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The U.S. Department of Justice has released a series notable advisory opinions outlining how some typical activities of law firms, consultants, and corporate legal departments may require registration under the Foreign Agents Registration Act (FARA). Some of the more interesting opinions are summarized here:
Continue Reading The Professional Services Firm as Foreign Agent: Notable FARA Advisory Opinions

On May 21, 2020, a proposed rule change brought the threat of a mandatory CFIUS filing to investments across all U.S. industries. The U.S. Department of Treasury proposed a rule[1] that removes a restriction formerly in the Foreign Risk Review Modernization Act’s (FIRRMA) that limited mandatory filings with the Committee on Foreign Investment in the United States (CFIUS) to only 27 industries.

The proposed rule is consistent with a series of changes by the Trump Administration aimed at decreasing Chinese access to U.S. technology (through export controls, FDI review, and other restrictions). However, the rule change may create complications for investments from a wide range of countries.
Continue Reading CFIUS UPDATE ISSUE — Well I Do Declare: Mandatory Declarations Everywhere

In July, the U.S. Department of Education Notices of Investigation to four U.S. universities seeking information on the “Confucius Institutes” operating on their campuses. The investigations center on provisions of the Higher Education Act requiring reporting of certain foreign gifts. But the investigations are part of a larger U.S. national security initiative to address foreign influence on U.S. campuses.

In light of these initiatives, the need is greater than ever to balance the sometimes-competing values of protecting U.S. national security and defending academic freedom. Because of the intense U.S. national security focus being trained on these organizations, U.S. colleges and universities are well advised to pay close attention to developments in this area.
Continue Reading The U.S. Government Investigates U.S. Universities Participating in the “Confucius Institutes” Program

On May 16, 2019, a sweeping U.S. export control rule went into effect that will impact the U.S. tech industry, but may also create an outsized risk for non-U.S. manufacturers. The rule, issued by the U.S. Department of Commerce, Bureau of Industry and Security (BIS) adds Huawei Technologies Co., Ltd. (Huawei) and 68 of its affiliates to the Entity List. That designation effectively prohibits the export, reexport, and retransfer of all U.S.-origin “items subject to the Export Administration Regulations (EAR)” to those entities. The designation arises from a U.S. government finding that the restrictions are warranted on U.S. national security and foreign policy grounds.
Continue Reading Hua-Wait a Minute: Entity Designation Affects Non-U.S. Manufacturers’ Exports to China Tech Giant

*This is an updated version of the December 10th blog post.

Key Takeaways:

  • Emerging technology sectors are being reviewed now for new export controls that could take effect in 2019 (list below).
  • You may submit comments on the criteria the U.S. government will use to determine what technologies are subject to export controls.
  • The deadline for comments has been extended to January 10, 2019.
  • We can help.

Continue Reading Comment Deadline Extended: Export Controls on Emerging Technologies

  • On October 10, 2018, the Committee on Foreign Investment in the United States put into effect the first mandatory filing requirement ever imposed by CFIUS. The Department of Treasury’s summary of the Pilot Program is available here.
  • Effective November 10, 2018, CFIUS will require reviews of critical technology investments – including certain non-controlling investments – from any country.
  • A failure to file notice or a new short form declaration to CFIUS may result in a civil monetary penalty up to the value of the transaction.
  • The requirements will not apply to any transaction that is completed prior to November 10, 2018 or any transaction for which the material terms were established prior to October 11, 2018.

Background

On August 13, 2018, President Trump signed FIRRMA into law. FIRRMA is a transformational expansion of the authority of the Committee on Foreign Investment in the United States (CFIUS) to review certain transactions that previously eluded the Committee’s jurisdiction (discussed in our blog, here). Congress left many critical aspects of the FIRRMA framework to be addressed through regulations promulgated by the Department of Treasury. Although we do not expect final rules to be forthcoming until late 2019 or early 2020, Congress empowered the Department of Treasury to “test-drive” parts of FIRRMA through Pilot Programs. Those programs can be implemented simply, taking effect 30 days after publication of the program requirements in the Federal Register. The adoption and implementation of the Pilot Program for critical technologies represents the Department of Treasury’s first attempt to implement substantive parts of FIRRMA prior to issuing formal regulations.
Continue Reading FIRRMA Takes Form as CFIUS Enacts a New Pilot Program Targeting “Critical Technologies”

A double agent. Nerve gas. Violations of international law. The recently imposed sanctions on Russia have all the makings of a James Bond movie but, unfortunately, those sanctions may cause some less-than-entertaining headaches for your business.

Why These Sanctions

On August 8, the U.S. State Department notified Congress it would impose new sanctions on Russia based on the U.S. Government’s determination that the Russian Government has used chemical and biological weapons in violation of international law. That determination was made under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (“CBW”) after the Russian government’s use of the “Novichok” nerve agent in an attempt to assassinate UK citizen (and double agent to Russia and the UK) Sergei Skripal and his daughter Yulia Skripal.
Continue Reading The Latest U.S. Sanctions on Russia

This article suggests steps you should take to survive the current trade war. We are now in a trade war regardless of the fact that Treasury Secretary Steven Mnuchin would rather we call it “a situation of trade disputes.” Trade disputes are what we had from approximately 1945 to 2017: a relatively stable world trading order in which differences over unfair trade practices were mostly worked out under existing remedies, such as the antidumping and countervailing duties regimes. What we have now is a period of escalating tit-for-tat tariff increases in which the old trading norms are being increasingly rejected, exempted, and undermined. And it is those very norms that kept us out of trade wars for the last 70 years.
Continue Reading Of Course You Know, This Means War: A Strategic Update on the Trump Trade War

Key Points

1. All sanctions on Iran that were in place before January 2016 will be re-imposed no later than November, 4 2018.

2. Secondary sanctions that penalize non-U.S. persons doing business with Iran will be reinstated.

3. General License H, allowing non-U.S. subsidiaries of U.S. companies to do business in Iran, will be revoked.

4. In some cases, companies may take payments or repayments for sales, loans, or credits to Iran after November 4, 2018
Continue Reading Client Alert: Iran Sanctions Return

The summer of 2017 saw the U.S. Department of Justice’s docket still teeming with Foreign Corrupt Practices Act (FCPA) cases. In this post, we draw a few lessons from three of them, which bring together three threads that seem often to weave together: bribery, kleptocracy, and money laundering.
Continue Reading News Flash: Kleptocrats Still Taking Bribe Money With One Hand and Laundering it With the Other