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20-1207 Monday “Daily Bugle”

20-1207 Monday “Daily Bugle”

 this copy of the Daily Bugle to others or share this subscription link
Monday, 7 December 2020

  1. Treasury/OFAC: “Blocking or Unblocking of Persons and Properties”
  1. Items Scheduled for Future Federal Register Edition
  2. Commerce/BIS: (No new postings)
  3. State/DDTC: “DECCS Tips and Tricks Webinar”
  4. Federal Court Denies Motion to Suppress Evidence of ITAR Violation Seized from Defendant’s Laptop and iPhone
  1. EUS: “EU Study On “Extraterritorial Sanctions” & EU Responses”
  2. South China Morning Post: “Are China’s Export Control Law and the RCEP Pulling in Different Directions? Not Quite”
  3. The National Review: “China Promulgates First Export Control Law”
  1. K&L Gates: “China Overhauls Its Export Control Regime: What China’s New Export Control Law Changes and How to Respond”
  2. PWC: “China Export Control Law to Take Its Effect per 1 December 2020”
  3. Steptoe: “Second Circuit’s Decision in Mangouras: Implications for Privilege Assertions in Cross-Border Investigations”
  1. Monday List of Ex/Im Job Openings: 74 Jobs Available – 10 New Job Openings This Week
  1. FCC Academy Presents: 2 Feb 2021; “U.S. Export Controls – The ABC of FMS”
  1. Bartlett’s Unfamiliar Quotations 
  2. New Version of the BAFTR is Available Today 
  3. Are Your Copies of Regulations Up to Date? Find the Latest Amendments Here. 
  4. Weekly Highlights of the Daily Bugle Top Stories 
  5. Submit Your Job Opening and View All Job Openings 
  6. Submit Your Event and View All Approaching Events 

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load to your laptop to keep you updated on the latest amendments, and contain over 800 footnotes of section history, key cases, practice tips & tricks, and extensive Tables of Contents.  The ITAR amendment of the ITAR that took effect on 28 September is included in the current edition of the BITAR.  Subscribers receive updated editions every time the regulations are amended (usually within 24 hours) so you will always have the current versions of the regulations.  Subscribe to the BITAR here to guarantee you have an up-to-date ITAR!

EXIM ITEMS FROM TODAY’S FEDERAL REGISTER

(Source: Federal Register) [Excerpts]
 
85 FR 78934: Notice
 
* AGENCY: Office of Foreign Assets Control, Department of the Treasury.
* ACTION: Notice.
* SUMMARY: The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) is publishing the name of a person that has been placed on OFAC’s Specially Designated Nationals and Blocked Persons List based on OFAC’s determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of this person are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
* DATES: See Supplementary Information section for effective date(s).
* FOR FURTHER INFORMATION CONTACT:OFAC: Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.

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OGS OTHER GOVERNMENT SOURCES

(Source: Federal Register)
 

* TreasuryOFAC; Notices; Blocking or Unblocking of Persons and Properties; [Pub. Date: 8 Dec 2020] (PDF)
 
* Justice/ATF; Notice; Release and Receipt of Imported Firearms, Ammunition and Defense Articles; ATF Form; [Pub. Date: 8 Dec 2020] (PDF)

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OGS_a23. Commerce/BIS: (No new postings)

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Please join DDTC’s CIO Karen Wrege and team to discuss the core topics facing DECCS users. In this session, we will review how DECCS continues to help DDTC and our users meet mission during these challenging times. We will discuss the road ahead for DECCS and how you can get involved to help guide the next round of updates. We will demonstrate tools you can use to find the answers you need when working in the system. And as always, we will leave plenty of time for Q&A.
Topics to be discussed:
* State of the System: System stats and related outcomes
* DECCS Roadmap: Virtual Agent, DECCS User Group, and One Form
* Self-Service Tools demo
Login Details are below:
Date: This Wednesday, December 9th
Time: 2:00 pm – 3:00 pm EST
URL: WebEx
Important – If password is required when entering WebEx, type ‘Census#01’.
Dial in for audio: 1-888-469-1342
Passcode: 2 1 9 8 4 8 6 #

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OGS_a45. Federal Court Denies Motion to Suppress Evidence of ITAR Violation Seized from Defendant’s Laptop and iPhone

(Source: 2020 WL 7024650) [Excerpts]
 
* Case:  United States v. SHUREN QIN et al.
* Court: U.S. District Court, D. Massachusetts; Criminal No. 18-cr-10205
* Date: Filed 30 Nov 2020
MEMORANDUM AND ORDER 

* Judge: Denise J. Casper, U.S. District Judge

I. Introduction
   Defendant Shuren Qin (“Qin”) has moved to suppress evidence seized from his laptop computer and iPhone and statements he made to agents during a secondary inspection upon his return to the United States from China at Logan Airport on November 24, 2017. D. 212.  
   Having considered the evidence offered by the parties at an eight-days-long hearing (conducted on various dates between December 2019 and August 2020) and the arguments of counsel presented in their various filings and during the hearing, the Court DENIES the motion to suppress, D. 212.  
   At a minimum, the agents had reasonable suspicion for the search and seizure on November 24, 2017 and, any statements made by Qin were non-custodial statements not in contravention of the Fifth Amendment. In support of same, the Court makes its findings of fact and legal analysis below.  
. . . .
IV. Discussion
   A. Fourth Amendment Does Not Warrant Suppression of the Electronic Devices Seized on November 24, 2017 at Logan Airport
 
1. At a Minimum, Agents Had Reasonable Suspicion to Conduct the Search and Seizure on November 24, 2017
   Pursuant to the Fourth Amendment, “[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Carpenter v. United States, U.S. , 138 S. Ct. 2206, 2221 (2018)United States v. Wurie, 728 F.3d 1, 3 (1st Cir. 2013). The government, which bears the burden of showing that a warrantless search was reasonable, United States v. Bain, 874 F.3d 1, 17 (1st Cir. 2018), initially relies upon the border search exception for the search and seizure of Qin’s electronic devices at Logan Airport on November 24, 2017. D. 226 at 19. For reasons consistent with this Court’s ruling in Alasaad v. Nielson, 419 F. Supp.3d 142 (D. Mass. 2019), appeal pending, No. 20-1081 (1st Cir. Jan. 29, 2020), the Court rejects the government’s reliance on this exception here for what amounts to a non-routine search.8 The Court concludes, however, that the agents had, at a minimum, reasonable suspicion to search Qin’s electronic devices for contraband on November 24, 2017.
. . . .
Electronic devices “can contain digital contraband.” United States v. Cano, 934 F.3d 1002, 1014 (9th Cir. 2019) (emphasis in original); D. 226 at 35. That is certainly true here, where the export of technical data for controlled exports would be a violation of export laws in the same way that the underlying export would be. Such technical data were among the items and information that agents were concerned that Qin had obtained from U.S. manufacturers and were among the items that they sought in the grand jury subpoena to Marine Sonic, Exh. 9, before Qin was stopped at Logan on November 24, 2017, and later in the search warrant for the laptop and phone, Exh. 21, 23; IV:60, 67. DOC agents assisted in the search of the devices as the agents were “looking for any potential technical data that could turn up on his computer that could require a license from the Department of Commerce for the export of those documents.” VI:39; Exh. 38. Such technical data could be proprietary data, trade secrets, schematics, diagrams, technical know-how. V:71; VI:41, 47. If Qin had technical data on his devices when he went to China, it could constitute export violations. IV:60. It was reasonable for the agents to suspect same given the nature of Qin’s recent contact with U.S. manufacturers and that he was an authorized reseller of some manufacturers in China, IV: 95, including Marine Sonic. VII:87.
. . . .
2. Search and Seizure of Electronic Devices was Reasonable in Scope
   Qin also challenges the reasonableness of the scope and duration of the border search of his electronic devices which extended sixty days after the November 24, 2017 encounter at Logan Airport. As with a stop and search under Terry v. Ohio, 392 U.S. 1, 30 (1968), the government must show that same was both “justified at [its] inception” and reasonable in terms of its scope. Id. at 6. It is well settled that the concept of the “border” extends beyond the actual border to the “functional equivalent of the border.” Kim, 103 F. Supp. 3d at 57. This is particularly true as to forensic search of electronic devices that cannot be conducted at the border. Molina-Gomez, 781 F.3d at 21.  
   The Supreme Court has not set a bright line for the detention of electronic devices at the border, declining any “hard-and-fast time limits,” but directing courts to assess the reasonableness of same in terms of “common sense and ordinary human experience.” United States v. Montoya de Hernandez, 473 U.S. 531, 543 (1985) (internal citation omitted). In concluding that the border search of electronics, including a laptop, did not become unreasonable during the twenty-two day detention of same, the First Circuit declined to “second guess the techniques used by the [forensic] lab” to require a faster alternative.  Although the detention of Qin’s electronic devices was longer than in Molina-Gomez, there were circumstances here that warranted the longer detention.     
   First, a reasonable examination of Qin’s devices could not be conducted at Logan as SA Valentine explained. V:74-75.  
   Second, they determined that there was an extensive amount of data on the devices, some of the data on the laptop appeared to be encrypted and most of the data was in Mandarin. Although it took some time to attempt to get information that the agents thought they needed to access the encrypted files from Qin, most of the delay was attributed to their need to find a Mandarin speaking agent who could assist them in assessing the contents of the devices. It took until mid-December 2017 to have an agent from another city assigned to do so and it took her two trips to Boston in mid-December and then again in January 2018 to assist the agents.  
   The reasonableness of the detention of electronic devices have to assessed in terms of the circumstances presented in a particular case, see House v. Napolitano, 11-10852, 2012 WL 1038816, at *9-10 (D. Mass. Mar. 28, 2012) (denying motion to dismiss Fourth Amendment claim based upon the forty-nine-day detention of an electronic device at the border, but not reaching merits of whether detention was reasonable), and given the record here, the Court does not conclude the detention of the devices was unreasonable.
   For all these reasons, the Court concludes that the search and seizure of Qin’s electronic devices did not violate the Fourth Amendment.
. . . .
V. Conclusion.  For the aforementioned reasons, the Court DENIES Qin’s motion to suppress.  So Ordered.
 
 

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COM NEWS

 
At the request of the European Parliament Committee on International Trade, the EU Directorate General for External Policies of the EU has published a study on extraterritorial sanctions on trade and investments and European responses.
The study says US sanctions directed against Iran, Cuba and Russia (Nord Stream 2) have become “a critical challenge for the EU” and that other international players, such as China, may also adopt such measures. It assesses the economic impact of these measures and suggests that the EU could:
  • Intensify “the coherent and joint voicing of the lack of legality of extraterritorial sanctions with third countries and institutions” because “consistent statements may have an impact on the political discourse in the US, send a strong signal to the international community and contribute to the urgently needed clarification of international law on the issue”;
  • Encourage and assist EU businesses in bringing claims in international investor-state arbitration and in US courts;
  • Invite Member States to bring inter-State disputes under bilateral treaties and complaints in the WTO;
  • Consider taking “unfriendly acts”, e.g. in relation to diplomatic/consular relations, or eventually countermeasures against “illicit sanctions”;
  • Consider using SWIFT to block transactions as a sanction or countermeasure (as a last resort in response to “grave violations of international law with important repercussions for the EU”);
  • Counter the effects of foreign sanctions by robust EU blocking legislation and enforcement by Member States, including by extending the Blocking Statute to cover US measures concerning Nord Stream 2;
  • “Improve INSTEX”‘
  • Promote the Euro to take a larger role in the international financial system; and
  • Establish an EU agency of Foreign Assets Control (EU-AFAC) to promote credibility and provide practical assistance to EU businesses.

(Source: South China Morning Post, 7 Dec 2020)
 
Even as the world’s largest free-trade deal was being negotiated, China was drafting its export control law. This indicates that while Beijing is emphasising economic integration within Asia, its position is more defensive towards countries further afield.
 
For China’s policymakers, the Regional Comprehensive Economic Partnership
marks a new milestone in Asian regional economic integration. In 2019, China’s total trade with RCEP member states accounted for about one-third of its total foreign trade, while investment from other RCEP economies made up more than 10 per cent of China’s total foreign investment.
After the agreement takes effect, which could be as early as mid-2021 depending on it being ratified by several countries, more than 90 per cent of the goods trade in the region will eventually achieve zero tariffs. According to estimates by international think tanks, by 2030, the RCEP is expected to drive a regional net increase of US$519 billion in exports and US$186 billion in national income each year.
As this unfolds, China’s policymakers are stepping up a more combative approach towards the US and 
other international players outside East and Southeast Asia.
Around the time the RCEP was in the final stages of negotiation, China was finalising its 
export control law, which took effect on December 1. It is the country’s first comprehensive law on export control, aiming to advance its interests and national security.

(Source: The National Review, 4 Dec 2020) [Excerpts]
 
After several rounds of revisions, China finally adopted its first Export Control Law (ECL), which went into force on December 1, 2020. In general, we consider the ECL general, vague and hard to be implemented in practice without further adopting implementation rules. It incorporates many concepts from the US export control laws, but with few details. Given that the controlled item list and the implementation rules are not yet published, the actual implementation of the law will likely occur next year.
 
Scope of Coverage
The ECL regulates military, nuclear, and dual-use items, as well as other products relating to national security. In this sense, the ECL seems to be a combination of the US International Traffic in Arms Regulations (ITAR), the US Export Administration Regulations (EAR) and laws regulating nuclear and other national security-related products. Given the broad coverage and the need to regulate military and dual-use items differently, the ECL has separate chapters and regimes that apply to military items and dual-use items.

COM COMMENTARY

(Source: K&L Gates, 7 Dec 2020)
 
* Principal Author: Yujing Shu, Esq., 86-10-5817-6100, K&L Gates
 
On October 17, 2020, the Standing Committee of the National People’s Congress of China passed and adopted the Export Control Law of China (the ECL), which took effect on December 1, 2020.  
Prior to the enactment of the ECL, China regulated imports and exports with control measures and requirements scattered throughout different laws and regulations, including the Foreign Trade Law, the Customs Law, and the Criminal Law, as well as through regulations on the catalogues of technologies and products prohibited or restricted from import or export.   
 
The ECL is the first Chinese law that establishes a comprehensive framework for China’s export control regulations and creates an integrated export control regime.  China enacted the ECL to protect their national security and interests, and to further their commitment to nonproliferation and anti-terrorism.  
The earliest draft of the ECL was circulated by the Ministry of Commerce (MOFCOM) for public comments in June 2017 and was amended twice in December 2019 and July 2020, respectively, within the context of escalating trade tensions with certain export markets, particularly the United States.  
 
As a general law comprising 49 articles, the ECL sets out principle provisions, but has left certain questions unanswered.  Various areas of the ECL will need to be supplemented by implementing rules and judicial interpretations.  A variety of current laws and regulations will also need to be amended for the purpose of consistency.
 
ADMINISTRATIVE AUTHORITIES AND CONTROL SYSTEM
The State Council and Central Military Commissionwill be the relevant administrative authorities under the ECL.  MOFCOM has been and will continue being the major department under the State Council that enforces China’s export control laws.
Under the ECL, controlled items are classified as follows and are subject to a license management system:
  • “dual-use” items: refers to goods, technologies and services that can be used for civil purposes as well as for military purposes, or that can help improve military potentials, in particular those that can be used for the design, development, manufacturing or use of weapons of mass destruction and their delivery vehicles;
  • military products: refers to equipment, special production devices and other related goods, technologies and services that are used for military purposes;
  • nuclear: refers to nuclear materials, nuclear equipment, non-nuclear materials used for nuclear reactors and the related technologies and services;
  • other goods, technologies and services that are related to the protection of national security and interests, or the fulfillment of nonproliferation or other international obligations (collectively, the Controlled Items).
 
The ECL fails to define “export” but the provisions are widely drafted to cover the “deemed export” and “re-export” that may be similar to the concepts under the Export Administration Regulations of the United States.
Government agencies will consider the following factors to evaluate and determine whether an export license can be granted for a Controlled Item, but no official review timeline has been proposed:
  • national security and interest;
  • international obligations and commitments to foreign parties;
  • type of export;
  • degree of sensitivity of the Controlled Item;
  • export destination country or region;
  • the end-user and end-use;
  • credit records of the exporter; and
  • other factors as prescribed in laws or administrative regulations.
The ECL requires the government agencies in charge to respond to inquiries on whether an item is subject to the export control system in a timely manner.  Based on our experience, MOFCOM is friendly and in practice, accessible to take public consultation even on a no-name basis.
 
CONTROL LISTS, BLACKLISTS AND TEMPORARY CONTROL
It has been indicated that the ECL will implement a uniform export control regime by developing certain lists of Controlled Items and an export license management system.  No such lists have been announced yet but they would potentially stem from the current regulations and catalogues of products or technologies that are prohibited or restricted from export, including:
  • Administrative Catalogue of Import and Export License for Dual-use Items and Technologies, jointly promulgated by the MOFCOM and Customs authorities on December 31, 2019;
  • Catalogue of Technologies Prohibited and Restricted from Import and Export as amended by MOFCOM on August 28, 2020 (collectively, the Catalogues).
The ECL also creates a blacklist of importers and end-users that violate the requirements under the ECL or may endanger national security or interests.  Chinese exporters are prohibited or restricted from trading with such blacklisted importers and end-users. This should be read together with the List of Unreliable Entities regulation circulated by MOFCOM on September 19, 2020.
According to the ECL, relevant government agencies may impose a temporary control on certain items that are not on the list of Controlled Items for a period of up to two years, which can be canceled or further extended based on the assessment by such government agencies. 
 
RULES WITH CHINESE CHARACTERISTICS
The ECL has certain unique, Chinese-specific provisions that may give government authorities in charge a certain degree of discretion.  These include:
  • Reciprocal measures. Depending on the actual situation, China may take reciprocal measures against any country or region whose abuse of export control measures endangers the national security and interests of China.  The “national security and interests” are not defined but will be assessed by the government agencies.
  • Catch-all clause.  If an exporter knows or ought to know, or is notified by the government authorities that any relevant goods, technologies or services outside the control lists may pose any of the following risks, it shall apply to the relevant government agencies for a license to export such items:
    • the items endanger national security and interest;
    • the items are used to design, develop, manufacturer or use any weapon of mass destruction or its delivery vehicles; or
    • the items are used for terrorist purposes.
  • General license and other facilitation measures.  Exporters may be granted a general license or other facilitation measures if the exporters have established an internal export control compliance system and if such system operates well.  Details may be developed in the implementing rules.
 
EXTRATERRITORIAL REACH
The ECL is extraterritorial in scope.  It is applicable to individuals and organizations outside the territory of China that are in violation of the regulatory requirements under the ECL, which endangers the national security interests of China or interferes with the performance of their nonproliferation or other international obligations.
 
HOW TO RESPOND
While the ECL provisions are general and the implementing rules have not been published, China will likely strengthen their export control measures and enact or amend the relevant laws and regulations in due course.  As such, export operators and stakeholders should consider taking the following actions as soon as possible: 
  • Evaluate relevant products, technologies or services that may fall under the current Catalogues or that may have security concerns and consult with the MOFCOM on whether an export permit is required as the “catch-all” clause of the ECL imposes obligations to report;
  • Consider establishing or strengthening the internal export control compliance system to qualify for the general license or other facilitation measures;
  • If certain products, technologies or services are subject to the current Catalogues or have security concerns, start to gather the certification documents from end-users or for end-uses to be issued by the end-users or the government of foreign countries where the end-users are located;

Keep a close eye on the development of implementing rules as well as collect information from suppliers, vendors and other resources on any change of current commercial practices

(Source: PWC, 4 Dec 2020)
 
* Principal Author: Claudia Buysing Damsté, Esq., PWC
 
On the 17th of October 2020, the People’s Republic of China Export Control Law (ECL) was passed by the Standing Committee of China’s National People’s Congress, which has taken its effect as of the 1st of December 2020. 
Similar to the EU Export Control Regime, the ECL covers, among others, dual-use items, military items and sensitive technologies. In addition, it is good to note that next to the aforementioned controlled items, also services are explicitly included in the ECL as controlled items. 
 
What does this mean for your business? 
   It is worth mentioning that based on the ECL, any (foreign) organization or individual can be held liable for violations of export control regulations in China. In addition, any individual or organisation that threatens China’s national security and national interests and/or prevents the performance of non-proliferation and other international obligations can be held liable for such a violation. The ECL therefore has extraterritorial effect and can as such impact any individual or organization in the world involved in international trade.  
In addition, please note that, next to the export control lists formulated, temporary control of goods that in principle fall outside of the scope of these lists, can be implemented. It is therefore important to monitor the developments of the ECL, including the export controls lists formulated, to ensure timely action can be taken.  
   To be able to export controlled items, exporters are required to apply for relevant licenses from the competent authority in China. In addition, the exporter needs to submit end-user and end-use documents of controlled items to the export control management authority. In the next paragraph, we will, amongst other topics, describe the controlled items and activities.  
 
What could impact your business?
Controlled items
The ECL applies to controlled items, to technical information and other data related to controlled items. Controlled items covered by the ECL are:
  • dual-use items,
  • military items,
  • nuclear items and
  • other goods, technologies, services and items relating to the maintenance of national security and national interests and obligation of anti-proliferation and other international duty.
 
Controlled activities
Controlled activities under the ECL include:
  • The transfer of controlled items from within China to other countries;
  • The provision of controlled items by Chinese citizens and legal organizations to foreign organizations and individuals and
  • The transit, trans-shipment, and re-export of controlled items, as well as the export of controlled items, from special customs supervision zones (e.g., bonded areas or export processing zones) and bonded supervision places (e.g., export supervision warehouses or bonded logistic centres). 
 
Control list covering importers and end-users
As mentioned, control lists (of items) can be formulated and published (whether or not temporary). Next to this, the State’s competent export control management authority is, based on the ECL, also authorized to establish and issue control lists that cover importers and end-users who have:  
  • violated end-users or end-use management requirements;
  • potentially harmed national security interests or,

  • used controlled items for terrorism purposes
 
The State’s competent export control management authority can as such restrict, prohibit or suspend transactions of controlled items to take place with importers and end-users included on the list. The previous entails that exporters are in principle not allowed to be involved in trade with any of these restricted/prohibited organizations/individuals, unless an application (with substantiation of the necessity) is submitted to and approved by the competent authorities. It is further good to mention that an importer or end-user mentioned on the controlled list, can request for a removal from the list at the competent authorities, if it can sufficiently substantiate that the appropriate measures are taken to ensure that the requirements will not be violated anymore. 
 
Penalties
Please note that violations of the ECL may be sanctioned with administrative or criminal penalties, which include fines, revocation of export business license of relevant controlled items, restrictions or even prohibitions from engaging in relevant export activities for life.

(Source: Steptoe, 4 Dec 2020)  
 
* Principal Author: Patrick F. Linehan, Esq. 1-202-429-8154, Steptoe
 
Increasingly frequent cross-border investigations have raised difficult questions of privilege and work product protection over the last few years. In the United States, attorney-client privilege protects confidential communications between attorneys and clients for the purpose of seeking or rendering legal advice, and the work product doctrine protects documents or materials prepared in anticipation of litigation from discovery. Not every country offers those protections.  
 
Although many other countries recognize some form of privilege or confidentiality between attorneys and clients, that privilege or confidentiality may be construed to cover a narrower subset of communications. International businesses therefore must recognize that communications deemed privileged in the United States may not be considered privileged in other countries.  
 
For example, in France in-house counsel are not considered members of a “bar” and professional secrecy typically does not protect communications between a company’s management and its in-house counsel. In Germany, privilege may apply to communications with in-house counsel in civil proceedings but not in criminal proceedings. Moreover, in those jurisdictions in which privilege is recognized, the circumstances under which privilege is waived also differ across jurisdictions.  
 
Japanese law, for example, provides no baseline attorney-client privilege although specific rules such as those issued by the Japan Fair Trade Commission may protect such communications when related to the particular subject matter. English law, on the other hand, is more similar to US attorney-client privilege but does not extend as safely to internal investigation notes.  
 
Under English law, documents generated during an internal investigation will only be privileged if the communication is with the narrowly defined “client,” the documents betray the trend of legal advice or litigation (which can include criminal proceedings) was in reasonable contemplation. Comparing France, Germany, Japan, England, and the United States exemplifies how decisions to disclose attorney-client communications to third parties may have different consequences in different jurisdictions, even if the disclosure may not effect waiver in the jurisdiction in which it is made. When these differences in privilege law are present, the question must be addressed: which privilege rule controls? The US Court of Appeals for the Second Circuit’s recent decision in Mangouras v. Squire Patton Boggs may offer new insight into that question.
 
US Courts’ Differing Treatment of Choice of Privilege Law
Some US district courts resolve the question of whose privilege law applies by engaging in the comity or “touch base” analysis. The court will ask which country has the predominant or “most direct and compelling interest” in whether the communications should remain confidential. To answer this question, courts will consider a variety of factors, such as the location of the author and recipient of the communication, the subject matter of the communications, and which country’s laws the legal advice rendered implicates.
Depending on how the touching base analysis comes out under US law, there is no guarantee the client’s communication with a US lawyer will be protected, even in a US court. Instead, the US court will apply the privilege law of whichever country has the predominant interest in whether the communications remain confidential.
 
Other courts have applied the “most significant relationship” test from the Restatement (Second) of Conflict of Laws. According to the Restatement:
Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
 
Under this approach, courts apply the law of the jurisdiction with the most significant relationship with the privileged communication, such as the law of the jurisdiction where the communication is centered. Other commenters have opined that the Restatement’s most significant relationship test was tilted towards disclosure to a greater degree than the touch base test. Adopting the touch base test would therefore be a step towards additional protection for privileged materials.
 
[Part II of this advisory will be posted in tomorrow’s Daily Bugle.] 

TE EX/IM MOVERS & SHAKERS:

MS_a112. Monday List of Ex/Im Job Openings: 74 Jobs Available – 10 New Job Openings This Week

* Calspan; Buffalo, NY; Senior Contracts Manager; Job ID: 2020-1441
* Citrix; Ft Lauderdale, CA; Global Trade Compliance Sr. Manager; Job ID: R23996
* Dover Corporation; Smithfield, NC; Trade Compliance Specialist; Job ID: 34687
* Gulfstream; Van Nuys, CA; RS Material Manager 
* Hydro; Rosemont, IL; Senior Manager, Trade Compliance 
* Oceaneering; Hanover, MD; Sr. Contracts Advisor 
* Sabre; Southlake, TX; Compliance Manager; Job ID: 52477
* Schneider Electric; Boston, MA; Senior Manager of Export Controls; Job ID: 006892
* Sierra Nevada Corporation (SNC); Centennial, CO; International Trade Compliance Analyst Level III; Contact Details: danielle.blakely@sncorp.com 
* UCAR; Boulder, CO; Export and Research Security Compliance Program Manager; Job ID: REQ-2020-245; Contact Details: Meg McClellan 

  

Click here for the full list.   

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TE EX/IM TRAINING EVENTS & CONFERENCES

Thur, 2 Feb; 15:00 pm – 17:00 pm (CET) /09:00 am – 11:00 am (EST) /06:00 am – 08:00 am (PST)
 

Presenters: Mike Farrell & Jim Bartlett
Register or find more information for the course here
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EN EDITOR’S NOTES

EN_a114. Bartlett’s Unfamiliar Quotations

(Source: Editor)

 
* Willa Cather (Willa Sibert Cather; 7 Dec 1873 – 24 Apr 1947; was an American writer who achieved recognition for her novels of frontier life on the Great Plains, including O Pioneers!The Song of the Lark, and My Ántonia. In 1923 she was awarded the Pulitzer Prize for One of Ours, a novel set during World War I.)
  – “I shall not die of a cold. I shall die of having lived.”
 
Monday is pun day.
* What nationality is Santa Claus?  North Polish.
* What is a Christmas tree’s favorite candy?  Ornamints.
* Does Santa Claus refer to his elves as ‘subordinate clauses’?
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The official versions of the following regulations are published annually in the U.S. Code of Federal Regulations (C.F.R.), but are updated as amended in the Federal Register.  The latest amendments are listed below.
 
Agency 
Regulations 
Latest Update 
DHS CUSTOMS REGULATIONS: 19 CFR, Ch. 1, Pts. 0-199.

 

5 Apr 2019: 84 FR 13499:

Civil Monetary Penalty Adjustments for Inflation. 
DOC EXPORT ADMINISTRATION REGULATIONS (EAR): 15 CFR Subtit. B, Ch. VII, Pts. 730-774. 
 18 Nov 2020: 85 FR 73411:  Revisions to Export Enforcement Provisions. 

DOC FOREIGN TRADE REGULATIONS (FTR): 15 CFR Part 30.   24 Apr 2018: 83 FR 17749: Foreign Trade Regulations (FTR): Clarification on Kimberley Process. Latest update of Bartlett’s Annotated FTR (BAFTR): 9 Nov 2020. 
DOD NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL (NISPOM)

: DoD 5220.22-M. Implemented by Dep’t of Defense. 

18 May 2016: Change 2: Implement an insider threat program; reporting requirements for Cleared Defense Contractors; alignment with Federal standards for classified information systems; incorporated and cancelled Supp. 1 to the NISPOM (Summary here.)  
DOE ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES: 10 CFR Part 810.    23 Feb 2015: 80 FR 9359: comprehensive updating of regulations, updates the activities and technologies subject to specific authorization and DOE reporting requirements. 
DOE EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL; 10 CFR Part 110.  

15 Nov 2017, 82 FR 52823: miscellaneous corrections include correcting references, an address and a misspelling.

 
DOJ ATF ARMS IMPORT REGULATIONS: 27 CFR Part 447-Importation of Arms, Ammunition, and Implements of War. 
14 Mar 2019: 84 FR 9239: Bump-Stock-Type Devices.

DOS INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR): 22 C.F.R. Ch. I, Subch. M, Pts. 120-130. 

28 Sep 2020: 

85 FR 60874: Temporary Amendment for Republic of Cyprus. The latest edition of the BITAR is 28 Sep 2020. 

 
DOT FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR): 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
International Criminal Court-Related Sanctions Regulations.
 
 
USITC HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES (HTS, HTSA or HTSUSA), Revision 8.

1 Jan 2019: 19 USC 1202 Annex.
  – HTS codes for AES are available here.
  – HTS codes that are not valid for AES are available here.

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