As companies from various sectors grow their presence in Asia, they are increasingly faced with a diverse range of export compliance challenges. In contrast to the EU, which has established a regional export controls regime for dual-use items, countries in Asia each implement unique regulations to control the movement of military and dual-use items.
For companies engaging in activities such manufacturing, sales, distribution, finance and research and development, key considerations for operating in Asia include the following:
Does the country have an export controls regime?
Over the past ten years, and in particular since the adoption in 2004 of UN Resolution 1540, many countries across Asia have adopted export control regulations. However, countries such as Indonesia, for example, have not yet established export controls for dual-use items. In countries like Malaysia, which adopted its STA in 2010, export controls remain a new area of regulation that continues to evolve and change.
Are the lists of controlled items similar to those used in the US or EU?
Several of the Asian jurisdictions with export control regulations (such as Singapore, Taiwan and Hong Kong) have adopted control lists that are similar in structure to the Wassenaar control lists. While these control lists may, therefore, look familiar to exporters accustomed to US and EU control lists, it is important to note that there may still be important differences, and exporters must classify their goods, software and technology against the local control lists.
In contrast, countries like China and Japan have taken different approaches to defining their control lists. For example, although Japan is a participating state of the Wassenaar Arrangement, controlled items are described across three distinct pieces of legislation using 16 categories and a unique numbering scheme that includes the use of Japanese characters.
Are licenses required for intangible (e.g., electronic) transfers of controlled technology and technical data?
One of the biggest export compliance challenges for companies is managing controlled technical data. Singapore, for example, defines specific controls for Intangible Transfers of Technology ("ITT"), and requires export licenses prior to making controlled technical data available to parties overseas (e.g., via email, server upload). In contrast, Taiwan's controls over Strategic High-Tech Commodities do not currently cover intangible transfers.
Japanese export controls also include requirements similar to the "deemed export" rules of the US. Specifically, export licenses may be required prior to providing or granting access to controlled technical data to non-residents of Japan (including Japanese nationals who are not residents), even if the provision or access takes place within Japan.
These and other considerations can have a significant impact for businesses that are operating in Asia or looking to expand their regional footprint, whether through establishing new operations or engaging in mergers, acquisitions or joint ventures. As business in Asia grows and local export control regimes continue to evolve, Asia is quickly becoming a focal point for global export compliance.
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