Navigating the Ice Fields

I'm frequently asked what skills are necessary to be a successful in-house attorney at a public and global company like Sun. My stock response is that you need be a good business partner and attorney (obvious), have a heavy dependency on caffeine and the ability to channel "Clint" during stressful situations. But, I'm increasingly becoming convinced that people who do this for a living would be well suited for a role in my organization.

Let me explain what I mean. Sun, although based in the U.S., does business in over 100 countries. And, we are obligated to comply with the laws of each of these. At first glance, one would think that this is primarily a resourcing issue – do you have enough legal support to understand the laws of each jurisdiction and put in place processes to comply? Increasingly, however, the difficulty is that some of these laws may be in conflict and navigating between them can prove challenging. Here are a couple of examples.

Since 1962, the U.S. has had legislation in place that, among other things, prohibits U.S. based companies from trading with Cuba. In order to comply, most U.S. companies have developed procedures and infrastructure to ensure that their products are not sold into Cuba.

Canada, has taken a different view. In response to the U.S. legislation, the governnment of Canada has enacted laws that make it an offense for Canadian corporations to comply with the U.S. legislation. The difficulty is that these laws appear to also apply to Canadian subsidiaries that are wholly-owned by U.S. companies.

Here's another example. To comply with Sarbanes-Oxley, almost all U.S. based public companies have put in place anonymous reporting hot lines. Given that most employees in the U.S. are employed on an "at-will" basis and would have concerns about retribution for "whistle blowing", anonymity makes sense. However, this is not the same situation elsewhere. In many countries, employees have greater job protection. And, in some, there is a cultural legacy that runs counter to anonymous reporting. In France and Germany, for example, many citizens still have painful memories of experiences resulting from their inability to confront unknown accusers during WWII and in East Germany. As a result, the European Union has enacted legislation that restricts the ability of companies wanting to implement anonymous reporting as part of compliance programs.

Given the accelerating growth of the Internet as a global engine for the exchange of commerce, information and culture, we will increasingly see instances where laws are in conflict. This will lead to even more opportunity for in-house counsel to demonstrate their “navigational” skills.

Comments:

Generally, the Foreign Extraterritorial Measures Act applies to judgments given under the law of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996. It states that these judgments shall not be recognized or enforceable in any manner in Canada. However, my understanding is that it does not make it an offense for Canadian corporations to comply with the U.S. legislation. In fact, according to section 5 of the Act, the Attorney General of Canada, with the concurrence of the Minister of Foreign Affairs, made an order called the Foreign Extraterritorial Measures (United States) Order, 1992 that applied "precisely" to the Cuban Assets Control Regulations and any law, statute, regulation, by-law, ordinance, order, judgment, ruling, resolution, denial of authorization, directive, guideline or other enactment, instrument, decision or communication having a purpose similar to that of the Cuban Assets Control Regulations. This order states that no Canadian corporation (director, officer, manager or employee) shall, in respect of any trade or commerce between Canada and Cuba, comply with the abovementioned regulations (...). I see that law and this order as an incentive for americans to incorporate their companies in Canada... ;-)

Posted by Dominic Jaar on October 30, 2006 at 08:04 PM PST #

well, if you can't channel clint, at least you have an eastwood on your team ;>)

Posted by sheila on October 30, 2006 at 11:22 PM PST #

Hi Mike, Thanks a lot for sharing your insight here. Your Cuba and European Union examples are very illustrative of the issues faced by a company with global presence. And thanks for those Canadian references. (smile) I had a kick reading them.

Hi Dominic, Thanks for the additional clarification. And reading The Right Honourable Kim Campbell's name this early in the morning is certainly unexpected. (smile)
http://en.wikipedia.org/wiki/Kim_Campbell
Shall I take that as a sign for what to expect for the current government? (big smile)

Cheers,
Kempton

Posted by Kempton on October 30, 2006 at 11:38 PM PST #

[Trackback] Thanks a lot to Mike, Sun’s GC, for sharing his insight on the issues faced by a company with international presence. This area of law is general known as Conflict of laws. It is quite interesing actually. By the way, in a well drafted contract,...

Posted by Kempton's blog on October 30, 2006 at 11:55 PM PST #

Hi, Mike I was wondering what sort of systems you have implemented at Sun to assist employees meet their confidentiality obligations to Sun? What sort of things have you tried beyond educational seminars, reminder emails and confidentiality registers? I am GC of a small Biotech startup and I find it particularly difficult to get good compliance from the scientists/technical staff.

Posted by David Jones on November 01, 2006 at 11:45 AM PST #

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