Archives for January 2019

The IELR sends everyone best wishes for a warm and joyous holiday season. 2018 was momentous for the international enforcement community.

On bilateral enforcement cooperation, the IELR reported on the U.S. and Brazil starting a permanent forum on security, covering inter alia: drug and money laundering issues; alien smuggling, human trafficking, and illegal migration.

Among the stories we covered were also many battles in cybercrime. The IELR covered some U.S. indictments of Chinese state hackers, alleging stealing technology and a coordinated announcement by five governments condemning the cybercirmes and theft of IP.  The U.S. imposed sanctions for Russian cyber interference with the 2016 U.S. elections and, and there were also developments on U.S. and international law on election interference.  The Democratic National Committee sued the Russian government and the Trump campaign for election interference and related offenses.

Tax transparency and enforcement remained in the news with the EU proposal requiring reporting on tax intermediaries of aggressive tax planning and the OECD initiatives on mandatory disclosure rules to combat CRS avoidance and offshore structures and preventing abuse of RBI schemes to circumvent the CRS.  The IELR covered several prosecutions arising out of the Paradise Papers.  The U.S. revised Voluntary Disclosure rules at the end of the year and indicted professionals and a U.S. taxpayer for tax offenses arising from the Panama Papers.  The OECD and World Bank published a guide for more effective cooperation between tax authorities and anti-corruption authorities in combating tax and corruption crimes. The German police conducted a search warrant of Deutsche Bank for tax crimes arising out of the Paradise Papers. Five countries formed the Joint Chiefs of Global (Tax) Enforcement (Jr), illustrating the emerging coordination strategy of minilateral alliances and a shift from treaties to informal, nonbinding soft-law accords and transnational governmental networks.

With respect to money laundering, bank secrecy, and transparency, the President lost on three decisions on the alleged violations of the emoluments clause.  Meanwhile, FinCEN issued an advisory on human rights abuses by corruption senior political figures. The ICJ declared jurisdiction and adjudicated a suit brought by Equatorial Guinea against France.  The IMF adopted a new framework for anti-corruption and good governance.  Investigations in multiple countries against the Danish Bank for money laundering in its Estonian branch continued.  The EU adopted 5^th AML/CFT Directive and the Directive on the Use of Financial and Other Information.  The IELR also reported on the FATF report on intermediaries and beneficial ownership information and its report on professional money laundering.  The FAFT-MENAFATF Joint Plenary focused on combating terrorism-financing, human trafficking, and AML enforcement.

On transnational corruption the independent counsel and the U.S. Department of Justice prosecuted many high-visibility cases involving violations of the Foreign Agents Registration Act (FARA), including ones involving former Trump campaign manager Paul Manafort and his assistant Rick Gates, and the DOJ released 50 advisory opinions on FARA. The IELR covered the progress of prosecutors in Malaysia, the U.S. and Switzerland on 1MDB cases, including ones in Malaysia, Switzerland.  In Peru, the Supreme Court revoked Fujimori’s pardon and returned him to prison.  The U.S. entered into many joint settlements with foreign governments, including on Keppel and Petrobras.  The IELR covered the U.S. Justice policy on coordinated resolutions in corporate penalties.  The World Bank Office of Suspension and Debarment published a new report.

The major focus of international enforcement of the Trump Administration continued to be on migration.  Madeline Henshaw-Green covered many migration enforcement developments, such as the Attorney General Jeff Sessions’ elimination of the requirement of full hearings for asylum seekers, and the rise of xenophobic, anti-immigrant policies in American and European governments. The U.S. courts required that the executive branch  dismiss an alien charged with a narcotics crime, while detained for deportation purposes. Prof. Plachta covered recent initiatives by international organizations, such as the UNODC and EU to tackle the problem of migrant smuggling. Zarine Kharazian reported on the UN General Assembly’s approval of a sweeping migration accord. A U.S. court sentenced a Bosnian Serb for concealing participation in war crimes.

On counter-terrorism, international organizations updated their counter-terrorism strategies.  The IELR covered a case in which the U.S. appellate court barred the U.S. government from forcibly transferring a U.S. ISIS suspect.  Prof. Plachta reported on a UN Secretary-General report on the threat posed by ISIL and the European Parliament’s recommendation on terrorism-financing.

With respect to human trafficking, the U.S. Congress enacted a law enabling civil and criminal liability for interactive computer services.

Economic sanctions continued to be a hot area.  In particular, the Trump Administration announced its withdrawal from the JCPOA and re-imposition of unilateral Iran sanctions.  In response the EU started a process to activate blacking statute against the unilateral sanctions and initiate a vehicle to fund Iran transactions to circumvent the unilateral U.S. sanctions.   Maximilian Raileanu and I reported on the ICJ decision on Iran’s application to start proceedings against the U.S. for violating the Treaty of Amity, Economic Relations, and Consular Rights and subsequently I reported on the ICJ ‘s grant of provisions measures to Iran with respect to the U.S. sanctions. Treasury issued CAATSA reports on Russian senior foreign political officials.  BIS published a notice requesting information on emerging technologies.  The IELR covered Russia’s existing and anticipated measures in response to international economic sanctions against Russia. The U.S. armed and action against circumventions of North Korean sanctions.  Pres. Trump reversed ZTE penalties in exchange for trade concessions with China.  The U.S. and the Lima Group put diplomatic and financial pressure on the Maduro regime in Venezuela.  The U.S. banned the Venezuela’s new crypto-currency.

Prof. Plachta reported on the Council of Europe’s resolution on the destruction and illegal trafficking of cultural heritage.

Maria O’Sullivan discussed the Organization for the Prohibition of Chemical  Weapons (OPCW) decision to attribute blame for chemical weapons violations, setting the stage for accountability for the attacks on civilians in Syria and the Skripals and Sturgess cases in Britain.  In this regard, I reported on Britain’s charges against two Russians in the attacks against the Skripals and on U.S. sanctions on Russia for violation of the Chemical and Biological Weapons Treaty.

On transnational organized crime, the Council of Europe adopted a resolution on fighting organized crime through confiscation.  The U.S. charged four Chinese and six U.S. residents in international drug and laundering conspiracy involving opioids.  Prof. Luz Nagle discussed how the jailing of Gustavo Villegas, a peacemaker, threatened Colombia’s demobilization of transborder criminal organizations and urban criminal gangs.  I reported on Guatemala’s denial of visas to principal officials of the International Commission against Impunity in Guatemala (CICIG), the major body for prosecuting organized crime and corruption, as the U.S. stood silent.

With respect to international anti-trust, the U.S. Antitrust Division led discussions on achieving a multilateral framework in competition law investigation and enforcement.  Société Général agreed to pay $1.3 billion to settle U.S.-French charges on bribes to Libya and Libor fixes.

On international environmental enforcement Henshaw-Green reported on the Chinese government’s reinstating the ban on the use of rhino and tiger parts after outcries from environmental groups.  I covered INTERPOL’s coordinating international enforcement operations against marine pollution.

With respect to international securities enforcement, I reported on the actions by U.S. and U.K. enforcement and regulatory authorities against stock manipulation (i.e., pump and dump) scheme with the use of offshore entities.

Concerning extraterritorial jurisdiction I reported on the Pakistan-U.S. clash over a U.S. diplomat’s accidental killing of a motorcyclist.  Kharazian reported on the suit brought by the parents of Otto Warmbier against N. Korea under the FSIA for their son’s torture and wrongful death.

With respect to international human rights, Prof. Plachta reported on the ECtHR decision in Krombach/Bamerski and the ECtHR Grand Chamber’s decision (Nait-Liman v. Switzerland), adopting a restrictive interpretation the right of access to a court in torture cases.

Extradition and extradition alternatives stories, including Ecuador’s conferring citizenship on Julian Assange, remained important. A major story was Canada’s arrest and granting bail to Meng Wanzhou, Huawei’s CFO, on a U.S. extradition request. The U.S. demanded the release of Americans forbidden from leaving China until a fugitive father Liu Changming returns.  The U.S. sting operation snagged a Chinese intelligence officer in Belgium who was sent to the U.S. for conspiring and attempting to commit economic espionage and steal trade secrets from multiple U.S. aviation and aerospace companies. Prof. Michael Plachta, our correspondent in the EU, continued his coverage of efforts, including by the European Court of Human Rights, to hold accountable extralegal kidnapping in the war against terrorism.  Plachta also covered the ne bis in idem principle as interpreted by the Court of Justice of the EU and the same courts allowing EU Members to refuse execution of European Arrest Warrants from Poland.  Plachta reported on a case allowing a European Arrest Warrant to the UK despite Brexit.

Yurij Nemets covered INTERPOL’s trimming the individual right to access information in its files.

With respect to international organizations, INTERPOL and UNODC heads discussed measures to strengthen enforcement cooperation.

With respect to international evidence gathering, prior to the resolution by the U.S. Supreme Court of the Microsoft challenge to the warrant provisions of the Stored Electronic Communications Act, President Trump signed into law The Clarifying Lawful Overseas Use of Data (“CLOUD”) Act on March 23, 2018. It establishes processes and procedures for law enforcement requests for data in other countries. The Act may reach certain data located in other countries. The Act also allows certain foreign governments to enter into new bilateral agreements with the U.S. that will prequalify them to make foreign law-enforcement requests directly to U.S. service providers, rather than via the U.S. government under a mutual legal assistance treaty. Zarine Kharazian covered U.S. v. Microsoft Corp. She and I also covered the state of the playing field within and outside the U.S. after the enactment of the CLOUD Act.

With respect to international tribunals, Prof. Plachta discussed the Khmer Rouge Tribunal convicted two persons of genocide and the ICC Prosecutor’s requests for ruling on jurisdiction in order to start an investigation, and the recent developments in the Palestine situation   before the ICC.

In the gap of actions by international tribunals, national courts in France, Germany, Sweden and the U.S. acted on alleged atrocities in Rwanda, Syria and elsewhere.  Prof. Plachta discussed the MH17 joint investigation team’s interim report pointing at the Russian Federation for liability in the downing of Malaysian Airlines flight MH17 over the conflict zone in eastern Ukraine in 2014.

Non-governmental organizations continued to play major roles. Fair Trials and REDRESS released a report on how the use of evidence obtained by torture is still widespread in criminal trials across the world.  Linda Ramirez reported on the case brought by the Center for Constitutional Rights against the Assad regime for the death of war reporter Marie Colvin.

Professor Michael Plachta contributed many articles on economic integration and international enforcement, including the outcomes of the meetings of the EU’s Justice and Home Affairs Council, including its non-cash fraud directive, cross-border access to e-evidence, and enforcement cooperation with external actors, including the U.S. and the Western Balkans.  I covered the enforcement cooperation provisions in the Trans-Pacific Partnership.

Zarine Kharazian has continued her stellar work as the assistant editor.  Her work on the blog has resulted in 6,155 visits as of December 23 and reached 378 visits on Dec. 22.  She continues almost every weekend to play in bands. Our new intern Evan Schleicher has contributed a blog post on the Russian seizure of Ukrainian vessels and a decision by a German appellate court in a conviction of persons for atrocities in Rwanda.

In December William Hein and Co. started carrying the IELR and has archived the IELR back to its first publication in 1985.  Hein joins LexisNexis, WestLaw, and EBSCO as databases carrying the IELR.  Premium subscribers can use the IELR search engine to identify and read all the back issues on our website.

We hope you enjoyed reading the IELR in 2018 as much as we enjoyed publishing it!

Best wishes for the New Year,

The IELR Team

This retrospective will be published in Volume 35, Issue 1 of the International Enforcement Law Reporter.