Published on October 17, 2007
Slide1: INTERNATIONAL LEGAL ISSUES Sales Reps & Export Controls © Curtiss-Wright Corp. 2001 CWFS International Legal Issues CWFS Sales Meeting - January 2001 TOPICS: TOPICS SALES REPS CWC Policy No. 15 Certification Form Foreign Corrupt Practices Act (FCPA) CWC Policy No. 11 OECD Treaty EXPORT CONTROL What Kind of Common Contacts Raise Export Issues? Who Sets Rules? Which Rules Apply? What to Watch Out For? CWAT Data USING SALES REPRESENTATIVES: USING SALES REPRESENTATIVES CERTIFICATION FORM FOR PROPOSED SALES REP AGREEMENTS: CERTIFICATION FORM FOR PROPOSED SALES REP AGREEMENTS (1) I have been advised of the provisions of the Company's Code of Conduct and of the Foreign Corrupt Practices Act. (2) To the best of my knowledge, information and belief no transactions under or in furtherance of the requested agreement violate or will violate the Code of Conduct or the Foreign Corrupt Practices Act. (3) In addition to me, the following Curtiss-Wright* [*insert applicable subsidiary] employees are knowledgeable as to the requested agreement and the transactions to which it relates: (List Names of Other Employees) BRIBERY & CORRUPTION LAWS: BRIBERY & CORRUPTION LAWS International Anti-Bribery And Fair Competition Act of 1998 FCPA OECD CONVENTION Foreign Corrupt Practices Act (FCPA): Foreign Corrupt Practices Act (FCPA) Updated and Expanded by International Anti-Bribery And Fair Competition Act of 1998 Changes to Conform to the OECD Convention Governs U.S. Citizens in the U.S. Governs U.S. Citizens Overseas Governs Foreign Persons in the U.S. Foreign Persons Overseas Governed by Laws of Their Countries (and country in which doing business) ELEMENTS: ELEMENTS 1. “Covered Person” 2. Acting “Corruptly” 3. Using Interstate Commerce (except U.S. person acting corruptly outside of the U.S.) 4. Offers to pay, pays, promises to pay, or authorizes the payment of any money, or offer, gift, promise to give, or authorization of giving anything of value 5. To a “foreign official,” party or candidate (or intermediary) 6. For the purposes of influencing any act or decision of a foreign official in his official capacity, or inducing such official to do or omit to do any act in violation of the lawful duty of the official, or securing any improper advantage 7. In order to obtain or retain business FOREIGN OFFICIAL: FOREIGN OFFICIAL Any officer or employee of foreign government or any department, agency or instrumentality thereof Public International Organizations (e.g. Red Cross, ICAO, etc.) Foreign Government Controlled Companies includes airlines 51% + foreign Govt. owned even includes companies 49% foreign owned technically includes companies 1% foreign owned, but may be able to make arguments EXCEPTIONS & DEFENSES : EXCEPTIONS & DEFENSES Routine Government Actions: (e.g., small payments to expedite routine governmental actions e.g., issuing permit, processing visa) Payment Is Lawful Under Written Laws of the Foreign Country: Reasonable & Bona Fide Expenditures: (e.g., payment of reasonable bona fide travel and lodging foreign official directly related to promotion of our products or services) PENALTIES: PENALTIES Penalties for Violation of the FCPA would be a fine of up to $2,000,000 against the Corporation, and a fine of up to $100,000 together with imprisonment for up to five (5) years for each involved officer, director, employee, agent or stockholder. OECD Treaty: OECD Treaty Passed by __ Countries Includes Denmark, U.K., Switzerland Singapore has its own rules, but not signatory of OECD More Countries Adopting All the Time Rules Parallel Prohibitions Under FCPA Each country adopts its own laws “Levels the Playing Field” Comply with FCPA and You Will Generally Be in Compliance With OECD OECD Convention FAQ’s Page: http://www.oecd.org/daf/nocorruption/faq.htm OECD SIGNATORY COUNTRIES: OECD SIGNATORY COUNTRIES There are presently 34 signatories to the Convention, representing many of the world’s largest trading partners. This includes all 29 OECD countries (Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States) as well as 5 non-OECD countries (Argentina, Brazil, Bulgaria, Chile, and Slovak Republic). COUNTRIES THAT HAVE RATIFIED THE CONVENTION: COUNTRIES THAT HAVE RATIFIED THE CONVENTION Iceland (17 August 1998) Japan (13 October 1998) Germany (10 November 1998) Hungary (4 December 1998) United States (8 December 1998) Finland (10 December 1998) United Kingdom (14 December 1998) Canada (17 December 1998) Norway (18 December 1998) Bulgaria (22 December 1998) Korea (4 January 1999) Greece (5 February 1999) Austria (20 May 1999) Mexico (27 May 1999) Sweden (8 June 1999) Belgium (27 July 1999) Slovak Republic (24 September 1999) Australia (18 October 1999) Spain (14 January 2000) Czech Republic (21 January 2000) Switzerland (31 May 2000) Turkey (26 July 2000)* France (31 July 2000) Brazil ((24 August 2000)* Denmark (5 September 2000) Poland (8 September 2000)* Portugal (23 November 2000) “Red Flags”: “Red Flags” Country-Related Factors Product-Related Factors Agent’s Reputation Relationships w/ Foreign Government Refusals to Certify Compliance Lack of Internal Controls and Audits Payments Made Through Third Parties or To Third Countries Unsupported Cash Transactions CWC POLICY No. 11: CWC POLICY No. 11 Applies to All CW Employees and Subsidiaries (incl. Foreign Subsidiaries) CW Policy Is Against the Use of Unethical or Illegal Conduct to Advance the Interests of the Company No Fine or Penalty Imposed Against an Individual for Violation of FCPA Will Be Reimbursed Or Paid Directly or Indirectly by the Company Policy No. 11 Contains a Brief Summary of the FCPA Read It, Learn It, Live By It EXPORT CONTROLS: EXPORT CONTROLS Slide18: EXPORT CONTROL What Kind of Common Contacts Raise Export Issues? Who Sets Rules? Which Rules Apply? What to Watch Out For? CWAT Data What Kind of Common Contacts Raise Export Issues?: What Kind of Common Contacts Raise Export Issues? Foreign Customers Technical Data for Overseas RFP’s Foreign Suppliers/Subcontractors Domestic Companies --Foreign Owned Who Sets Rules?: Who Sets Rules? State Department (http://www.pmdtc.org/) Arms Export Control Act International Trading in Arms Regulations (ITAR) United States Munitions List (USML) Commerce Department (http://www.bxa.doc.gov/) Export Administration Act Export Administration Regulations (EAR) Commodities Control List (CCL) Treasury Department (http://www.ofactracker.com/) Office of Foreign Asset Control (OFAC) Regulations Which Rules Apply To CWFS?: Which Rules Apply To CWFS? CWFS Commercial Aircraft Parts Commerce Department (Generally No License Required) CWFS Military Aircraft Parts State Department (Generally License Required) Other CWFS Products Depends on Classification - Commerce or State Note: Treasury Department Asset Control Regulations Generally Apply To All CWFS Products (Sales to Prohibited Countries) THE BASIC FACTUAL INQUIRY: THE BASIC FACTUAL INQUIRY What is my item? How is it classified? Where is it going? How will it get there? Who else will “touch” the transaction? Who will receive it? What will be the end-use? What to Watch Out For?: What to Watch Out For? Embargoed/Restricted Countries & Groups Denied Entities Missiles (Significant Military Equipment) Embargoed Countries & Groupshttp://www.pmdtc.org/country.htm: Embargoed Countries & Groups http://www.pmdtc.org/country.htm Prohibited/Restricted Countries (as of January 2001) Afghanistan Liberia Armenia Libya Angola (UNITA) North Korea Azerbaijan Pakistan Burma Rwanda Belarus Somalia China (PR) Sudan Cuba Syria Cyprus Tajikistan Haiti UNITA (Angola) India Vietnam Indonesia Yemen Iran Yugoslavia (Serbia and Montenegro) Iraq Zaire Narcotics Traffickers Terrorists DENIED ENTITIES: DENIED ENTITIES HANDLING CWAT TECHNICAL DATA: HANDLING CWAT TECHNICAL DATA PENALTIES: PENALTIES Civil or Criminal Penalties Seizures and Forfeiture Fines up to $1 Million per violation or 5 times the export value Imprisonment up to 5 years Debarment and Suspension of Exporting Privileges Restriction or Revocation of Facility Clearances Debarment and Suspension from U.S. Government Contracting Q & A: Q & A ???????????? Where To Get Help? : Where To Get Help? The Web Sites Listed This Presentation Your “Friendly” Law Department I’m Done... Time to Wake Up!!: I’m Done... Time to Wake Up!!