Understanding and dealing with the legal issues involved in exporting leaves you free to get on with building your export sales. Fortunately, there is plenty of help available. The government is keen to help exporters and business support organisations can provide both general and country-specific advice.
As well as making sure you comply with UK and overseas legal requirements, you'll need to anticipate potential problems. You should think about how to protect any intellectual property and make sure you draw up clear contracts with customers and agents.
The overseas legal environment
1. Export trade restrictions
Find out whether you need a UK export licence
- Most products can be exported without an export licence.
- You may need a licence for weapons, products with a potential military use, food, animals and plants, medicines and certain chemicals, and antiques.
- Whether you need a licence may depend on the country you are exporting to.
- From time to time, the government may impose sanctions prohibiting certain exports to a particular country.
- Get advice from the government department dealing with that type of product or from your advisers.
Find out whether you will face any import restrictions overseas
- You may need an import licence, depending on the country you are selling to and the product you are selling.
- Some countries ban the import of certain products altogether.
2. The overseas legal environment
Establish what normal commercial practice in the customer's country is
- Find out what payment procedures and credit terms are normally used.
- Assess your chances of enforcing your legal rights in the local courts in case of a dispute.
Investigate the customer's reputation and creditworthiness
- You may want to visit the customer as part of the process of finding out about them and building a relationship.
- Find out what experience other exporters have of dealing with customers in that country. Ask your local chambers of commerce for help with tracking down other exporters.
Check any legal requirements before visiting the country
- You can find specific passport and visa requirements from the country's embassy or consulate in the UK.
- From 1 January 2021, EU countries may introduce visa requirements or other business travel conditions.
- Other restrictions can include currency controls and restrictions on where you can stay while in the country.
Take expert advice if you are thinking of establishing a local presence overseas
- There may be restrictions on forming a business, such as requiring a minimum level of capital or a particular legal form for the business.
- The local operation is likely to be subject to local laws in areas such as tax and employment.
- It can be difficult to lay off employees and realise the value of your assets if you later decide to cease trading there.
3. Export market product law
Find out about any local product standards
- Different countries may have their own standards for particular products. This could mean that even if your product meets relevant British, European or International Standards, this may not be enough.
- Your product may need to be certified to state that it meets the appropriate local standards. In some cases, the product must be tested and certified by an approved organisation in that country.
- From 1 January 2021, meeting British Standards does not guarantee that your products meet EU requirements. Some goods require a CE mark and may need to be accompanied by a Declaration of Conformity.
Check what other product regulations there are
- For example, you may be required to label products in the local language, using local weights and measures.
Find out about local product liability laws
- You might face prosecution if you sell products that fail to satisfy local product safety laws.
- Your customers may be able to sue you if they suffer any harm or loss from a faulty product you sell.
- If you are selling to a distributor, such as a wholesaler, they may want you to indemnify them against any legal claims their customers may bring against them.
Check whether you will be in conflict with any local intellectual property rights
- If another business has registered a local patent covering a similar product, or has a trade mark similar to yours, you may not be able to export to that country. If you do, you risk legal action against you for infringing their intellectual property.
Investigate local laws on marketing and selling
- For example, there might be restrictions on advertising or on selling to minors, or price controls on particular products.
- If you are selling to consumers (rather than businesses), you must comply with any local consumer protection laws. For example, if you sell at a distance (without meeting the customer) within the EU, your customer has various rights including a 'cooling off' period during which most purchases can be cancelled.
- Local laws will apply even if you are selling by mail order or through your website.
4. UK and local taxes
Comply with UK VAT rules
- Goods exported from the UK are generally zero-rated for VAT.
- You must keep numbered invoices and records giving details.
Find out about the local import taxes
- Import taxes can include customs duty, excise duty (for products like alcohol), and some form of sales or value added tax. The rate of duty you pay will be set by the destination country.
- Taxes vary from country to country and depend on the particular product. You may also have to pay VAT on any import duty.
- Your contract with the customer must specify who is responsible for handling customs clearance and paying any import taxes.
- Experienced traders can apply for Authorised Economic Operator (AEO) status, an internationally recognised quality mark. AEO status offers benefits such as fewer customs inspections, less paperwork and faster customs clearance.
Find out about any other local taxes
- If you have a local presence, you may be liable to some form of tax on your profits there.
Check duties and customs procedures
- Detailed rules, taxes and procedures vary for different countries. Check duties and customs procedures for the country you are exporting to.
- From 1 January 2021, the UK is no longer part of the EU single market. Exports to the EU from the UK have to clear customs in the country you are exporting to.
5. Intellectual property
Find out what automatic intellectual property protection you will have
- For example, copyright applies automatically in most countries.
- However, most IP protection applies only in the country of registration and it is important to seek advice.
- Brexit means changes to IP protection within the EU and how easy it is to enforce your rights. You should take advice and check government guidance on intellectual property and Brexit.
Decide whether to register any intellectual property for additional protection
- Most countries have local systems allowing you to register patents, trademarks and designs.
- If you are exporting to several countries, you may be able to protect intellectual property on an international basis. For example, patents can be registered Europe-wide.
- Registering intellectual property will add to your export costs. You will also usually have to enforce your rights yourself if someone else infringes them.
Take intellectual property protection into account in negotiations and contracts
- If you use an agent, the contract should specify what rights they have to use your intellectual property. It should also state who will own any intellectual property that is created or modified during the relationship.
- You may need extra protection if you are sending samples or disclosing ideas before a contract has been agreed.
6. Contracts
Cover all the basics as in any other sales contract
- For example, state what goods you are supplying and their price.
Agree the terms of delivery
- Negotiate which party must take responsibility for each stage of delivery, insurance and customs clearance.
- You can do this using one of the internationally recognised 'Incoterms' which sets out exactly what each party's responsibilities are.
Agree the payment method
- Within the EU, many businesses use payment on account in much the same way as within the UK.
- But unless you know and trust the customer, avoid payment on account. It can be difficult or impossible to chase payment if the supplier fails to pay. Instead, consider alternatives like payment by letter of credit.
Anticipate potential problems you may encounter
- Agree what will happen if you cannot deliver the right goods on time, or if goods are faulty. When you do so, take into account practical issues such as the cost of supplying a sample for final approval or collecting faulty goods.
- Make sure the contract includes clauses protecting you if it is impossible for you to fulfil the contract: for example, if war breaks out.
- Make sure you take advantage of duty relief schemes if you have to reimport the goods.
Agree how any disputes will be handled
- Aim to negotiate that UK law will apply.
- Agree a dispute resolution procedure that can be used rather than going to court. For example, the contract you draw up might name a particular arbitration organisation.
7. Using an export agent
Decide whether you want to use an agent
- Most exporters find it easier to use an agent or a freight forwarder to handle their responsibility for delivery, insurance, and export and import documentation.
Ensure that responsibilities are clearly agreed
- Make sure the customer knows what agent you will be using and what the agent's responsibilities will be.
- An agent's services will typically include transport, customs procedures and export documentation, distribution, warehousing, and packaging.
- Customs brokers will deal with overseas customs authorities, whereas customs agents only deal with UK authorities. Outside the UK, customs broking is a licensed profession, so choose a licensed broker if you recruit an agent abroad.
Establish clear limits to the agent's authority to act on your behalf
- You may face a claim if their earnings are lower than expected, or if you terminate the agency agreement.
- A lawyer can prepare an agreement that will help protect you.
Check any potential legal obligations you may have to individuals acting as your agent
- You might be liable for the actions of your agent.
- Make sure you give the agent all the information they need.
Do not pay bribes
- Paying bribes is illegal in most countries. Paying, or failing to prevent payment of, bribes overseas is also illegal under UK law. The UK Bribery Act 2010 has extended liability and toughened penalties for directors.
- For example, you might face legal action if you allow or encourage an agent acting on your behalf to pay bribes or if you fail to prevent them from doing so.
- You should have adequate procedures in place to prevent bribery
8. Getting advice
Use sources of foreign market information to find out about local legal issues
- The Department for Business and Trade (DBT) offers support and advice services for new and established exporters.
- Other sources of information include British embassies overseas.
Find out about specific legal issues for your product
- Your trade association should be able to help you.
- The British Standards Institution offers consultancy services on issues such as standards and product certification.
- The relevant government department can advise you on any export controls for your product.
Where necessary, invest in legal advice
- Make sure you have written contracts with your customers and any agent you employ.
- Take advice on any legal uncertainties. Use a lawyer with experience of exporting, and ideally with experience of the country you are planning to export to.
Signpost
- Work through step by step guidance on exporting.
- Check duties and customs procedures for the country you are exporting to.
- Find out about DIT services for exporters.
- Find extensive export market information and guidance from Open to Export.
- Find out about the export services, support and events offered by the British Chambers of Commerce.
- Find contact details for British embassies overseas through GOV.UK.
- Find a list of foreign embassies in the UK from the Foreign and Commonwealth Office.
- Find a solicitor with the right expertise for guidance on international trade through the Law Society.
- Read more about export controls or find out if your goods need a licence using the GoodsChecker interactive tool from the Department for Business and Trade.
- Find out about product certification services from the British Standards Institution (BSI).
- Read about Authorised Economic Operator certification from GOV.UK.
- Find advice on how to obtain intellectual property protection overseas and links to overseas intellectual property offices from the Intellectual Property Office.
- Order a copy of Incoterms from the International Chamber of Commerce.
- Download guidance on the Bribery Act from GOV.UK.
Note
The law is complex. This factsheet reflects our understanding of the basic legal position as known at the last update. Obtain legal advice on your own specific circumstances and check whether any relevant rules have changed.
