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The International Law Section Gazette
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International Law Quarterly: Spring 2019
The
Spring 2019 issue of the International Law Quarterly - Focus on International Cross-Border Transactions is now available!
Click on the image below to download.
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International Law Section - Call for Committee Members
The International Law Section call for all Members to join their Committees for the 2019-2020 bar year.
Join Today!
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Save the Date - ILS Audio Webcasts 2019-2020
Save the date for the following ILS webcasts:
September 11, 2019: (3564) The Venezuela Sanctions: Staying Clear of Uncharted Mines (audio webcast) 12:00 p.m. - 1:00 p.m. by Aleksandar Dukic, Richard Montes De Oca, and Jacqueline Arango.
September 18, 2019: (3565) The RFE Dilemma: How to Strategize Your Response to RFEs for L and H Visas (audio webcast) 12:00 PM - 1:00 PM by Larry Rifkin, Elaine Weiss, Juan Carlos Freyre.
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During the Spring, the Florida Bar International Law Section proudly offered CLE webinars on a wide variety of topics, including H-1B Processing, Key Changes in EU General Data Protection Regulations, and FIFA Transfer Rules and the Court of Arbitration for Sports. All past programs have a link to register for on demand and downloadable podcasts for the next 18 months.
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International Law Section - Call for Member News
The Executive Board of the International Law Section calls for all Members to share news about their professional achievements, endeavors, and successes to be published in the Gazette and on the International Law Section website.
To share your professional achievements with the ILS Network, please submit all relevant information to
Davide Macelloni, Editor of the ILS Gazette.
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Join the International Law Section
If you are reading the Gazette, chances are that you are a practitioner or a student with an interest in International Law
, one of the most wide-ranging, exciting and challenging legal specialties. Everyone in our field knows how crucial it is to stay on top of diverse and evolving national legal regimes, and at the same time, the difficulty of keeping meticulously up-to-date on developments around the world.
The International Law Section (ILS) of The Florida Bar is here to help you, the practitioner, navigate both the everyday and big-picture challenges of our field. Our Section is your forum to share knowledge and best practices, and to meet and mingle with peers in professional collaborations that can only enhance your grasp of the specialty and your standing among clients and peers.
Let ILS membership assist you in developing a thriving international practice through peer network development that includes important shared learnings and reciprocal referrals of clients and casework.
If your practice transcends borders, join us in making this the authoritative, go-to forum for Florida and the gateway to the region for anyone practicing International Law.
Our Section is open to lawyers from other states and countries, full-time faculty at U.S. law schools, and full-time U.S. law students
, all of whom may participate as associate members. For more information regarding membership with the ILS, click HERE.
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Call for Info for the ILS Gazette "Member Spotlight"
The
International Law Section Gazette calls for all Members to share their biographies and professional achievements to support its newly introduced
"Member Spotlight" section. Featuring different members every week, the Member Spotlight aims to connect all members across the state of Florida and beyond, develop the ILS network, and encourage member participation to ILS events and initiatives.
To be featured on "Member Spotlight" and share your information and professional successes with the ILS Network, please email
Davide Macelloni, Editor of the ILS Gazette.
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Call for Articles - Fall 2019 ILQ: Focus on the Caribbean
The editors of the
International Law Quarterly
are soliciting articles for the Fall 2019 edition, which will focus on Caribbean topics and issues. Possible topics include travel to Cuba, the effects of sea level rise, demographic changes in the islands, or any other issue that inspires you to write. Timely articles not dealing with the Caribbean will also be accepted for inclusion in this edition.
The deadline for submission of draft articles is August 14, 2019.
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Call for Arbitrators - 2019 Foreign Direct Investment (FDI) International Arbitration Moot
The University of Miami School of Law will be hosting the
2019 Global Rounds of the Foreign Direct Investment (FDI) International Arbitration Moot
competition on its campus from
November 7-10, 2019
. The FDI Moot is an annual competition that helps future lawyers attain a practical understanding of the issues that arise out of obligations between host States and foreign investors. This year's hypothetical, which is set under the ICSID Rules, addresses interesting issues relating to provisional measures, denunciation of the ICSID Convention, multi-party claims, damage calculation and whether blocking of a social media platform/website amounts to a treaty breach. This event - held for the first time in Florida - will bring to Miami about 350 students, coaches and arbitrators from around the globe interested in international dispute resolution. It will provide a great opportunity to highlight Miami's growing importance as an arbitration hub as well as Florida's growing community of experienced international arbitration practitioners. The FDI Moot schedule will include several social and networking events. If you are interested in serving as a volunteer arbitrator, please register here
(once you sign up, make sure to indicate your availability for the Global Rounds in Miami). More details on the FDI Moot Miami 2019 are available here:
https://media.law.miami.edu/communications/events/fdimoot2019/.
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ILS Immediate Past-Chair - Carlos F. Osorio
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The Immediate Past-Chair of the International Law Section of the Florida Bar (2018-2019), Carlos F. Osorio, is founding partner of the law firm Osorio Internacional, P.A, (
www.osorioint.com
), focusing his practice on international disputes, ranging from commercial disputes, trust disputes, shareholder battles, marital disputes, and intellectual property disputes to frauds, currency frauds, and criminal investigations. His clients are quite often high net-worth individuals, families, and entrepreneurs from Mexico to Chile, the Caribbean, and Europe. He is a tri-lingual attorney, speaking English, Spanish, and Portuguese fluently. Osorio litigates in State and Federal Courts and has been admitted in Federal District Courts throughout the United States.
Osorio graduated from Phillips Exeter Academy ('95), Dartmouth College ('99) and earned a JD from the University of Miami in 2002, Cum Laude. He is Florida Bar Certified in International Law and has often lectured on the subject, and has been appointed as Special Counsel on International Law issues by the Bankruptcy Court for the Southern District of Florida.
Osorio has been very active in the ILS, serving as ILAT Chair (now iLaw) (2012), fundraiser, Legislative Committee Chair, Executive Committee Member, Treasurer, Secretary, Vice-Chair, Cuba Committee Member, and travelled to Cuba on behalf of the ILS in 2019, meeting with local dissidents. Osorio also spear headed the first Human Rights Conference for the ILS, held at the University of Miami in 2019, and an offshore comparative law conference in Panama, also held in 2019.
Born in Nicaragua, Osorio immigrated to the United States at a young age as a result of the Nicaraguan Civil War. Nevertheless, Osorio maintains very strong ties to Nicaragua and the Nicaraguan community and serves on the Board of Directors of The American Nicaraguan Foundation (ANF) and on the Advisory Board of The Fabretto Foundation, both charities focused on assisting the poor in Nicaragua.
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2017-2018 ILS Chair - Arnoldo B. Lacayo
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A partner at Sequor Law, Arnoldo Lacayo focuses his international litigation practice on financial fraud and asset recovery.
Lacayo has extensive experience litigating complex disputes in state and federal courts and has represented multi-national corporations, sovereign governments, receivers, trustees and other foreign officeholders in matters pending in U.S. Courts. Lacayo has also worked at length with the versatile 28 U.S.C. § 1782 discovery statute, including in one of the leading cases out of the Eleventh Circuit Court of Appeals.
A sought-after thought leader on anti-corruption matters and kleptocracy-related asset recovery, Lacayo's recent speaking engagements include an AIJA 2017 Insolvency Seminar in the Bahamas, the AIJA 2016 Half Year Conference in Chicago, the 2015 IBA Anti-Corruption Conference in Paris and the ABA Section of International Law's 2014 North America Forum in Vancouver. Lacayo is an active member of distinguished organizations including The Florida Bar's International Law Section, where he served as Chair of the Section during the 2017-2018 bar year.
Lacayo is admitted to all Florida state courts, the 11th Circuit Court of Appeals, the United States District Courts for the Southern and Middle Districts of Florida and the United States Bankruptcy Court for the Southern District of Florida.
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2016-2017 ILS Chair - Alvin F. Lindsay
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The former Chair of the International Law Section of the Florida Bar for the 2016-2017 bar year, Alvin F. Lindsay is a partner at Hogan Lovells in Miami. Lindsay focuses his practice on the litigation and arbitration of U.S. and international disputes, particularly in the construction, energy, infrastructure, and real estate industries. An experienced litigator in both Federal and State Courts, in most recent years Lindsay focused on trying cases before arbitral tribunals and dispute boards worldwide.
Lindsay is nationally recognized as a thought leader in e-discovery and for his use of cutting-edge technology in preparation and during trials. Complementing this use of technology, Lindsay's consummate writing and presentation skills, alongside his witness examination techniques, translate to the successful representation of clients.
A graduate of the University of Southern California, Lindsay earned his Juris Doctorate from the University of Miami School of Law, magna cum laude, and is the Chairman of the Hogan Lovells' Miami Office Pro Bono program. For additional information, please visit
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2015-2016 ILS Chair - Eduardo Palmer
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Eduardo Palmer is a sole practitioner with vast experience in the area of litigation over the past 30 years. He is a bilingual lawyer who practices commercial litigation, including international litigation and arbitration, and white collar criminal defense. He is a former partner and Chair of the International Litigation and Arbitration Group at Steel Hector & Davis LLP.
Palmer also served as Deputy Chief of the Economic Crimes Section of the United States Attorney's Office for the Southern District of Florida and as the International Affairs Coordinator for that office.
Palmer led the effort on behalf of the International Law Section of the Florida Bar to enact the Florida International Commercial Arbitration Act in 2010, the Glitch Fix Bill, which amended several international law statutes in Florida, in 2013, and helped draft Florida's Application of Foreign Law statute in 2014.
Palmer also served on the Board of the Miami International Arbitration Society and ICCA Miami 2014, Inc. Palmer teaches international commercial arbitration as an adjunct professor at Florida International University College of Law and civil procedure as an adjunct professor at IE University in Madrid, Spain. Mr. Palmer was also appointed to the Florida Supreme Court Committee on Standard Jury Instructions in Business and Contract Cases and served as Chair of the International Law Section of the Florida Bar for the 2015-2016 bar year. During Palmer's chairmanship, the ILS actively maintained a standing Amicus Committee to quickly address and respond to cases involving the application and interpretation of international law in Florida and provide guidance on the same to state and federal courts throughout the State of Florida.
Palmer graduated from the University of Florida College of Law with Honors in 1985 and subsequently clerked for United States District Court Judge, Kenneth L. Ryskamp, in the Southern District of Florida.
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2014-2015 ILS Chair - Peter A. Quinter
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The former Chair of The Florida Bar International Law Section for the 2014-2015 bar year, Peter A. Quinter is a shareholder in the Miami and Boca Raton offices of GrayRobinson, where he is Chair of the Customs and International Trade Group.
Quinter represents companies and individuals involved in international trade and transportation, including litigation in Federal Courts and the U.S. Court of International Trade, and advices clients on compliance with U.S. Customs and Border Protection (CBP) regulations, FDA regulations, and Office of Foreign Assets Control ("OFAC") sanctions.
Quinter is Board-Certified in international law by the Florida Bar, and was appointed by The Florida Bar to the International Law Certification Committee. Additionally, Quinter serves as Co-Chair of the Customs Law Committee of the American Bar Association International Law Section. An experienced and proven leader in international trade and customs, Quinter was appointed to the Florida District Export Council by the U.S. Secretary of Commerce.
Peter has been selected, for the past several years, to be listed in the prestigious Chambers USA legal directory in the section "International Trade: Customs Lawyers" because of his many accomplishments.
A graduate of Cornell University, Quinter received his Juris Doctorate from The American University College of Law.
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MDO Partners Featured at Managing Compliance Across Borders
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MDO Partners'
Managing Partner Richard Montes de Oca and Compliance Advisor and Chief Information Officer Mike Capote spoke at Managing Compliance Across Borders, an advanced executive program that took place June 26-28, 2019 at the Donna E. Shalala Student Centerin Coral Gables, Florida.
The firm collaborated with the University of Miami School of Law on the program, which was presented in association with Switzerland's University of St. Gallen Executive School of Management, Technology and Law. The three-day event served as an intensive and interactive executive-level program aimed at compliance, risk and audit management counsel and executives from firms and corporations around the world. The various panels provided an opportunity to discuss timely, critical, and practical global compliance insights on anti-corruption, including FCPA and anti-money laundering.
Richard Montes De Oca
led a panel of General Counsels from Mastercard, Ryder and Integra Connect on the General Counsel Perspective on the Future of Global Compliance. The panelists shared their perspectives on the importance of establishing a strong ethical culture. They emphasized the focus should not just be at the top of the organization, but also with middle managers and locally in various regions around the world.
In addition, the panel discussed how there has been an increase in budgets and resources for compliance as a result of the increasing expectations and significant scrutiny by regulators. Finally, the panel discussed the importance of striking the right balance between risk, compliance and business. And while compliance results in increasing costs in the short term, it pays dividends in the long run.
Mike Capote
joined the panel on Data Protection and Privacy Compliance: Cross-Border Comparisons, which had specialists from Hilton Grand Vacations, Kaufman Rossin, Security and Third-Party Risk Practitioner, and Salazar Law LLP. The panel compared and contrasted data privacy legislation/regulation by examining the way the rights of individuals, consent, data transfers/sharing, and enforcement activities are addressed across the globe.
During the discussion, Mike focused on the operational security requirements, best practices, and challenges in implementing the directives established by the current patchwork of data privacy laws in the US and abroad; i.e. GDPR (EU General Data Protection Regulation), LGPD (Brazilian General Data Protection Act), CCPA (California Consumer Privacy Act).
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British Airways and Marriott Face Hundreds of Millions in Fines for GDPR Violations
By Richard Montes De Oca* and Priscila Bandeira**
Early this week, the United Kingdom (U.K.)'s Information Commissioner's Office (ICO) published two statements regarding its issuance of notices of its intention to fine British Airways £183.39 million (or $230 million) and to fine Marriott International £99.2 million (or $123 million) for infringement of the General Data Protection Regulation (GDPR).
British Airways (BA):
In September 2018, BA notified the ICO of a cybersecurity incident which is believed to have begun in June 2018 and which exposed personal data of nearly 500,000 customers to cyber attackers. The attackers used a fraudulent site to harvest customers' data including log in, payment card, travel booking details, name and address information.
After being notified, the ICO conducted an investigation and concluded that BA had "poor security arrangements", which may have exposed customers' personal data.
The fine, which would be the largest one under GDPR so far, is around 1.5% of BA's annual revenue for the financial year that ended December 31, 2017. It is noteworthy that the fine could go up to 4% of the company's revenue. BA has already announced the probable penalty to the London Stock Exchange; however, the company's top executives have expressed "surprise and disappointment" with the fine and that BA will appeal from the notice of penalty, arguing that the company provided timely notification of the breach and that it cooperated with the ICO to assess the issue.
Information Commissioner Elizabeth Denham said that "people's personal data is just that - personal. When an organization fails to protect it from loss, damage or theft, it is more than an inconvenience. That's why the law is clear - when you are entrusted with personal data you must look after it. Those that don't will face scrutiny from my office to check they have taken appropriate steps to protect fundamental privacy rights."
Marriott International (Marriott):
In November 2018, Marriott disclosed that hackers had access to the reservation systems of many of its hotel chains for 4 years, which exposed personal data of approximately 339 million guests, of which around 30 million were residents of 31 countries in the European Economic Area (EEA), including 7 million in the U.K.
The personal data collected included names, addresses, credit card numbers, phone numbers, passport numbers, travel locations, and arrival/departure dates.
The ICO conducted an extensive investigation and confirmed that the cyber vulnerability started in 2014 within the systems of Marriott's subsidiary Starwood Hotels Group, which Marriott acquired in 2016. However, Marriott did not discover the vulnerability until September 2018 when an internal security tool flagged the unauthorized party's activity. Given the hackers' efforts to encrypt and/or remove data, Marriott was unable to decrypt the information until late November.
In its statement this week, after Marriott disclosed the possible fine in a filing with the U.S. Securities and Exchange Commission (SEC), the ICO also declared that it found that "Marriott failed to undertake sufficient due diligence when it bought Starwood and should also have done more to secure its systems." On the other hand, the ICO recognized that Marriott has cooperated with the ICO's investigation and has made improvements to its security arrangements.
With increasing enforcement of data protection laws by regulators such as the ICO and additional scrutiny by the SEC, FTC and other regulators involving cyberattacks and disclosures, it has become critical for companies to establish or enhance their Privacy and Data Protection Compliance Programs. MDO Partners encourages companies to conduct cybersecurity risk assessments, conduct pre-acquisition due diligence for data protection compliance, adopt robust privacy policies, enhance disclosure controls and adopt cyberattack investigation procedures to help mitigate the risks associated with cyberattacks and data breaches.
*Richard Montes De Oca is Managing Partner at MDO Partners, a boutique law firm that focuses on Corporate, International, and Real Estate Law, as well as Global Compliance and Business Ethics.
**Priscila Bandeira is a Global Compliance and Corporate Law Associate Counsel at MDO Partners, where she assists clients with corporate governance documentation, corporate formation, and international transactions. A graduate of the J.D./L.LM Joint Program at the University of Miami, Ms. Bandeira is also registered with the Brazilian Bar.
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The F-Visa and Income Tax Residency
By Geoffrey M. Wayne* and Axel Heydasch**
A non-citizen non-green card holder (NRA) can become a U.S. income tax resident by meeting the Substantial Presence Test (SPT) (i.e., by being present in the United States too many days in a calendar year). There are a number of exceptions to the SPT. This article focuses on the student exception.
If an NRA meets the student exception they are an "exempt individual" and their days in the United States do not count toward meeting the SPT. In other words, an exempt individual is not considered to be present in the United States for purposes of income tax residency and (subject to the exception discussed below) can continue to be taxed as an NRA even though they might be physically in the United States the entire year. We have encountered clients who are under the mistaken impression that their exempt status as students is limited to five calendar years. In fact, a student may continue to be an exempt individual after the fifth calendar year if the student can establish to the satisfaction of the Internal Revenue Service that he does not intend to permanently reside in the United States and continues to meet the requirements of his F visa.
A student is an individual
who is temporarily present in the United States under subparagraphs (F) or (M) of section
101(15)
of the Immigration and Nationality Act, or as a student under subparagraphs (J) or (Q) of that section and who substantially complies with the requirements for being so present. Family members (spouse and children) who accompany the student with a companion visa enjoy the same exempt status. The student exception is further leveraged when a non-earning or lower earning spouse is the student.
There is one "trap for the unwary". While NRAs are not subject to U.S. income tax on their capital gains which are not connected with a business in the United States (think- sale of Microsoft stock, though a sale of U.S. real estate is an important taxable exception), U.S. source (but not worldwide)
capital gains of an individual present in the United States more than 182 days in a calendar year are subject to income tax even if the individual is present under an F visa
. This trap only applies to U.S. source capital gains since the individual present under an F visa is still an exempt individual. If a family member who is accompanying the student anticipates recognizing a capital gain, that family member should consider limiting their presence to 182 days in that calendar year. Unlike the student who must be present to attend class, the accompanying family members may enter and depart the United States at will. An individual claiming to be an exempt individual is required to file IRS Form 8843 (though failure of a student to file does not appear to have the same consequences as failure to file by other types of exempt individuals).
Foreign nationals who intend to study in the United States are generally required to obtain an F-1 student visa. Accompanying family members are generally required to obtain an F-2 visa. Prior to the actual visa application, a prospective student must be accepted for a course of study by an educational institution which is certified by the Department of Homeland Security and enrolled in the Student Exchange and Visitor Program (SEVP).
Each SEVP certified school appoints a Designated School Official (DSO) who is responsible to enter all of the student's information into the SEVP database, which then issues the student an I-20 Certificate of Eligibility. The I-20 contains information regarding the student and the proposed course of study, including the student's financial information and the details of the specific academic program (only students who are enrolled in full-time academic programs are eligible for student visas). Once a prospective student has received the I-20 Certificate of Eligibility, they must apply for the F-1 visa at the U.S. consulate in the student's country of residence.
Requirements for the F-1 visa include the duly issued I-20 and proof of sufficient financial means to pay for the costs of the education (tuition, university housing, activity fees, etc.) and living expenses both for the student and any accompanying immediate family members throughout the academic year, including vacation periods, without the necessity to resort to employment. Further, the applicant must overcome the statutory presumption of an intent to immigrate to the United States. The applicant must show close ties to his country of residence and the intent to leave the United States upon the completion of the course of study.
F-1 students may engage in limited employment during studies, if the employment is required to complete the course material, such as internships coupled with academic requirements. Moreover, foreign students may apply for pre-graduate and post-graduate optional practical training (OPT). Prior to engaging in any OPT, a student requires the approval of the school's DSO, who enters the recommended OPT into the student's SEVIS record. Upon the school's approval, the student must apply for an employment authorization from the USCIS. As OPT is limited to 14 months beginning on the date of completion of the academic program, applications for OPT and the related employment authorization should be made well before the completion of the academic program.
F-1 visas are generally issued to cover the period of the approved course of study, as described in the student's I-20. F-2 visas do not permit the holder to apply for employment authorization in the United States.
While we would not counsel an NRA to become a student solely to avoid U.S. income tax residency, the desire to study and obtain a degree is not limited to twenty-somethings. If a middle aged or older person wishes to undertake a course of study satisfying the requirements above, they and their immediate family members can continue to be subject to income tax as NRAs.
*Geoffrey M. Wayne is the founder of Geoffrey M. Wayne, P.A., a boutique law firm located in Coral Gables, Florida focusing on individual and corporate issues related to international taxation.
**Axel Heydasch is the principal of Heydasch Law, PLLC, a law firm located in Coral Gables, Florida, which focuses on immigration and business law. Axel Heydasch has recently become of-counsel to the law firm of Geoffrey M. Wayne, P.A.
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July 29-30, 2019
Please join GrayRobinson's U.S. customs attorney, Peter Quinter, chair of the firm's U.S. Customs and International Trade Law practice group, for his presentation at the National Customs Brokers and Forwarders Association of America, Inc., Global Trade Educational Conference, which will take place in New Orleans, Louisiana on July 29-30, 2019. The conference will give customs brokers, freight forwarders, NVOCCs, OTI, service providers, importers, exporters and all global logistics professionals an opportunity to update themselves on industry developments. Quinter will present during the CES Session titled "Voluntary Self-Disclosures on Exports, Prior Disclosures on Imports: What to Think About Prior to Filing." For more information, please click here.
September 3-7, 2019
The 57th International Young Lawyers' Congress of the Association Internationale des Jeunes Avocats - International Association of Young Lawyers will take place in Rome, Italy. The event will be an opportunity to network and learn with a focus on
"Sustainability and the Law. Planet. People. Future." For more information or to register,
please
refer to the
event's website
.
September 22-27, 2019
The
International Bar Association
invites all members to attend its 2019 annual conference, which will be held in
Seoul, South Korea
, a thriving metropolis that mixes the traditional with the modern - from skyscrapers, high-tech subways, K-pop culture and K-beauty to Buddhist temples, palaces and street markets and a history going back 5,000 years. For more information or to register, please refer to the
event's website
.
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International Law Quarterly: Spring 2019
The new issue of the
International Law Quarterly - Focus on International Cross-Border Transactions
is now available.
Click on the image below to download
.
For all previous issues of the International Law Quarterly, please
click here
.
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