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

Contracts with Foreign Companies May Require a Rewrite

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A recent California case may force companies doing business with foreign entities to reconsider—and maybe rewrite—their contracts. In Rockefeller Tech. Invs. (Asia) VII v. Changzhou Sinotype Tech. Co., No. B272170, 2018 WL 2455092 (Cal. App. June 1, 2018), the California Court of Appeal held that parties may not contract around the formal service requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents, commonly referred to as the Hague Service Convention. The decision could have profound implications for international business.

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WARNING: Prop 65 Has Changed – If Your Product Is Sold In California Or You Do Business In California, Pay Attention

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What is Prop 65?

Prop 65 is a California law that requires California consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. The law is highly technical, constantly evolving and actively enforced by the government and private enforcers. Continue Reading

The Future of CFIUS: Perhaps Not So Happy a New Year

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‘Tis the season to wonder, what will 2018 bring? We may speculate on things like a private company making a moon landing or a peace accord with North Korea. We may be certain of things like well-intentioned gym memberships and a host of new-you products.

Somewhere between speculation and certainty we find the U.S. Government’s scrutiny of foreign direct investment in the United States. The recently proposed Committee on Foreign Investment in the United States (CFIUS) reform introduced in Congress sheds some light on the future of CFIUS reviews. Continue Reading

Deadline Approaching: Action Required by December 31 To Avoid Losing DMCA Safe Harbor Protection

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The U.S. Copyright Office is making changes to the Digital Millennium Copyright Act (DMCA) safe harbor agent registration process. The changes impact both new online service providers as well as existing online service providers who have already registered an agent. Read on for details about what you will need to do. Continue Reading

President Trump’s Decertification of the Iran Nuclear Agreement: What It Means and What’s Next

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HERE WE ANSWER A FEW OF THE QUESTIONS THAT YOU MAY HAVE

What does decertification mean?

For the time being, decertification is a solely U.S. issue. Under the Iran nuclear agreement (known as the Joint Comprehensive Plan of Action, or JCPOA), Iran agreed to limits on its nuclear program in exchange for relief from U.S. and UN sanctions. Soon after the JCPOA was signed, the U.S. Congress passed the Iran Nuclear Agreement Review Act (INARA). That law requires the president to certify to Congress every 90 days that Iran is meeting the terms of the nuclear agreement and that continuing to waive sanctions on Iran is vital to the security interests of the United States. President Trump has stated that on October 15, he will decertify Iran under INARA on the grounds that continuing to waive sanctions is not in the national security interests of the United States. Continue Reading

Predicting the Unpredictable: Foreign Investment Under the Trump Administration

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CFIUS has the power to unwind your M&A deal. That power will likely expand. That is the headline.

The Committee on Foreign Investment in the United States (CFIUS) reviews acquisitions by foreign parties of “critical industries” and “critical infrastructure” in the United States. The inter-agency committee’s actions warrant plenty of explanation, and you can find much of it here.

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Predicting the Unpredictable: Will Tariffs Under President Trump Cause a Trade War With China?

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President Trump has stated that he would impose tariffs on imports from China ranging from ten to forty-five percent. Can he do it? And will it cause a trade war?

The Effects of Increased Tariffs

In the 18th Century, tariffs were considered a method of generating revenue and protecting domestic industry. The first U.S. customs duties were imposed in 1789, and were considered vital to the economic survival of the young nation. That mercantilist approach has since been overwhelmingly rejected by mainstream economists. Even by the time of the American Revolution, specialization and comparative advantage were being touted (including by Adam Smith, whose Wealth of Nations was published in 1776) as the true route to national prosperity.

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Frequently Asked Questions About the Amnesty Program—Major Changes in the Antitrust Division’s January 2017 Update

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In the past, the Antitrust Division has used its “Frequently Asked Questions” piece to announce significant changes in the Amnesty Program. In  November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported “possible” criminal activity. FAQs, p.6, fn. 7

The Division’s January 17, 2017, edition makes two more very significant changes: (1) to obtain a marker, counsel must identify the client (FAQs, p.3) and (2) amnesty for executives is not guaranteed under the often-used Type B Leniency. In that situation, “…the Division has more discretion…”( FAQs, p. 22).

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