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Japanese Emperor Akihito, who is 82 and reportedly in failing health, gave a rare speech this Monday that suggested much more than what he actually said.  Emperor Akihito has served in the symbolic position for 27 years and has battled various health issues, including cancer.  During his speech, he expressed doubt that he would be able to continue fulfilling the duties of the emperor as he ages, but refrained from suggesting that he may leave the Chrysanthemum Throne.  So why can’t he just abdicate?  The answer is a unique interaction between the terms of Japan’s constitution and its post-war history.  After Japan surrendered to the Allies in August 1945, the Emperor’s father, Emperor Hirohito, renounced his divine status and agreed to a new constitution that removed all political power from the Chrysanthemum Throne and required that an emperor serve until death.  These changes to the authority of the emperor were extraordinary given the impressive power Emperor Hirohito had wielded prior to and during World War II.  But Emperor Hirohito took seriously the new ceremonial role, and Emperor Akihito has strictly followed that post-war tradition.  Today, Japan’s constitution binds Emperor Akihito to serve until death, but any suggestion that parliament should change the constitution could violate the Emperor’s careful avoidance of interference in the political affairs of Japan.  And so, Emperor Akihito hinted as strongly as possible in his speech that he would like to abdicate after his long years of service.  The next move belongs to parliament.

To all you aspiring billionaires:

If you are attracted by the $1.5 billion Powerball jackpot taking place this Wednesday, you are among a great number of peers – but please don’t throw away your dream by taking your winning ticket outside the United States.

According to a little known U.S. law, "all persons are prohibited from importing into the United States from any Jackpotforeign country any … lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery." Why? According to 17 U.S. Code Section 1305, the U.S. government views lottery tickets, among other listed items, as “immoral articles,” which are therefore banned from import into the country by any means of transportation.

Although foreigners are not barred from purchasing lottery tickets and claiming any winnings while inside the country, transporting lottery tickets beyond the border means that the winner will be unable to bring his or her ticket back into the U.S. to claim the prize. U.S. Customs and Border Officers have been warning cross-border travelers (who come to the U.S. intending to buy lottery tickets) that a ticket may be seized, confiscated and destroyed according to the law if a winner attempts reentry with the winning ticket.

So, whether you are a Canadian citizen or resident (who lives just minutes across the U.S. border) or a Chinese citizen (who is trying to hit the jackpot from across the ocean) – you have been warned. Do not gamble on your chance of winning the big one by carelessly taking your potentially winning ticket outside the United States.

Good luck!

 

On June 23, 2015, the State Council of the People’s Republic of China issued “the Opinions of the General Office of the State Council on Accelerating the Registration Reform of Consolidating Three Certificates into One Certificate.” The reform, aimed to simplify the previous bureaucratic delay and complication in business registration, has progressed and has since been implemented in China nationwide on October 1, 2015.

The so-called "Three-in-One Registration Reform" means that the business license, organization code certificate and tax registration certificate are combined into one integrated business license document: one certificate with one unified code.

The implementation of the "Three-in-One Registration” simplifies the longstanding business registration procedures, shortens the administrative processing time, facilitates a unified registration system, and is aimed to push and accelerate the continued development of the market-driven economy in China.

The stated targets of the reformation are to:

1)  Simplify the required application materials. Applicants used to be required to submit the same or similar set of materials to Administration of Industry and Commerce Office, Administration of Quality and Technology Supervision Office and Tax Bureau. Now, applicants can expect to experience a one-window service, and submit only one set of application materials;

2) Reduce duplication in review process. Application materials will be mutually recognized by the above offices, and will be reviewed by one entity: Administration of Industry and Commerce Office. Other government agencies will not need to review again;

3) Reform the annual audit systems. For companies that have applied for the new business license, annual audits won’t be performed on the organization code certificates;

4) For companies that have applied for the new business license, the validity period of their organization code certificate will be made consistent with the new business license;

5) Eliminate the administrative fees associated with the previous three certificates;

The "Three-in-One Registration Reform" is expected to benefit new and existing business entities alike. Applicants only need to visit one government authority for submission of application and supporting materials. Time and transaction costs will likely be greatly reduced. One set of original application materials will improve work flow efficiency and streamline administration. The goal is to encourage investments and to link to the newly established enterprise credit system.

In the old registration system, companies are required to apply and maintain three separate certificates, which are the business license, organization code certificate and tax registration certificate. An applicant may be required to prepare and submit several sets of up to 30 supporting documents and to make at least eight trips to various government authorities to complete the required registration processes. The final registration approval would sometimes take several weeks. The implementation of "Three-in-One Registration Reform" makes the registration process much more seamless. Now, applicants can expect to make no more than two trips to a single location, and to submit one set of original application materials, which may include approximately thirteen items, half of which were previously required. The processing time has shortened to up to three days, with some locations reporting a two-day only process.

The "Three-in-One Registration Reform” is applicable to all forms of business entities except for self-employed individuals.

The reform will have a transition period. For enterprises that have already applied for the business license before the "Three-in-One Registration Reform," they should continue to use the old business license and other certificates. However, by the end of 2017, it is mandated that all enterprises must move to the new business license format with one unified code. (For certain enterprises in special industries that may have difficulties in obtaining new business licenses, the grace period is  no later than 2020.)

If you require further information, please contact Leo Peng at lpeng@gsblaw.com +86 (10) 85299880.

Two people holding handsLast week, two of the 23 wards (local municipalities that form the central part of Tokyo) issued the first certificates recognizing same-sex partnerships.  This is not the same thing as recognizing same-sex marriage – marriage is governed by national law, and Japan’s Family Code does not recognize same-sex marriages.  These certificates, issued pursuant to ordinances in Shibuya and Setagaya wards, are not legally binding, so they can only request hospitals, landlords and other businesses to treat certificate holders as they would married couples.  However, many view this as a symbolic step that will, at a minimum, trigger discussion.

A good business plan inVisa Stamp Passport Flat Icon Businessman Handvolves consideration of both short-term and long-term goals. Your plans should do the same for your management and business employees; getting them into the U.S. as you start or grow your business, and keeping the organization properly staffed as it succeeds. This occasional blog provides guidance regarding some of the most common and important employment-based U.S. immigration options.

The U.S. government makes it relatively easy to transfer a person from one business entity outside the U.S. to a related business in the U.S. That person must have worked in an executive, managerial, or specialized knowledge capacity for the entity outside the U.S. for at least one year within the three years before the filing, and must be coming to the U.S. to work in one of those capacities, though not necessarily in the same position as in the other country for the other employer.

The two businesses must be related, either in terms of corporate relationship or ownership by the same person or group of people. They do not have to be involved in the same kind of business.

This process can be used for temporary positions, which can be approved for up to seven years of U.S. employment. These positions have “L-1” status. “Permanent” employment, which many people call a “green card,” is also available through a very similar process. Many businesses use the L-1 process to get employees and their families into the U.S. quickly while, at the same time or shortly thereafter, filing to seek approval as permanent residents. The two processes work very well together.

The normal L-1 process requires a mail-in filing for most people, which takes from two weeks (if an expediting fee of $1,225 is paid) to several months for review. Initial filing fees total $825 and a visa authorizing travel to the U.S. must be applied for and issued at a U.S. consulate outside the country, unless the employee is a Canadian citizen.

An alternative L-1 process is available for businesses that expect to transfer people on a relatively frequent basis. It is called the “blanket petition” process and is available to businesses that have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million, or which have a U.S. workforce of at least 1,000 employees, or which have obtained at least 10 L approvals in the 12 months preceding the filing seeking approval to use this process.  One of the benefits of approval for the “blanket petition” process is that it completely eliminates the U.S. mail-in filing, so the process begins directly at the U.S. consulate. It also greatly reduces the need to establish proof of the business relationships.

The EB-1 “green card” process is similar to the L process noted above, which makes it very easy to plan. The process often takes as little as five months from initial filing to decision, and can result in approval of permanent resident status for the employee and dependent family members.

For more information, see:

L-1A Intracompany Transferee Executive or Manager:

http://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager

L-1B Intracompany Transferee Specialized Knowledge:

http://www.uscis.gov/working-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge

Employment-Based Immigration: First Preference EB-1:

http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1

The Immigration Group is available to work with you as you consider employment-based immigration options for you or your employees.

In our last post we warned U.S. investors abroad about the BE-10 Benchmark Survey regarding such foreign investments, due May 29, 2015 (and for certain large filers, due June 30, 2015)..  The Department of Commerce Bureau of Economic Analysis (“BEA”) recently announced that it is extending the submission deadline for all first time filers to June 30, 2015. This development applies to filers with foreign subsidiaries and other affiliates who haven’t filed any BEA survey before for U.S. direct investment abroad.  See this link for additional details.

Cuban Flag and Colonial BuildingsThis article was written for the CSIS Americas Program conference, "Getting to Normal: A Legal Pathway for U.S.-Cuba Policy Reform," on Dec. 2, 2014.

Robert has asked me to consider what steps a willing President might take to normalize relations with Cuba on his own authority under the Constitution and existing law without further measures by Congress. As a teacher of U.S. foreign relations law, I know this to be a complex question and a fluid one. Congress and the Executive have been debating the scope of Presidential power in foreign affairs since the first days of the Republic when Hamilton and Madison argued over the legality of Washington’s Neutrality Proclamation in 1793.

While the Congress has important enumerated powers, including control of appropriations, foreign commerce and the power to declare war, as John Marshall famously said, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”i In modern times, as the United States became a world power, the President has become the dominant force in the formulation of U.S. foreign policy, and has frequently made critical decisions on his own authority as Chief Executive and Commander-in-Chief.

To read more, click here.

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By either the easy way or the hard way, most international companies have learned that the Foreign Corrupt Practices Act (“FCPA”) prohibits offering foreign officials gifts to obtain or retain a business advantage.  Similarly, many companies are learning that, despite the widespread notion that Japan does not actively pursue foreign bribery cases, law enforcement authorities in Japan and around the world happily cooperate with the United States to apprehend and prosecute Japanese FCPA violators.

The Hard Way

Misao Hioki found out the hard way.  Mr. Hioki was a general manager for Tokyo-based Bridgestone, and he bribed various foreign government officials to secure sales contracts.  In May 2007, federal and Japanese agents coordinated their searches of locations around the United States and Japan.  Their searches found evidence that formed the basis for Mr. Hioki’s prosecution.  “Today’s arrests, combined with the raids in the U.S. and Europe, demonstrate our ability to work effectively with foreign competition authorities to shut down international cartels,” DOJ announced.  Ultimately, Mr. Hioki pled guilty in December 2008.  He received a two-year sentence and an $80,000 fine.

Thus began the era of cooperation between United States and foreign law enforcement officials to prosecute Japanese companies for FCPA violations.  In 2012, the federal government indicted Yokohama-based JGC Corporation for FCPA violations.  As a member of a joint venture, JGC sought to obtain contracts in Bonny Island, Nigeria, and bribed Nigerian officials to improve its chances of obtaining these contracts.  French prosecutors discovered the scheme and delivered the relevant facts to United States officials, who prosecuted and convicted JGC and its co-conspirators.  JGC paid a $218.8 million criminal penalty.

JGC had employed Japanese trading company Marubeni Corp. to implement the bribes, and Marubeni ended up paying a $54.6 million fine.  Last year, Marubeni again violated the FCPA to secure a contract in Indonesia.  The DOJ cooperated with law enforcement officials around the world, including the Indonesian Komisi Pemberantasan Korupsi (Corruption Eradication Commission), the Swiss Office of the Attorney General, and the Serious Fraud Office in the United Kingdom.  Marubeni’s pled guilty and paid an $88 million fine.  Marubeni’s fine was greater this time because it was a repeat violator.  The government is willing to teach its lessons the hard way.

The Easy Way

The easy way is to have a compliance program and to teach employees about FCPA rules.  The easy way is to investigate potential violations aggressively and thoroughly, and to address the investigation’s findings in accordance with the law.  For information on how to do so, please contact Sean C. Griffin.

For more information on this topic, see Harold G. Bailey, Jr.'s blog post on special enforcement considerations for international healthcare companies.

Welcome Word Cloud illustration

Greetings to our readers!  The International Group at Garvey Schubert Barer is excited to launch a blog to offer:

  • Items of general interest
  • Links to resources
  • News on legal trends and developments
  • Observations from experience
  • Practical pointers

We have developed this blog for our clients and friends working in and with cross border businesses.  Although each client’s situation is unique, many of the common challenges faced by those who go abroad to conduct business have solutions that we have learned over the decades. In addition to sharing our own insights, we will repost items that we hope will be of interest, especially on hot topics.

As you can see from the options available to the right of the screen, we will cover a variety of topics and regions.  Feel free to select from those options to find the posts of most interest to you.   Feel free also to contact us with topics you’re interested in learning about.  We’ll do our best to listen.  And if you have legal assistance on a posted topic, the authors listed can help you get answers.  Please don’t hesitate to reach out.

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About Us
The International Practice Group of Garvey Schubert Barer is a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics, and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. The firm’s attorneys have been actively practicing in the international arena since the early 1970s. 
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