Strategic Trade Management for Intangible Transfers of Technology in APAC JAY P. NASH

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1 Strategic Trade Management for Intangible Transfers of Technology in APAC JAY P. NASH Pacific Forum CSIS / IIR, National Chengchi University Strategic Trade Control Workshop Taipei, Taiwan November 5-6, 2015

2 Presentation Topics 1. Key intangible transfers of technology (ITT) concepts and importance of ITT strategic trade management (STM) 2. Current state of ITT STM in APAC 3. ITT STM issues and challenges 4. Recommendations for strategic ITT STM in APAC 5. Conclusion and Q+A * The information and views in this presentation are the presenter s own, and do not represent the position or opinion of any government or private organization. This presentation is for informational and educational purposes only.

3 Key ITT STM Concepts (1) Technology * : Specific info necessary for the "development", "production" or "use" of a product. The information takes the form of 'technical data' or 'technical assistance' 'Technical data' may take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories. 'Technical assistance may take forms such as instruction, skills, training, working knowledge, consulting services. 'Technical assistance' may involve transfer of 'technical data * Wassenaar Arrangement Definition

4 Key ITT STM Concepts (2) Tangible vs. intangible transfers (of technology) A tangible transfer or export of technology would be sending things like hard-copy blueprints or diagrams, a model, or technical data on USB drive out of a country to another country An intangible transfer or export of technology would be sending or transmitting technology from a country to another country via electronic ( , fax) or oral (phone) means, or making it available for electronic access The provision of technical assistance also may be a form of intangible technology transfer

Key ITT STM Concepts (3) Technology is sometimes included in the definition of goods or items in STM legislation Electronic and oral transmissions of technology sometimes are included in the

5 Key ITT STM Concepts (3) Technology is sometimes included in the definition of goods or items in STM legislation Electronic and oral transmissions of technology sometimes are included in the definition of export in STM legislation Some STM systems include special controls for hand-carries of technology (i.e. in luggage or on a computer accompanying a traveler) Some STM systems include controls on deemed exports, which is a domestic transfer of technology to a foreign national that is treated like an export of that technology to the country of the foreign national

6 Key ITT STM Concepts (4) Some STM exemptions and carve-outs: Technology in the public domain Basic scientific or fundamental research Technology that is part of a patent application Minimal technology necessary for installation, repair, etc. of a strategic good exported under license Personal use technology (e.g. in case of hand-carried items)

7 Importance of ITT in STM Technology more difficult to control, especially in digital age 3D printed gun case Know-how more powerful than goods teach a person to fish... Acquisition of WMD materials vs. weaponization In several STM systems, technology related to a strategic item may be controlled even in cases where the strategic item itself is not

8 APAC STM Systems With ITT Controls Australia China India Japan Korea Malaysia New Zealand Philippines* Singapore

9 ITT STM in APAC Many countries/areas in APAC control tangible transfers of listed technology (including software and encryption), and technology going to certain restricted end-uses (nuclear, missile, etc.) Increasingly controls on intangible transfers of technology (ITT), though most often electronic and/or territory-origin transfers In some countries, even controls similar to deemed exports have been (or will be) introduced Other countries/areas have controls on transfers of technology distinct from their export control regimes, particularly in the area of encryption

10 Australia ITT STM Australia s recently introduced ITT STMs Supplying of listed military or dual-use technology from a person in Australia to a person outside of Australia by electronic means. Supply occurs when a 'person' in 'Australia' provides listed technology to another person outside of Australia. Examples of supply include supply via or fax, or by providing someone outside of Australia with passwords to access controlled technology stored electronically. Publishing (putting in the public domain via print, internet, etc.) of listed military technology by Australian persons (citizens, corporations, and residents) anywhere in the world Australia also controls the supply and provision of services in Australia when the service-provider knows or should know the services are for a WMD program

11 China ITT STM June 2015 MOFCOM Announcement of ITT Licensing

12 India ITT STM Definition of export In relation to services or technology Supplying, services or technology From India into the territory of any other country In India to the service consumer of any other country By a service supplier of India, through commercial presence in the territory of any other country By a service supplier of India, through presence of Indian natural persons in the territory of any other country Definition of technology Any information (including information embodied in software i.e. floppy disc, compact disc or any other medium), other than information in the public domain, that is capable of being used in The development, production or use of any goods or software; The development of, or the carrying out of, an industrial or commercial activity or the provision of service of any kind When technology is described wholly or partly by reference to the uses to which (or the goods which it relates) may be put, it shall include services which are provided or used, or capable of being used in the development, production or use of such technology of goods

13 Japan ITT STM Technology transfer controls apply to intangible transfers of technology (ITT) both oral and electronic as well as to the provision of training and technical services Japan residents and non-residents require a license to transfer listed technology from Japan to a foreign country Japan residents require a license to transfer listed technology to a non-resident in Japan Japan residents also require a license to transfer Japan-origin technology to any person when in a foreign country

14 ITT refers to any transmission of controlled strategic goods technology carried out in Singapore by electronic means (e.g. , fax), or the act of making the controlled strategic goods technology available in Singapore on a computer or server, so that it becomes accessible to a person in a foreign country. Singapore ITT STM

15 ITT STM Approaches in APAC COUNTRY Tangible or Hand-Carry Electronic Transfer Oral/Visual Transfer Upload / Download In-Country Transfer Australia Y Y N Y Catch-all China Y Y Possible Possible N India Y Y Services? Services Japan Y Y Y Y Y Korea Y Y Y Y Y Malaysia Y Y Y Y Catch-all New Zealand Y Y N Download N Singapore Y Y N Y N

16 Select ITT STM Issues and Challenges Establishing and determining what/when technology is required / necessary Cloud computing Impact on international technology cooperation for both public and private benefit Potential conflicts with data privacy and cybersecurity ENFORCEMENT!

17 Recommendations for ITT STM in APAC Gradual movement towards ITT STM harmonization in the region, starting with definitions and standards for determining what is controlled technology Together with programs to promote legitimate, productive intra-regional technology transfer such as validated technology development chains and/or project licenses Industry outreach and compliance programs dedicated to ITT STM Enforcement efforts dedicated to ITT STM support for whistleblowers and tips

18 Q+A And Discussion Thank you for your time and attention, I will be glad to answer any questions now, or you may contact me any time at: Jay P. Nash Research Fellow Project on International Security, Commerce, and Economic Statecraft (PISCES) Center for Policy Research (CPR), University at Albany, State University of New York (SUNY) jnash@albany.edu And Partner and Asia Pacific Lead, SECURUS Strategic Trade Solutions, LLC jay.nash@securustrade.com

Defence Export Controls Policy

Defence Export Controls Policy Responsible Officer Approved by Deputy Vice-Chancellor (Research) Vice-Chancellor Approved and commenced April, 2016 Review by April, 2019 Relevant Legislation, Ordinance,