International Law Bulletin - Vol. 17, No. 1
INTERNATIONAL BUSINESS AND TRADE
Automotive
China
Because new car sales were up more than 45% in China in 2010 reaching 13.65 million vehicles, the Finance Ministry imposed a ten percent sales tax on purchase of new small engine cars of 1.6 liters or smaller (28 ITR 55; 1/13/2011).
Export Controls
US
The Bureau of Industry and Security (BIS) of the Department of Commerce (DOC) will remove several Indian space and defense related companies from the DOC Export Administration Regulation (EAR) Entity List; thereby eliminating some license requirements for these named companies and will add India to the country group reflecting adherence to the Missile Technology Control Regime (MTCR) (28 ITR 156; 1/27/2011).
Export Policy
India
The Director General of Foreign Trade issued a notification that it had withdrawn benefits available under the "Serves from India" program where service providers earned duty credit entitlements for foreign exchange and has ordered all exporters of pharmaceutical products to ensure each specimen exported has a bar code to build in "track-and-trace" capability (28 ITR 157; 1/27/2011); (28 ITR 157; 1/27/2011).
INTERNATIONAL AGREEMENTS AND INVESTMENTS
Foreign Investment
India
The Federation Indian Chambers of Commerce Industry (FICCI) indicated a series of strikes at multi-national corporations over wage increases, expectations about appreciation of the Yuan, and efforts to move growth away from export to domestic demand will make China less attractive to investors than India (28 ITR 55; 1/13/2011).
UN
The United Nations Conference on Trade-In Development (UNCTAD) stated global foreign direct investment (FDI) reached $1.122 trillion last year compared to $1.114 trillion in 2009 with developing countries receiving 53% of FDI and the United States, European Union and other industrialized countries receiving the remaining 47%, most of which was in the form of green field investments (70%) and the balance in merger and acquisition activities. Of the FDI that went to Asia, over one-third went to China or Hong Kong with the balance to Singapore ("Global Investment Trends Monitor" Report) (28 ITR 148; 1/27/2011).
LEGISLATIVE AND LEGAL DEVELOPMENTS
Anti-Trust
China
The National Development of Reform Commission issued new rules against price fixing to head off collusion and increasing consumer inflation (28 ITR 89; 1/20/2011).
Customs
US
Customs & Border Protection (CBP) published technical corrections to protest provisions to implement statutory changes to modernize the customs provisions affecting the types and matters subject to protest (28 ITR 78; 1/20/2011).
CBP published interim regulations implementing the preferential tariff treatment of the U.S.-Omand Free Trade Agreement (28 ITR 60; 1/13/2011).
Government Procurement
India
The Ministry of Defense announced new policies to expand the scope of its off-sets program to include civil aviation, internal security and training to allow sellers of foreign equipment to the Indian government to offset obligations to reinvest in defense production for research (28 ITR 90; 1/20/2011).
US
The Court of International Trade (CIT) rejected government claims of lack of jurisdiction to review a U.S. Customs and Border Protection (CBP) determination involving country of origin findings (Xerox Corp. vs. U.S., CT Int'l T, No. 07-00337; Slip Op. 11-8; 1/24/11; 28 ITR 165; 1/27/2011).
Environment
Canada
Reportable Diseases Regulations were published to protect the aquatic animal industry against suspected or confirmed cases of serious diseases in imported animals to be administered by the Canadian Food Inspection Agency (CFIA) (28 ITR 163; 1/27/2011).
US
The National Marine Fisheries Service (NMFS) published a final rule implementing identification and certification procedures of the Moratorium Protection Act which may lead to import and port access restrictions on countries engaging in illegal, unreported and unregulated fishing activities (76 FED REG. 2011; 28 ITR 146; 1/27/2011).
Export Controls
US
The Department of Commerce Census Bureau has proposed a rule to require filing of export information through its Automated Export System (AES) for all shipments of used cell propelled vehicles, temporary exports and household goods but excluding technical data and defense service exemptions (76 Fed. Reg. 4001; 28 ITR 142; 1/27/2011).
The Bureau of Industry & Security (BIS) issued a final rule making publicly available mass market encryption software no longer subject to the Export Administration Regulation (EAR) (76 Fed. Reg. 1059; 28 ITR 45; 1/13/2011).
Intellectual Property
US
Consideration by the International Trade Commission whether it should issue an exclusion order in a patent infringement action does not require an analysis under the four factor test for injunctive relief as set forth in eBay v. MercExchange, LLC (Spansion Inc. v. International Trade Commission, Fed. Cir.., No. 2009-1460, 122110; 28 ITR 98; 1/20/11).
IMMIGRATION
USCIS Releases Revision to Handbook for Employers
The Citizenship and Immigration Services (USCIS) announce a release of its revised handbook for Employers known as M-274 which includes new visual aides, examples of relevant USCIS documents, a guidance on lawful permanent residences, refugees and asylees, persons in temporary protected status and exchange visitors and foreign students together with information on processing of employees "porting" in or out of H1-B status and their guidance on extension of stay for employees who have temporary employment authorization (88 IR 203; 1/17/2011).
Perm Application-Advertisement
An application by an employer for labor certification for the position of Senior Software Engineer was denied by the Certifying Officer on the grounds the newspaper advertisement did not contain the geographic location of the job opportunity which denial was upheld by the Board of Alien and Labor Certification Appeals (BALCA) (88 IR 128; 1/10/2011).
USCIS Delays Implementation of "Deemed Export" Certification in Form I-129 until 2/20/2011
USCIS requires Part 6 of the Petition for Non Immigrant Worker Form I-129 to contain a certification that certain non-immigrant workers be certified as to employer's compliance with the U.S. Department of Commerce "deemed export" rules governing the release of technology to foreign nationals. These rules are set forth in the Export Administration Regulation (EAR- 15 CFR Part 734) and the International Traffic in Arms Regulation (ITAR- 22 CFR Part 120) which should be consulted for determining whether technical data or technology is properly controlled for export purposes (88 IR 1, 1/3/2011).
BALCA Identifies Three Steps for the Exercise of Discretion by a Certification Officer (CO)
An employer filed a letter entitled "Request for Review of Denial of Form ETA 9089" requesting the Certifying Officer (CO) to reconsider a denial. The CO refused the request and forwarded it to the Board of Alien Labor Certification of Appeals (BALCA). The employer argued the CO's referral to the Board was arbitrary and requested a finding of an abuse of discretion by the CO. The Board cited the analytical steps to include:
- Determine whether the CO exercised the discretion to treat a Motion for Reconsideration as a request for BALCA Review;
- Determine if the employer introduced a supplemental argument or if evidence would had been barred;
- Determine if the employer had been given an adequate opportunity after notice of the deficiency to supplement the record on review; and in such event, if it would constitute an abuse of discretion by the CO to treat the Motion for Reconsideration as one for review by BALCA (Denzil Gunnels d/b/a Gunnels Arabians, 2010-PER-00628; BALCA November 16, 2010; 87 IR 11/22/2010).
Sources:BLR- Bloomberg Law Reports Antitrust & Trade; BNA - BNA, Inc.Highlights: International Trade Daily (ITD), International Trade Reporter (ITR), International Trade Reporter Decisions (ITRD), TMIJ-Tax Management International Journal; IL - International Lawyer, SMU School of Law; FT- Financial Times; TE - The Economist Magazine; GATM - German American Trade Magazine of the German American Chamber of Commerce; WSJ - Wall Street Journal; ILN/ABA-International Law News, American Bar Association; International Law News, ILN (American Bar Association); Nishith Desai Associates FEMA Hotline(nda@ndalaw.com); LB- LehmanBrown China Business Insights International Accountants.
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.