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The EU Foreign Subsidies Regulation (FSR) entered into force on January 12, 2023 and will start to apply from July 12, 2023. Under the FSR, the European Commission will have powers to intervene against distortions to competition in the EU internal market caused by companies active in the EU that benefit from foreign subsidies. A new notification regime will be introduced for certain M&A transactions and public tenders that is independent from current EU/national merger control and foreign direct investment notification requirements, and the Commission will have powers to conduct investigations into potentially distorting foreign subsidies.

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The European Union has adopted the new EU Deforestation Regulation, whereby applicable companies must implement a rigorous due diligence process to ensure that certain products and commodities sold in or out of the EU are not the result of, or have led to, deforestation or forest degradation. The commodities subject to the Regulation are cattle, cocoa, coffee, palm-oil, soya and wood, as well as any products that contain, have been fed with or made using these commodities (e.g., leather, chocolate and beef). Once it enters into force, large companies will have 18 months to comply, while small and medium-sized companies will have 24 months. Failure to do so may result in a fine of at least 4% of total annual EU-wide turnover or the seizing revenue made from the sale of the commodities or products.

Companies should review whether (and how) they are caught by the new law and review existing processes, governance frameworks and supply chain risks to ensure that new obligations (e.g., with respect to due diligence) are adhered to.

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In a recent enforcement action against GM, the Department of Justice (DOJ) Civil Rights Division emphasized that employers subject to export control obligations must still comply with federal laws against discrimination on the basis of immigration status, national origin or citizenship. Guidance accompanying the enforcement action indicates that the DOJ has expectations of companies in their hiring processes that may create challenges for efforts to comply with export control regulations that protect sensitive goods, software and technology.

In “Where Employment and Trade Compliance Intersect—Protecting Your Company in a World of Dueling Enforcement Risks for Export Controls and Anti-Discrimination,” colleagues Aaron R. Hutman, Julia E. Judish and Toochi L. Ngwangwa explore this recent action, the new guidance and the competing compliance obligations that companies will need to navigate as a result.

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In response to recent concerns regarding national security, law enforcement and foreign ownership of telecommunications services, the FCC has released an Order and Notice of Proposed Rulemaking (NPRM) relating to international Section 214 authorizations. (International Section 214 authorizations are issued to telecommunications providers that seek to offer international services originating or terminating in the United States.) In “FCC Adopts International Section 214 Authorization Order and NPRM to Address National Security Concerns Posed by Foreign Ownership,” colleagues Glenn S. Richards, Adam J. Sandler and Lee G. Petro examine the order and NPRM more closely.

 

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Takeaways

  • Sanctions operate prospectively and do not affect payment obligations to a non-sanctioned party accruing before sanctions became effective.
  • Payment obligations under standby letters of credit at issue were autonomous and unconnected with the underlying transaction.
  • The fulfilment of an independent obligation owed by a German bank to Irish-incorporated aircraft lessors was found not to have intended to benefit the Russian entities involved in other elements of the transaction.

The English Court recently confirmed that sanctions do not excuse non-payment to a non-sanctioned party where the aircraft lease arrangements and related letters of credit were created before sanctions came into effect: Celestial Aviation Services Limited, Constitution Aircraft Leasing (Ireland) 3 Limited and another v UniCredit Bank AG (London Branch) [2023] EWHC 663 (Comm).

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On March 22, 2023, the Department of Defense (DoD) published a proposed rule to amend Defense Federal Acquisition Regulation Supplement (DFARS) clause 252.225-7048. This amendment would implement an additional export control requirement for certain contractors. Specifically, the amendment would require contractors to provide the Defense Contract Management Agency (DCMA) certain information concerning export authorizations obtained or relied upon to perform contracts requiring both (1) delivery to, or production or performance in, “government quality assurance countries” and (2) “government quality assurance surveillance oversight.”

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On March 21, 2023, the U.S. Department of Commerce released a Notice of Proposed Rulemaking (NPRM) imposing guardrails preventing the “improper use of funds” made available under the CHIPS Act of 2022. In “Commerce Releases New Proposed Rule Governing Restrictions on Chinese Investments by CHIPS Act Applicants,” members of our International Trade team break down the proposed rule, which tightens restrictions on activities by “affiliates” and clarifies scope of statutory clawbacks.

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Many application windows for grants, loans and other incentives have opened since the passage of the Inflation Reduction Act, the CHIPS and Science Act (CHIPS) and the Infrastructure Investment and Jobs Act (IIJA), which provide about $2 trillion in federal funding and offers businesses and organizations a rare opportunity to apply for federal grants or take advantage of other federal incentive benefits.

In “Application Windows Opening for New Federal Funding,” colleagues Nancy Fischer, Elizabeth Vella Moeller and Aimee Ghosh examine these opportunities, along with compliance and eligibility obligations.

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The Cyberspace Administration of China (CAC) issued the final version of the Measures on the Standard Contract for the Cross-Border Transfer of Personal Information (Standard Contract Measures) on February 24, 2023, which includes a template standard contract (Standard Contract). The Measures will take effect on June 1, 2023, but set forth a six-month grace period until December 1, 2023, to provide companies with time to take actions for compliance.

In their recent client alert, “China Publishes Measures on Standard Contract for Cross-Border Transfer of Personal Information,” colleagues Jenny (Jia) Sheng, Chunbin Xu and Wenjun Cai break down the details of this final version, including a discussion of when Standard Contract Measures apply, the Personal Information Protection Impact Assessment (PIPIA) and notable compliance obligations.

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On February 24, 2023, the one-year anniversary of the Russia-Ukraine conflict, the United States released extensive new measures designed to impose additional sanctions on Russia for its aggression against Ukraine. These new measures are summarized below.

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