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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.
Please submit a statement of interest in writing an article on a specific topic to Ana Barton, [email protected], and Laura Reich, [email protected], as soon as possible.
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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 Chair - Clarissa A. Rodriguez
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The
Chair of The
Florida Bar International Law Section,
Clarissa A. Rodriguez is a shareholder at Reich Rodriguez, P.A., and is Board Certified in International Law. Her practice focuses on complex business dispute resolution, international arbitration, and art law disputes.
Clarissa represents businesses and individuals-based in the United States and abroad-in state and federal court as well as before various international tribunals.
A graduate of the University of Florida, where she earned a Bachelor of Arts in English, Clarissa received her Juris Doctorate from Nova Southeastern University Shepard Broad College of Law, and a Licenciatura en Derecho Civil from the Universidad de Barcelona, Faculdad de Derecho.
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ILS Chair-Elect - Robert J. Becerra
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The Chair-Elect of The Florida Bar International Law Section, Robert J. Becerra, is a Florida Bar Board Certified Specialist in International Law.
Becerra concentrates his practice in the areas of litigation and arbitration, white collar criminal defense, grand jury investigations, corporate compliance and internal investigations, and administrative and judicial proceedings related to international trade matters. Becerra has extensive experience in handling international trade issues, including trademark infringement, cargo losses, errors and omissions by logistics providers, and disputes arising from import-export professionals.
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ILS Secretary - James M. Meyer
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A shareholder of Harper Meyer Perez Hagen Albert Dribin & DeLuca LLP and newly elected Secretary of The Florida Bar International Law Section, James M. Meyer concentrates his practice on the representation of U.S. and Latin American-based multinational corporations, financial
institutions manufacturers, franchisors, family offices and private high net-worth clients in general corporate matters, commercial leasing, financing, sales and acquisitions of capital equipment, including aircraft and yachts. His experience in such matters also extends throughout the Caribbean.
A graduate of Arizona State University, where he earned his B.A. magna cum laude, Meyer received his Juris Doctorate from the University of Miami School of Law.
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ILS Treasurer - Rafael R. Ribeiro
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Rafael R. Ribeiro, the newly appointed
Treasurer of The Florida Bar International Law Section, is a partner at the Miami office of Hogan Lovells.
Leveraging his experience abroad and his fluency in four languages, Ribeiro has significant experience conducting international internal investigations and representing client in cross-border disputes. Ribeiro is currently part of the senior team of Hogan Lovells lawyers conducting two of the largest anti-corruption investigations in Latin America, focusing on allegations of
corruption in the energy sector.
A graduate of the New College of Florida, Ribeiro earned his Juris Doctor,
cum laude
, from the University of Florida.
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Gilbert K. Squires Elected President of the
Dade County Bar Association
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Gilbert K. Squires, managing member of Squires International Law, PLLC, was sowrn in as the 103rd President of the Dade County Bar Association.
An international arbitrator and litigator, Squires has extensive experience in international energy, oil and gas, power generation, and renewable energy.
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Peter A. Quinter Re-Appointed Co-Chair of the ABA International Law Section Customs Law Committee
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Peter A. Quinter, Chair of the Customs and International Trade Law group at GrayRobinson, P.A., has been re-appointed Co-Chair of the Customs Law Committee of the American Bar Association - International Law Section.
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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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