Cross-border transactions allow South African businesses to extend their reach and participate in international markets. 

However, Nicolene Schoeman-Louw, specialist in commercial and contract law at Schoeman Law Inc, advises that these transactions present distinct legal challenges that need to be handled carefully to ensure compliance and reduce risks. 

South African businesses must navigate a complex regulatory environment.  

Exchange control regulations 

Exchange control in South Africa is overseen by the South African Reserve Bank (SARB). These regulations control the movement of currency across borders.  

Compliance with these regulations may involve obtaining approval for certain transactions and adhering to reporting requirements. 

Customs and excise regulations 

The Customs and Excise Act (Act 91 of 1964) governs the import and export of goods, duties, tariffs and trade restrictions. Businesses must comply with these to avoid penalties and ensure smooth transactions. 

Tax implications 

Cross-border transactions often have tax implications such as value-added tax (VAT), customs duties and transfer pricing rules. By understanding their tax obligations in both South Africa and the foreign jurisdiction, businesses can prevent double taxation and penalties. 

Conducting thorough due diligence 

It is fundamental to conduct thorough due diligence to evaluate the risks associated with foreign partners, suppliers and markets. Key considerations include: 

• Verifying that the foreign entity complies with local laws and regulations, including corporate governance, labour laws and environmental standards. 
• Assessing the financial stability of the foreign entity to ensure it can fulfil its contractual obligations. 
• Conducting background checks to evaluate the reputation and business practices of the foreign entity. 

Key contractual considerations 

Contracts are essential for cross-border transactions. When drafting and negotiating contracts, it is important to consider the following: 

• Governing law: Specify the governing law of the contract. Depending on the nature of the transaction and the jurisdictions involved, South African law may not always be the preferred choice. Businesses should therefore carefully consider the implications of choosing foreign law. 
• Dispute resolution mechanism: Cross-border transactions can lead to disputes. It is vital to include a clear dispute resolution mechanism in the contract. Arbitration is often favoured for cross-border disputes due to its neutrality and enforceability. 

Protecting intellectual property (IP) 

Cross-border transactions often involve the transfer or licensing of intellectual property (IP). Businesses need to: 

• Register trademarks, patents and copyrights in the foreign jurisdiction to ensure protection. 
• Understand that IP rights registered in South Africa do not automatically extend to other countries. 
• Implement clear and enforceable licensing agreements when transferring or licensing IP across borders. These agreements should address issues such as royalties, exclusivity and termination rights. 

Additional considerations  

Businesses need to be aware of trade sanctions or embargoes imposed by South Africa or foreign jurisdictions, as engaging in transactions with sanctioned entities can result in severe penalties. 

Consider using financial instruments such as forward contracts, options or swaps to hedge against currency risks. This can provide greater certainty in pricing and cost management. 

Include contractual clauses that address currency fluctuations, such as price adjustment mechanisms or payment in stable currencies. 

Mitigate risk 

By understanding and addressing regulatory, contractual and compliance issues, companies can mitigate risks and achieve successful outcomes in the global marketplace. 

Consulting with legal professionals experienced in cross-border transactions is essential to navigate these complexities and protect business interests. 

Cross-border transactions present unique legal challenges, but also offer significant opportunities for South African businesses. 

Acknowledgement and thanks go to https://schoemanlaw.co.za/ for the information in this article. Original author: Nicolene Schoeman-Louw, specialist in commercial and contract law.