Category Archives: Canada

WHY CHOICE OF LAW IS IMPORTANT IN CROSS BORDER CONTRACTS

Global business means global contracts.  Each of the parties are resident or domiciled in different countries.  As laws and legal language differs from country to country contracts need to reflect language that accommodates and clarifies provisions that might not be familiar in that foreign jurisdiction.  In addition, the cost of litigating in a foreign jurisdiction can exceed all expectations and thus is difficult to quantify.

The choice of law can be dictated by the contract itself, yet the choice of law can also be different than the place chosen for resolution of the dispute.  Thus, a foreign court could be in the position of, for example, an English court interpreting U.S. law.  In this example, parties before an English court are permitted to present experts to assist the court in interpreting U.S. law.  This can become a battle of the experts. 

Where a standard form is used, which is meant to provide a uniform interpretation providing some certainty, however, foreign courts are not necessarily familiar with such universal interpretation and may alter the operation and effect of the underlying agreement.

Contracts provide certainty in business.  Such potential alteration eliminates this certainty and creates risk that is difficult to quantify.  With regard to specific provisions, U.S. courts generally takes a broad view and interpretation of contract provisions and are willing to imply provisions, for example, good faith.  Yet courts in other jurisdictions are not willing to imply what is not spelled out by specific language.  Interpretations also varying with regard to specific legal concepts.  “Gross negligence” is a well-recognized legal concept in U.S. law, however, in England for example, there is no concept of gross negligence, rather this concept is replaced by a notion of serious error or conduct falling significantly short of expectations. 

Whenever possible, check with a lawyer in the foreign jurisdiction to ensure the differences are fully understood and clarified wherever possible.  If possible carefully draft provisions keeping in mind a foreign court may be interpreting the terms should a dispute arise.

 

 

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HOW FATCA REPORTING IS MAKING FOREIGN INVESTMENT CHALLENGING

U.S. citizens and permanent residents are required to report all income wherever earned together with the existence of foreign accounts and certain investments. In an effort to prevent U.S. citizens and permanent residents from avoiding taxation of foreign held assets, the U.S. government has obtained the agreement of many foreign governments to require local financial institutions to report account existence and activity.  FATCA, the Foreign Account Tax Compliance Act requires financial institutions that offer accounts to U.S. citizens and permanent residents identify and report account information to the Internal Revenue Service.  As a result, FATCA has made it increasingly more difficult to open a foreign account since it requires foreign financial institutions to undertake these reporting efforts, at their own expense, effectively making opening such an account extremely difficult and, often, those accounts are now unavailable.

Financial institutions, including, banks, stock brokers, insurance companies, mutual fund companies, are now required to report the following assets owned by U.S. citizens and permanent residents: cash accounts, stocks, bonds, options, derivatives, mutual funds, interests in foreign partnerships, pension plans and any financial instrument that has a foreign issuer, and real estate held by a foreign entity.  Financial institutions that do not participate in will be penalized by a withholding tax of an additional 30% on all U.S. source fixed and determinable, annual or periodic income. Other penalties may also apply making foreign financial institutions shy away from offering accounts to U.S. citizens and permanent residents.

There foreign assets that are exempt from the FATCA reporting requirements. Cash accounts with less than $10,000, gold, silver or other tangible assets held in foreign safety deposit boxes, real estate held in the name of the individual, personal property located in foreign countries provided these are owned directly in the individual’s name and some foreign investments held by a retirement plan, IRA, SEP or 401(k).

Investments in foreign countries are a very good way to diversify your portfolio and can provide excellent returns. If this strategy is attractive to you, consider investing in real estate or obtaining a safety deposit box where you can accumulate gold, silver or other tangible asset, such as diamonds or other gems. Please contact us if you have any questions or would like to discuss your options to discover great returns through foreign investment.

 

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UPDATE: Canada’s Anti-Spam Legislation is in full swing

This isn’t the first time we’ve addressed Canada’s increasing concern for personal privacy and data security as expressed in legislation. In particular, the Canadian Anti-Spam Legislation (hereinafter “CASL”) has finally come into effect and we’re learning about it as Canadians and those who advertise to Canadians spend time with the CASL.

CASL impacts those who use electronic and digital marketing and acts to protect Canadians from the impacts of spyware, phishing and the like. Violations of are expensive and therefore, companies were on the ball when CASL came into effect this June. If you’d like more information on CASL, please see our post “Coming to Canada this Year: The National Anti-Spam Law.

Networking. Consent can be obtained from word-of-mouth and conversations carried out on the phone or in person. Part of sealing the deal with these requests for commercial information is to obtain all of the requisite information for valid consent in the form of an email after the conversation.

Referrals. CASL allows a company to send one commercial electronic message as a referral. This must include the name of the person who referred the company to the individual. The referring individual and the company must have an existing business relationship and this relationship must be made transparent to the person obtaining the referral.

Social Media. Consent to advertise can be obtained through social media. Twitter, Facebook, Pinterest are crawling with companies wanting to advertise. If consent is given by an individual on a social media platform, the consent is limited to that social media platform. Messages posted on the public face of the platform are not under the jurisdiction of CASL, but private messages are.

Recording Consents. Because CASL requires that a company obtain consent before advertising to someone, the company must be able to prove that consent was obtained. This is easily proved when permission is obtained online or in written form, but permission can also be obtained by oral consent. In these cases, it is recommended that an email be sent after the conversation verifying that consent was given to advertise to them.

These are just some observations made by those engaging with the CASL so far. If you require more information about that CASL and your business in particular, please contact us! CASL is used to help keep the personal data of Canadians protected. For more information about data privacy, please check out our e-book! And here are the links to the Kindle edition on Amazon US and Amazon UK.

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Coming to Canada This Year: The National Anti-Spam Law

As mentioned in a previous article, Canada is no-nonsense when it comes to protecting the privacy of its citizens.  To join the new host of data protection laws this year is Canada’s Anti-Spam Legislation (hereinafter “CASL”), a national law aimed at ending the most invasive types of spam for Canadians include identity theft, phishing and spyware. The hope is to drive spamming out of Canada in an effort to protect e-commerce within the country. The legislation has been in the works for years and will certainly have big impact on businesses that are based in or operate in Canada, including those that e-advertise within the country.

Whilst a final date has yet to be set for the legislation to come into effect, it is thought that it will be effective in June 2014. CASL will impact companies and individuals alike who employ digital and electronic marketing, be it SMSing, e-mailing and installing computer programmes without consent but does exclude telemarketing. Sending marketing information without prior consent will be a thing of the past, except for some slim situations where consent is implied from previous dealings or personal relationships, for example. Whilst PIPEDA (please see article titled: “Canadian Courts to Businesses: We Do Not Take Privacy Violations Lightly” posted on 13 January 2014) consent may have been received by some, CASL consent is completely different and inferred consent will not be derived from PIPEDA consent. Different from the US’s CAN-SPAM legislation, Canada’s CASL is an “opt-in” system, though consent can be revoked at anytime thus the requirement for the “unsubscribe” feature.

Upon the regulations coming into effect, businesses may have a grace period to reach compliance, but there are massive benefits to being compliant beforehand. The penalties for non-compliance are not cheap: up to $10-million for companies and up to $1-million for individuals. This law does apply to marketers outside of Canada, so being current with this legislation could save businesses trouble even where they are not based or established.

Please contact us to get a list of services we can offer your entire business in becoming CASL compliant in order to best avoid any penalisation for non-compliance. Moreover, we can help in the obtaining of consent from potential Canadian clients.

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Canadian Courts to Business: We Don’t Take Privacy Violations Lightly.

Canadians value their privacy and the Canadian Government has placed high value on the protection of privacy for its citizens. With the massive influx of personal information being put onto the Internet via social media and public records, privacy concerns might not be something that many businesses would take as seriously as they need to. Nowadays, businesses must have privacy policies, safeguards and notification procedures in place should breach take place lest they end up in court.

Businesses that collect and use information from Canadians for commercial purposes have been put on alert by the Canadian Court System: privacy violations will be taken more seriously. New developments in the determination of the amount of damages for privacy violations have created a higher possibility for a business to be fined for violating one’s personal information.  Violations under the Personal Information Protection Electronic Documents Act (hereinafter “PIPEDA”) previously had to meet a high standard for there to be an award of damages; namely, the Federal Court had to presented with evidence that the violation was “egregious” before the Court would award damages. As of May 2013, this is no longer the case.

The Court found that there had indeed been a violation of Chitraker’s privacy by Bell TV. In determining if an award of damages was appropriate, the Court considered past cases and precedents. Previous to the Chitraker case, the complainant had to demonstrate a level of humiliation that was caused by the violation; whether the violation had been egregious. But the Court considering Chitraker opined that PIPEDA had no strict requirement and thus, it would be easier to evidence a privacy violation. In the end, Bell TV paid $20,000 in damages to Chitraker for violating his privacy.

Bell TV’s misfortune is a lesson for business in Canada. Businesses’ reputation can suffer from these cases resulting in a loss of customers, connections and bad publicity, to name a few. To assure that your business is safe from such actions, there are steps that can be taken: effective and efficient complaint handling, transparency in respect to personal information, conspicuous privacy policies, staff training for privacy issues and taking privacy complaints from customers seriously.

For assistance in creating privacy-sensitive business practices or dealing with privacy violation complaints, please contact us.

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