Export Compliance Management Seminar 31 May 2012: Exports in the Supply Chain

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This document summarizes export regulation rules and compliance. It outlines international and domestic sources of export rules, such as the UN, EU, and UK. It discusses why countries implement export regulations, including for protectionism, taxes, and foreign policy. The document also covers export compliance strategies, licensing, record keeping, audits, and potential enforcement actions for violations. Contractual terms are suggested to help ensure all parties in a supply chain comply with changing export rules and regulations.

Exports in the Supply
Chain
Here there be monsters!

Export Regulation Outline

● Why export regulation?
● Sources
● EU and UK rules
● Compliance
● Enforcement
● Contractual Terms

© Bird & Bird LLP 2011

Why Export Regulation?

● Protectionism – local production of resources – China rare
earth
● Fiscal – taxes
● Statistical – trade data
● Customs – outward processing, repair
● Foreign and Defence policy

© Bird & Bird LLP 2011

International Sources

● UN – sanctions
● Wassenaar – dual use
● Australia Group – chemical, biological
● Nuclear Suppliers Group
● World Trade Organisation

● Etc.

© Bird & Bird LLP 2011

Rules - EU

● Commercial Policy – EU competence
● CFSP Decisions and measures against specific countries and
persons
● EU Customs Code and Implementing Reg
● EU Dual-Use Regulation 428/2009
● EU Common Military List - Notice

© Bird & Bird LLP 2011

Rules - UK

● Customs and Excise Management Act 1979 (CEMA)
● Export Control Act 2002
● Export Control Order 2008
● Statutory Instruments

● CHIEF, SPIRE electronic systems

© Bird & Bird LLP 2011

A few issues

● Technology
- Brochures, proposals
- Whistle blowing procedures

● Components
- Where separable from the product

● Personal data
- US ITAR compliance for third country nationals

© Bird & Bird LLP 2011

Compliance Objectives

● Legal compliance –
- Avoid penalties
- Avoid publicity

● Business risk – payments, supply chain disruption

● Reputational risk – bad publicity, reliable supply chain
partners

© Bird & Bird LLP 2011

Compliance Strategy

● Product classification
● Country of origin – how many rules
● Country of destination
● Payment structures
● Actors in the supply chain
- End users – military?
● Contractual terms

© Bird & Bird LLP 2011

Compliance Cycle

● Compliance programmes
● Licensing – ECO, Treasury Asset Freeze Unit – Single
Individual, Open General
● Record keeping
● Audits – internal, external
● Monitoring
● Disclosure
● Investigations – internal, external

© Bird & Bird LLP 2011

Enforcement

● Member States
● HMRC
● CEMA – Arts. 67-68 export offence
- "Any person knowingly concerned in the
exportation…of any goods with intent to evade shall be
guilty of an offence and may be arrested"
- Seizure, unlimited fines, prison up to 7 years
● CEMA – Art. 152 compound penalties
- No prosecution, financial penalty
- £575,000 2009, 18 cases listed 2009-11

© Bird & Bird LLP 2011

Contractual terms

● All parties must comply with the rules
● Anticipate changes in targeted products, countries and
persons
● Typical clauses
- Prohibited countries
- Compliance with rules – UN, EU, US, UK?
- Force Majeure – narrowly defined?
- Warranties and Representations
- Indemnification
- Choice of Law

© Bird & Bird LLP 2011

Thank you
Iain MacVay
Direct: +44 (0)20 7415 6617
Tel: +44 (0)20 7415 6000
iain.macvay@twobirds.com

Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated businesses. www.twobirds.com

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