Resolution To International Disputes-

The International Legal
Environment of Business
Chapter 22
International Issues
International Law and Business
International Trade Agreements
U.S. Import Policy
Business Structures in Foreign
• Foreign Corrupt Practices Act
• International Contracts
• International Dispute Resolution
The International Business
• Includes all business transactions
that involve entities from two or
more countries
– Movement of goods across
– Movement of services across
– Issues regarding capital
– Issues regarding personnel of
multinational enterprises
Risks of International Business
All stem from differences in
Legal systems
Social philosophies
Government policies
Origins of International Law
• Commercial codes date back
to Egypt in 1400 B.C.
• Early trade centered around
law of the sea
• Greek/ Roman Empires both
had codes of international
• Middle Ages: Lex Mercatoria
(Merchant Law) – Governed
trading customs in Europe
• Today’s codes still partly
derived from early efforts
Sources of
International Law
• Individual countries create their own laws
• Trade agreements between countries
• Worldwide/regional organizations, i.e.
– United Nations
– European Union (EU)
• No universal international court system for
resolving international conflicts of businesses
• Difficult to enforce decisions and contracts
• See Exhibit 22.1: Selected Organizations
Affecting the International Legal Environment
International Trade Agreements
• Improve economic relations of
• Cover variety of commercial issues
• Tax agreements prevent double
• Examples:
– North American Free Trade Agreement
(NAFTA, 1992) Canada/US/Mexico
• Regional treaty
– General Agreement on Tariffs & Trade
(GATT) replaced in 1995 by World Trade
Organization (WTO)
• International Treaty
• WTO has authority to investigate & rule on
government subsidies that give unfair advantage
to a producer in a given country
U.S. Import Policy
(Limits on Imports – To Protect
Domestic Interests)
(Taxes on Imports)
• Tariffs (duties) –
Taxes imposed by a
government on
imported goods
– specific tariffs:
fixed duties on
– ad valorem
tariffs: % of price
of product
See Issue Spotter:
“Starting an Import
• Harmonized Tariff Schedules –
standardized, worldwide
classification of goods for
customs officials
– Harmonized Tariff Schedule of the
United States (HTSUS)
– Each country uses same codes
• Bans on Certain Products – i.e.
weapons, illegal products,
narcotics, national security
concerns, products made from
endangered species
Import Controls
In U.S. – Dept. of Commerce through International Trade
Administration (ITA) & International Trade Commission (ITC).
Some imports are prohibited for safety or environmental reasons.
Antidumping Orders: When there is charging a lower price in an
export market than in a home market. Duty is determined by
comparing market price in home market vs. price charge in U.S.
When item is imported, then duty is applied to product.
Duties on Governmental Subsidies: Tariff applied to offset
subsidies provided by foreign governments to their industries that
lower prices of products imported into the U.S. Duty applied is =
to foreign governmental subsidy. (Purpose: To assist U.S.
products to be competitive in the U.S. market) (counterveiling
Foreign Trade Zones: Goods imported without paying tariffs.
Goods then processed. Duties assessed upon leaving zone.
Duty Free Ports: No duties or tariffs assessed on products, i.e.
Hong Kong.
Penalty Provisions for Violation of
Commerce’s Licensing Provisions
• Include criminal and civil penalties
• Can also have administrative sanctions
• If an exporter “knowingly” violates the Export
Administration Act, there can be fines up to $50,000
per violation.
• Person who “willfully” violates the Act, can be fined
more and receive up to 20 years in prison, with a
possible suspension or revocation of a business’s
authority to export.
• Example: McDonnell Douglas paid $2.1 million fine
for improper sale of sensitive equipment to China.
Foreign Manufacturing
• Franchise Agreement
• Wholly Owned
– Business owns the
facilities – some
countries limit % of
• Joint Venture
– Sharing ownership with
foreign partners
• Licensing Agreement
– Licensor grants
licensee access to
patents and
– Franchisor grants
franchisee the rights to
sell products or
services, i.e.
McDonald’s, Hertz
• Contract
– Contract made for
production of products
• Issues to Consider
Labor expenses
Shipping costs
Raw material costs
– Pirating of technology
U.S.: The Foreign Corrupt
Practices Act (FCPA) 1977
Punishment of payer of bribe to foreign officials
“Corrupt” person displays reckless or conscious disregard for
consequences of one’s actions
Accounting provisions require practices to track transactions
Payer knows payment will go to public official
– “Any reasonable person would have realized”
• Requirement: Keeping accounts. Internal controls. Need paper trail.
– “Consciously chose not to ask about what he/she had reason to
believe would be discovered”
– “Simple negligence” or “mere foolishness” exception
“Routine governmental action” exception: “facilitating or expediting
payment . . . the purpose of which is to expedite or secure the
performance of a “routine governmental action.” (i.e. visas,
providing basic utilities, transportation services, etc. – small amount
and very limited usage)
In 2006 Congress ratified the UN Convention Against Corruption to
bring international cooperation to corruption enforcement practices.
Punishments Under FCPA
Individuals: Maximum of
$100,000 & 5 years in jail
Corporation: Up to
Exception: Department of
Justice “pre-deal
Watch: “Slush funds” or
“salaries, commissions or
fees” disproportionate to
service provided
Financial Aspects of
International Contracts
• Exchange Markets
• Use of Letters of Credit: Assurance by bank of buyer to pay seller
upon receipt of documents that prove goods were shipped and
contract was fulfilled
– Revocable or Irrevocable
• Transfer Pricing
– Multinational firm sells goods from division located in one county to a
division in the U.S.
– Must determine price, but because it is within the firm, there is no “market
price” to use
– Firm creates an artificial price
– Practice called transfer pricing
– IRS guidelines as to what it considers “reasonable” for taxing purposes
• Different countries exchange controls – can affect decision where to
locate assets
• Repatriation of Profits
International Contracts
• Cultural Aspects
– Language, attitudes toward
relationships different in different
• Payment Clauses & Exchange
• Choice of Language Clause
• Force Majeure Clauses
• Choice-of-Law Clauses
– Selection of Which Laws Apply
• Forum Selection Clause
– Selection of Court
See Exhibit 22.5: Major Clauses Used in
Many International Contracts
Loss of Investment
(Political Upheavals, Unstable Monetary
Systems, Changes in Laws)
• Nationalization: Gov’t
“nationalizes” entire industry,
including foreign investment
– Gov’t may pay less than
– i.e. Iran, Russia, Saudi
Arabia, Venezuela and
• Expropriation: Taking foreign
property in accordance with
international law
• Confiscation: Taking is
• Insuring Against Risk of Loss
– Short-term private
– Major insurers (i.e. Lloyds
of London)
– Gov’t agencies (i.e.
Overseas Private
Investment Corporation
[OPIC]) insures investors
who invest in less
developed countries
International Dispute
• Litigation
– Differs within countries
– Complication of evidence,
witnesses and documents
– Judicial system may be
different from country to
– Some courts more influenced
by political pressures
– Not enforceable outside of
– Treaties/Conventions may
assist potential parties
– Contract clauses assist courts
in enforcement of claims
– Usually need “minimum
contacts” for jurisdiction
• International Court of
Justice (ICJ)
– Only nations have
standing - not individuals
– Nations may make claims
on behalf of persons
– No mandatory
compliance requirement
– UN Security Council
must enforce
• Arbitration: 3rd neutral party
decides outcome, which is
• Mediation: 3rd neutral party
“suggests” outcome, which
is not binding
Doctrine of Sovereign Immunity
Doctrine of Act of State
• Act of State
– Court gives up right
of jurisdiction over
foreign country or
– Court will bar
because the acts
were by a foreign
government or
• Sovereign Immunity
– Bar to compensation by
foreign investors
– Immunity to foreign
representative or country
– One country must respect
the independence of other
countries and their
– In U.S.: Foreign Sovereign
Immunities Act