On April 19, 2023, the U.S. Supreme Court issued its highly-anticipated decision in U.S. v. Halkbank,[1] holding that the Foreign Sovereign Immunities Act (“FSIA”)[2] does not provide foreign sovereigns with immunity from criminal prosecution in U.S. courts.
Continue Reading U.S. Supreme Court Holds FSIA Does Not Immunize Foreign Sovereigns From Criminal ProsecutionUK National Security Regime: Enforcement Practice and Updated Guidance
On 27 April 2023, the UK Government published updated guidance on its recently introduced national security and investment screening regime.
Continue Reading UK National Security Regime: Enforcement Practice and Updated GuidanceCommission Consults on Notification Requirements and Process for EU Foreign Subsidies Regulation
On February 6, 2023, the European Commission (“Commission”) launched a public consultation on its proposed rules and procedures for merger and public procurement notifications under the EU Foreign Subsidies Regulation (“FSR”).
Continue Reading Commission Consults on Notification Requirements and Process for EU Foreign Subsidies RegulationFinCEN Proposes Rule Regarding Access to Beneficial Ownership Information under the Corporate Transparency Act
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 Sector