Baker McKenzie’s Sanctions Blog published the alert titled OFAC reissues general license extending authorization period for transactions related to energy on 11 November 2022. Read the article via the link here. Please also visit our Sanctions Blog for the most recent updates.
Regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards. Competition law has been particularly susceptible to arguments that traditional safeguards should be discarded to aid regulators in securing convictions. In the first competition case to go to trial in Hong Kong, the Competition Tribunal held in 2019 that in competition proceedings seeking financial penalties, the authority had the burden to prove its case beyond reasonable doubt. This article considers the approach taken in other common law jurisdictions and scope to argue for increased safeguards and human rights protections for clients facing financial penalties.
On 29 September 2022, FinCEN released the final regulations regarding Beneficial Ownership Information Reporting Requirements which implement the beneficial ownership information reporting provisions of the Corporate Transparency Act.
As an unfortunate consequence of the deterioration of the US-China relationship, more and more Chinese companies are divesting and exiting their US-based operations. In order to execute a smooth exit from US operations, Chinese companies should retain a good US financial adviser. Careful consideration should also be given to how the asset is packaged, preparing stand-alone audited financial statements, and optimizing the business for post-closing operations. Chinese companies should be prepared to use US law and engage in longer negotiations as a result. CFIUS-related requirements and risks should be understood during the early stages of the deal.
On 20 October 2022, the US Treasury Department released the first Committee on Foreign Investment in the United States Enforcement and Penalty Guidelines. The Guidelines provide visibility into factors CFIUS considers when assessing violations of CFIUS laws and regulations, and determining potential penalties. The Guidelines are applied by the Monitoring and Enforcement office, which is part of the US Treasury Department’s Office of Investment Security.
On 7 October 2022, the US Commerce Department’s Bureau of Industry and Security issued the much anticipated rules aimed at restricting China’s ability to obtain advanced computing chips, develop and maintain supercomputers, and manufacture advanced semiconductors. In addition to formalizing the licensing requirements included in the recent BIS “is informed” letters issued to certain US companies on related matters, the Rule imposes a wide range of new and enhanced restrictions targeting China’s advanced computing and semiconductor sectors.
Please join us for a weekly series, hosted by Baker McKenzie’s North America Government Enforcement partners Jeffrey Martino and Jerome Tomas.
This weekly briefing is available on demand and will cover hot topics and current enforcement actions related to white collar crime and criminal investigations in the US and abroad to arm you with the information you need for your business week.
This week’s discussion will cover the following:
• DOJ’s Scrutiny on Interlocking Directorates spurs Board resignations
• DOJ files its first criminal Section 2 attempted monopolization case in decades
On 19 September 2022, the US Attorney for the District of Montana and the US Department of Justice, Antitrust Division filed a criminal information against and plea agreement with the president and owner of a paving and asphalt company to resolve a charge of attempted monopolization. The company owner pled guilty to engaging in anticompetitive conduct with the intent to gain monopoly power in the markets for highway crack sealing services in Montana and Wyoming by proposing to a competitor that they enter into a market-allocation agreement in which the two companies would stop competing against each other by dividing territories in Montana and Wyoming. The company owner also agreed to pay a fine of USD 27,000.
On 19 October 2022, the US Department of Justice’s Antitrust Division announced that seven directors had resigned from their respective corporate board positions in response to concerns of interlocking directorates. This announcement followed reports that DOJ had issued letters to numerous public companies, investors, and individuals last month. The letters reportedly indicated that DOJ was examining potential interlocks and advised the targets of the risk of potential enforcement actions. DOJ’s muscular posture toward enforcement under Section 8 of the Clayton Act is only the “first in a broader review of potentially unlawful interlocking directorates.”
Baker McKenzie’s Sanctions Blog published the alert titled OFAC, BIS, and Department of State Issue Alert on the Impact of Sanctions and Export Controls Targeting Russia on 17 October 2022. Read the article via the link here. Please also visit our Sanctions Blog for the most recent updates.