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The Administrative Conference of the United States - 2010 Plenary Session

Alternate TextOn December 9-10, 2010, the Administrative Conference of the United States (ACUS) met for the first time since 1995.  General Counsel Cameron Kerry represented the Department of Commerce and was joined by NOAA General Counsel Lois Schiffer.  The representatives heard remarks from ACUS Chairman Paul Verkuil and were officially sworn in as members of the Administrative Conference of the United States by Supreme Court Justice, Antonin Scalia.  On Thursday a recommendation for new agency procedures addressing Federal preemption of state law was offered.  After some discussion and revision the recommendation was accepted.  On Friday, members were divided into five breakout groups to brainstorm about the direction the ACUS might take in the coming months and years.  The next Plenary Session will take place on June 16-17, 2011, in Washington, D.C.

Expanding the Global Fight Against Corruption

By Cameron F. Kerry

Today, December 9, is International Anti-Corruption Day.  It’s an occasion to reflect on the global fight against corruption.

Bribery and corruption are trade barriers that impede our ability to rebuild the economy and meet President Obama’s goal of doubling U.S. exports. In the past year alone, American companies are believed to have lost out on deals worth about $25 billion because they refused to pay bribes.  

Companies should be able to compete for international business on the quality and price of their products and services, not bribes.   

“In too many places, the culture of the bribe is a brake on development and prosperity, President Obama has said. “It discourages entrepreneurship, destroys public trust, undermines the rule of law and stifles economic growth.” 

The United States has been a leader in combating transnational bribery since it enacted the Foreign Corrupt Practices Act (FCPA) in 1977.  It has been leading by example: U.S. enforcement agencies have filed 105 enforcement actions involving bribery of foreign officials since the beginning of 2009, and have collected over $2 billion in criminal and civil penalties.  In a review of U.S. efforts, the 38-country Working Group on Bribery of the Organization for Economic Cooperation and Development (OECD) recently applauded U.S. enforcement.

The United States has also been working to level the playing field internationally.  The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions now has 38 parties who undergo detailed peer review; the United Nations Convention Against Corruption has been joined by 148 nations and is stepping up compliance review; when the G-20 leaders met in Seoul last month, they endorsed President Obama’s proposal to broaden the G-20 anti-corruption agenda and adopted a comprehensive Anti-Corruption Action Plan.  

What we still need is the political will to implement and enforce these international anti-corruption mechanisms on the part of all countries with companies in international business.  Countries such as the United Kingdom and Germany are taking steps to improve laws and step up enforcement. Under France’s G-20 Presidency, we count on that country to set a strong example as well.

Economic powers like China and Russia are critical to the fight.  China, a G-20 member, does not currently have a law criminalizing bribery of foreign officials in international business transactions, but ongoing U.S.-China government-to-government exchanges appear to be making progress. China’s National People’s Congress has published for comment proposed amendments to its criminal law that would prohibit foreign bribery in international business and may take up the bill early next year. G-20 member Russia also has a foreign bribery law in the works.

Fighting corruption also requires cooperation between government and civil society. The Working Group on Bribery recently released Good Practice Guidance to help companies develop compliance programs for preventing and detecting foreign bribery. The G-20 will invite industry and civil society to increase voluntary compliance efforts and innovative public-private partnerships to prevent corruption as part of its Anti-Corruption Action Plan.

Because of the FCPA, businesses subject to U.S. jurisdiction have incorporated foreign bribery compliance programs into their corporate cultures. In fact, companies subject to the FCPA have said they rely upon it as a useful tool to shield themselves against bribe solicitations, refusing to pay them because they are illegal not only under local law, but also back home.

Strong preventive programs enable companies to lead by example and educate their employees about the importance of fighting corruption.  Companies known for their integrity and quality business practices are also more likely to be highly valued by capital markets.  Compliance enhances true competitiveness.  Governments seeking sustainable growth – as opposed to kleptocratic ones – prefer doing business with reputable companies that deliver high-quality products and services without undermining good governance.

We’d like more businesses from other countries to do the same.  The way to level the playing field is not to lower U.S. standards.  Rather, it is to set the bar high against corruption for all companies no matter where they are from by continuing to expand the network of trading partners participating in the fight against transnational bribery.

No nation or government, no business or NGO can end corruption in international business transactions alone. 

Cameron Kerry is General Counsel of the U.S. Department of Commerce.

US - China Commercial Relationship Policy Conference

Last week the US Department of Commerce jointly sponsored a Policy Conference to discuss the US-China Commercial Relationship with the Jackson School of International Studies at the University of Washington, the Henry Jackson Foundation, and the host of the event, Georgetown University.  The event featured a number of panels composed of experts from all fields discussing the state and future of US-China policy.  The event was bracketed by welcoming remarks from Commerce Secretary Gary Locke and concluding remarks by General Counsel Cameron Kerry.  Kerry also participated on the conference’s final panel in a discussion of the Impact of Developments in China’s Commercial Legal System

During his remarks, General Counsel Kerry spoke about the work of his office and the Department of Commerce in developing commercial rule of law in China.  He said, "With the Rule of law, business can predict and plan their investments, research and development, purchases, and sales with greater certainty.  Without it, they are left to guess about the costs and benefits of any deal."  He discussed the importance of both the US-China Joint Commission on Commerce and Trade (JCCT) and the Strategic and Economic Dialogue (S&ED) in fostering a strong bilateral commercial relationship.  He described the US-China Legal Exchange, a program designed to foster mutual understanding of the legal regimes governing trade and investment that began in 1983. He also spoke of his role as co-lead of the Transparency Dialogue, which has led to greater transparency in Chinese Government decision-making processes, including the promulgation of rules and regulations and dialogue on transnational bribery.  He sees the role of lawyers in both countries as crucial to promoting the rule of law. 

After his panel, General Counsel Kerry concluded the conference by addressing the need for a more sustainable, balanced trade with China.  He noted that the two nations are inextricably linked to each other’s wellbeing and that China must strive to be as free, fair, and open as the United States.  The conference has helped to set the stage for the JCCT, which the US will host in Washington, DC on December 14-15, 2010.

 

Read General Counsel Kerry's remarks here.

Files

General Counsel Kerry addresses the OECD 30th Annual Privacy Guidelines Conference in Jerusalem

Alternate TextYesterday, General Counsel Kerry participated in the keynote panel of the 30th Annual OECD Privacy Guidelines Conference.  The conference's opening remarks were delivered by Director General Guy Rotkopf of the Israeli Ministry of Justice and OECD Deputy Secretary-General Richard Boucher.  The keynote panel entitled “Privacy in the Context of the Internet -- Recording Everything and Forgetting Nothing?” featured GC Kerry, joined by Jennifer Stoddart, the Privacy Commissioner of Canada; Andrew Wyckoff, Director of Science, the Technology and Industry, OECD; and Marie Shroff, the Privacy Commissioner of New Zealand (as pictured from right to left). 

The group discussed a broad range of privacy principles and issues facing government officials and policy makers in both the private and public sectors.  In his remarks, Kerry expressed a desire to create a global environment that fosters meaningful tools to protect privacy.  He also focused on developing a policy that will create the trust that is necessary for consumers, industry and government to continue the innovation that has caused tremendous economic growth.  The first day of the conference then concluded with closing remarks from Israeli Prime Minister Benjamin Netanyahu.

More information on the OECD Privacy Conference here.

Files

General Counsel Kerry to co-chair new White House Subcommittee on Privacy

General Counsel Cameron F. Kerry will co-chair the White House Council’s new Subcommittee on Privacy and Internet Policy with Assistant Attorney General Christopher Schroeder.

As part of the Obama Administration’s commitment to promoting the vast economic opportunity of the Internet and protecting individual privacy, the National Science and Technology Council has launched a new Subcommittee on Privacy and Internet Policy. Populated by representatives from more than a dozen Departments, agencies and Federal offices, and co-chaired by the two of us, the subcommittee will develop principles and strategic directions with the goal of fostering consensus in legislative, regulatory, and international Internet policy realms.

Read More here.

Opening Day of the 2010 US-China Legal Exchange in Hangzhou, China

Alternate TextOn Monday, October 18, 2010, General Counsel Cameron Kerry and Vice Minister Chong Quan opened the 2010 US-China Legal Exchange in Hangzhou, China. The General Counsel and Vice Minister emphasized the importance of a frank and open exchange of ideas; the opening day certainly met that standard.

Courtney Gregoire, Director, National Export Initiative, International Trade Administration, offered a presentation on the Commerce-led National Export Initiative. John McInereny, Chief Counsel, Import Administration and Albert Hsu, Chief Economist, Import Administration, offered several presentations on the procedures and application of US Anti-Dumping and Countervailing Duty (CVD) law. The Chinese delegation offered comments and posed poignant questions.

In addition to an extremely productive Legal Exchange, General Counsel Kerry was warmly welcomed at Zhejiang University where he addressed and interacted with a group of law students and professors.

Tomorrow, the US delegation moves on to Wuhan for the second stop on the Legal Exchange before concluding in Chengdu on Friday, October 22, 2010.

The US-China Legal Exchange is a cooperative program between the Department of Commerce and China's Ministry of Commerce focused on enhancing commercial rule of law and promoting a stronger bilateral commercial relationship conducive to increasing exports

Secretary Locke to Appoint Special Master to Review NOAA Law Enforcement Cases, Restricts Use of the Asset Forfeiture Fund

On September 23, 2010, U.S. Commerce Secretary Locke announced sweeping reforms to increase accountability and transparency and strengthen the public’s trust in NOAA’s Office of Law Enforcement and the General Counsel for Enforcement and Litigation. Locke, invoking his authority under the Magnuson-Stevens Act, announced he will appoint the Honorable Charles B. Swartwood, III (Ret.) to serve as Special Master to review enforcement cases the Commerce Department’s Inspector General identified in its most recent report as problematic, some dating as far back as 2001. Locke will also ask the Special Master to review the complaints that the IG received that were not discussed in the September Report to see if review of those complaints is also warranted.  Judge Swartwood will make recommendations to Locke on whether to take action to modify or remit the penalties.

Judge Swartwood formerly served as Chief Magistrate Judge of the U.S. District Court, District of Massachusetts and currently serves as the Chairman of the Massachusetts State Ethics Commission.

OGC Offsite Retreat

US Patent & Trademark OfficeGeneral Counsel Kerry led an offsite training for all of the attorneys at the Department of Commerce on September 22, 2010.  This training at the United States Patent and Trademark Office in Alexandria marks the third time the entire Office of General Counsel (OGC) has met as a group during his tenure.  The meeting focused on two critical management priorities: collaboration and active client engagement.  Much of the legal work in the office of the General Counsel cuts across the entire Department.  The offsite was an excellent opportunity for attorneys to work collaboratively – breaking down the institutional barriers.  Client engagement early in the development of a new project allows attorneys to provide timely, high quality legal advice that helps the bureau or Department achieve its goal.

Deputy General Counsel Geovette Washington, along with Deputy General Counsel for Strategic Initiatives Quentin Palfrey presented OGC’s goals and priorities.  This presentation highlighted ways in which OGC strives to:

  • Make a lasting impact on rules for commerce that help restart and revitalize the economy and lay a foundation for sustainable US leadership in a global economy.
  • Build a culture of excellence, service, and creative collaboration in the Office of General Counsel and across the Department.
  • Support and protect the Administration and the Secretary of Commerce.

Promoting Security and Protecting Privacy in the Digital Age

General Counsel Cameron F. Kerry TestifiesOn Wednesday, September 22, 2010, General Counsel Cameron Kerry testified before the Senate Committee on the Judiciary. The Committee is holding a hearing on "The Electronic Communications Privacy Act: Promoting Security and Protecting Privacy in the Digital Age." General Counsel Kerry appeared on a panel with Associate Deputy Attorney General James A. Baker from the Department of Justice. 

General Counsel Kerry’s testimony reflects the work of the Department of Commerce Internet Policy Task Force on data privacy, cybersecurity, and other issues affecting the digital economy in the 21st Century.

General Counsel Kerry’s testimony reflects the work of the Department of Commerce Internet Policy Task Force on data privacy, cybersecurity, and other issues affecting the digital economy in the 21st Century.  The testimony discussed changes in the digital landscape since the Electronic Communications Privacy Act was enacted in 1986, especially in cloud computing, mobile phones, and location services.

Here is link to his prepared testimony (PDF).