With more than 25 years of experience in export controls and economic sanctions, Davis Polk partner John Reynolds typically advises companies on U.S. trade restrictions. The deep knowledge that John and others at Davis Polk have in this area has also been uniquely valuable to pro bono client Médecins Sans Frontières (MSF or, in English, Doctors Without Borders), which provides lifesaving medical care in trouble spots around the globe. We recently spoke with John, counsel Will Schisa and associate Kendall Howell about the work they have been doing for this group, which received the Nobel Peace Prize in 1999.
MSF is a nonprofit, not a business. Why does the group need sanctions and export controls advice?
John: They operate in many places where Americans are not supposed to be present and where American goods and services generally are not supposed to be sent. Sometimes MSF has sought advice on how to get U.S. government approval of a particular activity, such as staying in Syria when it was an active war zone and caregivers’ neutrality was not being respected. In other scenarios, they may have concerns about an activity and we can tell them there is no restriction and they can move forward.
Can you give us an example of a project our team completed for MSF?
Will: In 2019, MSF was looking to send U.S. software and computer equipment to North Korea to support its tuberculosis testing and treatment program. The U.S. allows exports of medicines, medical devices and agricultural products to highly sanctioned jurisdictions. But because the needed equipment did not fall under that authorization, MSF needed to obtain a specific license from the U.S. Commerce Department.
Kendall: My role was to run point, to be the go-between between the Commerce Department’s Bureau of Industry and Security (BIS) and MSF. I worked with MSF to draft and submit the application and then to provide supplemental information requested by BIS. I started on this in October 2019, only weeks after I joined Davis Polk, and MSF got the license in January 2020.
Are there issues we have assisted MSF with this year?
Will: In January, at the tail end of the Trump administration, the State Department designated the Houthi group, an armed faction in the civil war in Yemen, as a foreign terrorist organization. The Treasury Department’s Office of Foreign Assets Control (OFAC) concurrently issued a general license to enable humanitarian organizations to continue to provide aid in the country. Still, the OFAC license didn’t eliminate all the legal risk for humanitarian groups operating in Yemen, and MSF had concerns. We helped them understand the legal implications, including how the government has historically looked at the issues – counsel that was informed by my previous work at OFAC.
John: The concerns went away in February, when the Biden administration reversed the FTO designation.
Will: More recently, MSF came to us with general question about the intersection between U.S. sanctions and export controls in certain countries where MSF conducts activities. We helped them understand OFAC and Commerce Department licensing requirements that may apply to items that support the organization’s work in those countries.
What other types of projects has Davis Polk helped the group with?
John: Some work has involved three-way conversations with MSF and pharmaceutical companies donating medicines for the group to use. Drug companies often make generous donations, but some companies get nervous when the MSF staffers say they are excited to take those medicines to a sanctioned country. We can talk to a compliance person at the company about any sanctions or export control issues and often will tell them there isn’t an issue they need to be concerned about. We have enough credibility that they will tend to listen to us, even though we aren’t their counsel.
In other cases, we have helped negotiate a solution in which MSF sets up a system to segregate medicines from a particular company and ensure that those goods go only to a particular destination.
Are there particular aspects you have enjoyed or found meaningful while working with MSF?
Will: The most meaningful part is being able to help an organization that does a lot of worthwhile work.
John: MSF’s people are oriented toward solving problems – life-threatening health and humanitarian crises – and they turn to us to help solve legal problems that can get in the way of the critical services they provide.
Kendall: I was familiar with MSF’s work from my time in the military, and it has been a real honor to be able to contribute to their mission, beginning in my first year at Davis Polk. As a first-year associate, pro bono work is a really excellent opportunity to learn a great deal, work closely with the client and see the impact you have on the organization.