October 14, 2019

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Our Way or the Huawei: Are Your Fintech Contracts Ready for a National Emergency?

Most of the reaction to Donald Trump’s sweeping new Executive Order, declaring a national emergency to combat “the ability of foreign adversaries to create and exploit vulnerabilities in information and communications technology or services” has been focused on only one company (Huawei) and only one country (China). The breathtaking reach of the Order, however, means that many more fintech contracts may now be now at risk.

The Federal Government’s new strategy for protecting critical infrastructure and winning the 5G race may make some of your company’s vendor contracts voidable or suspend them indefinitely. Your company may be stuck having paid for products or services it may never receive. Executive Orders like this one may excuse your vendor’s failure to deliver your software as a service or otherwise, and if nothing in the agreement addresses your remedies while the contract is suspended, then your company could be up the creek .

Many contracts contain a clause to toll or excuse the obligations of the affected party under the contract if an “Act of God” or “Force Majeure” occurs. Should lightning strike, such a clause could help your company if it is written carefully.

While you might think that any action taken by Secretary Ross under this new Order would necessarily fall under your standard force majeure clause, not so fast. These clauses are often tucked innocuously away in the boilerplate “Miscellaneous” section of contracts. They are seldom strenuously negotiated and differ widely in scope. Some do not define force majeure at all. Others defer to force majeure as it is defined by the law applicable to the contract. Some even specifically exclude “the regulatory acts of governmental authorities” from the definition of force majeure. Many do not specifically call out national emergencies as excusing performance, relying instead on broader language like “embargoes and other similar unusual governmental action.”

Issued under the International Emergency Economic Powers Act (IEPPA), the Order empowers the Secretary of Commerce to block just about any deal that involves information or communications technology or services “designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary.” And the entities on Commerce’s Bureau of Industry and Security’s “Entity List”, individuals and entities that are subject to specific license requirements for the export, re-export and/or transfer of specified items, are not just the usual suspects (e.g., entities located in China, Iran); they include entities located in countries like Canada, Germany, Finland and France.

IEPPA allows the President to, among other things:

. . . investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States

Against the backdrop of escalating trade wars and cyberwarfare, an ounce of prevention is worth a pound of cure. We recommend that all clients review and update their fintech contracts to address the risks posed by this Order.

Dominic Panakal also contributed to this article. 

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Philip Gura, Womble Dickinson Law Firm, Atlanta, Cybersecurity Law Attorney
Of Counsel

Phil Gura has more than 30 years of experience helping companies manage privacy, data security, governance and regulatory compliance challenges. For the past 15 years, he has served as the Chief Legal Officer of major corporations, including Merchant Customer Exchange LLC (MCX), RaceTrac Petroleum Inc. and LaRoche Industries, Inc. His in-house experience includes managing and directing corporate governance, regulatory/compliance, privacy/ data security and intellectual property efforts.

Phil most recently served as Chief Legal Officer of Sionic...

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Theodore Claypoole, Intellectual Property Attorney, Womble Carlyle, private sector lawyer, data breach legal counsel, software development law
Senior Partner

As a Partner of the Firm’s Intellectual Property Practice Group, Ted leads the firm’s IP Transaction Team, as well as data breach incident response teams in the public and private sectors. Ted addressed information security risk management, and cross-border data transfer issue, including those involving the European Union and the Data Protection Safe Harbor. He also negotiates and prepares business process outsourcing, distribution, branding, software development, hosted application and electronic commerce agreements for all types of companies.

Ted currently serves as Chair of the American Bar Association’s Cyberspace Committee in the Business Law Section, and has recently co-authored the books  Privacy in the Age of Big Data: Recognizing Threats, Defending Your Rights and Protecting Your Family and Protecting Your Internet Identity: Are You Naked Online? with Theresa Payton.

His practice includes media and advertising issues, especially online, mobile platforms and on social networks. He solves legal problems in payment systems and financial data processing. Advising clients on complex intellectual property development and licensing programs, he builds strategic technology and marketing alliances.

704-331-4910
Taylor Ey, Intellectual property attorney, Womble Carlyle, Law Firm
Associate

Taylor is an associate in the Intellectual Property Practice Group in Womble Carlyle’s Research Triangle Park Office.

Education

J.D. | 2016 | Wake Forest University School of Law | cum laude | Notes and Comments Editor, Wake Forest Law Review, 2015-2016 | Teaching Assistant, Legal Analysis, Writing and Research I & II, Writing for Judicial Chambers

M.S. |2012 | The Ohio State University | Biomedical Engineering

B.S. | 2011 | The Ohio State University | Biomedical Engineering | Minor, Life Sciences | cum laude

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