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International Regulatory Enforcement

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.
Commerce Simplifies—but Expands—the Foreign Direct Product Rule for Huawei
On Monday, August 17, the Department of Commerce Bureau of Industry and Security (“BIS”) took new action directed at Huawei and its Entity List‑designated affiliates by not only letting the Temporary General License ("TGL") expire and adding an additional 38 Huawei affiliates to the Entity List, but also further revising the foreign direct product rule as applied to Huawei. This latest action by BIS adds to existing restrictions to prohibit the transfer to Huawei of any foreign‑produced item that is either: (a) the direct product of specified software or technology subject to the EAR; or (b) produced by a plant or major component of a plant that is, itself, the direct product of specified U.S.‑origin software or technology.
At last…the European Public Prosecutor’s Office (EPPO) is getting real!
Dreamed of by some for a long time, the creation of the EPPO marks a dramatic shift in the fight against crimes affecting the EU’s budget and an important step towards creating a common criminal justice area in the European Union as a whole. Following the July 27th decision of the European Council, this dream of some (and possibly the nightmare of others) is becoming a reality.
Foreign Investment Control in France: New Derogatory Regime Applicable to Foreign Investment in French Public Companies
Recent reforms on foreign investments control in France have contributed to a substantial evolution of its regime and, in particular, to strengthening its implementation. While Decree No. 2018-1057 of November 29, 2018 initially eased the prior authorization procedure for investment by introducing a preliminary written request to the French Ministry of Economy and Finance (the “Ministry”) for both the French target company and the foreign investor, strengthening of the foreign investments control in France has been intensified.
International Chamber of Commerce Releases COVID-19 Recovery Guidance
The International Chamber of Commerce (ICC), representing more than 45 million companies in over 100 countries has just issued its ICC Guidance on Integrity for a Covid-19 Response and Resilient Rebuild. The Guidance has been finalized under the leadership of the Commission on Corporate Responsibility and Anti-corruption, taking into consideration input and commentary from ICC national committees and members. According to the ICC, “with this Guidance, ICC encourages business and governments to continue to uphold the highest standards for integrity in business transactions during the Covid-19 crisis and for the post-Covid rebuild”.
Foreign Investment Control and COVID-19 in Germany
In June 2020, the German government tightened again the rules of screening of foreign direct investments by revising the Foreign Trade and Payments Ordinance ("AWV"). The initiative is a response to the COVID-19 pandemic emphasizing the importance of protecting critical technology and assets in the current crisis and extends the ability of the German Ministry for Economic Affairs and Energy to scrutinize, intervene in, and prohibit the acquisition of companies in critical sectors—with an emphasis on the health care sector—by non-EU investors. Moreover, the German Parliament is currently revising the Foreign Trade and Payments Act ("AWG") to streamline the screening of foreign direct investments and to implement the EU Regulation on the Screening of Foreign Direct Investments ("EU Screening Regulation").
More Clarity, More Complexity: New CFIUS Rules Put Spotlight on Mandatory Filings
The Department of the Treasury has issued proposed rules that, upon becoming final, will revise the conditions under which parties to a foreign investment in any U.S. business that produces “critical technologies” are required to provide notice to the Committee on Foreign Investment in the United States (“CFIUS”).
U.S. Department of Commerce Imposes Further Restrictions Directed at Huawei
On May 15, 2020, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) issued an interim final rule to expand the prohibitions on items that can be provided to Huawei and its Entity List-designated affiliates (collectively, “Huawei”). The long-expected move to amend the foreign direct product rule further restricts the ability of Huawei to use certain U.S. technology and software to design and manufacture its semiconductors, and is the latest in a succession of U.S. regulatory, law enforcement and diplomatic actions that may have the cumulative effect of significantly curtailing Huawei’s ability to operate around the world.
Commerce Department Increases Restrictions on Exports to China, Russia, and Venezuela
On Tuesday, April 28, the Bureau of Industry and Security (“BIS”) at the U.S. Department of Commerce published two final rules and one proposed rule significantly increasing export control requirements for a large variety of items exported to China, Russia, and Venezuela. All three rules were explicitly issued in furtherance of the Trump Administration’s National Security Strategy released in December 2017, as well as the Trump Administration’s National Defense Strategy released in January 2018. As stated in the rules, their issuance stems from the Administration’s focus on the integration of civilian and military technology development in countries that are of concern for national security reasons. These countries are included in Group D:1 (“D:1 Countries”) of the Country Groups of the EAR, found in Supplement No. 1 to Part 740. D:1 Countries include China, Russia, and Venezuela (among others).
The New CFIUS Regulations: How Will This Actually Work? FAQs We Wish Treasury Would Answer
Gallons of ink will be spilled explaining the new regulations published by the Department of the Treasury to implement the extensive changes to the national security review process undertaken by the Committee on Foreign Investment in the United States (“CFIUS"). The updated rules, which went into effect on February 13, 2020, were mandated by the 2018 Foreign Investment Risk Review Modernization Act (“FIRRMA").
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