Clifford Chance

A dozen chances to do it right: Decision points for export compliance

5 November 2014

When investigators are forming their view as to whether a non-US company should be criminally prosecuted for violations of US export controls and economic sanctions, they examine the company's choices at key decision points - how many times did the company choose to do the wrong thing when offered the opportunity to do the right thing.  There are common decision points that can occur whenever a company becomes involved in exporting US goods and services.  When decision points are reached, investigators expect a company to investigate, ask questions, be aware of red flags, turn down risky opportunities or report suspicions.  While a decision not to conduct further inquiry may not seem significant at the time or perhaps can be rationalised in light of current more pressing considerations, the investigators will have the benefit of hindsight when those failures to act give rise to violations.  The investigators will see the omissions as choices - part of a pattern of deliberate conduct or "willfulness" that signifies criminal intent.

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