June 10, 2023

By Tom McVey & Ngosong Fonkem*

 If your organization is doing enterprise with a Chinese language firm, it’s important to concentrate on the dangers related to prohibited events beneath U.S. export management and sanctions legal guidelines. The US has strict rules prohibiting U.S. corporations from participating with sure international people and entities. These embrace events listed on the Treasury Division’s List of Specially Designated Nationals and Blocked Persons (the “SDN Record”), in addition to the Commerce Division’s Entity Record, Denied Persons List, and Military End-User List (for sure merchandise), amongst others.  There are additionally sure restrictions on importing merchandise from China’s Xinjiang Uyghur Autonomous Area (“XUAR”) or from events listed on the Uyghur Compelled Labor Prevention Act Record (“UFLPA”).  It’s essential to display screen your transactions to make sure that you’re not doing enterprise with restricted events. That is significantly vital when coping with Chinese language corporations, as many Chinese language people and entities have not too long ago been added to those lists.

The Complexity of Screening for Prohibited Events

Prohibited get together screening entails extra than simply checking names on a number of lists. As an illustration, beneath the Workplace of Overseas Property Management’s (OFAC’s) “fifty % rule,” if a celebration or events listed on the SDN Record personal 50% or extra of an organization, that firm can be thought of blocked, even when it’s not explicitly on the SDN List.  Exporters regularly try and determine who the shareholders or members are in any firm with which they’re conducting a transaction to substantiate that no get together or events on the SDN Record personal 50% or extra of that firm. Sadly, international corporations typically hesitate to supply correct shareholder data, which exposes U.S. corporations to compliance dangers.

Equally, the Commerce Division’s Export Administration Rules (“EAR”) comprise numerous restricted get together lists. These lists prohibit the export or switch of sure merchandise to listed events or require further authorizations for transactions. It’s the duty of U.S. corporations to find out if the events concerned of their transactions are on these lists. See for instance EAR §744.21(b)(1) which gives: “Exporters, re-exporters, and transferors are answerable for figuring out whether or not transactions with entities not listed on complement no. 7 or 4 to this half are topic to a license requirement beneath paragraph (a) of this part.”

Nonetheless, there are hidden  complexities in these necessities. For instance, the EAR’s Army Finish Person regulation prohibits exporting sure merchandise to “Army Finish Customers” in China. On this part, the time period “army finish consumer” is broadly outlined as “[T]he nationwide armed companies (military, navy, marine, air pressure, or coast guard), in addition to the nationwide guard and nationwide police, authorities intelligence or reconnaissance organizations (excluding these described in § 744.22(f)(2)), or any individual or entity whose actions or capabilities are supposed to assist ‘army finish makes use of’ . . . . ”  This time period consists of not solely events listed on the Military End-User List, but additionally every other get together that meets the definition of “Army Finish Person” in EAR §744.21(g), together with events whose actions or capabilities are supposed to assist “army finish makes use of” in China.

An analogous requirement exists beneath EAR § 744.22, which prohibits exporting all EAR-regulated merchandise to “military-intelligence finish customers” or “military-intelligence finish makes use of” in China and sure different nations.  Figuring out these connections will be difficult, posing vital compliance dangers for U.S. exporters.

Prohibited get together screening just isn’t restricted to exporters; it’s also vital for U.S. importers. With the implementation of the Uyghur Compelled Labor Prevention Act, U.S. importers should excercise due diligence measures to adjust to rules that prohibit importing items from entities linked to China’s XUAR area, or these listed on the UFLPA Entity List. Given the complexity of provide chains, it may be tough to find out whether or not imported merchandise contain prohibited types of labor or are related to listed entities, creating challenges for U.S. importers.

Penalties for non-compliance

Non-compliance with prohibited get together restrictions can result in extreme penalties. Violations  beneath the EAR and OFAC sanctions may end up in fines as much as $1 million and imprisonment for as much as 20 per violation.  Below the UFLPA, non-compliance can lead to an entire ban on imports of the product into the USA.

Due Diligence Screening Methodology

There are a number of steps that corporations can take to try to cut back these dangers. Along with screening for restricted events, corporations regularly request their international counterparties to signal export and import compliance certifications. They will additionally embrace import and export compliance clauses of their buy and sale contracts. These certifications can require the international events to signify that they may function in compliance with U.S. export and import legal guidelines, disclose the names of their shareholders, and ensure that none of their shareholders are listed on any related watchlists. Primarily based on this data, corporations can  then display screen the shareholder names in opposition to the SDN Record and different related lists.

Equally, for EAR compliance, corporations can require that their international counterparties verify, amongst different issues, that they don’t fall beneath the definition of “army finish consumer” or “military-intelligence finish consumer”. They need to additionally try to substantiate that the exported product is not going to be utilized in any “army finish use” or “military-intelligence finish use” as outlined within the EAR. Within the case of UFLPA compliance, corporations can request certifications and documentation from their international counterparties confirming that no pressure labor was concerned of their provide chain. This documentation might embrace  manufacturing facility go to stories, audit stories, and provide chain maps, amongst different issues.

Since it’s not unusual for Chinese language and different international corporations to misconceive the advanced U.S. import and export necessities, U.S. corporations regularly additionally conduct their very own unbiased due diligence evaluations of the events concerned within the transactions.  Such evaluations usually would look at the international firm and its homeowners to achieve perception into their operations and to determine any potential points or considerations. The gadgets to be reviewed will rely on the main points of the transaction concerned, however can embrace researching the Chinese language firm’s shareholders, the character of its enterprise actions (together with any connections with Chinese language army businesses or XUAR) and whether or not there are any stories of fraudulent, felony or compliance violations. These unbiased third-party evaluations assist the U.S. corporations fulfill their compliance obligations and assist reveal their good religion efforts to adjust to the legal guidelines. By conducting this due diligence, corporations can cut back the chance of violating rules and doubtlessly cut back penalties. These evaluations additionally present worthwhile details about the Chinese language firm that can be utilized for enterprise or negotiation functions.


China poses distinctive challenges on the subject of conducting due diligence evaluations, primarily as a consequence of Chinese language authorities  restrictions on data accessible to international corporations and governments.

Regardless of these challenges, Harris Bricken has intensive expertise conducting due diligence evaluations of Chinese language corporations, leveraging vital sources to beat these limitations.

When mixed with different compliance practices resembling restricted get together screening and export/import compliance packages, due diligence evaluations can function a worthwhile instrument in safeguarding U.S. corporations concerned in Chinese language enterprise transactions.


* The above publish was written by Tom McVey and Ngosong Fonkem.

Tom McVey  is a world company lawyer and enterprise advisor in Washington, Dc. Mr. McVey advises shoppers on the Export Administration Rules, the OFAC sanctions packages, ITAR, the Overseas Corrupt Practices Act, the anti-boycott legal guidelines and the Committee on Overseas Funding in the USA (CFIUS). He additionally advises on cross-border enterprise transactions together with worldwide gross sales and distribution, joint ventures, mergers and acquisitions, personal fairness, worldwide enterprise planning and company compliance.

Ngosong Fonkem is a world commerce lawyer at Harris Bricken the place he additionally heads up the agency’s Africa Observe. You could find out extra about Ngosong right here.