House Bill Would Enhance U.S. States’ Iran Sanctions Authority

On July 26, 2017, a bill was introduced in the House that would bolster U.S. states’ authority to impose sanctions on parties that engage in certain business with or in Iran. The State Sanctions Against Iranian Terrorism Act, H.R. 3425, would “amend the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 to secure the authority of State and local governments to adopt and enforce measures restricting investment in business enterprises in Iran, and for other purposes.” Among other measures, the House Bill would expand U.S. states’ authority to impose indirect Iran sanctions by excluding or debarring from state procurement and investments parties that do business in or with Iran, where… Read More

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State-Owned Enterprises and Anti-Corruption Enforcement

Anti-Corruption Enforcement and State-Owned Enterprises: Understand Unique Risks and Incentivize Compliance State-owned enterprises (SOEs, including sovereign wealth funds) are prominent players in international business. Given their ownership, SOEs have garnered scrutiny for their lack of transparency and heightened anti-corruption and anti-money laundering risk, as have individual SOE executives and other personnel who qualify as Politically Exposed Persons. In connection with commercial activities, SOEs are not protected in most cases by sovereign immunity. Thus, SOEs can, like their privately-owned counterparts, be subject to foreign legal processes. Given the greater scrutiny around SOEs and some of the high profile enforcement actions involving them directly or indirectly (for example, the 1MDB case), anti-corruption… Read More

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China’s One Belt One Road Could Disrupt U.S. Legal Dominance

On May 14, 2017, President Xi Jinping of China outlined plans to fund China's One Belt, One Road (OBOR) initiative. If successful, OBOR would alter the global trade landscape and, secondarily, likely curtail the global reach of U.S. law. The potential legal effects of the OBOR and other non-U.S. dollar- and Bretton Woods system-centric trade and finance initiatives were discussed in an earlier MassPoint Occasional Note. Given President Xi's fresh announcement of concrete plans to carry forward the OBOR project, MassPoint's earlier discussion of the project's potential curtailment of the global reach of U.S. law-- and the links between U.S. dollar and financial system strength and the global reach of U.S. law--… Read More Continue Reading

Identifying UAE “Foreign Officials” for Anti-Corruption Compliance Purposes

  Companies and other organizations doing business in the UAE or with enterprises owned in part by a UAE Government party at any level (e.g., the federal/union government or a government of one of the country's constituent emirates (e.g., Dubai, Abu Dhabi, Ras al Khaimah), or entities owned in part by any of them, should be aware that under UAE law, the definition of "public official" (i.e., a government official) includes employees and directors of enterprises in which a UAE Government party holds less than a majority ownership stake and does not, formally or effectively, exercise control. Definition of “Public Official” Under UAE Law Includes Directors, Managers, and Employees of… Read More Continue Reading

Public Hearing: Chinese Investment in the United States: Impacts and Issues for Policymakers

  On January 26, 2017, the U.S.-China Economic and Security Review Commission will hold a public hearing on Chinese Investment in the United States: Impacts and Issues for Policymakers. This hearing follows the Commission's November 2016 Annual Report to Congress, in which the Commission recommended, among other things, a bar on investment in the United States by Chinese state-owned enterprises (for background, see MassPoint's November 2016 Business Update, Proposals to Curb Foreign Investment in the United States Gaining Steam After the Election and MassPoint's April 2016 Business Update, Foreign Investment in U.S. Agriculture Under Scrutiny). Hearing background and information (as published by the Commission) "This is the first public hearing the Commission… Read More Continue Reading

After Election 2016: 5 Legal and Business Issues to Watch in 2017

Download Infographic The dismantling of Obama-era laws and regulations, broader deregulation, and economic and political nationalism were and remain themes of the 2016 U.S. Election and presidential transition period. Donald Trump and members of the incoming Republican-controlled Congress have singled out for repeal or significant modification the Affordable Care Act (aka “Obamacare”) and the Dodd-Frank Wall Street Reform and Consumer Protection Act, along with trade, immigration, foreign affairs, and environmental laws, regulations, and policies. If taken, these actions will not only effect legal changes in specific areas, they will create legal and policy voids that may be filled by U.S. states and localities, foreign governments and multilateral and non-governmental organizations,… Read More Continue Reading

Proposals to Curb Foreign Investment in the United States May Be Gaining Steam After the U.S. Election

Pre- and Post-Election Scrutiny of Foreign Investment in the United States, Particularly by Chinese and Other State-Owned Enterprises Major acquisitions of U.S. businesses by foreign firms have in recent years garnered increasing attention and push back in the United States. Acquisitions of U.S. businesses by state-owned enterprises (SOEs), particularly Chinese-owned, and their subsequent commercial activities have generated the most attention and backlash. In response to high value takeovers of U.S. businesses in sectors that have national security value or otherwise touch national interests—such as technology and agriculture—members of Congress, industry associations, and others have demanded, among other measures, modifications to the U.S. national security-based foreign investment review process, carried out… Read More

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Senate Bill Makes it Easier to Litigate Against State-Owned Enterprises in U.S. Courts

State-owned enterprises (SOEs) have in recent years become more active in cross-border investment and other commercial activity. The raised visibility has attracted public and official scrutiny of SOEs’ corporate structures and governance, as well as the implications of SOE-involved transactions for antitrust/competition, national security, and consumer affairs. More recently, some lawmakers and private sector actors have turned their attention to the issue of whether SOEs should be permitted to assert sovereign immunity as a litigation tactic. Under established U.S. law—the Foreign Sovereign Immunities Act of 1976 (FSIA)—foreign states and their “agencies and instrumentalities” generally enjoy immunity, but they are not immune from the jurisdiction of U.S. courts in cases based on… Read More

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