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Germany: Prohibition of Support for the Islamic State

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(Oct 31, 2014) On September 12, 2014, Germany's Ministry of Interior issued a ban on support for the Islamic State (IS) that took immediate effect. (Kimberly Bennett, Germany Passes Bill Banning Support of Islamic State, PAPER CHASE (Sept. 13, 2014).) According to Interior Minister Thomas de Maiziere, approximately 400 Germans have traveled to Iraq and Syria to fight on behalf of the IS. (Id.) The impetus for the ban is reported to be an IS-led attack on a group of Yazidis (an Iraqi ethnic (most Kurdish) and religious minority) that occurred in the German town of Herford in August. (Id.; Raya Jalabi, Who Are the Yazidis and Why Is ISIS Hunting Them?, GUARDIAN (Aug. 11, 2014).)

Based on section 3, paragraph 1, in conjunction with section 15, paragraph 1, sentence 2, and section 18 of the Act on Associations, the ban prohibits recruitment of jihadist fighters and the use of IS symbols and social media propaganda. (Bennett, supra; Text of the ban [in German], Ministry of the Interior (last visited Oct. 30, 2014); Act on Associations [in German], Aug. 5, 1964, BGBl. I at 593, last amended by Gesetz [G], Dec. 21, 2007, BGBl. I at 3198; see also Verbot der Organisation Islamischer Staat [Ban of the Islamic State Organization], Drucksache 18/2678 (Sept. 25, 2014), German Parliament website.)

The ban states that the activities of the Islamic State association violate criminal law and are directed against the constitutional order and the notion of international understanding. (Text of the ban, item 1.) The ban prohibits the operation of the Islamic State within German territory (more specifically, within the territory covered by the Act on Associations). (Id. item 2.) It also prohibits the public promotional use of "Islamic State" in meetings or in writings, in sound or picture productions, or in images or representations that can be distributed or intended for distribution. The prohibition applies in particular to a set of six logos that are reproduced in the text of the ban. (Id. item 3.) Under the ban, the assets of the IS are to be seized and confiscated by the Federal government, within the scope of the Act on Associations. (Id. item 4.) The property of third parties will also be seized and confiscated to the extent that their efforts had promoted in Germany the transfer of classified information to the IS or if the parties had intended to support such efforts. (Id. item 5.)

Author: Wendy Zeldin More by this author
Topic: Terrorism More on this topic
Jurisdiction: Germany More about this jurisdiction

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Egypt: Law Students Protest Ban on Being Hired as Prosecutors

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(Oct 31, 2014) On October 20, 2014, a group of law students who had been denied positions in Egypt's public prosecution service filed a petition before the country's administrative court to repeal the decision that had been issued by the Supreme Council of the Judiciary to exclude them. (The Educational Background of Parents Threatens the Professional Future of 138 Law Students [in Arabic], EL-BALAD (Sept. 20, 2014).)

In June of 2013, 600 law students were approved for hiring as prosecutors. However, in September of the same year, the Supreme Council of the Judiciary issued a decision prohibiting 138 of those students from being hired. According to the Council, the reason for the decision was that the students' parents do not have bachelor's degrees. (Id.) The decision is considered to be the first in the history of the Egyptian judiciary on limiting the hiring of prosecutors based on the candidates' social class. (Patrick Kingsley, Egypt in Classism Row over Prosecutors Sacked Because Parents Had No Degrees, THE GUARDIAN (Oct. 21, 2014).)

In response, the excluded law students filed a petition before the administrative court claiming that the decision issued by the Council is unconstitutional. The lawyers for the students announced that the decision is in violation of article 53 of the Egyptian Constitution, which states that "all citizens are equal before the law." (The Educational Background of Parents Threatens the Professional Future of 138 Law Students, supra; Constitution of the Arab Republic of Egypt 2014 [unofficial English translation by the State Information Service].) The students' lawyers also referred to another clause in the same constitutional provision, which provides that "[t]he state shall take necessary measures for eliminating all forms of discrimination … ." (Egyptian Constitution of 2014, art. 53 ¶ 3.)

Author: George Sadek More by this author
Topic: Administrative law and regulatory procedures More on this topic
 Education More on this topic
 Judiciary More on this topic
 Constitution More on this topic
Jurisdiction: Egypt More about this jurisdiction

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Hong Kong: Draft Guidelines for Competition Ordinance Issued

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(Oct 31, 2014) Hong Kong's Competition Commission and Communications Authority jointly issued drafts of six guidelines for public comment. The guidelines, published on October 9, 2014, are proposals developed to go with the Competition Ordinance, passed by the Legislation Council on June 12, 2012. (Draft Guidelines Under the Competition Ordinance - 2014, Competition Commission website (last visited Oct. 27, 2014); Competition Ordinance, Cap 619 (as last updated Mar. 3, 2014), BILINGUAL LAWS INFORMATION SYSTEM (BLIS).)

The Competition Ordinance

The Competition Ordinance prohibits anti-competitive actions and has provisions on how such conduct can be investigated, how the law can be enforced, and how cases are to be adjudicated. (Competition Ordinance – Overview, Competition Commission website (last visited Oct. 27, 2014).) According to the Competition Commission, the draft guidelines specify how the Commission "expects to interpret and give effect to the three competition rules in the Ordinance." (Press Release, Competition Commission and Communications Authority Publish Draft Guidelines Under the Competition Ordinance (Oct. 9, 2014).) Those three rules prohibit:

  • making or giving effect to agreements or decisions or engaging in concerted practices that have as their object or effect the prevention, restriction or distortion of competition in Hong Kong;
  • for businesses with a substantial degree of market power in a market, engaging in conduct that has as its object or effect the prevention, restriction or distortion of competition in Hong Kong; and
  • completing mergers that have or are likely to have the effect of substantially lessening competition in Hong Kong. The scope of application of the merger rule is limited to carrier licenses issued under the Telecommunications Ordinance. (Competition Ordinance – Overview, supra; Telecommunications Ordinance, Cap 106 (as last updated Aug. 2, 2012), BLIS.)
Draft Guidelines

The guidelines now under development include one each on the three rules in the Competition Ordinance plus guides on complaints, investigations, and applications for decisions. Comments on these six drafts may be submitted, in writing, to either the Competition Commission or the Communications Authority and will be posted on the Commission's website; any comments with confidential information can be posted in a modified form. Views on the three guidelines concerning complaints, investigations, and applications are due by November 10, 2014, and those on the rules by December 10, 2014. (Competition Ordinance – Overview, supra.)

Author: Constance Johnson More by this author
Topic: Competition and antitrust More on this topic
Jurisdiction: Hong Kong More about this jurisdiction

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China: Rules Revised to Facilitate Overseas Investments

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(Oct 31, 2014) On September 6, 2014, China's Ministry of Commerce (MOFCOM) released the revised Administrative Measures for Overseas Investment (Measures). (Jingwai Touzi Guanli Banfa, MOFCOM Order [2014] No. 3 (Sept. 6, 2014), MOFCOM website; English translation available through Westlaw China online subscription database.) Taking effect on October 6, 2014, the new Measures repealed the Administrative Measures for Overseas Investment that MOFCOM had promulgated in 2009. (Id. art. 39.) This development followed a November 2013 decision to reform the regulatory approval process in order to promote greater outbound investment. (Zhonggong Zhongyang Guanyu Quanmian Shenhua Gaige Ruogan Zhongda Wenti de Jueding [Decision of the Central Committee of the Communist Party of China on Several Major Issues on Comprehensively Deepening Reforms] CHINA.ORG.CN (Nov. 12, 2013); English translation available through Westlaw China online subscription database.)

In December 2013, the State Council promulgated the Catalog of Investment Projects Subject to Government Verification and Approval (2013 Version) (Catalog). (Guowuyuan Guanyu Fabu Zhengfu Hezhun de Touzi Xiangmu Mulu de Tongzhi (Guo fa 2013) [Notice of the State Council on Promulgating the Catalog of Investment Projects Subject to Government Verification and Approval] [2013 version], No. 47, GOV.CN (Dec. 2, 2013); English translation available through Westlaw China online subscription database.) The revised Measures specify the detailed requirements for those projects included in the Catalog, including provisions aimed at simplifying the processing of applications, and delegate some powers to lower administrative bodies.

A media release published by MOFCOM on September 9 stated that China's total outbound investment increased 22%, to US$107.84 billion, in 2013. (MOFCOM, SAFE, National Bureau of Statistics Jointly Issued the Annual Statistical Bulletin of China's Outward Foreign Direct Investment [in Chinese], MOFCOM website (Sept. 9, 2014).)

Highlights of the Measures

The Measures make record-filing, rather than verification and approval, the default rule. The entity making an overseas investment will be required to file a record of the investment with MOFCOM or the relevant provincial competent commerce department (PCCD). As in the past, investments in listed sensitive countries, regions, or industries will still be examined and approved by MOFCOM or the relevant PCCD. (Id. art. 6.) Centrally-administered enterprises must report to MOFCOM for record-filing, while a local enterprise must report to the PCCD in its province of domicile. (Id. art. 9.) This division of administrative and supervisory powers related to record-filing is designed to help speed the investment process.

Furthermore, the Measures clarify and expand the definitions of enterprises and of overseas investment activities, stating that "enterprise" does not include non-financial enterprises and natural persons. (Id. art. 2.) The activities that are governed by the Measures include:

  • the activities whereby an enterprise duly established within the territory of China, through a new establishment, merger and acquisition, etc., holds the ownership, controlling power, rights of operation and management, and other rights and interests of a non-financial enterprise overseas, or acquires the ownership, controlling power, rights of operation and management, and other rights and interests of an existing non-financial enterprise overseas (id.);
  • outbound investments by public institutions that qualify as legal persons and the establishment of overseas branches by enterprises (id. art. 36); and
  • investments in Hong Kong, Macao, and Taiwan (id. art. 37).

In addition, the Measures modify the time limit for the approval of applications for investments in listed sensitive countries and industries. MOFCOM must make a decision on whether to approve an application submitted by a centrally-administered enterprise within 20 working days after acceptance of the application, while a PCCD must complete the process within 15 working days. (Id. art. 12.)

Finally, the Measures introduce for the first time criminal liability for certain acts. Those acts will constitute a criminal offense if the enterprises or the staff members of MOFCOM and PCCDs seriously violate the Measures. (Id. arts. 29, 31, & 33.)

Related Measures of NDRC on Filing

On May 8, 2014, the National Development and Reform Commission (NDRC) issued the Administrative Measures for Ratification and Filing of Outbound Investment Projects, which together with the revised Measures streamline the approval regime for outbound investment. (Laney Zhang, China: New Rules Relax Government Approvals for Overseas Investment, GLOBAL LEGAL MONITOR (July 3, 2014).) Both of these instruments extend the principles of the Catalog, because typically an overseas investment by a Chinese enterprise will be supervised by both the NDRC and MOFCOM, as has been the practice for many years. (Id. art.5; Catalog, supra.)

SAFE Notice

In a related action aimed at supporting offshore investments and financing by Chinese citizens and residents, in July 2014 the State Administration of Foreign Exchange (SAFE) published the Notice of the SAFE on the Administration of Foreign Exchange Involved in Overseas Investment Financing and Return on Investment Conducted by Residents in China via Special-Purpose Companies (Notice). (Guojia Waihui Guanliju Guanyu Jingnei Jumin Tongguo Teshu Mudi Gongsi Jingwai Tourongzi ji Fancheng Touzi Waihui Guanli Youguan Wenti de Tongzhi, Hui Fa [2014] No. 37, SAFE.GOV.CN (July 4, 2014); English translation available through Westlaw China online subscription database.)

The revised Measures discussed above are aimed at outbound investments by enterprises, while the Notice is focused on overseas investments by citizens and residents. Promulgated under the China's "going global" strategy, they both amend the administrative examination system of overseas investment in order to encourage such investments. (Zhonggong Zhongyang Guanyu Quanmian Shenhuan Gaige Ruogan Zongda Wenti de Jueding, supra.)

Prepared by Lana Xiao Yu, Law Library Intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.

Author: Laney Zhang More by this author
Topic: Foreign investments More on this topic
 Investments More on this topic
Jurisdiction: China More about this jurisdiction

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Mexico; United States: Agreement on Customs Security

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(Oct 30, 2014) In October 2014, customs authorities from the United States and Mexico signed an agreement to mutually recognize two customs security programs that are currently in place in the two countries, with the goal of creating a common structure aimed at streamlining and securing cargo trade. The two programs are the U.S. Customs and Border Protection (CBP)'s Customs-Trade Partnership Against Terrorism (C-TPAT) and its Mexican counterpart, known as the New Certified Companies Scheme (Nuevo Esquema de Empresas Certificadas, or NEEC). (Press Release, CBP, U.S., Mexico Sign Mutual Recognition Arrangement (Oct. 17, 2014).)

C-TPAT and NEEC are voluntary business-government programs whose goal is to foster cooperation between the public and private sectors by establishing requirements that participants in supply chains (including carriers, manufacturers, importers, and customs brokers) agree to meet in exchange for benefits such as a simplified cargo processing. (Id. See also C-TPAT: Customs-Trade Partnership Against Terrorism, CBP website (last visited Oct. 28, 2014); Nuevo esquema de empresas certificadas (NEEC), Servicio de Administración Tributaria [Mexico's Revenue Service] website (last visited Oct. 28, 2014).)

According to a press release issued by the CBP, the mutual recognition agreement between Mexico and the United States will provide important benefits, including fewer inspections and a simplified approval process for cargo, which will reduce processing times for cargo trucks at the U.S.-Mexico border. (U.S., Mexico Sign Mutual Recognition Arrangement, supra; Press Release, Embassy of the United States in Mexico, Mexico and U.S. Meet to Advance Expedited Transit of Persons and Goods Across the Border Through Improved Border Security (Oct. 22, 2014).)

Mexico is the ninth country that has reached a mutual recognition agreement of this kind with the United States. The previous arrangements are with Canada, the European Union, Israel, Japan, Jordan, New Zealand, South Korea, and the Taipei Economic and Cultural Representative Office. (U.S., Mexico Sign Mutual Recognition Arrangement, supra.)

Author: Gustavo Guerra More by this author
Topic: Customs enforcement More on this topic
 International affairs More on this topic
Jurisdiction: Mexico More about this jurisdiction
 United States More about this jurisdiction

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