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  • Standing Down: Constitutional Standing Not Required for 337 Investigations

    On May 15, 2024, the U.S. International Trade Commission (Commission) issued the public version of its opinion in the Active Matrix Organic Light-Emitting Diode Display Panels and Modules for Mobile Devices, and Components Thereof investigation (Display Panels), in which it found that constitutional standing is not required to file an intellectual property-based section 337 complaint with the Commission. The Commission does, however, for jurisdictional purposes, require for patent cases that at least one complainant be the owner or exclusive licensee. The term “owner or exclusive licensee” has been interpreted to be the same as a “patentee” under 35 U.S.C. § 281, indicating that the Article III statutory standing requirement is similar to the Commission’s jurisdictional requirement for patent cases. This decision, together with a recent precedential Federal Circuit opinion related to the domestic industry requirement, further clarifies what a prospective complainant does—and does not—have to demonstrate in order to successfully institute and maintain a section 337 investigation.

  • USTR Calls for Stakeholder Comments Following the Report on the Four-Year Review of the Section 301 Tariffs

    On May 14, 2024, the U.S. Trade Representative (USTR) published the Four-Year Review of Actions Taken in the Section 301 Investigation (“Report”), which addresses the four-year review of China-related tariffs under Section 301 of the Trade Act of 1974, as amended (“Trade Act”) (19 U.S.C. 2411). Our previous alert on this report is available here.

  • Clarity for M&A Practitioners: Proposed DGCL Amendments Bridge the Gap between Recent Delaware Chancery Court Decisions and Market Practice

    On March 28, 2024, the Council of the Corporation Law Section of the Delaware State Bar Association proposed certain amendments (the “Amendments”) to the Delaware General Corporation Law (DGCL), which, if approved, would go into effect on August 1, 2024, and retroactively apply in the case of all agreements, subject to limited exceptions. The proposed Amendments would, among other things:

  • Revving Up: Eight States in Gear with Low-Carbon Fuel Standard Legislation

    State low-carbon fuels programs are powerful drivers for the adoption of various low-carbon fuels, particularly renewable natural gas (RNG), renewable diesel and sustainable aviation fuel (SAF). For well over a decade, California has implemented its Low-Carbon Fuel Standard (LCFS), which was wildly successful in incentivizing the use and production of RNG, renewable diesel and SAF. In recent years, Oregon and Washington followed suit, and while these programs have a much smaller net impact on the demand for low-carbon fuels due to the respective sizes of those states, they have provided additional outlets for low-carbon fuels.

  • China Issues Rules to Clarify and Relax Cross-Border Data Transfer Controls

    On March 22, 2024, the Cyberspace Administration of China (CAC) published the final version of the Provisions on Promoting and Regulating Cross-Border Data Transfers (Provisions), aiming to provide more clarity on the implementation of the Measures on Security Assessment for Data Export (Security Assessment Measures), effective beginning September 1, 2022, and the Measures on the Standard Contract for the Cross-border Transfer of Personal Information (SC Measures), effective on June 1, 2023, and other cross-border data transfer issues. As described in more detail below, the Provisions, among other things, set forth certain scenarios where the procedural regulatory requirements for data export are exempted, and clarify the identification of “important data” (Important Data) and thresholds for mandatory security assessment.

  • SEC Adopts Long-Anticipated Rules for SPACs: Considerations for Market Participants and SEC Enforcement Objectives in the New Regulatory Environment

    On January 24, 2024, the Securities and Exchange Commission (SEC) announced the adoption of final rules (the Final Rules) affecting the acquisition of private operating companies by publicly traded special purpose acquisition companies (SPACs) and related financing transactions (individually and collectively, de-SPAC transactions), largely aligning them with requirements of traditional initial public offerings (IPOs). The Final Rules, which go into effect on July 1, 2024, and the adopting release also provided new guidance from the SEC with respect to SPAC and de-SPAC transactions.

  • Congress Sets Its Sights on Limiting Access to Chinese Biotech Companies

    The BIOSECURE Act would prohibit federal agencies from contracting with, extending loans to, or awarding grants to, any company with existing or pending agreements with identified biotechnology companies. This limits funding to both the procurement of biotechnology companies and funding flowing to any entity using these technologies.

  • Sweden’s NATO Membership Is Official! Significant Business Opportunities Now Available to Swedish Companies

    On March 7, 2024, Sweden officially joined the North Atlantic Treaty Organization (NATO) after Hungary’s parliament cleared the last hurdle to Sweden’s membership. Sweden and Finland began pursuing NATO membership following Russia’s invasion of Ukraine in 2022. Finland joined NATO in April 2023. Sweden’s accession, however, was met with significant opposition from Hungary and Turkey based on geopolitical concerns. NATO is an alliance of over 30 countries committed to working together to guarantee the freedom and security of its members through various political and military means. The admission of Finland and Sweden into NATO is monumental because it represents the most significant expansion of the alliance since the addition of eastern European countries after the Soviet Union collapsed in 1991.

  • Reviewing Key CHIPS Act Implementation Milestones to Deliver Opportunities for the Semiconductor Supply Chain

    The CHIPS and Science Act, enacted in August of 2022, appropriated $52 billion to expand the U.S. semiconductor market—accounting for research, development and ultimately domestic manufacturing of current and next-generation semiconductor technology. To carry out this mission, the Department of Commerce established the CHIPS Program Office, to administer the funding opportunities for manufacturing under the Act, and the CHIPS R&D Office, to carry out the research and development activities under the Act. In addition to the CHIPS Office, other agencies have been authorized to carry out CHIPS Act programming—including the Department of Defense (DoD), which is administering the Microelectronic Commons, a lab-to-fab pathway for microelectronic products to overcome the “valley of death” and reach commercialization. The CHIPS Offices, as well as the DoD, met several milestones in 2023 and the early months of 2024.

  • China Passes Significant Amendments to Company Law

    On December 29, 2023, the Standing Committee of the National People’s Congress of the People’s Republic of China (PRC) passed the final version of the long-awaited new Company Law (2024 Company Law) after deliberating on four versions of draft amendments. The new law will come into effect on July 1, 2024. The 2024 Company Law deletes 16 provisions in the latest version of the Company Law, which was amended in 2018, and makes substantial amendments to over 110 provisions. This is the sixth round of amendments and includes the most amendments to the Company Law since its initial introduction in 1993.

  • Overview of PFAS Regulations in the United States and What Japanese Companies and Their U.S. Subsidiaries Need to Know
    12.27/White Paper

    This article provides overviews the status of PFAS regulation in the United States. Given the ubiquity of PFAS in commercial products, the expectation is that the United States’ regulation of PFAS and liability risks associated with PFAS will be of interest to a wide array of Japanese businesses, including specialty chemical companies, industrial manufacturers, oil and gas operations, and trading companies. Indeed, it is to be understood that many businesses, including those that have never knowingly used PFAS in their operations, may have a nexus to PFAS without knowing that they do. This article briefly describes PFAS, the types of products that include it, the recent wave of litigation involving PFAS contamination, which has involved settlements above $10 billion, and developments in federal and state regulation of these chemicals. This is followed by a brief discussion of specific scenarios in which these developments may affect Japanese corporations. The article ends with the recommendation that businesses that manufacture, distribute, use, or dispose of PFAS or products containing PFAS should stay abreast of these developments and develop proactive strategies to minimize their potential liability.

  • Expansion of Global Capability Centers Requires Anticorruption Compliance Planning

    In its Vision 2030 report, EY India projects that the number of global capability centers (GCCs) in India will increase from approximately 1,600 GCCs in 2023 to 2,400 GCCs in 2030, with the market size of GCCs increasing from about $43 billion to over $100 billion during this period. This dramatic increase forecasted by EY India is not surprising. GCCs provide a number of attractive benefits, including access to a very large pool of highly skilled IT resources in India, the ability to leverage this talent to build internal teams that can deliver on strategic digital initiatives with speed and agility, the opportunity to tap into India’s robust startup ecosystem, and the potential savings associated with lower labor rates and other costs of doing business in India.

  • Voluntary Self-Disclosure: Is the Value Self-Evident?

    On July 26, 2023, the U.S. Justice Department (DOJ), the Department of Commerce's Bureau of Industry and Security (BIS) and the Department of the Treasury's Office of Foreign Assets Control (OFAC) issued their second-ever joint compliance note. This second "Tri-Seal" note followed a March 2, 2023, note on the use of third-party intermediaries or transshipment points to evade Russian- and Belarussian-related sanctions and export controls.

  • China Finalizes Its First Administrative Measures Governing Generative AI

    On July 13, 2023, the Cyberspace Administration of China (CAC), China’s main regulator for cybersecurity and data privacy, issued its final version of the Interim Administrative Measures for Generative Artificial Intelligence Service (Generative AI Measures), which will come into effect on August 15, 2023. Compared to the draft regulations (Draft Regulations) published by the CAC in April for public comments, the Generative AI Measures have relaxed several requirements on the providers offering generative AI services and placed more emphasis on encouraging technological development and innovation.


  • Contracting Models for Global Capability Centers in India

    Global Capability Centers (GCCs) located in India continue to evolve from labor arbitrage and cost savings initiatives to innovation centers for digital transformation, supporting cloud, mobile, data security, data analytics, AI, automation and other emerging technologies. Companies looking to establish a GCC in India (Companies) often engage a local or international service provider with in-country expertise, experience and professional connections (Facilitators) to facilitate setting up and operating the GCC.

  • SCOTUS Upholds Civil RICO Lawsuit for a Foreign Defendant’s Acts in the United States to Evade Enforcement of a Foreign Arbitral Award

    On June 22, 2023, in a 6-3 opinion, the U.S. Supreme Court held in Ashot Yegiazaryan v. Vitaly Ivanovich Smagin and CMB Monaco v. Vitaly Ivanovich Smagin that a civil Racketeer Influenced and Corrupt Organizations (RICO) lawsuit may be based on a defendant’s acts to prevent a plaintiff, a prevailing party in a foreign arbitration, from collecting on the award. In doing so, the Court resolved a Circuit split and rejected the proposition that a foreign plaintiff’s economic loss necessarily occurs at the plaintiff’s foreign residence. The opinion suggests an additional tool for foreign plaintiffs seeking the enforcement of overseas awards and judgments to obtain enforcement in the United States.

  • Proposed Rule Increases Buy American Act Content Thresholds for DoD Contracts

    Once again, the U.S. government continues its push to ensure that the products and services it acquires are manufactured domestically. The latest domestic content development pertains specifically to acquisitions by the Department of Defense (DoD). By way of a refresher, we previously wrote about the Federal Acquisition Regulatory Council’s issuance of a final rule on March 7, 2022, imposing significant increases to U.S. content requirements for federal procurements subject to the Buy American Act (BAA). However, the BAA requirements specifically appliable to the DoD, which existed prior to Executive Order 14005, remained at their existing levels of 55 percent, until now.

  • China Amends the Counter-Espionage Law

    On April 26, 2023, the Standing Committee of the National People’s Congress of the People’s Republic of China (PRC) passed an amended Counter-Espionage Law. These changes constitute the first amendments to the Counter-Espionage Law since its introduction in November 2014. The amended law will come into effect on July 1, 2023.

  • FCC Adopts International Section 214 Authorization Order and Notice of Proposed Rulemaking to Address National Security Concerns Posed by Foreign Ownership

    The Federal Communications Commission (FCC), on April 25, 2023, released an Order and Notice of Proposed Rulemaking (NPRM) relating to international Section 214 authorizations, in response to recent concerns regarding national security, law enforcement and foreign ownership of telecommunications services. International Section 214 authorizations are issued to telecommunications providers that seek to offer international services originating or terminating in the United States.

  • Human Rights Due Diligence—ESG Impact on M&A Transactions

    Over the past several years, environmental, social and governance (ESG) considerations have gained global importance in the context of mergers and acquisitions (M&A). Corporations, customers, regulators and investors are increasingly demanding the integration of ESG factors into the decision-making processes of businesses with regards to M&A in an effort to enhance business opportunities, protect reputations and mitigate risks. In today’s globalized economy, many companies rely on a complex web of supply chains that span multiple countries. Beginning with the exposure of China’s crimes against Uyghurs and other Muslim ethnic groups in Xinjiang and compounded by Russia’s recent invasion of Ukraine, there has been a renewed push for global brands to take their ESG efforts more seriously. As a result, companies and potential buyers are more sensitive to the risk of doing business in countries like China where labor costs are much lower than in other developed countries but where there is simultaneously a lack of respect for human rights and humane labor conditions.

  • Commerce Releases New Proposed Rule Governing Restrictions on Chinese Investments by CHIPS Act Applicants

    On March 21, 2023, the Department of Commerce (Commerce) released a Notice of Proposed Rulemaking (NPRM) imposing guardrails preventing the “improper use of funds” made available under the CHIPS Act of 2022, which creates a private sector incentive program to boost semiconductor manufacturing in the United States. The guardrails are designed to ensure that technology and innovation spurred by the CHIPS Act is targeted towards domestic investment in semiconductor facilities and equipment, exclusively, and does not benefit adversarial countries, principally China.

  • Application Windows Opening for New Federal Funding

    On August 16, 2022, the passage of the Inflation Reduction Act (IRA) marked the establishment of a trifecta of bipartisan legislation aimed at improving U.S. economic competitiveness through innovation and domestic industrial productivity. In total, the IRA, the CHIPS and Science Act (CHIPS) and the Infrastructure Investment and Jobs Act (IIJA) provide about $2 trillion in federal funding, offering businesses and organizations a rare opportunity to apply for federal grants or take advantage of other federal incentive benefits. Many application windows for grants, loans and other incentives have opened since the passage of these landmark bills, with additional application periods opening across the first three quarters of 2023. Businesses should be assessing how available programs align with objectives and growth plans and preparing to meet critical eligibility and compliance obligations to obtain benefits. Though more details are still to come, below are considerations for companies seeking to benefit from new federal spending and incentive programs to support infrastructure projects, technology innovation, semiconductor manufacturing, and climate protection and clean energy initiatives.

  • Russia Issues New Authority to Suspend Voting Rights of Some International Investors in Major Russian Companies

    The Russian government continues to take measures to curtail the rights of investors from or connected to “unfriendly jurisdictions” (i.e., countries that have introduced sanctions on Russia and Russian persons) (“Western Investors”) without definitively expropriating their assets.

  • Economic Crime (Transparency and Enforcement) Act Provides Transitional Period

    The Economic Crime (Transparency and Enforcement) Act which came into force last year provides a transitional period ending on January 31, 2023, during which overseas entities that own (or want to sell or transfer) or lease UK real estate must register the beneficial owners or managing officers of that overseas entity at Companies House. A failure to comply with the Act will expose the overseas entity and its officers to criminal sanctions and could potentially impact banks who have lent monies secured on the property.

  • FCC Modifies Equipment Authorization Rules for Certain Chinese Manufacturers

    The FCC seeks further comment on the revocation of existing equipment authorizations issued to manufacturers on FCC Covered List.

  • State Department Issues Two Open General Licenses Authorizing Reexports and Retransfers of Certain Defense Articles for Australia, Canada and the UK

    On July 13, 2022, as part of a new pilot program, the Department of State’s Directorate of Defense Trade Controls (DDTC) issued two open general licenses (OGLs) permitting certain reexports and retransfers of unclassified defense articles subject to the International Traffic in Arms Regulations (ITAR) within or between Australia, Canada, and the United Kingdom.

  • Expropriations Related to the Russia Sanctions May Trigger Liability under Investment Treaties

    Expropriations Related to the Russia Sanctions May Trigger Liability under Investment Treaties

  • Companies Prepare for the Uyghur Forced Labor Prevention Act (UFLPA)

    The year 2021 brought supply chain challenges to the center of the national conversation. In 2022, legal developments look to focus the attention of the business community on ethics in the supply chain and introduce new due diligence and compliance challenges.

  • DOJ Continues Targeting of Corruption through AML Laws and Alternate Statutes – Lessons for Compliance and Due Diligence

    As the Biden Administration commits to crack down on corruption, recent enforcement actions show the DOJ continues a longstanding trend of relying on AML laws and other alternate statutes to prosecute corruption cases, with lessons for internal compliance and due diligence.

  • Congressional SPACtivity Continues: Draft Legislation Proposes to Eliminate Safe Harbor Protection for Projections in SPAC Transactions

    As previously noted in Pillsbury’s earlier article, one factor that has contributed to the rise in SPACtivity has been the availability to SPACs of certain features unavailable to companies going public through traditional IPOs, most notably the Private Securities Litigation Reform Act (PSLRA) safe harbor for forward-looking statements. On May 21, 2021, the U.S. House Committee on Financial Services released draft legislation to amend the Securities Act of 1933 (the Securities Act) and the Securities Exchange Act of 1934 (the Exchange Act) to exclude all SPACs from the safe harbor. Section 27A of the Securities Act and Section 21E of the Exchange Act currently exclude from the safe harbor forward-looking statements made “… in connection with an offering of securities by a blank check company…” Rule 419 under the Securities Act defines a “blank check company” as “…a development stage company that has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity or person… ” and is “ … issuing penny stock ...” As the vast majority of SPACs do not issue penny stock or are structured to avoid treatment as a “blank check company” as defined in Rule 419, de-SPAC transactions have generally been viewed as eligible for the PSLRA safe harbor. The draft legislation proposes to delete the term “blank check company,” replacing it with the phrase “… a development stage company that … has indicated that its business plan is to acquire or merge with an unidentified company, entity, or person…” without reference to whether or not the company issues penny stock. As a SPAC is formed for the purpose of acquiring or merging with an unidentified entity, the proposed amendments would likely make the PSLRA safe harbor unavailable for forward-looking statements, such as projections, included in documents soliciting stockholder approval of de-SPAC transactions.

  • DoD Issues Proposed Rule on Enhanced Debriefing Procedures

    The Department of Defense (DoD) recently issued a proposed rule to implement Section 818 of the FY18 NDAA. Under Section 818, Congress required the DoD to issue new regulations in the Defense Acquisition Regulation Supplement (DFARS) on the procedures for enhanced debriefing rules within six months. 

  • China Publishes New Draft Regulations on Data Security Management of Automobile Operators to Protect Privacy

    On May 12, 2021, the Cyberspace Administration of China (CAC) published the Several Regulations on the Management of Automobile Data Security (Draft for Comment) (Draft Regulations). The Draft Regulations are open for public comment until June 11, 2021.  According to the CAC’s statement, due to growing concerns over personal data security and privacy protection in the People’s Republic of China (PRC), the Draft Regulations aim to strengthen protection of personal information and important data in automobile-related activities, as well as safeguard national security and the public interest. Below is our summary of the highlights of the Draft Regulations.

  • Congress Moves to Repeal OCC’s “True Lender” Rule

    On May 11, 2021, the Senate voted to repeal a Trump Administration regulation that defines which party is the “true lender” in partnerships between banks and non-banks, including financial technology and other non-bank lending companies. The Senate resolution now heads to the House of Representatives, which is expected to pass the resolution. President Biden has signaled his support for the repeal and will likely enact the repeal following a vote in the House. The repeal of this rule could create regulatory uncertainty for fintechs and other non-bank lenders that were relying on the rule.

  • China’s MOFCOM Issues Internal Export Control Program Guidelines

    On April 28, 2021, China’s Ministry of Commerce (MOFCOM) published The Guiding Opinions on the Establishment of an Internal Compliance Program for Export Control by Exporters of Dual-use Items (Opinions) along with a 35-page Guidelines for Internal Compliance of Export Control of Dual-use Items (Guidelines). The Opinions and Guidelines replace MOFCOM’s previous Opinions published in 2007 and are the latest steps taken by MOFCOM for the implementation of China’s Export Control Law effective on December 1, 2020 (see Pillsbury alert).

  • China Cancels Export Tax Rebate on Steel Products

    On April 28, 2021, China’s Ministry of Finance (MoF) and the State Administration of Taxation (SAT) issued a short notice (Notice No. 16) on their official websites to cancel VAT rebates on the exports of certain steel products starting May 1, 2021.

  • Data Privacy Fines and Damages “Double Jeopardy”: UK Supreme Court Hears Google “Class Action”

    This week sees a key hearing before the UK Supreme Court in the case of Lloyd v Google, an event long awaited by those familiar with data protection law proceedings in Europe.

  • Federal Support for Defense Uses of Advanced Nuclear

    Summary of the EO

    On January 12, 2021, former President Trump issued an EO on Promoting Small Modular Reactors for National Defense and Space Exploration. The EO directs the Department of Energy (DOE), Department of Defense (DOD), and NASA to take actions to coordinate their nuclear-related activities, move forward with certain ongoing nuclear projects and promote advanced reactor and small modular reactor (SMR) technologies. The purpose of the EO is to take steps to revitalize the U.S. nuclear sector, reinvigorate the U.S. space exploration program, develop diverse energy options for national defense needs and advance U.S. technological supremacy and leadership.

  • Congressional and Government Investigations in 2021: What to Expect from the Biden-Harris Administration and How to Prepare

    Government investigations pose many risk management challenges. They are unpredictable, political and often public. If handled incorrectly, they can last for many years, spiral into multiple Congressional, criminal, and/or regulatory investigations at the state and federal levels, and generate serious reputational harm. Potential targets can take proactive steps to mitigate their risks.

  • China Publishes Import License List and Export Control List for Commercial Encryption

    One day after China’s new Export Control Law took effect, on December 2, 2020, China’s Ministry of Commerce (MOFCOM), the State Cryptography Administration (SCA) and the General Administration of Customs (GAC) jointly issued an Announcement on the Issuance of Import Licensing List, Export Control List and Related Administrative Measures for Commercial Encryption (Encryption Announcement) to restrict commercial encryption products and related technology. The Encryption Announcement takes effect on January 1, 2021, and includes: (1) a list of commercial encryption items subject to import licensing requirement (Encryption Import List); (2) a list of commercial encryption items subject to export control (Encryption Export List); and (3) procedures for the application of import and export licensing of commercial encryption (Encryption Licensing Procedures).

  • Indian Government Announces New Opportunities for Defense Contractors and Investors

    The Indian government is amending its procurement policy and increasing foreign direct investment in the defense sector, both developments which we believe will be of interest to many of our government contracts clients. India is the second largest arms importer in the world and spends close to two percent of its GDP on defense. In addition, recent border skirmishes with China and Pakistan have heightened the urgency for India to shore up its defense arsenal.

  • China’s Export Control Law Formally Enacted

    After submission for review and discussion at the 22nd session of the Standing Committee of the 13th National People’s Congress of the People’s Republic of China (PRC), the final version of the long-awaited Export Control Law of the PRC was passed and enacted on October 17, 2020, with an effective date of December 1, 2020.

  • Understanding the New $60 Billion U.S. International Development Finance Corporation (DFC)

    At the start of 2020, the U.S. International Development Finance Corporation (DFC) finally became operational after more than a year of organizational and budgetary delays. Signed into law as a part of the 2018 BUILD Act, the DFC is a $60 billion investment agency that merged the Overseas Private Investment Corporation (OPIC) with other foreign investment programs and added new objectives. DFC has a broader development objective than OPIC’s mission and offers increased services to lower- and middle-income economies, with nearly 100 countries identified as priority areas.

  • Senate Bill Could Result in De-Listing of Certain Chinese Companies and Non-Chinese State-Owned Enterprises from U.S. Securities Exchanges

    On May 20, 2020, the U.S. Senate unanimously passed S. 945, the Holding Foreign Companies Accountable Act (HFCAA). If enacted, the bill would amend the Sarbanes-Oxley Act of 2002 (15 U.S.C. §7214) to require additional disclosures from certain issuers regarding foreign jurisdictions that prevent the Public Company Accounting Oversight Board (PCAOB) from performing inspections of auditors of public companies.

  • Registration and Compliance Obligations are Reality for Private Funds in the Cayman Islands

    For many years regulators and other government officials in the Cayman Islands have worked closely with tax and regulatory authorities and others in non-Cayman jurisdictions to minimize the risk that bad actors would use Cayman jurisdictional means to evade taxes, launder money or engage in other illegal conduct. The Cayman Islands Government has incurred great expense to establish, implement or improve systems designed to facilitate international law enforcement and crime prevention. As a result of those and other important efforts by the Cayman Islands Government, reforms in the Cayman Islands have been among the most significant of any nation.

  • Substantial Transformation of the FAR Trade Agreements Clause


    The Buy American Act is the basic source of restrictions on the federal government’s purchases of foreign-produced products. As implemented through a Presidential executive order and regulations, the law imposes a “price preference” for purchases of U.S. origin goods, which can be 6% (for non-Defense procurements) to 50% (for Defense procurements). The application of the Buy American Act is modified when the United States is obligated by an international agreement—either the World Trade Organization (WTO) Government Procurement Agreement (GPA) or a free trade agreement such as the NAFTA—to accord non-discriminatory treatment to the goods of specific foreign countries. In those cases, when the procurement is being made by a covered agency and the value of the procurement is above the applicable threshold, no price preference is applied and the foreign good is evaluated in the same manner as U.S. goods. Those modifications are implemented under the authority of the TAA, which implements U.S. obligations under trade agreements.

  • U.S. Expands Secondary Sanctions to Iran’s Industrial Sectors

    On January 10, 2020, the United States imposed additional sanctions on Iran in the wake of recent tensions between the countries and the continuing broader “maximum pressure” campaign on Iran. Specifically, President Trump signed Executive Order 13902 (E.O. 13902) authorizing the imposition of secondary sanctions on certain transactions involving Iran’s construction, mining, manufacturing, and textiles industries. This follows Executive Order 13871 from May 2019, which authorized secondary sanctions on Iran’s iron, steel, aluminum and copper sectors. Concurrently with the issuance of E.O. 13902, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) added to the Specially Designated Nationals and Blocked Persons List (SDN List) several major Iran-related metal and mining companies, Chinese and Seychelles entities plus a related vessel involved in the Iranian metals trade, and Iranian regime officials.

  • Compliance in 2020 – Key Takeaways from the ITAR Cloud Rule

    On December 26, 2019, the Department of State published in the Federal Register an interim final rule amending the International Traffic in Arms Regulations (ITAR) to define “activities that are not exports, reexports, retransfers, or temporary imports,” and specifically to clarify that the electronic transmission and storage of properly secured unclassified technical data via foreign communications infrastructure does not constitute an export. The rule also defines “access information” and revises the definition of “release” to address the provision of access information to an unauthorized foreign person.

  • Key Takeaways from CFIUS Final Rules Implementing FIRRMA

    On January 13, 2020, the U.S. Department of the Treasury issued two final rules for the Committee on Foreign Investment in the United States (CFIUS) implementing the Foreign Investment Risk Review Modernization Act (FIRRMA), which was enacted on August 13, 2018. The final rules largely adopt the proposed rules published on September 17, 2019, with several key clarifications and modifications. As discussed previously, FIRRMA has resulted in two separate rulemakings that expand CFIUS’ jurisdiction to include (i) certain non-controlling investments in U.S. businesses engaged in critical technology, critical infrastructure, and sensitive personal data, and (ii) certain real estate transactions. The final rules will be published in the Federal Register on January 17, 2020 and will go into effect February 13, 2020 (Effective Date), with one exception described below. We anticipate that the Treasury Department will publish a separate rule concerning filing fees soon.

  • District Court Overturns OFAC Fine Against Exxon

    On December 31, 2019, the U.S. District Court for the Northern District of Texas overturned a $2 million fine imposed by the Department of the Treasury’s Office of Foreign Assets Control (OFAC) against ExxonMobil Corp., and its U.S. subsidiaries ExxonMobil Development Company and ExxonMobil Oil Corp. (collectively, “Exxon”). This marked a rare court decision overturning an OFAC sanctions penalty. The Court’s decision focused not on the subject of the sanctions but addressed whether OFAC had provided proper notice of its sanctions requirements.

  • Commerce Department Publishes Interim Final Rule Controlling Geospatial Imagery Software for Training AI

    Companies anxiously awaiting the release of “emerging technology” export control rules now have an initial interim rule indicating how the Department of Commerce Bureau of Industry and Security (BIS) is likely to proceed. Specifically, the interim rule related to software for training AI appears to be a narrowly tailored rule covering a specific type of AI software related to specific national security concerns involving geospatial imagery. While there are some questions on the scope of what is covered by “geospatial imagery,” comments on the rule due on March 6 will allow industry to provide input and hopefully obtain formal clarification once the final rule is issued. Additionally, the interim rule highlights that the new “emerging technology” rules will not be a “one and done” but rather a rolling series of rules on specific technologies warranting control.

  • Developments Highlight Secondary Liability Risks for Private Funds

    In an age of heightened litigation risk and a motivated Securities & Exchange Commission (SEC), private funds need to be increasingly mindful of secondary liability risks, especially when evaluating costs and benefits of potential portfolio company ownership structures. Given the uncertainties, firms must take steps to mitigate such risks—including documenting oversight, observing corporate formalities, ensuring the creation and implementation of strong internal controls, and adequately training professionals who serve as directors.

  • Four China Nuclear Industry Companies Added to “Entity List”

    On August 14, 2019, the U.S. Commerce Department added China General Nuclear Power Group (CGN) and three of its affiliates, China General Nuclear Power Corporation (CGNPC), China Nuclear Power Technology Research Institute Co. Ltd., and Suzhou Nuclear Power Research Institute Co. Ltd., to the Commerce Department’s “Entity List.” Effective immediately, both U.S. and non-U.S. companies are prohibited from exporting or transferring to the listed Chinese entities any goods, software or technology that is subject to control under the U.S. Export Administrations Regulations (EAR) (including EAR99 items not on the Commerce Control List). Licenses from the Commerce Department’s Bureau of Industry and Security (BIS) are subject to a presumption of denial.

  • The Qualified Opportunity Zone Program: Thoughts on the Long-Awaited Treasury Guidance

    Section 13823 of the Tax Cuts and Jobs Act, P.L. No. 115-97 (2017) added Sections 1400Z-1 and 1400Z-2 to the Internal Revenue Code of 1986, as amended (the “Code”). These provisions created the Qualified Opportunity Zone (“QOZ”) program that has recently generated such a wave of media attention that one might surmise President Trump had sent an angry late-night tweet about it.

  • Pillsbury's Post-Election Outlook

    The 2018 Midterm Election played out as most poll forecasters speculated. Although several races have yet to be decided, Republicans have retained control of the Senate, but lost at least 29 seats, allowing the Democrats to wrest back control of the House for the first time since 2010.

  • 2018 Election Night Guide

    Pillsbury’s Political Law and Government Law & Strategies groups break down the need-to-know numbers for this year’s election. Pillsbury’s biennial Election Night Guide examines the potential outcomes for the 2018 Congressional and Governor’s races. Our Public Policy team is also preparing a post-election guide that will be useful in navigating potential changes in Congress.

  • Fall 2018 CFIUS Briefing

    Many US-China deals are still getting done, but there is no question the challenges facing those deals has increased over recent months. Relatively few transactions have emerged from the CFIUS process since earlier this year; some have cleared and some have not. Our review of publicly available information indicates that the clearance rate for US-China deals since the Trump Administration took office has fallen from about 55% earlier this year to about 50%, but two very high-profile deals received approval (an acquisition by COSCO which involved a pier in Long Beach Harbor, and China Oceanwide’s acquisition of Genworth Financial). We continue to believe that careful selection of target assets, early risk assessment, and transparent filings with CFIUS will still allow many if not most deals to get through.

  • Congress Reaches Agreement on CFIUS Reform Legislation Broadening National Security Reviews and Addressing Emerging Technologies

    House and Senate negotiators have agreed on proposed reforms to the Committee on Foreign Investment in the United States (CFIUS) foreign investment review process, which has been added as Title XVII of the FY2019 National Defense Authorization Act (NDAA). The final bill makes a number of changes intended to improve the efficiency of national security reviews and investigations, although a significant increase in staff and funding will be required in order to handle the increased caseload. Importantly, outbound technology transfers in the context of joint ventures and other collaborative arrangements will not be added to the “covered transaction” definition, but will instead be addressed by U.S. export controls.

  • The UK’s Sanctions and Anti-Money Laundering Act Enters into Law

    On 23 May 2018, the Sanctions and Anti-Money Laundering Act became law in the United Kingdom. Its aim is to provide a legal framework to allow the UK to impose sanctions and implement its own sanctions regime once the UK leaves the EU on 29 March 2019. However, the Bill goes well beyond any current EU sanctions regime and provides scope for the Government to shape an autonomous UK sanctions policy

  • Car Wars: Trump Administration Opens Section 232 Investigation into Imports of Autos and Auto Parts

    On May 23, 2018, as directed by President Trump, the Secretary of Commerce initiated a Section 232 investigation into whether imports of automobiles, including SUVs, vans, light trucks and automotive parts, threaten to impair national security. President Trump reportedly is contemplating tariffs as high as 25% on automobile imports, similar to the tariff imposed a result of its recent 232 action on steel imports.

  • With CDD and Beneficial Ownership Rule in Effect, FinCEN Continues to Clarify and Refine Rules for Financial Institutions

    Long awaited rules for “Customer Due Diligence Requirements for Financial Institutions” (the CDD Rules) went into effect on May 11, 2018. FinCEN has taken steps to clarify and refine implementation of the CDD Rules, issuing (1) FAQs on April 3, 2018 and (2) a ruling on May 16, 2018 providing covered financial institutions with a limited 90-day exceptive relief from the obligations for financial products and services that are subject to automatic renewals, provided such products were established before May 11, 2018.

  • US Announces Withdrawal from JCPOA

    Today, President Trump announced his intention to withdraw the United States from the Joint Comprehensive Plan of Action (JCPOA) and to impose the “highest level of economic sanctions” on Iran. The Office of Foreign Assets Control quickly thereafter published FAQs that discuss how the sanctions will be implemented.

  • USTR to Review India’s Eligibility for Continued Preferential Tariff Access Under the GSP Program

    The United States Trade Representative announced it will review India’s eligibility to continue receiving treatment as a beneficiary country under the U.S. Generalized System of Preferences program. India is by far the largest beneficiary of the GSP program.

  • Russia’s State Duma Introduces Draft Law to Counter U.S. Sanctions

    Lawmakers in State Duma—a lower house of the Russian Federal Assembly—have introduced legislation to counter recent U.S. sanctions, setting out a broad menu of prohibitions, from import and services restrictions to individual bans.

  • Trump Administration Considering Use of IEEPA To Restrict U.S. Technology Transfer to China

    Reports suggest that the Trump Administration may declare an emergency under the International Emergency Economic Powers Act to grant the CFIUS authority to review technology transfer transactions even where there is no transfer of “control.”

  • Spring 2018 CFIUS Briefing

    How can parties help CFIUS say “yes?” The key is to begin with the data, identify problems early, and be proactive.

  • Treasury Department Designates Russian Oligarchs, Officials, and Entities

    The Treasury Department's April 6 placement of several prominent Russian individuals and companies on the Specially Designated Nationals and Blocked Persons lists promises to be more commercially disruptive for western companies than most past listings.

  • Trump Administration Takes Action Following Section 301 Investigation

    President Trump’s latest directives regarding the USTR’s Section 301 investigation into China has wide-ranging implications for in-bound Chinese investment. Here’s what you need to know.

  • CFIUS and China: Separating Fact from Fiction

    It's true that a few high-profile deals have been abandoned due to CFIUS concerns. But many other transactions--including three recent ones involving Chinese acquirers--have been cleared.

  • Status of the Iran Nuclear Deal and New Sanctions Designations

    In a statement, President Trump warned European allies that unless they fix these four flaws in the Iran nuclear deal, the U.S. intends to withdraw from it. 

  • U.S. Targets Human Rights Abusers and Corrupt Actors Worldwide – Key Takeaways from the Potent New Sanctions

    Executive Order 13818 authorizes the imposition of sanctions on individuals worldwide connected with “serious human rights abuse,” corruption, or “the transfer or the facilitation of the transfer of the proceeds of corruption.” Here is what businesses need to know.

  • Update on U.S. Investigation of China’s IP Practices

    The U.S. Trade Representative is expected to announce affirmative findings and remedy recommendations regarding China's alleged violation of Section 301(b)(1) of the Trade Act. What happens next?

  • Large Whistleblower Award to Non U.S. Person – Lessons for Anti-Corruption Compliance Programs

    Increasingly, The SEC is being alerted to securities fraud by whistleblowers living in foreign countries. It is a trend that only further incentivizes sound compliance.

  • Retroactive Corporate Liability for Human Rights Abuses

    Section 13 of the Criminal Finances Act 2017 is now in effect in the United Kingdom, meaning companies have far greater liability for human rights violations.

  • CBP Takes Measures to Enforce Ban on Imports Made with Forced Labor and Sanctions for Forced North Korean Labor in Supply Chains

    With a renewed focus on enforcing its ban on imports of forced labor, U.S. Customs and Border Protection has taken new measures so importers don't run afoul.

  • Three Key Aspects of the Proposed Reform to the CFIUS Process

    A bill updating the Committee on Foreign Investment in the U.S. and the national security review process has been introduced in the U.S. House and Senate. Here's what you need to know.

  • Reaching for a Rarely Used Tool to Probe China IP Practices

    President Trump has repeatedly express concern about China's trade practices, most notably its technology transfer requirements. Now the U.S. Trade Representative is employing a rarely used tool to investigate.

  • Evolving U.S. and UN Sanctions Against North Korea

    The U.S. and UN have imposed a number of sanctions on North Korea since the middle of 2017. Here is a summary of all the key pronouncements.

  • U.S. Government Agencies Publish Changes to Cuba Sanctions Program Pursuant to President Trump’s Policy Announcement

    The U.S. government has announced a number of changes to its sanctions program in Cuba, adjusting some of the broader reforms initiated during the previous administration.

  • Russia Sanctions Under CAATSA – U.S. Updates Rules and Provides Guidance on Enforcement

    U.S. efforts to advance sections of the Countering America’s Adversaries Through Sanctions Act of 2017 (CAATSA) will impact the implementation and enforcement of Russia-related sanctions.

  • Another Market Opens: U.S. Revokes Sudanese Sanctions Program Though Important Limitations Remain in Place

    The U.S. government has revoked sanctions regulations in recognition of Sudan’s sustained positive actions in stopping conflict and improving humanitarian access. However, since Sudan remains designated as a “State Sponsor of Terrorism,” key restrictions remain and companies must continue to abide by applicable anti-corruption and anti-money laundering laws.

  • President Trump Issues Executive Order Blocking Proposed Acquisition of Lattice Semiconductor

    For only the fourth time in 30 years, the President blocked the proposed acquisition of a U.S. company following a review by the Committee on Foreign Investment in the United States (CFIUS). The alert explains the reasoning behind the Executive Order that prevented a Chinese consortium from acquiring a U.S. semiconductor company at a time when concerns about Chinese investment in the United States are growing.

  • New Executive Order Imposes Further Sanctions on Venezuela

    On August 25, President Trump issued an Executive Order providing for sanctions against the Government of Venezuela targeting certain long-term financial transactions, similar to existing sanctions on the Russian petroleum sector. The Order does not restrict imports or exports of oil, and the Treasury Department’s Office of Foreign Assets Control issued several general licenses that provide for specific permitted activities.

  • Three Birds with One Stone: New Russia, North Korea and Iran Sanctions

    On August 2, 2017, President Trump signed into law the Countering America’s Adversaries Through Sanctions Act (CAATSA), strengthening U.S. sanctions on Russia, North Korea and Iran. The new sanctions could have far-reaching implications for companies and investors, although it remains unclear how vigorously they sanctions will be implemented, particularly for Russia.

  • OFAC Updates FAQs on the Cuba Sanctions Program

    On July 25, 2017, the Office of Foreign Assets Control (OFAC) updated its Cuba FAQs to address upcoming changes to Cuba sanctions rules as they relate to pre-existing contracts, licenses, and travel arrangements. The new OFAC guidance addresses upcoming changes to its Cuba sanctions as they relate to pre-existing contracts, licenses, and travel arrangements.

  • Senate Minority Leader Urges President Trump to Suspend Chinese Acquisitions of U.S. Companies

    Senate Democratic Leader Chuck Schumer has written to President Trump asking him to order the Committee on Foreign Investment in the United States (CFIUS) to suspend the approval of all covered transactions by Chinese entities. This article discusses Sen. Schumer’s position and possible upcoming legislative action.

  • China Updates New Industry Catalogue: PRC Reduces Regulatory Procedures for Foreign Investments Following its 2016 Reforms

    The National Development and Reform Commission and the Ministry of Commerce of the People’s Republic of China’s 7th updated version of the Catalogue of Industries for Foreign Investments, became effective July 28, 2017. The Catalogue opens various previously restricted industries to foreign investors (mainly in services, manufacturing and mining) and includes a “negative list” of industries that will require special pre-approval and examinations for foreign investments.

  • A Message to China? New U.S. Sanctions and AML Measures for North Korea

    In June 2017, the U.S. Treasury Department announced sanctions designations and anti-money laundering measures against Chinese entities engaged in business with North Korea. The actions may be intended to send a political message.

  • CFIUS and Real Estate

    The expanding influx of foreign investments in U.S. real estate has drawn the attention of three key U.S. Senators amid national security concerns.

  • New Details Emerge on Legislative Proposal to Modernize CFIUS Process

    A bipartisan group in Congress is working to modernize the Committee on Foreign Investment in the United States (CFIUS) review process due to increased foreign direct investment and perceived threats to national security. The proposed legislation would focus on nations posing the greatest threat and give CFIUS clearer authority to review investments.

  • EU Proposes Significant Changes to Anti-Money Laundering Laws

    Earlier this year, European law makers approved important amendments to the EU’s Anti-Money Laundering (AML) Directive that would implement new rules to combat money-laundering, terrorism financing and tax evasion.

  • “Buy American, Hire American”—From Rhetoric to Regulation

    “We will follow two simple rules: buy American and hire American.” While world leaders are pondering what these words from President Trump’s Inaugural Address mean for international trade, a different question looms for U.S. Government contractors—what is on the horizon as far as the Buy American Act and similar protectionist regulations?