Cure Without a Disease: The Emerging Doctrine of Successor Liability in International Trade Regulation

Abstract

The application of "successor liability" theories is relatively new to international trade law and has exploded since the turn of the century. Successor liability is an equitable state law doctrine that allows a company's creditors to seek damages from a different company that either acquired the assets of or merged with the debtor company. Its first publicized appearance in international trade law came in October 2002, when an administrative law judge (ALJ) released an order determining that the U.S. Department of Commerce's Bureau of Industry and Security (BIS) could impose liability under the Export Administration Regulations (EAR) on a company that acquired the assets or ownership interest of another company that had allegedly committed export violations. A few months later, on March 4, 2003, the Boeing Company settled charges brought by the State Department's Directorate of Defense Trade Controls (DDTC) based on violations of the Arms Export Control Act by a company that Boeing acquired four years after the last alleged violation. Other agencies regulating international trade, particularly the Treasury Department's Office of Foreign Assets Controls (OFAC) and Department of Homeland Security's (DHS) Bureau of Customs and Border Protection (CBP), have now followed suit.