Knowing where to start with international healthcare contracting can be a daunting task for companies that want to explore new overseas markets. Carly Caton, partner in the Commercial Healthcare team at UK and Ireland law firm Browne Jacobson, provides a list of 10 key considerations.
1: Political, economic and ethical considerations in your chosen international markets
When considering international contracting, it is important to determine which countries you want to work in and whether there are any ethical considerations to keep in mind.
For example, some countries may have different laws and regulations related to employment practices, environmental protection and human rights. It is important to consider the values of your business and keeping aligned to those.
Consideration should also be given to the political and economic stability of the country where the other party is located. This may include assessing the risk of political instability, currency fluctuations and economic downturns, and should include a search of international sanctions lists.
2: Language and cultural differences
Consider the language and cultural differences of the other party. This may require translation services or cultural training to ensure effective communication and understanding. It will often also mean face-to-face time on the ground.
3: Compliance with local laws and regulations
The laws and regulations of the country you are working with need to be understood and the contract will need to comply with those. This may include regulations related to healthcare, data protection and privacy.
4: Payment terms and currency
Payment terms and currency of the contract will be key issues. This may include understanding foreign exchange risks and the need for international banking services.
Are there withholding taxes? How easy is it to get money out of the country? Are the expenses covered within the contract fee or in addition?
5: Intellectual property rights
Ensure that your intellectual property rights (IPR) are protected in the country where the other party is located. This may require registration of trademarks, patents and copyrights, and ensuring the contract has strong and clear IPR clauses.
6: Data considerations
Relevant data protection laws need to be observed by both you and any third-party service providers. This includes ensuring any personal data is collected, processed and stored in a secure and lawful manner.
In this context, be aware of any cross-border data transfer restrictions that may apply. Some countries have strict rules around the transfer of personal data outside their borders, so it is important to ensure any transfers comply with these rules.
This requires having appropriate security measures in place, a clear data protection policy, staff training regimes on data protection issues, and regularly reviewing and updating policies and procedures for ongoing compliance.
7: Insurance and liability
Consider the insurance and liability issues related to the contract. This will likely include obtaining additional and appropriate insurance coverage, and limiting your maximum liability in the contract.
8: Due diligence
It is prudent to conduct some due diligence on the other party to ensure that it is reputable and financially stable. This may involve reviewing financial statements, credit reports and various checks to be conducted on your counter-party to flag any issues of concern.
9: Governing law and jurisdiction – plus dispute resolution
When entering into international contracts, consider the governing law and jurisdiction of the agreement.
This determines which country’s laws will apply to the agreement and where any disputes will be resolved. Your starting point will always be that you want the laws and courts of the country you are based in, while acknowledging in the contract that you will of course comply with the law and regulations of the country to which you are providing goods or services.
Consider your preferred method of dispute resolution. This may include an internal escalation procedure within the parties’ own organisations followed by mediation, or international arbitration or litigation.
Where possible, you will want to ensure any litigation takes place in your own country rather than that of the other contracting parties.
10: Internationalising the website
If you are expanding your business globally, consider internationalising your website to cater to a global audience.
This may involve translating parts of your website into different languages, adding an ‘international’ page, adapting your content to local cultures, and ensuring your website complies with local laws and regulations.
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