The 60th Anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: A Middle Eastern Retrospect and Emirati Prospect

By Sara Koleilat-Aranjo and Issey Park

This year, 2018, marks the 60th anniversary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). Last June, the United Nations Commission on International Trade Law (“UNCITRAL”) hosted a special event, understandably in New York, to commemorate the diamond jubilee of what one late Swedish arbitration lawyer, Dr. J Gillis Wetter, referred to as early as 1990 as “the single most important pillar on which the edifice of international arbitration rests”.

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The Consequences Of A Trade War With China

By Sophie Allen

Last spring, Director of the White House National Trade Council Peter Navarro responded to a question about the risk of imposing unilateral tariffs saying, “I don’t believe any country is going to retaliate for the simple reason that we are the most lucrative and biggest market in the world. They know they’re cheating us, and all we’re doing is standing up for ourselves.”

Eight months and several rounds of tariffs later, the U.S. and China have failed to come to an agreement on trade between the two nations. While U.S. and Chinese leaders have expressed their interest in reaching a deal at the G20 Summit in Argentina on November 30, a lack of progress on key issues makes a cease-fire increasingly unlikely.

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EU Commission Forces Google to Change Its Business Model in Android Operating System

By Kemal Su

On July 18, 2018, the EU Commission released a Press Statement,[1] announcing that it had fined Google €4.34 billion (approximately $5.1 billion) for illegal practices concerning Google’s Android mobile operating system. This is a record fine imposed by the EU Commission, and probably a milestone in a series of antitrust fines against U.S.-based technology companies.[2] The Commission also ordered Google to alter its practices within 90 days to comply with EU antitrust law and announced that the company’s failure to do so would result in penalty payments of up to 5 percent of the average daily worldwide revenue of its parent company, Alphabet.

The Commission concluded, “Google has imposed illegal restrictions on Android device manufacturers and mobile network operators to cement its dominant position in general internet search, since 2011.” This is similar to a Section 2 violation of the Sherman Act.

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Time Is Money

By Jennifer Cory

On Aug. 28, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it is extending and expanding suspension of its premium processing service for cap-subject H-1B petitions as well as all H-1B petitions filed at the California and Vermont Service Centers. The original suspension applied only to cap-subject H-1B petitions and was set to expire on Sept. 11, 2018. The suspension is now set to expire on Feb. 19, 2019.

 So what’s the big deal? Well, for starters, employers will be unable to request premium processing for H-1B change of employer or amended petitions for a change in job or location. This is particularly problematic for those H-1B workers who are hesitant to change employers before having an approval in place or for those who must travel internationally and require a petition approval for visa issuance. With regular processing times averaging five (5) to seven (7) months, H-1B workers are in a Catch-22. They want the security of an approval before moving to a new employer, but it is impractical to think that a new employer will be able to keep a position open for that length of time. To add insult to injury, USCIS only provided two weeks’ notice concerning the extended and expanded suspension. The announcement afforded little time for employers to file or to convert a case to premium processing before the deadline.

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The GDPR: An Example Of the Extraterritorial Effects Of Regulations

By Kemal Su

The European Union’s (EU) new regulation on data protection, The General Data Protection Regulation (GDPR), went into effect on May 25, 2018, slightly more than two (2) years after it was accepted by the European Parliament on April 14, 2016. The EU has had regulations pertaining to data protection since 1995. However, the GDPR unifies and simplifies all previous regulations in this regard.

Although the GDPR is only effective and designed to protect individuals’ data within the EU, the effects of the GDPR can be felt more globally. For example, all companies which process the personal data of EU citizens, i.e. by collecting, receiving, transmitting, using or storing data, must abide by the provisions of the GDPR even if they are not located in an EU member state. Moreover, the GDPR also applies to companies who offer goods or services to EU individuals or monitor these individuals’ behavior.

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Is the GDPR Coming to California? Ten Things You Need To Know About the California Consumer Privacy Act

By Saad Gul and Mike Slipsky

The ink had barely dried on the Alabama’s new data breach notification statute (which made it the 50th state to enact such legislation) when California upped the ante. In an effort to head off a November ballot initiative, the home state of Google, Facebook, and countless other Silicon Valley data-driven companies rushed to enact major privacy legislation. The California Consumer Privacy Act of 2018 (CCPA) has inevitably drawn comparisons with the European Union’s General Data Protection Regulation (GDPR).

In particular, both regulatory regimes focus on consumer control of personal information and stress transparency in data processing. In a departure from prevailing American practice, CCPA will apply to any business engaged in data processing, regardless of sector. Existing federal requirements, such as Graham Leach Bliley or HIPAA, will remain in place.

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Add Your Two Cents: The Ethics Of Serving Clients Who Use Coins and Digital Assets

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An ethics inquiry regarding Digital Assets and Blockchain Businesses is currently being circulated for comment. Click here to read the inquiry: Coins and Digital Assets Ethics Request to NC Bar (June 2018). If you would like to provide a comment, please follow up directly with the State Bar as indicated below. The Ethics Committee is tentatively scheduled to consider this inquiry at its next quarterly meeting in July 2018.

Inquiry:
How can law firms ethically service clients who are using Coins and other Digital Assets?

Deadline:
July 12, 2018.  Items received after this date will still be included in the materials that go in front of the Ethics Committee, but I urge you to meet the deadline to increase the chances that the committee members will have a chance to review it in advance of their meeting.

Comments/Responses:
Should be directed in writing to Alice Neece Mine at the N.C. State Bar and may be submitted via email (amine@ncbar.gov or ethicsadvice@ncbar.gov), facsimile (919-821-9168), or regular mail (P.O. Box 25908, Raleigh, NC 27611-5908).

An Uncertain Future: The US Pulls Out Of the Iran Deal

By Zia UllahMark D. HerlachJames Lindop and Victoria Turner

Reprinted with permission from Eversheds Sutherland.

President Trump announced last week that the US will withdraw from the Iran nuclear deal and will begin re-imposing those sanctions which were lifted as part of the Joint Comprehensive Plan of Action (“JCPOA”).  In a move which former President Obama has described as “misguided” and a “serious mistake”, President Trump signed a National Security Presidential Memorandum directing relevant US agencies (including the Treasury) to take actions necessary to start re-imposing sanctions, meaning that secondary sanctions, which impact on non-US persons, will come back into effect.  President Trump’s announcement also leaves open the possibility for new and additional sanctions to be imposed in the future.

Last week’s announcement confirmed that there will be wind-down periods before sanctions are fully re-imposed.

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ICOs Primer: ‘SEC Compliant’ Initial Coin Offerings

By Sammy Naji

As the Securities and Exchange Commission greater asserts itself against non-compliant Initial Coin Offering tokens, an increasing number of ICO issuers have attempted to comply with SEC regulations by offering tokens pursuant to SEC exemptions or by framing the tokens as utilities rather than securities. Utility tokens are tokens that represent a service or a good to which the token holders are entitled. Notable brands like Kodak, Atari, and Telegram have already issued or are planning to issue such tokens as a way to raise large amounts of capital as well as to stimulate interest from the public to their services. The issuance of utility tokens typically involves two stages: a pre-functional phase and a post-functional phase.

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ICO Primer: A Revolution in Startup Financing or a Regulatory Nightmare?

By Sammy Naji

A. What Are ICOs?

With the recent emergence of Initial Coin Offerings (“ICOs”), financing for startups has never been more accessible. The term ICO refers to the process of raising capital through the issuance of digital coins, known as tokens, on a blockchain ledger. These tokens, unlike cryptocurrency coins, not only serve as a medium of exchange or a store in value. Instead, ICO tokens also represent either equity in an issuer’s entity (“equity tokens”) or an entitlement to a good or service  (“utility tokens”). The presence of these tokens on a blockchain ledger allows the token issuer to bypass traditional venture capital firms and raise equity directly from the public through the sale of the tokens. These tokens can then be resold without the need for traditional markets such as Nasdaq and the Dow Jones. The opening of this previously untapped market for capital has been dramatic, with $6.5 billion raised through ICOs in 2017 alone.

B. ICO Fraud

The consequence of this massive democratization in access to early stage investment opportunities is the potential for investors to be subject to excessively risky investments and fraud. In fact, out of 760 token issuers that successfully raised their desired capital in 2017, 276 were not in operation by February of 2018. The large amount of risk and fraud that ICOs carry has caused the Securities and Exchange Commission (“SEC”) to take a much more assertive role in regulating the phenomenon. For example, the SEC recently issued around eighty subpoenas on individuals and entities involved with ICOs. These subpoenas follow numerous SEC enforcement actions against ICO issuers for fraud and/or failing to register their sales of securities with the SEC.

C. SEC Regulation

Unlike cryptocurrencies which are regulated mainly as commodities rather than securities by US regulators, ICOs almost always operate as securities and fall under the regulatory regime of the SEC under the Supreme Court’s Howey test. This test defines an investment contract security as an investment of money in a common enterprise with the investor expecting a profit solely from the efforts of the promoter or a third party.  ICO tokens that are securities must either be sold pursuant to registration with the SEC or through exemptions from registration. The consequence of these requirements is that an ICO issuer seeking to comply must either be willing to spend a large amount of money to register its security tokens with the SEC or severely decrease its access to investors by issuing pursuant to an exemption.

As of this past December, there have been zero ICOs registered as securities with the SEC. Instead, a large number of ICOs have been conducted with no regard to compliance with SEC regulations. Furthermore, despite the default requirement that exchanges hosting securities trading must register with the SEC, a majority of the ICO exchanges have not properly registered, which has caused the SEC to issue a statement warning investors from investing in these exchanges. The SEC will face difficulties in fully enjoining noncompliant ICOs and exchanges as they both often exist as decentralized entities with anonymous investors and development teams located across the globe. In the next installment of this two-part primer on ICOs, I will discuss the various ways that issuers are attempting to balance the need to comply with SEC regulations with their desire to utilize ICOs to raise large amounts of capital.