Exporting from Europe

David Hayes is a director of David Hayes - Export Controls, a UK-based consultancy specializing in U.S. export compliance issues. He is also the director of UK affairs for Trade Compliance Group (previously MK Technology)..

Post-Brexit End-Use Controls and (Sometimes) Part 744

By David Hayes * The very heart of being a sovereign nation is providing security of one's borders, of one's internal situation, and security against anyone attacking one's nation. That is the very heart of what I believe is sovereignty. -- John Warner End-use controls in the United...

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To Share or Not to Share, That is the Question

By David Hayes * Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives . -- James Madison The Recent Focus There has been considerable focus in recent weeks on the subject of export...

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Completely Makes My Case (CMMC)

By David Hayes * Trust but verify - Ronald Reagan Those of you not into cybersecurity, please carry on reading; it may make your life easier or at least your business case for compliance. The delta between cybersecurity and export controls is ever increasing and will continue as...

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Understanding the British See-Through Rule

By David Hayes * "I once asked a young dissertation writer whether her suddenly grayed hair was due to ill health or personal tragedy; she answered: 'It was the footnotes.'" -- Joanna Russ, How to Suppress Women's Writing What British see-through rule? There really isn't one but...

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Not "Mass Market"!!

By David Hayes * Juliet: "What's in a name? That which we call a rose By any other name would smell as sweet." Romeo and Juliet (II, ii, 1-2) What's in a name? Rather a lot if you work in trade compliance in the cryptography arena. There are not many things that irritate...

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Civil Nuclear Export Controls: A Transatlantic Perspective

By David Hayes * It is the spirit and not the form of law that keeps justice alive. -- Earl Warren Given the resurgence, now on temporary hiatus along with most other things, of the civil nuclear industry, it is worth reviewing the differences between the civil nuclear export controls...

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Devices & Desires

By David Hayes * "We have followed too much the devices and desires of our own hearts." -- The Book of Common Prayer In the Beginning As a most welcome Christmas gift for many, State's Directorate of Defense Trade Controls (DDTC) tore themselves away from NORAD tracking Santa...

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Brexit and Export Licensing

By David Hayes * "It is unlikely that it was the intention of the founders to give any public official the ability to thwart the will of the people. Although they may have been concerned about mob rule and wanted a judicial system that would prevent that, they also recognized that in many...

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The Umpire Strikes Back

By David Hayes * Bad laws are the worst sort of tyranny. --Edmund Burke In the following articles I explored several aspects of the European Union's (EU) proposed reforms to the Dual-Use Regulation, more formally known as Regulation (EC) 428/2009. The process of review seemed...

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WMD; JCPOA; SPV; OMG; LOL

By David Hayes * "Divide and rule, the politician cries; Unite and lead, is watchword of the wise." -- Johann Wolfgang von Goethe By way of background, of which many readers will be aware, in July 2015 many nuclear-related sanctions against Iran were lifted under the Joint...

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To Infinity, and Beyond!

By David Hayes * The rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted.  -- James Madison It will come as no surprise to practitioners, though Buzz Lightyear may be disappointed, that compliance resources are...

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Data Protection and Trade Compliance

By David Hayes * The power of the lawyer is in the uncertainty of the law -- Jeremy Bentham The European Union (EU) General Data Protection Regulation (GDPR) has been much in the news recently. While data protection is not really mainstream for trade compliance professionals, arguably...

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CFIUK or "CFIUS Lite"?

By David Hayes * Nothing is more important to national security and the making and conduct of good policy than timely, accurate, and relevant intelligence. Nothing is more critical to accurate and relevant intelligence than independent analysis. -- Dennis C. Blair 'CFIUS Lite'...

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The Importance of "Technology"

By David Hayes * Bureaucracy defends the status quo long past the time when the quo has lost its status. -- Laurence J. Peter It is said that if you give a man a fish you feed him for a day; if you teach a man to fish you feed him for life. An aphorism, maybe, but one apparently lost...

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Priorities and Conflicts

By David Hayes * Under the attempt to perform the impossible there sets in a general disintegration. When legislation fails, those who look upon it as a sovereign remedy simply cry out for more legislation. -- Calvin Coolidge Export controls are for the most part based on international...

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UK Issues Light-Touch General License for Some Military Items

By David Hayes * Patriotism is supporting your country all the time, and your government when it deserves it. -- Mark Twain Perhaps the single aspect of Export Control Reform (ECR) with which no one can argue is the concept that not all military items merit the same level of control...

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The Unintended Consequences of Law

By David Hayes * If you really want to improve technology, if you want things to work better and be better, you've got to protect the person who spends a lot of effort, money, and time developing that new technology. -- James Dyson The law of unintended consequences is familiar to most...

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Trade Compliance Due Diligence in the UK

By David Hayes * "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." -- Abraham H. Maslow, Toward a Psychology of Being In "Turning Compliance into a Necessity, Not a Choice," I touched briefly on the topic of United Kingdom (UK)...

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The "Specially Designed" Dilemma

By David Hayes * I am very much afraid of definitions, and yet one is almost forced to make them. One must take care, too, not to be inhibited by them. -- Robert Delaunay At the outset of Export Control Reform (ECR), U.S. officials expressed the desire to remove "specially...

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Imminent Change in UK Financial Sanctions Enforcement

By David Hayes * If you prosecute a CEO or other senior executive and send him or her to jail for committing a crime, the deterrent effect in my view vastly outweighs even the best compliance program you can put in place. -- Jed S. Rakoff In late March 2016, Her Majesty's Treasury...

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Turning Compliance into a Necessity, Not a Choice

By David Hayes * "We need people who push boundaries rather than retreat inside them." -- Tim Fargo In the wake of both the U.S. presidential election and United Kingdom (UK) Brexit votes, there will inevitably be changes in approach toward many areas of policy. UK government...

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More on the EU Dual-Use Review

By David Hayes * Bureaucracies are inherently antidemocratic. Bureaucrats derive their power from their position in the structure, not from their relations with the people they are supposed to serve. The people are not masters of the bureaucracy, but its clients. -- Alan Keyes In a...

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A Look at European Union Export Controls

By David Hayes * In Europe the various ranks of society are, like the strata of the earth, fixed and fossilized. There can be no great change without a terrible upheaval, a social earthquake. -- Josiah Strong Britain has now voted for a British exit or "Brexit" from the European...

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Tying up Loose Ends?

Although our intellect always longs for clarity and certainty, our nature often finds uncertainty fascinating. -- Carl von Clausewitz Export control reform has divided opinion but it is fair to say that it has exercised the minds of practitioners around the globe like nothing before....

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Fire and Brimstone

By David Hayes Our foreign policy must have an ethical dimension and must support the demands of other peoples for the democratic rights on which we insist for ourselves. -- The Rt. Hon, Robin Cook MP, Her Majesty's Secretary of State for Foreign & Commonwealth Affairs, 1997-2001...

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Toward Professionalism

By David Hayes * "Without ambition, one starts nothing. Without work, one finishes nothing. The prize will not be sent to you. You have to win it." -- Ralph Waldo Emerson Many, most or all of us in the export compliance world would consider ourselves to be professionals. But can a...

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What Might be Outside the Brexit?

DETERMINED to lay the foundations of an ever-closer union among the peoples of Europe. (Preamble to the 1957 Treaty of Rome, establishing the European Economic Community) If you follow international news, you've probably read about Britain's potential exit from the European Union (EU), the...

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Bright Lines and Gray Areas

By David Hayes* Laws, like sausages, cease to inspire respect in proportion as we know how they are made. -- John Godfrey Saxe, 1869 Whatever your views -- for, against or somewhere in between -- regarding export control reform, it is difficult to argue with the goal to make a complex...

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A Contextual View of "The Basics"

By David Hayes* "Any fool can make a rule and any fool will mind it." -- Henry David Thoreau, Journal #14 Perhaps the most important aspect of compliance is context. This is true especially for companies new to the arena or those that have an unwelcome Damascene moment from failures...

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Oh, You Remembered our Anniversary

By David Hayes* The main dangers in this life are the people who want to change everything - or nothing. -- Nancy Astor, British politician (1879 - 1964) We are now just over a year into Export Control Reform (ECR) and the debate concerning whether it is a good/bad/indifferent...

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The EU: Catch-Up and Future Controls

By David Hayes* Every reform, however necessary, will by weak minds be carried to an excess, that itself will need reforming. -- Samuel Taylor Coleridge Updated Dual-Use Regulation to be Published - Finally! Many readers will be aware of the long-running saga of amending...

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Roots and Realities of EU's Russian Sanctions

By David Hayes* "The most puzzling development in politics during the last decade is the apparent determination of Western European leaders to re-create the Soviet Union in Western Europe." -- Mikhail Gorbachev What does the downing of America's U2 spyplane in 1960 have in common with...

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Export Control Reform: European Style

By David Hayes* Cautious, careful people, always casting about to preserve their reputations and social standing, never can bring about a reform. -- Susan B. Anthony (1820-1906) U.S. export control reform has thrown into contrast the need for other control systems -- namely in the...

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Is it Time to Start Afresh?

By David Hayes* "Begin, be bold, and venture to be wise." -- Horace The question I would like to pose is this: Would global business and governments benefit from starting again on export controls? This is, it must be admitted, a radical concept but one whose time may have come....

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Strategic Export Controls: Too Little Reform

By David Hayes* "You've got to think about big things while you're doing small things, so that all the small things go in the right direction." -- Alvin Toffler "Strategic Export Controls" is a term with which we are all familiar. After all, it's what we do. But is it? U.S....

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Flights of Fancy: Inconsistent Controls of Aviation Spares

By David Hayes* To paraphrase Mark Twain: Those people ....early stricken of God, intellectually -- the departmental interpreters of the laws... can always be depended on to take any reasonably good law and interpret the common sense all out of it. Why did the chicken cross the road?...

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Similarities and Differences: Complacency Is Not a Strategy

By David Hayes * "However beautiful the strategy, you should occasionally look at the results." -- Winston S Churchill Working with the European Union (EU) and U.S. export control systems on a daily basis probably makes most of us wonder why and how two systems established to...

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Quis Custodiet Ipsos Custodes?

By David Hayes* "The difficulty in dealing with a maze or labyrinth lies not so much in navigating the convolutions to find the exit but in not entering the damn thing in the first place. Or, at least not yet again. As a creature of free will, do not be tempted into futility." --...

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Pitfalls of UK Brokering Rules

By David Hayes* It is the spirit and not the form of law that keeps justice alive. -- Former U.S. Chief Justice Earl Warren (1891-1974) For compliance practitioners the mention of brokering and extraterritoriality results almost viscerally in thoughts of the International Traffic in...

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The Cost of Doing the Right Thing

By David Hayes "Pressures are just temptations in disguise and it's never been acceptable to give in to temptation. Ethics is about the way things ought to be, not about the way things are. When it comes to ethics, motive is very important. A person of character does the right thing for...

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EU Response to Reform: A Sin of Omission?

By David Hayes The ultimate good desired is better reached by free trade in ideas [and] the best test of truth is the power of the thought to get itself accepted in the competition of the market. Oliver Wendell Holmes Jr. (1841 - 1935) A second term for President Obama will, most...

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Dual-Use Enforcement in the EU: Fact or Fantasy?

By David Hayes* "He felt that he was still groping in the dark; he had chosen his path but kept looking back, wondering whether he had misread the signs, whether he should have taken the other way." -- JK Rowling, Harry Potter and the Deathly Hallows What is the likely extent of...

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The Groucho Marx Club

By David Hayes* Do not worry if you have built your castles in the air. They are where they should be. Now put the foundations under them. -- Henry David Thoreau Among many things, London is famed for its clubs. Whether it is the aristocratic Boodles, the military Cavalry &...

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Practical Compliance

By David Hayes* "Laws are rules, made by people who govern by means of organized violence, for non-compliance with which the non-complier is subjected to blows, to loss of liberty, or even to being murdered". -- Leo Nikolaevich Tolstoy The electronic sage, Wikipedia, defines compliance...

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I'm from the Government; I'm Here to Help You

By David Hayes You're trying too hard to find a correlation here. You don't know these people, you don't know what they intended. You try to compile statistics and correlate them to a result that amounts to nothing more than speculation. -- Marc Racicot - former Governor of Montana...

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Export Control Reform - EU Style

By David Hayes Unquestionably, there is progress. The average American now pays out twice as much in taxes as he formerly got in wages. -- H. L. Mencken (1880-1956) Many readers will be familiar with the long established system of Open General Export Licences (OGELs) in the United...

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The U.S.-UK Defense Trade Cooperation Treaty: Myths and Perspectives

By David Hayes * The great enemy of the truth is very often not the lie -- deliberate, contrived and dishonest, but the myth, persistent, persuasive, and unrealistic. Belief in myths allows the comfort of opinion without the discomfort of thought. -- John F. Kennedy (1917 - 1963) The...

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The 600 Series and All That

by David Hayes * He that will not apply new remedies must expect new evils; for time is the greatest innovator.  - Francis Bacon, "On Innovation," Essays, 1597 The International Traffic in Arms Regulations (ITAR) are horrendously difficult to comprehend, especially for non-U.S....

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Faded Red Flags

By David Hayes* The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning. 4 U.S.Code Chapter 1, Part 8 What do burning flags have to do with export controls? I'm glad you asked. We are now...

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Crime and Punishment (or not)?

By David Hayes* "What you cannot enforce, do not command." -- Sophocles Enforcement is the key to compliance; an unenforced law is worse than no law at all, since too much of the former brings all law into disrepute. If we look at recent enforcement cases in the United Kingdom...

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ITAR v. Human Rights and Equality

By David Hayes* Take calculated risks. That is quite different from being rash. -- George S Patton One of the most difficult issues facing export compliance personnel is the treatment of dual and third-country nationals under the International Traffic in Arms Regulations (ITAR). This...

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Timeo Danaos et dona ferentes

By David Hayes * Why a Latin title for an article on modern export reform? Virgil's warning in the Aeneid to "fear Greeks even when they are bringing gifts" shows that little changes; not in the sense of the Obama administration's reform effort itself but in its potential consequences if it...

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What Do Trained Elephants Look Like?

By David Hayes* In a previous article, "Training Elephants," I looked briefly at what I see as the inevitability of a move toward automated compliance systems within industry (see The Export Practitioner , February 2010, page 30 ). In this article, I examine this situation in a...

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Making Licensing Decisions in the EU?

By David Hayes* Does my item need a license for export? This is a fundamental question for all compliance personnel. The chart below sets out the licensing decision process in the European Union (EU) in a manner that attempts to take into account the variations in practice between EU...

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Why Helping Subcontractors Is Good for Export Compliance

By David Hayes* In my previous article, " Cleaning the River ," I referred to the need for prime contractors to offer greater support to their supply chains in the export compliance arena (see The Export Practitioner , April 2010, page 29 ). I should now like to explore this topic in...

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Fate of UK Defense Treaty Clouds Export Reform Hopes

By David Hayes* In a previous article, I argued that the current U.S. review of export controls was both overdue and necessary, but I also suggested that many internal inconsistencies in the system need to be addressed in advance of large and ambitious structural changes. Exporters have...

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Cleaning the River

By David Hayes* You could not step twice into the same river; for other waters are ever flowing on to you. -- Heraclitus (540 BC - 480 BC), On the Universe "My job is to keep this company compliant." We've all said it. We've all believed it. What I am about to suggest is that it is...

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Training Elephants

By David Hayes* What information consumes is rather obvious: it consumes the attention of its recipients. Hence, a wealth of information creates a poverty of attention and a need to allocate that attention efficiently among the overabundance of information sources that might consume it. --...

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U.S.-UK Defense Treaty Isn't Reform

By David Hayes* [Editor's Note: With this issue we are pleased to announce that David Hayes, a prominent export control consultant in the United Kingdom and a former official with the UK Export Control Office, will be contributing a bimonthly column to The Export Practitioner on export...

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