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ABA Business Law Section
Newsletter of the ABA Business Law Section
  Corporate Counsel Committee
Join the Committee Online

Message from the Leadership

Featured Articles
  Distribution in China - Legal Issues
  A Guide to Contract Interpretation
  Guidance on the Guidance: What the SEC and DOJ Resource Guide to the FCPA Means for Multi-National Companies
 
Judith Kim
    eNewsletter Co-Editor
    Axiom
    713-360-4073

  Message from the Leadership
 
Judy Kim, Vice Chair Judy Kim,
Co-Chair
Howie Wong, Co-Chair Howie Wong, Co-Chair

Dear Corporate Counsel Committee Members:

Welcome to lovely Washington, DC! Despite a long, dreary winter here in the nation's capital, cherry blossom season is upon us. As many of you know, in 1912 the then-Mayor of Tokyo gifted 3,000 cherry blossom trees to Washington, DC to honor the friendship between the United States and Japan. DC hosts an annual National Cherry Blossom Festival to celebrate spring and cherry blossom viewing season. For further information about upcoming events related to the National Cherry Blossom Festival, please check out the following website: http://www.nationalcherryblossomfestival.org/about/

Please take note of the upcoming Corporate Counsel Committee events during the Spring Meeting:

Thursday, April 4, 10:30 am to 12:30 pm, "American Idol" and the Legal Services RFP: How Outside Counsel Can Win the Contest, Washington Hilton Hotel, Monroe, Concourse Level

Thursday, April 4, Corporate Counsel Committee & White Collar Committee Dinner ($140 per person): Café Milano (3251 Prospect St. NW at Wisconsin Ave., DC 20007) beginning with a cocktail reception at 7:00 p.m. followed by dinner at 7:30 p.m.

Friday, April 5, 9:30 am to 10:30 am, The Practice of Law vs. the Business of Law: An Oxymoron?, Washington Hilton Hotel, L'Enfant Boardroom, Lobby Level (no CLE provided)
Toll-free dial-in number (U.S. and Canada): (866) 646-6488
International dial-in number: (707) 287-9583
Conference code: 1786332268

Friday, April 5, 4:30 pm to 5:30 pm, Corporate Counsel Toolkit Meeting, Washington Hilton Hotel, Washington Hilton Hotel, L'Enfant Boardroom, Lobby Level
Toll-free dial-in number (U.S. and Canada): (866) 646-6488
International dial-in number: (707) 287-9583
Conference code: 1786332268

Although this edition of the eNewsletter is short and sweet in terms of articles, in my humble opinion, it touches on very pertinent issues that affect all corporate counsel: globalization of in-house practice, increasing regulatory compliance laws and regulations, and the fundamental importance of contract interpretation.

The "Distribution in China-Legal Issues" white paper deals directly with doing business in China, so if you are learning the legal issues that come up in global procurement, this is a great place to start including the Foreign Corrupt Practices Act (FCPA) concerns.

The second article, "A Guide to Contract Interpretation," focuses on the nuances of contract interpretation with numerous case law references for the in-house newbies and the experts.

And last, but not least, the final article regards the FCPA, "Guidance on the Guidance: What the SEC and DOJ Resource Guide to the FCPA Means for Multi-National Companies." It provides a concise summary of the November 2012 guidance issued by the Department of Justice and the Securities and Exchange Commission. Anyone who works in the area of international white collar crime and/or corporate compliance should take a peak to see how the federal government currently views the FCPA.

As always, we always look forward to feedback on our eNewsletter. If you have any suggestions or possible article recommendations for re-publication, please feel free to contact the Committee co-chairs, Howie Wong at hwong@hscorp.ca and Judy Kim at Judith.kim@axiomlaw.net.


Judy Kim, Axiom
Co-Chair, Corporate Counsel Committee
Business Law Section of the American Bar Association


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  Featured Articles
 
Distribution in China - Legal Issues
By: Frank Schoneveld

In 2012, China surpassed the United States to become the world's largest destination for foreign investment, marking another milestone in China's unprecedented growth and development. As the benefits of China's extraordinary economic development expand, the rise of the Chinese consumer has become the latest opportunity for many domestic and multinational corporations.

Foreign companies looking to sell their goods to Chinese businesses and the increasingly affluent Chinese consumer do so either directly or indirectly. The direct method requires a company to establish a presence in China and undertake the import or manufacture and subsequent distribution of its goods. The indirect method involves either selling the goods to a Chinese buyer that resells the goods in China, or appointing a commercial agent in China that introduces prospective buyers to the foreign company.

More...

A Guide to Contract Interpretation
By: Vincent R. Martorana and Michael K. Zitelli

Transactional attorneys and litigators often take a very different approach toward contracts. Transactional attorneys focus on the ex ante-the relationship between the parties before there is a dispute. Sometimes their sole concern is making sure that the contract "works" sufficiently so that the deal gets done. More-conscientious transactional attorneys weigh the various risks associated with contract drafting by regularly thinking about the "what-ifs."

But transactional attorneys would do well to put on their "litigator's hat" more often. Litigators think about what happens when things go south. When called upon to analyze a contract in the context of a burgeoning litigation, many litigators turn immediately to the "boilerplate" or "miscellaneous provisions." That's where the contract-interpretation and contract-construction "rules" hide, which, in addition to statutes, case law, and doctrine, will inform the contract reader how to interpret the provision at issue.

More...

Guidance on the Guidance: What the SEC and DOJ Resource Guide to the FCPA Means for Multi-National Companies
By: Aaron G. Murphy and Matthew L. Kutcher

After a year of waiting, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) issued A Resource Guide to the US Foreign Corrupt Practices Act (FCPA) (the Guidance) on November 14, 2012.1 At 120 pages, the Guidance provides a detailed and well-researched primer on the development of US anti-corruption law and policy. Although non-binding, the Guidance provides the most thorough and thoughtful summary of US regulatory authorities' current thinking about FCPA enforcement. Not surprisingly, it confirms that the DOJ and SEC read the FCPA broadly, and that enforcement of the statute against US and foreign companies will continue into the foreseeable future.

More...

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