Legal Aspects Of International Business And Trade

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Legal Aspects Of International Business And Trade

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Legal Aspects Of International Business And Trade

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A multinational company is that company which operates and has facilities and assets in more than one country simultaneously. The operations in other countries may take the form of a subsidiary of the holding company or a manufacturing branch. A company may also become multinational through takeover or amalgamation. For instance, a Chinese company may take over the operations of another company in the same line of business in Australia or Italy thus making it a multinational company.
This essay therefore discusses DELL EMC, a multinational company with operations in Australia. The Australian company is a subsidiary of dell technologies. Dell technologies were founded by Richard Egan and Roger Marino in 1979 (Janssen & Crompvoets, 2012). It provides a range of products in the following categories; information storage, storage and management of content, virtualization, security compliance, cloud computing, data computing among others.
The company operates in the Information Technology industry. It is key in the provision of essential infrastructure for building of digital networks by organizations for future prosperity and to transform their Information technology so as to protect their information. Dell EMC has enabled enterprises to transform their digital businesses using a hybrid cloud that is built on modern data centres.
The company has approximately four hundred employees in Australia. The number of employees globally totals to about seventy thousand people. The parent company, dell technologies is headquartered in Hopkinton, Massachusetts in the United States.
Dell EMC Regulatory framework
Dell EMC as a company is regulated by the Corporations Act 2001. The Act regulates business entitles situated both at the interstate and federal levels of government. The Act’s regulation operates along the constitution, management and the general operations of the company. Australian Securities and Investments Commission provide requirements that a foreign company with operations in Australia has to register with the commission.
The subsidiary of a multinational company is required to register by lodging form 402 with the commission, providing all information on how the company shall be managed. Further, the company need to lodge with the commission certified copies of the company’s certificate of incorporation, certificate of good standing, certificate of current standing, a certificate of legal existence and that of a current status. During registration, the company is also required to provide certified copies of its constitution or a description of any legislation that governs the company (Clark, 2010).
Foreign or multinational companies are required to operate in Australia using a local agent who is an Australian. Where a local agent has been appointed by the multinational company, the form for appointment of such agent must be lodged with the commission. Where the form is lodged for registration by a third party other than the agent, the said third party has to avail a copy of any document that gives him or her authority to do so.
The agent so appointed could be an individual or a corporation and must reside in Australia and authorised in the circumstances to accept on behalf of the multinational company any notices or service process (Teicher, Holland & Gough, 2013). The documents lodged for registration should be prepared in English but where the same have been prepared in any other language apart from English, a certified translated document must accompany the originals at registration.
The company has to comply with the reporting requirements for companies including filing of audited accounts unless the commission gives reliefs or exemption where necessary for a multinational company to comply with its reporting obligations.
The commission is empowered to give relief to a company exempting such company from lodging requirements as to as to its financial reports. However, where the company fails to lodge sufficient information which is less as compared to that lodged by an Australian company, such exemption will be refused. A small propriety company which is under the control of foreign companies is capable of getting a class relief from the requirement as to submission and filing of audited financial reports (Enright & Petty, 2013).
A multinational company is required to display its name outside the place of business than can be easily be seen by members of the public. In addition to the display of the name it is also under an obligation to display the place of origin, the words registered office and a notice of the limited liability of the shareholders. Dell EMC will therefore has to comply with all the requirements so as to operate in Australia as a subsidiary of Dell technologies.
Federal Privacy Act 1988
This is an act of parliament that deals with the regulation of the collection, disclosure and use of personal information (Buyya, Broberg & Gos?cin?ski, 2011). Dell EMC operates in the Information industry and therefore this legislation greatly impacts on its operations. Dell EMC works cuts across the public and private sector and therefore has to comply with laws that regulate the way the public sector handles public data, the manner in which data related to health is handled by both sectors and matters to do with surveillance and or use of information relating to criminal record (Newman, 2008).
The privacy act concentrates with regulation of personal data i.e. any information or data that can be used to identify an individual’s name, resume, photograph or address whether such information is true or false (Akindemowo, 1999).
The scope of application of the act is however limited to practices done within Australia and to a larger extent to acts done outside Australia where the entity has a link in Australia. For a company or entity to be said to have an Australian link, such company  or entity must have had its formation done in Australia or was incorporate outside Australia but it carries business in Australia and the personal information referred to was collected in Australia ( Zeitlin, 2015).  An entity that collects or stores personal information would be liable in circumstances where such personal information is disclosed overseas and the recipient of the disclosed data commits a breach of any Australian Privacy Principles in relation to the use of personal data. Dell EMC therefore has to put strict measures to ensure that the data they hold are not leaked to unauthorized persons without the consent of the persons to which the said data relates (Rule & Greenleaf, 2008).
Dell EMC in its operations that largely involves the handling of data, it would be required that it abides by the principles as to safe handling, storage or processing of such data. The data is supposed to be managed with a lot of openness and transparency. Any entity involves has to take all the reasonable steps so as to implement policies, practices, systems and procedures geared towards ensuring the compliance with the Privacy Act. Entities should ensure that they develop a policy that relates to the handling of personal information. The act also requires data subjects in their interaction and dealings with entities to maintain anonymous character unless it is impracticable to do so. This would protect their personal data from being in the possession of the entity.
Where it is required for purposes of conducting the business of a company for personal information to be collected, the entity is under strict obligations imposed by the Act to the effect that it has to notify data subjects of its intention to collect the data and a description of the reason for such collection. Consent of the data subject has to be procured through lawful means; the personal data so collected shall only be used for the primary purpose for which it was collected and a further consent from the data subject would be necessary for any disclosure or use of data for any purpose other than for which it was collected. Where the entity no longer requires the data in its possession, it must take reasonable measures to ensure that such data is destroyed (Sornarajah, 2010).
Where it is necessary for an entity to disclose personal data to a recipient outside the jurisdiction of the operation of the entity, such entity is required to ensure that the recipient of such information does not commit a breach of the Australian Privacy Principles unless such disclosure is done upon the consent of the data subject and such disclosure of personal information is required by Australian law.
The Australian Tax System
The taxation system for resident Australian companies is to the effect that the particular companies are required to pay tax on their global capital and income gains. An exemption is applicable where income and capital gains tax have already been paid in another foreign jurisdiction. This is to avoid double taxation of multinational companies (Chappell, Chesterman & Hill, 2009). Multinational companies, just like locally incorporated ones are subject to pay 30% corporate tax.
Treaties and Conventions that impact on the operations of DELL EMC
A treaty refers to an agreement concluded under international law between sovereign states or international organizations (Alston, 1995). A treaty can be ratified or ascended to by a state that did not take part in the treaty negotiations (Iacovino, 2006).  The law of treaties is contained in the Vienna Convention on the law of treaties. Australia has ratified a number of treaties that has a direct impact on the services provided by Dell Australia. The treaties are as discussed below;
The Universal Declaration of Human Rights which relates to the right to maintain privacy. Article 12 of the Convention provides that any person has the right to privacy and shall not be subjected to any interference with his or her privacy, that of his family or home and any form of attack on his reputation or honour. The act further mandates the state to ensure that a person whose privacy is threatened is protected by the law. This convention therefore has a direct impact on the services offered by Dell. Dell would have to put measures to ensure that the information they store or process is done in a safe manner to prevent the infringement of the privacy of data subjects.
The United Nations Convention on the Rights of a Child. Article 16 protects all children from interference with their own privacy, that of their family or home and any form of unlawful attack on his or her reputation. The state is obligated under the convention to protect children against any interference or attacks on their privacy. Where Dell provides services relating to storage of data relating to children on behalf of a hospital for instance, they need to do so in a manner that does not violate the convention.
International Covenant on Civil and Political Rights. Article 17 protects everyone from interference with their privacy, that of their families and against any unlawful attack on their reputation. Additionally, every person is entitled to equal protection of the law including in the protection against interference with their privacy. This convention therefore has a direct impact on the services offered by Dell. Dell would have to put measures to ensure that the information they store or process is done in a safe manner to prevent the infringement of the privacy of data subjects (Tomsett, 1989).
Organisation for Economic Cooperation and Development’s Guidelines on the Protection of Privacy and Trans border Flows of Personal Data (OECD) also has a direct impact on the operations of Dell EMC on the treatment and handling of information in the course of provision of their services. (Opeskin, & Rothwell, 1997). The OECD guidelines were developed since states do have a common interest geared towards the protection of privacy of the citizens. A uniform guide was therefore necessary to ensure that such private information is treated in a manner that ensures the upholding of the right to privacy of the data subjects (Sornarajah, 2010).
Tax and Information Exchange Agreements (TIEAs) have been entered into between Australia and other international organizations to provide a mechanism of imposing corporate tax to be paid by multinational companies without being punitive on the value of tax imposed on corporations. (Maisto, 2009).  In submitting and filing of tax returns therefore, Dell EMC would be guided by TIEAs on the amount to be paid, the considerations, and the penalties applicable for non-remittance of corporate tax. The agreements govern the exchange of information between states to enable the states cooperate and assist each other in the collection of corporate taxes (Wallace, 1976).
Tomsett, G., (1989). Tax planning for multinational companies. New York, Woodhead-Faulkner
Wallace, D., (1976). International regulation of multinational corporations. New York, Praeger
Sornarajah, M., (2010). The international law on foreign investment. Cambridge, Cambridge University Press
Enright, J., & Petty, M., (2013). Australia’s competitiveness: from lucky country to competitive country. Singapore, John Wiley & Sons
Teicher, J., Holland, P., & Gough, R., (2013). Australian workplace relations Cambridge; Port Melbourne, Vic.: Cambridge University Press
Clark, E., (2010). Cyber law in Australia. Alphen aan den Rijn, The Netherlands, Kluwer Law International.
Janssen, K., & Crompvoets, J., (2012). Geographic data and the law: defining new challenges Leuven: Leuven University Press
Rule, B., & Greenleaf, W., (2008). Global privacy protection: the first generation. Cheltenham, UK, Edward Elgar
Zeitlin, J. (2015). Extending experimentalist governance? The European Union and transnational regulation Oxford, United Kingdom: Oxford University Press
Akindemowo, E., (1999). Information technology law in Australia. Sydney, LBC Information Services
Newman, A. (2008). Protectors of privacy: regulating personal data in the global economy. Ithaca, Cornell University Press
Buyya, R., Broberg, J., & Gos?cin?ski, A., (2011). Cloud computing: principles and paradigms. Hoboken, N.J., Wiley.
Iacovino, L., (2006). Recordkeeping, ethics and law: regulatory models, participant relationships and responsibilities in the online world. Dordrecht, Springer.
Alston, P., (1995). Treaty-making and Australia: globalisation versus sovereignty? Sydney, Federation Press
Opeskin, B., & Rothwell, R., (1997). International law and Australian federalism. Melbourne, Melbourne University Press.
Chappell, A., Chesterman, J., & Hill, L. (2009). The politics of human rights in Australia. Port Melbourne, Vic, Cambridge University Press
Maisto, G. (2009). Residence of companies under tax treaties and EC law. Amsterdam, IBFD Publications.

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