Take note: Address Global Trade Issues Early in Your Negotiations to Avoid Liability and Costs (Yes, this applies to you).
Premise: Nearly all companies have exposure to international trade laws when doing business. Spotting these risks early when negotiating agreements and transactions will prevent future liability and costs. So, when drafting agreements engaging in mergers or acquisitions, and conducting diligence parties, should be considering a number of important trade risk points that may be sprinkled throughout various business activities.
“Supply chain” is the buzzword right now for a reason, it’s an area where trade liabilities are growing significantly. On top of backups and slowdowns, additional tariffs or duties (import taxes) can make importing from certain locations more expensive than it once was, and more restrictions are being added to this already highly regulated activity. New ESG and human rights restrictions along with an expanding list of prohibited parties make planning a supply chain more challenging than ever. Additionally, if done incorrectly, the penalties associated with customs violations can be quite high, or, in a worst-case scenario, your shipments can also be seized and even destroyed without compensation.
Trade Controls Are Broader Than You Think
Always screen your transaction for other tangential cross-border issues. If the company is directly or indirectly supplying the U.S. government with goods or services under a procurement agreement, ensure someone has reviewed whether any relevant Buy America criteria are met. Enforcement is on the rise so include proactive requirements for antiboycott compliance and anti-corruption representations in agreements and ensure training is being done as needed for both employees and third parties to decrease the risk of violations. Most trade-related rules and regulations apply to U.S. persons and U.S. companies both directly and indirectly. For example, if a third-party distributor sells your product to a person in Iran without required authorization – you can be liable.
Importing is Getting More Complicated
Before you commit to acquiring, merging with, or working with any business, ensure the security of its supply chain and that it is reporting the correct country of origin, classification codes, and other required information properly. Confirm that it has all relevant IP rights and that there are no infringing marks being used, and determine whether any anti-dumping or countervailing duties might apply to the imported product. If it turns out that additional, high tariffs are due – not only may penalties be imposed, but the government will also demand interest on its unpaid revenue. So, when drafting agreements consider representations from parties to minimize risks of wrong or missing information, changing regulations, and government enforcement cases, limit your liability if possible, and choose INCOTERMS (contract terms that determine which party has responsibly shipped goods at any time during the shipping process) wisely to limit exposure.
Sanctions Apply To all of Your Customer and Supplier Relationships
Like import regulations, U.S. sanctions prohibitions and restrictions are also expanding at a steady rate. To protect yourself and your business in this dynamic and fast-changing environment, ensure that any target companies or business partners already have sanctions compliance programs and are pro-actively complying with economic sanctions and associated mandatory requirements. This is an area in which you want to limit successor and indirect liability, as penalties can be extremely high. You don’t want to learn after the fact that your business partner has been buying inputs from or selling your product to a restricted party in China. So, for your own best interest, take the initiative to educate your partners as needed and get your information and inspection rights regarding the supply chain, indirect sales, and distribution network in writing.
Export Requirements Can Apply in the US Too
Similarly, export laws also carry a specific set of risks and liabilities for exporters. Filing and licensing requirements are complex and the rules apply broadly to all U.S. origin goods and technologies (even online only and SaaS products). Ensure that any target company or potential business partner has determined the correct export classification for its products and technology before you commit to investing, acquiring, or merging. Look out for red flags that products are being transshipped to countries without the proper authorizations. Similarly, if you are going to contract with an agent or distributor, make sure they understand export compliance because your liability does not end when you hand over the product.
Further, export classifications are no longer something companies only need to know if they export physical products to locations outside of the U.S. Export controls is also implicated if you share technology domestically in the U.S. with foreign nationals. and export classification can be a determining factor in whether a CFIUS (Committee on Foreign Investment in the U.S.) filing to the Department of Treasury is required before closing a deal – and this filing requirement may apply regardless of whether the target company exports at all.
Update Your Agreements and Compliance Materials
The government is expanding its enforcement initiatives and broadening its scope of review in corporate criminal enforcement cases. Thus, it is worth your time to slow down and do your homework to avoid bigger problems later. Talk to your Colleagues. Identify whether if you are already addressing these issues, and if not, create a plan to work trade reviews into your regular processes and workflows.
Don’t let simple compliance actions slip through the cracks. If you have compliance materials- read them and ensure they are up to date and are useful to protect the company. If not work with someone familiar with the risks and the law to update, retool, or enhance them.
Make your materials practically employable, set a tone at the top that compliance procedures are taken seriously, and ensure your standard agreements include trade provisions to minimize your risk. Once you’re comfortable that you have a solid compliance program or transaction checklist well-tailored to your business activities, complete an internal audit at set intervals to make sure that it’s being used and working.
Addressing trade risks before closing a transaction or signing a contract may save you not only from headaches but from getting to know the U.S. authorities all too well.
Abbey Baker, counsel at Lowenstein Sandler LLP, works with businesses and entrepreneurs seeking to expand their market position in the global economy while considering national security, trade regulation, and foreign policy concerns.
Doreen M. Edelman is the chair and founder of the Global Trade & Policy practice. She has more than 30 years of experience advising clients on the risks associated with export controls, customs matters and U.S. sanctions in cross-border M&A and investment transactions, and on the compliance requirements pertaining to technology, software, defense articles and services, and commercial goods.
The Shifting US-China Trade Landscape