Cross-Border Transactions

Businesses with certain links to the United States may have special concerns in the realm of international commerce.

One example of issues that such businesses should be aware of is the United States’ Foreign Corrupt Practices Act (FCPA). Under the FCPA, affected businesses and their owners, managers and agents, may be found civilly or criminally liable for providing certain benefits to foreign officials and officials of international organizations that may be provided with “corrupt intent.” The United States government often considers the types of benefits received as a factor through which such intent can be found. Unfortunately, under the FCPA, there is no bright line rule to determine what is permissible and what is not. Not-for-profit organizations are also not exempt from FCPA scrutiny.

Likewise, foreign governments and their instrumentalities may need to consider certain issues when engaging in cross-border transactions with entities in the United States. For example, the immunity of foreign governments under United States law is governed by the United States’ Foreign Sovereign Immunities Act (FSIA). Under the FSIA, a foreign government is generally immune from being sued in a U.S. court unless certain specific exceptions apply. A foreign government or its instrumentalities should take care not to lose immunity when it is available.

When entering into cross-border transactions, extra care must sometimes be taken. James Hsui, PLLC can assist in analyzing cross-border transactions in order to help ensure that your business, organization or non-profit is well positioned to move forward.

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