Barriers to Digital Trade

In January 2017 the Congressional Research Service drafted a report entitled Digital Trade and U.S. Trade Policy. The Report (43 pages long) complies information from across various sectors to describe barriers faced by US companies in exploiting and pursuing digital trade opportunities abroad. The report follows on a
US Trade Representative Fact Sheet on Key Barriers to Digital Trade released last year, among several US governmental initiatives to identity and, possibly, remediate trade barriers to digital commerce. The International Trade Administration housed in the US Department of Commerce describes, via their export.gov site, foreign trade barriers as “any barrier that impedes a company’s ability to trade in a foreign country.” The site gives examples of “common trade barriers” to include “Tariff and Customs[;] Service Barriers [;] Standards [;] Testing [;] Labeling [;] Certification [;] Rules of Origin [;] Government Procurement Contracting [;] Intellectual Property Protection Problems [;] Excessive Government Requirements [;] Excessive Testing or Licensing Fees [;] Bribery [; and] Investment Barriers”.

Companies facing trade barriers may report or complain about them to the US Department of Commerce’s Office of Trade Agreements Negotiations and Compliance for investigation. Your US company might also check out the US Department of Commerce’s Country Commercial Guides, which contain (in most of the 125 countries covered) concise discussions of trade barriers within each country guide housed as a submenu under the “Trade Regulations, Customs & Standards” sidebar link. There are also a couple of webinars about “Website Globalization” your US company might want to check out, collectively entitled “Preparing Your Website for Global Commerce.”

Daniel H. Erskine, an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.

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Social Media and Employment

Chances are your small business utilizes social media to connect with its customers and employees on a daily basis. Your small business may want to check out the Federal Trade Commission’s (“FTC”) Endorsement Guides: What People Are Asking, which provide guidance on compliance with truth-in-advertising requirements contained in the FTC act. The FTC opines the Act’s requirements apply to small business’ social media. You may also want to check out the National Labor Relations Board (“NLRB”) for information on how the National Labor Relations Act applies to union and non-union social media activities. The NLRB has a short policy statement on the Act’s applicability to employee social media use here and a more complete statement here. Additionally, the Equal Employment Opportunity Commission (“EEOC”) together with the FTC publishes Background Checks What Employers Need to Know as well as Background Checks: What Job Applicants and Employees Should Know addressing your small business’ use of social media in the hiring process.

Daniel H. Erskine, an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.

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A Methodological Approach to Negotiating International Business Contracts

The United States government has declared increased exports are the path for financial recovery. In particular, the Small Business Administration declared exports are the principal method to buttress American small business. So, how do small businesses effectively negotiate in the international market?  Equipping oneself with a negotiation strategy permits a business to maximize benefits and foster relationships—if you use the appropriate method of negotiation. What is the negotiation method a small business should arm itself with to reach an agreement with a foreign company?  This article sets out a negotiation strategy, which small businesses may use to effectively enter into the export business and conclude an international agreement.

  1. Prepare

Preparation is the key element in any negotiation.  Familiarize yourself with the other company you desire to do business with and the market place they operate in.  Look to the publicly available information about the company.  Most foreign companies maintain English version websites that contain a wealth of information about the company. Governmental websites, like www.business.gov, www.export.gov, UK Trade and Investment’s Export Country Guides and the Enterprise section of the European Union’s website contain key data, advice, and insights about foreign markets.  Utilize the transparency of governmental agency to cull necessary data on the foreign company to evaluate market conditions in the country or region the business operates.

Ask initial questions about the other company to identify their objectives.

Evaluate whether the foreign company’s interests are compatible with your company’s aspirations.  Dialog at the beginning stages of a negotiation fosters increased information sharing when the actual deal is made—and, equally important, will persist after you executed your contract. Many misunderstandings at the deal-making stage may be avoided by dispelling misconceptions at the preliminary stage.

Inquire of your own company why you seek to enter into a deal with a foreign company.

Do you desire the relationship to coax prospective domestic business partners into relationships with your company, or do you desire foreign company associations to grow your company into a multi-national enterprise? Asking why will help your company to determine your priorities in negotiating a deal with a foreign company.

Much like a good football coach, a well thought out game plan will minimize wasted time, misconceptions, and likely lead to a successful result.

Business Lawyer New York and Connecticut

  1. Recognize Cultural Differences

A tremendous consideration in international business is the participants’ cultural acuities.  Culture strikingly affects the manner and method of negotiation.  Investment in learning about the other side’s culture plays a pivotal role in succeeding in negotiations.  Remember that all Europeans do not act alike, nor do nationals from other geographic regions, like South East Asia.

Consider use of the other culture’s language or providing translation in order to conduct a successful negotiation.  Examine the type of dress you will ware to the negotiation table,

the mannerisms you will use, and the physical place where negotiations will occur.

Each may dramatically affect the outcome of your discussions.

Culture may also affect the type of tactics you employ in negotiation, so be mindful that threats may terminate negotiation in some locales whereas promises may have the same effect in other regions.  Considering all of the above, do not let cultural differences discourage you in your quest to transact internationally because behind cultural divides lies the reason your two companies came together in the first place—to make money.

  1. Effectively Negotiate

Use your preparation to identify your soon to be business partner’s objectives, as well as your own.  Both parties want to maximize their individual benefits.  Don’t be afraid to be creative and propose innovative methods during negotiation.  Realize each of you are at the table to grow your respective businesses or because both companies see an inherent benefit in establishing the relationship.

Try to uncover that benefit during negotiations by asking open-ended questions to elicit more information from the other side.

Utilize and employ tactics. Tactics are calculated actions taken to move the other party toward your objectives. During a negotiation you will utilize tactics to induce the other party to agree to your goals. A good tactic is setting an agenda to guide both parties in the negotiation.  The agenda does not have to be a 20 page tome, but could be a page outline of bullet-point key issues you want to discuss. To create an agenda look back at your objectives identified in your preparation and give your agenda to the other side before the negotiation.  Letting the other side revise and comment on your agenda facilitates negotiation and removes uncertainty.  Even if the other side does not want to use an agenda take the document with you to the negotiation for your own use to focus talks on the issues you need to discuss.

Be flexible on small issues and concede items you view possess little value to your company.

Ceding a small issue to the other side may induce greater agreement on items more important to you. Do not fear structure in negotiation and do not fear innovation arising during a negotiation.

Both structure and innovation do not need to oppose one another in negotiating a deal.

Make sure you have a deal-maker on the other side of the table as well as on your side.

Without individuals authorized to make the deal you are wasting valuable time and energy.

Realize both sides are imperfect.

You will be nervous and say the wrong thing just like the other side.  Welcome to the human race!  Every human is prone to error—it is in our nature.  Do not let these blunders end the negotiation—persevere through these red-faced moments.

  1. Ethics

Ethics are a consideration in an international business negotiation. Ensure that professionalism is maintained and appropriate tactics are employed to avoid possible criminal or civil liability.  Do not get caught in a gross misrepresentation or outright falsehood.  Honesty goes far in negotiation and the relationship that follows a successful deal.  Though, you should utilize the skills that got you to the negotiation table—an ability to get the deal done.

Daniel H Erskine

  1. Get It In Writing

No matter how wonderfully you negotiated an agreement—get the agreement written down and signed by the other party; make sure the final agreement is signed by an authorized party or deal-maker. The written agreement may go through a couple of variations.  Throughout the redrafting process ensure that key negotiated items are not altered.  In other words, make sure the essence of your deal remains intact.

The best way to get an agreement written down is hire an attorney.  Despite the cost of hiring counsel, it remains a good idea to have a lawyer to draft the agreement.  This investment may avoid larger financial liabilities resulting from a poorly worded agreement.  Remember you want to spend your holidays leisurely not standing before a foreign tribunal. Do not be afraid to ask the lawyer to keep the language of the agreement simple.  Increasingly, attorneys understand business perspectives and realize the importance of the deal to your company.

Also, consider the law is not only different in other countries, but in different states you transact business in.  A lawyer may also help you with writing (or rewriting as the case may be) your contracts to ensure an appropriate law and court system possess sole jurisdiction over any disputes arising out of your agreements.

Lastly, remember you negotiated the deal, so make certain the provisions of the agreement reflect the bargain you struck.  Just as dialog is important with your business partner, the same principle applies to your lawyer.

In summary, the method necessary to approach international negations is to:

(a) prepare for negotiating the deal;

(b) effectively negotiate by structuring discussions;

(c) focus on both party’s objectives;

(d) use appropriate tactics during the negotiation in light of cultural and ethical considerations; and

(e) set down the agreement in a writing signed by the authorized representatives of both parties. 

Remember you are human and will inevitably make mistakes.  Do not let these errors cause the negotiation to fail.

Disclaimer: The above article is only for general informational and educational purposes, not for the provision of legal advice or a legal opinion.  Use or viewing of this article or any of the web pages linked to it does not invite or establish an attorney-client relationship.

 

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Importing into the US; Made sure to exercise “Reasonable Care”

If your small business is importing goods into the United States check out the US Customs and Broader Protection’s Reasonable Care Checklist to help meet your regulatory burden of ensuring reasonable care is exercised when importing merchandise. Also, your small business should look at US Customs and Boarder Protections’s Informed Compliance Publications, which detail a number of areas related to import of merchandise and discuss issues concerning specific goods. Some noteworthy Informed Compliance Publications are: Entry (describing getting your small business goods into the US); ABC’s of Prior Disclosure; Customs Value; and Recordkeeping. www.erskine-law.com

Daniel H. Erskine, Esq., an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.
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Looking for Info on EEOC Prohibited Employment Policies/Practices?

The United States Equal Employment Opportunity Commission (EEOC) posts a concise list of prohibited employment practices/policies on its website. The site provides a brief truncated overview of practices employers should avoid to comply with federal laws. Clicking on the Discrimination by Type link brings you to pages giving a basic description of prohibited policies and practices according to federal employment legislation. The EEOC’s website is a good starting point for small businesses seeking to comply with federal employment laws related to discrimination or begin to discuss implementing a compliance small business program should your small business be subject to federal employment discrimination laws. The EEOC provides basic guidance on “How Do You Count the Number of Employees an Employer Has?” as well as “Coverage of Business/Private Employers” to aid your small business in determining coverage of federal employment discrimination legislation. The website may not provide fully up to date information due to new case decisions and legislative changes. www.erskine-law.com

Daniel H. Erskine, Esq., an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.
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Contracting with the U.S. Department of Energy

If your small business is looking to contract or secure a federal procurement contract from the U.S. Department of Energy, then take a look at the Department of Energy’s Small Businesses: 101 on Doing Business with the Department of Energy site. The site contains information on general federal contracting, contacts within the Department of Energy related to small business goods and services procurement, and details on small business outreach events. Of interest, are links to webinars and SAM.gov (System for Award Management) as well as FedConnect, the government acquisition and grants portal. Your small business might also want to review Braddock’s Procurement Opportunities Guide-2013 Edition An Entrepreneur’s Guide to Selling to Governments and Corporations for general information on government contracting transactions. www.erskine-law.com

Daniel H. Erskine, Esq., an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.
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Starting a Small Business in Connecticut?

If you are thinking about starting a small business in Connecticut, then take a look at the federal government’s website that provides a step by step guide to begining your small business. The site features a guide to issues a prospective small business owner should consider in creating a small business in Connecticut. Some of the issues addressed are business plans, tax issues, state permits, and location selection.

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Daniel H. Erskine, Esq., an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.
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Need to Post Employment Notices?

Are you looking to comply with the positing requirements of several regulations applicable to small businesses? Take a look at the U.S. Department of Labor’s Poster page to acquire the posters you need.

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Daniel H. Erskine, Esq., an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.
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Does Your Small Business Need Financial Assistance?

Looking to shore up or expand your small business? Take a look at the financial assistance offered by the Small Business Administration. The site provides an online tutorial of the types of financial assistance available to established small businesses.
http://www.sba.gov/services/financialassistance/index.html

Daniel H. Erskine, Esq., an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.
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Canada Helps Small Business in Writing a Business Plan

Need help writing a business plan for your small business? Take a look at Canada’s Interactive Business Planner at the following address:
http://www.canadabusiness.ca/ibp/eng/index.cfm

Daniel H. Erskine, Esq., an international attorney, practices in New York and Connecticut focusing on international law, civil litigation, appeals, and small business transactions. www.erskine-law.com Attorney Advertising; USE OR VIEWING OF THIS BLOG OR ANY OF THE WEB PAGES LINKED TO IT DOES NOT ESTABLISH OR OTHERWISE CONSTITUTE AN ATTORNEY-CLIENT RELATIONSHIP.
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