Lend Me Your EARs: CFIUS Makes Export Controls a Trigger for Mandatory Filings

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On October 15, 2020, CFIUS will officially tie mandatory filings to U.S. export control regimes, including the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).  While that change may draw a clearer line of what constitutes a mandatory filing, it also pulls your CFIUS review into the complex (and somewhat nerdy) world of export regulations. Continue Reading

How the New Presidential Proclamation Regarding Non-Immigrant Visas Affects Your Company

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Presidential Proclamation

On June 22, 2020, the White House announced an extension and expansion of Proclamation 10014, which was originally announced on April 22, 2020 and restricted the issuance of and entry on immigrant visas.  The new visa ban expands the restrictions to certain non-immigrant categories. Continue Reading

Coming to America…to Wait Out the Coronavirus — Visa & Immigration Considerations

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With the growing concern about Coronavirus Disease 2019 (“COVID-19” or “coronavirus”) some foreign nationals who live outside the U.S. have decided to fly to the U.S. and wait out the crisis.  This article discusses the related visa and immigration issues, and what U.S. Customs and Border Protection requires to admit someone into the U.S.

Coronavirus; esta-visa-waiver
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UPDATED: China Trade War Scorecard: Keeping Track of Tariffs

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With round after round of tariffs on Chinese goods, announcements, removals, exclusions, delays, increases and, of course, tweets regarding all of the above, it can be easy to get lost on where, exactly, things stand with respect to Tariffs implemented under Section 301 of the Trade Act. Below we provide a brief overview and reference chart, complete with links to the relevant notices. We will update the chart as the U.S. government adds, removes, or changes the tariffs.

** This is an update to our August 19, 2019 post. **

Almost two years into the trade war, the United States and China have reached a preliminary agreement. On January 15, 2020, the United States Trade Representative published that agreement. The agreement includes provisions on intellectual property, technology transfer, agriculture, currency, and expanding trade.

Per that agreement, the USTR will reduce duties on List 4A, which is roughly $120 billion worth of Chinese goods, from 15 to 7.5 percent effective on February 14, 2020.
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New York DFS Plans to Streamline Supervisory Information Sharing

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The New York State Department of Financial Services (“DFS”) is proposing a new regulation that would allow banks to share confidential supervisory information with their attorneys or an independent auditor without gaining prior approval from the department.

Banks currently need written approval from DFS each time they want to share confidential supervisory information with their advisors. The proposed new regulation would streamline operations by making it easier for banks to share relevant information with their advisors. Continue Reading

Don’t Wait Until There Is A Problem To Protect Your Trade Secrets

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Trade secrets frequently drive the success of a business both in South Korea and the United States.

Overview for Korean Businesses

Trade secret protection is more important than ever given increased workforce mobility and industrial espionage, as well as the advent of technology that makes misappropriation easier than it used to be. The loss of a trade secret can undermine a business’ competitive advantage.

South Korea’s Patent Act and the Unfair Competition Prevention and Trade Secret Protection Act (“UCPA”) proscribes trade secret misappropriation. It is comparable to U.S. trade secret law although there are some differences, such as in the U.S. the putative trade secret holder must take reasonable steps to protect the secrecy of the information.

U.S. trade secret legal requirements are relevant to South Korea businesses that do business or may do business in the U.S., especially given the importance of the U.S. market. If South Korean businesses want to protect their trade secrets as trade secrets in the U.S., they need to satisfy U.S. requirements for such protection – include that reasonable steps be taken to protect the trade secret before the information is misappropriated. This blog article underscores the need for a business to take such reasonable steps, what may be rejected as reasonable steps, and the ramifications if reasonable steps are not taken. Continue Reading

US Law Allows Discovery for Foreign Proceedings

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Fearing the burdens of U.S. court litigation, many foreign companies doing business with American counter-parties insist on forum selection clauses that call for resolution of disputes outside of U.S. courts, either in foreign courts or international arbitration. High on the list of objectives may be avoiding U.S.-style discovery, which can justifiably strike fear into the hearts of non-U.S. companies. However, before congratulating themselves too heartily, such companies should consider the often overlooked provisions of a U.S. statute that authorizes U.S. courts to order discovery for use in certain foreign legal proceedings. Continue Reading

Foreign Companies: Does the U.S. Government Now Have Access to Your Overseas Data?

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The United States government has a powerful new tool to gain access to data stored overseas – the CLOUD Act, which was enacted this spring. If you are a company based overseas, particularly if you use a cloud service provider with a significant U.S. presence, it just got a lot easier for the U.S. government to get your data, and the data you hold for your customers.[1]

Background to the CLOUD Act

Since 1986, U.S. law enforcement’s access to electronic data held by private third parties has been regulated by the Electronic Communications Privacy Act (ECPA,18 U.S.C. § 2510 et seq). That law was enacted, in part, to extend government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer and stored electronic communications. These issues are addressed in Title II of ECPA, known as the Stored Communications Act (SCA). While ECPA and the SCA have been amended several times since 1986, their primary provisions have remained the same, meaning that much of American law relating to government access to electronic data held by third parties was in fact drafted several years before email was commonly used and the World Wide Web was even created. Continue Reading

On FIRRMA Ground: Congress to Restrict Foreign Investment and Expand Export Controls

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In late June, there were reports that the Trump Administration would use emergency powers to restrict Chinese investment in the United States. On Wednesday, the White House backed away from that position after the House of Representatives passed a bill on Tuesday expanding and increasing the powers of the Committee on Foreign Investment in the United States (CFIUS). The bill is called the Foreign Investment Risk Review Modernization Act (FIRRMA). Continue Reading

Coal Hard Facts: North Korea Sanctions Remain in Place and Remain a Risk

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KEPCO is at the heart of an inquiry into the alleged repeated import of North Korean coal into the Republic of Korea. Reportedly, 8 other Korean companies and 2 other banks may also be involved and may also be under investigation.

The story may have come as a shock to some, who saw President Trump’s visit with the North Korean leader Kim Jung Un as a sign of a coming détente. However, that meeting resulted in very little substantive change by the DPRK or the United States, and UN and U.S. sanctions remain in place. Continue Reading

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