Legal Issue-Spotting in
International Collaborations
Minnesota State Colleges and Universities
CAO, CASO and Deans Spring Meeting 2013
Kris Kaplan, Deputy General Counsel
System Office
Minnesota State Colleges and Universities
The Minnesota State Colleges and Universities system is an Equal Opportunity employer and educator.
OVERVIEW
 Policy and Other Threshold Considerations
 Spotting Specific Legal Issues
 International Recruiting
Board of Trustees 2010-2014
Strategic Plan
MnSCU and the State Operate in GLOBAL
Environment
Goal 2.2 requires graduates to have “strong, adaptable, globally
competitive and flexible skills.”
Strategic Direction 3: Provide learning opportunities, programs
and services to enhance the global competitiveness of the
state.
International Activities
Long-Established:
 Hosting international students and scholars on MnSCU
campuses;
 Study abroad
 Faculty-led or 3d party provider
Other types of international agreements and collaborations on
the rise . . .
Some Examples of System
Internationalization Initiatives
 Memoranda of Understanding (MOU)
 Faculty/student exchange programs
 Institution-wide or program-specific
 Joint degree programs
 Delivery of courses or training abroad in
collaboration with foreign institution
 Delivery of courses or training at MnSCU campuses
for international clientele
Put Globalization into Context
A Vision Thing
Internationalization Strategy
 Goals grounded in college or university mission and core
values
 Defined benefits for students, faculty, community culture
and economic development
Internationalization Plan
 Study abroad; curriculum development; student
recruitment and services
 Collaborative agreements
International Agreements
 Strategic Framework
 Rationales, goals
 Priority regions, programs, issues
 Alignment with current academic offerings
 Program Decisional Guidelines
 Further mission, core values
 Aligned with internationalization strategy, plan; partnership
framework
Take a Hard Look:
 “Due diligence” review of proposed collaborator:
 Who is this? Private or public?
 Have necessary resources to launch and sustain or even expand
partnership?
 How strong is their commitment?
 Track record?
 Academic reputation?
 Culture, economics, politics of country?
Tip: https://www.educationusa.info/highered.php (register and access
info about foreign higher ed institutions via State Department)
Code of Conduct – conflict of interest issues in selection process?
Remember that service contract procedures apply
Considering Agreements
Preliminary Issues
 Consistency with college/university education mission
 Consistency with current academic priorities
 Do you have the resources to sustain a long-term commitment,
including knowledgeable campus staff?
 Consistency with applicable system and campus policies, e.g.:
 System Travel 5.19
 Risk Management 5.16
Preliminary Issues
 System Procedure 3.36.1
 Requires approval of new academic programs and locations
 Review of online delivery may apply
 Customized training approval process
Preliminary Issues
 Code of Conduct 1.C.0.1
 Analysis of potential personal conflicts of interest
 Unauthorized reimbursements
 Unauthorized gifts
 Accepting personal benefits
 Using position for personal gain
Preliminary Issues
 Analysis of long-term operational costs and benefits; indirect
costs?
 Qualified to do business abroad?
 Does the plan contemplate establishing a new entity of some
type? Has the OGC/AGO reviewed for legality?
 Does the proposed agreement include
 Detailed responsibilities
 Appropriate dispute resolution/enforceability of contract provisions
 Appropriate indemnification/liability language
 Do activities raise other legal issues or liability risk concerns?
Areas of Legal Risk in
Activities Abroad
 Foreign employment/labor issues
 Definition of “employee”
 Taxes – payroll, Social Security
 Benefits
 Worker’s compensation
 Appropriate visa for entry
 Application of US employment laws
 E.g. Title VII; ADA; ADEA
Do not hire foreign workers without first consulting system legal
counsel!
Areas of Legal Risk in
Activities Abroad
 Real Estate/Facilities
 Student housing
 Staff housing
 Classroom space
 Lab/research space
 Program offices
 Excursion sites
Areas of Legal Risk in
Activities Abroad
 Visas
 Banking/cash management
 Legal registration requirements
 Consulted with system legal counsel?
 Risk management
 Insurance requirements – foreign and domestic requirements
 Clery Act reporting responsibilities understood?
 Transportation risk management
 Crisis management planning
 Liability waivers obtained
Miscellaneous Risks in
Activities Abroad
 Economic sanctions or boycotts
 Application of US environmental laws
 Are activities in conflict with US tax (exempt) status? Taxable
abroad?
 US penalties for having bank account signing authority
without federal filing
 Export control laws
 International Traffic in Arms Regulations
 Export Administration Regulations (EAR)
EAR: Commerce Department
Limitations on Exporting
US-origin, “technical data” that has dual use in commercial and military
applications – broadly defined:
 Information necessary for development, production or use of a
covered product that is to be “exported;” includes many types of
information such as blueprints, technical drawings, instruction
manuals or even intangible information such as police force
training in certain foreign countries.
 May need license to export.
Foreign Corrupt Practices Act
VERY broad prohibition to offer, pay or even promise to pay
anything of value to a foreign official for the purpose of doing
business or gaining unfair advantage.
Would include even a meal if the intent is to influence
discretionary decision of foreign official.
IEM Considerations for International
Recruitment
International recruitment efforts should be part of a larger
conversation on internationalization of the campus
 One facet of strategic International Enrollment Management
(IEM):
 Also includes admissions, advising, enrollment and retention of
international students.
International Recruitment
 What is the institutional rationale for increasing international
student enrollment?
 Diversity? Financial ? Expand/deepen international collaborations?
 What institutional infrastructures are required for retention?
International Recruitment
 How will more international students strengthen/affect
general campus internationalization efforts?
 E.g., how might their presence change approach to “internationalize
curriculum?”
 Are you using current research, information on trends and
developments in higher ed worldwide?
International Recruitment
How Do You Do It?
 Many options:
 College/university employees at recruitment fairs
 Recruitment tours
 In-country counseling and advising providers
 Faculty and international alumni outreach
 EducationUSA advisers and centers
 Online
 Virtual tours
 Social media
EducationUSA
 US Department of State division with 170 offices worldwide
 Promote US higher ed abroad
 Provide impartial information to potential foreign students about US
higher ed institutions to find good fit
 Assist US higher ed community with recruitment and retention plans
Get free Log In for access to resources at:
www.EducationUSA.info/highered.php
Resources on International
Recruitment
 ACE: American Council of Education
July 2008 publication: International Partnerships: Guidelines for
Colleges and Universities; Appendices at:
www.acenet.org/programs/international/partnerships
 NAFSA: Association of International Educators www.nafsa.org
 http://www.nafsa.org/Resource_Library_Assets/Networks/RAMA/Virt
ual_Toolkit_for_Recruiting_International_Undergraduate_Students/
International Recruitment
 Using foreign-based recruiters
 May extend your “reach” but risk of losing control of your
brand/message
 Relationships critical
 Contracts must detail use of college name, logo, retain complete
control over promotional materials and message; not exclusive
 AIRC, Hobsons International Counselor Network are two groups
developing standards of conduct and certifications
 The controversy: should US colleges/universities use foreign
recruiters that charge a commission?
 NACAC: “no” (but currently studying issue)
 AIRC, others: “yes” but require standards
Study Minnesota
 NEW promotional consortium of MN higher ed institutions
 Sponsored by Minnesota Trade Office and US Dept of
Commerce Commercial Service
 Initial activity will be website:
 General information about MN
 Direct links to member institutions’ websites
Must become member; initial annual fee: $350
First organizational meeting: June 19, 2013 at
University of St. Thomas, St. Paul
RSVP: David Edmiston at: david.edmiston@trade.gov, or Tim
Odegard at Tim.odegard@state.mn.us for more information
Resources
(Don’t leave home without us!)
 Office of General Counsel
 Gail Olson 651 296-6216 gail.olson@so.mnscu.edu
 Kris Kaplan 651 296-3905 kristine.kaplan@so.mnscu.edu
 Mary Al Balber 651 297-2698 maryal.balber@so.mnscu.edu
 Scott Goings 651 297-3289 scott.goings@so.mnscu.edu