International Trade

Complete NAFTA Guidance

The North American Free Trade Agreement has greatly expanded trade among the United States, Mexico and Canada.  These countries are now the United States’ most important trading partners.  Many NAFTA rules, however, are complex and difficult to apply.  With many lawyers concentrating in NAFTA issues, our practice group is able to provide the expert guidance to assure that our clients conform with all NAFTA requirements.

We advise on determining proper country of origin for NAFTA purposes in order to obtain the best possible duty rate.  Our lawyers possess specialized knowledge in a number of product areas, including the textile and automotive sectors.  We counsel on NAFTA marking requirements, helping clients avoid marking penalties, and we work with clients to assure compliance with NAFTA’s unique duty deferral and drawback rules.

We can assist with establishing and operating cross-border manufacturing operations in order to take full advantage of the Mexican maquiladora program.  And as necessary we counsel on the procedures for accessing the NAFTA dispute resolution processes.

Other Preferential Regimes

Our lawyers additionally have capabilities with a range of other preferential trade regimes.  In addition to the numerous bilateral investment agreements that are now in place or under negotiation, our experience extends to:

• The Generalized System of Preferences
• The Caribbean Basin Initiative
• The United States-Israel Free Trade Area

Companies doing business internationally today must ensure that they comply with myriad economic and trade sanctions administered and enforced by a host of governmental bodies and international organizations around the world seeking to combat international terrorism, nuclear weapons proliferation, drug trafficking and other breaches of international law.  Unilateral or multilateral, broad or targeted, country-based or list-based, complementary or conflicting, violation of these sanctions can lead to significant civil or criminal penalties, can subject a company to being placed on a “blacklist” for even inadvertent violations, and can irreparably damage a company’s reputation in the global marketplace.

The lawyers on our global sanctions team have extensive experience advising clients operating internationally on how best to navigate this complex web of varying obligations and restrictions.  Serving clients in nearly every industry sector and around the globe, we routinely advise on a wide array of compliance issues arising from the various U.S. and foreign sanctions laws and regulations.

Our work is as varied as our client base and includes:

• Assisting with the design and implementation of compliance systems, policies and procedures
• Conducting compliance assessments and risk audits
• Advising on the scope and applicability of particular sanctions regulations
• Liaising with key officials and regulators to obtain guidance or insight on policy focus and direction
• Preparing requests for official advisory opinions or licenses

When a company is concerned that sanctions violations may have occurred, we regularly assist in conducting an internal investigation, and in preparing and submitting any required self-disclosures.  We routinely represent companies before regulators and enforcement agencies when the government decides to launch an official investigation.

Gibson, Dunn & Crutcher’s International Trade lawyers routinely counsel clients on compliance with the Export Administration Regulations (EAR) administered by the U.S. Department of Commerce, Bureau of Industry and Security (BIS), and the International Traffic in Arms Regulations (ITAR) enforced by the U.S. Department of State, Directorate of Defense Trade Controls (DDTC).  Our export control practice includes professionals who have extensive experience in public service in the U.S. Congress and at the various governmental agencies that administer the U.S. export control laws and regulations, and who continue to maintain excellent contacts with and access to key decision makers.

Our wide range of services for clients dealing with export control issues includes:

• Development of ITAR and EAR export compliance programs
• Analysis of the United States Munitions List (USML) and Commerce Control List (CCL), and preparation of commodity jurisdiction requests
• Assistance with navigating the changes brought on by Export Control Reform, as commodities and items shift from the USML to the CCL
• Assistance with encryption registration and reporting requirements and procedures
• Preparation of registration statements (including amendments triggered by changes in corporate structure or ownership)
• Preparation and submission of license applications and advisory opinion requests
• Preparation and submission of Technical Assistance Agreements (covering a wide variety of situations, including transfers of military technology to new foreign owners, collaboration with foreign parties on defense-related projects, releases of defense technology and provision of training to foreign nationals located in the United States)
• Conduct of extensive internal investigations involving potential ITAR/EAR violations
• Preparation and submission of voluntary disclosure filings (with the State Department, the Defense Department, and/or the Commerce Department)
• Coordination with State Department (DDTC), the Defense Department (DTRA), and the Commerce Department (BIS) on all of the above issues

Gibson, Dunn & Crutcher’s lawyers routinely handle complex cross-border investment transactions, and have considerable expertise in U.S. regulation of foreign investment, including Exon-Florio reviews before the inter-agency Committee on Foreign Investment in the United States (CFIUS).  We advise both acquiring companies and targets in evaluating the potential benefits of a voluntary CFIUS filing, and counsel clients during all aspects of the CFIUS process, from the “pre-filing” notification to the closing letter.

Complementary to its CFIUS practice, Gibson Dunn offers industry-leading capabilities through practice groups in Government Contracts, Antitrust and Competition, Mergers and Acquisitions, Tax, Global Finance, Energy and Infrastructure, and Public Policy.  These combined strengths uniquely position our firm to provide CFIUS advice that is seamlessly integrated into the entire acquisition or sale transaction.  Because CFIUS is an inter-agency entity, parties must be prepared to navigate issues that might be raised from a wide variety of governmental stakeholders.  Under the CFIUS umbrella, government interest items may include, among others, issues related to the National Industrial Security Program (NISP) such as developing a FOCI (Foreign Ownership, Control or Influence) action plan acceptable to the Department of Defense, and other agencies’ regulatory requirements, such as those of the Federal Energy Regulatory Commission (FERC).  CFIUS parties may even be required to work with the U.S. Congress in particularly sensitive, high-stakes matters.

Navigating Foreign Boycotts

U.S. tax and export administration laws also penalize or restrict compliance by U.S. companies with foreign boycotts.  U.S. and multinational companies, especially those doing business in the Middle East, confront a conflicting array of local laws requiring compliance with boycott requirements and U.S. laws prohibiting or limiting compliance and imposing significant reporting obligations.  Our practice group advises on the establishment and maintenance of compliance programs and the analysis and resolution of the conflicting requirements of U.S. and local boycott laws.  We also represent clients in the resolution of antiboycott issues before the U.S. Internal Revenue Service and the Department of Commerce’s Office of Antiboycott Compliance.

​Trade Litigation

Gibson, Dunn & Crutcher does not limit its international trade practice to appearances before administrative agencies. The group has represented many clients in appeals of international trade and customs cases before the U.S. Court of International Trade and the Federal Circuit.

Gibson, Dunn & Crutcher lawyers guide clients to develop and implement global trade strategies based on current trade law and negotiations for future trade agreements.  Our lawyers have capabilities with a range of preferential trade regimes, including the North American Free Trade Agreement (NAFTA), and in the intricacies of exports and foreign direct investment.  Our practice group members also provide counsel in understanding the implications of World Trade Organization (WTO) panel reports, and represent clients before United Nations tribunals.

For example, the United States has been involved in numerous trade negotiations that include:

• The Doha Round
• Bilateral trade and investment agreements
• WTO accession agreements involving issues such as the investment laws of Saudi Arabia and the Newly Independent States
• Asia-Pacific Economic Cooperation (APEC)
• The Organization for Economic Co-operation and Development (OECD)
• Multilateral investment agreements

WTO and Other International Organizations
Gibson, Dunn & Crutcher works with clients to develop responses, in conjunction with their governments, to activities considered to be inconsistent with the rules promulgated by the World Trade Organization.  Our practice group members also provide counsel in understanding the implications of WTO panel reports, and represent clients before United Nations tribunals.

Recent representations include:

• Won for client a $505 million award, from the United Nations Compensation Commission, as compensation for losses caused by Iraq’s invasion and occupation of Kuwait in August 1990.  This was the largest UNCC award made to any U.S. corporate claimant.

Since the terrorist attacks of September 11, 2001, the U.S. government is increasingly active in monitoring international business transactions and in regulating or restricting business activities in response to the threat of physical, electronic or financial terrorism.  Doing business in the 21st century raises a number of national security issues – supply-chain security management; border security; emergency response and recovery; restrictions on the export of certain technologies; and complying with economic trade sanctions, anti-money laundering requirements and anti-corruption regimes.

Gibson, Dunn & Crutcher’s extensive experience in all areas of global commerce, coupled with its nationally recognized expertise in dealing with both U.S. and foreign laws and regulations, allows us to handle and solve our clients’ most vexing problems.

Our National Security team is drawn from several practice groups throughout the firm, including Crisis Management, Financial Institutions, Government Contracts, International Trade, Labor and Employment, Public Policy, Litigation, and White Collar Defense and Investigations.  The National Security team includes partners, senior lawyers and others with extensive government experience, top security clearances and wide-ranging capabilities in the full spectrum of national security issues.

Many of the members of our team have served in senior capacities in the federal government, particularly in the agencies and organizations that make, implement and enforce national security laws and regulations.  Our team includes lawyers who have held high-level positions in the U.S. Departments of Justice, Treasury and Labor, as well as the White House, the National Security Council and the Office of Management and Budget (OMB).  Members of the team include a former U.S. Attorney for Los Angeles, a legal advisor to the National Security Council, two Solicitors for the U.S. Department of Labor, the Associate Director of OMB, and an Assistant General Counsel in the Central Intelligence Agency (CIA)’s Office of General Counsel.  While in government, our lawyers also worked closely with every national security-related agency, including the Director of National Intelligence, the CIA, the National Security Agency (NSA), the Defense Security Service and the Department of Homeland Security.  Given this wealth of experience, we are prepared to address every aspect of a national security legal or public policy issue facing our clients.

The ongoing conflicts in Iraq and Afghanistan and elsewhere often raise issues that require knowledge of those countries’ laws and procedures, and experience with contingency operations.  Gibson Dunn lawyers have represented clients across the entire spectrum of battlefield conditions, from peace operations, support and stability operations to full-scale armed conflict and post-conflict environments in locations such as Afghanistan, Iraq and Kuwait.  Gibson Dunn is fortunate, and proud, to have on its team over a dozen former military officers.  Our lawyers have extensive experience representing contractors and individuals in theater and are highly knowledgeable about the laws, regulations and challenges clients face when performing work in a battlefield environment.

A number of Gibson Dunn’s team members either currently hold, or have recently held (and can reactivate on short notice) security clearances through the Top Secret/SCI level.  This allows us to get involved rapidly in matters where access to classified material is required and time is of the essence.

Set forth below are some of the most common concerns our clients confront in the national security realm and a brief summary of our experience in those areas.  Specific information about the work we do in these areas can be found in the various practice group descriptions.

Economic Sanctions and Embargoes (Office of Foreign Assets Control)

Members of our International Trade and White Collar Defense groups advise both U.S. and foreign clients engaged in international commerce on a wide array of issues stemming from compliance with U.S. sanctions and embargoes administered and enforced by the Department of the Treasury, Office of Foreign Assets Control (OFAC) and the Department of State.  Lawyers in these groups have substantial experience assisting companies with conducting compliance assessments and risk audits, advising on the scope and applicability of particular sanctions regulations, liaising with key officials and regulators to obtain guidance or insight on policy focus and direction, or preparing requests for official advisory opinions or licenses.  When a company is concerned that sanctions violations may have occurred, we frequently assist in the internal investigation to uncover the facts, prepare and submit any self-disclosures and, if necessary, represent the company during the course of a subsequent government investigation or enforcement action.

Export Controls

Our International Trade and Government Contracts groups advise clients on a wide range of U.S. government restrictions on the export of goods and technologies.  Our clients regularly consult us for advice on complying with the Export Administration Regulations and the International Traffic in Arms Regulations.  We assist clients in developing effective programs to ensure compliance with license conditions and reporting requirements, and in responding to enforcement actions.  We also assist clients in obtaining licenses and other authorizations from the Commerce Department’s Bureau of Industry and Security (BIS) and the State Department’s Directorate of Defense Trade Controls (DDTC).

Foreign Corrupt Practices Act and International Bribery Compliance and Investigations

As clients expand business opportunities overseas, the risk of corruption and bribery has increased exponentially.  Moreover, the Justice Department’s recent announcement that it considers Foreign Corrupt Practices Act (FCPA) enforcement to be a national security issue tied to the global fight against terrorism makes the FCPA even more important.  Our White Collar Defense and International Trade groups have represented clients in investigations involving alleged violations of the FCPA since the inception of the law.  Our lawyers regularly advise clients on all aspects of the FCPA and multinational corruption issues, including:  initial advice, training, establishment and implementation of effective compliance programs, representation in internal and government investigations involving suspected FCPA and international corruption violations, Securities and Exchange Commission implications of FCPA issues, merger and acquisition due diligence related to corporate transactions, and special engagements such as serving in corporate compliance monitorships.

Foreign Investment

Our International Trade, Government Contracts and Public Policy groups have extensive experience assisting both U.S. and foreign companies in transactions subject to review by the Committee on Foreign Investment in the United States (CFIUS).  In addition, when companies are determined to be under foreign ownership, control or influence (FOCI), we have assisted in obtaining security clearances and handling other issues to enable our clients to obtain or retain federal government work.

Government Contracts

Our Government Contracts group has decades of experience providing counseling and litigation services to defense industry and commercial clients regarding national security implications of their business relationships with the U.S. government.  We have been involved in numerous hearings and disputes, conducted entirely in the “black world,” on precedent-setting cases involving the State Secrets privilege and the Defense Production Act.  We have represented clients in matters involving the CIA, the NSA, the National Reconnaissance Office, the National Geospatial Intelligence Agency, and other federal agencies involved in intelligence gathering and analysis.  We regularly work with companies before the Defense Security Service and assist them in satisfying the regulatory requirements of the National Industrial Security Program (NISP) that are driven by foreign investments or acquisitions.  In addition, we have been called upon to represent U.S. government agencies on several occasions.

Homeland Security/SAFETY Act

Our Government Contracts, Crisis Management and Public Policy groups have counseled companies since September 11, 2001, on issues relating to what has become known as Homeland Security.  We have counseled clients on qualifying their products under the SAFETY Act, addressing company-threatening liability for pharmaceutical products, and other first-impression matters.

Information Security

Our International Trade group advises clients on the restriction of exports on encryption technology.  In addition, our Privacy, Cybersecurity and Consumer Protection and White Collar Defense groups represent clients in matters involving charges of computer hacking, intrusion and intellectual property offenses, as well as entities that have been victimized by network security incidents or data breaches.

National Security Civil and Criminal Litigation

Increasingly, our clients are confronting civil litigation and criminal investigations that raise national security issues.  Members of our Litigation and White Collar Defense groups have deep experience in such matters.  Often the resolution of these cases turns on classified information, and our lawyers are well versed in the complex procedures for handling classified information in the federal courts, including the Classified Information Procedures Act and the State Secrets privilege.

National Security Public Policy

The members of our Public Policy group also have extensive experience with effecting public policy change on national security matters.  We are prepared to help build strategies regarding national security policy matters pending before both the Congress and the Executive Branch.  Our team includes a former high-ranking State Department official and a former member of the National Security Council staff responsible for providing advice to White House and Executive Branch policymakers and addressing congressional oversight of national security programs.

Anti-Money Laundering

Members of our Financial Institutions and White Collar Defense groups have extensive knowledge of U.S. and foreign anti-money laundering laws and regulations, both as government lawyers and private practitioners.  We provide advice on anti-money laundering and forfeiture laws, currency transaction reporting, the identification and reporting of suspicious activity, wire transfer and other record-keeping requirements.  We advise and represent financial institutions in audits and exams conducted by a number of regulators and help prepare our clients to successfully complete the exercises in the most cost-effective manner.  We also defend financial institutions and other regulated entities against investigations and prosecutions for failure to prevent or report illegal money laundering and failure to follow the “know-your-customer” requirements and other requirements of the USA PATRIOT ACT.  Our clients include banks and financial service companies, as well as major international businesses, including manufacturers and distributors of appliances, consumer electronics, computers, and other goods.

Congressional Investigations

Our Public Policy group has extensive experience advising defense and high-tech industry clients in their interaction with federal, state and local governments.  We have prepared clients to testify before Congressional committees, assisted foreign firms in obtaining approvals from regulatory agencies to acquire U.S. defense contractors, defended technology clients against hostile takeover bids based on national security concerns, and assisted defense and aerospace firms with advocacy issues both in the United States and in foreign countries.

Customs and Imports

Our International Trade group represents clients in compliance, licensing and enforcement matters before the Department of Homeland Security’s Bureau of Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE).  We have particular expertise shepherding our clients through a customs compliance assessment or audit and with the Customs-Trade Partnership Against Terrorism (C-TPAT) program.

E-Verify/Employment Issues

Our Labor and Employment group has extensive experience with the full range of employment issues facing employers in the post-9/11 environment, including the E-Verify system, which requires federal government contractors to use an electronic verification system to verify the employment eligibility of new employees.