice;
   – Defendant had opportunity to present a defense;
   – Regular proceedings and impartial tribunal.
• But – enforcement of U.S. judgments in foreign courts is not certain
   – US creditors face burdens and uncertainties



                                  www.RozovicsLaw.com

                     Comprehensive Legal Advice For Growing Businesses
Overview of Export Administration
                   Regulations
- Code of Federal Regulations, 15 CFR 730-774
   - www.bis.doc.gov
   - www.access.gpo.gov/bis/ear/eardata.html
- Bureau of Industry and Security is part of the U.S.
  Government responsible for implementing and enforcing
  laws which regulate the export and re-export of most
  commercial items.




                              www.RozovicsLaw.com

                 Comprehensive Legal Advice For Growing Businesses
Questions to Ask Yourself Before Every
                    Shipment
- What is my item (what is the Export Control
  Classification Number (ECCN))?
- Where is it going?
- Who will receive it (keep in mind that a release to a
  foreign national within the U.S. Borders can still be
  considered a « deemed export » and subject to
  regulations)?
- What will be the end use?
Your answers will determine whether you need an Export
  license or license exception
                           www.RozovicsLaw.com

              Comprehensive Legal Advice For Growing Businesses
General Prohibitions 1 – 3
                 List Based, Part 736
- You may not without an Export License or License
  exception:
   - Export or re-export controlled items to listed countries
   - Re-export foreign made items incorporating more than de
     minimis amount of controlled U.S. Content (eg software or
     technology)
   - Re-export foreoign produced direct product of U.S. Technology
     and software
- There are License Exceptions in Part 740 that supersede
  these prohibitions.

                             www.RozovicsLaw.com

                Comprehensive Legal Advice For Growing Businesses
General Prohibitions 4-10
                     Part 736.2(b)
-   Denial Orders
-   Knowledge of end use and end user controls
-   Embargoed Countries
-   U.S. Person support of proliferation
-   Transit through certain countries
-   Terms or conditions of licenses
-   Knowledge of a violation

License exceptions under Part 740 are generally not
  available for these General Prohibitions.
                             www.RozovicsLaw.com

                Comprehensive Legal Advice For Growing Businesses
License Exceptions
- An authorization that allows for export or re-export of
  items requiring a license under certain stated conditions:
   - Cannot be used:
      -   When authorization has been suspended or revoked
      -   Crime control items tomost destinations
      -   Most missile technology control items
      -   Embargoed destinations




                                www.RozovicsLaw.com

                   Comprehensive Legal Advice For Growing Businesses
License Exceptions
- Country Group B
- Civil End Users (non-military)
- Limited Value Shipments (splitting orders not allowed)
- Technology and Software Related (written assurance from
  consignee required)
- Temporary Imports, exports and Re-exports
- Service & Replacement of Parts and Equipment
- Technology & Software Unrestricted


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               Comprehensive Legal Advice For Growing Businesses
Embargoed and Sanctioned Countries
-   Iran
-   Cuba
-   Syria
-   North Korea
-   Sudan




                               www.RozovicsLaw.com

                  Comprehensive Legal Advice For Growing Businesses
Foreign Corrupt Practices Act
- Anti-Bribery Statute that has extra-territorial application
- Prohibits U.S. Company, individual or foreign subsidiary
  from
   - Offering or authorizing payment of money or anything of value
      - Stock, entertainment, gifts, discounts on products or services not
        readily available to the public, Charitable donations, offers of
        employment, assumption or forgiveness of a debt, travel expenses,
        personal favors
   - Knowing that some or all of the payment will go, directly
     or indirectly to a foreign official
      - Either because of direct knowledge or lack of due diligence in
        investigating the issue
                              www.RozovicsLaw.com

                 Comprehensive Legal Advice For Growing Businesses
FCPA (continued)
-   For the purpose of influencing any official act or decision
-   To obtain or retain business
-   Directly or indirectly (ie through an agent or intermediary)
-   With a corrupt intent or improper motive
-   To a foreign official, political party or candidate

FCPA has serious civil and criminal liability, both for
  companies that violate it and for officers of the company
  that violate it. Its reach is NOT limited to publicly traded
  companies, and the enforcement trend has been towards
  smaller private companies.www.RozovicsLaw.com

                 Comprehensive Legal Advice For Growing Businesses
FCPA
- Note: small payments which are considered necessary to
  obtain routine government action (so-called « grease
  payments »), such as processing permits or visas or
  inspections, are still potential violators of FCPA if they
  are not accurately reported and documented.
   - Other country‟s laws (UK, Germany, Italy) do not have
     exceptions for grease payments, so be aware of other laws where
     your company is subject to laws.


License exceptions under Part 740 are generally not
  available for these General Prohibitions.
                              www.RozovicsLaw.com

                 Comprehensive Legal Advice For Growing Businesses
FCPA (cont’d)
- Know your vendors
   - Check www.bis.doc.gov to see if they have been placed on a
     debarred list or are denied persons


- Need a Compliance Program in Place
   - Ensure proper written procedure is in place for vetting
     contractors, vendors, agents, distributors, suppliers
   - Make it clear that no foreign parties you do business with can act
     in a manner to violate the FCPA, and ensure your employees and
     all foreign agents who can cause liability for you have attested to
     their awareness of your policies and compliance with same.

                               www.RozovicsLaw.com

                  Comprehensive Legal Advice For Growing Businesses
Question & Answer Session
        .       .         .
Thank you for your attention


                        Michelle Rozovics
            Managing Partner, Rozovics & Crawford LLP
                  mrozovics@rozovicslaw.com
                      Phone: 815-479-9733
                       Crystal Lake, Illinois


                www.RozovicsLaw.com

   Comprehensive Legal Advice For Growing Businesses

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Practical Guide to Legal Considerations for Global Business Expansion

  • 1. Going Global Responsibly: Practical Legal Considerations Michelle J. Rozovics Managing Partner, Rozovics & Crawford LLP 263 King Street, Crystal Lake, IL 60014 815-479-9733 mrozovics@rozovicslaw.com Comprehensive Legal Advice for Growing Businesses www.RozovicsLaw.com
  • 2. Summary - Goods bought by U.S. companies from abroad, or sold by U.S. companies to foreign individuals or entities are subjec to a myriad of laws, regulations and restrictions - Like everything else, advance planning can save you thousands of dollars and many headaches in your business deals - Many roles are assumed by non-legal professionals - Business Managers - Bankers - Accountants - Insurance agents - Trade specialists, eg freight forwarder, foreign sales agents, foreign distributors, export trading companies, export management companies www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 3. Summary - Role of legal counsel is to determine what laws apply - both here and abroad - How can compliance with these laws be achieved? - Who is responsible for achieving compliance? - How will risk be allocated for non-compliance? - How can enforcement of non-compliance be ensured? - Clearly the QUESTIONS are similar to those of a domestic sales contract - The ANSWERS, however, require clients and their legal counsel to implement a completely different way of approaching the transaction www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 4. What Legal Resources Apply to Cross-Border Contracts Country-Specific Laws • National/domestic laws which may apply to the substantive law of the contract, or the remedies sought – In U.S., UCC Article 2 – In foreign state, applicable civil code, case law, etc. • This is called “localizing” a contract – making sure it does not violate the local laws of the country that the performance will take place in. • Your initial research about the law of the country you are doing business with can be performed through English language resources; however, any opinions regarding substance of foreign law must be obtained through local counsel • Be particularly careful – merely choosing U.S. law to apply to a contract does not mean that no foreign laws apply; they may still prohibit what the parties are trying to do (eg in Germany, no private contract can prevail over public civil code, including tariffs and nontariff barriers) www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 5. Some Resources to Consider When Working With Cross-Border Transactions • Conventions and Treaties, eg United Nations Convention on Contracts for the International Sale of Goods • Soft Laws, eg International Institute for the Unification of Private Law (UNIDROIT) and Principles of International Commercial Contracts • Customary International Business Laws, eg International Chamber of Commerce Uniform Customs and Practices for Documentary Credits addressing Letters of Credit • International Commercial Arbitration Decisions, which are based on the application of international commercial law, eg International Centre for Dispute Resolution (ICDR), London Court of International Arbitration (LCIA), China International Economic and Trade Arbitration Commission (CIETAC) • Doing Business Guides (as secondary resources to determine application of treaties, laws and other country conditions affecting trade) • International Organizations (United Nations, World Bank) • Government Agencies (export.gov, buyusa.gov) www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 6. Commonly Overlooked Aspects of International Contracts • THERE IS NO SUCH THING AS A BOILERPLATE INTERNATIONAL CONTRACT!! Everything will change depending on your parties, your location, your risk, and what it is you are most afraid of going wrong with this transaction. • Start with the Choice of Law – the content of the contract will be dependent on this. • Acts of God Provisions – can be very sensitive depending on beliefs • Force Majeure clauses - Don’t think these things will never happen. Allocating risk is very important in international contracts (e.g., foreseeability vs. unforeseeability, impossibility of performance vs. increased cost and complete excuse of performance vs. delayed performance required.) • Severability Clauses - Determine and define “essential” provisions. • International Arbitration – Benefits and drawbacks of ADR in international transactions; special considerations with government parties; neutrality of venue and arbitrators significant considerations.
  • 7. Commonly Overlooked Aspects of International Contracts • Currency (do NOT assume USD; consider exchange rates and convertibility of currency) • Payment (cash in advance/wire transfer; documentary letters of credit; documentary collection procedures; drafts or bills of exchange; credit) • Official Language (do NOT assume English) • Designated Holidays (very significant for computation of business days and notice provisions) • Effects of customs duties and tariffs • Export and other necessary international transaction authorizations from pertinent governments » Don‟t forget incorporating an Addendum to prevent violation of Foreign Corrupt Practices Act if someone is your agent!!!! • Cultural/Business attitudes and practices, particularly at signings and closings • Time Zones
  • 8. Commonly Overlooked Aspects of International Contracts • U.S. Tax rules: IRC; Treas. Regs; IRS rulings; cases; Federal excise taxes; State and local income, sales & franchise tax rules • Foreign Income Tax rules: national and provincial taxes & exemptions; “in lieu of” income tax rules; withholding tax rules; VAT or sales taxes; caution about “permanent establishment” rules • U.S. Double Taxation Treaties: Treaties with most industrialized countries; define scope of each country’s tax rules for cross-border transactions; establish withholding rules; establish procedures to resolve conflicts between tax authorities • EU Directives: Most favored country provisions; Arbitration of transfer pricing disputes
  • 9. Commonly Overlooked Aspects of International Contracts – Intellectual Property BE VERY CAREFUL – These treaties do not give you international protection merely if you have a U.S. registration. They are a vehicle to give you priority filing, and streamlined filing, in other countries. Understand these rights thoroughly BEFORE YOU STEP A TOE OUTSIDE THE U.S. – OR IT MAY BE TOO LATE AND YOUR PROTECTION MAY BE LOST!! Patents – International protection under Paris Convention & Patent Treaties (PCT) Copyrights – International protection under Berne Union & Universal Copyright Convention Trademarks – International protection - Paris Convention, Madrid Agreement Trade Secrets – No international convention • Trade secrets should be listed clearly in a contract; or, an agreement can state that trade secrets must be kept secret, and subsequent correspondence containing such secrets can be marked as „confidential‟. • U.S. Practical Tip – for small and mid-size companies, know-how and trade secrets can be their most valuable assets. These can and should be protected.
  • 10. Intellectual Property • WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) – • “National Treatment” – signatories must treat IP rights of other WTO members no less favorably than their own – • “Most-Favored Nation Treatment” – any IP right granted to party of another WTO member must be granted to all – • Enforcement by host nation courts • World Intellectual Property Organization (WIPO) UN agency established in 1967 – Led to adoption of Patent Law Treaty – Joint initiative with TRIPS to assist developing countries comply with TRIPS commitments www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 11. Intellectual Property Provisions • Protection varies widely, depending on the jurisdiction U.S. Practical Tip: Keep in mind that if you do not create and properly register your IP in the U.S., you will have nothing to protect abroad. Take the time here first to properly register TM, Copyrights and Patents. Understand how to protect trade secrets, and have processes in place to guard them. – If your local agent needs to promote, advertise or manufacture your products, they are going to need a Trademark and Patent License from you. • You can‟t grant them a license abroad if you don‟t have registration in the U.S. • You can‟t grant them a license abroad if you don‟t have registration in the foreign country. • You need to do your registrations properly abroad – and don‟t wait or a foreign agent or competitor may register them for themselves. – You should have provisions in your contract that makes the sourcing agent responsible for policing your rights • At a minimum, to alert you if they become aware of any incidents of infringement • Even though a contract may state patents and trademarks are the property of the U.S. purchaser, this may not be a enforceable argument
  • 12. Intellectual Property Provisions So What Can You Do To Protect Your Intellectual Property Abroad? Always Remember -- NNN Non Disclosure Agreements – in addition to normal NDA terms, you also need to prevent internal disclosure within the contracting party‟s network of subsidiaries and subcontractors (disclosures to entirely unrelated third parties is much less of a risk) Non-use Agreements need to prevent “copycat” manufacturing, eg the Chinese party uses the U.S. company‟s product design to create a same/similar product which directly competes with the U.S. company (produced under a Chinese trademark) This is especially important for products that are not covered by patent or other IP registrations. Non Circumvention Agreements -- prevents the foreign party from approaching the U.S. company‟s current or future clients, saying they are the company making the product and soliciting them directly, eventually cutting out the U.S. business Combine the above contractual protection with the appropriate international and foreign national filings to protect your patents, trademarks and copyrights – this is our “belt and suspenders” method of protection.
  • 13. Choice of Law Most, but not all, countries’ courts will honor a contractual provision specifying governing law agreed upon by parties. Parties may choose from: • Law of a particular country/state • General principles of law • International law The choice of law may apply to the entire contract or to parts of contract. Choice of law provisions cannot be invoked to defeat a choice of forum stipulation. The law chosen will incorporate the state’s arbitration laws unless the parties specify otherwise. This is probably the most important provision in the contract because every provision is impacted by its choice. Know and understand the applicable law BEFORE negotiations begin. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 14. Key Issues Regarding Choice of Law KEY CONSIDERATIONS IN MAKING A CHOICE OF LAW 1. What are the potential areas of conflict which you might cause? 2. What are the potential areas of conflict which you fear the other party might cause? 3. Which laws are most favorable to you, in either preventing you from being found in breach (on #1) or finding a breach by the other party (on #2)? 4. What kind of remedies might you, as the buyer, need most in the event 1. or 2. occurs? 5. What does the foreign country, Illinois, the U.N. Convention on the International Sale of Goods, and any other potential governing laws say about these topics? 6. Which one is best for your purposes? Will it matter?
  • 15. Key Issues Regarding Choice of Law U.S. Choice of Law – Complicated body of law, varies between jurisdictions (individual states and federal); however, you are free to choose own governing law. Suggest do so “without regard to conflict of laws principles.” – Note that the Convention on the International Sale of Goods will preempt the UCC when it is applicable, because it is a self-executing treaty with the preemptive force of federal law. – U.S. jurisprudence is clear that the only way to truly get around the CISG is to explicitly disclaim it in a contract • “PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (UN CONVENTION), THE PARTIES AGREE THAT THE UN CONVENTION SHALL NOT APPLY TO THIS AGREEMENT.” www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 16. United Nations Convention on Contracts for the International Sale of Goods • CISG (UN Convention on Contracts for the International Sale of Goods) was an international response to calls to standardize country differences in contract law, similar to Article 2 of the UCC’s standardization across the 50 states (with some retained individual state variation) – negotiated in 1980 became effective in 1988 – 74 countries have ratified; there are some significant exceptions to industrialized countries • For certain international sales contracts, and international convention, the CISG will determine the legal interpretation and implementation of the contract, even if it is an oral contract, UNLESS the parties explicitly make its terms INAPPLICABLE to the contract. – It is noteworthy that many important industrial, developed and trading nations are NOT parties to the CISG, including Japan and the United Kingdom.
  • 17. Applicability of CISG • Commercial sale of goods – Between parties whose places of business are in different countries – Unless the parties opt out under Article 6 of the Convention • The places of business are in countries that have ratified the CISG – You should always look at reservations and declarations of the country where the contracting party resides, as it limits applicability • As self-executing treaty law, it takes preeminence over state laws and equal to federal laws in U.S. • Parties may exclude its application, or any particular parts thereof. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 18. Transactions Excluded from the CISG • Consumer goods • Auction • Stocks • Vessels, aircraft, ships • Contracts predominantly for labor or services • No product liability for death or personal injury www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 19. Differences Between UCC and CISG • The CISG's rules closely follow Article 2 of the Uniform Commercial Code ("UCC"), and therefore U.S. practitioners will be familiar with most of its terms and rules. • However, several important distinctions between the UCC and the CISG should be highlighted. This can help practitioners determine whether they should select CISG, or disclaim CISG when drafting a contract, or if they should argue about this issue during litigation. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 20. UCC v. CISG – Key Areas of Comparison • Writing • Parole evidence • Custom practice and trade usage • Battle of the forms • Disclaiming implied warranties • Remedies for breach • Specific performance www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 21. Must Contract be in Writing? • UCC: contracts for the sale • CISG: need not be in writing of goods $500 or more must ( but some countries, eg be in writing to be Russia, have elected writing enforceable requirement) – However, there are many exceptions • You CAN verbally commit under the CISG, unless the country has a reservation on this issue. If that is important to you, you may want the CISG to apply instead of a knee-jerk reaction to apply U.S. law. If you want no part of a verbal commitment, you need the disclaimer of the CISG to be clear.
  • 22. Parole Evidence • UCC: If contract is final • CISG: Court may written expression, consider all relevant then parole evidence is circumstances. not admissible to contradict – Only resort to parole evidence if contract terms ambiguous •Are you a businessperson with horrible recordkeeping? Someone whose obligations are likely to be on a cocktail napkin, a half a dozen emails, and a couple of conversations? Then you may be someone who likes to apply the CISG instead of the UCC, if your goal is to enforce an obligation of another party. 22
  • 23. Custom Practice and Trade Usage • UCC: Allow past • CISG: limited to those practice and industry which parties agree to or past dealings or those practice to fill in the usages that the parties gaps. ought to have known are observed in trade or industry •Are you always saying this jerk should have known that we in (fill in the blank industry) do not do (fill in the blank activity that you find offensive). If so, you are likely to prefer a choice of UCC over the CISG, and will need to disclaim application of the CISG to your sale of goods contract. 23
  • 24. Battle of the Forms UCC: written confirmation CISG:Acceptance is acceptance even containing new terms though additional Are you that do not materially terms unless constantly alter becomes part of acceptance is proposing the contract unless conditional on assent changes to there is a prompt Special rules for the purchase objection merchants: new terms order terms If the terms materially alter become part of that others then it is rejection of contract unless give you? the offer and a – materially alter Are you counteroffer (not a terms, or contract without the afraid this – notifies of new terms) might kill the objection within – Include such things deal? Then reasonable time, or as arbitration UCC is your clauses, other – purchase order body of law, expressly limited to terms significantly and CISG changing parties’ terms in order should be obligations disclaimed 24
  • 25. Avoidance • UCC: perfect tender • CISG: buyer can avoid rule (performance must only if fundamental match specifics of breach contract perfectly) • Buyer need not take delivery - avoid the contract www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses 25
  • 26. Remedies Specific Performance • more prevalent internationally • Under the UCC - only allowed where money damages are inadequate (eg if goods are unique) • Under the CISG - allowed without conditions – Based on the civil law traditions – Exemption for countries that do not have such a provision under their own law www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 27. Liquidated Damages • Easily allowed under international laws • UCC less receptive www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 28. Excuses for Performance • Impossibility - supervening illegality • Frustration of purpose (rare) • Commercial impracticability • CISG - impediments beyond control exemption • Force majeure: unforeseen events beyond control of parties, act of God www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses 28
  • 29. Forum Selection Clauses • Forum Selection is different from Choice of Law!!!! – Domestic courts of one of the parties vs. a neutral court (country/state). – Foreign parties prefer to avoid US courts when possible. – US parties should recognize that foreign jurisdictions have substantially different procedures. • Disputes should be resolved fairly, quickly, economically and without disrupting the business relationship. – Courts v. Arbitration – Mediation is encouraged – most international disputes are resolved by negotiation amongst the parties www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 30. International Dispute Resolution • International business transactions vs domestic transactions – • different nationalities; – • different cultures and methods of doing business; – • different commercial and legal systems. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 31. Arbitration • Arbitration allows parties to resolve disputes fairly, quickly and economically. • • Institutional vs. ad hoc • • Scope of arbitration • May also be bilateral treaties between U.S. and country in question • New York Convention- incorporated in the Federal Arbitration Act at 9 U.S.C. §§ 201-208 (signatory states - US and all major commercial countries). – The purpose of the New York Convention is to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which such agreements are observed and the awards rendered are enforced by the signatory states. – An arbitration award is final and its enforcement is reliable. – A judicial proceeding is necessary to enforce an arbitration award. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 32. Enforcing Foreign Judgments • Enforcement of Judgments and Arbitral Awards • American courts historically have recognized and enforced foreign judgments • Foreign judgments may be enforced if: – There is a final judgment; – The foreign court had subject matter jurisdiction; – Proper and timely notice; – Defendant had opportunity to present a defense; – Regular proceedings and impartial tribunal. • But – enforcement of U.S. judgments in foreign courts is not certain – US creditors face burdens and uncertainties www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 33. Overview of Export Administration Regulations - Code of Federal Regulations, 15 CFR 730-774 - www.bis.doc.gov - www.access.gpo.gov/bis/ear/eardata.html - Bureau of Industry and Security is part of the U.S. Government responsible for implementing and enforcing laws which regulate the export and re-export of most commercial items. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 34. Questions to Ask Yourself Before Every Shipment - What is my item (what is the Export Control Classification Number (ECCN))? - Where is it going? - Who will receive it (keep in mind that a release to a foreign national within the U.S. Borders can still be considered a « deemed export » and subject to regulations)? - What will be the end use? Your answers will determine whether you need an Export license or license exception www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 35. General Prohibitions 1 – 3 List Based, Part 736 - You may not without an Export License or License exception: - Export or re-export controlled items to listed countries - Re-export foreign made items incorporating more than de minimis amount of controlled U.S. Content (eg software or technology) - Re-export foreoign produced direct product of U.S. Technology and software - There are License Exceptions in Part 740 that supersede these prohibitions. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 36. General Prohibitions 4-10 Part 736.2(b) - Denial Orders - Knowledge of end use and end user controls - Embargoed Countries - U.S. Person support of proliferation - Transit through certain countries - Terms or conditions of licenses - Knowledge of a violation License exceptions under Part 740 are generally not available for these General Prohibitions. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 37. License Exceptions - An authorization that allows for export or re-export of items requiring a license under certain stated conditions: - Cannot be used: - When authorization has been suspended or revoked - Crime control items tomost destinations - Most missile technology control items - Embargoed destinations www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 38. License Exceptions - Country Group B - Civil End Users (non-military) - Limited Value Shipments (splitting orders not allowed) - Technology and Software Related (written assurance from consignee required) - Temporary Imports, exports and Re-exports - Service & Replacement of Parts and Equipment - Technology & Software Unrestricted www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 39. Embargoed and Sanctioned Countries - Iran - Cuba - Syria - North Korea - Sudan www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 40. Foreign Corrupt Practices Act - Anti-Bribery Statute that has extra-territorial application - Prohibits U.S. Company, individual or foreign subsidiary from - Offering or authorizing payment of money or anything of value - Stock, entertainment, gifts, discounts on products or services not readily available to the public, Charitable donations, offers of employment, assumption or forgiveness of a debt, travel expenses, personal favors - Knowing that some or all of the payment will go, directly or indirectly to a foreign official - Either because of direct knowledge or lack of due diligence in investigating the issue www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 41. FCPA (continued) - For the purpose of influencing any official act or decision - To obtain or retain business - Directly or indirectly (ie through an agent or intermediary) - With a corrupt intent or improper motive - To a foreign official, political party or candidate FCPA has serious civil and criminal liability, both for companies that violate it and for officers of the company that violate it. Its reach is NOT limited to publicly traded companies, and the enforcement trend has been towards smaller private companies.www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 42. FCPA - Note: small payments which are considered necessary to obtain routine government action (so-called « grease payments »), such as processing permits or visas or inspections, are still potential violators of FCPA if they are not accurately reported and documented. - Other country‟s laws (UK, Germany, Italy) do not have exceptions for grease payments, so be aware of other laws where your company is subject to laws. License exceptions under Part 740 are generally not available for these General Prohibitions. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 43. FCPA (cont’d) - Know your vendors - Check www.bis.doc.gov to see if they have been placed on a debarred list or are denied persons - Need a Compliance Program in Place - Ensure proper written procedure is in place for vetting contractors, vendors, agents, distributors, suppliers - Make it clear that no foreign parties you do business with can act in a manner to violate the FCPA, and ensure your employees and all foreign agents who can cause liability for you have attested to their awareness of your policies and compliance with same. www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses
  • 44. Question & Answer Session . . . Thank you for your attention Michelle Rozovics Managing Partner, Rozovics & Crawford LLP mrozovics@rozovicslaw.com Phone: 815-479-9733 Crystal Lake, Illinois www.RozovicsLaw.com Comprehensive Legal Advice For Growing Businesses