At COP 27 in November 2022, South Africa launched its new Just Energy Transition Investment Plan and announced a five-year investment plan for the USD 8.5 billion financing package, which was announced as part of the country’s Just Energy Transition Partnership with France, Germany, the United Kingdom, the United States and the European Union at COP 26. The JET IP is aligned with the Cabinet-approved National Just Transition Framework and outlines the investments required to achieve the country’s decarbonization commitments, while promoting sustainable development, and ensuring a just transition for affected workers and communities.
On 10 November 2022, following a 3-1 vote, the Federal Trade Commission issued a policy statement expanding its interpretation of the scope of unfair methods of competition under section 5 of the Federal Trade Commission Act. Section 5 of the FTC Act prohibits “unfair methods of competition,” which covers conduct that violates antitrust laws or section 5 itself.
On 28 October 2022, the US Commerce Department’s Bureau of Industry and Security issued a first round of FAQs regarding the advanced computing and semiconductor manufacturing Interim Final Rule, published on 13 October 2022 (87 Fed. Reg. 62,186) and amending the Export Administration Regulations. The FAQs clarify that that the new restrictions on exports and reexports to China also apply to Hong Kong.
On 1 January 2023, the California Consumer Privacy Act as revised by the California Privacy Rights Act will take effect fully in the job applicant and employment context.
And with respect to job applicants and personnel, businesses subject to the California Consumer Privacy Act will be required to (i) issue further revised privacy notices, (ii) be ready to respond to data subject requests, (iii) have determined if they sell or share for cross context behavioral advertising personal information about them, and (iv) have determined if they use or disclose sensitive personal information about them outside of specific purposes. If employers sell, share for cross-context behavioral advertising, or use or disclose sensitive personal information outside of limited purposes, numerous additional compliance obligations apply.
On 26 October 2022, the SEC adopted final incentive compensation clawback rules requiring US-listed issuers to: (i) develop and implement a policy for the recovery of incentive-based compensation that is erroneously “received” by current and former executive officers during the three completed fiscal years immediately preceding the date that the issuer is required to prepare an accounting restatement, and (ii) file that policy as an annual report exhibit and satisfy related disclosure obligations in accordance with SEC rules.
Baker McKenzie’s Sanctions Blog published the alert titled OFAC reissues general license extending authorization period for transactions related to energy on 11 November 2022. Read the article via the link here. Please also visit our Sanctions Blog for the most recent updates.
Regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards. Competition law has been particularly susceptible to arguments that traditional safeguards should be discarded to aid regulators in securing convictions. In the first competition case to go to trial in Hong Kong, the Competition Tribunal held in 2019 that in competition proceedings seeking financial penalties, the authority had the burden to prove its case beyond reasonable doubt. This article considers the approach taken in other common law jurisdictions and scope to argue for increased safeguards and human rights protections for clients facing financial penalties.
On 29 September 2022, FinCEN released the final regulations regarding Beneficial Ownership Information Reporting Requirements which implement the beneficial ownership information reporting provisions of the Corporate Transparency Act.
As an unfortunate consequence of the deterioration of the US-China relationship, more and more Chinese companies are divesting and exiting their US-based operations. In order to execute a smooth exit from US operations, Chinese companies should retain a good US financial adviser. Careful consideration should also be given to how the asset is packaged, preparing stand-alone audited financial statements, and optimizing the business for post-closing operations. Chinese companies should be prepared to use US law and engage in longer negotiations as a result. CFIUS-related requirements and risks should be understood during the early stages of the deal.
On 20 October 2022, the US Treasury Department released the first Committee on Foreign Investment in the United States Enforcement and Penalty Guidelines. The Guidelines provide visibility into factors CFIUS considers when assessing violations of CFIUS laws and regulations, and determining potential penalties. The Guidelines are applied by the Monitoring and Enforcement office, which is part of the US Treasury Department’s Office of Investment Security.