Protecting your business in new export markets

Jack Stephenson, corporate and commercial solicitor at Harrison Drury explains the key legal issues businesses need to be aware of when breaking into new export markets.

Many businesses in the manufacturing sector are reliant on exporting their goods to overseas markets.

Although this can create huge opportunities for businesses, unfortunately it does not come without risk.

One of the most important things to consider is ensuring that you have robust commercial contracts and terms and conditions in place with the businesses that you are dealing with.

Below we have listed a few of the important provisions that you might want to consider.

Jurisdiction and governing law

A jurisdiction clause is a provision that identifies which courts have jurisdiction to hear a dispute. Therefore, if for whatever reason a dispute arose out of the contract, you could identify which country’s courts would have authority to hear it.

This is vital if you are dealing with overseas markets, otherwise you run the risk of a foreign court having jurisdiction (which could be very expensive).

A governing law clause enables the parties to specify the system of law that will apply to the interpretation of an agreement. It is therefore important that this is clearly drafted to ensure that the laws of England and Wales apply to the contract.

Intellectual property

Protecting your intellectual property (such as trademarks, patents, copyright etc) is important when trading in foreign markets.

Intellectual property rights are often territorial; therefore it may be necessary to seek advice from local solicitors to determine how that country’s intellectual property laws operate and the best ways to protect your IP (for example by registration of a foreign trade mark). Harrison Drury is a member of the Alliott Group (a global group of lawyers and accountants) therefore we would be well placed to assist you when it comes to identifying a suitable local firm to deal with.

It would also be wise to ensure that IP is dealt with in any contracts to determine to what extent the business you are contracting with is able to use your IP (or vice versa).

Payment Terms

If you are receiving money pursuant to a contract, it is important to ensure that you are paid on time. Any payment terms should therefore be clearly identified within the agreement. This is likely to make it easier to enforce the contract if you are not paid. It may also be worth inserting a clause specifying the currency in which payments should be made.

Incoterms

The Incoterms rules or International Commercial Terms are a series of pre-defined commercial terms published by the International Chamber of Commerce (ICC) relating to international commercial law.

On 16 September 2010, the ICC launched the new Incoterms 2010 rules. The Incoterms rules are a series of internationally recognised standardised terms governing the costs, risks and practical arrangements of the sale of goods, therefore the rules are relevant for anyone involved in the buying and selling of goods and services, especially international traders.

Although the Incoterms are incorporated into many contracts, in some respects they are not complete. For example, they do not describe the goods, warranties, liabilities, price and payment, title of goods, intellectual property, governing law and jurisdiction.

It is therefore important that your contracts adequately deal with such issues.

For further information on protecting your business in new export markets, or any other corporate and commercial legal matter, contact Jack Stephenson on 01772 258321.