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EU update
On July 21, 2022, the EU published its “maintenance and alignment” package of sanctions. This latest package seeks to tighten existing sanctions, perfect their implementation, and strengthen their effectiveness. In summary, this latest package has the following effects:

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On July 13, 2022, as part of a new pilot program, the Department of State’s Directorate of Defense Trade Controls (DDTC) issued two open general licenses (OGLs) permitting certain reexports and retransfers of unclassified defense articles subject to the International Traffic in Arms Regulations (ITAR) within or between Australia, Canada, and the United Kingdom. The OGLs were published in the Federal Register on July 20, 2022, and will be effective August 1, 2022. The OGLs could significantly reduce licensing burdens for many entities in these close ally countries of the United States.

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EU introduces a sixth package of sanctions.

On June 3, 2022, the EU adopted a sixth package of sanctions against Russia which includes economic, individual, media and diplomatic measures. (See the full text of the regulation here.) Continue reading →

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Key Takeaways:

  • The Uyghur Forced Labor Prevention Act (UFLPA) went into effect on June 21, 2022, and requires the U.S. Customs and Border Protection (CBP) to presume that all goods manufactured wholly or in part in the XUAR, or by the entities identified by the U.S. government on June 17, 2022, are made with forced labor and banned from import to the United States, unless the importer demonstrates otherwise (a “rebuttable presumption”).
  • Guidance and Reports published in the week leading up to June 21 identify key information for companies seeking to comply with the law, maintain U.S. imports, and understand the supply chain information that may be required by U.S. Customs and Border Protection (CBP).
  • Where the presumption of forced labor applies, rebutting it will require an importer to overcome a high bar by providing “clear and convincing” evidence; however, this same high standard will not necessarily apply to demonstrating that imports have no connection with the XUAR.

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On June 12, 2022, a bipartisan group of Senate and House lawmakers announced agreement on a new draft of the National Critical Capabilities Defense Act of 2022 (NCCDA), which would establish an expansive outbound review mechanism for investments and other transactions in specified countries of concern, including China. The draft is based on a bill introduced in the Senate last year that ultimately was not included in the US Innovation and Competition Act (USICA), which passed, while the House included a similar measure in its America COMPETES Act, which also passed, and the two bills are now in conference.

If enacted, the NCCDA would establish a new interagency panel to review and potentially prohibit outbound transactions on national security grounds. The Committee on National Critical Capabilities (CNCC) would function in a manner similar to the Committee on Foreign Investment in the US (CFIUS), which reviews inbound foreign investment. Both US persons and foreign entities that engage in or plan to engage in a “covered activity” would be required to submit a mandatory written notification 45 days before engaging in the activity.  It is not clear how the requirement would apply to a foreign entity that does not have a connection with the United States.

“Covered activities” include an extraordinarily wide range of transactions including any activity by a US person or a foreign entity or their affiliates that:

  • Builds, develops, produces, manufactures, fabricates, refurbishes, expands, shifts, services, manages, operates, utilizes, sells, or relocates a national critical capability to or in a country of concern;
  • Shares, discloses, contributes, transfers, or licenses to an entity of concern any design, technology, intellectual property, or knowhow, including through open-source technology platforms or research and development, that supports, contributes to, or enables a national critical capability by an entity of concern or in a country of concern; or
  • Invests in, provides capital to, or consults for, or gives any guidance, related to enhancing the capabilities or facilitating access to financial resources for a national critical capability for an entity of concern or a country of concern.”

Covered activities would also include transactions by certain entities that receive financial assistance pursuant to the Bipartisan Innovation Act (the presumed name of the legislation that emerges from conference), as well as activities by entities that benefit from government contracts over a certain amount (to-be-determined) with a US national security agency with respect to an entity of concern or a country of concern.

In addition to China, “countries of concern’ include Russia, Iran, North Korea, Cuba, and Venezuela. The term “entity of concern” is broadly and vaguely defined to include entities “affiliated with” or “influenced by” a country of concern. Covered activities would not include de minimis value transactions, as well as “ordinary business transactions,” which generally include transactions involving the sale or license of a finished product.

“National critical capabilities” are defined as those identified necessary for supply chains identified pursuant to the supply chain review mandated by Executive Order 14017, including:

  • semiconductor manufacturing materials,
  • large capacity batteries,
  • critical minerals and materials,
  • pharmaceuticals and active pharmaceutical ingredients, and
  • “critical and emerging technologies,” such as artificial intelligence, bioeconomy, and quantum information science and technology.

Once a notification is submitted, the CNCC would undertake a review to determine if the activity is likely to result in “an unacceptable risk to one or more national critical capabilities.” If it determines such a risk exists, it will make a recommendation to the President to address the risk, including imposing mitigation measures, potentially including disinvestment. The Committee would also have the authority to initiate investigation of a covered activity if a notification is not submitted.

Although the lawmakers announcing the agreement characterized the bill as a “refined proposal,” it is still extremely broad. Key terms and concepts are vague and ill-defined or left to regulators to fill in the blanks, and industry groups including the US China Business Council and the US Chamber are raising their voices in opposition.

 

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We’ve covered in depth the array of sanctions-related activity brought by the international community against Russia in response to the conflict in Ukraine. As these measures mount, Russia has in return taken steps to alleviate some of the pressure such sanctions have brought to bear. In “Russia Introduces Tools for Russian Persons to Continue Use of Foreign IP Rights without Consent from Rightsholder,” Nancy A. FischerAaron R. HutmanLuke Wochensky and Oleg Khokhlov examine one recent such action.

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On May 8, 2022, the White House announced a number of new measures in response to Russia’s ongoing war in Ukraine. The new measures include prohibitions on new categories of services to Russia by U.S. persons; export controls on certain industrial goods; and the addition of several shipping companies, bank executives, and television companies to the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) Specially Designated Nationals and Blocked Persons (SDN) List.

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EU introduces a fifth package of measures.

New asset freezes
On April 8, 2022, the EU published a fifth round of measures against Russia and Belarus. Spread across four regulations, the new measures include additional asset freezes against 217 individuals and 18 entities. Notable inclusions are Otkritie FC Bank, Novikombank, Sovcombank, VTB Bank, and JSC GTLK. The full list of new designations can be found in the Annex to Regulation (EU) 2022/581.

A wind down license is available for the termination of correspondent banking relationships with the newly frozen banks by October 9, 2022. A new ground for licensing has also been added so that member states may enable the sale by listed persons/entities of proprietary rights in EU companies, provided the proceeds of such sale and transfer remain frozen.

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In the last month, the United States and global allies have issued unprecedented sanctions against Russia in response to the war in Ukraine. These sanctions apply ever-expanding pressure on the Russian economy and touch virtually every industry. This post addresses the latest U.S. sanctions against Russia in the following categories: new investment prohibitions, finance, energy sector import and export rules, general export and import controls, expanded sanctions designations, and denial orders for Russian airlines under export control authorities. The U.S. government already is actively implementing these authorities around the world, as evidenced by recent enforcement actions.

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The listing of Specially Designated Nationals (SDNs) has the potential to impact any American doing business with a named party, including landlords who lease real estate to sanctioned persons. In “Specially Designated Nationals as Tenants: How Landlords Can Be Impacted by Sanctions Against Russian Nationals,” Nancy A. FischerRachel B. HorschAnne C. LefeverZachary C. Rozen and Samantha Franks explain how sanctions designations may require U.S. persons involved with sanctioned individuals to terminate existing contracts, including leases, and why it is important for landlords to conduct thorough due diligence on prospective tenants and to negotiate language that enables them to quickly terminate a lease if a tenant becomes subject to sanctions.