New Interpretation of Certain Boycott Language from the UAE

June 11, 2021

BIS Adds Antiboycott Interpretation Reflecting United Arab Emirates’ Termination of Israel Boycott

On June 9, 2021, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) published a final rule adding an Interpretation to the anti-boycott regulations in 15 C.F.R. Part 760 of the Export Administration Regulations (EAR).  See 48 Fed Reg 30,535 (June 9, 2021); see also Supplement No. 17 to Part 760.  The new Interpretation provides guidance on interpreting certain restrictive language referring to United Arab Emirates (UAE) laws, as those laws have not included the Arab League’s Boycott of Israel since August 16, 2020.  Under this new Interpretation, language referring to UAE laws that previously would have constituted prohibited or reportable boycott language may now be permissible and nonreportable.

Specifically, the new Interpretation states:

On the basis of [the UAE terminating its participation in the Arab League Boycott of Israel], it is the Department’s position that certain requests for information, action or agreement from the UAE, which were presumed to be boycott-related under this part of the EAR if issued prior to August 16, 2020, would not be presumed to be boycott-related if issued after August 16, 2020, and thus would not be prohibited or reportable under this part of the EAR.

The new Interpretation contains two examples:

1.  A US exporter receives a request from the UAE to certify that the vessel on which it is shipping goods is eligible to enter UAE ports. 

  1.  
  • When this request comes from countries that contain laws boycotting Israel, the “eligible to enter” language is presumed to be a blacklist or boycott request.  That is because boycotted and blacklists vessels would not be eligible to enter a port under that country’s boycott laws.
  • Previously, as UAE maintain laws boycotting Israel, furnishing this type of certification could be prohibited and reportable depending on who received the request and who issued the certificate.
  • Now, as UAE terminated its boycott on Israel on August 16, 2020, this “eligible to enter” language is no longer presumed to implicate Israel boycott laws and restrictions.  Accordingly, complying with this request is no longer presumed to be a participation with the Israel boycott.

 

2.  A US company receives a request from the UAE government to furnish information on the place of birth of employees the US company is seeking to take to the UAE.

 

  • Like the previous example, when this request comes from countries that contain laws boycotting Israel, furnishing this information could implicate those boycott laws.  In those cases, complying with this request would be prohibited and the request itself would be reportable.
  • Prior to August 16, 2020, requests of this kind from the UAE government would be presumed to implicate its boycott laws.  After the UAE terminated its boycott laws on August 16, 2020, however, requests of this kind from the UAE are no longer presumed to have boycott implications.  Accordingly, US companies would not be prohibited from complying with this request.

Please note that these changes do not affect explicit boycott requests (e.g., language referencing blacklisted companies, Israel boycott lists, or non-Israeli goods).  They also do not affect “coded” boycott phrases that continue to implicate unsanctioned boycott laws (e.g., language requiring vessels to be eligible to enter Arab ports).  Instead, the new Interpretation only affects language referencing or implicating UAE laws generally.  Accordingly, it is prudent for forwarders and exporters to continue screening UAE-related documents and requests for prohibited and reportable language.  

We hope this is helpful, but please let us know if you have any questions.

Oliver Krischik can be reached at okrischik@gkglaw.com.

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