Cross-border Business and Transactions

1. “transborder” laws – us FEDERAL laws: SECURITY LAWS, export controls, AND FOREIGN CORRUPT PRACTICE ACT.
The “effect doctrine” over the US law and the Organisation of Economic Co-operation and Development - OECD treaties combine a set of regulations that bind agents, distributors, officers and directors of US companies. There has been a lot more international coordination, enforcement, and discussion around foreign bribery cases than ever before.
The Anti-Fraud designed laws – Exchange Act of 1934, Sarbanes and Oxley (SOX of 2002) and Foreign Corrupt Practice Act (FCPA), have unprecedented growth since there is a global anti-bribery convention, which 35 nations have passed FCPA-style laws. Under the pact, the OECD supervising group has power to name and shame any nation that lets its law slide.
Compliance with US law and local laws are a required master point for business overseas. US Companies have to address representation, process, training and orientation worldwide to prevent violation of the FCPA law.
The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), in joint enforcement actions, have won the second-largest penalties – US$ 579 Million – for FCPA violation against Halliburton and KBR for the involvement in a 10-year scheme to bribe Nigerian government officials to obtain innumerous construction contracts. Besides penalties, these US Companies jointly agreed to pay US$177 Million in disgorgement of profit relating to those contracts. The terms of the plea agreement include 3 years contract with an independent compliance monitor to review and report the design and implementation of their compliance program to DOJ. . (S.E.C. v. Halliburton Co., No. 4:09-cv-00399 S.D. Texas).
Settlements announced by DOJ and SEC show us not only how misconduct and violation can be costly and harm a company’s reputation, but also show us how the globalization of anti-corruption efforts are increasingly more effective and aggressive recently.
The SEC’s 2008 annual report set out the agency’s expanding focus on global prosecution and growing list of information-sharing arrangements with securities regulators around the world. In 2008, the SEC made 594 requests to foreign regulators for assistance with investigations; in 2003 SEC requested only 309.
In fact the SEC and DOJ jointly are increasing investigations against both foreigners and non-US companies and linking them to a US market. In connection with US white-collar and securities law, the prosecutors involved Siemens A.G., a German company, for entangling foreign citizens and the companies’ agents, including joint venture partners and consultants – U.S. v. Siemens A.G., No. 1:08-cr-00367 (D.D.C.); U.S. v. Kellogg Brown & Root, No. 4:09-cr-00071 (S.D. Texas).
2. PROACTIVE COMPLIANCE PROGRAM, DUE DILIGENCE AND RISK ASSESSMENT
The use of a standardized process, record-keeping management and record retention schedules combined with ethics compliance does not guarantee compliance anymore. Additional focus is required on process knowledge and risk assessment for higher effectiveness. The foreigners are not familiar with the aggressiveness and effectiveness of a SEC investigation.
For its overseas compliance and ethics program to be effective, US Companies have to focus on relevant expertise of the laws abiding, knowledge of the market, business and culture of the region, general understanding of the local regulations, judicial system and processes. The General Counsel has to oversee the difference scenarios and coordinate with the enterprise risk management – overall e.g. SOX 404 assessment, organizational corporate social responsibility or reputation, impact on ethic and compliance issues.
US Companies doing business in Latin America have to coordinate this process by risk assessing not only globally, but also regionally; which is a task for lawyers with background in US, International, and Latin American Laws.
3. Project – Counsel
Life after moving to the US led me back to law school to specialize in US Business and International Transactions. Before that, while still in Brazil, I was at a private practice in the heart of Brazil’s largest finance district, doing banking, commercial transactions and litigation.
My legal practice focused on business and commercial transactions. I am familiar with project finance, including infrastructure acquisitions and financing, and through my studies developed an understanding of the nature of the UCC and US Corporate Law.
My education is an asset in advising corporations on cross-border deals, specifically when doing business in Brazil and Latin America, which I can proactively advice that transactions may need to be structured differently to accommodate the nuances among two or more legal systems. I can provide comparison, application, and parallels of those countries’ legislation, especially when liaising with US General Counsel for large entities and operations.
I look forward to assisting clients through their cross-border business endeavor. I sat in a law school classroom in the US and I attended all of the intangible benefits that any immersion experience brings – the opportunity to engage in law discussions on a daily basis with American law students and obtain a broadened perspective. It has made a huge difference by simply reading American Law and being admitted to the Illinois state bar. I have multiple jurisdiction education on regulatory framework, which became a valuable skill when it comes for advising US corporation arrangements.