Lowenstein’s Global Trade & Policy practice is devoted to navigating today’s dynamic regulatory environment to promote our clients’ cross-border interests.
Our team helps U.S. and foreign companies manage trade risks, ensure regulatory compliance, and effectively communicate their positions to legislators, law enforcement officials, and policymakers. We have decades of experience advising individuals, investment funds, research institutions, portfolio companies, and global businesses operating in a range of industries, including life sciences, biotech, aviation and aeronautics, manufacturing, electronics, and software.
Given today’s highly interconnected and technology-driven international economy, we work proactively with clients to facilitate their investor, supplier, distributor, and customer relationships; develop strategies in response to rapidly changing trade regulations and economic sanctions; and demonstrate compliance with legal requirements under these and other frameworks:
The Committee on Foreign Investment in the United States (CFIUS)
Customs and Border Protection (CBP) import requirements, including new 201, 232, and 301 China tariffs
The Department of Commerce’s Export Administration Regulations (EAR)
The Department of State’s International Traffic in Arms Regulations (ITAR)
The Treasury’s Office of Foreign Assets Control (OFAC) sanctions regimes
The Foreign Corrupt Practices Act (FCPA), the U.K. Bribery Act, and China’s anti-corruption legislation
The Export Administration Act’s Antiboycott Laws
We also provide full-spectrum guidance on issues and requirements arising from global trade and expansion, such as:
Client-specific trade regulation compliance manuals and training programs
Foreign agent, distributor, and partner due diligence
International agreements for sales of products and services
Establishment of foreign and U.S. entities Cross-border joint ventures and other transactions
When it comes to trade policy, we believe that a strong offense is indeed the best defense. With decades of trade policy experience, we understand the complex–and sometimes contradictory–goals of trade negotiators, legislators, regulatory officials, and industry associations. We have helped foreign governments and global enterprises better understand and navigate U.S. policy, and we work with trade, law enforcement, and agency leaders to develop effective, business-friendly solutions for our clients. We have also helped companies and governments benefit from U.S. trade programs and address the effects of events on global trade relationships.
Areas of Emphasis
Tariffs, import classifications, and country-of-origin determinations. Accurate tariff classifications and country-of-origin determinations are key to avoiding fines, seizures, or forfeitures of imported goods. We help companies design and implement internal controls and policies to prevent inadvertent violations of U.S. customs and import laws and regulations. We also conduct internal audits, and where potential discrepancies are identified, we develop voluntary disclosures that can significantly mitigate potential penalties. With respect to 201, 232, and 301 China tariffs, we work with clients to obtain exclusions, when possible, and we provide advice regarding supply chain restructuring.
OFAC sanctions. Our lawyers help clients ensure compliance with OFAC directives and sanctions regimes, including full and partial embargoes, that prevent entities from exporting, importing, financing, or otherwise facilitating transactions involving countries, individuals, and organizations designated as hostile actors by the U.S. and other governments. We provide guidance on permissible and prohibited transactions, conduct internal audits and prepare voluntary disclosures, and represent clients in enforcement proceedings. Countries of concern include Iran, North Korea, Cuba, Russia/Crimea, and Sudan.
CFIUS. We work with domestic and foreign businesses and individuals to identify the national security implications of transactions, communicate effectively with CFIUS and other government agencies involved in the approval process, and obtain CFIUS clearance for foreign investments. Our lawyers have particular experience in technology- and critical infrastructure-related transactions that elicit increased scrutiny. We provide ongoing guidance on the critical technology pilot program and recent changes that have broadened the scope of the law and added a mandatory filing requirement.
Export controls. The federal government has established a complex system of regulations governing the export and transfer of U.S.-origin goods, technologies, and services. We regularly advise clients on these various regimes, obtain export and deemed-export licenses, perform due diligence in relation to potential transactions, conduct internal audits, and design programs to ensure accurate classification of exports. When potential discrepancies are identified, we represent clients before relevant agencies.
FCPA and anti-corruption. Consistently applying a single global standard through the implementation of a worldwide compliance program ensures compliance across national borders. Our team reviews anti-corruption procedures and due diligence records for red flags and possible violations to protect clients against successor liability. We also assist clients with global internal investigations, compliance programs and training, and due diligence review for corporate transactions.
Doreen M. Edelman, Chair of the Global Trade & Policy group, is quoted in a Fortune article on the effects of the ban of Huawei, the Chinese telecommunications company, on U.S. businesses. She explains that "technology as defined in the export regulations can’t be sold to Huawei without a license … Companies have to figure out how to change their supply chains or customer base or what they manufacture and sell.”
Doreen M. Edelmanis quoted inBusiness Insiderin an article discussing five key questions U.S. tech startups should ask before forming a relationship with a foreign investor. Edelman begins with assessing the company’s industry, noting that there may be regulations against foreign investments designed to prevent foreign governments from accessing technology or intellectual property that may be harmful to U.S. national security. Next, she poses the question of whether the startup’s technology could be used by the defense sector in the future. Should this occur, the U.S. government may force the foreign investor to divest from the company, opening the startup up to financial hardship. Edelman goes on to analyze the investor itself, explaining that startup founders need to pay attention to the location of the investor–i.e., whether they are based in a country that is a friend or foe to the U.S. and being mindful of the shifting geopolitical landscape. Her fourth question advises founders to consider the amount of information they would be required to share with the foreign investor, noting that allowing access to too much information may create issues for the company. Finally, Edelman proposes the topic of the startup’s board, affirming that giving up a board seat to a foreign investor may further complicate the process. She explains that founders who wish to give an investor a seat on the board will be required to go through the CIFIUS process even if they are not mandated to file.
Doreen M. Edelman is quoted in the International Business Times discussing the delay of a trade deal between the United States and China. Edelman suggests that the suspension could be due to the conflicting goals of the President and Congress.
Doreen M. Edelman is featured in a two-part FCPA Compliance Report podcast (December 10; December 17, 2018) discussing the Committee on Foreign Investment in the United States (CFIUS). In part one, Edelman highlights the recent increase in non-compliance penalties, the development of national security measures due to disruptive technologies, and the expansion of CFIUS jurisdiction to companies purchasing non-controlling investments in U.S. companies. In part two, Edelman discusses the requirements for mandatory filings under the CFIUS Pilot Program.
Law360 quotes Doreen M. Edelman in an article discussing the arrest of Huawei Technologies CFO Meng Wanzhou. Meng’s arrest came amid U.S.-China trade negotiations that have triggered stock market uncertainty. Edelman notes the consequences U.S. businesses could face if Meng’s prosecution stalls the negotiations’ progress, and she advises clients to “continue planning along a worst-case scenario for the long term.” (subscription required to access article).
Doreen Edelmanis quoted in Law.com in an article discussing President Trump and China’s Xi Jinping’s recent agreement to a 90-day truce in the trade war. Edelman notes that it is a difficult situation for companies to prepare for and states that she advises clients to diversify their supply chains and have a plan of action in the event higher tariffs are implemented. (This article also appeared in Corporate Counsel, Yahoo! Finance, The American Lawyer International, and the New York Law Journal.) (subscription required to access certain content)
Doreen M. Edelman is quoted in a Corporate Counsel article discussing a possible meeting between President Trump and China’s Xi Jinping at the G20 Summit and the potential impact on U.S. companies’ dealings with China. Edelman notes the present international trade climate and states that she advises clients to be prepared for anything in the short- and long-term.