final law

Hypo 4. U.S. company Charlie plans to build a manufacturing plant in Nicaragua, and it needs an environmental permit to begin construction. The Nicaraguan environmental inspector requests $100 from Charlie to issue the permit. If Charlie is unsure whether the $100 is a required fee or a bribe, would paying the $100 violate the FCPA? Can Charlie pay the $100—even if the environmental inspector keeps it as personal payment—if it is for the purpose of the environmental inspector fast-tracking the processing of the permit paperwork?

-yes, bc he knowing failed to implement the sys -no, bc its a routine government action

Haiti has suffered a number of recent natural disasters, so rebuilding efforts are underway. Alpha Tools, a California company, desires to sell its goods in Haiti; Omega Hardware, another California company, makes regular bribes to several Haitian government officials to deny the necessary paperwork to Alpha and thus keep Alpha out of the country so that Omega can monopolize the Haitian tool market. If Alpha sues Omega in a California court for money damages and for a court order that Omega stop bribing Haitian officials, which sources of law can it use? a) Foreign Corrupt Practices Act (FCPA) b) California tortious interference with prospective economic advantage c) California unfair competition statutes d) Both (a) and (b) e) Both (b) and (c)

e) Both (b) and (c)

Hypo 3. Assume instead that Bravo hires a Nicaraguan consultant to negotiate the contract with the Interior Minister. Bravo pays the consultant his fee along with $100,000 for expenses. The Minister requests money so that Bravo will get the contract, and the consultant pays the $100,000 to the minister. • Has Bravo violated the FCPA?

no, unless request for bribe

FCPA: prevention & criminalization Hypo 1: Publicly-traded U.S. company Alpha follows Generally Accepted Accounting Principles (GAAP) for its accounting and record-keeping. GAAP allows for small amounts like $100 not to be accounted for. • Explain whether this company could still be liable for violation of §78m.

yes, failing to recored accurately & fairly

Hypo 2. U.S. company Bravo desires to get a government road construction contract in Nicaragua. The Nicaraguan Minister of the Interior is in charge of awarding the contract. The Bravo executive negotiating the contract is on the Board of Trustees of Rice University, and the Minister tells the executive that Bravo will get the contract if the executive gets the Minister's daughter into Rice. If the executive gets the daughter into Rice, is there a violation of §78dd? Are both Bravo and the executive responsible for violations even if no other Bravo officers had knowledge of the executive's actions?

-yes, criminalize bc he's promising something exchange for nothing else - yes, both bc if anyone has a firm belief, bravo can be liable

Epic Piping, Inc. of San Marcos, Texas creates a wholly-owned Mexican subsidiary company, Epic de Monterrey, S.A., to manufacture metal tubing. What is a disadvantage of operating the company as a subsidiary compared to operating it as a foreign branch? a) Epic de Monterrey has to pay Mexican taxes before paying dividends to Epic Piping, which are then taxed by the U.S., with any dividends paid to Epic Piping shareholders subject to an additional round of taxes b) If a worker at Epic de Monterrey is injured on the job, Epic Piping can be liable for paying money damages for those injuries c) Both (a) and (b) d) Neither (a) nor (b)

a) Epic de Monterrey has to pay Mexican taxes before paying dividends to Epic Piping, which are then taxed by the U.S., with any dividends paid to Epic Piping shareholders subject to an additional round of taxes

Following a determination under U.S. law §301 by the USTR that Chinese laws on investment force the transfer of U.S.-business-owned IP, the U.S. imposes retaliatory tariffs of 25% on a range of Chinese-made goods to pressure China to change those laws. The U.S. action is a)Justified under GATT art. XX(d) b)Justified under GATT art. XXI(b)(iii) c)Both (a) and (b) d)Neither (a) nor (b) e)Unilateral tariffs are never justified except to combat dumping and subsidies

a)Justified under GATT art. XX(d)

Texas Widget Company learns of opportunities for its products in the West African nation Senegal. It has never done business in Senegal before and desires to hire a Senegalese consultant to help with the political and regulatory process. Texas Widget Co. learns of a consultant, who also happens to work for the Senegalese government. Which of the following is accurate about how Texas Widget Company can hire the consultant but also avoid FCPA violations? a) It cannot; paying a foreign government official to generate business violates the FCPA b) It can submit the business proposal to the Department of Justice, which can issue an advisory opinion that can guide Texas Widget Company in how to avoid an FCPA violation c) Same as (b), plus, if Texas Widget Company follows the advisory opinion, the DOJ cannot prosecute Texas Widget Company for FCPA violations d) The Department of Justice does not issue advisory opinions for planned foreign business proposals, but Texas Widget Company can review the DOJ "Q&A" page of the website for guidance

b) It can submit the business proposal to the Department of Justice, which can issue an advisory opinion that can guide Texas Widget Company in how to avoid an FCPA violation

The U.S. proposes to enact a regulation to ensure that all tuna sold in the U.S.—whether that tuna is caught in the U.S. or foreign territorial waters—is caught using nets and methods that are safe for dolphins. The U.S. establishes regulations that will apply to all U.S. tuna fishing companies. The U.S. then offers to meet with government officials from other nations that engage in tuna fishing to help them establish the same or similar regulations and thus comply with the U.S. law. While many nations do meet with the U.S. and get certified to export tuna to the U.S., Malaysia declines to meet with the U.S., and the U.S. bans Malaysian-caught tuna. If Malaysia brings an action in the WTO alleging violation of the GATT nondiscrimination provisions, what is the likely result? a) The U.S. has sovereignty to regulate imports how it wants, so Malaysia has no claim b) While the U.S. regulation constitutes a non-tariff barrier to trade, the U.S. gave Malaysia a chance to have its special circumstances considered, so the GATT article XX exception applies c) The U.S. consultation is merely a courtesy and not required because the U.S. regulation treats U.S.-caught and foreign-caught tuna exactly the same, so there is no discrimination d) The U.S. cannot force a sovereign nation like Malaysia to alter its laws, so the U.S. regulation is discriminatory per se e) Same as (d), plus Malaysia will likely be able to impose retaliatory tariffs until the U.S. changes its law to come into compliance

b) While the U.S. regulation constitutes a non-tariff barrier to trade, the U.S. gave Malaysia a chance to have its special circumstances considered, so the GATT article XX exception applies

Gomez is a Mexican woman over 40 who worked for U.S. company Honeywell. She had an office in Ciudad Juarez as well as in El Paso. Her salary was in U.S. dollars, her supervisor based in Dallas, and her U.S. income taxes withheld. When Honeywell terminated her, she filed a Texas Workforce Commission complaint alleging gender and age discrimination under federal and Texas law. Which of the following is accurate? a)The presumption against extraterritoriality precludes a foreigner like Gomez from ever using U.S. employment laws b)Gomez can assert these claims because her workplace connections to the U.S. overcome the presumption against extraterritoriality c)The presumption against extraterritoriality is irrelevant b/c a U.S. company like Honeywell is always subject to U.S. employment laws d)Gomez must choose either federal or state law, but not both

b)Gomez can assert these claims because her workplace connections to the U.S. overcome the presumption against extraterritoriality

The FCPA is U.S. statutory law aimed at preventing corruption in business transactions involving foreign government officials. Which of the following is accurate? a)The law applies only to transactions that occur in the U.S. b)Some companies can be in violation merely for failing to adhere to FCPA record-keeping provisions c)The law targets bribery, but it applies only to intentional acts None of the above

b)Some companies can be in violation merely for failing to adhere to FCPA record-keeping provisions

DeMeneses and Chinea are two New Yorkers who own and operate a brokerage that buys foreign investment instruments for their clients. Several of their employees interact with Maria Gonzalez, an officer of BANDES, which is a development bank owned by the government of Venezuela. Over the course of several years, the brokerage employees buy bonds from BANDES and then sell them to customers, charging a lawful mark-up as a commission for their efforts. Using wire transfers from U.S. banks to Gonzalez, the employees reimburse Gonzalez a part of all commissions made so that she will continue to sell bonds to them instead of to competitors who were willing to pay more. How might DeMeneses and Chinea avoid violation of the FCPA? a) If they knew their employees were making payments as part of securing foreign business, but DeMeneses and Chinea did not know the details of the purpose and nature of those payments b) If each of the payments were small enough that they fell below the maximum amount for the FCPA grease payment exception c) If the payments to Gonzalez were solely for the purpose of expediting paperwork required by the Venezuelan government d) Both (a) and (b) e) Both (b) and (c)

c) If the payments to Gonzalez were solely for the purpose of expediting paperwork required by the Venezuelan

Which of the following is accurate about the intersection of international business and environmental law? a) Local efforts aimed at environmental protection like the Austin Universal Recycling Ordinance conflict with international treaties and are therefore unlawful b) International treaties that deal with investment and trade have no provisions for environmental protection c) Some treaties protect the environment specifically by regulating trade, such as with substances used in air conditioning d) All of the above e) None of the above

c) Some treaties protect the environment specifically by regulating trade, such as with substances used in air conditioning

Commerce Dept. & USITC investigations conclude that the government of China provides financial assistance to farmers who grow rice and wheat, thus harming U.S. rice growers by making Chinese rice cheaper in the U.S. than if market conditions prevailed. This situation is a)Dumping, so the Dept. of Commerce can impose antidumping duties b)Dumping, but the U.S. must first go through the DSB to impose antidumping duties c)A subsidy, so the Dept. of Commerce can impose countervailing measures d)A subsidy, but the U.S. must first go through the DSB to impose countervailing measures

c)A subsidy, so the Dept. of Commerce can impose countervailing measures

U.S. metal pipe fabricator Epic Piping, Inc. desires to expand into Monterrey, Mexico. It learns of an opportunity to purchase Monterrey-based Garcia Metales, S.A. If Epic's priority is maximizing revenue-generating potential rather than legal risks, it should a)Purchase the assets of Garcia and open a foreign branch b)Purchase the assets of Garcia through a wholly-owned Mexican subsidiary c)Purchase the equity of Garcia and open a foreign branch d)Purchase the equity of Garcia through a wholly-owned Mexican subsidiary

c)Purchase the equity of Garcia and open a foreign branch

A lead smelting facility operating in Canada discharges slag into the Columbia River; the slag ends up in Washington State. If residents want the smelter to remediate the harm and pay damages, what law is available to help them? a)The only possibility is for the U.S. to make a claim against Canada, such as arbitration or the ICJ b)Residents can hold the smelter directly accountable, but only in a Canadian court c)Residents can hold the smelter directly accountable in a U.S. court under U.S. environmental law d)Residents can hold the smelter directly accountable in a U.S. court, but only under international environmental law

c)Residents can hold the smelter directly accountable in a U.S. court under U.S. environmental law

The United States imposed regulations that required all shrimp—no matter where in the world caught—to be caught in nets using U.S.-style Turtle Excluder Devices (TEDs). Malaysia challenges the rule as violating the discrimination provisions of GATT. Which is most accurate? a)All provisions that make trade more difficult or expensive violate GATT b)B/c GATT art. XX provides exceptions for the protection of animal life, the rule does not violate GATT c)Same as (b), assuming that the U.S. makes accommodations for the special needs of Malaysia in implementing the rule d)B/c the rule applies to shrimp caught in the U.S. and all foreign countries, it does not violate GATT nondiscrimination principles

c)Same as (b), assuming that the U.S. makes accommodations for the special needs of Malaysia in implementing the rule

. Sport fishermen in British Columbia, Canada obtain information about commercial fishermen in the area. The sport fishermen wish to challenge Canadian laws that regulate the amount of catches for commercial fishing. If the sport fishermen file a SEM petition pursuant to the NAAEC, which of the following is a potential drawback to the SEM process? a) The SEM process often takes years to be completed b) The sport fishermen can challenge only the Canadian government's failure to enforce existing Canadian laws and not the substance of those laws c) The only "remedy" would be a factual record that details the Canadian government's action but that does not impose money judgments d) All of the above e) None of the above

d) All of the above

U.S. company Salsalitos learns that Mexican food has become popular in Morocco. After contracting with a Moroccan distributor to sell its salsa, Salsalitos must clear its product through Moroccan customs. The customs officer demands payment of $300. This payment will not violate the FCPA a)Because the amount is below the statutory minimum b)If Salsalitos has the Moroccan distributor make the payment c)If Salsalitos is not sure whether the payment is in fact a bribe d)If the payment is for a task like expediting required paperwork

d)If the payment is for a task like expediting required paperwork