International Trade

Areas of Focus

• CFIUS

  Whenever a non-U.S. entity seeks to acquire an interest in or assets belonging to a U.S. company, it is essential to consider whether to notify the Committee on Foreign Investment in the United States (CFIUS) about the transaction. 

  Bass, Berry & Sims’ cross-disciplinary team assists both U.S. sellers and non-U.S. buyers determine when a CFIUS notification is needed. When the decision is made to submit a notification, we partner with clients to identify issues that may have CFIUS implications, and address them as early as possible, to ensure a smooth, successful review process. With extensive experience handling international trade issues, government contract questions, antitrust law and general corporate matters, our CFIUS team focuses on fully understanding each client’s business in order to become a trusted, strategic partner in finalizing transactions. 

  Clients rely on our experience navigating hot-button CFIUS issues, such as:

  • Chinese buyers, who appeared before CFIUS during 2013 in greater number than buyers from any other country
  • Obtaining accurate and complete personal identifier information
  • Technology that currently has or could have military applications
  • Existing contracts with sensitive government customers
  • Sellers who are sole-source providers to the U.S. armed forces
  • Offshore drilling assets or pipelines
  • Sophisticated technology or vital technical data transfers

  Non-U.S. buyers are facing increasing scrutiny – according to CFIUS’ recently released annual report for 2013, close to half of all matters notified to CFIUS were sent to a 45-day investigation in addition to the standard 30-day review. This 75-day period can present a major challenge to getting a deal done. Through effective communication with our clients and with counsel on the other side of the transaction, and with CFIUS itself, we have developed tactics to prevent these extended investigations. But we also have experience managing longer CFIUS reviews and keeping deals alive. In certain cases, this may mean assisting with developing and implementing mitigation measures; in other instances, it may be necessary to craft a public relations strategy.

• Export Controls

  Export Control Reform is here and it creates both opportunities and challenges. New regulations mean that many products have migrated from tight controls under the International Traffic in Arms Regulations to lesser controls under the Export Administration Regulations. This means many exporters may now export certain products without a license – a clear opportunity. Yet for other products that have migrated from the ITAR to the EAR, or that have not moved from the ITAR at all, there may be new licensing obligations. This means revising policies and processes as needed, and training affected personnel – a clear challenge.

  However a particular exporter may be impacted by the Reform, one thing applies to all exporters: vigorous enforcement is here to stay. More U.S. government personnel within more U.S. government agencies are taking an active role in export enforcement. U.S. officials are increasingly cooperating with their non-U.S. counterparts.

  Our trade team understands the pressures that exporters are under. The profits of many government contractors are being squeezed by their biggest customer, the U.S. government. Manufacturing companies are facing increased competition from China, India, Taiwan, Vietnam, and elsewhere. Non-U.S. technology engineers are eager to work with U.S. companies and share U.S. technical data.

  Our international trade team can help. Sometimes it is as simple as assisting in the preparation of a license application or an ITAR registration. Other times we will help a client conduct an EAR and ITAR audit and develop recommendations for compliance enhancements. We routinely partner with clients to prepare and deliver training – whether high-level training for executives or nuts and bolts education for personnel regularly involved in export activity. And we represent clients in front of the government: for one large defense contractor, we have conducted multiple investigations and provided support on numerous voluntary disclosures.

• FCPA

  Perhaps no area of international business compliance has received more attention in the last 10 years than anti-corruption.

  From defense contractors seeking export sales in the Middle East, to automotive manufacturers seeking to import and sell cars into Asia, to energy companies sending equipment and personnel to West Africa and other parts of the oil patch, to medical device companies seeking to do business with state-owned hospitals and state-employed doctors in Europe, companies must protect against the corruption that often occurs when goods, services or people move across international borders.

  It is therefore essential that companies and individuals understand the U.S. Foreign Corrupt Practices Act (FCPA), and particularly the aggressive manner in which the U.S. government is interpreting and enforcing the law: seemingly simple terms – such as “payment,” “foreign official” and “instrumentality” – are being defined much more broadly than their common usage would suggest.

  Our trade team works closely with clients to tailor solutions to their most challenging FCPA compliance issues. Visit our FCPA practice page to learn more about the team and our FCPA experience.

• Import Controls & Anti-Boycott

  Just in time supply chains rely on goods being imported as quickly and accurately as possible. A misclassification or an underpayment of duties can cause delays, and delays cost money. Even a late filing can lead to penalties. We help our clients handle both the routine import issues that they face, such as communicating with Customs about liquidated damages claims and making petitions and other filings, and on more significant issues such as prior disclosures. We also help steer clients through Customs investigations, including matters involving fraud charges.

  U.S. anti-boycott law is extremely fact-specific. Language in an RFP or Power of Attorney that is permissible under the Commerce Department regulations may be penalized under the Treasury regulations. It is essential to review potentially problematic language carefully and consult the exhaustive guidance that both Commerce and Treasury have issued. We regularly advise clients – including in the defense, energy, engineering, financial services, and manufacturing industries – on whether specific language triggers the anti-boycott provisions, and whether reporting is required. And we have assisted when it was necessary to voluntarily disclose anti-boycott provisions not reported to the government in a timely manner.

• Sanctions

  No area of international trade changes more rapidly than U.S. economic sanctions. Right now the hottest topics are Cuba, Iran and Venezuela; last year, it was Russia; by the end of 2015, it could be Burma (Myanmar) or Yemen. Our trade team knows that changing U.S. foreign policy results in a changing compliance landscape. The brand new deal reached with Iran is only the latest evidence of that.

  A host of industries is directly and significantly impacted. For instance, the financial services sector, as it attempts to process millions of cross-border transactions every day, is uniquely affected by U.S. sanctions. Aviation companies, both in the defense and commercial sector, must keep close track of their compliance obligations. Energy companies, with disparate operations around the world, must ensure they understand what they can do – and what they can’t.

  Tactical issues abound as well. For example, should companies be keen to plunge into Burma (Myanmar) as it continues to open up to U.S. business? What about taking advantage of the recent loosening of restrictions on Cuba? For non-U.S. companies, just how far does U.S. sanctions jurisdiction extend? 

  Our international trade team assists clients with these types of issues and more, including matters such as the following:

  • Represented multinational bank respond to and settle U.S. Government sanctions investigation
  • Assisted defense contractor to investigate and disclose violations of U.S. sanctions on Iran
  • Counseled international engineering company on compliance with U.S. sanctions on Russia
  • Developed sanctions compliance policy and training for multinational manufacturing company
  • Advised global automotive company on due diligence obligations in relation to 50% rule