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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.

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, spoke at the Galloway Symposium on Critical Issues in Space Law, to take place on December 5 in Washington, D.C. Ms. Abdelhady’s panel will address Rule of Law in the Exploration and Use of Outer Space, including from the perspective of Islamic Law. In addition to her private practice with MassPoint PLLC, Ms. Abdelhady teaches Transactional Islamic Law and Regulation of Foreign Access to U.S. Technology at The George Washington University Law School. Ms. Abdelhady covers Islamic banking, finance, and philanthropy in practice.

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.

Sanctions

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

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.

Banking Law & Regulation

Banking Transparency for Sanctioned Persons

On September 7, 2018, Congresswoman Mia Love (R-UT) introduced in the House of Representatives H.R. 6751, the Banking Transparency for Sanctioned Persons Act of 2018 to “increase transparency with respect to financial services benefitting state sponsors of terrorism, human rights abusers, and corrupt officials.” This update discusses the Banking Transparency Act’s provisions and what it conveys about the current U.S. legal climate around corruption and human rights sanctions, Congress’ increasingly activist sanctions posture, and the risk management and compliance inferences that U.S. and foreign financial institutions should draw from the Banking Transparency Bill when viewed in context.

Doing Business in Emerging Markets

In International Business, Sweat the “Small” Stuff

Business transactions necessarily become more complex when they involve two or more countries. Among other tasks, it is necessary to understand the content and applicability of foreign laws, retain local counsel, address conflict of law issues, and make (hopefully strategically, rather than as an afterthought) governing law and dispute resolution selections.The focus on more substance aspects of international transactions should not be exclusive.

Technology Supply Chains

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.

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

Afghanistan’s Minerals and Mining Sector Hampered by Corruption

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.

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.

Sanctions

United States Sanctions Malaysia Agent of Iranian Airline

The Treasury Department’s Office of Foreign Assets Control (OFAC) today sanctioned Malaysia-based Mahan Travel and Tourism Sdn Bhd (“Mahan Travel”) pursuant to Executive Order  13,224. Rather then information should be taken as a prompt to other travel agencies or vendors that directly or indirectly “act for or on behalf of Mahan Air” to disassociate from the airline. Such other travel agencies or vendors should, at minimum, review and understand today’s Mahan Travel action, assess their sanctions and related risk (legal, commercial, etc.) and take defensive compliance steps that are appropriate to their sanctions/legal exposure and commercial position. The broader takeaway from today’s OFAC action against Mahan Travel is that it reinforces the fact that U.S. sanctions and other laws are global in reach. Non-U.S. parties should take note of their potential exposure to U.S. sanctions or other legal enforcement actions.

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).

Sanctions

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.

United States China Law and Policy

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).

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.

United States China Law and Policy

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.

Sanctions

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.

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). 

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.

Sanctions

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.

Sanctions

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.

Sanctions

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.

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 CAASTA. 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.

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.

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).

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.