I often get asked about what makes cross-border law different from ‘normal’ law. My honest answer: less than you’d think and more than you’d hope. When I was in law school, everyone wanted to do ‘international law’—it sounded exciting, vague and slightly glamorous. International law proper concerns treaties and multinational institutions. Cross-border law is something else: ordinary private matters—contracts, IP, disputes—but with a national boundary-crossing twist. The principles are largely the same. The plumbing is where things get complicated.
This post breaks down some of these items that make cross-border law different. Here is a partial list:
1. Enforcement Mechanics.
Enforcement is a matter of procedure if both sides are in the same jurisdiction. You hire a process server. You go to court and enforce a judgment. The sheriffs can be called in if someone really isn’t cooperating. This changes if parties are located in different countries.
The Hague Convention may be invoked for service of process and take months (or years). The New York Convention is applicable to enforcement of awards. Parties may need to hire counsel in multiple jurisdictions—just for enforcement.
2. Currency/payment mechanics.
Payment is usually straightforward when the two sides are in the same jurisdiction. If I sell you my collection of baseball cards for $100 and you need to pay me within 30 days of our deal over text, you pay me $100 within 30 days.
International payments are different. Some countries—like China—have currency controls and require proof of contract and numerous documents to send money overseas. International payment from almost anywhere takes a business day (or more) and can involve bank fees. Currency conversion means that a payee may not get as much as the payor intended to pay. Cross-border law involves regularly addressing this type of issue.
3. Shipping.
While Incoterms® sometimes come up in domestic transaction, they are the lifeblood of cross-border sales. Who covers import duties? Are new tariffs like those announced on Liberation Day a ‘force majeure event’? How about inspections and delays? Cross-border business involves addressing these matters in contracts—both via the choice of Incoterms® and additional clauses to protect parties in the event of contingencies.
4. Intellectual Property.
IP strategy is pretty straightforward if you operate locally. You file for a patent on new ideas. You use your trademarks in commerce and file them for good measure. You publish your copyrighted creative works in tangible media and file with the copyright office if necessary.
Once you consider crossing borders, however, things get more difficult. Which jurisdictions do you need to file in? How do you address first-to-file rights for trademarks—which are the norm everywhere but in the U.S.? Prior art and similar inventions elsewhere can complicate patent filings. Local quirks can complicate trademark filings. A good cross-border strategy involves dealing with all of these issues.
5. Regulatory Variance.
Every company crossing state lines knows that laws can vary. This is doubly true when laws cross national lines.
U.S. companies doing business in the E.U. must have a lawful basis for processing personal data—even if the business has no physical presence in the E.U. The U.S. and China now have competing export control and sanctions regimes, leaving many businesses exposed from both sides. Labor law varies immensely by country. Thus, companies operating in multiple jurisdictions struggle to build global policies for probationary periods, annual leave, and termination notice. Cross-border law involves advising companies on how to navigate the patchwork quilt of global regulations.
Contrary to popular belief, geopolitics rarely matters in cross-border deals—at least not directly. What drives it is simpler and more mundane: every jurisdiction has its own laws, its own courts, and its own enforcement priorities. When businesses and individuals cross those lines, friction follows. Cross-border law is, at its core, the practice of managing that friction—anticipating when things can go wrong and building structures to address them when they do.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading or interacting with this content does not create an attorney–client relationship. You should consult a qualified attorney for advice regarding your specific situation. Mehaffy, PLLC disclaims all liability for actions taken or not taken based on this blog.