THE JOURNAL OF EXPORT CONTROLS AND SANCTIONS

The WorldECR Export Controls & Sanctions Forum 2019

3-4 October, 8 Fenchurch Place,
London EC3

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Speakers & Presentations

 

Panel discussion – Above and beyond the call of duty? How much compliance is enough compliance?

All conscientious companies want to ensure that they’re compliant with applicable sanctions and trade controls regulations – increasingly, being so impacts across most areas of business activity, including sales and marketing, finance, training, procurement and recruitment. Indeed, as hard-pressed compliance professionals know, there is hardly an area that is untouched.

But how extensively do screening and other due diligence tools need to be applied for a company to assure itself that it is ‘compliant’? And what is the danger of over-compliance – i.e., conflict of laws situation, GDPR concerns – choking off legitimate opportunities and customer and other third-party relationships by striving for a ‘zero-risk’ approach?

Aline Doussin, partner at the London office of Hogan Lovells and dual-French and English qualified, will lead the conversation on this perennial question alongside Keith O’Leary, Global Trade Compliance Manager – EMEA at Hitachi Vantara.

 

Rosa Rosanelli – Found in translation:  Interpreting the EU Guidelines for ICPs

For many companies trading in strategic goods, a strong and comprehensive Internal Compliance Plan (or ICP) lies at the heart of ensuring that their efforts to stay abreast of the law are always on track.

In 2018, the European Union published Guidelines on best practice related to the seven core elements of an ICP:  management commitment, training, performance review, transaction screening, recordkeeping and physical and information security.

Food for thought for any compliance manager – but how best to interpret the guidelines in such a way as to be relevant for individual companies?

In her presentation, Rosa Rosanelli, Group Chief Export Control Officer of AIM Norway, and General Counsel of BEC, takes a deep dive into the EU guidelines and gives practical suggestions for their real-world application.

 

Satish Kini, Jane Shvets and Konstantin Bureiko – OFAC, through the prism of its enforcement actions

For many companies (regardless of their nationality), ensuring adherence with the regulations imposed by the US Treasury’s Office of Foreign Assets Control (‘OFAC’) is at the top of the list of their compliance concerns – reflecting not only the huge penalties by way of settlement that often arise out of OFAC allegations, but the speed with which the US sanctions landscape continues to change.

But – arguably a saving grace – OFAC enforcement actions do come with explicit descriptions of the reasons why a penalty was imposed, its size, mitigation and aggravating factors.

In this session, Debevoise & Plimpton lawyers Satish Kini, Jane Shvets and Konstantin Bureiko look at OFAC sanctions and the application of extra-territorial jurisdiction through the prism of recent enforcement cases and examine how companies can improve their compliance processes and culture accordingly.

This is a session that translates the sometimes obscure language of the law into practical and potentially invaluable steps that every company can take.

 

Keith O’Leary – Getting a grip: building a compliance strategy for intangible technology transfers (ITT)

The Cloud, employee travel, email and data sticks, all pose challenges to companies’ best endeavours to ensure compliant ITT. But it’s a challenge, not only for ICT companies, but for every company active in the digital economy.

Not only does the movement of ‘intangibles’ take place in an instant – and can be all but impossible to trace – but the regulation of ITT and interpretation thereof varies significantly between nations (even within the European Union).

In this presentation, Keith O’Leary, Global Trade Compliance Manager – EMEA for Hitachi Vantara looks at key recent developments relating to ITT, and considers how companies can construct a coherent strategy for managing the manifold potential compliance risks ITT presents.

 

Lourdes Catrain – Europe: tightening the reins on foreign investment?

2020 will see the entering into force of the EU Foreign Investment Enabling Framework – marking a stepping up of the scrutiny of foreign direct investment, and with potentially significant impact on companies, particularly where active in strategic and sensitive areas of industries.

In parallel, a number of EU Member States have strengthened their own powers for reviewing foreign direct investment. With the Framework imminent, how should such companies prepare? And how will EU and Member States’ rules interplay?

Lourdes Catrain, a partner at the Brussels office of Hogan Lovells, will walk through the substantive and procedural requirements of the EU and various EU Member States, including France, Germany and the UK, and explore how companies might factor developments into their corporate planning and compliance strategies.

 

Matt Bell – Wind it up before you go-go

As copious recent examples (Russia, Iran, Venezuela) have proven, sanctions against a country – or persons and entities within a country – can be imposed or escalated quickly and with little warning. Companies bound to comply must act fast to ensure that they’re not in violation of US, UN or other sanctions – even if they choose to walk out the door.

But severing ties is not something that can be undertaken overnight. Employees need to be paid, taxes must be filed, labour laws considered, third-party relationships terminated, contractual obligations renegotiated or suspended, and steps taken to ensure that you do not accidentally violate the law on your way out – or alternatively, if and when the sanctions are lifted, that business can resume.

Matt Bell, Senior Managing Director, Practice Leader Export Controls and Sanctions at FTI Consulting, has been at the front line of trade compliance for the past five years. Matt will be bringing to bear his experience as a senior in-house counsel dealing with wind-down operations in a presentation that addresses the urgent issues and shift in compliance tempo that can quickly arise.

 

Tina Carlile – Owning the risk and staying resilient

Key to contemporary compliance – whether sanctions, export control, or cybersecurity – is the application of resilience tactics. That means thinking ahead and anticipating risk.

In real world terms, that also means translating best intentions into concrete action, ensuring  that risk ownership and responsibility for coordinating responses are clearly allocated.

Drawing on her experiences both in the private sector and also with the US government (US Department of State and Department of Homeland Security), Tina Carlile, Senior Counsel for International Trade at BP, describes her approach to risk ownership allocation and pre-empting change across a spectrum of national security-related compliance concerns, including export controls and sanctions, cybersecurity and general disaster-preparedness.

This is a must-attend session in an uncertain global climate characterised by rapid technological advances.

 

Genevra Forwood and Sara Nordin – Sanctions and arbitration: Two worlds collide

As the use of sanctions as a foreign policy tool has expanded, and arbitration as an alternative to the court system grown in popularity, inevitably they rub up against each other, sometimes opening a Pandora’s Box of issues that aren’t always easily resolved.

White & Case sanctions experts, Genevra Forwood (partner) and Sara Nordin (counsel) share their experiences of how sanctions issues can arise in the arbitral context. They will look at how sanctions can impact on arbitration clauses, on the substance of the dispute (e.g., their bearing on the interpretation of contracts) and the enforceability of arbitral awards.

In their presentation, Genevra and Sara will also touch on the practical impact of sanctions on arbitrations (e.g., licensing issues and compliance obligations of arbitrators) and the implications that ensue when one or both parties are designated under EU or other sanctions measures.

This promises to be a thought-provoking presentation raising numerous, fascinating issues in fast-evolving areas of contemporary business law and practice.

 

Jane Shvets and Konstantin Bureiko – A troublesome troika: Russia and the EU/US sanctions regimes

The sanctions that have been imposed on Russia by the United States and the European Union since the annexation of Crimea amount to some of the most complex ever – now extending to sectoral sanctions, restrictions on debt, an arms embargo, Magnitsky-type sanctions, and the secondary sanctions found in the CAATSA legislation introduced in 2016.

And yet – whereas typically embargoes choke off all but the most niche (or illicit) – trade between Russia, the United States and the European Union remains strong.  Still, the need for due diligence and analysis required remains considerable, exacerbated by the underlap between the EU and US sanctions regulations.

In this presentation – essential for anyone doing business with Russia, Russian parties, or in the orbit of either – Debevoise & Plimpton lawyers Konstantin Bureiko and Jane Shvets focus on the discrepancies between the US and EU sanctions programmes, and how they should be managed within a cross-border trade compliance programme.

 

Arthur Browne – The defence supply chain: risks, challenges and opportunities

Highly regulated, demanding, and involving multiple suppliers, components and solutions providers from around the world, the defence supply chain is arguably more complex than any other – and is necessarily attended by numerous security concerns and, it goes without saying, compliance risks.

Suppliers and contractors must be vetted, shipments tracked, components sourced, goods and parts classified in a just-in-time environment – all while working with multiple regulatory bodies from around the world, addressing manifold reputational and proliferation/diversion concerns.

Given the lead time of defence projects, timing is everything.

In this presentation, which will resonate with compliance professionals in both the defence and dual-use space, Arthur Browne, Export Control Manager for the Rolls-Royce Supply Chain Unit, will explore the key compliance risks inherent in the defence supply chain, and how they can be managed in a way that also enables the company’s commercial imperatives.

 

Marian Niestedt and Dr. Gerd Schwendinger – Rocks, hard places, and little in between: the EU and the German blocking statutes and their impact on compliance

Since Donald Trump announced in May 2018 that the US would be pulling out of the JCPOA, the divergence between the US and the EU regarding Iran has only widened. At that time, the EU announced that it would be reactivating its ‘blocking statute’ – initially a response to sanctions imposed against Cuba in 1996.

Germany has its own ‘blocking’ law in the form of a provision of the Foreign Trade and Payments Ordinance that reads, ‘The issuing of a declaration in foreign trade and payments transactions whereby a resident participates in a boycott against another country (boycott declaration) shall be prohibited.’

Heightened disagreement between the two great spheres of influence in the West elevates the blocking laws well beyond the theoretical, creating genuine compliance dilemmas for EU companies and subsidiaries of US companies.

We are delighted that Marian Niestedt and Dr Gerd Schwendinger, partners at German law firm Graf von Westphalen, will be presenting on how best to navigate EU/US contradiction, what can be learnt from the original implementation of the blocking statute in response to Helms-Burton, and how economic operators can best ensure compliance with export control and sanctions laws and regulation in times of increasing regulatory sanctions and intervention.

 

Timothy O’Toole – Going deep: a masterclass on investigations best practice

Much of the time, a company’s investigation into potential compliance failings results in little or nothing. But sometimes there’s a lead and the lead needs to be pursued further.

Investigations can be lengthy, complicated – and expensive, the way that they’re conducted can have a huge bearing on a company’s fortunes.

In this presentation, experienced investigator and white-collar crime attorney, Timothy O’Toole, of Washington, DC law firm Miller & Chevalier, talks through best practice, including:

  • When should an investigation be initiated?
  • Defining its scope
  • Allocating responsibilities and working with third-parties
  • Working with multiple, sometimes multijurisdictional, agencies
  • Protecting employees’ rights and data
  • Voluntary disclosure do’s and don’ts…

Bringing to bear the fruits of O’Toole’s extensive cross-border experience, this promises to be a must-attend session for compliance officers and others in the trade controls space.

 

Amie Ahanchian and Steve Brotherton – Auditing the trade function: What, When and How?

Developing a robust export control audit programme can be a gamechanger for companies navigating the increasingly complex world of global trade.  But a well-executed audit doesn’t happen overnight – it requires planning, performing, reporting and implementing improvements based on the results.

But what to audit, when, and how?

In their presentation, Amie Ahanchian, Managing Director, and Steve Brotherton, Global Export Controls and Sanctions Lead, at KPMG LLP, will walk delegates through leading practices for executing an export compliance risk audit, on the way outlining key characteristics of audits by type: organisational self-assessments, corporate-level export compliance reviews, internal audits, external assessments, and government-directed audits.

Of course, there is no-one-size-fits-all ‘blueprint’ for auditing – but this thought-provoking presentation will take delegates a long way toward a plan of action that ‘works’ for their own organisation.

 

Barbara Linney – National security laws and due diligence: preparedness and conduct

Renewed emphasis in recent years has elevated national security laws – sanctions, export controls, restrictive investment regimes including CFIUS and the FDI regulation – to the suite of prime considerations for companies contemplating acquisitions or divestments (whether as targets, acquirors or sellers).

But there’s a tension: the commercial side wants the deal done and the champagne corks popping. Compliance wants to see the i’s dotted and the t’s crossed. Is there a happier medium?

Barbara Linney of the DC office of law firm BakerHostetler walks delegates through the areas of national security law that can impact deal-making – including those which are routinely ignored, but shouldn’t be – and, crucially, explains how long-term preparedness is as critical as due diligence attendant on the deal itself.

 

Branislav Aleksic – R&D and beyond: the Fraunhofer experience

Fraunhofer Gesellschaft is the largest organisation for applied research in Europe, with 72 institutes and research facilities in Germany (and beyond), and is a key component of the country’s Innovation Economy.

Each year, it’s contracted to undertake around Euros 2bn worth of R&D for industry, the service sector, and government in fields including health, communication, energy, transport and security.

The export control challenges, such as the clash between research and control, addressing new technologies, working with multiple partners from different jurisdictions are, it scarce need saying, complex, considerable – and ever-changing.

In this presentation, Branislav Aleksic, Export Control Officer and Legal Counsel, describes some of those challenges and the structures and procedures that Fraunhofer has put in place to meet them.

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