IELR Blog

Official Blog of the International Enforcement Law Reporter

New Book Discusses Modern Cross-Border Criminal Threats and Impact on Security and Sovereignty in the Caribbean

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Professor Ivelaw Lloyd Griffith, a Guyanese-American who has as served in several academic leadership roles, including as Vice Chancellor (president) of the University of Guyana, has written the latest of a series of books on the topic of crime and security in the Caribbean.

His latest book, Challenged Sovereignty: The Impact of Drugs, crime, Terrorism, and Cyber Threats in the Caribbean (344 pages, U. of Illinois Press) is about to be released.

The books covers the drug trade, crime, terrorism and cyber threats in the Caribbean.  These cross-border issues have significantly impacted the small countries.  The author combines case studies with regional analyses to capture the cross-border problems that have undermined the governments’ basic goal of protecting their people against military threats, subversion and the erosion of political, economic, and social values.  The author points out that seeking solutions to these multidimensional threats requires addressing both traditional and non-traditional security and sovereignty issues.  The author focuses on clashes between Cross-border problems and the state from warring drug gangs in Jamaica, to Trinidad and Tobago’s one-time status as a center for terrorism-related activities, to the political resurgence of drug trafficker Desi Bouterse in Suriname, and the growing cyber threats across the region.

Among the author’s prior books on these topics are: The Quest for Security in the Caribbean (M.E. Sharpe), Drugs and Security in the Caribbean (Penn State University Press), The Political Economy of Drugs in the Caribbean (Palgrave Macmillan), and Caribbean Security in the Age of Terror (Ian Randle Publishers).

Meeting of Mexican and U.S. Heads of States Results in Enforcement Cooperation Promises

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On July 12, 2022, the meeting between Mexico President Andrés Manuel López Obrador and U.S. President Joseph Biden resulted in a joint statement, containing some promises of cross-border law enforcement cooperation.

Drug Trafficking, Arms Trafficking, Human Smuggling, and Transnational Criminal Organizations

Through the Bicentennial Framework for Security, Public Health, and Safe Communities, the two leaders  reaffirmed their commitment to cooperate  to address major security issues affecting the two nations, including the challenges of fentanyl, arms trafficking, and human smuggling, and to reduce levels of drug abuse and addiction.

They committed to deepen their cooperation to combat transnational criminal organizations.  They reaffirmed the robust operational efforts between law enforcement agencies to address these security efforts.  They pledged to establish a U.S.-Mexico operational task force to disrupt the flow of fentanyl into their countries.

Migration Issues

The two leaders referred to the tragic deaths of 51 migrants on June 27 at the hands of human smugglers in San Antonio.  The incident further strengthens their “determination to go after the multi-billion-dollar criminal smuggling industry preying on migrants and increase our efforts to address the root causes of migration.”  The Departments of Justice (DOJ) and Homeland Security (DHS) and Mexico’s Attorney General’s Office have coordinated to arrest and prosecute those who endanger the lives of vulnerable migrants.”  In doing so, they will, among other things,  work  through Joint Task Force Alpha and its Mexican partners.

Joint Task Force Alpha is a law enforcement task force. It will marshal the investigative and prosecutorial resources of the DOJ, in partnership with the DHS, to enhance U.S. enforcement efforts against the most prolific and dangerous human smuggling and trafficking groups operating in Mexico and the Northern Triangle countries of Guatemala, El Salvador, and Honduras.

The Joint Task Force is composed of federal prosecutors from U.S. Attorney’s Offices along the Southwest Border (District of Arizona, Southern District of California, Southern District of Texas, and Western District of Texas), from the Criminal Division and the Civil Rights Division.  Also participating are law enforcement agents and analysts from DHS’s Immigration and Customs Enforcement and Customs and Border Patrol. The FBI and the Drug Enforcement Administration are also part of the Task Force. It works closely with Operation Sentinel, a recently announced DHS operation focused on countering transnational criminal organizations affiliated with migrant smuggling.

The two leaders pledged to build on the commitments at the Summit of the Americas made by twenty-one countries in the hemisphere pursuant to the Los Angeles Declaration on Migration and Protection, they said they are taking immediate and coordinated steps to manage the flows of migrants arriving into their countries.  They have joined efforts to address the underlying economic and security drivers of migration. Recognizing that development must be at the center of all migration policies, they will accelerate and expand international cooperation programs focused on the most marginalized communities. At the same time, they will maintain strong border enforcement policies while ensuring full protection of human rights.

Analysis

Perhaps the most concrete development is pledged to establish a U.S.-Mexico operational task force to disrupt the flow of fentanyl.  Some of the ingredients tend to originate in China and are brought into Mexico, where they are further processed for export to the U.S.

The most difficult pledge is to have strong border enforcement policies while ensuring full protection of human rights.  The U.S. border situation suffers from the failure of the U.S. Congress to enact modernize legislation, the lack of resources at the border to process the number of aliens, the failure to invest in resources to adjudicate the number of asylum applicants, policies of U.S. state governments which sometimes do not complement and even work at cross-purposes with U.S. immigration and human rights policies, and the lack of consistent border and immigration policies when administrations change.

A limitation of the Los Angels Declaration on Migration and Protection is that some of the most countries that are the sources (e.g., Cuba) and intermediary locations (e.g., Nicaragua) have not joined the Declaration.

The Bicentennial Framework provides at least a detailed framework for cross-border enforcement cooperation between the two countries.  In addition, the U.S.-Mexico-Canada Free Trade Agreement has strengthened enforcement provisions, especially for labor and the environment.  Those provisions also enable the two governments and other stakeholders to ensure enforcement cooperation occurs with respect to the issues covered in the agreement.  These provisions also extend to intellectual property enforcement.

France’s Conseil d’Etat Upholds €100 Million Fine Against Google for Advertising Cookie-Related Data Protection Violations

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By Jonathan J. Rusch[1]

It should be no surprise to any company doing business in the European Union that if it wants to use “cookies” – small text files stored in an Internet user’s computer to identify that user — for advertising purposes, it must abide by the provisions of EU law pertaining to data privacy.  Recitals 26 and 28 of the General Data Protection Regulation (GDPR) make clear that any data that can be used to identify an individual either directly or indirectly is considered personal data.  Moreover, for more than a decade the EU E-privacy Directive has recognized that users have a right to refuse cookies when an entity’s website seeks to place cookies on the users’ computers.

Even so, in 2020 the French Data Protection Authority (CNIL) imposed a total of €100 million on fines on a world-leading technology company, Google, for failure to comply with the obligation to obtain users’ consent before it installed advertising cookies or other tracking devices.   The CNIL did so pursuant to Article 82 of the French Data Protection Act, which transposes the E-privacy Directive.  Google then appealed to the French Conseil d’État, the highest French court for cases involving public administration, in an effort to annul the fines.

On February 1, the Conseil d’État rejected Google’s position and affirmed the CNIL fines.  In its decision, the Conseil d’Etat confirmed that the CNIL had the power to intervene as it did.  It also found that Google had failed to provide users with clear and complete information or to obtain their prior consent to cookie placement, and had a defective cookie refusal procedure.  The Conseil took note of the fact that an audit that the CNIL conducted in March 2020 disclosed “that seven cookies were automatically installed on users’ computers as soon as they visited the site, four of which were only used for advertising purposes.”  During that audit procedure, Google “modified its practices in August 2020, but continued not to inform the user directly and explicitly about the purposes of its cookies and the means of objecting to them.”

The Conseil further noted that the amount of the fines that the CNIL imposed did not exceed the limit set by the French Data Protection Act, and that the fines were not disproportionate in view of the significant profits generated by the data collected through advertising cookies, and of Google’s dominant market share in France (more than 90 percent, which equates to approximately 47 million users).

Google reportedly is already looking ahead to replacing its advertising cookies with “a new system called Topics, in which advertisers will place ads via a limited number of topics determined by users’ browser activity.”  At other firms doing business in the EU, however, Chief Privacy Officers and Chief Compliance Officers should take note of the Conseil d’État decision and compare the Conseil’s findings against their own cookie policies and practices.  Although certain aspects of data-protection law can be exceptionally complex, providing clear guidance to internet users about prior consent to or refusal of cookies should not be.

[1]   Jonathan J. Rusch is Adjunct Professor and Co-Director of the U.S. and International Anti-Corruption Law Program at American University Washington College of Law and Adjunct Professor at Georgetown University Law Center.

2021 Holiday Retrospective

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We at the IELR send you the best wishes for a warm and joyous holiday season.  2021 was momentous for the international enforcement community, and we are grateful to have had you following along with our coverage during our 37th year of discussing international enforcement developments.

Contributors

We are grateful for the continuing long partnership with Professor Michael Plachta and for contributions from practitioners and professors, including Dr. Ted Bromund, Frederick T. Davis, Michele Estlund, Dr. Scott MacDonald, Dennis Boyle, Konstantinos Magliveras, Yuriy Nemets, Spencer A. Hill, Peter D. Hardy, Kateryna Boguslavska, Matteo Formaggi, and Linda Friedman Ramirez. Miranda Bannister finished her tenure as assistant editor in February.  Marwah Adhoob, who specialized in criminology as an undergrad, energetically replaced her.  Our legal assistants Sara Kaufman and Emma Byrne ably contributed articles. Our interns, Mitchell Beebe, Elena Botts, Kayla DeAlto, Austin Max Scherer, Teddy David, Jamie Jang, Kenneth Boggess, and Julia V. Brock, contributed some great pieces.

The following is a highlight of some of the articles we covered.

International Criminal Court

The International Criminal Court was prominent in our coverage. Plachta discussed the territorial jurisdiction of the ICC in the Palestine/Israel Case as well as the ICC Prosecutor closing a preliminary examination in Colombia and concluding an agreement with the Colombian government. K. DeAlto discussed the Central African Republic’s surrender of Said Abdel Kani to the ICC.  M. Beebe and Zagaris wrote articles about the U.S. District Courts’ blocking President Trump’s executive order, sanctioning ICC officials. Zagaris discussed President Biden’s revocation of the Trump executive order.

War Crimes and Crimes against Humanity

On war crimes and crimes against humanity, Brock discussed the reversal by the South Korean court of the 2018 on “comfort women” and ordered Japan to pay reparations to the families of 12 women forced to work as sex slaves. Plachta discussed the ECHR’s decision on German responsibility for an air strike in Afghanistan.  David and Kaufman respectively discussed German courts’ convictions of a former Syrian secret police officer and a Syrian military doctor for crimes against humanity and Adhoob discussed a German court’s conviction of a woman for crimes against humanity in the death of a Yazdi girl in Syria.  Likewise, Adhoob detailed the enforcement actions of the UN with regards to genocide, such as UN’s opening of an inquiry into Sri Lanka’s alleged war crimes during its civil war as well as the UN investigation team’s conclusion that ISIL’s crimes against Yazidis constitute genocide.  Adhoob discussed a report by a U.S. law firm, finding France responsible for the Rwandan genocide.  Zagaris and Adhoob wrote about the UN Human Rights Council’s adoption of a resolution to start a Commission of Inquiry on the latest Israel-Palestine conduct. Jang discussed the African Union’s starting of a Commission of Inquiry on the war in Ethiopia. David wrote about the conviction in a Swiss court of a Liberian warlord, putting the spotlight on universal jurisdiction and Liberian accountability.  Zagaris covered the French Supreme Court’s overturning of the dismissal of complicity for crimes against humanity against multinational enterprise Lafarge for its conduct in Syria. Boggess discussed the UN Human Rights Council’s Independent Fact-Finding Mission renewing its mandate as a UN report warns of war crimes and crimes against humanity. Ramirez wrote about a judgment of the Inter-American Court of Human Rights, finding Colombia responsible for a journalist’s abduction twenty years before.

Tax transparency and Enforcement

With respect to tax transparency and enforcement, Zagaris wrote about the EU Parliament’s adoption of a resolution to toughen the tax haven blacklist, the OECD’s call for action to disrupt, prevent, and prosecute criminal conduct by professional enablers, the OECD’s new edition of fight tax crime, and the many cases against tax enablers, including the cum-ex dividend fraud cases, as well as a federal court’s approval of a John Doe Summons for a Panamanian law firm dealing with U.S. clients.  Scherer also wrote about how charges against professionals illustrate the shifting legal landscape for professional enablers. Zagaris also discussed the U.S. Tax Court decision against a constitutional challenge to passport denial for delinquent taxpayers and about a founder of a Russian bank pleading guilty to tax fraud, including falsifying his expatriation statement.  Zagaris discussed the Nigerian government’s start of voluntary offshore assets London declaration facilities and its application to foreign enablers.  Zagaris wrote about a CJEU decision mandating enforcement of tax information request even without the taxpayer’s specific name and identity.

Money Laundering, Bank Secrecy and Transparency

On money laundering, bank secrecy and transparency, Boguslavska discussed how the 10th Basel AML index highlights four worrying gaps in global AML efforts.  Zagaris wrote several articles on the Anti-Money Laundering Act of 2020, as well as FinCEN’s proposed regulations on beneficial ownership and the ANPRM on beneficial information on real estate purchases. MacDonald wrote about Suriname’s corruption and money laundering challenges.  Adhoob and Zagaris wrote about the FinCEN notice informing financial institutions of money laundering dangers from illicit art and antiquities trade. Plachta discussed the Council of Europe’s adoption of a resolution and recommendation on strengthening FIUs.  Zagaris discussed the Cayman AML regulator’s crack down after the FATF greylisting.   Scherer discussed how the Xizhi Li conviction showed an application of money laundering techniques for laundering drug proceeds on behalf of foreign drug-trafficking organizations. Zagaris discussed the implications of the Pandora Papers and the proposed new enforcement actions of the European Parliament in the wake of the Pandora Papers.

Counter-terrorism, Economic Sanctions and Human Rights

Counter-terrorism, economic sanctions and human rights were continuing topics.  Plachta discussed the adoption by the European Commission of a new counter-terrorism agenda and a proposal for amending Europol regulation.  Adhoob discussed the ACLU’s suit on alleged discrimination by the U.S. “no-fly list” against Arabs and Muslims.  Zagaris covered China’s adoption of blocking legislation and counter-sanctions. Bannister covered the Biden Administration’s countering the Trump Administration’s sanctions against the Houthi rebels in Yemen.  Zagaris discussed the ruling of the EU Advocate General that a German telecom cannot cancel a contract with an Iranian bank without showing the cancellation was not due to U.S. sanctions.

Counter-terrorism financing,

On counter-terrorism financing, Adhoob discussed U.S. prosecution of a woman extradited by the Dutch for terrorist financing through a charity.  Zagaris wrote about a French donor’s financial contributions to the U.S. alt-right before the capitol assault and the need to apply counter-terrorism financial enforcement tools as well as a meeting between G7 and EU Security ministers on cooperation on countering racially and ethnically motivated extremism.

Transnational Corruption and Asset Forfeiture

With respect to transnational corruption and asset forfeiture, Zagaris discussed the Justice Department’s civil forfeiture suit against two alleged Ukrainian kleptocrats, a settlement by Deutsche bank of an FCPA and commodities case.  Bannister and Adhoob covered in separate articles the fishrot scandal in Namibia, where Icelandic Samherji employees allegedly paid bribes to Namibian government officials for rights to fish for horse-maskerel. Boyle discussed the Biden Administration’s policy toward Central America and the challenges posed by corruption. Zagaris contributed a piece on U.S.-N. Triangle Enhanced Engagement Act setting the stage for new U.S. policy. Zagaris discussed the British Commission on Inquiry’s investigation of alleged corruption in the BVI as well as the Biden memorandum declaring anti-corruption a core U.S. national security interest.  Zagaris wrote about the Dutch court’s agreement with a report calling the Santos-linked Angolan energy deal corrupt.  Zagaris discussed the Amec Foster Wheeler’s global corruption settlement with the U.S., U.K., and Brazil.  Zagaris discussed the return by the U.S. government of an additional $452 million in forfeited 1MDB funds to Malaysia as well as the DOJ’s return of over $32m in forfeited funds to FIFA victims.

Illegal Production and Use of Weapons

With respect to the illegal production and use of weapons, Zagaris discussed a suit by the Mexican government against U.S. arms manufacturers for illicit trafficking in arms as well as the guilty plea in the U.S. in the first successful prosecution of exportation and manufacturing of firearms to the Mexican Cartels. Adhoob discussed the U.K. and U.S. sanctions on seven Russian agents and entities over the Alexi Navalny poisoning. Zagaris discussed a ECtHR’s decision finding Russia responsible for the assassination of Litvinenko and Britain naming a third Russian suspect in the poisoning of Skripal.

Extraterritorial Jurisdiction

Extraterritorial jurisdiction remained controversial.  Fred Davis discussed the Second Circuit’s decision, opening the door a bit to non-citizen defendants challenging a court’s jurisdiction in criminal cases and also the partial clarification by the Second Circuit of the procedures applicable to prosecution of foreign sovereign owned enterprises.  Zagaris discussed Bahrain’s return of a U.S. citizen to the U.S. to face charges of murdering his mother in Bahrain as well as an Italian court’s ordering four Egyptians to stand trial in the kidnapping and killing of an Italian student in Egypt. Zagaris wrote about a Spanish court’s ordering Banco de Chile to set aside $103 million for its role in money laundering from the Pinochet expropriations and about the EU Commission proposals for major revisions in its AML/CFT laws.

Recovery and Return of Cultural Property

On the recovery and return of cultural property, Zagaris discussed the German-Nigeria agreement on the return of Benin bronzes as well as the DOJ forfeiture action for 10th century statute looted from Cambodia, and the return by U.S. Homeland Security of hundreds of looted artifacts to Mali.  Adhoob covered the U.S. return of looted artifacts to Iraq stolen after the U.S. invasion as well as the discussion between Met officials and U.S. investigators of returning to Cambodia artifacts stolen from ancient sites.

Transnational Organized Crime

On transnational organized crime, Plachta discussed the consequences and prospects for the UN (Palermo) Convention against Transnational Organized Crime on its 20th anniversary.  Adhoob discussed the arrest by Italian police of suspected Black Axe members for fraud and other serious crimes.  Boggess covered the international dark web bust operation DarkHunTOR following the dark market seizure by U.S. and EU law enforcement.

On international narcotics enforcement, transnational organized crime and corruption, Zagaris wrote about Mexico exonerating its ex-defense chief and enacting a law pausing enforcement cooperation with the U.S.  Bannister wrote about the UN Commission on Narcotic Drugs’ vote to remove cannabis from the list of Schedule IV narcotics.  Zagaris wrote about the U.S. detention of the wife of “El Chapo” and the guilty plea to violating the Kingpin Act by the daughter of the head of the Cartel Jalisco Nueva Generación.  Hill and Hardy discussed a UN report targeting corruption and illicit cross-border finance.  Kaufman covered ANOM, a global covert investigation conducted by law enforcement worldwide through an encrypted App, yielding 800 arrests. Zagaris wrote about Mexico’s suit in U.S. court in Florida to recover assets from former security chief linked to the Sinaloa cartel.  Adhoob discussed the Italian police’s dismantlement of an international drug trafficking ring operated by the ‘Ndrangheta mafia clan.

International Environmental Enforcement

With respect to international environmental enforcement, Zagaris covered Kenya’s extradition of its citizen for trafficking rhino horns, elephant ivory, and heroin. Byrne discussed illicit ivory trafficking from Angola to Vietnam.  Adhoob wrote about the S. African arrest of a hunter for illegal possession of rhino horns.  Zagaris discussed how U.S. prosecutions of three wildlife trafficking violations show the rising incidence of these crimes.

Migration Enforcement

Migration enforcement received significant focus.  Byrne discussed the INTERPOL operation targeting human trafficking and migrant smuggling in approximately 24 countries.  Adhoob covered the U.S. State Department’s 2021 trafficking in persons report and the impact of misinformation and Covid-19 on human trafficking. Adhoob also discussed a State Department’s lawyer’s resignation due to a Biden Administration policy on asylum Kaufman discussed the 5th Circuit’s decision rejecting the Biden Administration’s efforts to end Migration Protections Protocols.  Plachta wrote about the EU’s responses to human smuggling in the Belarus border crisis.

International human rights and enforcement,

With respect to international human rights and enforcement, Plachta discussed the EU adoption of Magnitsky-type global human rights sanctions regime.  Magliveras discussed the first application of sanctions under the EU’S Magnitsky Act on Russia. Zagaris wrote about Turkey’s arrest of an Iranian dissident’s coinciding with Freedom House’s transnational repression report as well as about the signing by 58 nations of a declaration against arbitrary detention of foreign and dual nationals. Botts wrote about OFAC’s naming three Bulgarians under the Global Magnitsky Act for corruption.  Kaufman discussed how events in Haiti and C.A.R. show the threats posed by mercenaries to international peacekeeping.  Adhoob covered ECOWAS’ demanding answers in the alleged detention of Mali’s former interim leaders as well as Qatar’s imprisoning a Kenyan for blogging about low-income Kenyan migrants work conditions in Qatar.

Extradition and Extradition Alternatives

Developments on extradition and extradition alternatives remained critical.  Ramirez and Boggess wrote articles about the extradition of Venezuelan diplomat Alex Saab to the U.S., notwithstanding his claims of diplomatic immunity.  Zagaris wrote several articles about the Assange extradition decisions by U.K. courts and the U.S. extradition of the father and son for helping Carlos Ghosn escape from Japan.  Zagaris covered the S. African court’s overruling the Justice Minister in ruling the former Mozambique Finance Minister will be extradited to the U.S. rather than Mozambique.

Nemets discussed how the U.S. Immigration court’s handling of INTERPOL Red Notices and diffusions suggests a uniform approach.  Estlund and Bromund summarized and assessed the 2019 changes in INTERPOL’s rules on the processing of data.  Zagaris discussed the CJEU decision against detention for INTERPOL Red Notice due to ne bis in idem (dual criminality).

International Evidence Gathering

With respect to international evidence gathering, Jang discussed how the Gupta brothers’ corruption scandal invoked the ratification of a new mutual legal assistance and extradition treaty between S. Africa and the UAE.  Adhoob covered the Netherlands’ funding the Iraq UNITAD witness protection program to promote accountability for crimes committed by ISIL.

Economic Integration and International Enforcement

Plachta contributed many articles on economic integration and international enforcement, including the European Parliament’s call for improvement of implement and application of the European Arrest Warrant (EAW), and the EU Court of Justice’s rejection of “automatic refusal” of EAWs issued by Polish authorities. Zagaris discussed the Eurojust’s new funding initiative for joint investigation teams.  Scherer discussed the EU whistleblower protection directive the Jonathan Taylor extradition.  Plachta covered the adoption by the Council of Europe of a resolution on political responsibility for corruption as well as the European Commission releases of three proposals to strengthen and enhance police cooperation across the EU.

Maritime Piracy

On maritime piracy, Scherer discussed the shipping industry task force initiative against maritime piracy in the Gulf of Guinea. Adhoob discussed the Nigerian high court’s sentencing of 10 pirates for the hijack of a Chinese vessel.

International Tribunals

With respect to international tribunals, Zagaris discussed the affirmation by the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals of the conviction of Ratko Mladić’ for genocide, crimes against humanity and war crimes, as well as the closure of the Special Tribunal for Lebanon and how the closure raises questions about international tribunals.

International Sex Trafficking

Mr. Zagaris contributed articles on international sex trafficking, especially the U.S. and Canadian charges against the Canadian fashion tycoon Peter J. Nygard.

Online Child Sex Exploitation Abuse

With respect to online child sex exploitation abuse, Zagaris covered U.S. indictments and INTERPOL’s pursuit of international enterprises and individuals involved in online sexual exploitation.  He wrote about the EU Justice & Home Affairs Council initiatives on the digital dimension of child sexual abuse.

Cybercrime

Cybercrime continued to grow exponentially. Zagaris discussed cooperation between the EU and eight countries in taking down dangerous the malware EMOTET, the DOJ’s participation in global disruption of NetWalker ransomware, and Australia’s extradition of two defendants in an auto-subscribing cyber fraud scheme.  Zagaris discussed the U.S. indictment against three N. Korean military hackers.  Adhoob discussed the imposition by the Biden Administration of sanctions against Russia for alleged election interference and SolarWinds cyber hacks as well as the guilty plea of a crypto expert to assisting N. Korea evade sanctions.  Zagaris covered U.S. sanctions against a Russian-owned crypto-exchange for ransomware activities as well as the U.S. indictment and sanctions against Iranians for cyber-enabled disinformation regarding the 2020 Presidential Campaign.  Scherer wrote about cases involving the seizing illicit proceeds of and combating ransomware attacks.  Zagaris covered the guilty plea by the director and promoter of BitConnect for its participative in a massive fraud conspiracy. Formaggi discussed China’s declaration of all cryptocurrency transactions illegal while the U.S. and EU prepared further crypto regulation.  Zagaris discussed the arrests and seizures by 17 countries of alleged ransomware extortionists.  Plachta covered the adoption by the Council of Europe of the Second Protocol to the Cybercrime (“Budapest”) Convention.

International Anti-trust Enforcement Cooperation

On international anti-trust enforcement cooperation, Zagaris discussed the DOJ’s Antitrust Division summary of its 2020 international achievements.

Export Control and Economic Sanctions

With respect to export control and economic sanctions, Boggess discussed the CEO quitting after the U.S. Commerce Department blacklisted Israeli spyware firm NSO Group. Zagaris wrote about the Mashreqbank settlement with OFAC, the Federal Reserve and NYDFS for violating the Sudan sanctions.

Illegal, Unregulated, and Unreported Fishing

With respect to illegal, unregulated, and unreported fishing, Adhoob wrote about Bolivia’s signing an MOU to strengthen compliance/transparency in the fishing industry.

ABA CJS Meeting Features Discussion of Current and Emerging Anti-Corruption Trends in the Caribbean on Nov. 20

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Below is an announcement/invitation to the meeting of the Committee on International Criminal Law, Criminal Justice Section, ABA on Nov. 20, where Lemarque Campbell, Program Director, AntiCorruption and Media Freedom, International Lawyers Project, will discuss “Current and Emerging Anti-CorruptionTrends in the Caribbean.” You need to register (free) to attend in person or you can dial-in.

Bruce Zagaris, Committee co-chair

Below please find the dial in for the International committee meeting: Saturday, November 20, 2021, at 11:15 AM-12:45 PM Eastern Time.

The Madison Hotel

1177 15th Street NW

Washington, DC  20005

Montpelier A Room

Please RSVP to Regina.ashmon@americanbar.org If you plan to attend in person.

Due to the ongoing COVID pandemic, meeting attendees are now required to provide proof of full vaccination as defined by the CDC, or proof of a negative viral COVID test administered by a healthcare professional taken within 3-days of the meeting arrival date, to attend in person. These requirements impact guests of attendees as well.   This change in policy was set forth by the ABA Board of Governors on 10/4/21.

If you are attending a committee meeting (in-person) scheduled during the fall institute, it’s imperative to register for the Fall CLE Institute by clicking the link below.  https://cvent.me/YPzzz0  This link includes time sensitive COVID related questions.

Dial by your location:

        888 475 4499 US Toll-free

        877 853 5257 US Toll-free

Meeting ID: 981 4789 2653

Passcode: 256374

Regina Ashmon

Committee Specialist, Criminal Justice

American Bar Association

1050 Connecticut Avenue, NW, Suite 400

Washington, DC 20036

T: (202) 662-1512

F: (202) 662-1501

Regina.Ashmon@americanbar.org

Follow CJS on facebook and twitter.

www.americanbar.org/crimjust

MEETING AGENDA 

  1. Introduction and opening remarks
  2. Lemarque Campbell, Program Director, Anti-Corruption and Media Freedom, International Lawyers Project, Current and Emerging Trends for Combating Corruption in the Caribbean.
  3. Committee Newsletter & Membership
  4. Future CLE Events
  5. Other Busines

Lemarque Campbell will discuss current and prospective anti-corruption efforts that transcend national boundaries when it comes to generating and operationalizing anti-corruption policies and measures within the Commonwealth Caribbean, a region with limited research conducted on anti-corruption topics overall.  In particular, he will discuss some of the efforts by the Commonwealth Secretariat to establish and support regional anti-corruption efforts among prosecutors and other agencies.  He will also discuss ongoing efforts in various countries to strengthen anti-corruption laws, such as the disclosure regime for public officials.

Lemarque Campbell is an international anti-corruption specialist, currently based in Washington, D.C. He has advised governments, international organizations, private entities and civil society organizations on laws and policies that address international anti-bribery, corruption and fraud; transparency and accountability; governance, risk, integrity and ethics; and private and public sector compliance. Previously, he practiced law at a leading corporate law firm in The Bahamas. He also led the accreditation process for the Transparency International (TI) Contact in The Bahamas. Additionally, he has lived in the former Soviet Republic of Georgia for two years, where he worked as a legal analyst for TI Georgia. He also served as an anti-corruption consultant to various organizations such as the U.S. Department of State, the Commonwealth Secretariat, the International Development Law Organization (IDLO) and TI-Secretariat. Some of his publications on the Caribbean region include the first Bahamas Corruption Barometer Report, which is based on the TI Global Corruption Barometer series; a report on The Bahamas’s progress towards achieving the United Nations Sustainable Development Goal 16; and a chapter in a forthcoming Commonwealth Secretariat publication on anti-corruption successes in the Commonwealth Caribbean. Lemarque is admitted as a lawyer to both the Bar of England & Wales and The Bahamas Bar. He holds a master’s degree in Law from the University of Bristol, UK and a master’s degree in Anti-Corruption Studies from the International Anti-Corruption Academy (IACA), Austria.

 

EU Commission Proposes Major Revisions for Countering Money Laundering and Terrorism Financing

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On July 20, 2021, the European Commission presented a significant set of legislative proposals to strengthen the EU’s anti-money laundering and countering terrorism financing (AML/CFT) rules.  The proposal will establish a new EU authority to combat money laundering.  The proposals aim to improve the detection of suspicious transactions and activities, and to shut the loopholes used by criminals to launder illicit proceeds or finance terrorist activities through the financial system.

The proposals improve the existing EU framework by responding to emerging challenges linked to technological innovation.  They take into account virtual currencies, more integrated financial flows in the Single Market and the global nature of terrorist organizations.  The proposals bring convergence in the AML/CFT rules and establish a more consistent framework to ease compliance for operators subject to AML/CFT rules, especially for those active in cross-border transactions.

The Four Legislative Proposals

The initiatives consist of four legislative proposals:

New EU AML Authority (AMLA) Proposed

The initiatives will establish a new EU Authority (AMLA) to transform AML/CFT supervision in the EU and improve cooperation among Financial Intelligence Units (FIUs).  The AMLA will serve as the central authority coordinating national authorities to ensure the private sector correctly and consistently applies EU rules.  AMLA will also furnish support to FIUs to improve their analytical capacity around illicit flows and make financial intelligence a key source for law enforcement agencies.

The AMLA will:

  • create a single integrated system of AML/CFT supervision throughout the EU, based on common supervisory methods and convergence of high supervisory standards;
  • directly supervise some of the riskiest financial institutions that operate in a large number of EU Members or require immediate action to respond to imminent risks;
  • monitor and coordinate national supervisors responsible for other financial entities, as well as coordinate supervisors of non-financial entities;
  • support cooperation among national FIUs and facilitate coordination and joint analyses between them, to better detect illicit financial flows of a cross-border nature.

One EU Rulebook for AML/CFT

The Single EU Rulebook for AML/CFT will harmonize AML/CFT rules across the EU, including, for instance, more detailed rules on Customer Due Diligence, Beneficial Ownership and the authorities and task of supervisors and FIUs.  The initiatives will connect existing national registers of bank accounts, furnishing faster access for FIUs to information on bank accounts and safe deposit boxes.  The Commission will also supply law enforcement authorities with access to this system, accelerating financial investigations and the recovery of criminal assets in cross-border cases.  Access to financial information will be subject to strong safeguards in Directive (EU) 2019/1153 on exchange of information.

Extending AML/CFT Rules to the Crypto Sector

Currently EU AML/CFT rules apply to only certain types of crypto-asset service providers.  The proposed initiatives will extend these rules to the entire crypto sector, obliging all service providers to conduct due diligence on their customers.  The proposals will ensure full traceability of crypto-asset transfers, such as Bitcoin, and will permit prevention and detection of their possible use for money laundering or terrorism financing.   Additionally, the proposals will fully apply EU AML/CFT rules to the crypto sector and prohibit anonymous crypto asset wallets.

Limit Cash Payments to € 10,000

The Commission has proposed an EU-wide limit of €0,000 on large cash payments.  The limit is high enough not to question the euro as legal tender and recognizes the important role of cash.  In about two-thirds of EU Members limits already exist, but the amounts vary.  National limits under  € 10,000 can remain in place.  Limiting large cash payments makes it more difficult for criminals to launder money.  Additionally, the proposes forbid anonymous  crypto-asset wallets, similar to the prohibition of anonymous bank accounts.

“Black-Lists” and “Grey-lists” for Third Countries

The EU will continue to use a “black-list” and a “grey-list.”  In addition to using the FATF list for its own listing, the EU will have its own list based on an autonomous assessment.

Future

The Commission proposals are in the hands of the European Parliament and Council.  The future AML Authority should be operational in 2024 and will start its work of direct supervision slightly later, once the Directive has been transposed and the new regulatory framework starts to apply.

Analysis

The AMLA with direct authority over institutions with cross-border activities or institutions with problems will contribute significantly to stronger compliance.   The AMLA will help establish a single integrated system of AML/CFT through common supervisory methods and convergence of high supervisory standards.  It will also facilitate cooperation among FIUs and more convergence with respect to their operation.

The extension of AML/CFT rules to crypto-asset service providers and prohibition of anonymous crypto asset wallets will plug a gap in the use of virtual currency to circumvent AML/CFT regulation.

The connecting of existing national registers of bank accounts along with the national beneficial ownership registers for companies and trusts will facilitate financial investigations and asset recovery.

Unfortunately, the use of its own grey and black lists will contribute to the proliferation of such lists internationally, causing more limits and closures of correspondent bank accounts and financial exclusion for persons in small jurisdictions.

For additional information see Questions and Answers:  AntiMoney Laundering and Countering Financing of Terrorism (AML/CFT)  and Factsheet: Stronger EU rules to fight financial crime, Anti-money laundering and countering the financing of terrorism legislative package, and Proposal on centralised bank account registeries.

The next issue (August) of the IELR will have a more comprehensive discussion of the EU Commission’s AML/CFT initiatives.

U.S. and EU Progress on Several International Enforcement issues at Justice & Home Affairs Ministerial Meeting in Lisbon

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On June 22, 2021, the Portuguese Presidency of the Council of the European Union hosted the EU-U.S. Ministerial Meeting on Justice and Home Affairs in Lisbon and made progress on count-terrorism, violent extremism, Passenger Name Record (PNR) data exchange.  They also discussed developing bilateral and multilateral instruments to combat cybercrime, using artificial intelligence,  and developing well-managed and humane migration policies.

Overview

They underscored the need to cooperate against terrorism, including prevention, permanent vigilance, adaptation, and resilience from all relevant actors.

The U.S. and EU underscored their strong concern with the rise of violent extremism.  They cited crimes inspired by hate speech, racism and xenophobia both in Europe and the U.S.  Violent extremism constitutes a direct threat to democratic societies.  It requires renewed attention by law enforcement, judicial authorities, the private sector and civil society.  The U.S. and EU pledged to expand their information exchanges on violent extremist groups, especially those with transnational linkages.

The U.S. and EU underscored the importance of the Passenger Name Record (PNR) data exchange to prevent, detect, investigate and prosecute terrorism, combat serious crime, including child exploitation, and protect the safety of citizens.

Digital Aspects and Cybercrimes

The U.S. and EU discussed the need to cooperate to shape a digital future based on their shared democratic values.  They acknowledged the potential benefits and risks of suing Artificial Intelligence technologies for law enforcement and the judiciary.  They discussed the need to develop and use such technologies in a trustworthy way in conformity with human rights obligations.

They discussed current and upcoming EU efforts on combating illegal content online, including  the need to improve the cooperation between the authorities and online platforms to detect ongoing criminal activity.  The U.S. and  EU pledged to continue cooperating to most effectively exercise their lawful authorities to combat  serious crime both online and offline.

The two sides will focus on combating ransomware, including through law enforcement action, raising public awareness on how to protect networks, the risks of paying criminals responsible, and encouraging those states that have not cooperated to arrest and extradite or effectively prosecute criminals on their territory.

Concerning bilateral and multilateral instruments to combat cybercrime, the U.S. and EU reinforced their commitment to negotiate as soon as possible an Eu-U.S. agreement facilitating access to e-evidence to cooperate in criminal matters.  They welcomed the recent approval by the Committee of State Parties to the Budapest Convention of the draft text of the Second Additional Protocol of the Budapest Convention, which is the main instrument for international cooperation on cybercrime.   They observed the framework of negotiations on a possible future United Nations international legal instrument on cybercrime and committed to continue to closely coordinate their respective positions.

Migration and Travel

The two sides underscored the importance of well-managed and humane migration and discussed their respective efforts to develop comprehensive and enduring migration and asylum policies.  Humanitarian protection should be available to qualifying persons.  Unmeritorious claims must be detected quickly, including through information sharing and modern identity management techniques.  Unmeritorious claims must be prevented from overwhelming migration systems or public confidence in them.

The agenda requires cooperation with third countries of origin, transit and destination.  These jurisdiction also have a responsibility to discourage people from enlisting smugglers and traffickers and endangering  the lives of migrants who take dangerous, irregular journeys.  Both sides reaffirmed their interest in expanding the transatlantic dialogue on migration and mobility, focusing on sharing lessons learned, exploring complementary pathways to migration, addressing the root causes of migration, improving the return and readmission of irregular migrants and enhancing cooperation in and combatting migrant smuggling.

The U.S. and EU continued to endorse safe and secure mobility and the exchange of information on their respective measures towards the gradual resumption of non-essential international travel.  Both sides pledged to restart secure travel between the U.S. and EU as soon as possible, based on the principles of mutual cooperation, efficient operation of the international travel system and scientific evidence.

Analysis

The initial meeting of the Justice and Home Affairs Ministers of the two sides during the Biden Administration went quite well.  Clearly, the priority of the Biden Administration for bilateral and multilateral cooperation contrasted with the America 1st unilateral approach of the Trump Administration.  The visit of President to the NATO meeting and the EU itself as well as his removal of tariffs and support for the minimum global taxation and other initiatives of the OECD and EU were well received.

The threats of terrorism, organized crime, extremist and hate groups, cybercrime, and illegal migration are common to both sides.

The current issue of the IELR will have a more in depth discussion of the implications of the meeting.

 

 

Americas Ministers of Justice and Attorneys General Approve Recommendations to Use Information Technologies for International Cooperation

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On May 18 and 19, 2021, the Ministers of Justice and Attorneys General of the member states of the Organization of American States (OAS) participated in the Eleventh Meeting of Ministers of Justice, or Other Ministers, or Attorneys General of the Americas (REMJA – XI).  Ecuador hosted the virtual meeting.  The Ecuadorian Attorney General, Dr. Diana Salazar, hosted the meeting.

During the meeting, the States made detailed recommendations on the use of information technologies (ICTs) in their justice systems and in international cooperation.  The Justice Studies Center of the Americas (JSCA), the REMJA Working Group on Legal Cooperation in Criminal Matters, and the REMJA Working Group on Legal Cooperation against Cybercrime made presentations on the present state of affairs in the region and on their role in supporting the modernization of justice systems by, among other things, training prosecutors and judges, promoting international legal cooperation, and developing such instruments as proposed treaties, model laws, and guides to best practices.

International legal Cooperation in the Americas

REMJA XI recommends that the OAS members who have not yet become a member of the five regional cooperation agreements, do so promptly.

The meeting recommends that the Working Group on Legal Cooperation on Criminal Matters updates and considers the proposed “Protocol to the Inter-American Convention on Mutual Assistance in Criminal Matters regarding Joint Investigation Teams” (PENAL/doc.42/18). The Working Group should evaluate incorporating in it the use of ICTs, as appropriate, and that the OAS members study the possibility of initiating formalities with the appropriate bodies so that in the future, consideration may be given to its adoption.

Legal Cooperation Against Cybercrime

REMJA-XI urges the Chair of the REMJA Working Group to convene its Tenth Meeting in the first quarter of 2022, to develop effective and inclusive strategic approaches to fight cybercrime, bearing in mind the relevance of the Budapest Convention on Cybercrime in this regard; to develop national and regional cybercrime coordination, cooperation and training strategies and policies in OAS countries; and, to develop key principles for mainstreaming gender and inclusion into cybercrime capacity building efforts.

The meeting recommends that the OAS members that have not yet done so, consider evaluating to accede to the Council of Europe’s Convention on Cybercrime, and adopt the legal and other measures required for its implementation.

The meeting recommends fortifying, through the REMJA Working Group, four aspects of international cooperation:  (i) capacity building, (ii) cybercrime evidence gathering, (iii) legal cooperation in cybercrime, and (iv) legislative developments.

Justice Studies Center of the Americas (JSCA)

REMJA-Xi congratulates the JSCA on the work since REMJA X in evaluating criminal justice reform processes; providing technical support for the implementation of reformed criminal justice systems in Mexico, Guatemala, El Salvador, Costa Rica, Panama, Colombia, Ecuador, Peru, Brazil, Paraguay, Uruguay, Chile, and Argentina, promoting new models for the management of prosecutors’ offices with the development of capacities for criminal analysis and strategic criminal prosecution; identifying and disseminating best practices in the investigation of complex crimes; fostering the improvement of criminal defense standards; promoting pre-trial services; and developing skills for criminal litigation, for the conduct of hearings, and for appraising evidence, together with court and case management models.

The meeting    congratulates the JSCA and the U.S. Government on the agreement through the Bureau of International narcotics and Law Enforcement Affairs (INL) of the U.S. State Department to collaborate on the project Technical Support for the Implementation of the New Adversarial Criminal Justice System in Argentina’s Federal Justice System through the program Training Program on Criminal Investigation and Litigation in an Accusatory System for Justice Officials.  Project implementation started in 2018 and has been extended to 2023.

Strengthening the REMJA

The meeting discusses steps to strengthen the REMJA, including that the annual OAS Regular Fund consider providing the necessary resources for holding the meetings that are to be organized within the REMJA process.

The meeting also recommends the establishment of a voluntary contribution fund into which states can make voluntary contributions to finance programs and projects in the areas covered by the REMJA process.

The current issue of the IELR (June) will discuss in more detail the decisions and implications of the decisions of REMJA-XI.

Evaluating the Jonathan Taylor Extradition Case

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By Austin Max Scherer[1]

This past July, Jonathan Taylor, a whistleblower that exposed bribery at his old firm SBM Offshore, was arrested on an Interpol red license.[1]  Taylor, a U.K. native, was found on vacation in Croatia.[2]  Since the arrest, Interpol dropped the warrant, while Croatia has kept Taylor within the country due to an extradition request by Monaco.[3]  The detention has brought a lot of criticism from different organizations like the European Union (EU) and the Resource Center on Media Freedom in Europe.

This blogpost will evaluate the following issues:  Whether the extradition is legal?  Whether the extradition violates the EU Whistleblower Protection Directive? And whether the requesting state, Monaco, is trying to protect an economically powerful entity in Monaco?

Legality of the Extradition

The first issue deals with whether the extradition is legal.  An Interpol Red Notice alert can be issued to arrest someone for extradition if the subject falls within one of two categories: “Either the individual is: (1) awaiting a trial-prosecution for an offense for which he or she has been formally charged or (2) the individual has already been convicted of crime and is wanted in order to serve their lawful sentence.”[4]  Taylor does not suffice either of these requirements.  A May 19 letter from the Resource Center on Media Freedom in Europe states: “Mr. Taylor is not charged with anything as there are no criminal proceedings, nor is there any execution of a judgment for which he is wanted…”[5]  Since neither requirement is fulfilled,  the legality of the extradition appears questionable.

Violation of the EU Whistleblower Protection Directive

The second issue evaluates whether the extradition violates the EU Whistleblower Protection Directive.  The aims of this directive were to strengthen the legal protection available to whistleblowers and provide protection that would be consistent throughout all EU Member States.[6]  Further, it would be expected that member states would incorporate minimum standards featuring, “reporting channels for organizations of a certain size; and the level of protection afforded to persons that report breaches of Union law.”[7]  Member states would be expected to comply by December 17, 2021.[8]  The Supreme Court of Croatia confirmed Taylor’s status as a whistleblower.[9]  This confirmation further qualifies Taylor’s defense under the EU Whistleblower Protection Directive.  Croatia is obligated to uphold the directive, which, “includes ensuring they are immune from civil and criminal liability for having blown the whistle.”[10]  This extradition would violate the EU Whistleblower Protection Directive.  Since the withdrawal of the arrest warrant by Interpol, Monaco appears to act against Taylor in a retaliatory nature.  This was confirmed again by Interpol on March 23, 2021.[11]

Is the Requesting State Protecting an Economically Powerful Entity?

The final issue discusses whether the requesting state, Monaco, is trying to protect an economically powerful entity in Monaco?  Taylor uncovered one of the most expansive corruption and bribery scandals.  This led to criminal investigations in the U.K., U.S., Netherlands, Switzerland, and Brazil.[12]  SBM Offshore’s main office is in Monaco, and interestingly, Monaco has yet to initiate a single criminal investigation into a highly credible and well documented allegation of bribery and corruption, “on the part of SBM Offshore.”  SMB Offshore earned $2.368 revenue in 2020; this comprises nearly a third of Monaco’s GDP.[13]  One could surmise from this quantitative information, that SBM Offshore has influence in Monaco.  SBM Offshore is Monaco’s largest private-sector employer and with offices 400 meters away from Monaco’s prosecutor’s office, it has close ties to the state.[14]  Taylor stated the following, “It’s very political…they’re trying to discredit me and to show the world that Monaco doesn’t put up with whistleblowers, that companies are ‘safe” there.”[15]  This information illustrates exploitation of an individual and a country’s attempt to lure more businesses to its domain.  A potential court case in Monaco would serve beneficial to SBM Offshore.  This would essentially provide, to use a sports term, a homefield advantage.  Furthermore, SBM Offshore has major influence in Monaco politics, which should create fears to not only Taylor but to all human rights organizations.

Analysis

With SBM Offshore paying over $800 million in fines, SBM may want to make an example of Taylor.[16]   Croatia seems bound to meet the requirements of the EU Whistleblower Protection Directive and return Taylor to the U.K.  Arguably Croatia may take the position that it has until December 21 to comply with the EU Whistleblower Protective Directive and until it implements the Directive, it must follow its current national law. Taylor committed to answering any questions the Monaco government has, and if the Monaco government’s desire to speak to Taylor is purely judicial, then why does it require his extradition to Monaco if there is no criminal charge?[17]    In any event Taylor’s counsel is expected to request the Croatian Minister of Justice to use his discretion to not extradite Taylor.  In addition, Taylor is likely, if necessary, to appeal to the Croatian Constitutional Court and the European Human Rights Court.

[1] Rising third year law student, Washington College of Law, American University; M.S., Finance, American Univ; B.S., George Washington Univ.

[2] Jo Couzens, Jonathan Taylor: Oil whistleblower’s Monaco extradition bid upheld, bbc.com, https://www.bbc.com/news/uk-england-hampshire-57137065 (last visited May. 24, 2021).

[3] Id.

[4] Id.

[5] Extradition proceedings against Jonathan Taylor needs to end, article19.org, https://www.article19.org/resources/extradition-jonathan-taylor/ (last visited May. 24, 2021).

[6] Ana Myers, Urgent letter to Croatian Minister of Justice: Do not extradite Whistleblower Jonathan Taylor, Resource Center on Media Freedom in Europe, (May. 19, 2021).

[7] See Werner Berg, Sunny Mann, and Julia M. Wilson, Whistleblower Protection Directive, bakermckenzie.com, https://www.bakermckenzie.com/en/insight/publications/2020/02/whistleblower-protection-directive (last visited May. 24, 2021).

[8] Id.

[9 Id.

[10] Myers, supra note 6.

[11] Id.

[12] Id.

[13] Id.

[14] SBM Offshore Full Year 2020 Earnings, sbmoffshore.com, https://www.sbmoffshore.com/?press-release=sbm-offshore-full-year-2020-earnings (last visited May. 24, 2021).

[15] Andrew Rettman, Monaco hunts oil-bribery whistleblower in EU, euobserver.com, https://euobserver.com/justice/149356 (last visited May. 24, 2021).

[16] Id.

[17] Myers, supra note 6.

[18] Rettman, supra note 15.

EU Expresses Deep Concern Over Growing U.S. Unilateral Sanctions against EU Interests

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On July 17, 2020, European Union High Representative/Vice-President Josep Borrell made a statement on US sanctions.

Borrell Statement

He said  he was “deeply concerned at the growing use of sanctions, or the threat of sanctions, by the United States against European companies and interests.”

He said the EU has observed this developing trend in the cases of Iran, Cuba, the International Criminal Court and most recently the Nordstream 2 and Turkstream projects.

According to Mr. Borrell, “(a)s a matter of principle the European Union opposes the use of sanctions by third countries on European companies carrying out legitimate business. Moreover, it considers the extraterritorial application of sanctions to be contrary to international law.”

Borrell continued that Europe and not third countries should determine European policies.

Appropriately Borrell continued that, where countries share common foreign and security policy goals,  great value is realized in the coordination of targeted sanctions with partners.  The EU has experienced many positive examples of this.  The EU will continue to coordinate where it  can.

Perhaps, most importantly, Borrell underscored that “where policy differences exist, the European Union is always open to dialogue. But this cannot take place against the threat of sanctions.”

Analysis

The Borrell statement occurs against the background of friction over EU efforts to trade with Iran.  On August 28, 2019, the EU  announced that its INSTEX mechanism to facilitate trade with Iran was operational.  The EU informed participants that INSTEX was available to all EU member states.  The first transactions were being processed, said an EU statement.  The establishment of INSTEX  shows the EU is serious about alleviating the pain of sanctions on Iran in order to persuade Iran to remain in the 2015 Joint Comprehensive Plan of Action (JCPOA).  However, until now, it has facilitated very few transactions.

The Borrell announcement also comes on the heels of an 18-page proposed economic and security partnership between China and Iran that would clearly violate U.S. unilateral sanctions against Iran.

The current issue of the International Enforcement Law Reporter will discuss these and other implications of the statement in more detail.

Disclaimer

Nothing in this blog constitutes or is intended to constitute legal advice. Neither transmission nor receipt of such materials creates an attorney-client relationship. Blog readers and subscribers should consult with an attorney. This blog may be considered attorney advertising under the rules of some states. The hiring of an attorney is an important decision that should not be based solely upon advertisements. Prior results do not guarantee similar outcomes.

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