Given these aggressive enforcement actions, companies that deal in NSTs must ensure that their employees know the law and abide by it. Companies that fail to abide by export control laws may be subjected to government investigations that could result in severe penalties. And existing laws are likely to be enforced more aggressively, and perhaps even strengthened, given recent geopolitical events, particularly those related to the Arab Spring.
Companies should conduct comprehensive due diligence to help ensure compliance with those laws. Companies should, at a minimum, check restricted party lists issued by their national governments to ensure that a party to a transaction is not prohibited. (In the case of U.S. companies, for example, the Specially Designated Nationals list administered by the U.S. Department of Treasury’s Office of Foreign Assets Control should at least be checked.)
Companies should also consider obtaining signed statements from their customers that certify the ultimate destination, end user, and end use of NST technology. Given the increased scrutiny of NST exports, many companies may opt to err on the side of caution and withhold the sale or export when doubt exists on where, by whom, or how the technology will be used. Although no amount of due diligence can guarantee full compliance, the above compliance steps can help companies avoid civil and criminal liability.
David Hardin is an international trade expert in Washington, D.C., and an attorney at the law firm Miller & Chevalier.