Imagine telling your company’s Board of Directors that the company will have to knowingly violate the law. Further, you might note, the American Law Institute’s Principles of Corporate Governance state that, with very limited exceptions, a director who knowingly causes the corporation to disobey the law violates his duty of care. The protections of the Business Judgement Rule may not be available to a board member who, charged with navigating the Scylla and Charybdis of a conflict of laws, steers right into the shoals of noncompliance.

Beginning August 6, that will be the situation facing the thousands of companies that are subject to U.S. sanctions on Iran and to EU regulations blocking those sanctions. While it appears to be a stark choice, some nuances to the regulations may make navigating the narrow straights of the conflict of laws a less Odyssean and more practically manageable.
Continue Reading Stuck in the Middle With You: EU Blocking Statutes, Iran Sanctions, and the Thousands of Businesses Caught In Between

Introduction

Our “trends for 2018” are only a selection of interesting developments to watch for in 2018.

Within the political and legislative cycle of the European Union, 2018 promises to be an eventful year, given that it is the last full year before the 2019 EU elections when a new European Commission will be appointed and the European Parliament will hold new elections. This means, in practice, that there will be pressure in 2018 on the current European Commission and European Parliament to act on all their initiatives and to complete their legislative agenda.

Our team of EU lawyers will continue to report on noteworthy developments including for instance, Brexit and its implications for competition and regulatory policies, the surge in foreign direct investment controls, the opening of new competition enforcement fronts, the practical implementation of the EU damages directive, as well as the development of alternative means of resolution in competition investigations and their impact on rights of defence.

We invite you to contact us directly should you have an interest in discussing any topic further or in obtaining additional information. We hope you will enjoy the read!
Continue Reading 2018 EU Trade, Regulatory and Competition Trends

On September 13, 2017, the EU Commission released a proposed regulation establishing a framework for screening Foreign Direct Investments (FDI) in Europe. Several EU Member States have already implemented national mechanisms enabling them to intervene in transactions that the States believe endanger their national interest. However, there is no harmonized regime for reviewing FDI into the EU other than the EU Merger Regulation (EUMR). The EUMR focuses only on competition and does not take into account security or public order concerns. This new proposal addresses the more political notion of “national security”.
Continue Reading CFIUS for Europe? New Screening of Foreign Direct Investments in Europe

EU food safety authorities are still feeling the repercussions of the insecticide-contaminated eggs crisis. That crisis highlights the many challenges of dealing with unsafe and non-compliant products in a single European market, such as a lack of cooperation between EU authorities, traceability difficulties and widely varied national safety and testing standards.
Continue Reading Scrambling After an Egg Crisis – EU Safety Guidance for Online Product Sales

On July 17, 2017, the U.S. State Department certified that Iran continues to meet the conditions of the Iran nuclear agreement known as the Joint Comprehensive Plan of Action, or JCPOA. As a result, for the next 90 days, the United States will maintain significant reductions in its sanctions against Iran as provided in the JCPOA. Among other things, those provisions allow non-U.S. companies to do business in Iran. The State Department’s action signals that for now, State believes that the JCPOA is the right U.S. policy toward Iran.
Continue Reading One Year From Now, You May Be Out of Iran: Trump Administration Policy and the Timeline for Snapback

On July 27, 2017, the U.S. Congress sent to President Trump’s desk a bill that imposes new financial sanctions against Russia, Iran, and North Korea. It appears nearly certain that the president will sign that bill, now called the “Countering America’s Adversaries Through Sanctions Act” (CAATSA). Edit: President Trump signed the bill on August 2, 2017.
Continue Reading In the Chaos of (Trade) War, Where Does Your Company Find Peace?

How The EU Data Privacy Regulation Will Affect American Companies’ Data Collection and Processing Practices – and Their Revenue

For American companies who do business in Europe or who process the personal data of EU residents, the world of data privacy and security is about to get much more complicated. While U.S. privacy law is unsettled, with rapidly proliferating state and federal laws and regulations and uncertainty as to how strictly they will be enforced, the rules in the European Union are tough and about to get much tougher. The General Data Protection Regulation (EU) 2016/679 (GDPR), slated to take effect in May 2018, will give consumers in the EU substantially more control over how their personal data is used. The increased control includes the right to:

  1. access any personal data that has been collected,
  2. obtain confirmation about whether an individual’s data is being processed, and
  3. require that the data be “erased” if the consumer withdraws consent.


Continue Reading The GDPR and The Bottom Line

The Supreme Court of the United Kingdom by a majority of 8 to 3 has today confirmed that triggering the exit procedure from the European Union requires an Act of Parliament.

As such the Supreme Court disagreed with the current UK Government which had argued that Government ministers could rely on their prerogative powers to trigger Article 50 of the Treaty on the European Union without prior authorisation by Parliament. Scottish Parliament, Welsh and Northern Ireland assemblies had argued that they too should be consulted. The judges did not agree with that view.


Continue Reading Bre(xit)aking News

On the morning of June 24, 2016, we woke up to a headline that had been much discussed, but still added a jolt to many people’s morning coffee: Britain to Leave the European Union.

The first response, almost inevitably, was fear and confusion. Global markets dropped precipitously (as did the Pound Sterling and the Euro) until the Bank of England spoke up to reassure investors, and even then the exchanges appeared jittery. Nevertheless, after bolting from bed in the first shocking instant, we propose a calmer moment to reflect on the new reality. Over breakfast (English breakfast tea with that, perhaps?), we may carefully examine how Brexit will impact global business.

To begin, we have taken that moment to analyze the implications of the UK’s separation from the European Union in the realm of sanctions, export controls, and foreign investment in the United States. We address those implications in the four questions below.
Continue Reading The Morning After: Waking up to Brexit and Its Impact on Your Business

On February 29, 2016, the European Commission and United States released the terms of the much-anticipated renewed framework for the transfer, sharing, and processing of European individuals’ data to the United States. The framework replaces the “Safe Harbour” mechanism, which enabled U.S. to transfer data from the EU to the United States by self-certifying that their practices ensured an adequate level of protection for personal data under the EU Data Protection Directive. In October, the “Safe Harbour” framework was declared invalid by the European Court of Justice in the Schrems decision covered earlier in this blog.
Continue Reading EU-US Privacy Shield: Brace Yourself . . . or Maybe Not