Listen to the program on Critical Minerals, National Security, & Supply Chains featuring MassPoint's Hdeel Abdelhady, Dr. Roderick Eggert. and Jared Wessel. The program was hosted by the American Bar Association and developed and co-sponsored by MassPoint PLLC.
Now that the Trump Administration has declared a policy to reduce dependency on foreign sources for critical minerals, how will the Administration go about achieving its stated objective? What legal consequences—including in the areas of national security, trade, anti-corruption, and environmental law—might flow? Our multi-disciplinary panel will discuss the science and practical importance of “critical minerals,” recent and potential U.S. legal and policy developments, and the potential impacts of U.S. actions on minerals on manufacturing, supply chains, and the markets.
The Trump Administration's newly released Africa Strategy is likely to bring greater anti-corruption enforcement, particularly against Chinese state-owned and private firms, as well as against African officials, and African and third country private parties. Extractives industries, particularly involving nonfuel minerals like cobalt, are likely to be of particular interest.
The Department of Justice (DOJ) recently launched an initiative to “Combat Chinese Economic Espionage.” Announced on November 1, 2018 by former Attorney General Jeff Sessions, the China Initiative acts on the Trump Administration’s previous findings “concerning China’s practices” and “reflects the Department’s strategic priority of countering Chinese national security threats and reinforces the President’s overall national security strategy.” The China Initiative presents emerging issues for academia, the technology industry, and the private sector broadly.
Fundamental research is excluded from export controls jurisdiction. But given growing concerns about alleged Chinese "academic espionage" at American universities and transfers to China of U.S. scientific and technological information and know-how, including through Chinese students, researchers, and others in fundamental and research pipelines, this excerpt is re-posted separately as foreign (particularly Chinese) access to and participation in U.S. fundamental research may be curbed by non-export controls means.
The Department of Commerce, Bureau of Industry and Security, has begun the process of identifying "emerging technologies" that are essential to national security and, consequently, require export control. New export controls on emerging technologies could be burdensome, depending on the content of regulations and the manner of their enforcement. If the new regulatory regime is burdensome to the point that it prohibits (legally or practically) some emerging technology transfers to foreign parties, companies and others involved in emerging technologies-- particularly their development--may seek arrangements, without evading or otherwise violating ECRA or applicable regulations, to ease collaborations and other engagement with foreign parties, including by some form of technology inversion.
The Department of Commerce, Bureau of Industry and Security on Nov. 19 published an Advance Notice of Proposed Rulemaking (ANPRM) on the “Review of Controls for Certain Emerging Technologies.” The ANPRM implements the Export Control Reform Act of 2018 and raises diverse legal, regulatory, policy, and commercial issues that cut across sectors and industries. Commerce seeks to advance national security goals without harming the United States’ capacity to lead in science, technology, engineering, and manufacturing. This Regulatory Update provides analysis of the ANPRM, the relevant legal framework, and considerations for commentators.
Hdeel Abdelhady briefed a delegation of officials from China on U.S. legal and policy developments in the areas of trade, investment, and technology ventures and transfers. The event, hosted by the International Incubator in Maryland, provided mutual learning opportunities.
Measures to curb foreign access to U.S. technology have taken and will likely take various forms that will cut across industries and legal disciplines. Among them, as discussed below, are restrictions on foreign access to and influence on U.S. technology through (1) foreign investment, (2) supply chain exclusions, (3) limits on participation in academic and other research, (4) legal or political curbs on U.S. technology access or transfers through third countries, and (5) countermeasures against foreign control of raw materials essential to technological manufacturing and innovation.
The ZTE case puts into focus the Trump Administration’s apparent strategy to use U.S. sanctions, along with anti-corruption and anti-money laundering laws, as trade war weapons, specifically as “economic tools” and “tools of economic diplomacy” that “can be important parts of broader strategies to deter, coerce, and constrain adversaries.”