Global Trade Compliance/Export Controls

Threats to global industry and international security can appear in many forms – overt, covert, and clandestine. Attorneys and in-house compliance personnel can help to develop Internal Compliance Programs (ICPs) to ensure a company is in compliance with U.S. Government and international laws. Once products are sold to a subsequent party and then exported, the commodities in the transaction are susceptible to diversion, and in many instances, unknowingly. As potential unauthorized recipients of sensitive U.S. origin commodities attempt to illicitly acquire and transship items internationally, they expose exporters to significant trade risks, which can subject an exporter to administrative or criminal penalties by a government. GTAC Experts bring a perspective to Global Trade Compliance not offered by any other company.

The U.S. Government promotes every company should know their end user, and if appropriate due diligence is not conducted to ensure a company is not providing its commodities to unauthorized end users, the company can be held criminally and/or administratively liable depending on the totality of the circumstances. Attorneys and in-house compliance personnel seldom have the experience in dealing directly with or in acting against nefarious actors. GTAC’s personnel have conducted criminal and administrative investigations related to export controls, conducted end-use monitoring for the U.S. government for commodities subject to the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR), compliance audits jointly with foreign governments in foreign companies, and assisted global industry in complying with U.S. laws. 

These collective experiences bring a global competence to assist in your company’s internal compliance and risk management programs.

Next to Compliance Auditing (to ensure your company has been in compliance with historic transactions), Sanctions Advising (to help ensure your company is in compliance with all sanctions and trade restrictions with Iran, Russia and China), Global Trade Compliance Training (to assist in how to identify risks and threats to your company) and Denied Party Screening (from the perspective of law enforcement, intelligence and corporate security professionals), we:

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U.S. Department of Justice Criminal Division
Evaluation of Corporate Compliance Programs (Updated March 2023)

The “Principles of Federal Prosecution of Business Organizations” in the Justice Manual describe specific factors that prosecutors should consider in conducting an investigation of a corporation, determining whether to bring charges, and negotiating plea or other agreements. JM 9-28.300. These factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one.” JM 9-28.300 (citing JM 9-28.800 and JM 9-28.1000). Additionally, the United States Sentencing Guidelines advise that consideration be given to whether the corporation had in place at the time of the misconduct an effective compliance program for purposes of calculating the appropriate organizational criminal fine. See U.S.S.G. §§ 8B2.1, 8C2.5(f), and 8C2.8(11). Moreover, Criminal Division policies on monitor selection instruct prosecutors to consider, at the time of the resolution, whether the corporation has made significant investments in, and improvements to, its corporate compliance program and internal controls systems and whether remedial improvements to the compliance program and internal controls have been tested to demonstrate that they would prevent or detect similar misconduct in the future to determine whether a monitor is appropriate.

This document is meant to assist prosecutors in making informed decisions as to whether, and to what extent, the corporation’s compliance program was effective at the time of the offense, and is effective at the time of a charging decision or resolution, for purposes of determining the appropriate (1) form of any resolution or prosecution; (2) monetary penalty, if any; and (3) compliance obligations contained in any corporate criminal resolution (e.g., monitorship or reporting obligations).

Because a corporate compliance program must be evaluated in the specific context of a criminal investigation, the Criminal Division does not use any rigid formula to assess the effectiveness of corporate compliance programs. We recognize that each company’s risk profile and solutions to reduce its risks warrant particularized evaluation. Accordingly, we make a reasonable, individualized determination in each case that considers various factors including, but not limited to, the company’s size, industry, geographic footprint, regulatory landscape, and other factors, both internal and external to the company’s operations, that might impact its compliance program. There are, however, common questions that we may ask in the course of making an individualized determination. As the Justice Manual notes, there are three “fundamental questions“ a prosecutor should ask:

  1. Is the corporation’s compliance program well designed?
  2. Is the program being applied earnestly and in good faith? In other words, is the program adequately resourced and empowered to function effectively?

  3. Does the corporation’s compliance program work in practice?

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