Strategic planning is a vital task for any company, since it is through it that the organization will seek sustainable growth and competitively. It is not, therefore, a trivial activity or that can be performed without care, and good legal advice is an important ally to increase the chances of success of planning.

A traditional view of strategic planning is that contained in the book “Competitive Strategy”, by Michael Porter, which presents three different strategies that are commonly used by entrepreneurs:

1. Cost strategy: the objective is to obtain competitive advantage by offering products or services at lower prices than other competitors in the same market. For this strategy to work, the company will seek to reduce its costs (with labor, raw materials.), greater efficiency in its production processes and gains in economies of scale, for example.
2. Differentiation strategy: through this strategy, the company seeks to offer a unique, unmistakable product or service with high added value. Luxury brands or companies with exclusive and/or innovative technologies are examples of organizations that use the differentiation strategy.
3. Focus strategy: the focus (or focus) strategy, finally, is one that is intended to meet a specific need in the market, as efficiently as possible. In the focus strategy, there is a small number of customers served, through a much narrower product/service portfolio (sometimes the company offers a single product or service), making the company a critical supplier for that market.

Each of the strategies brings distinct risks and opportunities, which can be better managed through contractual arrangements, preventive action and integration between the business strategy and the legal strategy of the company.

Let's look at a few examples!

Cost strategy

When a company adopts the cost strategy, it needs to reduce its expenses as much as possible, so that it can maintain its competitive differential against other competitors with the same strategy.

One of the great risks, then, ends up being the use of suppliers that do not comply with labor legislation, subjecting workers to degrading conditions.This is unfortunately a very common situation, and it must be properly managed through a procedure of due diligence of suppliers activity increasingly relevant in the face of the importance of the ESG agenda, no longer being accepted that the company simply claims that “ did not know” the practices of its contractors or suppliers.

Another risk to which a company adopting the cost strategy is subject is the readjustment of the price of its inputs, which often requires the transfer of the high to consumers (with the loss of competitive advantage). To prevent situations such as these, it is important that supply contracts contain clear clauses of price adjustments (with the use of indexes compatible with the peculiarities of the business), as well as rules on the transfer of exceptional readjustments or the possibility of termination without penalties in case of excessive increase of costs for one or both parties.

Differentiation strategy

The differentiation strategy usually requires large investments design, whether in Research, Development and Innovation (PD&I), or even in attracting and retaining talent.

For companies that adopt this strategy, legal support will be related to various activities, such as: intellectual property protection (brands, patents, etc software), from registration with the BPTO to possible lawsuits to prevent the misuse of the differentiating elements; confidentiality and non-disclosure agreements; plans for partnership and stock options to retain key employees for the success of the differentiation strategy.

In addition, it is natural that the company needs large amounts of capital to develop its products or services. At this point, it may be necessary to prepare complex contracts with investors, in which legal advice will assist in choosing the investment modality among the alternatives available in the legislation (such as angel investment, mutual convertible, partnership in participation account, etc.) and will monitor all steps of the execution of the investment contract, from the initial negotiations (which may be regulated through a Memorandum of Understanding) to the drafting and conclusion of the contract (with the release of the values and conversion of the investment into equity, for example).

Focus strategy

Through the focus strategy, the entrepreneur ends up attracting risks related to the smallest niche market that will serve ¡ ̄ which can put him at a disadvantage in the face of the risk of new entrants (ie, competitors that may arise in the future) and substitute products/services.

Here, in addition to the fundamental protections related to intellectual property, it is important that contracts with customers contain exclusivity clauses with adequate duration, well-defined scope and sufficient penalties to preserve the investment of the entrepreneur.

It is also relevant that the contracts contain non-competition clauses, to prevent the company's customers from internally developing the solution being contracted; as well as non-request clauses, in order to prevent customers from hiring employees, partners or service providers of the organization, usually a strategy to internalize that activity.

From the examples above, it is clear that legal advice is an important ally of strategic planning, provided there is a careful and appropriate look at what are the directions that the organization intends to go 'O and what are the real legal needs of that business.

Sergio Luiz Beggiato Junior is a lawyer at Rucker Curi & Legal Advocacy.

In an increasingly globalized world, where the exchange of data between countries is constant and necessary for the functioning of various economic and technological activities, the General Data Protection Law (LGPD) imposes strict rules to ensure that the rights of data subjects are respected, even when this information crosses borders.

On this subject, on 23/08/2024 the National Data Protection Authority (ANPD) published Resolution CD/ANPD no. 19/2024 (“” resolution), which establishes the procedures and rules applicable to international data transfer operations.

Preliminarily, it is worth remembering that international transfer occurs when the agent, from inside or outside Brazil, transmits, shares or makes available access to personal data outside the national territory. The transmitting agent is called an exporter, while the agent that receives the data is called an importer.

The international transfer of personal data can only take place when it is supported by a legal basis provided for in the LGPD and by one of the following mechanisms: countries with adequate protection, contractual standard clauses, global corporate standards or specific contractual clauses and, finally, guarantees of protection and specific needs.

Among the mechanisms described above, the instrument of standard contractual clauses was already known in international legislative contexts (especially in Europe, under the General Data Protection Regulation). In the Brazilian context, it is also possible to foresee a wide use of this instrument in contracts.

The text of the contractual standard clauses is contained in the same Regulation, in Annex II, which provides for a set of 24 clauses formulated by the ANPD, to be incorporated into contracts involving the international transfer of data, to ensure that exporting agents and importers of personal data maintain an adequate level of protection, equivalent to that required by Brazilian law. Companies have a period of 12 months, from publication, to adjust their contracts.

However, the use of standard clauses brings a number of impacts to agents' contracts. Among such main impacts, we highlight:

Changes to the terms of the contract: in addition to the fact that the text of the standard clauses cannot be changed, the Resolution also determines that the original text of the contract must not contradict the provisions of the standard clauses. In this way, the agent must review and, if necessary, change the provisions of the contracts to ensure the compliance of the international transfer.

Distribution of responsibilities: the clauses clearly define the responsibilities of the parties involved in the processing and protection of personal data, assigning specific duties to both controllers and operators. Such responsibilities are divided between proof of adoption of effective measures, transparency duties, compliance with the rights of the holders, communication of security incidents, compensation for damages and adequacy to various treatment modalities.

Transparency: The controller must provide the holder, if requested, with the full contractual clauses used, observing the commercial and industrial secrets, as well as publish on its website, on a specific page or integrated into the Privacy Policy, clear and accessible information on the international transfer of data.

Penalty risk: failure to comply with standard clauses can result in severe penalties, including fines, and damage the reputation of the companies involved.

Definition of jurisdiction and jurisdiction: any disagreement with the terms of the standard clauses shall be resolved before the competent courts in Brazil.

Because of such impacts, renegotiation of contracts between agents will be necessary in many cases to include standard clauses. More precisely, the ANPD standard clauses for international transfers of personal data impose a new layer of complexity to business contracts, requiring detailed revisions, adaptations in clauses and a greater formality in business relations. However, by standardizing practices and ensuring legal certainty, these clauses contribute to the creation of a safer and more reliable environment for the circulation of data beyond national borders, essential in an increasingly interconnected world.