http://www.exportlawblog.com/archives/153 Latest News on DDTC, BIS, OFAC, and other export law matters Tue, 06 Jan 2009 21:47:45 +0000 http://wordpress.org/?v=2.5.1 http://www.exportlawblog.com/archives/153#comment-1781 Mike Deal Tue, 01 May 2007 17:05:41 +0000 http://www.exportlawblog.com/archives/153#comment-1781 A qualification to the above, EU Reg. 96/2271 isn't much help in defending US enforcement actions because the act-of-state/sovereign compulsion doctrines are doctrines of judicial abstention, where the courts decline to act (e.g., on an anti-trust suit) where a foreign government has acted in order to not prejuidice the political branches of the US government. Where the US government is prosecuting, it is assumed the executive branch has already weighed the foreign policy concerns and the courts will proceed, assuming they have actual in personam and subject matter jurisdiction over the defendant. Of course, having a foreign parent or affiliate invoke EU Reg. 96/2271 can have its moments: I had a Yankee AUSA in one case call a client's employees as witnesses before a grand jury trying to find out what I had communicated to European counsel. A qualification to the above, EU Reg. 96/2271 isn’t much help in defending US enforcement actions because the act-of-state/sovereign compulsion doctrines are doctrines of judicial abstention, where the courts decline to act (e.g., on an anti-trust suit) where a foreign government has acted in order to not prejuidice the political branches of the US government. Where the US government is prosecuting, it is assumed the executive branch has already weighed the foreign policy concerns and the courts will proceed, assuming they have actual in personam and subject matter jurisdiction over the defendant. Of course, having a foreign parent or affiliate invoke EU Reg. 96/2271 can have its moments: I had a Yankee AUSA in one case call a client’s employees as witnesses before a grand jury trying to find out what I had communicated to European counsel.

]]> http://www.exportlawblog.com/archives/153#comment-1780 Mike Deal Tue, 01 May 2007 16:49:06 +0000 http://www.exportlawblog.com/archives/153#comment-1780 EU Regulation 96/2271 is an especially powerful tool: It not only prevents compliance with US unilateral embargoes (Cuban and ILSA were specifically identified in the Annex), if used aggressively and properly, it can prevent normal cooperation between the US and EU customs services (such as the case last year where the German customs service executed a search warrant in Germany on behalf of ICE in an Iranian embargo case), prevent EU nationals from testifying or even giving statements to US investigators, prevent third parties such as freight forwarders/customs-brokers from providing copies of documentation, and make them liable for money damages and extraordinary relief if they do cooperate. But, like all good tools, it actually has to be used: Neither the EU nor Member State governments or courts will invoke it unless an EU national party complains. EU Regulation 96/2271 is an especially powerful tool: It not only prevents compliance with US unilateral embargoes (Cuban and ILSA were specifically identified in the Annex), if used aggressively and properly, it can prevent normal cooperation between the US and EU customs services (such as the case last year where the German customs service executed a search warrant in Germany on behalf of ICE in an Iranian embargo case), prevent EU nationals from testifying or even giving statements to US investigators, prevent third parties such as freight forwarders/customs-brokers from providing copies of documentation, and make them liable for money damages and extraordinary relief if they do cooperate. But, like all good tools, it actually has to be used: Neither the EU nor Member State governments or courts will invoke it unless an EU national party complains.

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