Top 12 EU Legal Developments to Watch in 2017

Sheppard Mullin’s EU team has created a list of major legal shifts that await General Counsel and Compliance Officers in the areas of competition, EU regulatory and trade in 2017. These challenges may have an impact on your corporate and commercial strategies.

Our predictions include:

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The Undoing Project – Why NAFTA Can’t be Undone, but Can be Re-Done

Boy, does it sound convincing when Mr. Trump states he will submit notice under section 2205 of NAFTA to let Mexico and Canada know that the U.S. will withdraw from NAFTA. The problem is, while the president-to-be is capable, we presume, of writing, signing, and sending (or possibly tweeting) such a notification, that notification would not have a legal significance because withdrawing from NAFTA, ab initio, is not a power accorded the President.

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The Future of Russia Sanctions: The Awkward Edition

On January 10, 2017, Senate Republicans and Democrats introduced bi-partisan legislation called the “Countering Russian Hostilities Act of 2017,” which would impose broad sanctions on Russia. The Act would codify the sanctions President Obama imposed in response to the Russian cyberattack on the United States to influence the 2016 U.S. Presidential election and the Ukraine-related sanctions President Obama issued in 2014. Importantly, the legislation introduces beefed up economic sanctions against Russia’s energy and financial sectors.

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The Table Flip: Trump, the Iran Nuclear Deal, and American Business

  • A President Trump will have authority to reinstate sanctions lifted by the Iran Nuclear Deal as well as revoke certain authorizations provided for business with Iran.
  • Several economic and geopolitical factors may cause Mr. Trump to reconsider or mitigate his approach to the Iran Nuclear Deal.
  • Companies should prepare to respond quickly to any changes.

Maybe you’ve seen it before, the series of characters that represents upsetting the whole game, flipping the table:

(╯°□°)╯︵ ┻━┻

These days, where words fail, we have emojis.  And here they describe what a President Trump may do to the carefully planned Iran Nuclear Deal. One year after the implementation of the Iran Nuclear Deal (much discussed, at least in our blog), Mr. Trump will take office. At that time, we will see whether his campaign rhetoric against Iran becomes policy action or whether it will be tempered by geopolitical and business realities.

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Negotiation By Tweet: The Uncertain Future of U.S.-Cuba Relations

After the announcement of Fidel Castro’s death on November 26, 2016, President Barack Obama sent a message to the Cuban people highlighting his administration’s efforts to improve relations between the United States and Cuba. “History will record and judge the enormous impact of this singular figure on the people and world around him…[T]he Cuban people must know that they have a friend and partner in the United States of America,” Obama said.

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The Future of the U.S.-Canada Trade Relationship in Light of the Election

By Scott Maberry and Lisa Mays of Sheppard Mullin; and Vincent J. DeRose, Jennifer Radford, Greg Tereposky and Daniel Hohnstein of Borden Ladner Gervais LLP. Today’s Global Trade Law Blog is brought to you by a collaboration between the international trade group at Sheppard Mullin and the team at Borden Ladner Gervais LLP (BLG).

The United States and Canada enjoy a unique bilateral relationship. That relationship reflects a unique friendship, underpinned by shared geography, similar values, common interests, deep connections and powerful, multi-layered economic ties. The United States and Canada have both repeatedly confirmed their common commitment to strengthening the security of the border by working cooperatively to address threats early, facilitate trade, promote economic growth and jobs, integrate cross-border law enforcement, and bolster critical infrastructure and cyber-security.

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Obama’s Not Slowing Down On Cuba: New Steps Forward Open Doors (and Humidors!) for Collaboration

With fewer than 100 days left in office, President Obama is not slowing down on his efforts to normalize relations between the United States and Cuba. Today, several changes to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR) go into effect. Those changes build on the plan President Obama laid out in December 2014 to increase the means for Americans and Cubans to collaborate in business, education, travel, and humanitarian work. The amendments will strengthen the ties between the two countries, stimulate Cuba’s private sector, create commercial opportunities for both the American and Cuban people, and potentially improve the lives of many Cubans. U.S. companies looking to expand into Cuba should review these changes carefully to identify and develop strategies for growth.

We have included some highlights from the updated regulations below that could significantly  impact your business (or may prompt you to create a new one!). For the full CACR amendments, click here. For the full EAR amendments, click here.

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Those Three Little Words: OFAC’s Subtle Language Shift Could Create Sweeping Change on Iran Investment

Article Highlights:

  • Non-U.S. banks can do business with Iran and continue their relationships with U.S. banks.
  • Non-U.S. companies may use proceeds from Iran transactions more freely, including in the United States.
  • OFAC draws a clearer line with respect to the use of Iran-related funds.

After the Iran nuclear agreement, as non-U.S. companies entered into newly-permitted business in Iran, they faced the difficult question of where they could put the money from their Iran business. U.S. law still prohibits U.S. persons (including U.S. banks) from conducting most business with Iran. Among other rules, OFAC regulations and guidance provided that “Iran-related” funds could not transit the U.S. financial system. But the guidance did not state clearly what constituted “Iran-related” funds. For that reason, foreign financial institutions (FFIs) hesitated, even feared, to process Iran-related transactions because of the risks of sending Iran-related funds into the U.S. financial system in violation of U.S. sanctions. However, a new clarification in the OFAC guidance could change all of that (and change it in the way we proposed right here in this blog[1]).

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A Surge In Populism: Dangers To Transnational Trade In The Americas And Reasons For Hope

The ongoing presidential election in the United States has underscored a move against free trade by both of the main political parties.  This article briefly summarizes some of the proven benefits of free trade and juxtaposes these with the stated positions of the Democratic and Republican parties in the pending presidential election.  The article also examines, and disposes of, several of the key criticisms of the legal framework underpinning further trade integration.  The article ends hopefully—historically, U.S. Presidents have abandoned anti-trade campaign rhetoric once in the Oval Office.

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Espionage and Export Controls: The iPhone Hack Highlights The New World of Warfare

Last week, researchers at Citizen Lab uncovered sophisticated new spyware that allowed hackers to take complete control of anyone’s iPhone, turning the phone into a pocket-spy to intercept communications, track movements and harvest personal data. The malicious software, codenamed “Pegasus,” is believed to have been developed by the NSO Group, an Israeli company (whose majority shareholder is a San Francisco based private equity firm) that describes itself as a “leader in cyber warfare” and sells its software — with a price tag of $1 million – primarily to foreign governments. The software apparently took advantage of three previously unknown security flaws in Apple’s iOS software, and was described by experts as “the most sophisticated” ever seen on the market. Apple quickly released a patch of its software, iOS 9.3.5, and urged users to download it immediately.

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