Universities: Why export controls matter post-Brexit

Fieldfisher regulatory and trade partner Andrew Hood explains why knowledge-sharing could become more complicated after the transition period ends.

 
International export controls and sanctions have a global reach. They affect how technology, knowledge and products move around the world, and they affect universities, research institutes and academics in the same way they affect business.

They can concern a variety of activities such as research collaborations, consultancy and licensing activities and the penalties for breaking these laws can be severe.

In one notorious example, in 2009, University of Tennessee professor, John Roth, was jailed for four years for giving graduate overseas students access to sensitive information while they researched a guidance system for unmanned aircraft.

While no UK academics have yet suffered a similar fate, the increasing risks ought to concentrate minds.

What are export controls?

Export controls and sanctions are perhaps better known for regulating trade in military goods and technology, including weapons of mass destruction (nuclear, biological and chemical weapons as well as the missiles that deliver them).

Less well known perhaps, export controls also apply to so-called ‘dual-use’ items. As such, trade restrictions apply to anything intended for civilian purposes that has the potential for use by the military.

The UK’s Export Control Joint Unit maintains an internationally agreed list of such items that runs to hundreds of pages.

Export controls are not limited to restrictions on goods. They apply equally to “invisible transfers” of controlled software, technology and ‘know-how’ sent outside the UK and the EU.

Export controls apply whether you transfer that knowledge by email, by accessing UK servers from abroad or by travelling with it saved on a laptop. Controls on some US technology even prohibit making it accessible to foreign nationals in the UK without a licence.

As of now, export controls apply as if the UK remained a member of the EU. After the end of the Brexit transition period – currently set for the end of 2020 – that will change, leading to even more complexity for export controls and for institutions and academics collaborating with EU partners.

Impact on academics

Putting the risks in context, the majority of university research is basic science or already published and, therefore, exempt from export controls.

Controls are most likely to apply in certain disciplines, such as nuclear physics, biological sciences, chemistry, mechanical engineering, electronics, aerospace and computing.

This targeted impact of export controls and sanctions can mean that they are not front of mind when research is conducted and publications are being edited.

It can also give rise to complex assessments to determine whether a piece of know-how or technology is subject to export controls.

Impact of breaching export controls

Despite these difficulties, it remains essential for academic institutions and academics in all fields to comply with export controls and sanctions.

The UK’s Export Control Joint Unit can audit, investigate and penalise a university as well as a multinational corporation.

In addition to potentially heavy financial and criminal penalties, a violation can carry severe reputational risk with serious consequences for future research partnerships, funding and recruitment of overseas students and staff.

What is required to comply

Prevention, rather than cure, remains the key to complying with export controls.

While each institution needs to tailor its approach to their specific circumstances, some key steps can help to ensure they – and their staff – continue to comply with their obligations:
 

• Clear direction from the top: there needs to be a clear message from the highest levels of the institution of commitment to full compliance with UK, EU and international obligations.
• Developing a comprehensive export control and sanctions policy: a key step in raising awareness of the issue and developing an institution-wide plan and process for managing trade compliance.
• Identify "red flags" to highlight key risks for institutions and academics alike. They may not provide all the answers, but they do help to identify when to ask more questions.
• Training: ensuring academics, researchers and support staff are aware of the obligations and understand how to comply.
• Seeking advice: understanding whether export controls and sanctions apply can be highly technical. Even if it is clear that controls do apply, navigating the licensing process or preparing for an audit by UK authorities can be complicated and require support from compliance leads within the institution

These measures are important to protect both individual staff and institutions – no one wants to be the first in the UK to suffer the same fate as the University of Tennessee.

A version of this article first appeared in University Business on 28 July 2020.
 
Andrew Hood, is a partner at Fieldfisher and a specialist in international trade and regulation.