Dechert’s international trade and government regulation group advises on a wide range of matters. We routinely advise clients across industries and jurisdictions on issues including export controls, economic sanctions, trade embargoes, anti-corruption, customs procedures, trade defense measures and national security reviews of foreign direct investment. We also advise regarding trade and investment barriers, EU internal market law and trade policy and public affairs matters arising before the EU, national governments and multinational entities.
In addition to experienced practitioners, our uniquely qualified global team includes former national and multinational officials, comprising regulators, compliance officers and enforcement agents as well as trade negotiators and public affairs experts. Our blend of experience allows for a multidisciplinary approach that is unique in a law firm, offering a comprehensive and coordinated mix of legal, strategic and public affairs advice to assist clients. Our innovative approach provides clients with practical, commercially focused solutions to legal and political challenges. With multilingual teams in offices across the United States, Europe, Asia and the Middle East, we address complex, global trade issues, collaborate with internal legal and compliance teams, and provide seamless, practical, commercially-focused solutions.
Areas of Focus
The U.S. Government prohibits cooperation with foreign boycotts of countries friendly to the United States. The U.S. Department of Commerce and the U.S. Treasury Department’s Internal Revenue Service (IRS) administer these rules, which are complex and can apply not only to U.S. companies and individuals but also to foreign affiliates doing business in the Middle East and elsewhere. Penalties and adverse publicity can result from violating the prohibitions as well as from failing to comply with reporting requirements and related deadlines.
Dechert regularly advises clients large and small on applicable anti-boycott requirements. We assist regarding substantive prohibitions and exceptions and related tax implications, as well as reporting obligations. We have performed internal compliance reviews, assisted in the drafting and submission of voluntary disclosures, and provided assistance regarding government enforcement proceedings.
Dechert counsels companies across a wide range of industries and locations regarding anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act (FCPA), the UK Bribery Act and other such laws. We provide preventive advice and counseling as well as investigations and enforcement work. We have significant experience dealing with transactions and third party relationships in emerging markets, particularly in China and Southeast Asia, in Russia and other former Soviet countries, in Brazil, Mexico and other parts of Latin America, as well as India, Africa and the Middle East. As appropriate, our international trade lawyers collaborate with colleagues in our white collar practice to provide integrated representation before government enforcement agencies such as the U.S. Department of Justice, the Securities and Exchange Commission and the UK Serious Fraud Office.
We frequently assist clients regarding development and implementation of their anti-corruption compliance programs, including performing risk assessments, drafting or revising policies and procedures, providing training, benchmarking, and giving advice regarding best practices. We often assist with due diligence regarding third parties (such as agents, representatives and consultants), including with respect to M&A, joint ventures and other transactions. As necessary and appropriate, we conduct compliance assessments and internal investigations and provide counseling and representation regarding disclosures to government enforcement agencies. We also regularly identify and supervise foreign counsel in their provision of opinions regarding local anti-bribery laws.
Anti-Money Laundering (USA Patriot Act)
We work with clients to develop comprehensive and practical compliance policies and procedures effectively tailored to meet their anti-money laundering compliance and defense needs. Our lawyers have represented financial institutions and major financial trade associations on anti-money laundering regulatory matters before the Financial Crimes Enforcement Network (FinCEN) and as members of the Bank Secrecy Act Advisory Group. Dechert has authored numerous comment letters on U.S. Bank Secrecy Act (BSA) regulatory issues, and members of our team have been invited to testify on BSA matters before the U.S. Department of the Treasury. Members of our team have served as representatives to the global funds industry in Paris before the Financial Action Task Force (FATF), the inter-governmental body charged with developing and promoting policies to combat money laundering and terrorist financing.
We also represent financial institutions in civil, criminal and administrative actions alleging violations of anti-money laundering regulations. Our team has advised clients on anti-money laundering litigation and enforcement matters before U.S. federal and state courts, and in administrative proceedings brought by FinCEN, the Financial Industry Regulatory Authority (FINRA) and the U.S. federal financial regulators.
Customs Procedures and Supply Chain Management
Dechert’s international trade group has experience advising clients on all aspects of custom compliance and supply chain management. Customs procedures are a highly specialized and technical component of trade law. Customs authorities generally operate an “audit based” approach and it is not unusual for unwary companies to receive significant demand for back dated customs duties. Those companies that outsource customs compliance to shipping agents or freight forwarders do not absolve their responsibilities to provide accurate customs documentation and the payment of associated taxes and duties.
Dechert regularly advises clients on issues such as the completion of Export Customs Declarations; appropriate customs documentation and statistical declarations to be presented to customs authorities; product classifications, including Binding Tariff Informations (BITs); customs valuations; complex rules of origin and preference calculations; customs audits; the use of duty relief programs; storage and movement of duty suspended goods; and accreditation under “trusted trader” programs such as the EU’s Authorised Economic Operator (AEO) and the U.S. Customs-Trade Partnership against Terrorism (C-TPAT).
Economic Sanctions and Trade Embargoes
The United Nations, United States, European Union, individual member states of the EU and other countries impose an ever increasing multi-jurisdictional network of economic sanctions and trade embargoes which restrict activity with specific countries, organizations and individuals. These restrictions are enforced with increasing vigor by regulatory authorities, with significant financial and criminal penalties and adverse publicity resulting for leading global companies. Recent trends include increasing extra-territorial application of the prohibitions, such that companies must comply with a range of often competing rules in the jurisdictions in which they operate and remain vigilant regarding the actions of their business partners and those on whose behalf their partners might be acting. Compliance with economic sanctions and trade embargoes regimes requires awareness of far more than the published guidance; Dechert’s international trade practice regularly counsels clients regarding the scope, interpretation, application and jurisdictional nuances of the rules and the discretion exercised by enforcement authorities (such as the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), the Serious Fraud Office (SFO) and HM Treasury’s Asset Freezing Unit) in this regard.
We regularly assist clients with transactions, investments and exports as well as relationships with subsidiaries, employees and third parties (such as financial institutions, agents, insurers, logistics companies, distributors or joint venture partners) that may implicate sanctions compliance concerns. Clients receive advice on the jurisdictional reach of sanctions regulations, with a clear and detailed risk assessment of prohibited activity and what may yet be commercially viable, legitimate business opportunity. We develop internal compliance programs that are tailored to a company’s structure, resources and individual risk profile; we assist with license applications and requests for advisory opinions; we conduct due diligence regarding third party partners and acquisition targets; and, as necessary and appropriate, we conduct compliance assessments and internal investigations and provide counseling and representation regarding disclosures to government enforcement agencies.
EU Regulation and Government Affairs
Dechert’s EU-based team provides tailored strategic advice for both corporate and government clients in relation to existing and forthcoming European Regulation. We advise companies that operate in Europe or trade with European counterparts to comply with a wide range of legal and regulatory requirements and provide strategic analysis on minimizing the potential negative impact of current and future European regulation on their business activities. We assist a range of companies, trade associations and governments to navigate the complex network of regulation, legislation and standards that govern EU and wider global policy making; to understand and effectively influence policy development and implementation and the associated decision making processes across the EU; and to ensure that concerns are raised, considered and addressed at appropriate stages, levels and fora within the European Union.
We assist clients to: monitor and horizon scan EU regulatory developments and evaluate the impact of forth-coming proposals on their business; develop persuasive, legal, political and economic arguments to challenge the status quo or plans for reform; understand and influence legislative proposals and decision-making processes in the EU; structure and deliver effective influencing campaigns, targeting EU decision-makers, using credible and well structured legal and political arguments; challenge EU Member States’ implementation of EU rules through a combination of infringement proceedings and public affairs campaigns; and handle legal and policy requirements for EU regulatory approvals and licenses.
EU Internal Market Policy
The European Union provides a significant commercial opportunity to global business. The rewards from maximizing the returns from direct access to the EU’s 27 national markets and more than 480 million consumers are considerable. Despite this, many companies remain confused by the complex network of European institutions, legislation, policies and languages and subsequently fail to fully expand their business activities in the internal market. Dechert’s international trade team includes EU Internal Market experts able to assist clients to understand, comply with, influence and contest the rules and decision-making of the EU institutions and their implementation by EU Member States.
We help clients to: identify the legislation, policy and industry standards that apply to their businesses in the EU; develop effective EU internal market compliance programs; anticipate regulatory changes and quantify their potential impact; develop persuasive legal, political and economic argumentation to challenge regulatory norms or legislative proposals; understand and influence legislative proposals and decision-making in the EU; contest EU Member States’ implementation of EU rules through infringement proceedings; identify, and gain access to EU funding schemes; and assess the compatibility of EU policies with World Trade Organization (WTO) rules.
Foreign Intelligence Surveillance Act (FISA)
Dechert partners have extensive experience with the nature, scope, and consequences of the government’s surveillance authorities under FISA and related statutes. This experience includes advising private clients on the delicate issues that arise when a company receives a FISA court order or national security letter, as well as representing companies in negotiating the best options for responding to such orders. Our experience also includes high-level service in the U.S. Department of Justice advising the President, the Attorney General, and senior officials of the Intelligence Community on the most sensitive national security legal matters, including the requirements and limitations of FISA. This government experience included playing a central role in the executive branch’s efforts to work with Congress to reform FISA and in the public debates and hearings leading up to Congress’s enactment of sweeping amendments to FISA in 2008. Based on this experience, Dechert partners are frequently called upon to present testimony in Congress and other forums and to speak and write publicly on the full range of statutory and constitutional issues relating to the government’s surveillance authorities under FISA.
The United States, European Union, individual member states of the EU and other countries administer strategic export control programs that regulate the export, transfer and re-transfer of goods, services, software, technology and information to foreign nationals and foreign destinations. Dechert’s international trade lawyers frequently advise clients regarding the requirements applicable to “dual use” items under the EU Dual Use Regulation, the Export Administration Regulations (EAR) administered by the U.S. Department of Commerce, and to defense-related items and activities controlled under the EU’s Common Military List, the International Traffic in Arms Regulations (ITAR) administered by the U.S. Department of State and requirements administered by relevant competent authorities in individual EU member states, such as the UK Department of Business, Innovation & Skills’ Export Control Organisation (ECO).
We assist in the development of operational “day to day” internal procedures that are tailored to a company’s structure, resources and exposure to export-related risks and least burdensome on commercial objectives. In addition, we identify licensing requirements and assist with license applications. Dechert lawyers routinely interact with government officials responsible for compliance, licensing, enforcement and policy decisions and bring these insights to bear when providing advice to clients. We also conduct due diligence regarding third party partners and acquisition targets. Finally, as necessary and appropriate, we conduct compliance assessments and internal investigations and provide counseling and representation regarding disclosures to government enforcement agencies.
Infringement of European Regulation
The European Commission is tasked with monitoring compliance by the EU’s 27 Member States with EU law. If the Commission considers that a member state has not fully met its legal obligations, potentially creating an unlevel playing field for businesses which operate in the EU for example because of a failure to implement EU rules correctly or fully or delays in transposition into national law of EU legislation, it may take action against that country. Where a company considers that it is adversely affected by inconsistent application, or enforcement of EU rules, Dechert is able to assist it to engage the European Commission to institute infringement procedures against the member state concerned, for alleged non-compliance. Dechert’s international trade group has extensive experience of assisting its clients to engage the Commission to deploy a credible legal, policy and political rationale to launch an investigation into non-compliance and ultimately remedy incorrect implementation of EU rules.
We advise clients on the process for submitting an infringement complaint to the Commission, as well as providing strategic advice on when, how and who to engage at both a national and European level to build support for corrective action. Our international trade team closely monitors the implementation of EU law in key member states across a range of economic sectors. Our approach is to seek to work through the EU institutions to highlight the degree and seriousness of the infringement and the legal responsibility of the member state concerned to remedy the infringement in a timely manner. Should the Commission’s “letter of formal notice” to the member state concerned, giving it a clear time limit to voluntarily conform to EU law, fail to deliver, Dechert assists client to present a robust legal argument to persuade the Commission to commence legal proceedings before the Court of Justice of the European Union or the General Court in Luxembourg.
National Security Reviews of Foreign Direct Investment (CFIUS)
In the United States, the Committee on Foreign Investment in the United States (CFIUS) is authorized to review foreign investment in a U.S. business that may affect U.S. national security. Depending on the identity and ownership of the foreign investor, the U.S. industry involved, the investment target’s relationship with the U.S. Government, and the nature of the transaction, among other factors, it is essential to consider CFIUS implications of a transaction as soon as possible so as to anticipate and avoid unfavorable results.
We advise foreign and domestic clients (“buyers” and “sellers,” as well as third parties) regarding the CFIUS review process, helping clients determine whether to bring a transaction before the committee, to assemble the required information and materials for a voluntary filing, and then to negotiate agreements with CFIUS in a manner that minimizes both delay and the imposition of conditions that might threaten the transaction. In this regard we also advise regarding strategies to address political and policy considerations that might arise.
Negotiation of EU Free Trade Agreements (FTAs) and EU Preference Schemes
Dechert’s international trade group has significant experience of supporting negotiations between the EU and third country governments. Our team is drawn from former negotiators for the European Commission or the European Member States. Our focus is to assist foreign governments in securing the optimal result in terms a balanced outcome to trade negotiations. In particular, we seek to ensure that the EU’s FTA partner secures an outcome which corresponds to its strategic domestic policy objectives and an outcome that is consistent with its level of development. In addition, we are currently working to provide strategic advice in the context of the revised EU Generalised System of Preferences (GSP) – the mechanism which provides preferential access to the EU market for developing countries and territories.
We can assist clients to: develop and refine core strategic objectives for the FTA negotiations; develop comprehensive position papers for priority negotiating objectives across the broad range of FTA topics; analyze and construct detailed assessments of the EU’s negotiating objectives in order to assess the potential impact of implementation of the FTA; undertake detailed evaluations of the technical and legal proposals tabled by the European Union; provide direct negotiating support for negotiating teams through tailored analysis and negotiating briefs; undertake detailed economic and political impact assessments of EU proposals; support the drafting and presentation of sound political, economic and legal arguments and counter proposals; and develop and implement comprehensive and targeted engagement strategies aimed at key decision makers within the EU.
Policy Development Within the European Union
The broad scope of European regulation means that many companies face significant challenges in complying with existing legal requirements and regulatory obligations. Given the focus on compliance with existing regulation, European operators are often faced with resource constraints in their ability to influence and shape the development and implementation of European policy which may potentially affect their business. We assist companies that operate in the EU or those which trade with European counterparts to influence EU policy development and shape tomorrow’s regulatory requirements, helping our clients to minimize potential trade barriers and the negative impact of European regulation on their business.
We regularly assist clients to navigate the complex network of regulation, legislation and standards that govern EU policy making to facilitate the understanding of policy development and decision-making throughout the EU. We provide clients with strategic advice and analysis to ensure that their concerns are appropriately heard and addressed. Dechert’s multidisciplinary approach is unique in a law firm. Our blend of legal, strategic and public affairs advice enables us to assist clients not only after regulation is adopted, but before it is conceived. Our innovative approach provides clients with solutions to their regulatory needs, regardless of whether the problems faced are legal or political in nature. One of the most distinctive features of our team is that we have professional experience of working within the EU institutions and a first-hand knowledge of how decisions are taken in the EU, who matters for each decision and how such decisions can be influenced not only in theory but also in practice.
Trade Defense Measures
Dechert trade lawyers assist clients involved in EU anti-dumping and anti-subsidy proceedings in dealing with all aspects of the case, including completion of questionnaire responses, drafting of injury submissions, preparation of and attendance at on-the-spot verification visits by Commission officials, representation of clients at hearings before Commission officials and strategic engagement at all levels of the Commission and Member State administrations. Dechert also provides strategic advice to clients who wish to prepare for future anti-dumping actions or who wish to cope with the impact of an anti-dumping measure, including the use of interim and sunset reviews, assistance with anti-absorption and anti-circumvention investigations, the use of undertakings and ultimately refund applications.
Dechert’s approach is comprehensive and offers clients the benefits of our wide experience of analysing wider commercial and economic policy implications of a given case in order to build compelling counter arguments focussing on the political and economic facts. Dechert is able to offer companies with an interest in the EU’s investigation with: analysis on complying with the different phases, time limits and technical questionnaires associated with EU investigations; technical, legal and economic analysis of the data available; building a substantive case that introducing anti-dumping measures does not meet the community interest test; and assistance to individual exporters to avoid the imposition of the residual rate (which is often the highest rate) through applications for Individual Treatment (IT) and/or Market Economy Treatment (MET).
Unlike other law firms we only take on investigations where we believe there is a strong economic and political basis to argue for a successful outcome for our clients. Our blend of legal, strategic and public affairs advice is unique from a law firm and provides our clients with a one stop shop for all of their trade defense needs.
Trade Legislation and Policy
Dechert’s international trade practice provides governments, trade associations and commercial clients with legal and strategic policy advice on the bilateral trade agreements, WTO Doha Round and accessions to the WTO system, and the current review of the EU’s Generalised System of Preferences. Dechert offers integrated legal, policy and strategic communications advice on bilateral trade negotiations with the European Union, and on the legal requirements for the implementation of such agreements. In addition to issues of tariffs of goods and restrictions on trade in services, Dechert’s expertise extends to a wide range of trade-related issues, including investment, procurement, intellectual property, trade facilitation and competition amongst others.
Dechert has practical expertise in the negotiation of bilateral, regional and multilateral trade agreements. Our team includes former EU and international trade negotiators who have participated at a senior level in the EU’s trade negotiations with third countries and are able to provide a first-hand insight into the practical, legal and political issues that are raised in these negotiations. We assist in developing an analysis of all legal, regulatory and policy issues likely to be raised during negotiations; the complex division of competence between the EU and its Member States, negotiating formats and modalities; and specific difficulties which may arise in particular sectors. We provide strategies on the key decision makers and decision-shapers (including media) that may need to be engaged during the negotiations and training seminars covering the negotiating format and modalities; clear explanations of how the negotiating teams are likely to be structured on the EU side and of the key difficulties that both sides are likely to encounter, including practical suggestions as to how to overcome those difficulties. We also cover training on the EU legal aspects, either of a general or sectoral nature, to be taken into account throughout the negotiations, and the political context of the negotiations on the European side.
Working Effectively in the European Union
As well as providing direct technical and strategic advice Dechert’s international trade practice has developed comprehensive training courses to assist public officials, diplomats and business operators to develop their skills and knowledge in order to improve the effectiveness of their interaction with the various European institutions and its Member States. We provide EU training for business representatives, looking to expand their business relations across the EU, on how the EU operates both at a political and technical level in order to enhance capacity to operate within the EU.
We have wide experience in providing EU-related training to third-country officials and business representatives. Our training programs are flexible and specially designed to meet the specific needs of our clients in terms of the level of knowledge, focus on a specific industry sector or the development of a current or future policy initiative. They range from general inductions providing basic background knowledge on the functioning of the EU to more specific, targeted training focused on a specific sector or EU policy.