Robinson Bradshaw's David A. Shuford interviewed by Law 360 on his International Practice

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April 5, 2013

Q&A With Robinson Bradshaw's David Shuford

Law360, New York (April 05, 2013, 1:39 PM ET) -- David A. Shuford is a counsel in Robinson Bradshaw & Hinson PA's Charlotte, N.C., office. He focuses his practice on international commerce. It includes international business transactions, international compliance matters (including anti-corruption, export control, anti-money laundering, and economic sanctions) and international disputes (including international commercial and investment dispute arbitration). He assists U.S. companies seeking to expand in overseas markets and foreign companies seeking to grow their operations in the United States. Before joining the firm, he practiced in the international group of Covington & Burling LLP and served as a legal adviser at the Iran-United States Claims Tribunal in The Hague, The Netherlands.

Q: What is the most challenging case you have worked on and what made it challenging?

A: Many of our clients are struggling to protect their intellectual property while at the same time taking advantage of the efficiencies offered by a global supply chain. The recent experience of one client illustrates some of the issues.

Our client entered into a supply agreement whereby an overseas supplier agreed to manufacture products based on the intellectual property of the client. Over the course of the relationship, the supplier and the client jointly developed improvements and other changes to the products. When the relationship ended (which can be for many reasons, including, for example, the expiration or termination of the supply agreement, the bankruptcy of one of the parties, or the souring of the business relationship), the supplier took the position that it owned the intellectual property, refused to return the client’s materials, and sought to prevent the client from having its products manufactured by another supplier.

While it is critical to address these matters in the supply agreement, it is equally critical to ensure that the terms of the agreement can be enforced in arbitration or through litigation and that the result of such a procedure will be respected.

Q: What aspects of your practice area are in need of reform and why?

A: Increased protection of intellectual property rights internationally, as well as more predictable means of enforcing intellectual property rights in international supply agreements, are critically important to our clients. The Word Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has gone some way towards harmonizing substantive protections for IPR, but there are still wide disparities between the level of protection and the ease of enforcement in different jurisdictions around the world.

Q: What is an important issue or case relevant to your practice area and why?

A: The increased focus by U.S. and foreign government authorities on anti-corruption compliance, and the increasingly global nature of many companies’ businesses, including those in industries that historically were purely domestic, have combined to present significant challenges and risks to our clients.

The U.S. government is focused on aggressive enforcement of the Foreign Corrupt Practices Act. Other jurisdictions, such as the United Kingdom with its adoption of the Bribery Act, have likewise increased their focus on anti-corruption issues. At the same time, many businesses that historically have worked only in the domestic sphere now find themselves having a substantial international presence, for example selling products and services to foreign governments or state-owned enterprises or constructing or acquiring facilities in foreign jurisdictions. If based in the U.S. or carrying on business in the U.K., such companies are subject to the FCPA or Bribery Act when operating internationally. They need to understand how those laws apply to them, and perhaps most importantly, how their business partners overseas (including third party agents and joint venture partners) can create civil and criminal liability by bribing, even if the practice is common in the local jurisdiction. This is a novel and risky area for many of our clients.

Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.

A: While we are able to assist our clients with many of their international compliance matters, there are times when it is necessary to recommend that a client consult with a lawyer who specializes in one of those areas. Our firm often turns to Jim Slear at Thompson Coburn LLP and Les Carnegie at Latham & Watkins LLP on trade control matters and David Fagan at Covington & Burling LLP on CFIUS matters. All three, who are located in Washington, D.C., are recognized experts in their fields.

Q: What is a mistake you made early in your career and what did you learn from it?

A: International arbitrations, particularly those involving disputes over government actions taken against foreign investors, often involve multiple legal systems, each of which requires a lawyer to think and analyze issues differently. Take, for example, a claim by a U.S. investor against a Latin American country under a bilateral investment treaty that relates to a joint venture agreement that the investor had with a state owned enterprise. The claim is brought under international law — the bilateral investment treaty — that includes international law concepts like fair and equitable treatment and full compensation for expropriation. At the same time, the investor’s business in the country is governed by an agreement under domestic law, usually that of the host country, which in Latin America would typically be a civil law system. Finally, the U.S. company will typically be most familiar with the common law system we have in the United States.

Early in my career, I struggled to think like an international lawyer when appropriate and to think like a civil lawyer when appropriate, all while communicating with a client who is most familiar with our common law system. But having learned to do it over the years, I find it a useful skill when helping clients understand who the various legal systems come together to govern and protect their overseas investments.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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