Monday, August 10, 2015

Beware Foreign Domestic Laws

Sending personnel overseas into a different country subjects your sales people, executives, and employees generally to the domestic laws (called municipal laws in international law parlance) of the country they visit. Equally important is whether the personnel you send over to another nation possess dual nationality with the country they travel to; dual nationality (see the US Department of State's definition here) could mean your employee's US citizenship is disregarded under municipal law. The US Department of State maintains a checklist for preparations to undertake before traveling abroad, which emphatically cautions:
"While traveling, you are subject to the local laws even if you are a U.S. Citizen. Foreign laws and legal systems can be vastly different from our own and it is very important to know what's legal and what's not. If you break local laws while abroad, your U.S. passport won't help you avoid arrest or prosecution, and the U.S. Embassy cannot get you out of jail."
Recent news stories of foreign country based employees of US employers are replete with illustrations of municipal (local) law violations leading to long internments, debilitating conditions, and inaccessibility to outside advisors. While certain international treaties such as the International Covenant on Civil and Political Rights and the UN Charter as well as non-treaty (called customary international law) instruments like The Universal Declaration of Human Rights instill a system of individual rights nations should protect and recognize, enforcement is largely left to internal governmental processes within individual nations. There are advisory complaint procedures set out in either treaties themselves or through the UN system (a list of such bodies is maintained by UN Office of the High Commissioner for Human Rights). Remember nations need to sign (and ratify) treaties and may not possess a system for direct effect of the treaty rights in their domestic governmental systems.
Be aware many nations permit private citizens to initiate criminal complaints under local criminal laws to redress ostensibly private grievances through prosecution under substantive criminal law and procedure codes with punishments of imprisonment available in resolution of the dispute.
Certain US laws limit the ability of US citizens to sue, in US state or federal courts, foreign governments (for example the Foreign Sovereign Immunities Act).
Diligence in exploring a country's municipal law before sending your employees overseas hopefully avoids local foreign law violations.
As a starting point, use of the US Department of State's Country Information pages provide general preliminary advisories on specific countries, their local laws, and visa requirements (consider work authorization requirements as well). Proactively engaging foreign country travel issues with your personnel helps to educate and manage the risks associated with foreign business travel. www.erskine-law.com