MassPoint Legal and Strategy Advisory Blog

Sanctions

OFAC’s Expanded Sanctions Reporting Rules: Analysis and Public Comment

On June 21, the Office of Foreign Assets Control (OFAC) issued an interim final rule (IFR) substantially revising sanctions reporting regulations. The most significant amendment was to OFAC’s rejected transactions reporting rule, which now, for the first time, applies not just to U.S. financial institutions, but also to U.S. businesses, nonprofits, and individuals. The rule also appears to apply to foreign entities owned or controlled by U.S. persons. Public comments on the IFR are due by July 22, 2019.

Tech War

Huawei: Post-G20 Rundown of Legal Issues in Context

After talks with China’s president at the G20 summit in Japan, President Trump announced on June 29 that “he would allow” U.S. companies to continue to sell “product” to Huawei. The statement, construed by some as a “concession” or “reversal” of U.S. policy toward Huawei, has generated confusion and disagreement from China “hawks” in Congress and elsewhere. This rundown of Huawei legal and policy issues discusses the presidential statement, its lack of legal effect to date, its context, and why technology industry stakeholders need to understand the complete U.S.-China technology picture to navigate developments and mitigate risk.

Foreign Investment in the United States

Foreign Investment, National Security, and Personal Data: Grindr’s Perfect Storm

Is a dating app a national security asset? Yes, in some cases. Foreign investment in U.S. businesses that collect and maintain U.S. citizens’ sensitive personal data is subject to national security reviews by CFIUS. From social networking to financial services to healthcare to consumer retail, companies across sectors collect, maintain, and have access to the sensitive personal data of U.S. citizens. The implications of the personal data-national security nexus are potentially wide-ranging for foreign investment in U.S. businesses.

Anti-money laundering

Hdeel Abdelhady Appointed to ABA Task Force on Gatekeeper Regulation and the Profession

MassPoint’s Hdeel Abdelhady has been appointed to the American Bar Association’s Task Force on Gatekeeper Regulation and the Profession.

Rare Earth Elements china

MassPoint Legal and Strategy Advisory PLLC

China’s Rare Earth Exports: End Use and End User Controls Coming?

China might take a targeted approach to any restrictions on rare earth elements that echoes, or effectively duplicates, the approach of the United States, which is to control exports based on “end use” and “end user” where one or both conflict with or potentially undermine U.S. national security interests (which include technological leadership and economic security).

Sanctions

Hdeel Abdelhady on NPR: United States Ratchets Up Iran and North Korea Sanctions

MassPoint’s Hdeel Abdelhady spoke with NPR about the ratcheting up of U.S. sanctions, secondary sanctions, and the potential consequences of sanctions overuse. To learn more about the mechanics of U.S. sanctions, and particularly about the role of the American dollar, financial system, and economy in extending the global reach of U.S. sanctions, read Hdeel Abdelhady’s Reuters insight piece, Reimposed U.S. anti-Iran sanctions leverage American economic power.

Anti-money laundering

Bank Shareholders as Anti-Money Laundering Enforcers: Corporate Governance-AML Nexus

Two proxy advisors are urging Deutsche Bank’s shareholders to vote against directors and senior managers for AML compliance lapses. The advice is significant as it clearly connects anti-financial crime compliance to corporate governance by activating bank shareholders as powerful enforcers anti-money laundering expectations. If Deutsche’s shareholders heed the calls of proxy advisors and unseat members of the bank’s management for AML lapses, they will set a cautionary precedent for other publicly-owned banks. But even if Deutsche’s shareholders do not so vote, the proxy advice given by ISS and ECGS has communicated a clear message that bank anti-money laundering compliance is part and parcel of corporate governance and a measure of directors’ and senior officers’ overall performance.

Technology Regulation

Tech War: U.S. Whole-of-Government Approach to China is a Force Multiplier

The U.S. government has adopted and is implementing a “whole-of-government” strategy to counter China. The whole-of-government approach entails a range of legal and policy measures to curb China’s access to U.S. technology, by lawful and unlawful means. These measures include, but are not limited to, stricter curbs on foreign investment in U.S. technology; restrictions on exports of “emerging technologies” like artificial intelligence; exclusions of Chinese firms from U.S. government and private supply chains through company bans; prosecutions of intellectual property theft; measures to counter “academic espionage” in American academic and research institutions; and, indirectly, and, indirectly, sanctions enforcement.

Sanctions

Trade-Based Debt is Subject to Russia Sectoral Sanctions Prohibitions (Haverly Systems)

The Haverly case is instructive as it clarifies OFAC’s position, with respect to Haverly and likely more broadly, as to the meaning of “debt” under Directive 2, which prohibits, by U.S. persons and within the United States, dealings in “new debt” issued by parties that are listed on the OFAC-maintained Sectoral Sanctions Identifications List (SSIL) or not so listed but are owned 50% or more by one or more sanctioned parties.

Anti-money laundering

Anti-Corruption Enforcement is Globalized

As anti-corruption standards and enforcement practices become more uniform, cooperation among enforcement authorities will increase in frequency and effectiveness. In the FCPA enforcement context and in others, authorities have imposed record-setting fines, and likely will continue to do so with greater frequency, particularly where violations are egregious, widespread, or have broad impact. In such an environment, monetary penalties for avoidable violations may no longer be absorbable as the cost of doing business. As a matter of good business practice, companies of all sizes should take steps to strengthen compliance programs appropriately for their industries, organizational structures, home obligations, and the jurisdictions in which they do business.

United States China Law and Policy

Huawei, Questions About Ownership, and the Foreign Agents Registration Act

The United States has adopted a whole-of-government approach to counter China’s “economic aggression” or “economic espionage,” umbrella terms that encompass a range of conduct including IP theft, forced technology transfer, academic espionage, and influence operations in the United States. The whole-of-government approach illustrates that the most strategically significant and complex confrontation between the United States and China is not the “trade war.” Rather, the race to dominate future technologies like artificial intelligence and 5G underpins the most complex legal and policy issues between the two nations. The U.S.-China tech war, and the United States’ whole-of-government strategy, has put Chinese technology companies under the hot light of U.S. legal and political scrutiny. Companies like Huawei and ZTE, relative unknowns in the United States until recently, have found themselves on the wrong side of U.S. law enforcement.

Academic Research

Protect Our Universities Act Restricts Foreign Student Participation in “Sensitive” Academic Research

The “Protect Our Universities Act of 2019” is a a bill “to create a task force within the Department of Education to address the threat of foreign government influence and threats to academic research integrity on college campuses, and for other purposes.” Among other things, the Bill would restrict foreign student participation in federally funded academic research deemed “sensitive” to national security.

Banking Law & Regulation

OFAC Expanded General License for U.S. Persons to Transact in Certain Inherited and Other Property in Iran

Under amended Section 560.543 of the ISTR, individuals who are U.S. citizens and permanent residents[2] “are authorized to engage in transactions necessary and ordinarily incident to the sale of real and personal property in Iran and to transfer the proceeds to the United States,” but only if the real and personal property was (1) “acquired before the individual became a U.S. person” or (2) was “inherited from persons in Iran.

National Security Law

What Academia Should Know About the DOJ’s China Initiative

On national security grounds, the United States is developing and implementing a whole-of-government approach to maintain the country’s technological edge through legal and policy measures to restrict Chinese access to U.S. technology and intellectual property, including by: (1) limiting or prohibiting certain foreign investment and commercial transactions; (2) adopting export controls on emerging technologies; (3) instituting supply chain exclusions; (4) curbing participation in academic and other research; and (5) combating cyber intrusions and industrial and academic espionage.[2] Additionally, concerns about Chinese government influence have spurred proposals to regulate the activities of entities viewed as Chinese government influence operators.

United States China Law and Policy

Infographic: U.S.-China Trade and Policy Issues

This graphic depicts key issues between the United States and China, as identified by the United States as of January 26, 2019. This is not an exhaustive depiction, but captures key categories and sub-categories of Chinese state and private practices, state policies, and state structural characteristics that are the subject of U.S. government complaints (as raised from within and outside of the Trump Administration).

Critical Resources

Listen to Critical Minerals, National Security & Supply Chains: American Bar Association-MassPoint PLLC

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.

Critical Resources

Jan. 16 Event: Critical Minerals, National Security, and Supply Chains

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.

Business Ethics & Conduct

Trump’s Africa Strategy: Anti-Corruption Enforcement Focuses on Chinese Companies and Extractives Industries

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.

Higher Education Law

US-China Risks to American Academia Are So Real They Are Insurable

If there remain doubts that the U.S.-China trade war and technology war present real risks for U.S. colleges and universities, a recent report that a U.S. university has secured insurance against the risk of material reductions in Chinese student enrollment should put those doubts to bed. The risks are so real that they are insurable.

National Security Law

DOJ Initiative Takes on “Chinese Economic Espionage:” Legal Issues for Academia

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.

MassPoint Legal and Strategy Advisory PLLC

Hdeel Abdelhady Discussed Rule of Law in Space Exploration at Galloway Symposium

MassPoint’s Principal, Hdeel Abdelhady, presented on Rule of Law in the Exploration and Use of Outer Space at the annual Galloway Symposium on Critical Issues in Space Law. Ms. Abdelhady, along with her co-panelists, engaged in a comparative law discussion.

National Security Law

Fundamental Research Regulation, National Security, and Technological Competition

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.

Technology Transfer Regulation

Brain Drain: Emerging Technologies Export Controls Could Spur Tech Inversions

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.

Technology Export Control

BIS Rulemaking on Emerging Technologies Export Controls- Analysis

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.

Business Ethics & Conduct

Sovereign Wealth Funds: Governance & Risk for SWFs and Companies They Fund

Private companies that receive SWF and SOE investment, as well as the investors who arrange or co-invest with state-linked firms, should, when screening investments and assessing nonfinancial risk before and after the point of investment (and when additional investment is under consideration), the quality and risk inherent in the corporate structure and governance, as well as the business conduct controls of SWFs and SOEs, may affect them in the near- to longer term. In doing so, they should take a lesson from the PIF situation, post-Khashoggi.

Sanctions

Senate Bill Seeks Sanctions in Khashoggi Case, End to Yemen War

The Saudi Arabia Accountability and Yemen Act of 2018 seeks further sanctions for those responsible for the death of Jamal Khashoggi, including at the highest levels of the Saudi establishment, and an end to the war in Yemen. The Act adds a chapter to the unfolding story of Congress’ increasing sanctions activism, stemming from a lack of faith that the Trump Administration will enforce sanctions with fidelity to law and national policy.

International Trade Law

Hdeel Abdelhady Briefed Chinese Delegation on Trade, Investment & Tech Ventures

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.

Sanctions

American Economic Power Fuels Sanctions

America’s economic and financial heft facilitates the extraterritorial reach of U.S. sanctions and other law. For example, global transactions denominated in U.S. dollars and processed through the U.S. financial system create a jurisdictional nexus between the United States and foreign parties, property, and events.

Global Magnitsky Act

Global Magnitsky Sanctions FAQs

The Global Magnitsky Act and Global Magnitsky Sanctions (GMS) are in the public discourse as a result of recent events, such as the case of U.S.-based journalist Jamal Khashoggi and the imposition of Global Magnitsky Sanctions on two Turkish officials in August. To help the public understand the Global Magnitsky framework, MassPoint Legal and Strategy Advisory has published the Global Magnitsky Sanctions FAQs

Technology Regulation

Tech Wars: Restrictions on Foreign Access to U.S. Technology

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.

International Trade Law

U.S. Law as Trade War Weapon

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.”

Tech War

Legal and Reputation Risks in Technology Supply Chains

Some Congress members are lobbying the Administration to impose human rights sanctions on Chinese officials and companies responsible for or complicit in abuses against China’s Uighur Muslim minority and other minorities. Two companies named, Dahua Technology and Hikvision, are very large, China-based global firms that produce surveillance products and systems. The bottom line is that the tech industry should take note of the development (even if no sanctions are imposed), as it foreshadows the legal and reputation risk issues they will, without doubt, face in connection with tech-enabled abuses, privacy encroachments, and other conduct by consumers of tech products and services.

Technology Supply Chains

Critical Minerals: Where National Security, Trade and Environmental Laws Will Meet

Against the Trump Administration’s ideological backdrop, a range of conventional and unconventional trade, economic and other measures have been and likely will continue to be taken on “national security” grounds, including domestically. These include measures to increase domestic production of “critical minerals” (among them rare earth elements)–essential to the production of consumer electronics, electric vehicles, defense articles, medical devices, and other manufactured articles. Such actions can be seen on the horizon, if one connects the dots between national security authorities under trade laws, the Administration’s stated goals and actions favoring increased domestic mining of critical minerals, and environmental laws that contain national security/national defense exceptions and are viewed by the Administration and extractives industry interests as prohibitive to domestic production of critical minerals and commercially viable terms.

Sanctions

Global Magnitsky: The Swiss Army Knife of Sanctions

The Global Magnitsky Sanctions apply worldwide, without any requirement of a jurisdictional nexus with the United States. They define corruption broadly enough to capture a wide range of conduct and persons. The sanctions target “serious human rights abuse,” but do not define the term. Moreover, the sanctions are readily deployable. No tailored legislation, executive order, or other administrative process—other than a sanctions determination by the Secretary of Treasury in consultation with the Secretary of State—is required to impose sanctions anywhere, anytime. Given their global reach, substantive breadth, and wide applicability, the Global Magnitsky Sanctions have distinct utility value as they can be readily employed for multiple legal, policy and strategic objectives. They are the Swiss Army Knife of sanctions. To date, 78 individuals and entities have been sanctioned for corruption and human rights abuses. The most recent of these sanctions actions, against Turkey, has triggered speculation as to its motives and objectives. This is discussed below, as are some of the provisions that suggest the Global Magnitsky Sanctions were formulated for sweeping applicability and enforcement latitude.

Sanctions

United States Sanctions High-Ranking Turkish Officials Under Global Magnitsky

Today the United States took the extraordinary step of imposing sanctions on Turkey’s Minister of Justice Abdulhamit Gul and Minister of Interior Suleyman Soylu. The sanctions were imposed under the Global Magnitsky Sanctions program, promulgated by Executive Order 13818 pursuant to the Global Magnitsky Act of 2016 and the International Emergency Economic Powers Act, among other legal authorities.

Critical Resources

After Cobalt Heist, Review Minerals Transit, Storage and Insurance Practices

At this point, one or few reported new incidents of cobalt (or other critical minerals) thefts/security risks are insufficient to make any reasonable predictions as to what action would be reasonable. However, news of such incidents should be closely monitored by suppliers/exporters, buyers/importers, finance intermediaries, and logistics services providers. Related storage, transit and insurance practices and terms should be noted for review if and when circumstances appear to warrant such action.

Critical Resources

A Localized Approach to Corruption in Afghanistan’s Mining Sector

Thinking beyond the parameters of standard “international development” and industry playbooks, the lack of progress (or, in some cases, regression) in developing Afghanistan’s mining sector should induce interested government, industry and nongovernmental actors to consider if and how laws, policies and technical assistance can be formulated, modified and implemented in ways that might enhance their effectiveness in practice, rather than just on paper. Afghanistan, as is well known, is a Muslim majority nation in which Islamic law (as locally interpreted and implemented formally and informally) plays a significant role. Islamic law (Shari’ah), provides rules and precedents applicable not only to family matters and ritual worship, but also to business transactions, public governance, market regulation, and limitations on government dominion over private property. in these areas, and others, Islamic law and historical practices provide rules and precedents applicable to the regulation, administration and conduct of mining and other extractives businesses. These laws and precedents are just as robust, and more so in some cases, as international and foreign laws and standards.

Anti-Corruption Compliance

Russia Summit Could Spur Congressional Activism on Sanctions, Trade

The meeting in Helsinki between the U.S. and Russian presidents has (as presumably everyone knows) sparked strong reactions in the United States, particularly in response to the U.S. President’s performance. Beyond the politics of the moment and its aftermath, the Helsinki meeting could have legal consequences, should Congress move to insert itself, beyond its standard law-making and oversight role, in sanctions and trade matters. And not just with respect to Russia. There are a number of ways that Congress can play a greater role in sanctions and trade. Such Congressional involvement, if it materializes, would likely be designed to constrain the President, such as by restricting his ability to lift, not impose or modify sanctions through Executive action.

Iran Sanctions

Personal Remittances and Proceeds of Inheritances from Iran After U.S. Withdrawal from Iran Deal

For U.S. persons seeking to engage in permitted noncommercial, personal remittance or inheritance-related transactions, the higher risk sensitivity of some third country (and U.S.-based) financial institutions may complicate (or thwart in some cases), legal transactions. In light of this, persons seeking to engage in such legal transactions in the post-U.S. JCPOA withdrawal environment should exercise extra care in initiating and executing legal transfers with third country financial institutions.

Anti-Corruption Compliance

Canary in the Cobalt Mine: Glencore Corruption Probe May Not Be a One Off

The U.S. arm of Glencore, the global commodities trading and mining giant, has been served a subpoena by the U.S. Department of Justice, according to news accounts. The DOJ’s subpoena reportedly seeks documents and information pertaining Glencore’s business in the Democratic Republic of Congo (DRC), Nigeria and Venezuela to assess potential violations of U.S. anti-money laundering laws and the Foreign Corrupt Practices Act (FCPA), the principal U.S. law essentially prohibiting the bribery of foreign officials for business gain by U.S. companies and others subject to United States’ jurisdiction (broadly construed and applied).The Glencore subpoena may not be a one-off and it should be viewed– at least for risk assessment and compliance improvement purposes– as potentially part of a larger U.S. strategy to proactively target corruption and, by extension, money laundering, in Africa and Africa’s extractives industries. (The wider context is that the Trump Administration views U.S. anti-corruption, anti-money laundering and sanctions laws and their enforcement as “tools of economic diplomacy”, including to advance trade and other policy objectives).

Global Magnitsky Act

Global Magnitsky Regulations: U.S. Multinationals and Dual Citizens Have Heightened Sanctions Exposure

U.S. multinational companies/entities as well as dual citizens/nationals should understand their heightened sanctions exposure under the Global Magnitsky Act, EO 13,818 and the GloMag Regulations. Multinational companies/entities would be well-advised to update their risk-based compliance programs and educate their relevant personnel to make compliance more likely, including by avoiding inadvertent violations of the Global Magnitsky Act, EO 13,818 and the GloMag Regs.

Tech War

ZTE: Was the Export Ban the Right Penalty?

The sentiments expressed by Senator Rubio and others reflect commercial, competition, policy, and strategic concerns held by business, policy makers, defense and national security officials, and others about China and Chinese firms like ZTE and Huawei. But when raised in the context of and as a justification for a specific legal enforcement action, the sentiments blur the lines between what should primarily be an enforcement based on facts and applicable laws, rather than an instrument for advancing wider policy objectives that are not specifically advanced by the laws applicable to the conduct for which ZTE was penalized. And, while Secretary Ross’ stated rationale to impose the harsher penalty to change ZTE’s behavior may have been sound, the recommendation of the career professionals with expertise in sanctions and export controls enforcement should, perhaps, have carried the day. Secretary Ross’ description of the process leading to the export ban and the mess that has followed it give more reason to ask whether, in the first place, the export ban was the appropriate remedy as a matter of applicable laws and the objectives served by them.

MassPoint Legal and Strategy Advisory PLLC

Hdeel Abdelhady Re-appointed Senior Adviser to American Bar Assn Middle East Committee

MassPoint Legal and Strategy Advisory is pleased to announce that Hdeel Abdelhady has been re-appointed to an additional one-year term as a Senior Adviser to the American Bar Association Middle East Committee, part of the ABA Section of International Law. A long-time member and leader of the ABA, Ms. Abdelhady will commence her 2018-2019 term in August 2018. Ms. Abdelhady, who was a Co-Chair of the Middle East Committee for three years until 2017, currently serves as a Senior Adviser to the Committee. In addition, Ms. Abdelhady is the ABA’s Liaison to the Dubai International Financial Centre Courts (DIFC Courts) and serves on the Board of the ABA Rule of Law Initiative (ROLI) Middle East and North Africa Council (ROLI MENA Council).

Global Magnitsky Act

Global Magnitsky Sanctions “a Central Tool of U.S. Foreign Policy”

United States Lobbies G-7 Nations to Adopt Global Magnitsky Sanctions, Now a “Central Tool of…

Anti-Corruption Compliance

The Value of Integrating News Awareness into Corporate Compliance and Risk Management

The case of Michael Cohen, “personal lawyer” to the U.S. President, continues to yield rich legal, compliance and risk management lessons for a growing group that includes U.S. and foreign companies, banks, lobbyists, government officials, and lawyers. Recent developments in the Cohen matter highlight how news awareness can enhance compliance and risk management for companies and others. Unlike AT&T and Novartis, most companies will not find themselves entangled in headline news of national importance, but enough of them are likely to get caught flat-footed by news about them or their business partners and peers (such as in the same industry, where news of one company’s bad behavior can lead law enforcement authorities to scrutinize peer companies in industry sweeps).

International Trade Law

Decoding Trump on Trade: Links Between Economic/Trade Issues and Military Security

Other of Mr. Trump’s statements, including dating back decades, hint that he views trade as “unfair” when other nations fail to compensate the United States for providing the secure conditions under which they trade and prosper. In 1987, Citizen Trump took out full page ads in three major newspapers criticizing U.S. “foreign defense policy” for its lack of “backbone.” Why, asked Mr. Trump, were foreign nations like Japan “not paying the United States for the human lives and billions of dollars we are losing to protect their interests?” In a 1988 interview with Oprah Winfrey, Mr. Trump wondered why Kuwait, “where the poorest people live like kings,” was not paying the United States “25 percent of what they’re making” from oil sales when “we make it possible for them to sell their oil.” More recently, to extract trade concessions, the President reminded South Korea of its reliance on the United States for its security.

United States China Law and Policy

U.S.-China Trade and Tech War on Three Fronts

Much of the talk of trade war between the United States and China, and perhaps other countries, has focused on traditional trade measures and counter-measures like tariffs that strike at the core of international trade: most basically, the movement of goods and services across international borders. But there are two additional fronts of a U.S.-China trade war (thus far): intellectual property and the use of U.S. sanctions and other laws to “coerce and deter” economic rivals like China.

Tech War

House Bill “Blocks Bailout” of ZTE After Export Ban

On May 17, the House Appropriations Committee unanimously approved a measure to block the Commerce Department from using appropriated funds to alter the export ban (i.e., the “denial order”) that the agency activated against ZTE on April 15, 2018. The ZTE measure was approved as an amendment to the fiscal year 2019 bill funding the Departments of Commerce and Justice, Science, and Related Agencies (“Commerce Appropriations Bill”), which was approved by the Appropriations Committee on May 17.

Banking Law & Regulation

Hdeel Abdelhady Discussed the Michael Cohen Matter on MSNBC

Hdeel Abdelhady joined MSNBC’s Ari Melber on May 9 to discuss developments in the Michael Cohen case, including Michael Avenatti’s report purporting to contain details of Cohen’s transactions with Novartis, AT&T, Viktor Vekselberg and others. Watch the segment here: MassPoint’s Hdeel Abdelhady on The Beat With Ari Melber

Global Magnitsky Act

Trump Administration Supercharged Global Magnitsky Corruption and Human Rights Sanctions

Beyond the parameters of the Global Magnitsky Act, EO 13818 markedly enlarges the range of sanctionable conduct and persons. The differences between the language of EO 13818 and the Global Magnitsky Act are substantive and significant. In several instances, EO 13818 expands sanctions by omitting the Act’s qualifying language, adding new bases for sanctions, and/or leaving key terms undefined. Key instances of EO 13818’s broad and/or uncertain language are discussed below.

Iran Sanctions

Iran Sanctions Update: U.S. Withdrawal From JCPOA

The United States today unilaterally withdrew from the Iran Nuclear Deal (the Joint Comprehensive Plan of Action (JCPOA)). The U.S. Treasury Department and the White House have announced that those sanctions that were lifted as part of the JCPOA framework will, as expected, be re-imposed. The Office of Foreign Assets Control at Treasury (OFAC) announced today that it will institute 90-day and 180-day “wind down” periods, after which previously lifted U.S. sanctions will again take effect. For example: Starting August 7, 2018, the import to the United States of Iranian carpets and certain foodstuffs will be prohibited, as will the export and re-export to Iran of commercial passenger aircraft and related parts and services. Starting on November 5, 2018, foreign financial institutions will be subject to U.S. sanctions for transactions with the Iran Central Bank and designated Iranian financial institutions.

Anti-Corruption Compliance

Trump Administration Targets Chinese Dominance, Corruption in Africa

Notably, in the two pages of the NSS that are devoted to the National Security Strategy in the Africa context, none of Africa’s 54 nations are mentioned, but China is named twice. The NSS notes with concern China’s “expanding . . . economic military presence in Africa, growing from a small investor in the continent two decades ago into Africa’s largest trading partner today.” China’s methods and influence in Africa are described unflatteringly. “Some Chinese practices,” the NSS states bluntly, “undermine Africa’s long-term development by corrupting elites, dominating extractive industries, and locking countries into unsustainable and opaque debts and commitments.”

Banking Law & Regulation

The President’s “Personal Lawyer,” a “Hush” Payment, and a Bank Suspicious Activity Report

Following reports this week that the FBI executed search warrants at Cohen’s law offices, hotel room and home and seized “business records, emails and documents related to several topics, including a payment to” Stormy Daniels, the Wall Street Journal revisited the Cohen-linked Suspicious Activity Report, writing that First Republic Bank had “conducted its own investigation” of the Stormy Daniels transaction “after receiving the subpoena from the authorities.”

From a legal perspective, these and similar news reports are striking for the legal question that they raise: How did the existence of the Suspicious Activity Report become public? By law, banks and certain other financial institutions are required to have in place systems to detect and deter money laundering, terrorism financing and other financial crime. Banks and certain other financial institutions are required by law to file Suspicious Activity Reports with respect to certain criminal violations or where a transaction appears to have no lawful purpose, is inconsistent with a customer’s ordinary behavior and/or is in other ways suspicious (as indicated in a relevant section of the FFIEC Bank Secrecy Act manual below).

Global Magnitsky Act

United States Directly Sanctions Foreign Government Officials for Corruption

Magnitsky Laws and Sanctions Series, No. 4 | April 6, 2018 | By Hdeel Abdelhady Departing…

Banking Law & Regulation

FinCEN Guidance on Customer Due Diligence (CDD) Rule 2018

The Financial Crimes Enforcement Network (FinCEN) on April 3, 2018 published guidance on the Customer Due Diligence Requirements for Financial Institutions rule (the “CDD Rule) that will come into effect on May 11, 2018. FinCEN’s CDD Guidance, in the form of frequently asked questions, is comprised of 36 questions and answers covering a range of issues, from the scope of due diligence up the ownership chain of legal entities to due diligence requirements applicable (or not) to foreign banks.

Global Magnitsky Act

U.S. Multinationals, Dual Citizens May Have Greater Magnitsky Sanctions Exposure

The Global Magnitsky Act defines a “foreign person” as “any citizen or national of a foreign state (including any such individual who is also a citizen or national of the United States), or any entity not organized solely under the laws of the United States or existing solely in the United States.” Accordingly, under the Global Magnitsky Act, individuals who are dual (or more) nationals and companies that are organized under U.S. law(s) and foreign law(s) or exist (e.g., are present, authorized to conduct business) in the United States and one or more foreign jurisdictions, like “foreign persons” completely lacking U.S. status, are apparently subject to sanctions for committing or facilitating sanctionable corrupt acts and human rights abuses. Thus, these “U.S. Persons,” when regarded as “foreign persons” under the Global Magnitsky Act, have additional sanctions exposure that would not apply to, for example, individuals holding only U.S. citizenship or companies organized only under U.S. law(s) and existing only in the United States.

Global Magnitsky Act

From Sergei Magnitsky to Global Magnitsky: United States Asserts Universal Jurisdiction Over Corruption and Human Rights Abuses

As the above description indicates, the Sergei Magnitsky Act targets persons and places tied to specific events that occurred in one country. Moreover, the Sergei Magnitsky Act can be read to have been adopted or operate as an alternative or last recourse for justice and accountability, following Congress’ findings that there was a denial of “any justice or legal remedies” to Mr. Magnitsky by “all state bodies of the Russian Federation” and “impunity since his death of state officials.” In contrast, the Global Magnitsky Act contains no analogous Congressional findings, nor does it expressly state or imply that it is a last or alternative resort where adequate legal processes to adjudicate corruption or human rights abuses are unavailable in foreign countries where relevant events took place or parties are located, or before foreign tribunals to which relevant states have submitted to jurisdiction. Instead, the Global Magnitsky Act’s default position is the applicability of U.S. sanctions (supported by “credible evidence”) without the requirement of a jurisdictional nexus with the United States. Accordingly, the Global Magnitsky Act asserts U.S. universal jurisdiction over the corrupt acts and human rights abuses it targets. EO 13818 goes much further.

Global Magnitsky Act

U.S. Magnitsky Sanctions Are a Powerful Weapon Against Corruption and Human Rights Abuse

EO 13818 directly targets foreign government officials and private parties who commit or enable human rights abuses and certain corrupt acts. The Order also employs extraordinary theories of liability. For example, EO 13818 holds current and former “leaders” of foreign entities (government and private) strictly and vicariously liable—and thus sanctionable—for the corrupt acts, during a leader’s tenure, of their entities. The Order also imputes the sanctioned status of a blocked private or government entity to its current or former “leaders,” if the entity was blocked “as a result of activities related to the leader’s or official’s tenure.” Additionally, EO 13818 treats as a corrupt act the transfer or facilitation of the transfer of corrupt proceeds by current or former foreign government officials and “persons acting for or on their behalf.” These three bases for liability, among others, are unique to EO 13818—they are not provided for by the Global Magnitsky Act.

Iran Sanctions

Hostility Toward Iran Nuclear Deal May Have Chilling Effect on Legal Transactions Under U.S. Sanctions

The prospect of increasingly hostile policy and legal actions toward Iran may be enough to thwart or make more difficult Iran-related transactions that are (and might remain) legal. Parties planning to engage in such legal Iran-related transactions should take note and, if appropriate, action ahead of any changes in law or adjustments in Iran-related risk-assessments by banks and individual and commercial parties.

Islamic Law

Hdeel Abdelhady Spoke on Islamic Finance at Harvard Law School

MassPoint’s Founder and Principal, Hdeel Abdelhady, will speak at a program on Islamic Finance at Harvard Law School. Ms. Abdelhady, who has acted as legal counsel to financial institutions, companies, and non-profit organizations on Islamic Finance, banking, and governance matters, teaches a course in Transactional Islamic Law at The George Washington University Law School in Washington, D.C. The program, entitled “Islamic Finance: Principles and Strategies,” will take place on March 6, 2018 at the Harvard Law School in Cambridge, Massachusetts. Program information is available via Harvard Law School.

Banking Law & Regulation

Ukraine/Russia Sanctions: OFAC Authorizes Derivatives Linked to Prohibited Debt and Equity Under OFAC Directives 1, 2 or 3

As discussed in an earlier MassPoint Business Update on OFAC Directive 1, it was expected that OFAC would issue, by November 28, 2017, a general license authorizing derivative transactions in prohibited debt and equity (see table below), consistent with the debt maturity limitations imposed by CAATSA. General License 1B does not authorize primary transactions by U.S. persons (wherever located) or in the United States in assets subject to the prohibitions of Directives 1, 2, or 3.

MassPoint Legal and Strategy Advisory PLLC

MassPoint Named “Corporate Law Firm of the Year” USA in Finance Monthly Global Awards 2017

MassPoint Legal and Strategy Advisory PLLC (“MassPoint PLLC“), a boutique Washington. D.C. law and strategy firm, was named 2017 Finance Monthly’s Global Awards “Corporate Law Firm of the Year” for the United States.Finance Monthly is a “global publication delivering news, comment and analysis to those at the centre of the corporate sector.” “The Finance Monthly Global Awards recognise and commend financial organisations and advisors worldwide who have performed in the highest level possible and celebrate the success, innovation and quality of firms working in, and with, the financial and legal sectors across the globe.”

Sanctions

Hdeel Abdelhady to Speak on Managing Money Laundering, Trade Sanctions, and Corruption Risks

MassPoint’s Founder and Principal, Hdeel Abdelhady, will speak at a program on managing money laundering, trade sanctions, and corruption risks in business. The program, entitled “Know Your Business Partners: A Must to Managing Money Laundering, Trade Sanctions, and Corruption Risks,” will take place on November 17, 2017 in Washington, D.C. at the American Bar Association Business Law Section’s Fall 2017 Meeting.

Sanctions

OFAC DIRECTIVE 1 AS AMENDED SEPTEMBER 29, 2017

As required by the Countering Russian Influence in Europe and Eurasia Act of 2017 (CRIEEA), the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) on September 29, 2017 amended and reissued OFAC Directive 1 (Directive 1). As amended, Directive 1 continues to prohibit certain “new” debt, equity, and related transactions involving entities subject to U.S. Sectoral Sanctions targeting Russia’s financial services sector. This Business Update discusses the background to and mechanics of Directive 1 as amended and reissued.

Banking Law & Regulation

Banks, Credit Unions and Other Financial Insitutions as Deputized Law Enforcement

The logic and law enforcement value of imposing anti-financial crime obligations on financial intermediaries are clear. Nevertheless, a reassessment is now appropriate, particularly given (1) increasing legal and regulatory demands on financial intermediaries; (2) the exclusion, through “derisking,” from the financial system of small and medium businesses (SMEs), nonprofit organizations, money services businesses (MSBs), and correspondent relationship-dependent banks; and, (3) overarching questions as to whether the financial and administrative costs of compliance within the current legal framework—generally or at specific points—yield commensurate law enforcement benefits without unduly harming the legitimate interests of individuals, businesses and other financial system stakeholders.

Sanctions

Hdeel Abdelhady Discussed the NYDFS Habib Bank Enforcement Action

MassPoint’s Founder and Principal, Hdeel Abdelhady, discussed the legal significance and potential commercial implications of the NYDFS’ enforcement action against Habib Bank at a time of correspondent banking derisking.

Islamic Law

Dana Gas Sukuk Governing Law and Jurisdiction

This post discusses these issues in Dana Gas sukuk matter and offers some observations and lessons that can be drawn from the governing law and forum selection questions raised by the Dana Gas sukuk matter. As this post entails post hoc discussion of the Dana Gas sukuk offering based on publicly available information, there is an element (or more) of Monday morning quarterbacking, and this should be borne in mind. Nevertheless, the general observations and potential lessons—which are not unique to the Dana Gas sukuk or Islamic transactions—should be read for their generality.

Corporate Governance

Dana Gas Deems its Own Sukuk Unlawful: Parsing the Dana Gas Statement

Dana Gas PJSC, the Sharjah, UAE-based gas producer, has unilaterally declared “unlawful” sukuk[2] instruments issued by the company in 2013 [3] (through, as issuer, Dana Gas Sukuk Limited, a Jersey public company with limited liability). This post discusses some of the Shari’ah, UAE law, and factual issues triggered by the Dana Gas statement on the unlawfulness of its sukuk.

Islamic Banking & Finance

Dana Gas Declares its Own Sukuk “Unlawful”: Revisiting The Investment Dar Case

Dana Gas’ move to halt its obligations under the sukuk terms on the grounds that the instruments are unlawful under Islamic law triggers many issues for discussion, including: (1) the legal and tactical soundness of its actions, (2) implications for the sukuk market and Islamic finance generally, and (3) the real and perceived quality of Shari’ah governance (both with respect to the sukuk at issue and sukuk and Islamic finance generally). This is not the first time that an Islamic instrument has been deemed unlawful by the originating party in an effort to avoid payment obligations. Years ago, an Islamic financial institution,The Investment Dar, asserted in an English court that a wakalah investment product that it offered and managed was not Shari’ah compliant and therefore unenforceable.

Doing Business in the United States

U.S. Senators Raise National Security Concerns About Foreign Investment in U.S. Real Estate

On May 17, 2017, U.S. Senators Ron Wyden (D-OR), Claire McCaskill (D-MO), and Sherrod Brown (D-OH)—respectively ranking members of the Senate Finance; Homeland Security and Government Affairs; and Banking, Housing, and Urban Affairs Committees of the U.S. Senate—asked the Government Accountability Office (GAO) to review the approach taken by the Committee on Foreign Investment in the United States (CFIUS) to foreign investment in U.S. real estate and to “assess whether and how CFIUS addresses the full range of national security challenges such transactions may pose.” (The Senators’ letter to the GAO is below). Specifically, the Senators have asked the GAO to examine a number of issues aimed at assessing the extent to which applicable regulations and the CFIUS process capture real estate transactions, the percentage of foreign acquisitions of U.S. real estate that have “filed” for CFIUS review, and the information and processes used by CFIUS to assess national security issues raised by foreign acquisitions of U.S. real estate.

Sanctions

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

The OBOR, even if partially successful, would, as many analysts and commentators have noted, alter the global trade landscape, if not “shake up” the global economic order in place since the end of World War II. Less discussed (except, for example, in this 2015 MassPoint Occasional Note) is one likely secondary effect of the OBOR and other trade and finance initiatives that are not centered on the U.S. dollar or the Bretton Woods system: the likely curtailment of the global reach of U.S. law.

Doing Business in Emerging Markets

Hdeel Abdelhady to Speak on Emerging Markets Social Impact Investment at NYU Law’s Grunin Center

MassPoint News
Hdeel Abdelhady is due to speak about planning for and managing uncertainty in social impact investment, particularly in emerging markets. Ms. Abdelhady, who is MassPoint’s Founder and Principal, has 15 years of experience in transactions, disputes, and regulatory matters in and involving emerging and developing markets in Africa, Asia, the Middle East, and Latin America.

MassPoint Legal and Strategy Advisory PLLC

Hdeel Abdelhady Appointed ABA Liaison to Dubai International Financial Centre Courts (DIFC Courts)

Hdeel Abdelhady has been appointed to serve as the American Bar Association (ABA) Section of International Law’s Liaison to the Dubai International Financial Centre Courts (DIFC Courts). Ms. Abdelhady, who is MassPoint’s Founder and Principal, has lived and worked in Dubai and previously worked in the DIFC and collaborated with DIFC entities. Ms. Abdelhady currently serves as a Co-Chair of the ABA Section of International Law’s Middle East Committee, which she has led for three years as a Co-Chair. She also serves on the Board of the American Bar Association Rule of Law Initiative’s Middle East and North Africa Council and as the ABA Section of International Law’s Liaison to the Organisation for Economic Co-operation and Development (OECD).

Business Ethics & Conduct

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

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, and the private sector. Five legal and business issues and dynamics to watch in 2017 are highlighted here.

Sanctions

Do State Regulators Have Authority to Enforce OFAC Sanctions?

The enforcement of OFAC-administered sanctions by a state agency—even against banks by a banking regulator operating in a dual banking system—raises fundamental constitutional and other legal questions. Chief among them is the overarching question of whether U.S. states have authority to directly or effectively enforce OFAC-administered sanctions, particularly independently and prior to enforcement by competent federal authorities—namely OFAC. This question and some of the legal issues and policy and practical considerations appertaining to it are discussed in detail in a forthcoming publication. This document provides a summary preview of some of the key legal issues discussed in that publication. Additional summary previews may be provided separately.

Corporate Governance

Who’s Who Legal Recognizes Hdeel Abdelhady for Corporate: M&A and Governance

May 2016 Who’s Who Legal has recognized Hdeel Abdelhady for Corporate: M&A and Governance, in its…

Critical Resources

Nile Water Dispute: Egypt, Ethiopia and The Grand Renaissance Dam

Hdeel Abdelhady was a guest on WVON Radio Chicago’s African Diaspora Today. She and fellow guest Dr. John Mbaku of the Brookings Institution took part in an engaging discussion of the Grand Ethiopian Renaissance Dam, the Egyptian and Ethiopian positions, and related issues.