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Hdeel Abdelhady Principal Attorney Email Tel: +1 202 630 2512   Connect Twitter Linkedin Twitter Twitter Biography Representative Experience What Clients Have Said Admissions Appointments & Honors Education News Biography Hdeel Abdelhady brings to the table a unique blend of transactional and regulatory/compliance skills honed in independent and large firm practice, and as in-house  secondment counsel to U.S. and foreign banks. Noted for her commitment to clients, Hdeel works to understand clients’ business and goals, and takes a strategic, commercially-aware approach to her representation of clients. Hdeel has acted as lead transactional and regulatory counsel to U.S. and foreign banks, sovereign entities, companies and nonprofits. On their behalf, Hdeel has negotiated, drafted and executed conventional and Islamic finance, corporate, and commercial transactions; advised U.S. and foreign banks, money services businesses, companies, and non-profits on sanctions, anti-corruption, anti-money laundering, and counter-terrorism financing matters, including providing client training and drafting compliance programs; and structured and advised on bespoke investments and transactions combining multiple objectives and legal systems. In addition, Hdeel has represented U.S. and foreign companies in disputes opposite sovereigns and private parties. Her matters have involved the United States, the Middle East, Africa, Asia, and Europe. Having handled transactions, compliance matters and disputes, Hdeel understands how transactions are put together, and why they fall apart. She is well-positioned to identify and manage legal and related risk. Hdeel has since 2004 served as a Professorial Lecturer in Law at The George Washington University Law School, where she currently teaches Regulation of Foreign Access to U.S. Technology and Transactional Islamic Law. She has also taught an American legal skills course for international graduate students from around the world. Hdeel has published extensively. In addition to her MassPoint publications, Hdeel’s writings have been published in, among other publications, the World Bank Legal Review, Butterworths Journal of International Banking and Financial Law, the Sustainable Law and Development Journal, Law360, Reuters, and Ahram Online. Representative Experience Transactions
  • Crafted bespoke framework for agricultural/food security investment combining conventional asset management standards and Islamic transactional frameworks on behalf of a government entity.
  • Developed endowment structure, on behalf of a Middle East-based NGO backed by the UAE government and a multilateral development bank, combining Islamic waqf and common law trust structures with legal and governance elements comporting with Shari’ah and civil law requirements, including anti-money laundering and counter-terrorism financing compliance.
  • Advised bank on lease financing documentation and best practices and drafted suite of lease financing documentation for use in transactions amenable to standardization.
Export Controls/Technology Regulation/U.S.-China Tech War
  • Advise U.S. and foreign companies on U.S. export controls and related measures as applicable (e.g., sanctions).
  • Advise U.S. and foreign parties on existing and emerging U.S. laws and regulations applicable to technology transfer, investment, and commerce with cross-border elements, including foreign investment in the United States (CFIUS/FIRRMA), export controls, sanctions, research-related regulations.
  • Counseled university compliance personnel on emerging U.S. laws, regulations, and policies restricting foreign participation in certain STEM research and related policy issues around “academic espionage” and U.S.-China developments around emerging technologies.
  • Developed and teach one-of-a-kind law school course on the regulation of foreign access to U.S. technology.
Sanctions Counseling and Compliance
  • Advise U.S. and foreign financial services providers, sovereign-affiliated entities, companies, and individuals on compliance with U.S. sanctions, including Ukraine-related Sectoral Sanctions on Russia, Iranian Transactions and Assets Control Sanctions, Venezuela Sanctions, Global Magnitsky Sanctions, Sudan Sanctions, and Rough Diamond Trade Controls.
  • Advise U.S. persons on transactions and transfers related to inherited property pursuant to OFAC-administered Iranian Transactions and Sanctions Regulations (ITSR).
  • Advise on and draft OFAC license applications.
  • Advise on extraterritorial jurisdiction and effects of U.S. unilateral sanctions as to non-U.S. persons and transactions.
Banking Regulation and Compliance/AML/CFT
  • Advise foreign entities on establishment of foreign banking organizations in the United States and related regulatory requirements at the federal and state levels.
  • Advised on the establishment of state- and federal-chartered banks.
  • Advised prospective bank incorporator/principals on non-bank structures/entities available under U.S. law to conduct international banking.
  • Advised U.S. and foreign banks and prospective banking market entrants on AML, CFT, and related domestic and international standards applicable to international and correspondent banking.
  • Represented entity in early stages of establishing a money services business in the District of Columbia.
  • Drafted AML, CFT, sanctions, and anti-corruption (including FCPA) compliance programs for U.S. and foreign entities, some including safeguards rules  applicable to “financial institutions” (FTC).
Nonprofit Board Service/Pro Bono
  • Served on the board of directors of a Gates Foundation-supported Washington, D.C.-based nonprofit organization engaged in human, civil, and women’s rights advocacy and legal scholarship; advised entity on contractual and governance matters and drafted strategic development plan ratified by the board.
  • Served as a special advisor to the board of directors of a Washington, D.C. nonprofit organization engaged in rule of law advocacy and advised the organization on the establishment and maintenance of its tax-exempt  status and governance.
  • Represented a Washington, D.C. church in a mortgage refinancing transaction opposite a DC Metro Area bank.
What Clients Have Said “Hdeel Abdelhady’s standard of work and attention to detail are excellent, resulting in consistent output of very high quality.” -Senior Counsel, Global Bank
“Hdeel Abdelhady developed a good working relationship with the team in a short period of time which resulted in an open dialogue and free flow of ideas.” -Senior In-House Counsel, Europe-Based Global Bank
“Hdeel Abdelhady displays an obvious affinity for her clients.” -Head of Legal, International Bank Admissions
  • District of Columbia
  • Commonwealth of Virginia
  • State of Maryland
  • United States Court of Appeals for the Fourth Circuit
Appointments & Honors Current Appointments 
  • Professorial Lecturer in Law, The George Washington University Law School (courses: Transactional Islamic Law and Regulation of Foreign Access to U.S. Technology)
  • Fellow of the American Bar Foundation
  • Member, American Bar Association Task Force on Gatekeeper Regulation and the Profession
  • Member, Board of Directors, Association of Certified Financial Crime Specialists (ACFCS) Washington DC Chapter
  • Senior Advisor, Middle East Committee, American Bar Association Section of International Law (former Co-Chair)
  • Liaison to the Dubai International Financial Centre Courts, American Bar Association Section of International Law (2017-2018)
  • Member, American Bar Association Rule of Law Initiative (ROLI) Middle East and North Africa Council
Recent Honors 
  • MassPoint PLLC, Corporate Law Firm of the Year, USA, Finance Monthly Global Awards
  • Corporate: M&A and Governance, Who’s Who Legal 2016 
Previous Appointments 
  • Liaison to the United Nations Commission on International Trade Law (UNCITRAL), American Bar Association Section of International Law
  • Member, World Bank Insolvency and Creditor/Debtor Regimes Task Force
  • Co-Chair, ABA Middle East Committee
Education JD, The George Washington University Law School (2002) Activities and Awards
  • Member, Moot Court Executive Board
  • Chairwoman, Van Vleck Constitutional Law Moot Court Competition
  • “Best Overall Competitor” and “Best Oralist” awards, Van Vleck Constitutional Law Moot Court competition
  • Class of 2002 Clinics Volunteer Service Award
  • President, Street Law Student Association
  • Law Clerk, U.S. Department of Justice, Civil Rights Division
  • Judicial Intern, Superior Court of the District of Columbia
BA; Political Science, History (Middle East and Africa), University of Pittsburgh (1997)  News

News Quotes, Appearances, Articles

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Speaking Engagements & Publications

Select Speaking Engagements International Trade & Sanctions Foreign Investment in the United States Critical Resources Law & Strategy (Minerals, Metals, Agriculture) Governance, Business Conduct, ESG Anti-Money Laundering/Banking/Correspondent Banking Anti-Corruption (Politically Exposed Persons and State-Owned Enterprises) Global Magnitsky Sanctions/Global Magnitsky Act Islamic Banking, Finance & Philanthropy International Law & Business, Rule of Law, Misc.
  • World Bank Group Can be Sued for “Commercial Activity” Says SCOTUS (Jam/IFC), MassPoint PLLC, March 2019.
  • ISIS’ Islamic Stagecraft,” Ahram Weekly, October 2017 (or read the reader-friendly PDF here).
  • Editor, 2015 Middle East Legal Developments in Review (Advance Copy), American Bar Association Section of International Law Middle East Committee.
  • Harmonization of Global Sales Law, UNCITRAL Asia Pacific Incheon Spring Conferences, Incheon, South Korea, June 2015.
  • The CISG in Foreign Legal Systems (or not), Speaker, United Nations Commission on International Trade Law – Georgetown Law Global Sales Law Conference: The CISG at 35: Challenges Today, Washington, D.C., January 2o15.
  • Egypt’s New Investment Law Misses the Mark, Ahram Online, June 4, 2014.
  • The Selective Piety of Egypt’s Islamists, Ahram Online, June 23, 2013.
  • The Real Revolution Underway in Egypt, Ahram Online, December 2012.
  • Rule of Law in Egypt; Challenges for Democracy, Moderator, Aspen Institute, Washington, D.C. 2011, September 22, 2011.
  • Pillars of a Modern and Democratic Egyptian Constitution, Egypt Revolution Conference, Washington, D.C., October 21, 2011.
  • Egypt Needs a Mindset Revolution (to transition economically), Ahram Weekly, October 6, 2011.
  • Egypt’s Prosecutor General Must Advance the Rule of Law, Ahram Online July 25, 2011.
  • Partners for Change: Realizing the Potential of Arab Women in the Private and Public Sectors, Arab International Women’s Forum, World Bank, Washington, D.C., June 2008.
  • The Impact of Islam in the Constitution of Iraq, Public International Law & Policy Group Roundtable Series on Next Steps for Implementing the Iraq Constitution, Washington, D.C., January 2006.
  • The Impact of Islam in the Constitution of Iraq, Public International Law & Policy Group Roundtable Series on Next Steps for Implementing the Iraq Constitution, Washington, D.C., January 2006.
  • Issues in Federalism: Negotiation Simulation on the Formation of Regions in Iraq, Public International Law & Policy Group Roundtable Series on Next Steps for Implementing the Iraq Constitution, Washington, D.C., January 2006.
  • Investor-State Dispute Prevention: Egypt, Presentation for the International Finance Corporation, the Egyptian Ministry of Justice, and the Egyptian General Authority for Investment, Washington, D.C. 2013.
  • Go Global, Grow Local: Positioning the DC Metro Area to Tap the Global Aspiration Economy, The 2030 Group Blog 2012.
  • Montgomery County Today: Changing Community and Transformative Opportunity, Co-organizer and speaker (program on health sector growth) 2012.
  • Islamic Finance as a Mechanism for Bolstering Food Security in the Middle East: Food Security Waqf, Eighth International Conference on Islamic Economics and Finance, Doha, Qatar 2011.
  • Middle East Economic Outlook, Interview with Chief Economist of the DIFC, Interviewer, ABA Islamic Finance Committee Podcast, DIFC (Dubai), UAE 2010.
  • China-Africa Trade and Investment: Is it a Two-Way Street?, Program Writer and Chair, Washington, D.C., 2007.
  • Foreign Direct Investment and Investment Dispute Settlement, International Dispute Resolution for the Washington, D.C. Diplomatic Community, Washington, D.C., June 2006.
  • Investment Risks in International Oil and Gas Contracts, Conference on Managing Risk in International Oil and Gas Contracts (under the auspices of the Egyptian Ministry of Petroleum), Cairo Regional Centre for International Commercial Arbitration, Cairo, Egypt, May 2006; Conference on Managing Risk in International Oil and Gas Contracts (under the auspices of the Libyan National Oil Company), Tripoli, Libya, May 2006.

Executive Order Prohibits Investment in Chinese “Military Companies:” Key Points, Context

We expect that with respect to U.S.-China trade and emerging technologies disputes and competition, the Biden Administration will take a more comprehensive, coordinated, and multilateral approach, relying more on joint action and shared objectives with Congress (where there is bipartisan consensus on key China matters) and U.S. allies, particularly in Europe and Asia. That said, the proximity of the January 11, 2021 operational date will likely require the incoming administration to ensure that any abandonment of or departures from the Executive order are framed in a compelling strategic and policy terms, so as to, at minimum, avoid exposure to claims from some quarters that the next president is “soft on China.”
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U.S. Targets Chinese Belt & Road Project With Global Magnitsky Sanctions

The Treasury Department’s announcement of the sanctions speaks to the foreign policy and geostrategic significance of the UDG sanctions action. The release speaks of China’s “malign” investment in Cambodia, its use of the UDG projects in Cambodia to “advance ambitions to project power globally,” “disproportionality benefit” itself through BRI projects, and concerns that the Dara Kakor project “could be converted to “host military assets.” The Treasury Department’s language echoes U.S. concerns about the BRI and other Chinese international project financing activities, including that China engages in “debt trap” financing.
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TikTok: China’s Export Controls Set in Motion Unprecedented Legal Scenario

On August 14, President Trump ordered ByteDance to divest its assets and interests in TikTok. What happens if ByteDance does not comply? The question may seem academic, given historical compliance with divestment orders and ByteDance’s talks with U.S. companies about TikTok’s sale. But a recent legal move by China—its expansion of a list of technologies that require government approval for export, including apparently in a sale of TikTok—renders real the issue of non-compliance with the August 14 divestment order, and potentially raises unprecedented issues.
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Defense Production Act FAQs (COVID-19)

What Authority Does the President Have Under the Defense Production Act to Procure Personal Protective Equipment and Ventilators? The DPA vests the President with “priorities and allocations” authorities to procure and prioritize for the government materials, services, and production where “necessary or appropriate to promote the national defense.
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U.S. Sanctions on Nord Stream 2 and TurkStream Pipeline Projects (PEESA)

On December 20, 2019, the President signed into law the National Defense Authorization Act for Fiscal Year 2020 (NDAA), which authorizes the President to impose sanctions on foreign persons that knowingly sell, lease, or provide vessels for the construction of the Nord Stream 2 or TurkStream pipeline projects. The policies advanced by the NDAA are consistent with prior U.S. policy and legislation, particularly the Countering America’s Adversaries Through Sanctions Act. This MassPoint publication discusses PEESA’s policies, sanctions mechanics, the relationship between PEESA and CAATSA, and key takeaways.
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OFAC Cosco Shipping Tanker (Dalian) Co., Ltd. General License K: Analysis

General License K authorizes, until 12:01 eastern time on December 20, 2019 (essentially, through the end of December 19 eastern time), the above-listed prohibited transactions where they directly or indirectly involve Cosco or entities owned 50% by Cosco and are “ordinarily incident and necessary to the maintenance or wind down of transactions.”
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U.S. Sanctions Chinese Shipping Companies: Legal and Practical Points

The imposition of sanctions on the Chinese companies and executives—particularly on units of the high-profile, state-owned COSCO at a critical juncture in the U.S.-China trade war and shortly after both countries took conciliatory steps—reinforces the Trump Administration’s stated posture of aggressively enforcing Iran secondary sanctions in furtherance of its policy objectives.
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New Tariffs: Potential Relevance for Huawei, Export Controls

The September 1 tariffs effective date is close in time to the expiration of the Temporary General License partially easing restrictions on Huawei. The state of U.S.-China trade talks around the expiry of the 90-day license may influence further actions. U.S. and foreign companies subject to export controls should be mindful of the potential links.
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CFTC’s Corruption Crackdown Consistent With Trump Admin Strategy, Says Hdeel Abdelhady

Ms. Abdelhady addressed how the CFTC's current investigation of Glencore and its broader anti-corruption plans might fit with the Trump Administration's wider anti-corruption strategy targeting the extractives industry globally, as well as the how the CFTC, which lacks direct FCPA enforcement authority, might take a page from the NYDFS' playbook and indirectly enforce an anti-corruption agenda under the Commodities Exchange Act.
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Hdeel Abdelhady Named American Bar Foundation Fellow

Hdeel Abdelhady has been named a Fellow of the American Bar Foundation, a “global honorary society of attorneys, judges, law faculty, and legal scholars. Membership in the Fellows is limited to one percent of lawyers licensed to practice in each jurisdiction. Fellows are recommended by their peers and elected by the Board of the American Bar Foundation.
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OFAC Expands Reporting Requirements

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.
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Huawei: Key U.S. Legal Issues

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.
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Digital Dating as a Matter of National Security: Grindr-CFIUS

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.
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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.
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U.S.-China Tech War: Whole of Government Legal Strategy

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.
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OFAC’s Russia Sectoral Sanctions Directives Apply to Trade-Based Debt: Analysis

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.
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Huawei 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.
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Proposed Legislation Would Restrict Foreign Participation in 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.
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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.
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Nonprofit Organizations and the Foreign Agents Registration Act

FARA was enacted in 1938, but only recently entered the public consciousness through the Special Counsel’s investigation of Trump campaign and administration officials. Following the indictment of Paul Manafort for FARA and other violations, and Michael Flynn’s remedial registration under FARA after his previously undisclosed work on behalf of foreign governments came to light, lobbyists, public relations professionals and law firms, among others, reportedly were moved to register as foreign agents or assess their FARA registration obligations
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U.S.-China Trade, Technology and American Academia: The DOJ 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.
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U.S.-China Trade, Technology & Global Policy Issues: INFOGRAPHIC

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).
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Trump’s Africa Strategy Targets Corruption. Extractives, and Chinese Presence

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.
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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.
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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.
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Rule of Law in Space Exploration: Event

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.
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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.
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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.
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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.
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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.
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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
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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.
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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.”
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Human Rights, Law & 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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.”
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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.
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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.
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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.
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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.
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Hdeel Abdelhady Spoke on Islamic Finance at Harvard Law

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.
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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.
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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.”
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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.
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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.
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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.
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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.
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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.
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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.
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Congressional Hearing on Terrorism Financing Probes Bank Secrecy Act Data Effectiveness, Potential BSA Amendments

On April 27, 2017, I attended a Congressional hearing on “Safeguarding the Financial System from Terrorist Financing,” held by the House Committee on Financial Services’ Subcommittee on Terrorism and Illicit Finance (the “Subcommittee”). The sole witness was Mr. Jamal El-Hindi, Acting Director of the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury charged with protecting the financial system from money laundering, terrorism financing and other illicit activities. The hearing’s purposes were to examine the methods and efficacy of FinCEN data collection, processing and information sharing and whether the Bank Secrecy Act (BSA) and USA PATRIOT Act should be amended to improve FinCEN’s anti-money laundering (AML) and counter-terrorism financing (CFT) capacities and performance. In this brief MassPoint update, I highlight BSA data collection and usage numbers and some of the questions and issues that appeared to be of particular interest and/or concern to Congress members in attendance, taking into account the nature and frequency of the questions asked, the tone of questions, and related requests for additional or clarifying information from FinCEN.
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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).
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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.
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