More Clients Embrace E-Billing
It only seems fair for the in-house department to strive to simplify the billing process at a time when it is demanding so much from outside counsel.
EU Corporate Guidelines
The first challenge and most important need is to know what the relevant EU corporate guidelines are, to know where they apply and to know how to find them. Unlike the United States, where corporate matters are generally covered by individual state law, in the European Union these matters have long attracted centralized legislation from Brussels, which affects the entire EU (now 25 countries, which in 2007 will be joined by Bulgaria and Romania). Norway and Switzerland (although not in the EU) often legislate regarding these matters much as EU member countries do and thus, for our purposes here, we can talk about 29 countries in Europe rather than the 25 that currently make up the EU.
Good Faith Issues
In recent years, Delaware courts have begun to refer to a "triad" of fiduciary duties -- consisting of loyalty, care and good faith -- thereby suggesting that good faith constitutes a duty separate from the duty of loyalty. More importantly, recent opinions of the Delaware courts have indicated that conduct that traditionally would have been viewed as implicating only the duty of care may be found to constitute a breach of the duty of good faith. This analytical shift is significant: Directors are typically exculpated, and both directors and officers are typically indemnified and insured, for breaches of their duty of care, while exculpation and indemnification by the corporation are impermissible, and insurance coverage exclusions may apply, in respect of conduct that constitutes bad faith.
Due Diligence: Beyond the Financial Statements
Due diligence of an acquisition always begins with the careful examination of the financial statements, but now demands a complete evaluation of internal controls and transaction integrity. Unlike finely polished financial statements, internal controls and transaction integrity are hard to spin; any varnish quickly wears off when scrutinized. After living through failed acquisitions and now an increased regulatory environment, corporate risk executives are refining their due diligence processes. By measuring transaction integrity and the effectiveness of internal controls, this new due diligence provides a view into the selling company's operational discipline and overall culture for tolerating policy violations.
One FCPA World
Suppose a group of officers of one of your foreign-based corporate clients, with no offices or businesses in the United States, makes a rare visit to the U.S. for an industry-related conference. Between sessions, they break off to participate in a conference call with employees overseas. The subject is whether to authorize political contributions in another country in the hope of getting business there, and they tell their compatriots to proceed. As soon as the conference is over, they head home. Can this one call be the basis for an assertion of U.S. jurisdiction over your client and the officers under the Foreign Corrupt Practices Act (FCPA)? Surprisingly, the answer is yes, in spite of the entirely accidental nature of the contact.
