International Business Law Advisor

Insights on International Litigation & Transactions

How to Draft a Non-Circumvention, Non-Disclosure Agreement (NCNDA) for Your International Business Venture.

Posted in Business Transactions, international business

non-circumvention non-disclosure agreement, NCNDA, noncircumvention agreement, nondisclosure agreementWith all the international business ventures our firm is handling, it’s no surprise that we are frequently asked to draft a Non-Circumvention and Non-Disclsoure Agreement (NCNDA).

An NCNDA is used when a business needs to keep intellectual property and other confidential information secure in the early stages of a business venture arranged by brokers or intermediaries.

The main purpose of an NCNDA is to ensure that: 1) the intermediaries (brokers who introduce the buyer and seller are not by-passed; and 2) the intellectual property disclosed during the negotiations is not disclosed to any third parties.

In the event the parties choose not to pursue a business relationship, neither party can use the other party’s information. This is why a non-circumvention agreement is almost always signed together with a non-disclosure agreement.

If an NCNDA is breached, the party who revealed the confidential information could be sued for damages, be forced to pay back lost profits, and in some cases, be held in contempt of court (which could lead to criminal charges). Continue Reading

International Money Laundering. How to Make Sure Your International Business Stays Clean (Infographic)

Posted in Corporate Governance, International Banking, international business, international law, International Litigation
international money laundering, anti money laundering compliance, how to avoid money laundering, international anti money laundering compliance

 Our firm is currently assisting in the prosecution of an international white collar crime matter.   The allegations read like a James Bond novel and are so outlandish that film rights are being discussed.

Like I said, this is interesting stuff.

The thrust of the case centers on an international financial  institution  that uncovered a would-be depositor’s scheme to launder money through a network of international banks.

While the case covers jurisdictions around the world, it speaks volumes of  how successful the United State’s aggressive anti-money laundering policies have been.

This is just one of many recent cases that demonstrate why  your international business must have an effective anti-money laundering (AML) compliance policy in place.

And if yours does not, I strongly urge your company to put one together as soon as possible.

For anyone wanting to learn more about ALM, I recommend the  International Compliance Association and the excellent AML conferences organized by Academy Finance.

I chose to include the infographic below because it does such a great job of capturing the money laundering fundamentals:

Yes, You Must Disclose All International Property Holdings When Filing for Bankruptcy in the U.S.

Posted in Business Transactions, International Banking, International Litigation

international bankruptcy attorney, international bankruptcy, foreign property, international assets, international proper

I recently came across a situation where someone unwisely sought the advice of one of those late night television bankruptcy attorneys offering the deal of the century. You know the one.

Well, unfortunately certain foreign property holdings were not disclosed and the court came very close to denying the debtor’s bankruptcy petition.

In a very similar case, the court held the debtor in contempt for failing to disclose foreign real estate.

In both cases, the debts were ultimately discharged but the added stress and anxiety could have been avoided if the debtors were properly advised to list and disclose all foreign property holdings e.g., real estate, bank accounts, investments,  art collections, jewelry—everything.  Continue Reading

Why “10 + 2” Does Not Always Equal 12: What You Need to Know About the U.S. Importer Security Filing Rule.

Posted in Corporate Governance, international trade

Miami international trade, international trade attorney, international trade lawyer, Miami attorney, Miami lawyer, international attorney, international business attorney, international business lawyerLast month I received an email from a potential foreign client regarding the Importer Security Filing (ISF) Rule, known in the international shipping industry as the “10+2” Rule.

Specifically, this person wanted to know what the penalties were for failing to comply with the rule’s filing requirements.

I’m not sure whether it was a coincidence or whether the writer knew that the U.S. Customs and Border Protection (CBP) began the liquidated damages phase of ISF enforcement less than one month ago.

Because this is one of many inquires I’ve received since the 10 + 2 Rule was implemented several years ago, I thought it would be a good idea to provide a brief over view of the ISF or 10 + 2 Rule.

What is the “10+2” Rule?

The ISF is commonly referred to as “10+2” because importers or their agents have to electronically submit ten data elements to customs 24 hours prior to vessel departure to the U.S., and ocean carriers have to submit two additional data elements

This additional information is required to assist United States Customs and Border Protection (CBP) in identifying containers that may pose a risk for terrorism.  Any suspicious containers undergo scanning or physical inspection.   Continue Reading

Yes, Your Foreign Company Can File for U.S. Chapter 11 Bankruptcy Protection.

Posted in Business Transactions, International Banking, International Investments, International Litigation

foreign company, chapter 11 bankruptcy, bankruptcy court, international business, international attorney, international business lawyerSeveral months ago, I handled a matter on behalf of a foreign company that filed for Chapter 11 bankruptcy protection here in the U.S.

When I explained the general details of this case to a seasoned bankruptcy attorney, whom I had run into at legal seminar, I was surprised that he didn’t think it was possible for a foreign company to do so.

I went on to tell them that not only was it possible but it had become quite common in the past several years, particularly with foreign shipping companies.

I mention this because the Wall Street Journal just published an excellent article by Jacqueline Palank precisely on this topic.

The article, Q&A: Foreign Companies Seek Protection of U.S. Chapter 11, serves as an excellent primer for anyone wanting to know why many foreign companies prefer to file for bankruptcy protection in the U.S. rather than in their home country. Continue Reading

How Lawyers (And Lawsuits) Drive Our Economy.

Posted in Random Thoughts and Observations

international attorney, international business attorney, international business lawyer, lawyer economyThe first thing we’ll do, let’s kill all the lawyers.”

This famous quote from Shakespeare’s Henry IV   has become a rallying cry, of sorts, for those who bash the legal profession.  What they forget, however, is the context of the statement.

In fact, the reason the lawyers must be killed is not to cure political corruption, nuisance lawsuits and the various other malfeasant practices ascribed to the legal profession; the reason the lawyers must be killed is so that a tyrannical king can impose his will on the populace.  Just as the clergy stands in the way of the heathen, so too the lawyers, with their knowledge of and reverence for the laws of the people, stand in the way of the tyrant.

Forget About that Awful Pew Study 

So it’s disturbing when one reads of the results of a recent poll conducted by Pew Research.  Of ten popular vocations, the legal profession is the one held in the least esteem; the one least admired, least seen as a contributor to the social good.

Perhaps even more disturbing is the fact that the percentage of participants who view the legal profession favorably fell by 5 full points (from 23% to 18%) since the poll was last conducted in 2009.  So, not only is the perception of the legal profession lower than doctors, teachers, engineers and artists, it’s sinking.

Are lawyers really the bane of society of our society?  Are they really wrecking our country?   Do they contribute anything worthwhile?  Sure, we can point to the Public Defender who represents those who cannot afford representation, the civil rights advocate who works pro bono and the legal eagle who fights for the little guy when corporate America is stomping on his toes.  But while these are all legitimate, there’s another way the legal profession has a positive impact on our lives, a very positive impact.

The Role of  Lawyers (and Lawsuits)  in Stimulating Our Economy

In 1992, a 79 year old woman spilled a cup of McDonald’s coffee on her lap, causing third degree burns and necessitating costly medical treatments.  She sued McDonald’s and was awarded more than $3 million in punitive damages by a jury.  While the details of the case are far more complicated, it became the poster child for the argument against frivolous lawsuits.

But consider the case from another perspective:  what if every time you ate at a fast food restaurant (or any restaurant, for that matter,) you faced the real possibility of injury, illness or even death?  The answer is simple:  you’d eat at home.  There simply would be no restaurant industry, and thousands fewer jobs. Continue Reading

Concordia Lawsuits Kicked Back to Miami-Dade Court Following Carnival Corp’s Boneheaded Defense Strategy.

Posted in international business, International Litigation

international litigation, international attorney, defense attorney, carnival corporation lawsuit, miami attorneyMy second choice for the title of this post was “Hey Carnival Corp.  Defense Team– What in the World Were You Thinking?”

This case is a classic example of what not to do as a defense attorney—remove a claim to federal court based on a sophisticated area of law you know nothing about.

As the Carnival removal action illustrates, don’t take your chances on this ill-conceived defense strategy.

It will backfire.  Badly.

Let me back up a moment and briefly explain.

Yesterday, a federal appeals court remanded lawsuits filed by passengers injured in the Costa Concordia cruise shipwreck to Miami-Dade Circuit Court.

The U.S. Court of Appeals for the 11th circuit ruled that two multi-plaintiff cases didn’t qualify for removal under the Class Action Fairness Act (CAFA). Continue Reading

What Psychology Can Teach You About Global Outsourcing.

Posted in International Investments, international law, International Litigation, international manufacturing, international trade

outsourcing, international business, international attorney, supply chain, miami international attorneyJust yesterday I received a call from a businessman looking to outsource a good part of his company’s assembly operation to another country.

While I would prefer that the company keep its operations division close to home, I understand the realities of today’s global market.

In a world where a company’s success hinges on the slimmest of margins, every penny that a business can save on assembly or production costs helps to keep the doors open.

Outsourcing is a solid strategy to save costs but it’s not without its risks.

The recent collapse of an eight-story garment factory in Bangladesh was a warning for every company that has outsourced its production overseas.

As the Bangladesh tragedy shows, every outsourced link along the supply and production chain holds the risk for exposing the home company to litigation and even bankruptcy. Continue Reading

International Litigation Costs: A Comparative Study.

Posted in Dispute Resolution, International Arbitration, international law, International Litigation

international attorney, international litigation, international litigation costsAs readers of this blog know, I’m a big advocate for the arbitration of international disputes. However, the fact remains that a great deal of cross-border disputes result in costly international litigation.

I see that a lot here in Miami, where our firm’s international practice based.  There are literally hundreds of  lawsuits filed here that could have easily been resolved by way of arbitration.

While there are many reasons why the adverse parties did not include an arbitration provision in their international agreement, the cost of just the jurisdictional phase of international litigation can quickly exceed the overall cost of arbitration.

The costs associated with litigation varies widely depending on the country where the international lawsuit is filed. Continue Reading

International Arbitration in Miami is on the Rise. Here’s Why.

Posted in International Arbitration, international business, International Investments, international law, International Litigation

Miami international attorney, Miami business attorney, international arbitrationWhenever someone learns that our  law firm (based in Miami) is currently handling a major international arbitration matter against the Kyrgyz Republic at the Hague,  they almost always ask “why is a complex case like that being handled in Miami?”

The answer is straightforward.

Over the last decade Miami has become one of the primary players on the international arbitration scene– it’s behind only New York and Los Angeles in terms of the volume of  international arbitration matters being handled in the U.S..

The increase in Miami attorneys trained to handle international arbitration matters, along with Miami’s diverse culture and favorable climate,  has enticed many foreign firms to choose Miami for their cross-border disputes over  more established cities such as London and Paris.

As Siobhan Morrissey points put in the Miami Herald article, Arbitration cases a growing revenue stream for law firms, a sure sign of  Miami’s meteoric rise in the arbitration world is its relationship with  the International Council for Commercial Arbitration (ICCA), which recently chose Miami to host its 22nd congress in 2014. Continue Reading