As global economic and geopolitical environments enter a new era, companies need to continuously develop and adjust their coherent global business strategies to secure and further expand business opportunities in all markets while minimizing political and legal risks by ensuring compliance. To assist you with that task, Mayer Brown’s US-China Trade Monthly provides news and insights related to the latest US developments impacting the US-China bilateral trade relationship.

In the current issue, we will discuss: (1) the proposed US government regulation of sensitive outbound investments; (2) the SEC issuing guidance for disclosures on ties to the Chinese government; and (3) the US Federal Circuit’s opinion in a recent matter: CBP’s lack of protective order in evasion case violates importer’s due process.

US Government Proposes the Regulation of Sensitive Outbound Investments; Some Provisions Could Take Effect as of August 9, 2023

On August 9, 2023, President Joseph Biden issued an executive order, and the US Treasury Department kicked off a rulemaking process, to prohibit or require notification of outbound investments by US persons in companies from countries of concern, or certain subsidiaries or parents of such companies, which are engaged in activities related to identified sensitive technologies: semiconductors and microelectronics, quantum information technologies, and artificial intelligence. The order is framed as the natural complement to existing authorities (namely, export controls and inbound investment reviews like CFIUS) that restrict the development of those technologies by nations that could use them to threaten the national security of the United States. The order assigns the Treasury Department implementing responsibility, and concurrent with the order, the Treasury released an Advance Notice of Proposed Rulemaking (“ANPRM”) to solicit comments from the public. Under the order, the term “countries of concern” is defined to include China, including Hong Kong and Macau; other countries can be added to the list in the future.

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SEC Issues Guidance for Disclosures on Ties to the Chinese Government 

On July 17, 2023, the Securities and Exchange Commission (SEC) released new guidance on China-specific disclosure obligations for public companies. By issuing this guidance and the accompanying sample letter, the SEC is reminding companies that the agency continues to closely monitor compliance with respect to China-specific disclosures.

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Federal Circuit: CBP’s Lack of Protective Order in Evasion Case Violates Importer’s Due Process

On July 27, 2023, the Federal Circuit issued its opinion in Royal Brush Manufacturing, Inc. v. United States, Dixon Ticonderoga Company, holding that US Customs and Border Protection’s (“CBP”) refusal to provide the target of an antidumping evasion action with the business confidential information that CBP used in reaching its decision violated the target’s due process rights. The decision paves the way for importers accused of evading antidumping duty orders to access confidential information through methods similar to the administrative protective orders in place for the Department of Commerce’s antidumping and countervailing duty proceedings.

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