International Business Strategies for Credit Professionals was presented at the annual Legal Seminar For Credit Professionals, hosted by Kegler Brown in conjunction with NACM – Great Lakes Region and American Subcontractors Association. Kegler Brown global business attorneys Luis Alcalde and David M. Wilson joined Andy Arduini, senior vice president and director of structured trade finance at Huntington National Bank, in presenting the seminar. The presentation covered a multitude of topics, including: due diligence on the foreign borrower/customer; understanding the business and corporate structure of the foreign borrower to better cross-collateralize and obtain guarantees of payment; letters of credit; and export credit insurance.

2. Background
Due
Diligence
Foreign
Liens
Letters of
Credit
GETTING PAID WHEN
SELLING INTERNATIONALLY
@ LMAlcalde
@ dwilsonjdmba
Luis Alcalde, Esq. and David M. Wilson, Esq.

3. Getting Paid When Selling
Internationally
Background
Definitions
and Key
Concepts
Nature of
International
Transactions
Due
Diligence
Foreign Buyer
/ Borrower
Diligence
Foreign
Market
Diligence
Foreign
Liens
Identifying
Foreign Liens
Securing Your
Transaction
Letters of
Credit
Governing
Laws and
Rules
Practical
Legal Issues
Background
Due
Diligence
Types of
International
Transactions
Foreign
Liens
Letters of
Credit

4. Definitions and Key Concepts


Credit - the ability of a customer to obtain goods
or services before payment (or full payment),
based on the trust that payment will be made in
the future.
Credit risk - the danger that you will not receive
an amount of money you are owed because the
party that owes the money is unable to pay and
defaults on the obligation.

Credit risk increases the further away in time the
payment is expected since every day increases the
possibility of events that may cause an inability to pay.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

5. Definitions and Key Concepts

Credit exposure - The total amount of credit
extended to a borrower by a lender.
 The
magnitude of credit exposure indicates the
extent to which the lender is exposed to the risk
of loss in the event of the borrower's default.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

6. Nature of International
Transactions


Goods, services, technology, contract rights,
money and/or people are moving from one
market or legal jurisdiction to another market
or legal jurisdiction.
The cross border nature of the trade and
exchange means that at least the law of two
jurisdictions or markets/countries apply to the
transaction as well as principles of
international law.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

7. Nature of International
Transactions
Exports from a Market Equal
Imports Into a Market
Export Goods,
Services,
Technology, IP,
People, Money from
USA
Import Goods,
Services,
Technology, IP,
People, Money into
Foreign Market
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

8. Nature of International
Transactions
Money
Exporting
Seller
Importing
Buyer
Goods
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

9. Nature of International
Transactions

Foreign market import
laws re: goods, services,
technology, IP, approval
and registration of
products, services,
technology

US & Foreign Laws Affecting
Cross Border Sale Transaction

Financial control laws re:
foreign currency, foreign
investments, transfer
pricing, financial
reporting, taxes, import
duties and fees
USA export laws re:
goods, services,
technology, IP

Export controls, ITAR,
EAR

OFAC
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

10. Nature of International
Transactions
Laws Affecting the Private
Relationship of Parties
USA laws
applicable to
contracts, sale of
goods, services,
technology, IP,
financing,
resolving conflicts
Foreign markets
laws re contracts,
sale of goods,
services,
technology, IP,
solving conflicts
International
treaties on IP, Sale
of Goods,
Contracts,
Resolving
Conflicts, Taxes
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

11. Types of International Transactions
Direct Sale
from U.S.
-Freight
Forwarder
-Trading
Company
Non-Equity
Alliance
-License
-Agent
-Distributor
-Franchise
-Joint venture
Background
Equity
Alliance
Wholly Owned
Subsidiary
-M&A
-Greenfield
-Brownfield
-Joint venture
-Joint company
Due
Diligence
Foreign
Liens
Letters of
Credit

12. Types of International Transactions

Incoterms®

What are Incoterms?


What do Incoterms address?



Contractual terms created by the International Chamber of
Commerce (ICC)
Identify the location in the supply chain where the risk of loss
or damage transfers from seller to buyer.
Identify the point in the supply chain where the responsibility
for certain costs and obligations shift from the seller to the
buyer.
What is not covered by Incoterms?

Do not address when title to the goods transfers.


If applicable, should be addressed in separate contract clause.
Do not transfer US export control compliance obligations.

Generally, US Principal Party In Interest responsible for filings.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

13. Types of International Transactions

Best Practices

Understand where the risk of loss transfers.

Just because the seller pays for freight does not
necessarily mean that the seller has the risk of loss while
goods are being delivered.
Understand who has responsibility for loading and
unloading charges.
 Understand who has responsibility for customs
clearance, duties, and other charges.
 Understand how these terms relate to your trade
solutions (LC, documentary solutions, SBLC, bank
guarantee – UCP 600).

Background
Due
Diligence
Foreign
Liens
Letters of
Credit

14. Types of International Transactions
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

15. Types of International Transactions

Best Practices
 All
information contained in the export documents
should come from the original contract.
•
•
•
•
•
•
•
•
•
•
Background
Due
Diligence
Sales contract
Purchase order
AES System filings
Commercial Invoice
Packing List
Bill of lading
Insurance certificate
Certificate of origin
Certifications
Letter of credit
Foreign
Liens
Letters of
Credit

16. Types of International Transactions
Exports from a Market Equal
Imports Into a Market
Export Goods,
Services,
Technology, IP,
People, Money from
USA
Import Goods,
Services,
Technology, IP,
People, Money into
Foreign Market
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

17. Types of International Transactions

Best Practices
 All
information contained in the export documents
should come from the original contract.
 One party’s export becomes another party’s
import.
•
Commercial Invoice
• Used by customs for product classification
• Used by bank for paying on letter of credit
Background
Due
Diligence
•
•
•
•
•
•
•
•
•
•
Sales contract
Purchase order
AES System filings
Commercial Invoice
Packing List
Bill of lading
Insurance certificate
Certificate of origin
Certifications
Letter of credit
Foreign
Liens
Letters of
Credit

18. Types of International Transactions

Best Practices
 Commercial
•
•
•
•
•
•
•
•
•
•
Invoice Checklist
USPPI name and address
Consignee (buyer)
Intermediate consignee
(delivery party, notify party, often FF)
Forwarding party
Commercial invoice number
Customer PO Number
Bill of laden or air bill number
Country of origin
Date of export or invoice date
Incoterm
Background
•
•
•
•
•
•
•
•
•
•
•
Sales price
Currency of sale
Terms of payment
Port (airport) of export
Export carrier
Quantity
Unit of measure
Weight
Product description
HS number
Export control contract
clause
Due
Diligence
Foreign
Liens
Letters of
Credit

19. Foreign Buyer and Foreign Market
Diligence
Background
Definitions
and Key
Concepts
Nature of
International
Transactions
Due
Diligence
Foreign Buyer
/ Borrower
Diligence
Foreign
Market
Diligence
Foreign
Liens
Identifying
Foreign Liens
Securing Your
Transaction
Letters of
Credit
Governing
Laws and
Rules
Practical
Legal Issues
Background
Due
Diligence
Types of
International
Transactions
Foreign
Liens
Letters of
Credit

20. Foreign Buyer and Foreign Market
Diligence

Threshold Questions
 Has
the risk analysis identified any general or
specific credit risks?
 What is reasonable under the circumstances?
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

21. Foreign Buyer and Foreign Market
Diligence




Government & political environment
Judicial system
Transparency, fairness, rule of law
Foreign exchange rates and monetary controls
The unit of measurement
for political risk is
STABILITY
Political Risk
• The ability of government to respond to political risk
• The ability of government to NOT cause political risk
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

22. Foreign Buyer and Foreign Market
P E S T
Diligence
The unit of measurement
for political risk is
STABILITY
Political Risk
• The ability of government to respond to political risk
• The ability of government to NOT cause political risk
Denmark
1st
USA
19th
Chile
20th
Brazil
69th
China
80th
Background
Colombia
94th
Due
Diligence
India
94th
Russia
133rd
Foreign
Liens
North
Korea,
Somalia
174th
Letters of
Credit

23. Foreign Buyer and Foreign Market
P E S T
Diligence

Currency Risk
exposure – commitment to make
payment at future date
 Transaction
 Solutions



Forward Contracts to supply at future date at set price in a
specified currency
Risk Sharing Clauses in long term supply contracts which
address sharing the risk of specific variables
Foreign Currency Options to buy foreign currency in future
at set price
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

24. Foreign Buyer and Foreign Market
Diligence

Prepare credit risk profile.
 Aggregate
amount of risk of the buyer/borrower,
payment history, current capacity to repay based
on historical and future projections.
 Obtain
written information from buyer and written
consent to contact local bank and references.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

25. Foreign Buyer and Foreign Market
Diligence

Request relevant information from buyer.
 In
many countries information is inaccessible or
difficult to access.
 China has no system for collecting & assessing
credit histories or even accessing criminal or land
records.
 Many countries do not recognize “private
investigations” and consider them illegal.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

26. Foreign Buyer and Foreign Market
Diligence





Identify all principal owners.
Identify all parent, subsidiary & affiliated entities.
Identify all entities related through common ownership of
principal owners or close relatives.
Determine whether borrower is a State Owned
Enterprise (“SOE”) or if there is any government
ownership or control over the borrower.
Ensure legal capacity.

This can be particularly tricky in foreign jurisdictions as many
countries incorporate a Legal Representative framework,
which provides that only the designated Legal Representative
may bind the company.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

27. Foreign Liens
Background
Definitions
and Key
Concepts
Nature of
International
Transactions
Due
Diligence
Foreign Buyer
/ Borrower
Diligence
Foreign
Market
Diligence
Foreign
Liens
Identifying
Foreign Liens
Securing Your
Transaction
Letters of
Credit
Governing
Laws and
Rules
Practical
Legal Issues
Background
Due
Diligence
Types of
International
Transactions
Foreign
Liens
Letters of
Credit

28. Foreign Liens

Two common issues when selling abroad
 Searching
for secured debts
 Securing your transaction
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

29. Foreign Liens

In the US

Transparent records and recording systems



Federal and State tax liens are searchable
Stable and fairly uniform legal structure - Uniform
Commercial Code
Outside of the US


Countries where information is available often require
taxpayer consent to release.
The UCC does not control.

Generally, the laws of the jurisdiction in which the debtor is
located govern perfection of security interests in personal
property (UCC 9-301).
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

30. Foreign Liens

UCC Equivalence Test

If the laws of the debtor’s country are not equivalent to the
US, then the debtor may be deemed to reside in the
District of Columbia.


The secured party is essentially excused from compliance with
non-US law and may perfect its interest in the District of
Columbia.*
The equivalence test assesses whether the foreign
jurisdiction requires a foreign filing and whether recording
or registration is equivalent to Rev. Article 9 of the UCC

“Generally requires information concerning the existence of a
non-possessory security interest to be made generally
available in a filing, recording, or registration system as a
condition or result of the security interest’s obtaining priority
over the rights of a lien creditor with respect to the collateral.”
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

31. Foreign Liens

If I file in the District of Columbia, am I ok?
 Additional
information is required to determine
whether a secured party can achieve priority by
registering its interest in the collateral under
foreign or Washington D.C. law.
 Foreign
law may not recognize security interests in the
type of collateral, or in favor of the type of secured
party.
 Contractual choice of law clauses may not be given
effect to alter the law that otherwise would govern
perfection over security interests.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

32. Foreign Liens

Summary of select systems

Canada



Ontario enacted the PPSA based on UCC Article 9 (all Canadian common law
jurisdictions have followed)
Quebec (civil law jurisdiction) has a civil code which parallels the PPSA.
Mexico

Registro Único de Garantías Mobiliarias (RUG) - Largely based on recommendations
from UN Commission on International Trade Law (Executive decree issued September
23, 2010 implementing the amendments)



Unified registry of movable property
Previously filed security interests in local registries are still effective.
Pledge System (much of South America)





Perfection is generally by possession
Transaction filing – generally, lender must file copy of entire loan agreement
Generally requires new filing at each stage or modification of a transaction
Generally cannot contain floating security interest
Narrow collateral descriptions (generally, must be the same “specie” as the original)
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

33. Foreign Liens

Solutions
 Obtain
guarantees from parent, subsidiary,
affiliate or common ownership company, or
individuals located in U.S. or more legally secure
or transparent jurisdictions.
 Obtain liens or rights over collateral located in
U.S. or more legally secure or transparent
jurisdictions.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

34. Letters of Credit
Background
Definitions
and Key
Concepts
Nature of
International
Transactions
Due
Diligence
Foreign Buyer
/ Borrower
Diligence
Foreign
Market
Diligence
Foreign
Liens
Identifying
Foreign Liens
Securing Your
Transaction
Letters of
Credit
Governing
Laws and
Rules
Practical
Legal Issues
Background
Due
Diligence
Types of
International
Transactions
Foreign
Liens
Letters of
Credit

35. Letters of Credit

Letter of credit (LC) characteristics:
 Offers the most protection to the seller.
 Substitutes the creditworthiness of an overseas buyer with that of a
bank.
 Depending on the type of LC, the bank that pays on behalf of the buyer
may be at origin or at destination.

Banks deal in documents only.



Payment is independent of the physical movement of the related goods.
Buyer’s recourse for problems with goods is to the contract with the Seller.
Three independent “agreements” underline a letter of credit.
 between buyer and seller (their contract)
 between applicant and issuing bank (application and reimbursement
agreement)
 between issuing bank and beneficiary (the LC)
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

36. Letters of Credit

Relevant laws and rules
Article 5 of the Uniform Commercial Code
 Uniform Customs and Practice for Documentary
Credits (UCP)

Published by the International Chamber of Commerce
(I.C.C.)
 The UCP is not law, rather a detailed restatement of
“custom” in the industry.
 However, the UCP may apply. Some states have enacted a
non-uniform amendment to UCC Article 5, which states that
unless otherwise agreed, Article 5 does not apply to a letter
of credit if the UCP is incorporated by reference into the
documentary credit.

Background
Due
Diligence
Foreign
Liens
Letters of
Credit

37. Letters of Credit

Example of LC use in practice



Buyer requests extended payment terms of 90 days from date of
shipment.
Seller counters that it will not offer such terms on open account basis,
but would consider such terms if buyer provides acceptable LC and
agrees to absorb the associated additional costs of financing.
Seller talks with its bank, to obtain pricing for credit/finance driven fees
associated with this arrangement:






Confirmation fee
Acceptance commission
Discount charges
Buyer’s bank issues the LC
Seller’s bank is the confirming bank
LC is payable via a time draft to be drawn at 90 days from date of
bill of lading
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

38. Letters of Credit

Background Terms
 Clean
letter of credit
 Requires
no bill of lading.
 Documentary
 Requires
 Clean
letter of credit
a bill of lading.
Bill of Lading.
 A clean
bill of lading requirement cannot be met by a
“foul bill of lading,” in which the carrier has noted that
there is patent damage to the cartons shipped.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

39. Letters of Credit

Irrevocable documentary letter of credit



Sight letter of credit


Does not restrict the beneficiary’s right to transfer its rights thereunder.
Special letter of credit


Payable at a certain time, such as: six months following presentation of documents.
General letter of credit


Payable on demand
Time letter of credit


Most common in international commercial transactions.
Documentary letters of credit may also be “revocable,” giving the beneficiary a right to
payment “unless previously canceled” by the account party.
Limits permissible transfers, usually to one or more banks.
Fixed letter of credit

May become “exhausted” either when drafts for payment have been drawn by the beneficiary
for the full amount of the letter or when the time period for drawing upon the letter has
expired.
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

40. Letters of Credit

Common broker issue
Often have two transactions with the same goods.
 If both sales transactions involve payment by LC, then
broker will be the beneficiary (seller) of the LC in the
first transaction, and the account party (buyer) in the
second.


Broker solution

Back to back credit
If the documents required by each LC are identical, then
broker can assign its rights in the first transaction to the
issuing bank of the second LC.
 May enable broker to purchase the goods from supplier
with credit of its buyer.

Background
Due
Diligence
Foreign
Liens
Letters of
Credit

41. Legal Advice

The content of this presentation is for educational purposes
only. Each legal issue is fact dependent, THIS
PRESENTATION SHOULD NOT BE USED OR VIEWED
AS LEGAL ADVICE; your legal counsel should be
consulted on the application of your particular factual
situation to the current law.

Copyright: 2013 Kegler, Brown, Hill & Ritter Co, LPA
Background
Due
Diligence
Foreign
Liens
Letters of
Credit

42. Background
Due
Diligence
Foreign
Liens
Letters of
Credit
GETTING PAID WHEN
SELLING INTERNATIONALLY
@ LMAlcalde
@ dwilsonjdmba
Luis Alcalde, Esq. and David M. Wilson, Esq.

43. Selling Internationally
Balancing Risk & Competitiveness
Andy Arduini
Senior Vice President
Director – Structured Trade Finance
October 24, 2013

44. Setting the Scene
• President ’ s National Export Initiative calls for
doubling of exports between 2010 and 2015.
• Year-over-year growth rate for last 3 years is 17.1%
• U.S. exports very significant; $2.2 trillion in 2012.
• Ohio was 9th largest exporting state in 2012 with
$48.5B in exports.
• The International Monetary Fund forecasts that 87%
of world economic growth will take place outside of
the U.S. over the next 5 years.
44

45. Setting the Scene (continued)
45

46. Primary Risks
• Not getting paid.
• Losses resulting from currency fluctuations.
Most Overlooked Risk
• Lost revenue due to uncompetitive terms.
46

47. Getting Paid: Risk vs. Competitiveness
Least Risk
Common Payment Methods
Least
Competitive
CASH IN ADVANCE
LETTER OF CREDIT
CASH AGAINST DOCUMENTS
OPEN ACCOUNT
Most Risk
Most
Competitive
47

48. Letter of Credit
• Payment method that has evolved over centuries of
international commerce.
• Governed by standard rules (UCP 600).
• Very effective tool to eliminate commercial risk while
selling internationally.
• Can be significant competitive impediment in many
markets.
• Does not protect against Country/Political Risk.
48

49. Open Account / Cash Against Documents
• Most competitive but risky payment method for selling
internationally.
• Cash Against Documents allows you to control the
delivery of goods, but does not guarantee payment or
return of goods to you in a default.
• Does not protect against Commercial or
Country/Political Risk.
• Risks can be lowered through ExIm Bank Credit
Insurance & Foreign Buyer Financing Progams.
49

50. ExIm Bank
• Export-Import Bank of the United States.
• Mission is to assist in financing the export of U.S. goods
and services to international markets.
• Supported more than $450 billion of U.S. exports,
primarily to developing markets worldwide, in its 77
year history.
• Authorized a historic total of $35.7 billion in loans to
support U.S. exports in 2012 (10% increase over 2011).
• Provides export credit insurance and loan guarantees.
50

51. Should I insure A/R?
• Often the only uninsured asset
• Frequency of loss generally the highest of all assets
• Magnitude and frequency of loss often magnified when
selling internationally where legal remediation is more
complicated
• Highly sensitive to changes in the business cycle
• Lifeblood of a company’s cash flow position
• Often critical to repay short-term borrowing
51

52. ExIm Short Term Credit Insurance
• Over $2B in policies authorized in 2012.
• Available to exporters whose product contains more
than 50% U.S. content.
• Coverage generally 95%. Covers commercial and
political risk.
• Terms up to 180 days for consumable products and
360 days for some bulk agricultural products and
capital equipment.
• Available as single buyer policy or multiple buyer policy.
52

53. Should I give a loan to a foreign customer?
• Great sales tool but can be a very risky proposition.
• Commercial and political risk magnified exponentially
as tenor increases.
• Credit analysis can be complicated given regional
differences in accounting standards.
• Can be difficult and expensive to perfect a security
interest in foreign collateral.
• Can be problematic and expensive to collect bad debts.
53

54. ExIm Foreign Buyer Financing
• A U.S. based bank provides a direct loan to a foreign
customer of a U.S. exporter on that is backed by a
100% ExIm guarantee.
• Non-recourse financing. The U.S. exporter has no
responsibility for the loan once funded.
• Often very competitive financing in emerging markets
where rates are higher and access to funding more
difficult.
• Maximum advance rate of 85% with matching U.S.
content requirement. Term is generally 5 to 7 years.
54

55. Foreign Exchange: Risk vs. Competitiveness
Two Options
Least Competitive
Least Risk
SELL IN U.S. $
SELL IN FOREIGN CURRENCY
Most Risk
Most Competitive
55

56. Does selling in USD eliminate risk?
• Depends on how you define risk.
• It will protect you from currency valuation differences
as it transfers this risk to your customer.
• Will cause you to lose sales as some prospective clients
will not be amenable to taking this risk.
• Can expose you to risk during times of extraordinary
fluctuation in currency values. Many lessons learned
during the great recession.
56

57. Foreign Exchange Strategy
• Eliminate foreign currency risk for both parties. Best of
both worlds approach can eliminate both valuation and
loss of revenue risk.
• Discuss hedging strategies with a capable bank. There
are many ways to sell in a foreign currency and not take
foreign currency risk.
57