Global Compliance Issues. Alan Gourley Michael Koebele Gareth Austin Adelicia Cliffe

Transcription

1 Global Compliance Issues Alan Gourley Michael Koebele Gareth Austin Adelicia Cliffe

2 Global Compliance Issues What you need to know about EU export controls for dual use items: The new EU Regulation 428/2009 Dr. Michael Koebele, LL.M. Crowell & Moring 71 Rue Royale Brussels, Belgium Tel.:

3 Overall Multilevel Framework for Export Controls in EU Dual use goods, technology & software New Regulation 428/2009 provides for common rules directly applicable in all EU Member States National additions General application and implementation by EU Member States (not the EU!) Military goods & technology Sovereignty concerns still within competence of EU Member States National Legislation and Practice Coordination among EU Member States through Common EU Policy (Military List, Code of Conduct) EU Sanction Regulations may provide for additional restrictions Prominent example: Iran Currently no overall trade embargo

4 Items Subject to Transit License or Prohibition Introduction of new transit control regime in Regulation 428/2009 For non-eu dual-use items which only pass through the territory of the EU Neither of EU origin Nor in free circulation EU customs laws provide for re-export declaration for any good in transit = export EU Member States may impose prohibitions or licensing requirements for Annex I items if Possible use as WMD item Possible military use in embargoed country EU Member States may impose prohibitions or licensing requirements for non-annex I items if Possible use as WMD item

5 Intermediation Services (1) New rules on brokering; brokering for dual use items previously not covered at EU level Broker is any Legal or natural person Resident or established in EU Member State Brokering is Buying Selling Negotiation or Arrangement of transfer of Annex I items from one third country to another third country

6 Intermediation Services (2) Ancillary services not covered Transportation Financial services Insurance Re-insurance General advertising or promotion This may be different under EU Sanction Regulations! License is required if Broker is informed by national authorities Broker has grounds to suspect illicit use

7 Intangible Exports Transmission of software, technology or by electronic media to a destination outside the EU, including by Fax Telephone Making available in electronic form software and technology to legal and natural persons and partnerships outside the EU Oral transmission of technology when described over the telephone Exporter is natural or legal person or partnership which decides to transmit or to make information available Regulation 428/2009 does not apply to services rendered by EU persons outside the EU => but: EU Member States

8 Global Compliance Issues The UK Bribery Act 2010 Gareth Austin Associate London

9 Overview History/background Bribery Act April 2010 New offences Extra-territoriality Penalties Wider than FCPA Comment

10 The Bribery Act 2010 Four offences: the act of bribing someone (s.1) the act of being bribed (s.2) bribing a foreign public official (s.6) corporate offence of failing to prevent bribery (s.7). (private/public)

11 The Bribery Act 2010 Extra-territoriality Section 1, 2 or 6 offences any ingredient of offence in UK; or No ingredient but close connection with UK. S.6 written law defence. Failing to prevent bribery - strict liability offence.

12 The Bribery Act 2010 Differences with FCPA: No corrupt intent require intent to influence Public/private Offence of failing to prevent bribery Facilitation payments Promotional expenditure

13 The Bribery Act 2010 Strict liability means companies can not ignore Extra-territoriality effect on US organisations adequate procedure guidance to be issued. Facilitation payments/promotional expenditure will constitute an offence FCPA compliance policies will need to be reviewed. Monitoring/audits/training. Proceeds of Crime Act / Confiscation

14 Global Compliance Issues U.S. Developments in Brief Adelicia Cliffe Associate Washington, DC

15 Trade Agreements Act Chinese Taipei (Taiwan) added as party to the WTO GPA TAA thresholds updated by USTR Supply contracts = $203,000 Construction contracts = $7,804,000

16 American Reinvestment and Recovery Act of 2009 The Recovery Act distributes $787 billion Of the $275B allocated for contracts, grants, and loans, $100B has been paid out as of April 30, 2010

17 Canada/US Agreement on Government Procurement Effective February 16, 2010 Long term impact on TAA: opening up subentities

18 Canada/US Agreement on Government Procurement Short-term: Recovery Act U.S. would not give blanket waiver For 7 specific programs, Canadian iron, steel and manufactured goods treated as domestic In exchange, U.S. given access to certain construction projects at municipal level during the Recovery Act funding period

19 U.S. Export Controls Export control reform announced by Obama administration in 2010 Proposed substantial changes to export control regime

20 Questions