USCIB Files Submission With FTC on Non-Compete Clauses in Employment Contracts

Published on May 3, 2023

USCIB filed a submission with the Federal Trade Commission (FTC) April 19, opposing its proposed rule to ban employers from utilizing non-compete clauses in employment contracts, a practice that violates Section 5 of the Federal Trade Commission Act, according to the FTC.

USCIB’s submission argues not only that the FTC lacks rule-making authority to even issue the proposal, but the proposed rule makes improper assumptions regarding the applicability of state law versus a federal blanket ban and that trade secrets safeguards serve as a substitute for non-competes. The proposed rule would ban non-competes for high income workers or workers with access to confidential information, which is a an essential tool for companies to protect intellectual property, trade secrets and other confidential information. The submission makes the strong case that non-competes should continue to be allowed on a case dependent basis.

“USCIB challenges the lack of evidence and methodologies used to support the FTC’s proposed rulemaking on non-competes clauses and is alarmed about the deleterious impacts a blanket ban would have on U.S. industries,” said USCIB Vice President for International Investment and Trade Policy Alice Slayton Clark. “Not only does it break with longstanding legal precedent such as the consumer welfare standard and fact-specific inquiry, but it will irreparably harm U.S. companies that rely on non-competes to safeguard intellectual property rights and trade secrets.”

The FTC has received over 15,000 comments on its proposal, showing the broad impact it would have on companies and workers.  To read the full submission, click here.

USCIB Urges G7 Leaders to Advance Data Free Flows With Trust

Published on April 26, 2023

USCIB co-signed a letter to G7 leaders urging them to explore concrete approaches to advancing Data Free Flows with Trust (DFFT). Japan promoted the DFFT concept when it hosted the G20 process a few years ago and the OECD also is taking this on. The letter was signed by 35 other global industry and non-governmental organizations.

According to the signed organizations, including USCIB, the DFFT strengthens the ability to transfer data across transnational digital networks while building digital trust. The organizations signing the letter emphasized the ability to access and transmit information across transnational digital networks as supportive of governmental policy objectives, including those relating to cybersecurity, digital transformation, environmental sustainability, financial inclusion, health, innovation, privacy, and trade.

According to USCIB Vice President for ICT Policy Barbara Wanner, such concrete approaches to advancing the DFFT include aligning data transfer policies across economies and with international standards, promoting and strengthening cross-border data interoperability mechanisms, analyzing the importance of data transfers in key sectors, as well as collectively supporting the OECD Declaration on Government Access to Personal Data Held by Private Sector Entities.

USCIB Discusses OECD Country Program for Ukraine Reconstruction and Redevelopment

Published on April 26, 2023
Left to right: Rick Johnston, Alice Slayton Clark, Bill Tompson, Will Davis

USCIB Trade and Investment Committee Chair and Chair of BIAC Rick Johnston (Citi) and USCIB Vice President for International Investment and Trade Policy Alice Slayton Clark met last week with Bill Tompson, head of the OECD Eurasia Division and Will Davis, head of the OECD Washington Center, to discuss the OECD Country Program for Ukraine to help with reconstruction and redevelopment.

Following the OECD Council’s recognition of Ukraine as a prospective member, OECD is working in close consultation with the government of Ukraine on a four-year Country Program that will enable Ukraine to access OECD expertise and build capacity to respond to domestic policy priorities while also supporting recovery and reconstruction efforts. Financing of the Country Program, estimated to be 16 million EUR over four years, will be secured through grants from OECD members and donors. The Multi-Agency Donor Co-ordination Platform for Ukraine is co-chaired by the United States, the EU, and Ukraine and will help with coordinating fundraising efforts.

“The OECD Country Program will offer Ukraine important information at a time when it seeks to reform its economy and governance structures to attract and sustain the critical international trade and investment needed to recover and prosper after the war, said Clark. “The Program will provide Ukraine with critical knowledge about international best practices, increased participation in selected OECD bodies, tailor-made reviews and peer learning from an enhanced network of international experts and peers, and importantly, stronger links with the OECD community.”

The Country Program for Ukraine will be reviewed and transmitted to OECD Council at the next OECD Ministerial Council (MCM) meeting that will take place June 7-8.

Country Programs provide a structured and strategic form of engagement and cooperation with selected partner countries that, while not formally linked to the OECD accession process, have proven a willingness and ability to meet OECD standards and practices. They are a recently established OECD global relations tool.

UNCITRAL Reaches Agreements on Code of Conduct for Arbitrators

Published on April 13, 2023

The United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III (WG III) reached agreement on a code of conduct for arbitrators during meetings at the United Nations headquarters in New York late last month. While the code of conduct imposes some limits on roles arbitrators can take in investment disputes proceedings, USCIB successfully advocated for narrower restrictions.

WG III was set up by the United Nations in 2017 to identify concerns and explore reforms relating to the operation of the Investor-State Dispute Settlement (ISDS) system. According to USCIB Vice President for International Investment and Trade Policy Alice Slayton Clark, this is the first time that agreement has been reached on text in over five years of WG III deliberations.

The agreement imposes temporary bans under certain scenarios on so-called “double hatting,” where an arbitrator can also serve as counsel in ISDS cases. Arbitrators would be subject to “cooling-off periods,” which vary from one to three years, depending on whether the two cases involve same measures, same or related parties, or same provisions in the same treaty. Delegates agreed to longer cooling-off periods for same measures and related parties, but shorter periods for same treaty, an important “win” for investors since it is not uncommon for multiple cases to arise under the same treaty and, in those cases, investors want to have maximum options in terms of their choice of arbitrator and counsel.

“USCIB has participated in WGIII discussions as a non-governmental organization since the start, advocating for balanced reforms that improve ISDS for both states and investors,” said Clark. USCIB member Lauren Mandell of WilmerHale has worked diligently with USCIB staff to promote member interests at UNCITRAL throughout this process.

In addition to the code of conduct for arbitrators, WG III also agreed on ethics rules for judges sitting on a permanent multilateral investment court, a structure that does not exist and that USCIB does not support. Because there is no agreement that there will even be a multilateral court, the final code has numerous caveats, with the European Union, the lead proponent of the court, acknowledging that the code may need to change based on the actual design of the court.

Lastly, WG III agreed to a set of technical provisions to encourage, rather than require, parties to mediate disputes as an “offramp” before parties turn to ISDS. Mediation may not be appropriate in a given dispute and could waste time and money when the other side is not seriously interested in the process.

The UNCITRAL Commission will finalize and endorse the three documents at its annual meeting in July.

USCIB Advocates for Implementable, Workable OECD Guidelines for Multinational Enterprises

Published on April 5, 2023

During the meeting of the OECD Responsible Business Conduct (RBC) Working Party in Paris last week, USCIB’s Corporate Responsibility and Labor Affairs team – Director Ewa Staworzynska and Policy Manager Jose Arroyo – attended the sessions as part of Business at OECD (BIAC) delegation for the ongoing update of the OECD Guidelines for Multinational Enterprises (Guidelines).

The Guidelines are a set of recommendations from governments to businesses for ensuring responsible business conduct.

According to Arroyo, the BIAC delegation conveyed to OECD governments relevant points to make sure the Guidelines are implementable and workable for business while maintaining a high bar for responsible business conduct.

“USCIB and BIAC were able to get support in the room from several governments as we continue to address key issues that remain to be resolved,” said Arroyo.

“A common line of reasoning is that the Guidelines are voluntary and, therefore, can go well beyond what is asked of business in legislation. However, we insisted that if the Guidelines are increasingly referenced in new law bills, and should these bills pass, there may be substantial practical challenges for business.”

USCIB and BIAC advocated for new language that clarify the intent of the Guidelines, meaning they are not designed to be applied in hard law. Ultimately, governments will have the last word on the issue, according to Arroyo. Other challenges discussed were the downstream due diligence approach and substantial changes in the Environment Chapter.

USCIB, as the U.S. affiliate to BIAC, has been the only U.S. business association on the ground for all the OECD RBC Working Party meetings.

“We are in the home stretch of the update, and we thank all USCIB members who provided their expertise, inputs, questions and concerns to secure a workable, implementable document,” said Arroyo.

The Guidelines are expected to be approved by the OECD in June and USCIB will continue to advocate for the business community for a workable outcome while promoting the highest standards of responsible business conduct.

Rick Minor Announces Appointment of ‘USCIB Big Four International Tax Policy Board’ 

Published on April 4, 2023

Rick Minor, USCIB’s VP and International Tax Counsel, is pleased to announce the creation and appointment of the USCIB Big Four International Tax Policy Board. The four original board members include Barbara Angus (EY), Pat Brown (PwC), Danielle Rolfes (KPMG) and Bob Stack (Deloitte).   

“These four Board members all belong to a very small and distinguished group of tax practitioners who have served at the highest policy levels in private practice and public service,” said Minor. “The Board is expected to enhance the value of the tax committee structure and to complement the ten-member Tax Leadership Team in insuring USCIB remains on the cutting edge of international tax policy advocacy and programming.”

The Board will meet regularly with Minor and the Chair of the USCIB Tax Committee, John Stowell, head of global tax and international financial reporting at The Walt Disney Company, and quarterly with the USCIB Tax Leadership Team.   

Here are the abbreviated bios of the original Board Members: 

Barbara Angus, Principal and Global Tax Policy Leader, Ernst & Young LLP 

Barbara M. Angus is a Principal with Ernst & Young LLP and is EY’s Global Tax Policy Leader.  In addition to her 25 years of private-sector experience in international tax matters, she also has had tax policy roles on Capitol Hill and at the U.S. Treasury Department, including most recently serving as Chief Tax Counsel for the House of Representatives Committee on Ways and Means during the development and enactment of the 2017 tax reform legislation. Angus received the Pillar of Excellence Award from the Tax Council Policy Institute in 2022 and the Distinguished Service Award from the Tax Foundation in 2018. She is a graduate of Dartmouth College, Harvard Law School and the University of Chicago Graduate School of Business. 

Pat Brown, Washington National Tax Services Co-Leader, PwC U.S. 

At PwC, Brown advises clients on all aspects of international and domestic tax policy. Prior to joining PwC, Brown was vice president and counsel, tax for GE Power and GE Renewables and a GE corporate officer. Brown joined GE in 2002 from the U.S. Treasury Department, where he served as attorney advisor and associate international tax counsel from 1998-2002. During his time at Treasury, Brown focused primarily on international tax analysis, negotiation of tax treaties, and representing the U.S. government at meetings of the OECD on various tax issues. Prior to joining the Treasury Department, Brown was an associate at Sullivan & Cromwell in New York. Brown received a BS in Mechanical Engineering, with highest distinction, from the University of Virginia in 1991 and a JD from Georgetown University, magna cum laude, in 1995. 

Danielle Rolfes, Co-Leader, Washington National Tax – International Tax, KPMG LLP 

Rolfes co-leads the international tax group within KPMG’s Washington National Tax office. She joined KPMG in 2017, following her tenure as the international tax counsel at the U.S. Department of the Treasury.  Rolfes advises clients on issues related to international tax policy, tax treaties, the character and source of income, subpart F, foreign tax credits, and the regimes for Global Intangible Low-Taxed Income, the Foreign-Derived Intangible Income and the Base Erosion Anti-Abuse Tax. Rolfes is a frequent speaker and writer on a variety of international tax topics. In addition to numerous articles, she is the author of An Analysis of FIN 48 – Accounting for Uncertain Income Tax Positions (Matthew Bender, 3d ed. 2009). 

Bob Stack, Managing Director, Deloitte Tax LLP 

Stack joined Deloitte Tax from the U.S. Department of the Treasury, where he was the deputy assistant secretary for international tax affairs in the Office of Tax Policy in the Obama administration. At Treasury, he worked directly with the assistant secretary of tax policy and the international tax counsel in developing and implementing all aspects of U.S. international tax policy, including treaties, regulations and legislative proposals and served as the U.S. representative at the OECD during this time on the BEPS projects.  Stack earned his Bachelor of Arts in English education from State University of New York at Albany and his Master of Arts in French language and literature from New York University. He went on to obtain his Master of Science in foreign service from Georgetown University and a Juris Doctor from Georgetown University Law Center, where he was editor-in-chief of the Georgetown Law Journal. 

USCIB Contributes to OECD Meetings on Countering Illicit Trade in E-Commerce

Published on March 30, 2023

USCIB Senior Director for Customs and Trade Facilitation Megan Giblin was in Paris earlier this month attending the second workshop of the OECD Task Force on Countering Illicit Trade E-Commerce Expert Group and the 11th Plenary of the OECD Task Force on Countering Illicit Trade (TF-CIT). Giblin attended these meetings as part of a Business at OECD (BIAC) private sector delegation, which also included experts affiliated with or participants from many USCIB member companies including, among others, Abbott, Amazon, BAT, eBay, HanesBrands, Lego, PMI and Walmart.

According to Giblin, a previous meeting of this expert group, held in December 2022, saw agreement that there was scope to develop future government and industry guidelines to curb illicit trade in counterfeits abusing e-commerce platforms. This second E-Commerce Experts Groupworkshop followed-up on that agreement whereby experts, including members of the private sector, provided their views on the proposed draft guideline text. The next meeting of the OECD E-Commerce Experts Group will be held in Sofia, Bulgaria, followed by a meeting to be held in Washington, DC, later this year.

The E-Commerce Experts Working Group was followed by the OECD TF-CIT plenary meeting, where the Business at OECD (BIAC) delegation was led by Executive Director Hanni Rosenbaum, the BIAC Anti Illicit Trade Committee (AITEG), Chair, David M. Luna, and.  Policy Manager Jacobo Ramos Folch. This TFCIT meeting spanned 2-days and covered many critical topics, including: a look back at the Task Force over the past 10 years; Free Trade Zone Certification Scheme Roll-Out; and the above-mentioned E-Commerce project.

During the Task Force meeting, Luna, a former U.S. diplomat, highlighted the importance of strong public-private partnerships and emphasized the commitment of the business community to work with the OECD to counter the harms caused by illicit goods that have severe negative effects on global prosperity, trade, economic recovery, supply chains and public health and safety. 

“BIAC has worked in partnership with the OECD to advance important work in this area, including on illicit trade in the context of free trade zones, electronic commerce and high-risk sectors,” said Giblin.

In her closing remarks, Ms. Hanni Rosenbaum emphasized the importance of active public-private partnerships and BIAC’s continued commitment to support this important OECD policy work programme, especially as it transitions to the Trade Committee.

USCIB Team Hosts MTN Roundtable on Solidarity in Doha During LDC5 

Published on March 23, 2023

USCIB was on the ground in Doha for the 5th United Nations Conference on the Least Developed Countries (LDC5) and to participate in the LDC5 Private Sector Forum (PSF).  USCIB’s Moving the Needle (MTN) Initiative organized a March 8 LDC5 side event in the form of a roundtable on the private sector’s role for solidarity solutions, in partnership with the International Organization of Employers (IOE). 

LDC5, held from March 5-9, focused on accelerating the graduation of LDCs out of the LDC category of the world’s poorest countries. The forty-six LDC countries account for 13% of the world population but only 1.3% of global GDP and less than 1% of global trade and foreign direct investment (FDI).   

The LDC5 Private Sector Forum, co-organized by the United Nations with Microsoft and a business advisory group, emphasized actions and partnerships for LDCs to support the delivery of the new Doha Program of Action and the 2030 Agenda for Sustainable Development. The Forum highlighted important sectors for LDCs, such as agriculture, energy, connectivity and finance and the need to create enabling environments for LDCs to benefit from trade, investment and capacity building. 

USCIB Board Member Chris Sharrock, Microsoft vice president for UN Affairs and International Organizations, opened the MTN Roundtable, stating that “Business plays a key role in delivering inclusive growth, creating opportunities and sustainable development around the world, especially for the 880 million people living across the LDCs.”  He went on to emphasize the necessity of partnerships that are effective, tailored to local needs and goals and that mobilize private sector knowledge and tools.   

The MTN Roundtable featured speakers from USAID, the International Labor Organization (ILO), the International Telecommunications Union (ITU) and UNIDO, as well as leading IOE employers federation representatives from the DRC, Mali and Zambia.  

USCIB Senior Vice President for Policy and Global Strategy Norine Kennedy, Policy Manager for Environment and Sustainable Development Agnes Vinblad and USCIB MTN Initiative consultant Lea Felluss were in Doha to advance U.S. business views and contributions to the sustainable and resilient graduation of LDCs as essential to the 2030 Agenda for Sustainable Development.  

According to Kennedy, “Simply put, solidarity means we cannot deliver the SDGs while leaving the LDCs behind.” 

Wanner Reports ICANN Progress Toward Launching New Domain Names 

Published on March 23, 2023

The Internet Corporation for Assigned Names and Numbers (ICANN) held its Community Forum in Cancun, March 11-16, to discuss the pending launch of a new round of top-level domain names, governance issues related to the selection of a new ICANN President and CEO as well as combatting Domain Name System (DNS) abuse. USCIB Vice President for ICT Policy Barbara Wanner was on the ground, joining over 1100 attendees across 164 countries and territories.

According to Wanner, the key outcome of the meeting was the progress made toward launching a new round of top-level domain names through a process referred to as the New Generic Top-Level Domain (gTLD) Subsequent Procedures (SubPro).

ICANN community members described pent-up demand for a new round of gTLDs; the last round was in 2012. Proponents maintain that the availability of new gTLDs will offer more choice and will make the DNS accessible to more people around the world, especially those who use languages and scripts not based on English or ASCII.

Briefing the GNSO Council, Board Member Becky Burr outlined four areas of information that ICANN needs to prepare a timeline and launch plan before a specific date for the new round can be announced. These are outlined in the Board resolution approved on March 16.

Wanner, in her capacity as an industry representative, will continue to monitor and update USCIB members on the status of the launch of these gTLDs as well as the development of other issue areas discussed at ICANN. These include future governance of the organization as well as implementation of a system to enable legitimate requests to nonpublic gTLD registration data, now called the Registration Data Request Service.

 

USCIB Announces Appointment of Five New Tax Leadership Team Members (Vice-Chairs, USCIB Tax Committee)  

Published on March 23, 2023

Rick Minor, USCIB VP and International Tax Counsel, is happy to announce five new appointments to the Tax Committee Leadership Team (Vice-Chairs). Leadership team members serve a two-year term with an option to renew for a second, consecutive term.

“These appointments resulted from several retirements from the Tax Committee Leadership Team at the end of last year and the creation of a Big Four International Tax Policy Board as part of our Tax Committee governing structure,” said Minor. “Being part of the Tax Committee Leadership Team is a significant commitment by the team members who are all senior tax executives at leading member companies. I look forward to enjoying their support and counsel along with that of our legacy members.”

The new Vice-Chairs:

Lennaert ten Cate, SVP Tax, PepsiCo Inc. Lennaert has over 28 years of tax experience of which 25 with PepsiCo Inc. Prior to serving as SVP Tax, Lennaert served as SVP, International Tax, leading the corporate tax agenda for PepsiCo’s international operations and partnered with the business and other corporate functions on various business initiatives and M&A transactions. Lennaert has worked in the Netherlands, the United Kingdom, Hong Kong and in the US, where he is currently based. Prior to joining PepsiCo in 1996, Lennaert spent three years at Ernst & Young Tax Advisory in Amsterdam, the Netherlands. Lennaert holds a Master of Law degree from Leiden University, the Netherlands.

Carolina Perez-Lopez, VP Global Tax Planning and Tax Counsel, Johnson & Johnson. In her role, Carolina is responsible for driving the tax strategy and execution for acquisitions, divestitures, licensing deals, and restructurings for the enterprise, as well as the tax planning for the Pharm and MedTech businesses worldwide.  Prior to joining Johnson & Johnson, Carolina was Vice President, Transfer Pricing and Senior Tax Counsel at Pfizer. Before that, Carolina worked as a counsel at Clifford Chance LLP, spending time both in New York and London. Carolina holds a JD and Master of Laws (LLM) in Spanish Taxation from the Universidad de Navarra, Spain, and an LLM in International Taxation from New York University, School of Law.

Erik Rosenfeld, VP Taxes, North America, Procter & Gamble. Erik leads the North America Tax Operations Team of The Procter & Gamble Company.  In this role, Erik’s responsibilities cover US GAAP external reporting on tax matters, North America direct and indirect tax compliance, M&A and cross-border tax issues, global tax technology and various global tax policy matters.  From 2018 – 2021, Erik led P&G’s European Tax organization from P&G’s international headquarter location in Geneva, Switzerland.  Prior to joining P&G, Erik spent 18 years in public accounting, including six years as an international tax partner with PwC.

Wendy Unglaub, VP, Chief Tax Officer, and Principal Tax Counsel, General Mills. Wendy leads the global tax function at General Mills, with responsibility for managing all aspects of the company’s tax profile from compliance to litigation to identifying solutions to business needs. Prior to joining General Mills, Wendy served in a variety of leadership positions at Microsoft Corporation, Ecolab and Cargill where she was responsible for a wide range of U.S. and international tax matters related to legislative policy, joint ventures, divestitures, mergers, acquisitions, capital market transactions, audits, litigation, intellectual property and strategic corporate tax planning. Before her in-house roles, Unglaub practiced law at the firms of Davis Polk & Wardwell (New York), and Morgan Lewis & Bockius (Philadelphia). Wendy holds her A.B. from Harvard University, JD from Georgetown University Law Center and post-doctorate LLM (Taxation) from New York University School of Law.

Jason Weinstein, Vice President, Tax, North America, Amazon. He and his teams are responsible for all U.S. federal and state as well as Canadian tax planning and tax policy, sales and property tax compliance, and tax-business partnering for Amazon’s North American Stores. Jason and his team also cover worldwide M&A, investments, debt offerings, internal structuring, and other special project areas. Prior to joining Amazon, Jason worked at the law firm Fried, Frank, Harris, Shriver and Jacobson in New York, where he specialized in tax planning for M&A as well as private equity fund formation and strategic joint ventures. Jason has taught tax law at the University of Washington Law School and is a frequent speaker at the usual tax conferences. Jason received his undergraduate degree from Cornell University and his JD, cum laude, from the University of Michigan Law School. Prior to law school, Jason served as briefings director for the Governor of New Jersey.

The Tax Committee and the Leadership Team are chaired by John Stowell, SVP of Tax, Incentives and International Financial Reporting at Disney. The 10-member leadership team, among other things, advises the International Tax Counsel on setting Tax Committee priorities, supports tax committee projects and programming, and helps to grow the tax committee network globally. The Tax Committee presently has 450 members. The new members join the other legacy members of the Tax Leadership Team: Daniel Smith, director, international tax planning and policy at Google, Chad Withers, chief tax officer of Caterpillar, Jocelyn Krabbenschmidt, international tax director of Apple, and Tom Roesser, tax policy counsel at Microsoft.