Trade Law

International trade litigation requires patience. These disputes often span several years and involve multiple redeterminations by the agency whose action is subject to judicial review. The appeal can get even further complicated when the original proceeding becomes entangled with one or more subsequent administrative proceedings. And even if a party prevails on appeal, a victory may become hollow unless the appropriate agencies implement the redetermination in a timely fashion.

On January 19, 2017, the Department of Commerce’s Bureau of Industry and Security (BIS) published a final rule increasing compliance requirements associated with the export and reexport of items controlled under the EAR to and from Hong Kong. Specifically, the new rule requires that exporters and reexporters obtain from their customers or consignees, prior to shipment, a valid import license or written authorization from the Hong Kong government that no such license is required. Similarly, the rule also prohibits the reexport of EAR-controlled items from Hong Kong, unless the reexporter obtains an export license or other written authorization from the Hong Kong government.

President Obama issued an Executive Order on Friday, October 7, 2016, that effectively lifts all executive branch sanctions against Burma by terminating the long-standing national emergency relating to Burma and revoking the Executive Orders that authorized past sanctions. The President also provided notification to Congress as required to waive certain legislative sanctions against Burma. These actions fulfill the commitment President Obama made on September 14, 2016, following meetings with Burmese State Counsellor Aung San Suu Kyi, and they complete the President’s efforts over the past four years to bring reform to Burma.

U.S. lawmakers recently submitted a letter to the Government Accountability Office (GAO) raising concerns about increased Chinese investments in the U.S. film and entertainment industry and questioning whether the Committee on Foreign Investment in the United States (CFIUS or “the Committee”) is applying, and has authority to apply, sufficient scrutiny to these and other inbound investments. This development could be an indication that CFIUS will increase its examination of such investments, which would be consistent with the Committee’s application of evolving criteria for assessing national security concerns to deals that may not present obvious CFIUS issues. Consequently, non-U.S. investors would be prudent to consider CFIUS risks in making investments in the U.S. film and entertainment industry, as would U.S. companies seeking to divest such assets.

Effective March 8, 2016, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) issued a final rule adding Zhongxing Telecommunications Equipment Corporation (ZTE) of Shenzhen, China, and the following related companies to its Entity List:

• Beijing 8-Star International Co., located in Beijing, China
• ZTE Kangxun Telecommunications Ltd., located in Shenzhen, China
• ZTE Parsian, located in Tehran, Iran.

The Entity List imposes export restrictions and license requirements on listed persons, effectively restricting their access to U.S.-origin items and other items subject to the Export Administration Regulations (EAR).

Stephen Kho, Tatman Savio, Cynthia Liu and Lucy (Qiong) Lu discuss the ongoing bilateral investment treaty (“BIT”) negotiations against the backdrop of national security concerns in China-U.S. relations. The article was published in the October 2015 issue of WorldECR, the journal of export controls and sanctions. Click Here for the full article.

Chinese President Xi Jinping’s visit to Washington D.C. led to a very significant agreement on cybersecurity, as reflected by The White House fact sheet released Friday (excerpted below). The agreement addresses a core U.S. economic interest that analysts didn’t expect to become the subject of agreement during the Chinese President’s U.S. visit. 

The recent hacking of the sensitive personal information of millions of American public servants at the Office of Personnel Management (OPM) points out a noteworthy distinction in how the U.S. government views some types of cybersecurity breaches for which foreign governments allegedly are responsible.