Since April 2020, we have partnered with foreign law firms to monitor and report on the most relevant government measures worldwide addressing the COVID-19 pandemic. This most recent (and final) version of the guide includes a concise, corporate-focused and user-friendly list of government measures and covers areas like tax, restructuring, business immigration, government contracts and international trade.

View/Download (PDF): Country-by-Country Guide:
Government Measures Taken in Response to COVID-19.

This last update includes new information as of March 2021 for Australia, Belgium, Canada, Chile, Czech Republic, European Union, Germany, Honduras, Hungary, India, Indonesia, Japan, Mexico, Panama, Philippines, Poland, Republic of Korea, Spain, Turkey, United Kingdom and United States.

Many countries around the world continue to maintain health and safety measures to restrict public gatherings or movement of persons to address rising numbers of COVID-19 cases and have rolled out plans for vaccination and safe reopening. Regional curfews or lockdown requirements are maintained primarily based on the numbers of infections within local populations. In the United States, cities, counties and states continue to differ in their approaches to both business closures/reopenings and mask requirements. In Asia and the Americas, the general trend shows countries adopting risk-based systems to identify high-risk populations and restricting their activities accordingly. In Asia, international travel restrictions have been eased in some countries, with a focus on workers. That said, following the discovery of new COVID-19 variants, some countries have introduced travel bans from countries with the presence of the new variants.

Governments continue to support workers and employers affected by the economic instability caused by the pandemic. Most have taken various measures, including tax deferrals, incentives or exemptions and loan facilities, to address the difficulties endured by businesses. Other measures include business subsidies, short-term compensation procedures, social security benefits and other regulations to ensure that workers receive personal protective equipment and do not face discrimination.

As to government contracts, some governments have enacted measures to address COVID-19-related economic difficulties, including easing the termination of contracts for force majeure or introducing emergency procurement regimes to speed up the procurement process. Further, some governments have introduced measures to facilitate the rollout of COVID-19 vaccines. Additionally, there is increased attention on investment and regulations involving critical infrastructure in the Americas and Europe to support COVID-19 efforts.

In the area of international trade, some countries continue to restrict exports of certain personal protective equipment (PPE) and have introduced measures subjecting foreign investments to increased scrutiny, especially investments linked to public health emergencies. Foreign investment in health care and related infrastructure continues to be regulated in light of the pandemic around the world.

On April 12, 2021, the State Department’s Directorate of Defense Trade Controls (DDTC) issued additional guidance regarding changes that have been made to the International Traffic in Arms Regulations (ITAR) pertaining to export of defense articles or services to Russia. The guidance summarizes changes that were implemented on March 18, 2021, when the Departments of Commerce, State and the Treasury imposed sanctions and export restrictions on numerous Russian officials and government entities in response to the Russian Federation’s imprisonment and alleged previous poisoning of opposition figure Aleksey Navalny. See International Trade Update of March 8, 2021.

Most notably for DDTC, effective March 18, 2021, the ITAR was amended at § 126.1 to include Russia in the list of countries “subject to a policy of denial for exports of defense articles and defense services,” with limited exceptions. The guidance issued by DDTC reiterates this new licensing review policy towards Russia and offers answers to several questions that the new policy of denial has raised. DDTC has clarified that while no new export licenses or other approvals that identify Russia and do not satisfy one of the carve-outs will be issued (including amendments to existing agreements and licenses in furtherance of existing agreements), existing licenses remain valid. DDTC will contact holders of exiting and currently valid licenses in the event that the “existing license or other approval is terminated, suspended, or otherwise revoked.” Further, DDTC has clarified that license applications related to temporary imports “will continue to be adjudicated on a case-by-case basis consistent with U.S. foreign policy and national security considerations.” As for ITAR-related brokering activities involving Russia, DDTC states that it will deny requests for approval of any brokering activities.

DDTC has also issued a series of FAQs. Regarding all pending Russia license applications filed prior to March 18, 2021, DDTC is assessing those applications “to determine [Russia’s ] role in the transaction. If the transaction does not meet one of the carve-outs, the license application will be denied. If it does meet one of the carve-outs, the license application will be reviewed on a case-by-case basis.” Another FAQ confirms that, generally and with limited exceptions, license exemptions may no longer be used for exports to Russia. With regard to Technical Assistance Agreements (TAA), another FAQ states that the policy of denial for Russia does apply to “in furtherance of licenses” that do not involve Russia but where a related overarching TAA does involve Russia. Finally, DDTC confirms in one FAQ that these ITAR amendments do not have an expiration date.

The U.S. Department of Commerce’s Bureau of Industry & Security (BIS) issued a final rule amending the Export Administration Regulations to eliminate most reporting requirements related to open source encryption software and certain “mass market” encryption items and to revise the Commerce Control List.

Key Notes:

  • BIS issued a final rule eliminating certain reporting requirements relating to “publicly available” encryption source code and beta test encryption software and certain “mass market” encryption products.
  • The rule also makes technical revisions to 22 ECCNs in Categories 0-3, 5-6 and 9 of the Commerce Control List.
  • The final rule is effective immediately.

View this full client update in HTML or PDF format.

On April 8, 2021, the Department of Commerce’s Bureau of Industry and Security (BIS) issued a final rule adding seven Chinese supercomputing entities to the Entity List for “conducting activities that are contrary to the national security or foreign policy interests of the United States” due to their support of China’s military modernization and “other destabilizing efforts.”

These Chinese entities are:

  • Tianjin Phytium Information Technology
  • Shanghai High-Performance Integrated Circuit Design Center
  • Sunway Microelectronics
  • The National Supercomputing Center Jinan
  • The National Supercomputing Center Shenzhen
  • The National Supercomputing Center Wuxi
  • The National Supercomputing Center Zhengzhou

According to a statement issued by BIS, these entities “are involved with building supercomputers used by China’s military actors, its destabilizing military modernization efforts, and/or weapons of mass destruction (WMD) programs.” Secretary of Commerce Gina M. Raimondo added, “Supercomputing capabilities are vital for the development of many – perhaps almost all – modern weapons and national security systems, such as nuclear weapons and hypersonic weapons. The Department of Commerce will use the full extent of its authorities to prevent China from leveraging U.S. technologies to support these destabilizing military modernization efforts.”

The listing of these seven entities on the Entity List is effective as of April 8, 2021. Their listing imposes a license requirement that applies to all items subject to the Export Administration Regulations (EAR) and removes any license exceptions on exports, reexports or transfers (in-country) to these entities. In applying for any license to export to these entities, BIS has adopted a license review policy of a presumption of denial.

On April 8, 2021, the Department of the Treasury issued its most recent listing of foreign countries requiring cooperation with an international boycott. The countries on this list has been fairly static for years; however, the United Arab Emirates (UAE) has been removed due to the country’s issuance of Federal Decree-Law No. 4 of 2020, which repealed its law mandating a boycott of Israel and, according to Treasury, “the subsequent actions that the UAE government has taken to implement a new policy.”

Remaining on the list are the following countries that continue to participate in the boycott of Israel: Iraq, Kuwait, Lebanon, Libya, Qatar, Saudi Arabia, Syria and Yemen.

U.S. companies conducting business in these listed countries are reminded that the Department of Commerce’s Bureau of Industry and Security (BIS) is charged with administering and enforcing the antiboycott laws under the Export Administration Act. These antiboycott laws were adopted to encourage and, in some circumstances, require U.S. companies to refuse to participate in foreign boycotts that the U.S. government does not sanction. According to BIS, the laws “have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy.” Together, the Department of the Treasury (via the 1976 Tax Reform Act) and BIS’s Office of Antiboycott Compliance have oversight as to efforts to counteract the participation of U.S. persons and companies in other countries’ economic boycotts.

On April 5, 2021, the U.S Court of International Trade (CIT) published a summary judgment opinion invalidating former President Donald Trump’s executive order, Proclamation 9980, which imposed 25 percent tariffs on various imports of aluminum and steel derivative articles pursuant to Section 232 of the Trade Expansion Act of 1962. The CIT found in favor of plaintiff PrimeSource Building Products, Inc., a U.S. importer of various steel derivative products, which argued that Proclamation 9980 was issued after a key statutory deadline in the proceeding.

In January 2021, the CIT dismissed all claims but one in PrimeSource Building Products, Inc. vs. United States, et al., finding that a “genuine issue of material fact” existed for the remaining claim concerning the issuance of Proclamation 9980 after a statutory deadline established following the submission of the Department of Commerce’s Section 232 investigative report to the president. See Update of January 28, 2021, for additional background on the case and prior CIT dismissal of the other claims. At the time of its January 27, 2021 order, the CIT instructed the parties to submit by February 26, 2021, a joint scheduling report for briefing the remaining claim. Instead of filing a joint schedule, the parties on March 5, 2021 filed a joint status report, stating that the defendants “expressly waived ‘the opportunity to provide additional factual information that might show that the essential requirements of [the relevant statutory provision]’ were met.” The parties instead agreed that there was no reason for the CIT to delay any final judgment.

Since the defendants declined to present additional evidence and did not previously address that issue, the CIT found that the “defendants having waived any argument that Proclamation 9980 was issued within the 105-day time period beginning on the President’s receipt of [the Section 232 Steel Report], there are no contested issues of fact.” The CIT issued summary judgment, declaring Proclamation 9980 “invalid as contrary to law” and directed that all entries affected by this litigation be: (i) liquidated without the assessment of duties if still pending; and (ii) refunded if such duties have already been collected and liquidated.

The U.S. government is expected to appeal the CIT decision to the U.S. Court of Appeals of the Federal Circuit, relying on the dissenting opinion of CIT Judge Miller Baker.

On April 2, 2021, President Joseph Biden issued an Executive Order terminating a previously declared national emergency and related sanctions against certain persons involved with the International Criminal Court (ICC). In June 2020, President Trump issued Executive Order 13928 declaring a national emergency due to the ICC’s “illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan.” The ICC operates under the auspices of the Rome Statute, prosecuting cases of international concern, including war crimes and crimes against humanity. The United States is not a party to the Rome Statute. OFAC issued sanctions against certain ICC personnel in October. See Update of October 5, 2020.

President Biden terminated the Executive Order and stated that he has determined that, “although the United States continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the United States and its allies absent their consent or referral by the United Nations Security Council and will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction, the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”

On March 31, 2021, the three-judge panel at the U.S. Court of International Trade (CIT) assigned to the litigation involving the potential refund of Section 301 tariffs on certain imports from China issued its fourth procedural order in the proceeding. In the order, the CIT: (1) accepted the first-filed case as the sample case for the proceeding – HMTX Industries, et al. v. United States, et al. filed by Akin Gump — staying all other cases but allowing a plaintiff to move to lift the stay of a particular case if it consults with the other parties and the plaintiff group’s steering committee before filing a motion to show good cause; (2) accepted the plaintiff group’s proposed 15-person steering committee with Akin Gump serving as the CIT’s point of contact; (3) set an April 12, 2021 deadline for a joint status report that will provide a briefing schedule and identify any issues requiring case management intervention; and (4) refused to address at this time the availability of Section 301 tariff refunds regardless of the liquidation status of the subject entries, explaining that no motion is before it and that it “will not issue an advisory opinion on the matter of relief” and encouraging the parties instead to work together to determine if there is injunctive relief that can be effectuated in the “most administratively efficient manner both for the court and for the relevant agencies.” The order followed the plaintiff group’s March 19, 2021 proposal in response to the previous CIT procedural order and the U.S. government defendants’ March 26, 2021 filing in rebuttal.

In a de facto addendum to the March 31, 2021 order, the CIT issued its fifth procedural order on April 1, 2021, clarifying that a plaintiff in a case that has been stayed may amend its complaint “either as a matter of course or with the court’s leave or the opposing parties’ consent.”

Thompson Hine attorneys and trade professionals will continue to monitor and report on significant developments in this litigation.

The Office of the U.S. Trade Representative (USTR) has released its annual National Trade Estimate Report on Foreign Trade Barriers that addresses the status of foreign trade and investment barriers to U.S. exports worldwide. This is the U.S. government’s major annual report on the barriers to U.S. exports of goods and services, investment and electronic commerce that U.S. exporters and other businesses encounter globally. The report discusses the largest export markets for the United States, covering 61 countries, the European Union, Taiwan, Hong Kong and the Arab League, and includes each of the United States’ 20 free trade agreement partners and other economies and country groupings. Together, these countries and groupings account for over 99 percent of U.S. goods trade and 87 percent of U.S. services trade.

The annual report notes that trade barriers often “elude fixed definitions” but are, for the purposes of the report, “broadly defined as government laws, regulations, policies, or practices that protect domestic goods and services from foreign competition, artificially stimulate exports of particular domestic goods and services, or fail to provide adequate and effective protection of intellectual property rights.” The report continues to classify foreign trade barriers in 11 categories:

  • Import policies (e.g., tariffs and other import charges, quantitative restrictions, import licensing, customs barriers and shortcomings in trade facilitation, and other market access barriers);
  • Technical barriers to trade (e.g., unnecessarily trade restrictive standards, conformity assessment procedures, or technical regulations, including unnecessary or discriminatory technical regulations or standards for telecommunications products);
  • Sanitary and phytosanitary measures (e.g., trade restrictions implemented through unwarranted measures not based on scientific evidence);
  • Subsidies, including export subsidies (e.g., export financing on preferential terms and agricultural export subsidies that displace U.S. exports in third country markets) and local content subsidies (e.g., subsidies contingent on the purchase or use of domestic rather than imported goods);
  • Government procurement (e.g., “buy national” policies and closed bidding);
  • Intellectual property protection (e.g., inadequate patent, copyright, and trademark regimes and inadequate enforcement of intellectual property rights);
  • Services barriers (e.g., prohibitions or restrictions on foreign participation in the market, discriminatory licensing requirements or regulatory standards, local presence requirements, and unreasonable restrictions on what services may be offered);
  • Barriers to digital trade (e.g., barriers to cross-border data flows, including data localization requirements, discriminatory practices affecting trade in digital products, restrictions on the provision of internet-enabled services, and other restrictive technology requirements);
  • Investment barriers (e.g., limitations on foreign equity participation and access to foreign government-funded research and development programs, local content requirements, technology transfer requirements and export performance requirements, and restrictions on repatriation of earnings, capital, fees and royalties);
  • Competition (e.g., government-tolerated anticompetitive conduct of state-owned or private firms that restricts the sale or purchase of U.S. goods or services in the foreign country’s markets or abuse of competition laws to inhibit trade); and
  • Other barriers (barriers that encompass more than one category, e.g., bribery and corruption, or that affect a single sector).

This year’s report notes that the USTR is “scrutinizing foreign labor practices” that may impact labor obligations in free trade agreements and that the USTR is enhancing its monitoring and enforcement of environmental commitments under those agreements. The report contains lengthy sections pertaining to continuing trade barriers with China and Russia.

In the USTR’s press statement, the new USTR, Ambassador Katherine Tai, stated, “The 2021 NTE Report identifies a range of important challenges and priorities to guide the Biden Administration’s effort to craft trade policy that reflects America’s values and builds back better.” See Update of April 3, 2020 for information on and links to USTR’s 2020 NTE Report.

On March 26, 2021, the Department of Commerce’s Bureau of Industry and Security (BIS) announced that it will hold a virtual forum on April 8, 2021 to allow the public to address policy objectives and concerns over President Joseph Biden’s Executive Order 14017, which seeks to address the need for resilient, diverse and secure supply chains for critical and essential goods. Under the executive order, the president directed numerous departments and agencies to submit reports within 100 days on certain findings and policy recommendations. See Update of February 28, 2021 for additional details. The comments received during the virtual forum are intended to assist the Department of Commerce in preparing the report.

Representatives from Commerce and other U.S. government agencies will serve on the virtual forum panel. The forum will run from 2:00 to 5:00 p.m. (EDT). Registration is required and will close on April 1, 2021. Requests to make a presentation must also be received by that date. More information on the virtual forum is available at: https://www.bis.doc.gov/semiconductorforum.