How Are You Protecting Your Global Business? 7 Crucial Items For Your Checklist…

As you know, going global exposes an organization to a broad range of unfamiliar legal, financial, and regulatory risks that can prove costly to both reputation and revenues. What are you doing to protect your international business?

Here are seven activities that should be on your checklist:

1. Set up an anti-bribery compliance program:

“In 2010, the number of federal prosecutions for violation of the Foreign Corrupt Practices Act (FCPA) more than quadrupled. The Department of Justice set a new record for fines and penalties – collecting nearly $1B. The FBI has announced that FCPA investigations are one of its highest priorities, which means that these trends will only accelerate. If you think your organization is safe from FCPA liability, you may need to think again.” (NAVEX Global)

2. Follow the letter of the law when hiring employees:

“[C]ountries such as Belgium, Egypt, France, Guatemala, Russia and the Ukraine require employment documents to be in local language. If issued in English, the employee can choose to disregard a document that was required to be translated, or cherry-pick only those provisions the employee chooses to be subject to. There may be limitations on hiring by foreign companies. Not every jurisdiction allows foreign companies to engage employees without establishing a local corporate presence because of “doing business” or tax reasons, or because foreign companies cannot enroll into mandatory social programs. While it may be tempting in the current economic climate for a company to scout a new market without proper registrations, it should be beware of the risks, particularly given many governments’ current desire to tap new financial resources through increased fines.” (Baker & McKenzie)

3. Don’t neglect the rules when firing workers, either:

“Overseas, dismissing an individual employee gets complex and is heavily regulated. Dismissal mandates under foreign law tend to fall into three broad categories: dismissal procedures, pre-termination notice and severance pay/wrongful termination awards. US employers accustomed to American-style employment-at-will face a significant challenge when dismissing an overseas employee who enjoys generous protections under employee-friendly foreign legal regimes. Before “pulling the trigger” on a dismissal abroad, an employer needs to understand and comply with a number of specific dismissal obligations under foreign law.” (White & Case)

4. Protect your intellectual property:

“Each country has different patent laws and, therefore, rights provided by a patent are enforceable only in the country or countries issuing the patent. For example, a U.S. patent can prevent an infringing product that is made overseas from being sold in the United States, but will not generally prevent the product from being sold in a foreign country. There are several international treaties that enable most of the initial steps in the patenting process to be consolidated for many countries, provided there was no public disclosure before the U.S. application was filed. Ultimately, however, the patent application must be filed in each country where a patent is sought and translated into an official language of each such country.” (Knobbe Martens)

5. Make tax laws work to your benefit:

“Essentially, Apple games the system by aggressively manipulating the Internal Revenue Code and tax treaties to save billions of dollars in taxes. 9 Billion and counting to date. The Apple plan may work for any company whose assets can be sold anywhere in the world because the nature of the business allows for forming the necessary subsidiaries in tax havens (countries that have no income tax) while still maintaining the ability to conduct computer-generated sales.” (Moskowitz)

6. Do your homework on business partners:

“Do you really know who you are doing business with in your supply chain? How much due diligence is enough? Should you update your due diligence on a regular basis? How about on a continuous basis? What ethical considerations come into play in the manufacturing sector, in the supply chain? These questions, and perhaps more, came to me as I was reading about the recent tragedy in Bangladesh involving the collapse of Rana Plaza.” (Thomas Fox )

7. Don’t paint yourself into a litigation corner:

“You are in charge of an international project and the pressure is mounting. Your foreign counterparts seek written assurances. So, you go on the record via email stating definitively and unequivocally the company’s position. Years later and, with hindsight, you learn you were wrong and it comes back to bite you in litigation. Or maybe you feel especially close to your Brazilian counter-part after a night of food and drinks, so you share information via email about your company’s ‘issues.’ That email is later produced in litigation and becomes evidence against your company.” (Sheppard Mullin)

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