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Law and Ethics: Practical

Requirements for International


Trade
Law and Ethics: Practical
Requirements for International Trade

1
Legal Considerations in International Trade
Describes world legal systems and international agreements and bodies related to the legal requirements of
international trade activities

2
International Contracts and Partnership Agreements
Describes the legal requirements and processes involved when drafting and entering international contracts
and agreements, including risk mitigation and contract disputes

3 Protection of Intellectual Property in International Trade


Describes the importance of understanding legal issues related to the protection of intellectual property
when entering a foreign market

4 Ethical considerations in International Trade


Describes the nature of ethics and corporate responsibility, and the importance of a code of ethics/conduct
when entering a foreign market

Continued…

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Law and Ethics: Practical
Requirements for International Trade

5
Aligning International Trade Initiative with Best Practices and
Legal Requirements
Describes a systematic process to align market entry strategies with legal requirements and best practices,
including implementing, establishing and following a code of ethics/conduct

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Module Learning Outcomes
Upon successful completion of this module, the individual will be able to:

Describe the relevant legal environment related to international market entry and the
1 factors that can restrict or support international trade ventures.
Ensure that international entry strategies for exporting, importing or directly investing
2 in a foreign market will meet the domestic and international legal requirements.
Employ professional legal counsel and regulatory assistance as appropriate to ensure
maximum risk identification and mitigation in international markets when involved in
3 negotiating, contracting, and direct foreign investment involving legal or regulatory
compliance.
Describe elements of binding contracts that outline the rights, obligations and
4 considerations of the parties involved in international transactions.
Ensure protection of intellectual property rights in the international market by making
5 use of professional assistance to comply with legal requirements.
Continued…

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Module Learning Outcomes, Continued
Upon successful completion of this module, the individual will be able to:

Establish and document a corporate code of ethics related to international trade and
6 identify possible components of a global ethics policy.

Implement codes of ethics for international trade and develop processes for
7 monitoring compliance and rectifying issues among employees, partners, suppliers
and distributors.

Develop strategies that follow best practices and incorporate ethical principles and
8 decision making in foreign market entry ventures.

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Reflect on Your Experience
Reflect on your past experience and answer the following questions to the best of your ability.

Have you ever worked with lawyers in contract negotiations? What was most helpful
1 about the experience that you can apply to future negotiations?

Have you been directly involved in exporting or importing goods? Did the process
2 involve legal problems? If costly and problematic, how could they have been
avoided?

Have you ever worked in an overseas assignment? If so, did you run into legal or
3 ethical difficulties because of a lack of knowledge of local laws or customs?

4 Have you ever raised an ethical concern at work? If so, how was it handled?

Is corporate social responsibility something you practice? If yes, how is this reflected
5 in your business practice? If no, why not?

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Law and Ethics: Practical Requirements for
International Trade

UNIT 1
Legal Considerations in
International Trade
◎ What is the Law?
◎ Sources of Law
◎ International Organizations
◎ International Trade Agreements
◎ Special Economic Zones
◎ World Legal Systems and Courts
◎ Foreign Market Entry Activities and Legal Considerations
◎ Trade Protection and Prohibition: Laws and Regulations
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Why Is This Important?

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What is the Law?
Law is the set of rules in a society intended to control the actions
of its citizens.
Law is influenced by moral, social, political and economic values
which vary by country.
Laws are generally of three types, which correspond to their
function in society.
o Laws that establish and protect rights and privileges

o Laws that restrict rights and privileges

o Laws that provide mechanisms for control or enforcement of rights and privileges

See Figure 1.1 – The Three Types of Laws

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Three Types of Laws

FIGURE 1.1

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Sources of Law

Legal systems vary among nations, however some sources are


common among many countries.
o Constitution

o Declaration of citizen rights and freedoms

o Customary law

o International treaties

o Statutes

o Regulations

o Court decisions

See Table 1.1 – Sources of Law

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Sources of Law, Continued

Federal Systems and National Jurisdictions


o In countries with federal systems, the laws, regulations and courts operate on federal,
provincial/state and municipal levels.

International Law
o Public International Law, e.g. armed conflict, peacekeeping, human trafficking

o Private International Law, e.g. conflict regarding location and jurisdictional issues

o International Treaties (also known by other names, e.g. Charters, Declarations, Protocols)

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International Organizations

Governing bodies include:


o International Labour Organization (ILO)

o World Health Organization (WHO)

o World Customs Organization (WCO)

o United Nations Conference on Trade and Development (UNCTAD)

o World Trade Organization (WTO)

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International Organizations, Continued
The World Trade Organization is the primary global international
organization dealing with the rules of trade between nations. It
ensures that trade flows smoothly, predictably and freely.
o Goods and Services
o Entrepreneurial Opportunity
o Intellectual Property
o Dispute Settlement
o Statistics
o Criticism

See Figure 1.2 – Trade Volume Statistics from WTO Members

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Trade Volume Statistics from WTO Members

FIGURE 1.2

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International Trade Agreements
Global Trade Agreements Multilateral and Bilateral
o Commitment to reduce customs tariffs and Trade Agreements
eliminate other trade barriers o Importing and exporting services
o To open and maintain open services markets o Intellectual property
o Set procedures for settling disputes o Foreign investment
o May prescribe special treatment for o Government procurement
developing countries

The North American Free Trade Agreement


See Table 1.2 – Provisions of NAFTA

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International Trade Agreements, Continued

The North American Free Trade Agreement


A regional trade agreement between the U.S., Canada and Mexico
under which tariffs on 99 percent of traded goods were abolished
over time.
o Market access for goods

o Rules of origin

o Customs

o Protection for Intellectual Property (IP)

See Table 1.2 – Provisions of NAFTA

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International Trade Agreements, Continued

The Single European Act


Focus of the Single European Act
o Goods
• All frontier controls were to be removed
o Persons • Mutual recognition of product standards
• Public procurement opened to non-national
o Services suppliers
• Barriers to competition in retail banking and
o Capital insurance lifted
• Restrictions to foreign exchange transactions
Other Trade Agreements removed
• Restrictions on sabotage eliminated
o Over 400 Regional Trade Agreements

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Special Economic Zones
Special Economic Zones (SEZs) include the following principles:
o Geographical delimitation of SEZ areas

o Management of the SEZ by a single authority

o Physical location within the SEZ provides eligibility for business start ups

o Separate customs area with streamlined procedures

SEZ characteristics:
o Minimal requirements for documentation

o Non-cumbersome regulatory framework

o Generous economic incentives

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World Legal Systems and Courts

Civil Law World Court Systems

Common Law See Table 1.3 – Court Types Around the World

Customary and Religious Law


• Shariah Law

• Mixed Law Systems

• Asian Legal Systems

See Figure 1.4 – Chinese Concepts of Law

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Chinese Concepts of Law

FIGURE 1.4

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World Legal Systems and Courts, Continued

World Court Systems

o Court of First Instance o Specialized Tribunal

o Court of Appeal o Family Courts

o Supreme Court o Probate Courts

o Small Claims Courts o Other Courts

o Municipal Courts

See Table 1.3 – Court Types Around the World

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Foreign Market Entry Activities
and Legal Considerations

Legal Considerations for Exporting


Hague/Visby Rules
o Exporting goods
• Ensures that the holds, refrigeration
o Restrictions on the export of goods units, cooling chambers are fit and safe
for reception, carriage and preservation
o Export controls • Make the ship seaworthy
• Properly staff, equip and supply the ship
o The Wassenaar Arrangement

o Exporting services

See Figure 1.5 – Exporting Goods Checklist

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Exporting
Goods Checklist

ADAPTED FIGURE 1.5

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Foreign Market Entry Activities
and Legal Considerations, Continued
Legal Considerations for Importing
Most countries have some restrictions on imported goods
and services.
Importing Goods
o Evaluation o Damages

o Refunds o Shortages

o Drawbacks o Warehousing

o Amendments o Time limits

o Appeals

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Foreign Market Entry Activities
and Legal Considerations, Continued
Customs Tariff
Tariff Treatment
o General Tariffs

o Most Favoured Nations (MFN)

o General Preferential Tariffs

o Trade Agreements

Customs Valuation
See Figure 1.6 – Steps of the Customs Process

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Steps of the Customs Process

Classify the goods

Value the goods

Apply the relevant duty rate

Do the calculation

FIGURE 1.6

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Steps of the Customs Process, Continued

1
STEP CLASSIFY THE GOODS
o Classify goods accurately, using Harmonized Commodity Description Coding System

VALUE THE GOODS

2
STEP o Delivery costs o Packaging
o Commissions o Processing costs
o Royalties and licensing fees

APPLY THE RELEVANT DUTY RATE

3
STEP Examples: o Generalized System of Preferences (GSP)
o Most Favoured Nation (MFN) Duty
o Special Duty

STEP
DO THE CALCULATION

4
o Multiply duty rate by the value of the o Apply additional taxes, (e.g. sales tax on
product good or services, withholding taxes on
o Check customs law of applicable royalties)
country

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Foreign Market Entry Activities
and Legal Considerations, Continued
Customs Documentation and Processes
o Inaccurate/Incomplete documents can cause delays or denial of entry

o Experienced customs brokers accurately handle documentation and processes

o Customs brokers have expert knowledge of specific port of entry

o Different countries have different documentation requirements

See Table 1.4 – Common Documentation Require by Canadian and U.S. Authorities
See Table 1.5 – EU Product Classification System

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Foreign Market Entry Activities
and Legal Considerations, Continued

Importing Services
o Intellectual Property and contract laws vary

o Foreign market’s judicial system

o Obtain experienced counsel

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Legal Considerations for Foreign Direct Investment

FDI is when a firm invests directly in facilities to


FDI: Two Forms:
produce and/or market a product in a foreign country.
• Greenfield
Many legal restrictions: Investment
o Restrictions on allowable percentage of foreign equity ownership • Acquisition or
Merger
o Requirements to hire foreign nationals
Investment
o Prohibition of foreign nationals or companies owning real estate
o Restrictions on technology transfers
o Restrictions in industry segments in which foreign parties can invest
o Requirements for host country content in arts and entertainment
o Immigration restrictions
o Limitations on capital that can be transferred

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Trade Protection and Prohibition:
Laws and Regulations
Protecting Domestic Industries
o Non-Tariff Trade Barriers

o Anti-Dumping and Countervailing Duties

See Figure 1.7 – WTO Anti-Dumping Statistics: 2014

o Competition Law

o Bid Rigging

See Table 1.6 – Anti-Competitive Practices Prohibited Under Competition Laws in


Most Countries

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WTO Anti-Dumping Statistics: 2014

FIGURE 1.7
Source: Adapted from World Trade Organization, ‘Statistics on Anti-Dumping’

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Anti-Competitive Practices Prohibited Under
Competition Laws in Most Countries

Continued… TABLE 1.6


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Anti-Competitive Practices Prohibited Under
Competition Laws in Most Countries

TABLE 1.6
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Trade Protection and Prohibition:
Laws and Regulations, Continued
Protecting Values, Security and International Relationships
Laws and regulations that impact trade deals may be enacted for
reasons of security, national values or global relations.
o Social Policy o Anti-Corruption Laws

o Border Security o U.S. Foreign Corrupt Practices Act

o Data Privacy o The U.K. Bribery Act

o E-Commerce Transactions o The Canadian Corruption of Foreign Public

o Sanctions and Embargoes Officials Act

o Antiboycott Laws

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Trade Protection and Prohibition:
Laws and Regulations, Continued
Business Disputes and Mitigation Strategies

Due Diligence Disputes


Crucial when doing business Plan for disputes before the
in another country: formal business relationship:

• Acquire expertise • Is there a trade treaty?


• Employ letters of credit and secure • What are the legal/regulatory
payment methods requirements?
• Requirement clauses in contracts • Requirements for foreign investment
process?
• Research current trends
• Is ownership of shares or real estate
• Limit security access allowed?
• Can profits be moved?
• What are the tax consequences?

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Law and Ethics: Practical Requirements for
International Trade

UNIT 2
International Contracts and
Partnership Agreements
◎ What Are Contract Fundamentals?
◎ International Contracts
◎ Contractual Disputes

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Why Is This Important?

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What Are Contract Fundamentals?

Principles Elements
o A contract is voluntary. 1. Offer
o A clear offer must be made, and the offer 2. Acceptance
must be clearly accepted.
3. Considerations
o The contract must pertain to a legal
4. Legal intention
activity.
o Contracts must not subvert ethical
behaviours or expectations. See Figure 2.1 – The Four Corners of a Contract
o Contracting parties are legally bound.
o If contractual obligations are breached
without a valid legal reason, courts can
enforce them.

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The Four Corners of a Contract

FIGURE 2.1

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The Four Corners of a Contract

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What Are Contract Fundamentals? Continued

Letter of Intent
o Letter of Intent (LOI)

o Memorandum of Understanding (MOU)

Email Exchanges as Contracts


Battle of the Forms

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What Are Contract Fundamentals? Continued
Written Contracts – The Gold Standard
1. Be based upon an exchange of value, such as money for goods.
2. Identify the subject matter, the identities of the parties and the value exchanged.
3. Describe the promised duties and responsibilities of the parties in performing under
the contract.
4. Allocate risk between the parties.
5. Set forth a dispute resolution process.
6. Be mutually signed with an effective date and term.

Service Contracts

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International Contracts
International Negotiations Contract Annexes
o Rules governing formation, rights and obligations of parties • Products, prices and
minimum order quantities
involved and remedies or dispute resolution processes can be
different. • Product specifications
• Certifications
o Language, culture and national laws can be different.
• Support and training
o There are specific types of contracts that govern common • Inspection requirements
international ventures, e.g. The UN Convention on Contracts at origin
for the International Sale of Goods (CISG). • Guidelines for product
returns
See Figure 2.2 – Non-Eligible Goods Under the CISG
• List of competitors
• Third-party software
• List of non-exclusive
territories
• Service level agreement(s)

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Non-Eligible Goods Under the CISG

FIGURE 2.2

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International Contracts, Continued

Sample Checklist for Agent and


Agent and Distributor Relationships Distributor Contracts

Foreign Laws
There may be differentiators between a
distributor and an agent, depending on the
market.

FIGURE 2.3

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International Contracts, Continued

Foreign Investments

Franchises

Brand Licences

Joint Ventures

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International Contracts, Continued
Licensing Royalties
See Table 2.1 – Licensing Considerations o Royalties based upon gross, net or
product sales
The Licensing Agreement
o Royalties on sub-licences
o Is the agreement exclusive or non-exclusive?
o Minimum royalties
o Is agreement transferable or non-transferable?
o What is the field of use/territory? o Milestone payments
o Is there a right to sub-license? o Interest on overdue amounts
o What is the use of technology? o Abeyance of payment pending results of
o Is there a grant of licence to an affiliated infringement action
company?
o Will there be cross-licensing?
o Who owns improvements?

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Licensing Considerations

TABLE 2.1

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Contractual Disputes
Three Factors to Consider for Dispute Resolution
Risk Assessment

Settling Disputes
o Litigation

o Arbitration

o Mediation

FIGURE 2.4

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Contractual Disputes, Continued

Dispute Resolution Clauses


o Governing Law Clause

o Jurisdiction and Venue

Limitation of Liability and Indemnification Clauses

Assignment Clauses

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Law and Ethics: Practical Requirements for
International Trade

UNIT 3
Protection of Intellectual
Property in International Trade
◎ Copyright
◎ Patents
◎ Trade Secrets
◎ Trademarks
◎ Intellectual Property Protection: Basic Guidelines

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Why Is This Important?

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Four Types of Intellectual Property

FIGURE 3.1

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Copyright
Copyright protects original creative works from being illegally
reproduced.
Creative work is wide-ranging.
Protection from unauthorized use depends on national laws of the
country.
Countries may be members of copyright treaties and conventions.

Copyright may need to be filed separately in a foreign country.

Fair use allows for limited copying of certain documents.

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Patents

Three Important Considerations Patent Laws


The patent must be:
o Laws differ by country
o New or novel
o Useful o The Paris Convention for the
o Inventive Protection of Industrial Property is
observed by 175 countries
The Patent Procedure
o First-to-file system o ‘Right of Priority’
o Use of a patent agent
o Search of existing patents

See Table 3.2 – Three Types of US Patents

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Three Types of US Patents

TABLE 3.2

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Trade Secrets
Security measures to protect trade secrets:
Non-Disclosure Agreement
o Proper use of non-disclosure agreements
Legally binding contract between two
o Need-to-know dissemination or more parties in which a person or
business agrees to treat certain
o Employee training information as a trade secret not to be
o Physical security disclosed without proper authorization.

Factors that determine when a trade secret has been compromised


o Disclosure of confidential information.
o Information was communicated in a circumstance in which duty of confidence arises.
o Information was misused by the party to whom it was communicated.

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Trademarks
A trademark is a recognizable sign, design
Examples of Trade Dress
or unique expression related to product or
services. Design or shape of a product
Product labelling and packaging
Two types of trademarks:
Décor or environment in which services
are provided
o Unregistered

o Registered

Trademarks are registered with relevant


government entities will bear the
registered trademark ® symbol.
See Figure 3.2 – Famous Trademarks

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Famous Trademarks

FIGURE 3.2

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Trademarks, Continued

Brand Licensing
Allows entry to a foreign market by licensing a well-known
brand.
Requires royalty payments and abiding by contractual
provisions.

See Table 3.3 – Q&A: Madrid Convention for International Protection of Trademarks

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Q&A: Madrid Convention for
International Protection of Trademarks

TABLE 3.3

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TABLE 3.3
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Intellectual Property Protection:
Basic Guidelines

IP is one of the most important factors to the success of an


international venture.

See Table 3.4 – Guidelines for Intellectual Property Protection in a Foreign Market

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Guidelines for
Intellectual
Property
Protection in a
Foreign Market

TABLE 3.4

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Law and Ethics: Practical Requirements for
International Trade

UNIT 4
Ethical Considerations in
International Trade
◎ What Are Ethics?
◎ What is a Code of Ethics/Conduct?
◎ Corporate Social Responsibility
◎ Ethics and International Ventures

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Why Is This Important?

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What Are Ethics?
Ethics are a system, written or unwritten, that guides the actions
and behaviour of an individual or group.
See Standards of Ethical Conduct for a CITP®|FIBP®

Defining Concepts
o Ethics

o Integrity

o Morality

o Code of Conduct

o Code of Ethics
See Figure 4.1 – Definitions of Ethics
See Figure 4.2 – Definitions of Morals
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Standards of Ethical Conduct for a CITP®|FIBP®

Continued…
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Continued

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Definitions of Ethics

FIGURE 4.1

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Definitions of Morals

FIGURE 4.2

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What is a Code of Ethics/Conduct?

A code of ethics/conduct document will often include:


o Organization’s mission and values

o The way in which the professional should approach problems

o Ethical principles based on the organization’s core values

o Standards to which the professional is held

Compliance-Based Codes of Ethics

Value-Based Code of Ethics/Code of Conduct

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Corporate Social Responsibility
Corporate Social Responsibility (CSR) is a reflection of corporate
values and shows how organizations participate in programs and
initiatives to benefit society.

Factors driving CSR:


o Demand for greater disclosure

o Increased customer interest

o Growing investor pressure

o Competitive labour markets

o Deregulation of the business sector

See Table 4.1 – Benefits of CSR Programs

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Benefits of CSR Programs
ORGANIZATION BENEFITS ENVIRONMENTAL BENEFITS COMMUNITY BENEFITS
Improved financial performance Greater material recyclability Charitable contributions
Lower operating costs Better product durability and Employee volunteer programs
functionality
Increased sales and customer Corporate involvement in
loyalty Greater use of renewable resources community education, employment
and homelessness programs
Enhanced brand image and Integration of environmental
reputation management tools into business Product safety and quality
plans, including:
Greater productivity and quality
• Life-cycle assessment and
Greater ability to attract and retain costing
employees
• Environmental management
Workforce diversity standards
Product safety and decreased • Eco-labelling
liability
Reduced regulatory oversight
ADAPTED TABLE 4.1

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Corporate Social Responsibility, Continued
The United Nations Global Compact
See Table 4.2 – The UN Global Compact Pillars

The United Nations Convention Against Corruption (UNCAC)


A globally biding international anti-corruption measure to promote
corporate social responsibility.
o Technical assistance and information exchange
o Embezzlement
o Foreign bribery
o Money laundering
o Corruption prevention
o Effective asset recovery

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The UN Global Compact Pillars
HUMAN RIGHTS
Principle 1 Businesses should support and respect the protection of internationally proclaimed human rights.
Principle 2 Ensure that they are not complicit in human rights abuses.
LABOUR
Principle 3 Businesses should uphold the freedom of association and the effective recognition of the right to
collective bargaining.
Principle 4 The elimination of all forms of forced and compulsory labour.
Principle 5 The effective abolition of child labour.
Principle 6 The elimination of discrimination in respect of employment and occupation.
ENVIRONMENT
Principle 7 Businesses should support a precautionary approach to environmental challenges.
Principle 8 Undertake initiatives to promote greater environmental responsibility.
Principle 9 Encourage the development and diffusion of environmentally friendly technology.
ANTI-CORRUPTION
Principle 10 Businesses should work against corruption in all its forms, including extortion and bribery.
ADAPTED TABLE 4.2

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Ethics and International Ventures

Anti-Corruption
o US Foreign Corrupt Practices Act

o Contract Clauses and Reference to Relevant Anti-Corruption Laws

o Anti-Corruption Training and Auditing

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Ethics and International Ventures, Continued

Responsible Sourcing
Examples of irresponsible sourcing make world headlines:
o Poorly constructed factories
o Inadequate worker standards
o Child and slave labour

Product Standards and Integrity


Cultural and Religious Issues
o Requirements of Ethical Differences

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Law and Ethics: Practical Requirements for
International Trade

UNIT 5
Aligning International
Initiatives with Best Practices
and Legal Requirements
◎ What Are Best Practices for Foreign Market Entry?
◎ Conduct Basic Research of the Legal System
◎ Review Current and Planned International Business Activities
◎ Implement Relevant Policies and Procedures
◎ Establish Ethical Practices in International Ventures

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Why Is This Important?

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What Are Best Practices for
Foreign Market Entry?

To meet legal and ethical business imperatives, organizations


develop processes to align with international best practices.

See Figure 5.1 – Best Practice Processes for Foreign Market Entry

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Best Practice Processes for Foreign Market Entry

FIGURE 5.1

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Conduct Basic Research of the Legal System

Contact Domestic and Foreign Government Departments and


Agencies

Contact Industry Associations

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Review Current and Planned
International Business Activities
Identify Legal Considerations
o Best type of business arrangement o Requirements for contracting
o Foreign ownership restrictions o Marketing and advertising
o Intellectual Property protection o Supply chain
o Secure land/property purchase and/or rental o Governing language
o Human resources o Import/export reporting requirements
o Business requirements, e.g. permits o Taxation issues
o Financial transactions o Dispute resolution methods

Address the Legal Environment


Human Resource Practices

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Implement Relevant Policies and Procedures

Prepare Standardized Contracts with Legal Counsel as Necessary

Review Compliance Programs


A compliance program is an internal program ensuring an organization adheres to
standards, laws and guidelines.

Monitoring Staff
See Figure 5.2 – Red Flags Checklist

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Red Flags Checklist

FIGURE 5.2
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Establish Ethical Practices in International Ventures

Establishing ethical practices creates value:


o Builds relationships with communities

o Attracts/retains top talent

o Influences consumers

o Increases profit

o Assists with risk management for shareholders

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Establish Ethical Practices in International Ventures, Continued

Identify Acceptable Practices and Standards


o Criminal laws

o Intellectual Property

o Accounting standards

o Labour laws

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Establish Ethical Practices in International Ventures, Continued

Develop a Code of Ethics


Sets out the attitudes and character of the organization

Communicating Code of Ethics/Conduct to Employees


o Interview process o Staff meetings and retreats

o Employee orientation o Staff evaluation and reviews

o Ongoing training o Annual refresher/signing of


documents

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Establish Ethical Practices in International Ventures, Continued

Compliance and Value Standards


See Top Ten Basics for Anti-Corruption Compliance

Establish an Ethical Culture


o Ethics start in the home office

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Top Ten Basics for Anti-Corruption Compliance
1 | Corruption in international business is common and frequently ignored.
Investigation, prosecution and punishment under the US FCPA are common, and enforcement of similar
2|
laws of other nations is becoming increasingly common.

3 | Invest the time necessary to understand an organization’s risk of being involved in international bribery.
An organization’s program should have a standalone international anti-corruption compliance policy, and
4|
an executive who is accountable for its use.
An organization’s board, management, employees and third-party distributors must be trained in
5|
compliance policies.
An organization must know all the third parties that it uses in business outside its home country and
6|
conduct due diligence.

7 | A set of internal controls over the organization’s expenditures and assets should be established.

8 | An organization should not permit facilitating payments.

9 | An organization should expect to conduct high quality international internal investigations.


In every international contract, include clear anti-corruption terms used, which are applicable to a
10 |
home country’s laws.

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