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USPTO Announces New Trademark Rule Requiring Foreign-Domiciled Applicants and Registrants to Have a U.S.-Licensed Attorney
Jining He 何冀宁
August 01, 2019
On July 2, 2019, the United States Patent and Trademark Office (USPTO) announced a new rule requiring all foreign-domiciled trademark applicants, registrants, and parties to Trademark Trial and Appeal Board proceedings to be represented by an attorney who is licensed to practice law in the United States. The requirement applies to all trademark applicants, registrants, and parties whose permanent legal residence or principal place of business is outside the United States. This new trademark rule has an effective date of August 3, 2019.
The USPTO said the new rules were aimed at cracking down on fraudulent trademark registration applications and improving the quality of submissions to the USPTO. Under Secretary of Commerce for Intellectual Property and Director of the USPTO Andrei Iancu said, “Businesses rely on the U.S. trademark register to make important legal decisions about their brands. In order to maintain the accuracy and integrity of the register, for the benefit of all its users, the USPTO must have the appropriate tools to enforce compliance by all applicants and registrants. This rule is a significant step in combatting fraudulent submissions.” “Many other countries worldwide have had this requirement for decades,” said USPTO Commissioner for Trademarks Mary Boney Denison. “We believe that this new rule will help improve the quality of submissions to the USPTO.”
Additionally, U.S.-licensed attorneys representing anyone before the USPTO in trademark matters are required to confirm they are an active member in good standing of their bar and to provide their bar membership information. The unauthorized practice of trademark law before the USPTO is a serious matter and we will take appropriate actions if unauthorized practice is occurring. These actions may include: Rejecting application submissions that were improperly signed or authorized; Excluding individuals and entities from acting as an attorney, correspondent, signatory, or domestic representative in all trademark matters before the USPTO. Employing any individual who is not authorized to practice before the USPTO to represent you in connection with your trademark application may: delay and prolong the trademark application examination process; lead to the abandonment of your application; jeopardize the validity of any resulting registration.
Therefore, all foreign-domiciled trademark applicants, registrants should be represented by an attorney who is licensed to practice law in the United States about trademark practice before the USPTO in order to obtain professional legal advice, avoid falling into the application trap, increase the possibility of registration, and better exercise the trademark right.
CFIUS Clarifies Its Investment Funds Exceptions in the Critical Technology Pilot Program
Lulu Cheng/Qiaoli Xiao 程璐璐/肖巧丽
July 18, 2019
On August 1, 2018, U.S. Congress passed the Foreign Investment Risk Review Modernization Act (“FIRRMA”), which reformed the Committee on Foreign Investment in the United States (“CFIUS”) review process and significantly expanded CFIUS jurisdiction over foreign investments. On October 10, the U.S. Department of the Treasury issued an interim rule for a pilot program implementing certain provisions relating to critical technologies of FIRRMA that were not immediately effective upon enactment. The interim rule expands CFIUS jurisdiction over certain non-controlling foreign investments in critical technology companies in 27 pilot program industries, and requires mandatory declarations for such investments. Foreign investors will face a more stringent review process in the U.S.
However, FIRRMA provides an exemption for the foreign investments by or through an “investment fund”, which are not subject to the covered transactions if certain conditions are satisfied. The interim rule for the pilot program and the updated FAQs clarify the application of the FIRRMA “investment fund” exception to the pilot program, and reconfirm that the pilot program applies to the indirect investment of limited partners through investment funds.
First of all, FIRRMA limits the application of CFIUS authority over certain types of investments. An explicit exception is for investment involving air carriers. It is regulated that no investment involving an air carrier with an issued certificate shall be a pilot program covered transaction. The second exception clarifies that certain investment fund invested indirectly by foreign persons as a limited partner or equivalent on an advisory board or a committee of the fund shall not be covered for the purpose of FIRMMA if they satisfy the requirements at 31 CFR 801.304(a):
The fund is managed exclusively by a general partner, a managing member, or an equivalent;
The foreign person is not the general partner, managing member, or equivalent;
The advisory board or committee does not have the ability to approve, disapprove, or otherwise control:(i) Investment decisions of the investment fund; or (ii) Decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested;
The foreign person does not otherwise have the ability to control the investment fund, including the authority:(i) To approve, disapprove, or otherwise control investment decisions of the investment fund; (ii) To approve, disapprove, or otherwise control decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested; or (iii) To unilaterally dismiss, prevent the dismissal of, select, or determine the compensation of the general partner, managing member, or equivalent;
The foreign person does not have access to material nonpublic technical information as a result of its participation on the advisory board or committee; and
The investment otherwise meets the requirements of paragraph (4)(D) of subsection (a) of section 721 made effective by part 801.
That is to say, only when the foreign limited partner does not have the ability to make decisions and control the investment in a direct or indirect way, their investments shall not be considered a pilot covered transaction. In addition, if there are no extraordinary circumstances, a waiver of a potential conflict of interest, a waiver of an allocation limitation, or a similar activity, applicable to a transaction pursuant to the terms of an agreement governing an investment fund shall not be considered to constitute control of investment decisions of the investment fund or decisions relating to entities in which the investment fund is invested.
As it is clarified in FAQs on FIRMMA Critical Technology Pilot Program, if a foreign limited partner does not meet all of the criteria in 31 CFR 801.304(a), it is not necessarily subject to the pilot program. If a foreign limited partner is a member of the advisory board or committee of a fund, but all of the criteria set forth in 31 CFR 801.304(a) are not met, an analysis of the particular facts and circumstances will be required to determine if the indirect investment by the foreign person in a pilot program U.S. business through an investment fund is a pilot program covered transaction. The analysis would consider whether the investment could result in foreign control of a pilot program U.S. business or affords the foreign person any of the following:
access to any material nonpublic technical information in the possession of the pilot program U.S. business;
membership or observer rights on the board of directors or equivalent governing body of the pilot program U.S. business or the right to nominate an individual to a position on the board of directors or equivalent governing body of the pilot program U.S. business; or
any involvement, other than through voting of shares, in substantive decision making of the pilot program U.S. business regarding the use, development, acquisition, or release of critical technology.
The pilot program requires the submission of mandatory declarations, but FIRRMA includes an exception to the mandatory declaration requirement for investments by investment funds meeting certain criteria. FAOs points out that FIRRMA’s exception to the mandatory declaration requirement applies in the context of the pilot program. FIRRMA includes an exception to the mandatory declaration requirement for investments by an investment fund if：
the fund is managed exclusively by a general partner, a managing member, or an equivalent;
the general partner, managing member, or equivalent is not a foreign person; and
the investment fund satisfies, with respect to any foreign person with membership as a limited partner on an advisory board or a committee of the fund, the criteria specified in FIRRMA’s general clarification for investment funds (sections 721(a)(4)(D)(iv)(cc) and (dd) of the DPA).
If the same foreign person is making both an indirect investment in a pilot program U.S. business through an investment fund, as well as a direct investment in the pilot program U.S. business, CFIUS will consider the totality of the particular facts and circumstances of the transaction in determining whether a transaction is subject to its jurisdiction.
Accordingly, if a foreign investor wants to invest in the U.S. business by investing though an “investment fund” as a limited partner or equivalent on an advisory board or committee of the fund, the criteria of the exceptions in the interim rule should be satisfied. The foreign limited partner should participate in the investment fund passively to avoid triggering the CFIUS jurisdiction. In addition, in the FAQs, CFIUS further clarified that if a foreign limited partner does not meet all of the criteria in the interim rule of the pilot program, CFIUS will consider the totality of the particular facts and circumstances to determine whether the investment could result in foreign control and subject to CFIUS review. This exception provides a potential channel for foreign investors to invest in the U.S. business.
Under the background of the trade war between China and the U.S., FIRRMA and the implementation of the pilot program have increased the difficulty and uncertainty of foreign investors investing in the U.S. The foreign investments related to critical technologies may face more complicated procedures and stricter review process. Chinese investors need to conduct a compliance assessment of the investment in advance, and prepare themselves to encounter a more rigorous and time-consuming review process. On the other hand, FIRRMA did not overly extend CFIUS jurisdiction over non-control investments through “investment fund”. Chinese investors can reasonably take advantage of the exception clause of CFIUS to legally and effectively plan and promote transactions under the framework set by FIRRMA and the interim rule of the pilot program. If the investors want to invest through “investment fund” as a limited partner or equivalent on an advisory board or committee, they should plan the transaction structure and strategy as early as possible, and fully assess the relevant terms of the agreement, so as to ensure the compliance with the above provisions of the pilot program and avoid control of the investment fund decisions or access of any material nonpublic technical information. Therefore, the risks of CFIUS review and unnecessary burdens on costs and time can be reduced and the success rate of the investment can be improved.
2018年8月1日，美国国会通过了《外国投资风险审查现代化法案》 （“FIRRMA”）， 大幅度扩大了美国外国投资委员会（“CFIUS”） 对外国投资审查的权限范围，同时也改革了CFIUS对外国投资的审查程序。10月10日，美国财政部针对FIRRMA中尚未生效的条款中涉及“关键技术”的部分，发布了试点项目暂行规定，CFIUS现有权对27个试点项目行业中的关键技术公司的某些非控制性外国投资进行审查，参与此类投资的各方需向CFIUS提交强制声明，赴美投资的外国投资者将面临更严峻的审查环境。
对于在咨询委员会或基金委员会中作为有限合伙人的任何外国人，该投资基金满足FIRRMA的一般规定标准。（《外国投资和国家安全法》721(a)(4)(D)(iv)(cc) & (dd)）。
在当前中美贸易战的大背景下，FIRRMA的出台以及试点项目的实行增加了外国投资者对美投资的难度和不确定性，新兴高科技领域的投资可能面临更为繁琐的程序和更加严格的审查。中国投资者事先需对投资交易进行合规评估，做好面临审查程序更为严格、耗时更长的心理预期。但是，FIRRMA并未过度扩展CFIUS对于基金非控制性投资的管辖范围。外国投资者可合理利用CFIUS审查的例外条款，在FIRRMA及当前试点项目暂行规定所设定的框架下合法有效地筹划和推进交易，如果希望以有限合伙人或咨询委员会成员身份投资美国的“投资基金”，应当尽早对交易结构与策略进行统筹与规划，注意对相关协议安排进行充分评估，确保符合试点项目的上述规定，以避免形成对基金的投资决策或任何重大非公开技术信息的控制，带来 CFIUS 审查程序和成本上不必要的负担以及结果的不确定性，从而尽可能提高投资的成功率。
Major Restrictions and Impacts in Trade War
Lulu Cheng/Jining He 程璐璐/何冀宁
June 18, 2019
As the competition of trade between China and the U.S. grows intenser, the U.S. government has adopted more targeted policy measures in the fields of information and communications technology, infrastructure and scientific research in order to further protect its national security interests. Chinese companies and individuals will face a more challenging environment subject to highly uncertain political risks.
I. Information and Communications Technology
On May 10, 2019, the US Federal Communications Commission (FCC) rejected China Mobile’s application to provide services in the U.S. due to national security risks amid an escalation in tensions between the two countries. The committee may also review other Chinese telecommunications companies operating in the U.S., such as China Unicom and China Telecom. On May 15, 2019, President Donald Trump signed an executive order (“ Order”) entitled “Securing the Information and Communications Technology and Services Supply Chain”, which prohibits transactions and use of foreign information technology and services that may pose a particular threat to U.S. national security, foreign policy, and the economy. The Order prohibits U.S. companies from buying, using, and transacting communications equipment products and services that may involve theft of U.S. intelligence, espionage, or national security, because they fear that foreign competitors will use the supply chain to build critical infrastructure that poses a threat to national security. This has a particularly significant impact on China's information and communications technology (ICT) companies such as Huawei. The next day, the Department of Commerce, Bureau of Industry and Security (BIS) added Huawei and its 68 subsidiaries to its list of export-controlled entities, ordering that US companies not to sell products and technologies to Huawei and its subsidiaries without approval.
On May 20, Google announced that it would suspend its Android cooperation with Huawei. Microsoft also quietly withdrew Huawei laptops from its online store. On May 22, ARM instructed employees to halt "all active contracts, support entitlements, and any pending engagements” with Huawei. The ripple effect of the Order has affected Huawei's entry into the U.S. and overseas markets, which has brought layers of obstacles to Huawei's development. In addition, Chinese computer vision companies such as Hikvision, Dahua, YITU, SenseTime and Beijing Megvii are at risk of being added to the Entity List. The list names foreign and U.S. companies that must be approved by the U.S. government before a deal can be made. Then measures against companies such as Hikvision will be similar to those for Huawei.
Undoubtedly, this Order is a wake-up call for Chinese ICT entities, especially those invested, controlled and supported by the government. At present, the negotiations between China and the U.S. are deadlocked. The U.S. government can impose sanctions and restrictions on ICT enterprises based on the concerns of “national security”. Chinese ICT entities should prepare for the market environment and policy risks they will face. In the cold war of technology and trade, the U.S. regards the international market as bargaining for a higher value. Other countries will impose sanctions policies to varying degrees by under the pressure, which may strengthen restrictions and challenges on ICT enterprises.
In addition to the information and communications technology enterprises, Chinese transportation infrastructure companies are also restricted by the U.S. On May 15, the U.S. House of Representatives introduced the Transportation Infrastructure Vehicle Security Act to prevent federal transit money from being granted to local transit agencies to procure rail rolling stock made by manufacturers owned, controlled, or subsidized by China. Though the bill did not name any specific company, such a description would clearly apply to CRRC Corporation Limited (CRRC).
A day after the House bill was introduced, the House Committee on Transportation and Infrastructure held a hearing about the impact of “state-owned enterprises”—with particular close scrutiny on CRRC and BYD—on the U.S. public transit and freight rail sectors. At the hearing, the committee expressed concerns about the video surveillance, monitoring and diagnostic system, data interface and automatic train control system in the CRRC’s Washington bidding contract. They said that Chinese latest advances in Artificial Intelligence and facial recognition technology would enable China on intelligence gathering, and thus threaten the U.S. network infrastructure security. On May 19, Senator Chuck Schumer called on the U.S. Department of Commerce to investigate whether CRRC’s proposal to design new subway cars for the Metropolitan Transportation Authority's (MTA) could pose a threat to national security.
On May 23, Virginia and Maryland Senators enacted the Metro Safety, Accountability, and Investment Act of 2019, Section 9 of which prohibited Washington Metropolitan Area Transit Authority (WMATA) from using federal funds “on a contract for rolling stock from any country that meets certain criteria related to illegal subsidies for state-owned enterprises.”
Last year, U.S. Congress passed the Foreign Investment Risk Review Modernization Act (FIRRMA) to strengthen the review processes of the foreign investment in the U.S. for national security threats. If the investment in U.S. businesses involving sensitive personal data, critical infrastructure, or critical technology is not non-passive or non-controlling, it will be subject to the Committee on Foreign Investment in the United States (CFIUS) review. Chinese infrastructure companies will face a more challenging market environment in the U.S.
Accordingly, the Chinese infrastructure enterprises represented by CRRC have also become the key targets restricted by the U.S. on the grounds of national security. The review processes and restriction measures are becoming more stringent. Once the relevant bills proposed by the Senate and the House of Representatives are passed, the federal funds will be banned from the railway projects related to Chinese state-owned enterprises. The potential contracts between CRRC and transportation authority of New York and Washington will be directly affected. At the same time, the blocked rail transit project will further influence its upstream and downstream supply chain. Related Chinese cooperative enterprises, such as the developers, contractors, material suppliers, and manufacturers, may be adversely affected.
III. Scientific Research
The dilemma of negotiations between China and the U.S. has impacts on academic research. The U.S. believes that the open cooperation environment of its academic institutions may be targets of Chinese spies trying to steal and exploit information of advanced technology and cutting-edge research from laboratories.
On November 1, 2018, Attorney General Jeff Sessions announced “China Initiatives”, which reflects the Department’s strategic priority of countering Chinese national security threats and reinforces the President’s overall national security strategy. This new Initiative aims to combat Chinese economic espionage. The Department has set the goal for the Initiative to develop an enforcement strategy concerning non-traditional collectors (e.g., researchers in labs, universities, and the defense industrial base) that are being coopted into transferring technology contrary to U.S. interests. The U.S. government has strengthened the security review procedures for researchers and universities, not only restricted visa application from Chinese students who studied in the high-tech fields, but also issued guidelines on "academic espionage technology” to the college. Once the suspicious actions are discovered, such as transferring of technology, stealing scientific research or intellectual property, the FBI will investigate directly.
Two years ago, the National Institute of Health (NIH) began investigating scholars in Thousand Talents Program at Emory University. Francis Collins, the NIH's director, reiterated that American research was suffering from "foreign influence" and intellectual property rights were being lost. Therefore, it is recommended that American universities “fire some people” and point to those who accept foreign Thousand Talent Program. On April 19th, it is reported that MD Anderson Cancer Center in Houston has ousted three of five scientists federal authorities identified as being involved in Chinese efforts to steal American research. On May 16, Emory University closed the laboratory of Chinese biologist Xiaojiang Li without any notice or statement. On May 23rd. Emory claims that Mr. Li and his wife, Shihua Li, were fired for not adequately disclosing funds from abroad and the scope of their work at Chinese institutions and universities.
Obviously, these initiatives are made by schools and institutions in response to the NIH policy, and there may be more such events in the future. It is reported that the NIH has identified at least 190 funded projects from NIH that are problematic and has initiated investigations in 55 research institutions. Recently, the U.S. Department of Homeland Security announced that it will significantly increase the Student and Exchange Scholar Information System (SEVIS) fees and visitor visa fees, and that some Chinese visas to the U.S. are restricted, such as extending the period of case review in visa application, shortening the validity period, and increasing the refusal rate. This adjustment may lead to a decline in the number of students studying and communicating in the U.S.
The impacts on Chinese companies and individuals are not limited to the ICT, infrastructure and scientific research fields. With the escalation of trade conflicts between the U.S. and China, the U.S. restrictions have become multifaceted. According to the “China Initiative”, the U.S. will put more efforts to conduct in-depth investigations and file lawsuits against Chinese companies suspected of violating The Foreign Corrupt Practice Act (FCPA), FIRRMA, and other related laws and regulations. Recently, the U.S. Department of Justice announced the release of an updated version of the “Evaluation of Corporate Compliance Programs” guidance to assist prosecutors in assessing the effectiveness of the company’s compliance program in the context of a criminal investigation.
Obviously, for Chinese companies planning to enter the U.S. market, the market environment has become more complicated and challenging, so they should fully prepare themselves to deal with such risks in advance. For Chinese companies already doing business in the U.S., they should face the challenges and have the courage to file the lawsuits against the unreasonable restrictions imposed by the U.S. The enterprises should also strictly regulate their business behaviors in accordance with relevant U.S. laws and regulations and design a comprehensive and effective compliance system based on the company’s actual condition. Moreover, Chinese companies should adhere to independent research and development, improve the ability of scientific and technological innovation, prevent excessive dependence on foreign suppliers, ensure the operation of the supply chain, and prepare the backup in advance to improve their market competitiveness.
2019年5月10日，美国联邦通信委员会（FCC）以安全为由全票否决中国移动向美国公民提供手机服务的申请。委员会还可能审查其他在美经营的中国电讯商，如中国联通与中国电信。15日， Donald Trump 签署《确保信息通信技术与服务供应链安全》行政令，禁止交易、使用可能对美国国家安全、外交政策和经济构成特殊威胁的外国信息技术和服务。因担心外国竞争对手利用供应链建设关键基础设施会对国家安全造成威胁，该行政令禁止美国企业购买、使用、交易有可能涉及窃取美国情报、间谍风险或者危害国家安全的通讯设备产品和服务，这对以华为为首的中国通信技术企业的影响尤为显著。次日，美国商务部（BIS）宣布将华为及其68家子公司列入出口管制实体名单之列，命令未经批准美国公司不得销售产品和技术给华为及其子公司。
次日，众议院交通和基础设施委员会（T&I）就中国国有企业对美国公共运输和货运部门产生的影响召开听证会，重点关注中车与比亚迪。听证会上对中车华盛顿竞标合同中的视频监控、系统监控和诊断、数据接口和自动列车控制系统表达了担忧，认为中国先进的人工智能和面部识别技术使其有能力进行情报收集，并威胁到美国的网络和基础设施安全。19日，美国民主党参议院议员 Chuck Schumer 要求商务部对中车设计的纽约市新地铁是否可能威胁国家安全展开 “由上而下” 的审查。23日，弗吉尼亚州和马里兰州参议员提出《2019年地铁安全、问责和投资法案》的第9条明确禁止华盛顿地铁运输局(WMATA)使用联邦资金与任何接受非法补贴的国有企业签订合同。
2018年11月1日，美国司法部长 Jeff Sessions 宣布启动实施“中国行动”计划（“中国行动”），旨在加强推行特朗普提出的国家安全总体战略，重点聚焦在打击中国针对美国的经济间谍活动。“中国行动”将在学术领域从事科研工作的中国人定义为“非典型的信息收集人员”，并且视其为威胁美国经济和国家安全的潜在嫌疑人，列为潜在的重点调查对象。美国政府加强对科研人员和大学的安全审查程序，不仅对高科技领域专业的中国留学生签证设卡，还下发了有关“学术间谍情报技术”的指南。一旦发现涉嫌技术转移，试图窃取科研成果、知识产权等行为，联邦调查局将直接立案调查采取行动。
两年前，美国国家卫生研究院（NIH）就开始对埃默里大学的“千人计划”学者进行调查。今年四月，NIH主任 Francis Collins 重申，美国的科研正遭受“外国势力”影响，知识产权流失，因此建议美国高校“要开除一部分人”，并将矛头指向那些接受“外国”人才招募计划的学者。4月19日《科学》杂志披露MD安德森癌症中心以不当利用美国科学研究、接受国外教职或人才招募计划为由，驱逐了三名华人科学家。5月16日，埃默里大学在没有任何通知或声明的情况下关闭华人生物学家李晓江的实验室。23日，埃默里大学声称，李晓江和李世华教授夫妇因没有充分公开来自国外的研究经费以及他们在中国研究机构和大学的工作范围而被解雇。
DOJ Releases Updated Evaluation of Corporate Compliance Programs
Fan Zhang/Lulu Cheng/Qiaoli Xiao 张帆/程璐璐/肖巧丽
May 08, 2019
On April 30, 2019, the Assistant Attorney General (AAG) for the U.S. Department of Justice (DOJ) Criminal Division, Brian Benczkowski, announced the release of an updated version of the “Evaluation of Corporate Compliance Programs” guidance, which was originally issued by the Criminal Division’s Fraud Section in February 2017. The document is intended to assist prosecutors in assessing the effectiveness of the company’s compliance program in the context of a criminal investigation, and determining the appropriate form of any resolution or prosecution, correspondent monetary penalty, and compliance obligations contained in any corporate criminal resolution.
The refresh reflects the DOJ’s evaluation priorities, and its increasing emphasis on the effectiveness of the corporate compliance programs. It demonstrates that DOJ is keen to provide companies with the tools used to prevent, detect and remediate the misconduct and ensure their compliance programs meet DOJ’s expectations. The guidance also reaffirms that DOJ “does not use any rigid formula to assess the effectiveness of corporate compliance programs.” DOJ would recognize “each company’s risk profile and solutions to reduce its risks warrant particularized evaluation” and make an individualized determination in each case. Thus, companies shall understand what constitutes a best compliance program.
Highlights of the Guidance
This revised document seeks to better harmonize itself with other DOJ’s guidance and legal standards, as well as providing additional context for DOJ’s multifactor analysis of a company’s compliance program. Different from the 2017 Guidance, which included a list of 11 key evaluation topics (and 119 questions), it integrates and reorganizes the topics and questions under three fundamental questions for prosecutors to ask in evaluating compliance programs:
1. Is the Corporation’s Compliance Program Well Designed?
Different companies have different risks based on their industry, market environment, clients and business partners, foreign-government attitude, relationship with third parties, and business expenses and donations. Accordingly, when prosecutors assess the adequacy and effectiveness of corporate compliance program at the time of the offense, as well as at the time of a charging decision, there are several directions can be checked out. All topics set forth below have been included in evaluating a corporation’s compliance program, such as risk assessment, policies and procedures, training and communications, confidential reporting structure and investigation process, third-party management, and mergers and acquisitions.
2. Is the Corporation’s Compliance Program Being Implemented Effectively?
At the time of considering the practice situation of the compliance program, there are some standards should be satisfied, for example, whether a compliance program is implemented, reviewed, and revised in an effective manner, whether there are sufficient staff to audit, document, analyze and utilize the results of the compliance program, and whether the corporation’s employees are adequately informed about the compliance program and are convinced of the corporation’s commitment to it. Specifically, three main factors are used to assess the effective implementation of a compliance program, commitment by senior and middle management, autonomy and resources, as well as incentives and disciplinary measures.
3. Does the Corporation’s Compliance Program Work in Practice?
Three considerations are deployed by prosecutors in evaluating how a company’s compliance program works on the ground, especially when the misconduct was not immediately detected. First, whether companies continuously review their compliance, undertake periodic testing and audits of their legal compliance, and frequently update their changes accordingly. Second, whether a company has a well-functioning investigation mechanism that can observe any allegations and suspicions of misconduct by the company. Third, whether a company makes root-cause analysis of any underlying misconduct and remedies its problems in order to better reduce similar risk in the future.
Compared with the 2017 Guidance, the updated DOJ guidance reorganized the structure of its content, provided further explanation as to the application of the compliance and supplemented a few new factors. DOJ chose to systemize and rearrange all the factors that are used to evaluate company’s performance in accordance with a corporation’s compliance program, based on their different characteristics, by putting forward three fundamental questions instead of directly listing topics without classification like the prior version. Additionally, DOJ added new contents into the guidance.
Suggestions on Ethics & Compliance
In order to be delisted in the “sanction blacklist” and to reduce legal risks, Chinese companies in the United States shall review internal compliance programs and adapt to the adjustments of the updated the 2017 Guidance.
1. The corporation’s compliance program shall be well designed through allocating the resources and forming a compliance culture within the company.
In the aspect of risk assessment, Chinese corporation has to address and detect the particular types of misconduct most likely to occur in a particular corporation’s line of business, these misconducts will be tailored based on the company’s compliance program. Specifically, a qualified and effective risk-based compliance program requires appropriate attention and the allocation of resources to high-risk areas. The company is suggested to create compliance atmosphere and update policies and procedures in light of lessons learned from prior weaknesses. To guarantee the implementation of the system, the corporation is encouraged to hire Chief Compliance Officer with experience and qualifications as a gatekeeper.
2. The corporation’s compliance program shall be implemented effectively instead of a “paper program”.
Tailoring training and communication will be beneficial for the corporation. Confidential reporting mechanism and due diligence process ensure the effectiveness of the compliance program. The corporation shall take disciplinary actions in response to the misconduct timely and hold managers accountable under the supervision. Senior and middle management should articulate the company’s ethical standards from top to the bottom to encourage compliance. It is clearly prohibited that managers tolerate greater compliance risks in pursuit of greater revenues.
3. The corporation’s compliance program shall work in practice at the time of offence.
The guidance requires improvements and evolution of compliance program to follow changes over time. The corporation shall continuously improve the internal system by periodic testing and review. In addition to the prevention of misconduct, it is necessary for the corporation to timely respond to the investigation and remediation of any underlying misconduct.
While facing the changing investment environment overseas and intensified trade frictions between two countries, Chinese companies should pay more attention to policy changes and legal compliance to deal with risks. It is highly recommended that the corporation employ local lawyers to reduce the cost of non-compliance.
USTR Released Product Exclusions from Additional Tariffs Subject to Section 301
Zongtai (Tony) Zhou 周宗泰
March 28, 2019
Following the investigation on China’s acts under the Section 301 of the Trade Act 1974 (“Section 301”) in March 2018, under which the U.S. President is given the authority to take all appropriate actions, including retaliation, to obtain the removal of any act, policy, or practice of a foreign government that violates an international trade agreement or is unjustified, unreasonable, or discriminatory, and that burdens or restricts U.S commerce. United States Trade Representative (“USTR”) determined that China’s acts, policies and practices posted unreasonable, discriminatory burdens on U.S. commerce. USTR thereby imposed extra tariffs on certain Chinese products that are imported from China as a response to China’s unfair trade practices related to the forced transfer of American technology and intellectual property. However, there are certain categories of goods from China could be exempted from this additional tax.
Three Lists of Additional Duty Rate
As of today, there are three lists (some refer to it as tranches) of products on which additional duties would be imposed after List 1 came in effect on July 6; 2018, List 2 on August 23, 2018, and List 3 on September 24, 2018.
Specifically, List 1 imposed additional duty rate of 25% on $34 billion worth of goods from China; List 2 imposed additional duty rate of 25% on $16 billion worth of goods from China, and List 3 initially imposed additional 10% duty rate on $200 billion worth goods from China, but it was increased to 25% on January 1st, 2019. Meanwhile, it has been announced that there is the possibility of the publication of a List 4, but there is not yet an accurate date of its publication; however, it is estimated to be an additional 25% duty rate on $267 billion worth of goods from China, which will encompass all the rest of goods that were not included in the first three lists.
Exemptions from Additional Tariffs
1st Exclusion on List 1
On December 28, 2018, USTR announced the first batch of products exclusions (one-year exclusion) from section 301 tariffs, these products are either fully or partially exempted. Moreover, this product exclusions apply retroactively as of July 6, 2018, when the first set, the List 1 one that imposed additional 25% tariffs on $34 billion worth of goods, of tariffs came into effect. This granted exclusion apply not only to U.S. importers who requested for the exclusion, but all U.S. importers of the excluded product categories and tariffs code.
The majority of the products that are excluded are under following categories: (1) Single-row radial bearings having an outside diameter between 9mm and 100mm; however, single row radial bearing with a diameter under 9mm, or over 100mm, have not been excluded; (2) injection or compression type molds for rubber or plastics ; (3) linear-acting hydraulic engines and motors ; (4) refrigerating or freezing equipment like ice making machines and drinking water coolers; and Thermostats for air conditioning or heating system.
Furthermore, the fully exempted products are under the following categories: (1) hydraulic power engines; (2) drinking-water coolers; (3) injection molds; (4) single-row, radial ball bearings having an outside diameter of 9 mm but not over 30 mm; (5) single-row, radial ball bearings having an outside diameter over 30 mm but not over 52 mm; (6) certain ball bearings having an outside diameter over 52 mm but not over 100 mm; and (7) CB radio transceivers.
Additionally, partially exempted products are under the categories: (1) outboard marine engines; (2) salad spinners; (3) water filtration apparatus; (4) winches; (5) belt conveyors; (6) papermaking machinery components; (7) workstands for miter saws; (8) radiation therapy systems; (9) thermostats for HVAC system.
2nd Exclusion on List 1
On March 25, 2019, USTR announced the second batch of exclusions to the List 1 of Chinese goods subject to a 25% valorem tariffs on $34 billion worth of goods from China, which went into effect on July 6, 2018. This exclusion applies retroactively on July 6, 2018, and extend for one year after the March 25th, 2019, the publication date.
Following categories are the excluded products in the most recent exclusions: (1) submersible pumps; (2) breast pumps; (3) impellers and impeller housings; (4) salad spinners, (5) water filters for pools, (6) aquariums, etc.; (7) water purifiers; (8) steel bucket elevators; (9) rubber tracks used on construction equipment; (10) automated data processing storage units; (11) self-propelled pavers; (12) check valves; (13) electric motors; (14) electrical transformers; (15) soldering irons; (16) liquid crystal display modules; and (17) musical tuner.
Since USTR is reviewing all the requests on a rolling basis, there are, as of now, 1,004 exclusion requests have been granted; they are, however, 5,312 requested denied and 4,520 requests are still pending. For those that have not apply for exclusion, or whose request was denied, USTR suggested that it is still possible that the products could still be qualified if there is a later filed request that cover the same 10-digit HTS provision is granted.
Exclusion on List 2 & List 3
Despite USTR initiated a similar exclusion procedure on List 2 tariffs (the one went into effect on August 23, 2018 and imposed additional duty rate of 25% on $16 billion worth of goods from China) on September 18, 2018, which was concluded on December 18, 2018, there is no final conclusion/determinations in terms of the dealings with the exclusions request filing for List 2. Meanwhile, there is no proceedings on exclusion for List 3 (imposed additional 10% duty rate on $200 billion worth goods from China, but it was increased to 25% on January 1st, 2019).
清单一对来自中国的价值为340亿美元的商品征收25％的额外关税；清单二对来自中国的价值为160亿美元的商品征收25％的额外关税；清单三最初对来自中国的价值为2000亿美元的商品征收10％的额外关税，但在2019年1月1日增加到25％。 USTR宣布有可能出版清单4，但目前还没有确切的出版日期; 但是据相关人员估计，清单4将会对于来自中国的价值为2670亿美元的商品征收25％的额外关税，其将包括前三个列表中未包括的所有其他来自中国的商品。
大多数豁免除额外关税的产品属于以下类别：（1）外径为9mm至100mm的单列径向轴承，但不包括直径小于9mm或超过100mm的单列径向轴承; （2）用于注射或压缩型橡胶或塑料的模具; （3）线性作用液压发动机和电动机; （4）制冰机和饮用水冷却器等冷冻或冷冻设备;用于空调或加热系统的恒温器。
以下产品类别豁免全部额外关税：（1）液压动力发动机; （2）饮用水冷却器; （3）注塑模具; （4）单列径向球轴承，外径9毫米但不超过30毫米; （5）外径超过30毫米但不超过52毫米的单列径向球轴承; （6）某些滚珠轴承的外径超过52毫米但不超过100毫米; （7）CB无线电收发器。
以下产品类别豁免部分额外关税：（1）船外发动机; （2）沙拉旋转器/沙拉甩水器; （3）水过滤装置; （4）绞车; （5）皮带输送机; （6）造纸机械和部件; （7）斜切锯的工作台; （8）放射治疗系统; （9）用于HVAC系统的恒温器。
以下类别是最近获得豁免额外关税的产品：1）潜水泵; （2）吸乳器; （3）叶轮和叶轮外壳; （4）沙拉旋转器/沙拉甩水器，（5）游泳池用水过滤器，（6）水族箱类; （7）净水器; （8）钢斗提升机; （9）建筑设备上使用的橡胶履带; （10）自动数据处理存储单元; （11）自走式摊铺机; （12）止回阀; （13）电动机; （14）电力变压器; （15）烙铁; （16）液晶显示模块; 和（17）音乐调谐器。
A Discussion on the Several Highlights of the Chinese Foreign Investment Law
Written by Wei Chen, Translated and Edited by Zongtai (Tony) Zhou
March 26, 2019
On March 15, 2019, the Foreign Investment Law was officially adopted by the second session of the 13th National People’s Congress, and will take effect on January 1, 2020. When this new law is implemented, three current laws, commonly referred to as “the Three Foreign Investment Laws” (“The Three Laws”), will be abolished: (1) Law of the People’s Republic of China on Foreign-Capital Enterprise (“Foreign-Capital Enterprise Law”), (2) Law of the People’s Republic of China on Chinese-Foreign Equity Joint Venture (“Chinese-Foreign Equity Law”), and (3) Law of the People’s Republic of China on Chinese-Foreign Contractual Joint Ventures (“Chinese-Foreign Contractual Law”). As a law that is marked as basis for a new era of foreign investment, it is also important to gain a comprehensive understanding of the law itself, also, in connections with other current laws in order to better navigate oneself in this imminent novel legal circumstance.
The Transition Period from the Chinese-Foreign Equity Law to the Company Law of the People’s Republic of China (“Company Law”)
According to Article 42 of the Foreign Investment Law, there is a 5-year transition period for all of those Chinese-foreign joint ventures that were built in accordance with The Three Laws, during which these companies could remain their current corporate structures. However, since all these joint ventures will be subjected to the Company Law after The Three Laws are abolished.
The current joint ventures would need to redesign their management structure when the Foreign Investment Law comes in effect, since the current structure of these joint ventures would need to be reformed to accommodate the Company Law, who, under the Chinese-Foreign Equity Law, does not require a board of shareholder, where the board of director is given the highest authority. The implementation of the new law will inevitably affect current joint ventures’ internal decision-making and management structure. For example, the power to increase or decrease registered capital is under the jurisdiction of the board of director under the Chinese-Foreign Equity Law, and decisions need to be made with the presence of all of the board’s members, and unanimity is required to pass any motions. However, according to the Company Law, any board resolution would only need the votes of two thirds of its shareholders/members in order to be passed. As a result, this would further complicate the reconstruction process of these joint ventures’ internal managing, and decision-making mechanism.
The Definition of Foreign Investment
According to Article 2 of the Foreign Investment Law, foreign investment is defined as a foreign natural person, enterprise or other organization making a direct, or an indirect investment within the borders of China; and this article also set out the three ways through which these foreign investors could make their investments: (1) formation, (2) acquisition, and (3) expansion.
However, the Foreign Investment Law does not define, or clarify the definition of “indirect investment”. Often in practice, there are cases that would need further clarifications on what it means to be an indirect investment; for example, the Return Investment, where Chinese companies, or individuals who acquire oversea enterprises and establish subsidiary companies within the border of China; or, the Variable Interest Entity (VIE), where a company is held by Chinese citizens, but in practice is controlled by foreign investor(s). As a result, there will be a series of potential confusions that need to be clarified, such as how to define a foreign investor, whether to define it based on the location of the company’s registration or on the actual controller of the company, whether or not Return Investment would be considered as foreign investment, whether or not investors from Hong Kong, Macao, and Taiwan would be considered foreign investors, and whether or not the investment coming from a natural person who altered his/her citizenship (from a Chinese one to a foreign one, and vice versa) should be considered as foreign investment.
Whether a Chinese Natural Person Could Become a Shareholder in a Foreign-Capital Enterprise
Under the jurisdiction of the Chinese-Foreign Equity Law, and the Chinese-Foreign Contractual Law, a Chinese natural person is not allowed to establish an equity joint venture capital, or an equity contractual joint venture with foreign investor(s) (with certain exceptions, one of which would be setting up such ventures in specially authorized zones). However, the Foreign Investment Law does not clarify the definition of Chinese investors, but only defines foreign investors as foreign natural persons, enterprises, or other organizations.
Despite a definition of Chinese investors was included in the draft of the Foreign Investment Law issued in 2015, where a Chinese investor was defined as a natural person with Chinese citizenship, the Foreign Investment Law, however, does not include explicit restrictions on the extent to which a Chinese investor could participate in foreign investments. According to the unwritten principle of feasible-until-explicitly-prohibited in the legal convention within China, from which there could be a derived implication of an optimistic prospect, in theory, for a Chinese natural person to invest in an equity joint venture, or a contractual joint venture.
Transferring Capital Gains/Profit Into & Out of China
One of the most discussed topics among foreign investors is the one on the transferring of their capital gains/profit out of China. According to Article 21 of the Foreign Investment Law, foreign investors are entitled to, according to applicable law(s), freely transfer their initial contribution of capital, profit, capital gains, profit from property sale, received patent fees, indemnification or subsidies from government, and income at liquidation.
The eye-catching word – freely – could be misleading if it is interpreted as a standalone concept out of the context of “according to applicable laws”. According to the Notice of the State Administration of Foreign Exchange on Issuing the Provisions on the Foreign Exchange Administration of Domestic Direct Investment of Foreign Investors and the Supporting Documents, foreign-capital enterprises are required to file requests to transfer their funds out of China, it is an arduous process, which includes submitting application form, relating documents to banks and other applicable governmental agencies for investigation of their authenticity, legality, and feasibility, that could be simplified. The current system that involves multiple agencies does highlight its reliability, but it comes at the cost of efficiency, which could have a countering effect to the idea of “freely transfer” under the newly issued Foreign Investment Law. It would, therefore, be ideal to have supplementing regulations to facilitate a more thorough, and a more comprehensive realization of this targeted level of financial flexibility and mobility for foreign-capital enterprises.
Implementation of Governmental Promises, and Foreign Investment Incentive Policies at the Local Level
There are numerous variables, in practice, that need to be taken into consideration when it comes to the complete realization of foreign investment in China, one of which is how to ensure the implementation of governmental promises and incentives policies suggested in the Foreign Investment Law.
According to the Foreign Investment Law, several incentive policies have been issued to promote foreign investment:
Article 18 – County-level governments or above could, according to applicable law(s), design specific incentive policies for foreign investment
Article 24 – Local governments could design, according to and strictly complying with applicable law(s), regulations for foreign investment
Article 25 – Local governments need, according to applicable law(s), to fulfill, and to honor the promises made to, contracts agreed with foreign investors; withdrawal of promised polices or agreed contracts are required to be resolved through legal procedures, and to make corresponding indemnification in strict compliance with applicable law(s).
In practice, foreign investors often pay particular attention to whether local government would honor the promises, rather than whether indemnification would be made. In the scope of conventional legal practices, the keys to ensure foreign investors’ benefits are (1) to make sure promises that are made by local government do not violate or contradict any current law(s), and (2) to make sure that there are written contracts/records for any kinds of beneficial promises/agreements made between foreign investors and the liable local government.