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Navigating Through Stepped-Up Controls and Scrutiny
Ever-evolving national security and foreign policy priorities increase risks for companies with international business interests. Without experienced legal guidance, even routine business transactions can run afoul of U.S., U.K. and European Union (EU) export control and sanctions laws. In the current political climate, companies confronted with enforcement actions also face the possibility of damage to their relations with government officials, their stockholders and the general public.
With that in mind, our reach extends to markets around the world through Akin Gump lawyers and our extensive network of local counsel. We have broad experience in:
Defense and Dual-use Trade Controls
- Multilateral regimes: including the Missile Technology Control Regime (MTCR), the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, the Biological Weapons Convention (BWC) and the Nuclear Suppliers Group.
- United States: International Traffic in Arms Regulations (ITAR) administered by the U.S. Department of State Directorate of Defense Trade Controls (DDTC) and related import provisions administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); Export Administration Regulations (EAR) and antiboycott regulations administered by the U.S. Department of Commerce and its agencies, including the Bureau of Industry and Security (BIS), Office of Antiboycott Compliance (OAC) and the Census Bureau; as well as nuclear trade controls as administered inter alia by the U.S. Department of Energy (DOE).
- United Kingdom and Europe: the U.K. Export Control Organisation (ECO), the EU Dual Use Regulation, the EU Common Military List and the EU Common Position on export licensing criteria for military items, as implemented, administered and enforced by EU member countries’ national authorities (e.g., German Federal Office for Economic Affairs and Export Control (BAFA), French Dual-Use Items Service (SBDU)/Ministry of Defense (DGA) and Netherlands Central Import and Export Office (CDIU)).
International Sanctions Programs
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- United Nations: sanctions adopted by the United Nations Security Council and implemented by U.N. member countries.
- United States: programs administered by the U.S. Office of Foreign Assets Control (OFAC) and the U.S. State Department.
- United Kingdom and Europe: sanctions regulations adopted by the U.K. and the EU Council, as implemented, administered and enforced by EU member countries’ national authorities (e.g., U.K. Office of Financial Sanctions Implementation (OFSI), BAFA and Netherlands ministries of Foreign Affairs and Finance).
Nuclear Trade Controls
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- Multilateral nonproliferation treaties and regulatory controls on nuclear technology and commodities administered by the DOE and the Nuclear Regulatory Commission (NRC), including Part 810 Regulations controlling the transfer of nuclear technology and assistance administered by the DOE’s National Nuclear Security Administration (NNSA), and Part 110 Regulations controlling the export and import of nuclear equipment and material administered by the NRC.
Over the course of decades working in these sensitive, often highly politicized arenas, we have gained a reputation for attaining positive results that simultaneously honor the privacy and discretion that our clients demand.
Akin attacks the new breed of overlapping global trade regimes through a comprehensive, multidisciplinary approach. We draw on the considerable legal and policy skills of our lawyers across key practices to address the global compliance needs of clients engaged in cross-border trade. As needed, our extensive internal resources in corporate, energy, public law and policy, white collar criminal defense and other critical areas are all brought to bear to solve clients’ international trade problems.
Our global trade controls practice stands ready to aid clients in expanding and maintaining efficient cross-border trade in today’s challenging international marketplace. From Fortune 500 companies to smaller entrepreneurial enterprises, we have assisted clients regarding compliance, enforcement, licensing and policy concerns in numerous industries, including aerospace, electronics, energy, equipment manufacturers, investment funds and private equity, and technology.
Export Control Reform
As part of the Obama administration’s Export Control Reform (ECR) initiative, the U.S. government overhauled its export control framework, which includes the EAR and the ITAR. Our lawyers were at the forefront of the ECR initiative, and our team includes the former Assistant Secretary of Commerce for Export Administration, who was the primary strategist, negotiator and implementer of the ECR initiative. Our team members also have experience working on site at companies to implement all aspects of the new rules, from jurisdiction and classification of legacy and new items, to operationalizing the new requirements in information technology (IT) systems. We work closely with clients to analyze the licensing implications of ECR and identify favorable licensing authorities, such as license exceptions and exemptions.
Emerging Technologies
Our team works closely with U.S. regulators, EU and EU member state export controls regulators, and authorities in other jurisdictions, as well as with our clients, to understand and effect export control requirements for emerging technologies and IT systems. Today’s global business environment requires worldwide coordination, rapid transfer of information and vast amounts of data storage. In order to remain effective, export control requirements must take into consideration emerging technological advances, such as cloud computing, advanced encryption controls, the use of cyber surveillance technology, and data privacy and cybersecurity considerations. Akin lawyers assist clients and also work with the relevant government agencies in the U.S., U.K. and the EU and other jurisdictions to think through these issues and work toward business-friendly solutions that simultaneously advance the ultimate goals of national security and cybersecurity.
Technology Solutions
We developed in-house, and deployed for our clients, customized and innovative IT solutions for international trade controls risk assessments, audits and investigations. Our experience designing and managing large-scale IT systems for businesses to operationalize and validate business requirements, coupled with our background in applicable international trade laws and international trade controls management, positions Akin to maximize our client’s abilities to manage their compliance responsibilities efficiently and effectively. We can leverage the tools that we have developed—including forms, checklists, standard work, quick reference guides, training materials and frequently asked questions (FAQs)—to translate complicated compliance requirements into user-friendly business processes. We also have highly experienced project managers to aid in the sequencing, management and process flow of large-scale compliance projects.
Our work in this area is notable. We have received recognition by Financial Times in its Most Innovative North American Law Firms competition for our work to automate compliance processes relating to international trade controls, most recently in 2022. Additionally, CIO magazine has honored Akin Gump in its “CIO 100 Awards” as an organization that effectively uses IT to create business value and applies it in “innovative ways to deliver competitive advantage to the enterprise and enable growth.”
Compliance
We develop, implement, audit and evaluate internal control programs and procedures to ensure compliance with interlocking, complicated defense trade controls, dual-use export controls, sanctions programs and other regulatory schemes. We advise clients on how these laws apply to their operational business activities and offer regulatory training for in-house staff. We also assist clients with transactional diligence and foreign investment decisions.
Enforcement
By conducting internal compliance audits and investigations, we help companies identify potential violations of export controls and economic sanctions programs, assess related liabilities, and develop mitigating and remedial measures and strategies. We help clients prepare and submit voluntary disclosures of violations to the relevant government agencies and negotiate the most favorable possible resolutions. Moreover, we defend clients in administrative proceedings and litigation, including civil and criminal investigations and enforcement actions initiated by the Department of Justice (DOJ) and other U.S. government agencies, as well as before EU member state authorities and enforcement agencies. We also work with companies designated U.S. government restricted party lists, including the BIS’s Entity List.
Classification and Licensing
To assist our clients in determining which regulatory regimes govern specific products or transactions, we provide legal analysis and practical assistance, and prepare applications for commodity jurisdiction rulings, commodity classification determinations and specific authorizations and licenses.
Transactional Diligence and Foreign Investment
Our lawyers regularly assist clients with international investment decisions and transactions by conducting due diligence reviews of export control issues, addressing related concerns that arise, and preparing risk-factor assessments and disclosures. In addition, for transactions involving foreign investment in the United States, our lawyers regularly represent and advise clients in front of the Committee on Foreign Investment in the United States (CFIUS). Our team assists clients in all stages of a CFIUS review, from first determining whether a voluntary submission to CFIUS is warranted, to engaging key CFIUS members in pre-filing discussions, and finally assisting clients during the review and investigation stages, including facilitating negotiations between clients and CFIUS to avoid the possibility of a post-closing mitigation agreement or divestiture order. Akin assisted numerous companies in successfully navigating the CFIUS review process.
Public Policy
As a heralded public policy and advocacy firm, we actively involved in the export control and sanctions-related reform initiatives of the President’s Export Council Subcommittee on Export Administration, congressional working groups, the American Bar Association, and other professional associations and private business coalitions. We apprise international trade clients of the relevant legislative initiatives and the public policy debate—in Washington, D.C., the capitals of other countries and multilateral organizations, such as the United Nations—as well as the development of state and local sanctions laws. We then work with clients to help shape these policy developments. Our lawyers and advisors assist clients—including sovereign governments—in drafting proposed legislation. We lobby the congressional and executive branches, advise Congress on legislative initiatives, and help draft and present congressional testimony focusing on export controls and economic sanctions concerns.
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