LEGAL CONSIDERATIONS FOR EXPORTERS

Transcription

1 LEGAL CONSIDERATIONS FOR EXPORTERS November 17, 2016 Adam R. Konrad North Water Street, Suite 1700, Milwaukee, WI Adam R. Konrad is a shareholder in Reinhart's Corporate Law, International and Tax groups with a practice primarily focused on mergers, acquisitions and joint ventures; however, Adam also regularly provides guidance on commercial contracting and corporate/"outside general counsel" type matters. Adam devotes a significant part of his practice to advising German businesses in connection with their investment or expansion of operations in the United States. He speaks, reads and writes German, and frequently travels to Germany to strengthen his relationships with clients and local advisors. 2

2 Webinar Housekeeping Viewing the Slides Today's slide presentation will advance automatically in synch with the live presentation. Handouts If you would like a hard copy of the slide presentation, a printable version was ed to you yesterday. Adjusting Your Volume Volume can be adjusted using the volume control on your computer or phone. Asking Questions Throughout the webinar, type your questions using the "QUESTIONS" section in the webinar panel. We will answer as many questions as possible during our Q & A session at the end of the presentation. Information This webinar provides general information about legal issues. It should not be construed as legal advice or a legal opinion. Attendees should seek legal counsel concerning specific factual situations confronting them. 3 Overview Regulatory Regimes Commercial Issues Tax Planning for Exports 4

3 Regulatory Regimes Export Administration Regulations ("EAR") International Traffic in Arms Regulations ("ITAR") Office of Foreign Assets Control ("OFAC") Foreign Corrupt Practices Act ("FCPA") Antiboycott Provisions 5 Export Administration Regulations Administered by Bureau of Industry and Security Apply to exports of "dual use" goods most widely applicable rules relating to exports (including deemed exports) General prohibitions/principles (e.g., anticircumvention, reexports/transshipments, etc.), party-based, countrybased and characteristic-based restrictions Assuming no party- or country-based restrictions, many goods may be exempt from licensing requirements work with customs broker and engineers to determine proper classification of goods Regulations available at 15 CFR 730 et seq. 6

4 International Traffic in Arms Regulations Administered by the Department of Defense Trade Controls Apply to exports of military technology Country-based and characteristic-based restrictions Regulations available at 22 CFR 120 et seq. 7 Office of Foreign Assets Control Administered by OFAC/Treasury Party-based and country-based restrictions SDN list (other lists as well check "consolidated screening list") Programs currently cover the Balkans, Belarus, Burma, Burundi, Central African Republic, Cuba, Democratic Republic of the Congo, Iran, Iraq, Lebanon, Libya, North Korea, Somalia, Sudan, South Sudan, Syria, Ukraine/Russia, Venezuela, Yemen, Zimbabwe, diamonds, drugs, organized crime, cybercrime, terrorism and WMDs Regulations available at 31 CFR 500 et seq. 8

5 Foreign Corrupt Practices Act Administered by the DOJ and the SEC Prohibits bribery of foreign government officials Some "grease" payments for "routine" government services may be permitted (e.g., permits, licenses, utilities, mail, etc.), and some defenses (e.g., legality of payments under foreign law, etc.) may provide some protection, but overall a very broad prohibition against bribery of foreign government officials Internal training and compliance systems may help shield companies against rogue employees Statute available at 15 U.S.C. 78dd-1, et seq. 9 Antiboycott Provisions Part of the EAR, antiboycott provisions also found in the Internal Revenue Code Prohibit: Blacklists and whitelists Discrimination against other persons based on race, religion, sex, national origin or nationality Furnishing of information (including publicly available information) about business relationships with or in blacklisted countries or with blacklisted companies Furnishing of information about the race, religion, sex or national origin of another person Must also report requests to participate in boycotts and operations in/with boycotting countries, etc. 10

6 Commercial Issues Agents versus distributors Selecting an agent or distributor Exclusivity Term/termination Common obligations of agents and distributors Terms of sale IP protection Warranties and product liability Dispute resolution 11 Tax Planning for Exports Permanent establishment Sourcing rules IC-DISCs 12

7 Questions? THANK YOU! 13