On December 15, 2022, the Financial Crimes Enforcement Network (“FinCEN”) of the Department of the Treasury announced a Notice of Proposed Rulemaking (the “Access Rule NPRM”)[1] to implement the requirements of the Corporate Transparency Act (“CTA”) with respect to access to beneficial ownership information (“BOI”) reported to FinCEN under the CTA.[2] The Access Rule NPRM would implement the CTA’s provisions on who may access BOI held by FinCEN, the circumstances under which access may be granted, and the conditions regarding use, security, and oversight of BOI. Separately, it proposes an approach to the use of “FinCEN identifiers” for corporate entities that FinCEN’s final BOI Reporting Rule left unaddressed.
Continue Reading FinCEN Proposes Rule Regarding Access to Beneficial Ownership Information under the Corporate Transparency ActOutbound Investment Screening Regime—EU May Follow In U.S. Footsteps
Foreign direct investment (“FDI”) control has historically been centred on inbound FDI, meaning investment inflow into a country. The tide is turning, as the United States seems ready to introduce an outbound FDI control mechanism, whereby capital outflow towards certain countries will be subjected to a screening process. Similarly, the European Commission (“Commission”) 2023 Work Programme indicates that the EC will “examine whether additional tools are necessary in respect of outbound strategic investments controls”, and is “prepared to revise the EU’s FDI screening regulation.”
Continue Reading Outbound Investment Screening Regime—EU May Follow In U.S. Footsteps
Lexology Getting the Deal Through: Foreign Investment Review 2023
Cleary Gottlieb partner Chase Kaniecki, associates Samuel Chang, Pete Young, William Dawley, and law clerk Stephanie Gullo co-authored the United States chapter in Lexology Getting the Deal Through: Foreign Investment Review 2023.
To read the chapter, click here or visit the Lexology website (subscription may be required.)
Russia and Beyond: Sanctions Developments and Lessons for Boards from 2022
The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.
This past year’s Russia-Ukraine conflict sparked a significant transformation of the global economic sanctions landscape, with developments and lessons extending well beyond Russia.
In 2023, boards of directors should continue to monitor Russia-related sanctions across multiple jurisdictions, be aware of the implications of sanctions developments for the energy sector and consider planning for sanctions and export control contingencies, particularly relating to China.
To read the full post, please click here.
For a PDF of the full memorandum, please click here.
PAIP Act Authorizes Sanctions for Trade Secret Theft by Chinese Actors
On January 5, 2023, President Biden signed into law the Protecting American Intellectual Property Act of 2022 (the “PAIP Act”),[1] bipartisan legislation that authorizes the imposition of sanctions on foreign persons that have engaged in significant theft of trade secrets of U.S. persons.[2]
Continue Reading PAIP Act Authorizes Sanctions for Trade Secret Theft by Chinese ActorsGerman FDI Reviews of Chinese Investments in 2022 Confirm the Current Trend – Strict Scrutiny and Political Dimension in Decision Making
2022 did not see as many legislative changes of the German foreign direct investment regime (“FDI Regime“) as in years before. However, several foreign direct investments with a Chinese nexus reviewed by the German FDI authority, the Federal Ministry of Economics and Climate Action (“BMWK“), attracted public attention in 2022:
Continue Reading German FDI Reviews of Chinese Investments in 2022 Confirm the Current Trend – Strict Scrutiny and Political Dimension in Decision MakingRecent OFAC Actions Related to the Oil Sector
In addition to the maritime services ban targeting Russian Federation-origin crude oil, which we wrote about here[1], the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”) recently has taken actions related to, and having implications for, the international oil sector. Certain of those actions suggest a potential easing of oil sector-related sanctions on Venezuela while others show a continued focus on the Iranian oil sector.
Continue Reading Recent OFAC Actions Related to the Oil SectorRecent Developments Regarding the Maritime Services Ban on Russian-Origin Crude Oil and Petroleum Products (with Price Cap “Safe Harbor” or Exemption)
On December 5, 2022, the maritime services ban targeting Russian-origin crude oil that previously had been announced by an international coalition of countries, including the United States, the European Union, and the United Kingdom, took effect. While each coalition member has enacted its own measures to give effect to the ban (as we discussed previously here[1]), the measures enacted by the coalition members are generally consistent and include the same major features, namely, a maritime services ban and associated price cap “safe harbor” or exemption.[2] Since the effective date of the maritime services ban, Russian President Vladimir Putin has issued a decree prohibiting the supply of Russian-origin oil and oil products to certain foreign persons applying the price cap, and OFAC has issued additional guidance relating to the upcoming implementation of the maritime services ban with respect to Russian-origin petroleum products.
Continue Reading Recent Developments Regarding the Maritime Services Ban on Russian-Origin Crude Oil and Petroleum Products (with Price Cap “Safe Harbor” or Exemption)Potential Outbound Investment Screening Regime Receives Federal Funding
On December 29, 2022, President Biden signed into law the Consolidated Appropriations Act, 2023 (the “Bill”),[1] which allocated approximately $1.7 trillion in federal funding to various government agencies, including the U.S. Department of Commerce (“Commerce”) and the U.S. Department of the Treasury (“Treasury”).
Continue Reading Potential Outbound Investment Screening Regime Receives Federal FundingFrench Government Issues Guidelines on FDI Regulation
On September 9, 2022, the French Ministry of Economy (the “Minefi”) issued its first guidelines on the regulation of foreign investment control in France (“FDI Regulation”) (the “Guidelines”).[1]
The Guidelines were eagerly awaited as certain provisions of the FDI Regulation leave room for discretion and there is no published decision-making practice on which the relevant stakeholders may rely. While the Guidelines do not constitute an element of hard law, they provide useful insight into the official interpretation of certain elements of the FDI Regulation. By contrast, clarifications regarding the identification of “sensitive activities” remain underwhelming.
Continue Reading French Government Issues Guidelines on FDI Regulation