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International Regulatory Enforcement

The FinCEN Files: What Are They and How Should Financial Institutions Be Reacting?
As reported on in the global press earlier this week, the FinCEN Files (the “Files”) represent the latest in a series of leaks of official information which have demonstrated the power of investigative journalism as a tool for highlighting potential financial crime. The Files are also a timely reminder of the legal, regulatory, and reputational risks posed to businesses by sensitive information falling into the public domain.
China Enacts Regulations on Unreliable Entity List
On May 31, 2019, China’s Ministry of Commerce announced that China would soon establish an “Unreliable Entity List” (the “List”). This announcement came two weeks after the U.S. Department of Commerce placed a Chinese tech giant and its affiliates on the U.S. Entity List.[1] Since then, U.S.-China tensions have continued to escalate. The Trump Administration recently moved to address national security concerns related to certain Chinese social media and communications apps in the United States.
English High Court Confirms the Application of Privilege to Foreign Lawyers
A judgment handed down by the High Court on 11 September 2020[1] has confirmed the well-established principle that Legal Advice Privilege ("LAP") applies to foreign lawyers. However, the Court also confirmed the principle that the only requirement for LAP to attach was that the foreign lawyer should be "acting in the capacity or function of a lawyer", and that it would not investigate whether a foreign lawyer was regulated, registered or "appropriately qualified".
A Cooperation Agreement Concluded Between the French Financial Market Agency (AMF) and the French Anti-corruption Agency (AFA)
While interagency cooperation agreements are very common in countries like the UK and the United States, they are less so in continental Europe. The Protocol of Cooperation between the French Financial Markets Authority (AMF) and the French Anti-Corruption Agency (AFA), concluded on September 16, 2020, is therefore worth noting.
The EU Human Rights Due Diligence Legislative Initiative and the Business and Human Rights Treaty
Earlier this year, the Commissioner for Justice of the European Union announced that next year the Commission will present a legislative initiative compelling companies to conduct human rights due diligence throughout their operations and supply chains, with accompanying enforcement and civil liability provisions. Because the jurisdictional breadth of the initiative is likely to be expansive, including companies doing business in the EU regardless of where they are domiciled, the impact will have global repercussions. As we have written previously, an EU mandatory human rights due diligence requirement – at least as it appears to be contemplated - is likely to have vast implications, catapulting global human rights due diligence to a business imperative akin to anti-corruption diligence.
It's Only the Beginning: COVID-19, Public Procurement, and Corruption
As public money is increasingly used to mitigate the damage of COVID-19 on the world economy, the guidance document issued by the United Nations Office on Drugs and Corruption (UNDOC) on August 31, 2020, should raise the interest not only of public authorities but also of all companies bidding for public procurements
State and Commerce Departments Take New Action on 24 Chinese Companies
On August 26 2020, the United States Government announced visa restrictions on Chinese individuals and imposed sanctions on 24 Chinese companies for their alleged activities related to the PRC’s territorial claims in the South China Sea. The Department of Commerce added those companies to the Entity List, a list maintained by the Bureau of Industry and Security (BIS) that identifies persons believed to be involved in, or pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. Separately, the Department of State issued visa restrictions on executives (and their family members) believed to be involved in the conduct at issue.
How a Biden Administration May Approach Business and Human Rights
With election season heating up, we increasingly are asked for predictions regarding a potential Biden Administration’s approach to ESG (Environmental, Social, and Governance) and business and human rights. To some extent, that seems fairly clear. Former Vice President Biden has stated strongly that he sees climate change as an accelerating threat, and has released a detailed plan that sets a target of achieving net zero emissions by 2050. The campaign also has pledged to address diversity and inclusion, and when the former Vice President introduced his economic plan, he stated expressly that corporations have ESG responsibilities to their workers, community and country. In that vein, corporate governance requirements and mandated disclosures almost certainly would change.
Draft Business and Human Rights Treaty, Take 3
With little fanfare, an Intergovernmental Working Group (IGWG) released the Second Revised Draft of a proposed binding treaty on business and human rights. This is third iteration of the proposed treaty, which has been steadily progressing since June 2014, when the UN Human Rights Council adopted a resolution by Ecuador and South Africa to create an international legally binding instrument to regulate Transnational Corporations and Other Business Enterprises with respect to human rights.
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