Category: International Law

DOJ Opinion on Key FCPA Issue Makes Sense, But What’s Next?

Sarah Coffey of Ifrah Law recently had an article regarding Key FCPA Issues published in The National Law Review:

We have previously advocated for the Department of Justice to employ a more narrow reading of the term “foreign official” in the Foreign Corrupt Practices Act. Therefore, we were pleased to see that the DOJ recently issued an opinion that parsed the definition and came to the conclusion that a member of a foreign royal family was not a “foreign official” under the FCPA. Although this is a positive development, it somewhat conflicts with the DOJ’s prior opinions and accordingly will probably serve to further muddy the FCPA waters.

In February 2012, an American lobbying firm approached the DOJ to request an opinion regarding the FCPA implications of its proposed partnership with a foreign consulting group. The consulting group was to act as its sponsor in providing lobbying services for the unspecified foreign country’s embassy in the U.S. The lobbying firm was concerned that this arrangement might implicate the FCPA because the foreign consulting group was owned, in part, by a member of the foreign royal family.

On September 18, the DOJ issued a statement finding that the royal family member was not considered a “foreign official” under the FCPA. The DOJ stated that, “[W]hether a member of a royal family is a ‘foreign official’ turns on such factors as (i) how much control or influence the individual has over the levers of governmental power, execution, administration, finances, and the like; (ii) whether a foreign government characterizes an individual or entity as having governmental power; and (iii) whether and under what circumstances an individual (or entity) may act on behalf of, or bind, a government.”

As the DOJ explained, in this instance the “Royal Family Member holds no title or position in the government, has no governmental duties or responsibilities, is a member of the royal family through custom and tradition rather than blood relation, and has no privileges or benefits because of his status.” The DOJ concluded that, “the Royal Family Member does not qualify as a foreign official under [the FCPA] so long as the Royal Family Member does not directly or indirectly represent that he is acting on behalf of the royal family or in his capacity as a member of the royal family.”

The DOJ surprised us by undertaking a reasonable, thoughtful, and fact-intensive analysis in finding that the royal family member was not a foreign official. However, the new standard invoked by the DOJ conflicts with the broad reading of “foreign official” that the DOJ has previously applied, which encompasses even employees of state-owned communications companies. Surely a telecom employee does not exert much control or influence “over the levers of governmental power,” nor would his government characterize him as having “governmental power.” Yet the DOJ found telecom employees to be foreign officials.

We applaud the DOJ for taking a reasonable approach in determining whether the royal family member is a “foreign official.” We encourage the DOJ to apply the same three factors every time it analyzes who is, and is not, a foreign official.

© 2012 Ifrah PLLC

Operational and Technical Changes for FACTA Compliance – January 30 – February 1, 2013

The National Law Review is pleased to bring you information about the upcoming Global Financial Markets – Operational and Technical Changes for FACTA Compliance:

key topics

 

  • Assess the full implications of the finalized FATCA regulation
  • Coordinate an optimal approach to operational, infrastructural and technical changes under FATCA
  • Identify strategies to effectively manage client accounts
  • Integrate existing internal procedures with FATCA compliance
  • Understand what is expected by the IRS

 

key features

 

  • Pre-Conference Workshop on January 30, 2013 for an Additional Cost:
  • Pre-Conference Workshop: The Intergovernmental Agreements: Changing the Face of International Tax lead by JP&MF Consulting and Mopsick Tax Law LLP

 

event focus

 

FATCA is amongst the biggest topics of debate in financial institutions across the globe. The effect that it will have on these institutions cannot be underestimated and its operational impact on the existing systems is set to be both time consuming and costly. The ability to successfully align all key stakeholders, including operations, technology, risk, legal and tax, will determine the ultimate cost of FATCA compliance. Moving on from mere interpretive matters, this GFMI conference will not only address key FATCA requirements but also discuss the practical impacts of IGAs and strategies for achieving operational and infrastructural efficiency.

The Operational and Technical Changes for FATCA Compliance Conference will be a two and half day, industry focused event, specific to Senior Executives working in Banks, Insurance and Asset Management Companies. Attendees will address key FATCA requirements, while discussing the practical implications of IGAs and strategies for achieving operational and infrastructural efficiency.

Key Themes of the Operational and Technical Changes for FATCA Compliance Conference Include:

1. Challenges of FATCA regulations and prospects for the final regulation

2. Achieving operational and infrastructural efficiency

3. Coordinating existing AML/KYC procedures with FATCA compliance

4. FATCA from the FFI’s perspective 5. Beyond banking: the challenges of FATCA implementation

6. Coping with the withholding obligation under FATCA

This is not a trade show; our conference series is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

Foreign Corrupt Practices Act Conference – October 18-19, 2012

The National Law Review is pleased to bring you information regarding the upcoming ABA Foreign Corrupt Practices Act Conference:

When

October 18 – 19, 2012

Where

  • The Westin Grand Hotel
  • 2350 M St NW
  • Washington, DC, 20037-1417
  • United States of America

Program Description

As enforcement of anti-corruption laws in the United States and abroad continues to be a top priority for law enforcement, the Institute will provide a timely and substantive briefing on developments to companies, their officers, and employees. This year’s program will continue to examine trends stemming from recent proceedings brought by the U.S. Department of Justice and the Securities and Exchange Commission (SEC) as well as address recent challenges to the FCPA both in Congress and the courts.

The Institute will also provide a more in-depth focus on certain recurring issues faced by practitioners and companies alike. Whether examining liability presented by other federal and non-U.S. laws in the event of a potential FCPA violation or minimizing liability in connection with complex international business transactions, the program will provide practical tips from experienced government, corporate, and private practitioners. In addition, the Institute will feature both an in-house perspectives panel and, for the first time, a panel dedicated to SEC enforcement and how it has evolved since the SEC’s establishment of its FCPA unit.

Canadian International Trade Compliance Conference – POSTPONED

THIS EVENT HAS BEEN POSTPONED BY THE ORGANIZER

The National Law Review is pleased to bring you information about the upcoming Canadian International Trade Compliance Conference:

Addressing the Global Trade Compliance Concerns Involving Export Controls, Custom Compliance and Cross Border Trade in CanadaEvent Date: September 12-14, 2012
Location: Toronto, Ontario, Canada
Key conference topics
  • Assess the latest export permit requirements in Canada with Pratt and Whitney Canada
  • Address re-exports of U.S. origin goods from Canada to comply with both Canadian and U.S. export controls with Future Electronics
  • Integrate an effective anti-corruption compliance program as part of a global trade compliance program with Methanex Corporation
  • Analyze supply chain security concerns when dealing with cross border trade with Stanley Black & Decker, Inc.
  • Uncover the updates to the Export Controls List and their impact upon Canadian companies with Research in Motion Limited

Currently, international trade compliance professionals need to stay up to date on the changing regulations within Canada and also abroad. With the changes to the Export Controls List and the ever-complex nature of Canadian-U.S. cross border trade, companies need to be aware of how these changes affect their international trade compliance programs.

Canada’s relationship with the U.S. makes it imperative that the International Trade Compliance community is informed on the impact that U.S. rules and regulations can have on Canadian companies.

Building upon the success of the 2nd Annual International Trade Compliance Conference, the marcusevans Canadian International Trade Compliance conference addresses the Global Trade Compliance Concerns involving export controls, customs compliance and cross border trade in Canada.

By attending this event, industry leaders will be able to overcome any potential challenges in crafting and sustaining a comprehensive trade compliance program.

Attending This Conference Will Enable You To:

1. Dissect the latest updates from the Department of Foreign Affairs and International Trade with Research in Motion Limited
2. Comprehend the U.S. Export Reform Initiative and the impact upon Canadian companies with Public Works and Government Services Canada
3. Develop and understanding of import value and transfer pricing with Ericsson Canada Inc.
4. Focus on NAFTA and other Free Trade Agreements with Plains Midstream Canada

Industry leaders attending this event will benefit from a dynamic presentation format consisting of workshops, panel discussions and case studies. Attendees will experience highly interactive conference sessions, 10-15 minutes of Q&A time after each presentation, 4+ hours of networking and exclusive online access to materials post-event.

Audience:

SVPs, VPs, Directors, Superintendents, Supervisors, Engineers, Specialists, Leaders and Managers from the Chemical, Petrochemical, and Refining Industries with responsibilities in:

  • EHS Environmental Health and Safety
  • Safety/Process Safety Management
  • Plant Management/Operations
  • Inspection/Reliability
  • Mechanical/Asset Integrity
  • Manufacturing/Technology
  • Training & Development

Foreign Corrupt Practices Act Conference – October 18-19, 2012

The National Law Review is pleased to bring you information regarding the upcoming ABA Foreign Corrupt Practices Act Conference:

When

October 18 – 19, 2012

Where

  • The Westin Grand Hotel
  • 2350 M St NW
  • Washington, DC, 20037-1417
  • United States of America

  • Program Description

As enforcement of anti-corruption laws in the United States and abroad continues to be a top priority for law enforcement, the Institute will provide a timely and substantive briefing on developments to companies, their officers, and employees. This year’s program will continue to examine trends stemming from recent proceedings brought by the U.S. Department of Justice and the Securities and Exchange Commission (SEC) as well as address recent challenges to the FCPA both in Congress and the courts.

The Institute will also provide a more in-depth focus on certain recurring issues faced by practitioners and companies alike. Whether examining liability presented by other federal and non-U.S. laws in the event of a potential FCPA violation or minimizing liability in connection with complex international business transactions, the program will provide practical tips from experienced government, corporate, and private practitioners. In addition, the Institute will feature both an in-house perspectives panel and, for the first time, a panel dedicated to SEC enforcement and how it has evolved since the SEC’s establishment of its FCPA unit.

The European Patent Office: A Helpful Guide for Inventors

Recently an article, The European Patent Office: A Helpful Guide for Inventors, written by Ivan T. Kirchev of Michael Best & Friedrich LLP was featured in The National Law Review:

Before entrepreneurs and startups try to protect their intellectual property rights in Europe, they must have a basic understanding of the European patent system and the ways that they can obtain European patent protection. Although European patent prosecution can be a complex and costly process, companies should certainly consider creating a European patent portfolio.

Geographically, Europe includes 45 countries. The European Patent Office (EPO), is a unified patent office located in Munich, Germany, created by the European Patent Convention (EPC) Treaty. The EPC includes 38 member states plus two extension states. The EPO offers a centralized procedure for filing a European patent application, enabling an inventor to make one patent filing in the EPO {e.g. either directly or by entering a national phase of a Patent Cooperation Treaty (PCT) application} instead of 38 national applications. Upon grant, the patentee can register and file translations of the patent in any of the previously designated individual member countries. By filing through the EPO, the local patent offices in each EPC country will not need to independently review the application. Unless the inventor is a resident of one of the EPO member countries, the inventor must file in the EPO through a European patent agent.

The process before the EPO includes the following main steps: filing, search, publication, examination, grant, opposition (if filed by a third-party), and payment of fees (until grant). If an application contains a plurality of independent claims, which is often the case when the application was originally filed in the U.S., applicants are invited to limit the number of independent claims before the search in the EPO begins. The best approach is to have one independent claim in each category (e.g. method or apparatus/system). If the number of independent claims is not so limited, the search will be carried out on the basis of the first independent claim in each category.

The EPO performs a prior art search and issues a European Search Report and Opinion. The Search Report is published within 18 months of filing of the EP application. Since 2011, search results from other patent offices are used during the search by EPO. For example, the EPO can use search results, search opinions or examination reports (i.e. at least a relevant part of the reports concerning the search) submitted by the Applicant from various origins (e.g. Japan, Korea, U.S., PCT). No translation of the foreign search results is necessary and no copies of cited prior art documents are required. Applicants can submit these search results either upon filing the EP application, at the entry of the national‐phase (PCT), or as soon as they become available. The search results from other patent offices have no binding effect and do not replace EPO search or examination.

Applicants must request examination of the EP application within six months of the filing of the European Search Report. Further, the Applicant is obligated to correct any deficiencies noted in the search opinion when requesting examination. During examination, the EPO can issue actions with various rejections or objections to the application. The Applicant can amend the pending claims of the EP application in order to overcome any such rejections presented by the EPO. After the EPO issues a decision to grant a patent, an opposition by a third-party may be filed against the application. The opposition procedure before the EPO is an administrative, inter parties procedure that allows any European patent granted by the EPO under the EPC to be opposed by any person from the public (no commercial or other interest whatsoever need be shown). An opposition must be filed within nine months from the publication of the mention of grant of the European patent in the European Patent Bulletin.

The European patent confers rights on its proprietor, in each designated country in which it is registered, from the date its grant is published in the European Patent Bulletin. Translation of a granted European patent must be filed in some EPC Contracting States to avoid a loss of that right. Therefore, filing and prosecuting an EP patent application can be expensive and requires payment of various fees. For example, annuity payments to the EPO are required each year the EP application is pending. If the inventor registers the patent in any of the EPC member countries, the inventor must pay annuities to maintain the patent in that country as well.

The European Union has plans to introduce a Unitary Patent in the near future. As discussed above, applications for a European Patent currently need to be filed with the EPO in Munich and then translated and refiled in each applicable EPO member state. Under a Unitary Patent system, applications will only be translated into the three official languages of the EPO – English, German, and French – and they will not need to be filed in each country where the patent is to be recognized. Twenty-five EU member states will participate in the Unitary Patent system, with Spain and Italy currently declining to join.

© MICHAEL BEST & FRIEDRICH LLP

Canadian International Trade Compliance Conference – September 12-14, 2012

The National Law Review is pleased to bring you information about the upcoming Canadian International Trade Compliance Conference:

Addressing the Global Trade Compliance Concerns Involving Export Controls, Custom Compliance and Cross Border Trade in CanadaEvent Date: September 12-14, 2012
Location: Toronto, Ontario, Canada
Key conference topics
  • Assess the latest export permit requirements in Canada with Pratt and Whitney Canada
  • Address re-exports of U.S. origin goods from Canada to comply with both Canadian and U.S. export controls with Future Electronics
  • Integrate an effective anti-corruption compliance program as part of a global trade compliance program with Methanex Corporation
  • Analyze supply chain security concerns when dealing with cross border trade with Stanley Black & Decker, Inc.
  • Uncover the updates to the Export Controls List and their impact upon Canadian companies with Research in Motion Limited

Currently, international trade compliance professionals need to stay up to date on the changing regulations within Canada and also abroad. With the changes to the Export Controls List and the ever-complex nature of Canadian-U.S. cross border trade, companies need to be aware of how these changes affect their international trade compliance programs.

Canada’s relationship with the U.S. makes it imperative that the International Trade Compliance community is informed on the impact that U.S. rules and regulations can have on Canadian companies.

Building upon the success of the 2nd Annual International Trade Compliance Conference, the marcusevans Canadian International Trade Compliance conference addresses the Global Trade Compliance Concerns involving export controls, customs compliance and cross border trade in Canada.

By attending this event, industry leaders will be able to overcome any potential challenges in crafting and sustaining a comprehensive trade compliance program.

Attending This Conference Will Enable You To:

1. Dissect the latest updates from the Department of Foreign Affairs and International Trade with Research in Motion Limited
2. Comprehend the U.S. Export Reform Initiative and the impact upon Canadian companies with Public Works and Government Services Canada
3. Develop and understanding of import value and transfer pricing with Ericsson Canada Inc.
4. Focus on NAFTA and other Free Trade Agreements with Plains Midstream Canada

Industry leaders attending this event will benefit from a dynamic presentation format consisting of workshops, panel discussions and case studies. Attendees will experience highly interactive conference sessions, 10-15 minutes of Q&A time after each presentation, 4+ hours of networking and exclusive online access to materials post-event.

Audience:

SVPs, VPs, Directors, Superintendents, Supervisors, Engineers, Specialists, Leaders and Managers from the Chemical, Petrochemical, and Refining Industries with responsibilities in:

  • EHS Environmental Health and Safety
  • Safety/Process Safety Management
  • Plant Management/Operations
  • Inspection/Reliability
  • Mechanical/Asset Integrity
  • Manufacturing/Technology
  • Training & Development

Foreign Corrupt Practices Act Conference – October 18-19, 2012

The National Law Review is pleased to bring you information regarding the upcoming ABA Foreign Corrupt Practices Act Conference:

When

October 18 – 19, 2012

Where

  • The Westin Grand Hotel
  • 2350 M St NW
  • Washington, DC, 20037-1417
  • United States of America

  • Program Description

As enforcement of anti-corruption laws in the United States and abroad continues to be a top priority for law enforcement, the Institute will provide a timely and substantive briefing on developments to companies, their officers, and employees. This year’s program will continue to examine trends stemming from recent proceedings brought by the U.S. Department of Justice and the Securities and Exchange Commission (SEC) as well as address recent challenges to the FCPA both in Congress and the courts.

The Institute will also provide a more in-depth focus on certain recurring issues faced by practitioners and companies alike. Whether examining liability presented by other federal and non-U.S. laws in the event of a potential FCPA violation or minimizing liability in connection with complex international business transactions, the program will provide practical tips from experienced government, corporate, and private practitioners. In addition, the Institute will feature both an in-house perspectives panel and, for the first time, a panel dedicated to SEC enforcement and how it has evolved since the SEC’s establishment of its FCPA unit.

Canadian International Trade Compliance Conference – September 12-14, 2012

The National Law Review is pleased to bring you information about the upcoming Canadian International Trade Compliance Conference:

Addressing the Global Trade Compliance Concerns Involving Export Controls, Custom Compliance and Cross Border Trade in CanadaEvent Date: September 12-14, 2012
Location: Toronto, Ontario, Canada
Key conference topics
  • Assess the latest export permit requirements in Canada with Pratt and Whitney Canada
  • Address re-exports of U.S. origin goods from Canada to comply with both Canadian and U.S. export controls with Future Electronics
  • Integrate an effective anti-corruption compliance program as part of a global trade compliance program with Methanex Corporation
  • Analyze supply chain security concerns when dealing with cross border trade with Stanley Black & Decker, Inc.
  • Uncover the updates to the Export Controls List and their impact upon Canadian companies with Research in Motion Limited

Currently, international trade compliance professionals need to stay up to date on the changing regulations within Canada and also abroad. With the changes to the Export Controls List and the ever-complex nature of Canadian-U.S. cross border trade, companies need to be aware of how these changes affect their international trade compliance programs.

Canada’s relationship with the U.S. makes it imperative that the International Trade Compliance community is informed on the impact that U.S. rules and regulations can have on Canadian companies.

Building upon the success of the 2nd Annual International Trade Compliance Conference, the marcusevans Canadian International Trade Compliance conference addresses the Global Trade Compliance Concerns involving export controls, customs compliance and cross border trade in Canada.

By attending this event, industry leaders will be able to overcome any potential challenges in crafting and sustaining a comprehensive trade compliance program.

Attending This Conference Will Enable You To:

1. Dissect the latest updates from the Department of Foreign Affairs and International Trade with Research in Motion Limited
2. Comprehend the U.S. Export Reform Initiative and the impact upon Canadian companies with Public Works and Government Services Canada
3. Develop and understanding of import value and transfer pricing with Ericsson Canada Inc.
4. Focus on NAFTA and other Free Trade Agreements with Plains Midstream Canada

Industry leaders attending this event will benefit from a dynamic presentation format consisting of workshops, panel discussions and case studies. Attendees will experience highly interactive conference sessions, 10-15 minutes of Q&A time after each presentation, 4+ hours of networking and exclusive online access to materials post-event.

Audience:

SVPs, VPs, Directors, Superintendents, Supervisors, Engineers, Specialists, Leaders and Managers from the Chemical, Petrochemical, and Refining Industries with responsibilities in:

  • EHS Environmental Health and Safety
  • Safety/Process Safety Management
  • Plant Management/Operations
  • Inspection/Reliability
  • Mechanical/Asset Integrity
  • Manufacturing/Technology
  • Training & Development

Foreign Corrupt Practices Act Conference – October 18-19, 2012

The National Law Review is pleased to bring you information regarding the upcoming ABA Foreign Corrupt Practices Act Conference:

When

October 18 – 19, 2012

Where

  • The Westin Grand Hotel
  • 2350 M St NW
  • Washington, DC, 20037-1417
  • United States of America

  • Program Description

As enforcement of anti-corruption laws in the United States and abroad continues to be a top priority for law enforcement, the Institute will provide a timely and substantive briefing on developments to companies, their officers, and employees. This year’s program will continue to examine trends stemming from recent proceedings brought by the U.S. Department of Justice and the Securities and Exchange Commission (SEC) as well as address recent challenges to the FCPA both in Congress and the courts.

The Institute will also provide a more in-depth focus on certain recurring issues faced by practitioners and companies alike. Whether examining liability presented by other federal and non-U.S. laws in the event of a potential FCPA violation or minimizing liability in connection with complex international business transactions, the program will provide practical tips from experienced government, corporate, and private practitioners. In addition, the Institute will feature both an in-house perspectives panel and, for the first time, a panel dedicated to SEC enforcement and how it has evolved since the SEC’s establishment of its FCPA unit.