As the stalwart protector, bastion of authority, and intermediary between the corporation and regulatory authorities, legal counsel has an increasingly difficult role.
With increased scrutiny and regulatory oversight, new regulations, business practices, technologies, partners, contracts, international expansion, who can say they already have expertise in all the finer points asked of today's in-house counsel?
Advising on and defending against unacceptable levels of risk at the pace required by today's business velocity requires agility and unfettered access to facts and resources. Decisions are needed within hours or days, not weeks or months, and they need to be re-evaluated at increasingly close intervals as products and strategies evolve to meet competitive pressures.
Helping create a clear governance and accountability framework, developing policies and processes, providing training, evaluating programs, standards and procedures, ensuring compliance with contractual obligations, as well as legal and regulatory requirements, communicating and advising on potential risks, and reducing exposure all require keeping abreast of changes in the regulatory environment, industry practices, and business needs.
Importing and exporting
Counsel providing guidance on international trade matters have additional responsibilities: serving as the legal contact to Import/FTA/Country of Origin/Export teams, helping business groups navigate laws, regulations and administrative processes related to import and export controls—embargoes, sanctions, anti-boycott, anti-money laundering, anti-dumping, classification, valuation, origin, maquiladora, free trade agreements, focused assessments, marking, voluntary disclosures, etc.
Matters become more complex when there are global subsidiaries, necessitating global trade compliance strategies, M&A due diligence, technology and process integration.
Controlled goods environments
For legal counsel working in a controlled goods environments, there are added requirements: developing and recommending policies and positions on controlled goods import and export requirements, assisting in the implementation of controlled goods import and export compliance programs for TAAs and MLAs, TCPs, restricted/denied party screening, license determination and management of licensed activities, commodity jurisdiction and classification, internal audits, preparing and reviewing various legal instruments, ensuring maintenance of adequate audit trails and compliance with the Arms Export Control Act (AECA), International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR), Office of Foreign Assets Control (OFAC), Atomic Energy Act (AEA), USA Patriot Act, Trading With The Enemy Act, and related statutes.