ILS NEWS (JANUARY 2022)

Diana Dominguez is the new Trade and Investment Representative for the Americas, Australia and New Zealand

Diana has been with the California Governor’s Office of Business and Economic Development (GO-Biz) since 2015. In her prior role as the Special Advisor for International Affairs and Trade, she managed the international partnerships and export development planning of GO-Biz’s International Affairs and Business Development unit, in addition to serving as the primary manager of GO-Biz and the California Department of Food and Agriculture (CDFA) in overseeing the implementation of California State Trade Expansion Program (STEP)-funded activities. Diana formerly served as the International Special Projects Manager at the Northern California Center for International Trade Development (CITD) from 2009 to 2015, where she organized foreign training delegations. She assisted the Director in leading over one hundred trade missions to and from California. Diana also served as the Statewide Agriculture Co-Coordinator to implement the Memorandum of Agreement between the CITD and the California Department of Food and Agriculture. She holds a bachelor’s degree in political science from the University of California, Davis.

Jonathan Ziegler is the new Trade and Investment Representative for Europe, the Middle East and Africa

Jonathan is a career specialist in international trade and investment who has focused on supporting governors and state offices in building international partnerships. After graduating from Seton Hall University with a degree in diplomacy and international relations, Jonathan began work at the International Trade Administration, where he assisted New Jersey businesses with the export process. He then relocated to Washington, DC, where he operated as an International Trade Specialist for the National Governors Association and a Senior Trade Analyst for the US Department of Commerce. Jonathan later accepted an opportunity to develop a new business attraction and accelerator program for the Research & Technology Park in the US Virgin Islands, which was a 2020 gold award-winner with the International Economic Development Council. After a decade of studying and working across the country, Jonathan finally made it back to his home state of California, where he is excited to support the State’s commercial relationships with Europe, the Middle East, and Africa.

On December 23, 2021, President Biden signed into law H.R. 6256 which bans imports from the Xinjiang Uyghur Autonomous Region (Xinjian) of the People’s Republic of China and imposes sanctions on foreign individuals responsible for forced labor in the region.

On November 2, 2021, the US, the European Union and certain partners formally launched the Global Methane Pledge, an initiative to reduce global methane emissions to keep the goal of limiting warming to 1.5 degrees Celsius within reach. A total of 100 countries representing 70% of the global economy and nearly half of anthropogenic methane emissions have now signed onto the pledge. More information is available here.

Mexico’s Shrimp Imports

The US and Mexico have been working together on sea turtle conservation and a range of bilateral fisheries and marine conservation issues. In the past several months, the Mexican Government implemented a plan of action to strengthen sea turtle conservation in its shrimp trawl fisheries, resulting in significantly improved used of turtle excluder devices by its fishing industry.

Accordingly, the State Department notified Congress on October 21, 2021 of the certification of Mexico under Section 609 of United States Public Law 101-162 which allows for importation of wild-caught shrimp into the US from Mexico based on the determination that Mexico’s turtle exclude devices program is again comparable in effectiveness to the US program. More information is available here.

Natwest Markets Plc, a UK-based global banking and financial services firm, pleaded guilty to various fraud schemes in the markets for US Treasury securities and futures contracts. The firm agreed to pay $35 million in fines, restitution and forfeiture. More information is available here.

$56 million in seized cryptocurrency was sold as the first step to compensate victims of BitConnect Fraud Scheme. This liquidation is the largest single recovery of a cryptocurrency fraud by the US as of November 16, 2021. More information is available here.

On December 3, 2021, President Recep Tayyip Erdoğan signed the circular, “Use of the Phrase ‘Türkiye’ as a Brand,” calling for use of the Turkish word for Turkey — “Türkiye” — instead of Turkey, Türkei, Turquie or any other foreign language equivalent. ”The phrase Türkiye represents and expresses the culture, civilization and values of the Turkish nation in the best way,” the circular says. “In this context, the phrase ‘Made in Türkiye’ is now being used instead of ‘Made in Turkey’ on our export products, which are the pride of our country in international trade.” A copy of circular which was promulgated in the Official Gazette in Turkish is available here.

During a Senate Hearing on January 11, 2022, a top national security officer said that the Justice Department is opening a new unit to investigate acts of domestic terrorism. According to the FBI and the Justice Department, the number of threats and investigations into acts of domestic terrorism have increased since 2020. Under federal law, “domestic terrorism” is defined as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.” More information is available here.

On July 2, 2021, Kaseya, a multinational information software company, and its customers were attached by ransomware, known as REvil or Sodinokibi. As of November 8, 2021, REvil ransomware has been deployed on approximately 175,000 computers worldwide, with at least $200 million paid in ransom.

On August 11, 2021, the Justice Department indicted Yaroslav Vasinskyi (also known as Rabotnik) for conspiring to commit intentional damage to protected computers and to extort in relation to that damage and conspiring to commit money laundering. According to the indictment, Vasinskyi and co-conspirators authored REvil software, installed it on victims’ computers, resulting in encryption of victims’ data, demanded ransom payments from those victim and then laundered those payments. More information is available here.

On November 30, 2021, Emma Coronel Aispuro, the wife of Joaquin “El Chapo” Guzman Loera, was sentenced to 36 months in prison followed by four years of supervised release for charges related to international drug trafficking, money laundering and criminal violation of the Foreign Narcotics Kingpin Designation Act. More information is available here.

On January 6, 2022, the CNIL issued a decision finding that Facebook and Google failed to allow refusal of cookies as easily as their acceptance. The sites at issue are facebook.com, google.fr and youtube.com

CNIL fined Google 150 million euros and Facebook 60 million euros, and ordered them to comply within three months subject to a daily penalty of 100,000 euros.

The sanctions body of the CNIL noted that the websites in question offer a single button allowing visitors to accept cookies immediately. However, they do not provide an equivalent solution (button or other) to allow the user to just as easily refuse these cookies. Instead, several maneuvers are required to refuse cookies, as opposed to a single click when accepting them.

The CNIL found that this procedure/difference infringes on the freedom of consent since users expect to be able to quickly consult a site and the fact that they cannot refuse cookies as easily as accepting them influences that choice: Consent is not given freely. 

Hence, a violation of Article 82 of the French Data Protection Act (implementing the GDPR). 

As a result, CNIL pronounced:

• two fines totaling 150 million euros against Google (90 million euros for Google LLC and 60 million euros for Google Ireland Limited);
• 60 million fine against Facebook Ireland Limited.

In addition to the fines, the panel ordered the companies to provide Internet users in France, within three months, with a means of refusing cookies which is as simple as the existing means of accepting them.

These two decisions are part of the global compliance strategy initiated by the CNIL.

Since March 31, 2021, when the deadline for websites and mobile applications to comply with the new rules on cookies arrived, the CNIL has adopted nearly 100 decisions (formal notices and sanctions) related to non-compliance with the legislation on cookies. So far, the CNIL has limited the reach of the decision to France.

On December 20, 2021, the OECD published detailed rules regarding the implementation of a landmark reform to the international tax system, which will ensure that multinational enterprises will be subject to a minimum 15% tax rate from 2023.

The Pillar Two model rules provide governments a precise template for taking forward the two-pillar solution to address the tax challenges arising from digitalization and globalization of the economy that was agreed upon in October 2021 by 137 countries and jurisdictions under the OECD/G20 Inclusive Framework on Based Erosion and Profit Shifting. More information is available here.

Digital Markets Act and Digital Services Act

The EU is working on upgrading the current rules governing digital services by introducing the Digital Markets Act (DMA) and the Digital Services Act (DSA), which creates a single set of rules applicable across the EU. The purpose is to address the imbalance that currently exists due to the dominant position gained by some platforms, which gives them a significant advantage over their competitors.

The purpose of the DMA is to ensure a level playing field for all digital companies, regardless of their size. The regulation will lay down clear rules for big platforms which aim to stop them from imposing unfair conditions on businesses and consumers.

The DSA focuses on creating a safer digital space for digital users and companies by protecting fundamental rights online. The core concerns are trade and exchange of illegal goods, services and content online and algorithmic systems amplifying the spread of misinformation.

Parliament debated its position on the DMA on December 14, 2021 and passed the DMA on December 15, 2021. Negotiations with the EU governments are planned to start in the first half of 2022.

The internal market committee approved its position on the DSA on December 14, 2021. This text will be considered and voted on by the whole Parliament in January 2022, which would allow for negotiations with EU countries in the Council to start in the first half of 2022. More information is available here.

COP26 The Glasgow Climate Pact

COP26[1] concluded on November 13, 2021 with every party at COP26 (representing almost 200 countries) agreeing to the Glasgow Climate Pact. This global agreement will accelerate action on climate this decade and finally completes the Paris Rulebook. Click here for more information.

[1] COP26 is the 26^th annual meeting of the Conference of Parties, when governments, non-governmental organizations, trade unions, businesses and others interested in climate change meet to review and negotiate global action.

by T. Sean Butler[1]

On-Going Court Proceedings

Between October and December 2021, there were on-going court proceedings (trials, confirmation of charges, status conferences) for the cases of: Al Hassan (Mali), Courtroom III; Yekatom and Ngaissona (Central African Republic), Courtroom I; the hearing on review of charges on Al Madhi (Mali-sentence reduced by 2 yrs.); confirmation of charges on Said (Central African Republic-some charges confirmed, some rejected.) A calendar of proceedings is available on the ICC website, at the bottom of the entry page.

Trust Fund for Victims

Archbishop Desmond Tutu was on the first board of directors of the Trust Fund for Victims (TFV). His participation helped promote the TFV and we recall his many contributions with his passing. The Rome Treaty includes provisions for reparations for victims of the crimes committed by those convicted. The TFV was established by the Assembly of State Parties (ASP) to deal with reparations and is funded by voluntary contributions. There has been a recent focus on the need for funding of the Trust Fund for Victims and the part of the treaty that deals with reparative justice. Several nations have answered the call for the contributions. More information regarding TFV is available here.

Prosecutor Announces Policy Initiative Regarding Persecution on Ground of Gender

Prosecutor Karim Khan announced public consultations on advancing accountability for persecution on the grounds of gender. See this link.

Prosecutor Appoints Special Advisor on Mutual Legal Assistance

Yoshimitsu Yamauchi of Japan was appointed Special Advisor on Mutual Legal Assistance. More information is available here.

Assembly of State Parties

The 20th Assembly of State Parties (ASP) was conducted from December 6-10, 2021. Five resolutions were adopted by unanimous consent, regarding budget, cooperation, review of the ICC system, recommendations of the Group of Independent Experts, and on strengthening the ICC and ASP. Two deputy prosecutors were elected for terms of 9 yrs. Five members of the board of directors of the TFV were elected. Nine members of the advisory committee on nomination of judges were elected. There were side events conducted on particular subjects including the Independent Experts Report, cooperation and complementarity, review mechanisms, transparency and participation of civil society, gender in international criminal law, vetting of elections, vetoes blocking referrals, proposed amendments including the crime of ecocide, and cyber-attacks as crimes within the jurisdiction of the ICC. More information about the ASP can be found here.

Central African Republic

The trial of Patrice-Edouard Ngaïssona and Alfred Yekatom opened February 21, 2021 in Trial Chamber V for war crimes and crimes against humanity including directing attacks on civilian populations is ongoing.

On December 8, 2021, Pre-Trial Chamber II confirmed some charges and rejected others in the case against Mahamat Said Abdel Kani. Charges that he was either a direct co-participant or ordered or induced crimes against humanity as part of the Central Office for the Repression of Banditry in Bangui (CAR) between April 12, 2013 and August 30, 2013 were confirmed, while charges of crimes against humanity and war crimes allegedly committed at the Extraordinary Committee for the Defense of Democratic Achievements in Bangui (CAR) between mid-September 2013 and November 8 2013 were rejected. Leave to appeal may be requested and the time for requesting leave to appeal has not passed. More information is available here.

Kenya

On September 30, 2021, Trial Chamber III set the opening of the trial of Paul Gicheru, accused of offenses against the administration of justice by corruptly influencing witnesses, for February 15, 2022.

Mali

The trial of Al Hassan continues. He is accused of crimes against humanity and war crimes, consisting of crimes of sexual violence in Mali between April 2012 and January 2013. 

Venezuela I

On November 3, 2021, the Prosecutor announced that the preliminary examination on the referral by a group of nations on September 27, 2018 regarding the situation in Venezuela was complete and moved to the investigation stage. A Memorandum of Understanding between the government of Venezuela and the Office of the Prosecutor was also announced. The statement by the Prosecutor, with a link to the Memorandum of Understanding, is available here.

Preliminary Examinations

There are ongoing preliminary examinations regarding:

• Alleged crimes against humanity committed in the context of the September 28, 2009 events in Conakry, Guinea;
• The preliminary examination concluded with a determination to request authorization from the Pre-Trial Chamber to open an investigation regarding Nigeria and Boko Haram;
• Alleged crimes committed in the situation in Ukraine since November 21, 2013;
• Alleged crimes committed from second situation, a self-referral made by Venezuela (Venezuela II) on February 14, 2020; and
• Alleged crimes against humanity committed in Bolivia in August 2020.

The preliminary examination regarding alleged war crimes committed since November 1, 2009 and alleged crimes against humanity committed since November 1, 2002 in Colombia is on hold pursuant to an October 28, 2021 agreement between the Prosecutor and the government of Colombia based on the understanding that domestic authorities are able and willing to proceed with investigations and prosecutions. ICC investigations for Colombia are deferred.

By Payal Sinha

On December 28, 2021, President Biden signed “A Proclamation on Revoking Proclamation 10315.” This Presidential proclamation rescinds the prior proclamation of November 26, 2021 (Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019). The prior proclamation suspended the entry of certain noncitizens traveling as immigrants or nonimmigrants who were physically present in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and Zimbabwe during the 14-day period prior to their entry or attempted entry into the US.

Pursuant to President Biden’s proclamation, as of January 1, 2022, P.P. 10315 will no longer prevent visa issuance to individuals subject to that Proclamation. Consular sections in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and Zimbabwe will resume routine nonimmigrant and immigrant visa services to the extent they are able. Applicants whose cases were refused solely due to their presence in a country covered by a regional COVID proclamation should contact the embassy or consulate where they made the application to request reconsideration.

In the light of recent CDC guidelines, international air travelers to the US from all countries, regardless of citizenship or vaccination status, must take a COVID-19 test within one day of departure and show a negative test result before they board a flight to the US. That requirement has strengthened the already stringent international travel protocols that the US has imposed, including requirements for noncitizens to be fully vaccinated, subject to limited exceptions, and for travelers to wear face masks on commercial conveyances and at US transportation hubs. More Information can be found here.

Chair: Tiffany Heah

Vice Chairs:

• Richard Bainter
• Cathy Carlisle

Secretary: Melissa Allain

Treasurer: Agustin Ceballos

ILS NEWS:

• Cathy Carlisle (Editor-in-Chief)
• Melissa Allain (Managing Editor)

Members: 

• Robert E. Lutz
• Payal Sinha
• Daniel Alef
• Hon. James P. Kleinberg (Ret.)
• Bob Bowen
•  Eric Husby

ILS Representative: Enrique Hernandez

CYLA Liaison: Valentina Yan

Immediate Past Chair:  William Tolin Gay

Section Manager: Mycah Hetzler

Looking for Executive Committee Members

We are now accepting applications to join the 2022-2023 Executive Committee. This is a great opportunity for you to interact with other ILS members including our foreign bar friends and create lifelong friendships. We are always looking for individuals who are passionate about international or immigration law. Click here for more information. Click here to download the application form.

ILS partnered with the Law Society of Ireland to produce a webinar on the EU Digital Services Act (DSA). The DSA will introduce a common set of rules for digital platforms, including a modernized liability regime for online intermediaries and new transparency obligations for combatting illegal content. The proposed new rules will apply to companies that provide services within the EU, regardless of where they are headquartered. As a result, it will impact many California-based companies that operate in Europe.

Ms. Irene Roche Laguna presented an overview of the proposed act. She is the Deputy Head of the Digital Services and Platforms Unit within the European Commission Directorate‑General for Communications Networks, Content and Technology. Ms. Victoria de Posson presented the industry perspective. She is a Senior Manager, Public Policy in the Brussels office of the Computer & Communications Industry Association.

The live program attracted over 90 participants from all over the world. This program is the third collaboration between ILS and the Law Society of Ireland. We are looking forward to more joint programs and activities in the future, including possible in-person meetings later in 2022. The Digital Services Act program is now available in the CLA catalog. You can access it here.

For additional materials, click on the following links below:

• The digital services balancing act: three questions for EU lawmakers; 
• DSA: How proposed marketplace obligations could hurt European small businesses; 
• EU Lawmakers may want to think twice before banning targeted ads;
• The DSA can’t be everything to everybody. 
• Project Disco

ILS organized a joint program last October with the Mexican National Association of Business Lawyers (ANADE) to discuss the first labor complaints brought under the Rapid Response Mechanism of the United States-Mexico-Canada Agreement (USMCA). The USMCA, which took effect in July 2020, replaced the North American Free Trade Agreement (NAFTA). NAFTA had contained mechanisms for settling investor-state disputes and disputes between the parties. However, the Rapid Response Labor Mechanism is an additional, new procedure that provides for expedited enforcement of workers’ free association and collective bargaining rights at a specific business.

These new developments in international law were discussed by Alfredo Kupfer, Ken Smith and Daniel Rangel. Daniel is Research Director for the Global Trade Watch at Public Citizen and was involved in drafting the first complaint under the Rapid Response Mechanism. Ken is a partner at Agon where he focuses on helping international clients to identify trade and foreign direct investment opportunities derived from the new generation of Free Trade Agreements to which Mexico is a party. Alfredo heads his firm’s Labor, Social Security and Immigration practice group and advises local and foreign clients in complex labor and employment matters. A recording of the program can be found at this link.

Topics to be covered include: lease economics, lease registration, assignment and subletting, landlord remedies, tenant remedies for landlord defaults, lease exit strategies, typical security deposit requirements, formalities of lease execution, relevant tax issues, extension protocols and local cultural norms that may affect negotiations.

Join the CLA and leading arbitration institutions and organizations from around the world in a week-long series of complimentary virtual/hybrid programs celebrating international arbitration in California. ILS is sponsoring this exciting event. Registration online by clicking here.

The Week is hosted by the ADR Committee of the CLA Litigation Section. Presenters include:

• American Arbitration Association/International Centre for Dispute Resolution (AAA/ICDR)
• Arbitral Women
• Asia International Arbitration Centre (AIAC)
• California Arbitration (CalArb.org)
• California Lawyers Association (CLA)
• Chartered Institute of Arbitrators – North American Branch (CIArb)
• College of Commercial Arbitrators (CCA)
• CPR International Institute for Conflict Prevention & Resolution (CPR)
• FedArb
• Hong Kong International Arbitration Centre (HKIAC)
• ICC Court of Arbitration (ICC)
• JAMS
• Korea Commercial Arbitration Board International (KCAB)
• London Court of International Arbitration (LCIA)
• Shenzhen Court of International Arbitration (SCIA)
• Silicon Valley Arbitration & Mediation Center (SVAMC)
• Singapore International Arbitration Centre (SIAC)
• Straus Institute/Pepperdine University
• University of Southern California (USC)

Full program details and schedule coming soon.

This year, CLA will be hosting its Annual Meeting at the San Diego Hilton Bayfront from September 15, 2022 to September 17, 2022. In the past, we have received visiting delegations from Japan, France, Malaysia, Mexico and Vietnam and we are hoping to have a large and diverse group of foreign attorneys attend the 2022 CLA Annual Meeting. More to be revealed.

We are planning a webinar to be led by core members of an American Bar Association Business Law Section working group that has developed a set of model contract clauses (the MCCs) and a responsible purchasing code of conduct (the Buyer Code) to better protect workers’ human rights in supply chains. The MCCs and the Buyer Code can be included in international supply agreements between purchasing firms (e.g., retailers or brands) and their suppliers (e.g., manufacturers, factories, farms, fishing companies). The MCCs are designed to improve the social and human rights performance of international supply contracts, and, by extension, global supply chains. Their adoption promotes the “S” in ESG (Environmental, Social and (Corporate) Governance) and supports mission implementation for purpose-driven businesses. It would enable companies to be more closely aligned with the UN Guiding Principles on Business and Human Rights and the OECD guidance for multinational enterprises. It would also facilitate compliance with the emerging legal requirements coming out of the EU pertaining to human rights due diligence. More to be revealed.

On February 18, 2021, UCLA School of Law hosted the event “Pathways to International Law Practice” via Zoom with the International and Immigration Law Section of the California Lawyers Association. The speakers were Payal Sinha (immigration and family law), William Gay from Wilson Elser Moskowitz Edelman & Dicker LLP (business/corporate law), Adrian Martinez from Procopio, Cory, Hargreaves and Savitch (international corporate and commercial litigation/family law) and Agustin Ceballos from Seltzer Caplan McMahon Vitek (international tax and estate planning). The event was moderated by Jessica Peake, who is the Director of the International and Comparative Law Program at UCLA School of Law. The speakers described their personal background, work experience in their field, how they came to be where they are, and offered insight on a career path in the international arena.  

On October 6, 2021, the Career Services and the Graduate & International Programs of USC Gould School of Law virtually hosted“Pathways to International Law Practice,” and event organized with the International and Immigration Law Section of the California Lawyers Association. The participants in this event were Harumi Hata of Buchalter (corporate law), Adrian Martinez from Procopio, Cory, Hargreaves and Savitch (international corporate and commercial litigation/family law), and Jan Bejar of the Law Offices of Jan Joseph Bejar (immigration law). The event was moderated by Agustin Ceballos of Seltzer Caplan McMahon Vitek (international tax and estate planning). This event was focused on helping both J.D. and LL.M. students define a career path in their chosen international area of the law.

The International Law and Immigration Section, thanks UCLA School of Law and USC Gould School of Law for hosting these events! The Section is looking forward to organizing these programs in the future for the benefit of your students.

On November 8, 2021, Seltzer Caplan McMahon Vitek hosted 23 Ukrainian business leaders who were visiting San Diego through the San Diego Diplomacy Council’s Program ‘Ukrainian Business Leaders: Promoting Innovation and Entrepreneurship.’

Agustin Ceballos, an Executive Committee Member of the International and Immigration Law Section of the California Lawyers Association, spoke to these business leaders about the general ways of doing business in the U.S. including but not limited choice of entities, pre-negotiation strategies for cross-border transactions, and the potential hurdles that can be found related to the formation and operation of business entities. The goal of the session was to capitalize on Agustin’s experience and expertise in the fields business law and international tax, as well as sharing details on the strong relationship San Diego has with Mexico in business sectors.

The immigration committee currently compiles immigration updates on a monthly basis. Please check out the monthly immigration updates available on the ILS website.

The ABA International Law Section will be organizing its first-in person Annual Conference since 2019. This year’s Annual Conference will focus on “re-emergence,” i.e., where the US is re-emerging as a leading member of the international legal community. Click here for more information.

The Summer Conference will identify critical emerging issues, highlight the international legal work being done in Los Angeles and introduce the firms doing that work to the members of the ABA ILS and larger international legal community. More to be revealed.