The Long-Standing Waiver for Manufactured Products from FHWA’s Buy America Requirements is Phasing Out
Amidst the flurry of tariff threats swirling around the world, the Federal Highway Administration (FHWA) is terminating the waiver known as the Manufactured Products General Waiver from the Buy America requirements found in 23 U.S.C.A § 313. The Buy America regulation requires all federal-aid projects to use only steel, iron, and manufactured products that are produced in the United States. Since 1983, these requirements have been waived for manufactured products that were permanently incorporated into federal-aid projects by not requiring such products to be produced domestically, apart from predominantly iron or steel components of manufactured products. This waiver is being phased out in 23 C.F.R. 635.410, an amendment to the Buy America regulation which establishes new standards that will apply to manufactured products on federal-aid projects. The final rule was published in the Federal Register on January 14, 2025 (Vol. 90, No. 8, pp. 2932-58).
The new rule, 23 C.F.R. 635.410, defines “manufactured products” as “articles, materials, or supplies that have been processed into a specific form and shape, or combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.” A manufactured product does not include an article, material, or supply if it is “classified as an iron or steel product, an excluded material, or another product category as specified by law or in 2 C.F.R. part 184” or “mixtures of excluded materials delivered to a work site without final form for incorporation into a project.” However, “an article, material, or supply classified as a manufactured product may include components that are iron or steel products, excluded materials, or other product categories as specified by law or in 2 C.F.R. part 184.”
Manufactured products must be manufactured in the United States effective for federal-aid projects obligated on or after October 1, 2025. The Manufactured Products General Waiver will remain in place until then. The additional requirement to have greater than 55% of the manufactured product’s components, by cost, be mined, produced, or manufactured in the United States becomes effective for federal-aid projects obligated on or after October 1, 2026. For all federal-aid projects obligated on or after October 1, 2026, all manufactured products permanently incorporated into the project must both be manufactured in the United States and have the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States be greater than 55% of the total cost of all components of the manufactured product.
Under the new rule, an article, material, or supply is generally only subject to one set of requirements. The classification of an article, material, or supply is made based on its status at the time it is brought to the work site for incorporation into an infrastructure project. The work site is the location of the infrastructure project at which the iron or steel product or manufactured product will be incorporated. The new rule also provides additional clarifications for precast concrete products and enclosures of electronic hardware systems classified as manufactured products, as well as, how to determine whether the cost of components for manufactured products is greater than 55% of the total cost of all components.
Tariff Whiplash in North America
On March 4, 2025, and pursuant to President Donald Trump’s authority under the International Emergency Economic Powers Act (IEEPA), the U.S. proceeded with imposing IEEPA tariffs of 25 percent on products of Canada and Mexico, while also increasing IEEPA tariffs to 20 percent on products of China. Yet, in the two days that have passed since these IEEPA tariffs went into effect, we have already seen dramatic changes with respect to Canada and Mexico, exemplifying the fast-changing nature of negotiations between the U.S. and its North American trading partners.
Here are the key aspects of these tariffs as originally imposed on March 4, their limited exemptions, and the latest announcements from the White House pausing certain IEEPA tariffs.
IEEPA Duty Rates and Rules of Origin (Effective March 4, 2025)
Mexico: 25 percent on all imports
Canada: 25 percent on all imports, except on Canadian energy or energy products, which are subject to a lower 10 percent tariff.
China: 20 percent on all imports (previously 10 percent)
These tariffs apply broadly to most imported goods that are “products of” those three countries. For Canada and Mexico, the determination of whether merchandise is a “product of” those countries is based on two rules of origin: 1) United States-Mexico-Canada Agreement (USMCA) origin rules and 2) “substantial transformation,” which often involves a complex case-by-case analysis. For China, the non-preferential rules of origin apply, which includes the substantial transformation analysis. Thus, importers need to be wary that even imports coming from outside of Canada, Mexico, or China can be subject to these IEEPA tariffs, e.g., an unassembled Chinese-origin product that undergoes only simple assembly in a third country would remain subject to China tariffs.
Importers should also keep in mind these tariffs are additive, and can stack on top of other existing tariffs, such as Section 301 and Section 232 duties.
Limited Exemptions
Should all tariffs snap back into place in one month, importers should be aware that there are currently very few and limited exemptions from IEEPA tariffs. For instance, exemptions remain for certain “Chapter 98” importations, such as for temporary importations under bond (TIB) or goods that are exported and subsequently returned. And at the moment, the U.S. continues to allow shipments valued at or under the $800 de minimis threshold to avoid IEEPA tariffs, pending the Commerce Department’s report that “adequate systems” are in place to collect duties on these de minimis entries.
Aside from Chapter 98 and de minimis shipments, the published instructions explicitly rule out the use of drawbacks and foreign trade zones (FTZ) to obtain refunds or avoid the tariffs. There is also no process established to request product-specific exclusions.
One-Month Pause for Certain Imports from Mexico and Canada
On March 5, 2025, the White House announced a one-month delay on the 25 percent tariffs for automotive imports from Canada and Mexico. To date, the White House has not published details regarding the scope of this pause, such as whether it would apply to all automotive-related goods including parts and components. It is also unclear whether the pause would apply only to certain U.S.-based automakers or if all automakers importing into the U.S. from Canada and Mexico would receive tariff relief for one month.
On March 6, 2025, President Trump further announced in the media that he had reached an agreement with Mexican President Claudia Sheinbaum to delay the 25 percent tariffs for one month on nearly all goods from Mexico that “fall under the USMCA Agreement.” The White House has not published details regarding the scope of this one-month pause for Mexico.
More Changes on the Way
Given the evolving nature of the administration’s trade policy, businesses affected by tariffs should closely monitor changes on the horizon. Businesses should continue to look out for official publications regarding the one-month pause on certain IEEPA tariffs to assess the actual scope of the one-month reprieve. Businesses should also prepare for potential new tariffs under President Trump’s Fair and Reciprocal Plan that may go into effect as soon as April 2, the same time the one-month pause on IEEPA tariffs ends.
European Union Adopts 16th Package of Sanctions Against Russia, Further Impacting the Aviation Industry
On 24 February 2025, the European Union adopted the 16th Russia sanctions package.
The new measures amending the framework Council Regulation (EU) 833/2014 are found and included in Council Regulation (EU) 2025/395. They target systemically important sectors of the Russian economy including energy, trade, transport, infrastructure and financial services. The new package also includes restrictions directly impacting the aviation industry, through the amendment to Article 3d, “the flight ban”, and the inclusion of Article 5ae, “a full transaction ban” on ports and airports in and surrounding Russia.Below you will find a very brief note on the beforementioned articles.
Amendment to Article 3d:
A notable new provision is the new Article 3d(1b) which provides for the possibility to list any third country airlines operating domestic flights within Russia or supplying, selling, transferring or exporting, directly or indirectly, aircraft or other aviation goods and technology to a Russian air carrier or for flights within Russia. If listed in Annex XLVI, these air carriers, as well as any entity owned or controlled by them, will not be allowed to land in, take off from or overfly EU territory.
Are there any exceptions?
The flight ban will not apply:
In the case of an emergency landing or an emerging overflight; or
If such landing, take-off or overflight is required for humanitarian purposes.
Inclusion of Article 5ae:
The new package includes a full transaction ban, with immediate effect, on Russian ports and airports, which are believed to have been used to transport combat-related goods and technology, or to circumvent the oil price cap by transporting Russian crude oil via ships in the shadow fleet. The restrictions are broadly drafted and will apply to any transactions with relevant ports and airports (as listed in Annex XLVII), even if there is no direct transaction with the port authorities themselves. That includes access to facilities of the listed ports, locks and airports, and the provision of any services to vessels or aircrafts.
Are there any exceptions?
The exceptions include transactions which are strictly necessary for:
Humanitarian purposes;
The operation of flights required for attending meetings with the objective of seeking a solution to Russia’s invasion of Ukraine or of promoting the policy objectives of the restrictive measures;
An emergency landing, take-off or overflight;
Travel for official purposes of members of diplomatic or consular missions of Member States or partner countries in Russia or of international organisations enjoying immunities in accordance with international law;
Travel, for personal reasons, of natural persons to and from Russia or of members of their immediate families travelling with them; and
The purchase, import or transport of pharmaceutical, medical, agricultural and food products whose import, purchase and transport is allowed under the EU sanctions regime.
Supreme People’s Court Presiding Judge Chen Wenquan Elaborates on 640 Million RMB Trade Secret Case
On March 7, 2025, Judge CHEN Wenquan, the Supreme People’s Court judge that presided over the case that yielded the largest intellectual property damages in China’s history, elaborated on the case. In decision （2023）最高法知民终1590号 released June 14, 2024, the SPC applied 2X punitive damages on appeal in a dispute between two well-known (and unnamed) domestic automotive companies regarding new energy vehicle chassis technical trade secrets that were misappropriated in a personnel poaching scheme. The plaintiff is believed to be Geely Holding Group and the defendant is WM Motor. Note that WM Motor is reportedly insolvent so collection is unlikely. Below, Judge Chen only mentioned the non-monetary obligations were fulfilled.
Judge Chen stated:
To build a strong country in science and technology, it is necessary to encourage and protect fair competition. In recent years, disputes over technical secrets caused by employee “job hopping” have occurred frequently, especially some newly established enterprises have illegally seized other people’s technology, personnel and resources in order to gain competitive advantages quickly, seriously disrupting the market order. The right holder in this case is one of the largest private automobile companies in my country. As early as 2014, it used its traditional models to develop, trial-produce, and produce hybrid and pure electric vehicles, made huge R&D investments, and has achieved initial R&D results. In order to gain competitive advantages quickly, competitors have poached senior management and technical R&D personnel related to the right holder on a large scale, and used the technical secrets mastered by the right holder’s former employees to apply for patents, manufacture and sell related models.
The outstanding feature of this case is that it is a case of infringement of technical secrets caused by the organized and planned large-scale poaching of new energy vehicle technical personnel and technical resources by improper means. On the basis of the overall judgment of the infringement of technical secrets, the People’s Court applied double punitive damages in accordance with the law and awarded more than 640 million RMB, setting a new record for the amount of compensation awarded in domestic intellectual property infringement lawsuit. More importantly, the trial of this case has always been based on the judicial concept of protecting innovation in an innovative way, and has made pioneering explorations in the specific way, content, scope of civil liability for stopping infringement, and the calculation standard of delayed performance of non-monetary payment obligations. After the judgment was made, the infringer took the initiative to perform the non-monetary obligations determined by the judgment on time. As a typical case of the People’s Court protecting scientific and technological innovation in accordance with the law, this case not only effectively cracked down on malicious infringement of intellectual property rights, actively regulated and guided enterprises to operate in good faith and in accordance with the law, but also helped to stimulate the innovation and creation of enterprises, help develop new quality productivity, promote high-quality development of new industries and new fields, and promote the creation of a business environment that respects originality, legal operation, and fair competition.
The original text is available here (Chinese only).
Foley Automotive Update 06 March 2025
Foley is here to help you through all aspects of rethinking your long-term business strategies, investments, partnerships, and technology. Contact the authors, your Foley relationship partner, or our Automotive Team to discuss and learn more.
Special Update — Trump Administration and Tariff Policies
Foley & Lardner provided an update on the potential ramifications of steel and aluminum tariffs on multinational companies.
Foley & Lardner partner Gregory Husisian described sentiment among Chief Financial Officers on the Trump administration’s approach to trade policy in The Wall Street Journal article, “The Latest Dilemma Facing Finance Chiefs: What to Tell Investors About Tariffs.”
Key tariff announcements include:
USMCA-compliant automakers have a one-month exemption from the 25% tariffs on U.S. imports from Canada and Mexico that were announced on March 4. The Trump administration announced the decision on March 5, following discussions with Ford, GM, and Stellantis.
In a March 5 MEMA update regarding the temporary pause of auto tariffs on Canada and Mexico, President and CEO Bill Long stated “Conversations held today indicate positive results that USMCA-compliant parts are included, but we are awaiting official confirmation from the Administration.” In breaking news on March 6, Commerce Secretary Howard Lutnick stated to CNBC: “It’s likely that it will cover all USMCA compliant goods and services, so that which is part of President Trump’s deal with Canada and Mexico are likely to get an exemption from these tariffs. The reprieve is for one month.”
On March 4, U.S. duties on Chinese imports were doubled to 20%. China intends to implement new tariffs on U.S. imports on March 10, and the nation added over two dozen U.S. companies to export control and corporate blacklists.
The Canadian government does not plan to repeal the 25% retaliatory tariffs on approximately C$30 billion worth of goods from U.S. exporters, announced on March 4. Canada could also implement a second round of 25% tariffs in three weeks on C$125 billion of products that include cars, trucks, steel, and aluminum. Mexico plans to announce tariffs on U.S. imports on March 9.
25% levies on U.S. imports of steel and aluminum could be implemented March 12.
Announcements could follow on April 2 regarding 25% sector-specific tariffs that would include automobile and semiconductor imports, along with broader “reciprocal tariffs” on countries that tax U.S. imports. Details have not been provided regarding the recent threat for 25% duties on European imports.
A February 25 executive order directed the government to consider possible tariffs on copper.
Automotive Key Developments
U.S. new light-vehicle sales are estimated to have reached a SAAR between 16.1 and 16.3 million units in February 2025, according to preliminary analysis from J.D. Power and Haver Analytics.
Annual U.S. auto sales could decline by 500,000 units, and up to 2 million units, if the Trump administration were to implement 25% tariffs on automotive imports from Mexico and Canada, according to automotive analysts featured in the Detroit Free Press and Bloomberg. In addition, a recession could begin “within a year” if certain tariffs “persist for any length of time.”
The Alliance for Automotive Innovation and Anderson Economic Group estimate tariffs on Mexican and Canadian imports could raise the cost of a new vehicle by up to 25%, or by a range of $4,000 to $12,000, depending on the model.
Crain’s Detroit reports product launch delays are impacting suppliers as automakers postpone investment decisions until there is more stability in areas that include “federal tariffs, regulatory policy and electric vehicle incentives.”
A number of large auto suppliers are taking steps to reduce expenses in order to support profitability amid market uncertainty, according to a report in Automotive News.
The Wall Street Journal provided overviews of the potential impact of tariffs on automakers and vehicle components, stating that “no sector is as exposed to possible Trump tariffs as the auto industry.”
The benchmark price for domestic steel has increased 25% this year to $900 a ton, ahead of a possible 25% import tariff on the metal.
The Wall Street Journal reports the potential for tariffs on aluminum have already raised costs for buyers, as there are few U.S. suppliers capable of meeting supply needs after years of declining domestic production.
The National Highway Traffic Safety Administration laid off 4% of its staff as part of a government-wide reduction of federal employees. NHTSA had expanded its workforce by roughly 30% under the Biden administration, and it was estimated to have a staff of approximately 800 prior to the job cuts.
At the annual MEMA Original Equipment Suppliers event on February 27, the North American purchasing chief of Stellantis indicated the automaker will consider supplier requests for pricing relief. This represents a reversal of a “no more claims” policy announced in 2024.
OEMs/Suppliers
Stellantis reported a full-year 2024 net profit of $5.8 billion on net revenue of $156.9 billion, representing year-over-year declines of roughly 70% and 17%, respectively.
GM will temporarily halt production for a number of weeks at its Corvette plant in Bowling Green, Kentucky, for undisclosed reasons.
Mercedes plans to reduce capacity in Germany as part of an initiative to reduce expenses by 10% through 2027 amid heightened competition, uneven demand, and high material costs. The automaker may also reduce its sales and finance workforce in China, according to unidentified sources in Reuters.
China’s top-selling automaker, BYD, could decide on a third plant location in Europe within the next two years. The automaker has plants underway in Szeged, Hungary, and Izmir, Türkiye.
Detroit Manufacturing Systems, LLC will acquire Android Industries, LLC and Avancez, LLC. The combined entity, Voltava LLC, will be headquartered in Auburn Hills, Michigan, and it is expected to reach over $1.5 billion in annual revenue.
Market Trends and Regulatory
J.D. Power estimates the average monthly payment for a new vehicle reached $738 in February, up 2.4% year-over-year. The analysis noted “vehicle affordability remains a challenge for the industry and is the primary reason why the sales pace, while strengthening, has not returned to pre-pandemic levels.”
The new vehicle average transaction price reached $48,118 in January 2025, according to analysis from Edmunds.
The International Longshoremen’s Association (ILA) ratified a six-year labor contract with the United States Maritime Alliance (USMX), ending months of uncertainty over the potential for a follow-up strike at U.S. East and Gulf Coast ports.
National “right to repair” legislation was introduced in Congress last month by a bipartisan group of lawmakers. The Right to Equitable and Professional Auto Industry Repair Act (H.R. 906) follows multiple recent attempts by Congress to pass similar legislation.
The 2026 Detroit Auto Show will take place January 14–25, 2026, at Huntington Place.
In response to concerns over the compliance costs associated with 2025 carbon dioxide emissions standards in the European Union, the European Commission announced automakers will now have a three-year window to meet emissions targets in the bloc.
Autonomous Technologies and Vehicle Software
Automotive News provided an update on the outlook for artificial intelligence (AI) adoption in certain automotive applications.
A number of automakers are pursuing software and AI-based technology to differentiate their vehicles’ self-driving features, according to a report in The Wall Street Journal.
Stellantis debuted a Level 3 automated driving system, STLA AutoDrive 1.0, that is expected to facilitate hands-free and eyes-off functionality at speeds of up to 37 mph. The automaker did not provide a launch date for the technology. The Society of Automotive Engineers (SAE) defines Level 3 as autonomous technology that can drive the vehicle under limited conditions without human supervision.
Mercedes is currently the only automaker with a Level 3 system approved for use in the U.S., and the automaker’s Drive Pilot is only available in Nevada and California. Honda plans to launch Level 3 automated driving system in 2026, in the 0 Series in North America.
Uber began offering its customers driverless Waymo rides in Austin, Texas.
Electric Vehicles and Low Emissions Technology
China’s Xiaomi has a goal to deliver over 300,000 EVs in 2025, and this would more than double its deliveries last year. The consumer electronics giant sells nearly all its EVs within China.
China announced new export restrictions on tungsten and other specialty metals used in applications that include EV batteries.
TechCrunch analysis indicates there are currently 34 battery factories either planned, under construction, or operational in the U.S., up from two in 2019.
Stellantis’ Brampton Assembly plant in Ontario has been temporarily shut down as the automaker reevaluates plans for the next-generation electric Jeep Compass SUV that was scheduled to begin production in early 2026. This follows a decision by Ford to delay the launch of its next-generation gas and hybrid F-150 pickup trucks.
Canada’s zero-emission vehicle sales declined by nearly 30% in January 2025 from December 2024. This follows a halt in the federal rebate program, when funding was exhausted ahead of the original termination date of March 31, 2025.
The Trump administration directed federal buildings across the U.S. to shut off EV chargers, according to communications from the General Services Administration described by unidentified sources in Bloomberg.
Upstream’s 2025 Automotive and Smart Mobility Global Cybersecurity Report found that attacks involving EV chargers increased to 6% in 2024, from 4% in 2023. According to the report, 59% of the EV charging attacks in 2024 had the potential to impact millions of devices, including chargers, mobile apps, and vehicles.
Among the top 10 battery electric vehicle (BEV) models with the fewest reported problems in the J.D. Power 2025 U.S. Electric Vehicle Experience (EVX) Ownership Study, seven were in the mass market segment. BMW iX was rated highest overall and highest in the premium BEV segment, and the Hyundai IONIQ 6 ranked highest in the mass market BEV segment.
Consumer Reports’ Best Cars of the Year for 2025 includes six models with hybrid options and one fully electric model.
BEV sales in Europe increased 34% year-over-year in January 2025, while overall new-vehicle registrations fell by 2.5%, according to data from the European Automobile Manufacturers’ Association (ACEA). BEVs achieved a 15% market share in Europe, compared to 10.9% in January 2024.
Analysis by Julie Dautermann, Competitive Intelligence Analyst
Michigan’s Car Seat Law is Changing in 2025 – Here’s What You Need to Know
Big changes are coming to Michigan’s car seat laws on April 2, 2025, aimed at keeping children safer on the road. If you’re a parent or caregiver, now is the time to get familiar with the new rules to ensure your little ones are protected.
Why Do These Changes Matter?
Car seats are life-saving devices. In passenger cars, child restraints lower the risk of fatality by 71% for infants under 1 year old and 54% for children ages 1-4. Since 1975, child restraints have saved over 11,000 children under the age of 5, according to the National Highway Traffic Safety Administration (NHTSA).
What’s Changing?
Here’s what you need to know about Michigan’s updated car seat requirements:
Rear-Facing Until Age 2: Children must remain in a rear-facing car seat until they are at least 2 years old, or until they exceed the height or weight limits of their seat.
Harnessed Car Seat Until Age 5: Children must use a harnessed car seat until they turn 5 years old, or until they outgrow the height or weight limit of their seat.
Booster Seat Rules Remain the Same: Kids under 8 years old and shorter than 4 feet 9 inches are still required to use a booster seat.
The Importance of Proper Car Seat Use
The sad truth is that many children are at risk of injury because of improper car seat use. In 2022, 599 children under age 13 died in traffic crashes, and 429 were injured. Shockingly, more than one-third of those who died were unrestrained.
A study found that 46% of car seats and boosters are used incorrectly, reducing their effectiveness. This is why it’s essential to double-check that your child’s car seat is properly installed. Local organizations like Safe Kids offer car seat safety checks to help parents and caregivers ensure their seats are secure.
Car Seats Save Lives
When used correctly, car seats, booster seats, and seat belts dramatically reduce the risk of injury and death. These updated laws are designed to give children the best possible chance of walking away from an accident unharmed. As we get closer to April 2, 2025, take the time to review your child’s car seat setup to ensure you’re following the updated safety guidelines.
Farm to Fly Act Reintroduced in Congress, Would Expand Use of Biofuels for Aviation
On January 16, 2025, Senators Jerry Moran (R-KS), Chuck Grassley (R-IA), Tammy Duckworth (D-IL), Pete Ricketts (R-NE), Amy Klobuchar (D-MN), and Joni Ernst (R-IA) reintroduced the Farm to Fly Act (S. 144), which would help accelerate the production and development of sustainable aviation fuel (SAF) through existing U.S. Department of Agriculture (USDA) programs to allow further growth for alternative fuels to be used in the aviation sector and create new markets for American farmers. According to Moran’s January 21, 2025, press release, the Farm to Fly Act would:
Clarify eligibility for SAF within current USDA Bio-Energy Programs, expanding markets for American agricultural crops through aviation bioenergy;
Provide for greater collaboration for aviation biofuels throughout USDA agency mission areas, increasing private sector partnerships; and
Affirm a common definition of SAF for USDA purposes, as widely supported by industry to enable U.S. crops to contribute most effectively to aviation renewable fuels.
The press release notes that in September 2024, Senators Moran, Duckworth, Klobuchar, and John Boozman (R-AR) launched the Sustainable Aviation Caucus “to promote the longevity of the aviation and renewable fuels industries.” Representatives Max Miller (R-OH), Mike Flood (R-NE), Brad Finstad (R-MN), Nikki Budzinski (D-IL), Claudia Tenney (R-NY), Tracey Mann (R-KS), Mike Bost (R-IL), Don Bacon (R-NE), Randy Feenstra (R-IA), Dusty Johnson (R-SD), Mark Alford (R-MO), Eric Sorensen (D-IL), Mariannette Miller-Meeks (R-IA), and Michelle Fischbach (R-MN) reintroduced companion legislation (H.R. 1719) in the House on February 27, 2025.
Supreme Court Update: Republic of Hungary v. Simon (No. 23-867)
In Republic of Hungary v. Simon (No. 23-867), the Supreme Court addressed, for the second time, whether Jewish survivors of the Hungarian Holocaust have alleged enough facts to pierce the sovereign immunity of Hungary and its state-owned railway. And just as it did the last time, a unanimous Court concluded that the plaintiffs hadn’t done enough for U.S. courts’ exercise of jurisdiction over Hungary. In so doing, the Court rejected the D.C. Circuit’s “comingling” theory of the FSIA’s expropriation exception. We’ll explain exactly what that means in a second, but for those who want to cut to the chase, the end result is that it is now very difficult for plaintiffs to sue foreign states over alleged expropriations of property in cases where the foreign state long ago sold the disputed property, effectively limiting the expropriation exception to disputes over specifically identifiable pieces of property that are still in the foreign state’s possession.
Understanding Simon’s holding requires a bit of background on the complicated law of sovereign immunity. For most of its history, the United States adhered to the “absolute” theory of foreign sovereign immunity, under which foreign states were essentially always immune from suit in United States court. That changed in 1952, when the State Department adopted the so-called restrictive theory of immunity, which “restricts” sovereign immunity to cases where the foreign state is acting in its sovereign capacity, while abrogating immunity for commercial acts. In 1976, Congress codified the restrictive approach with the Foreign Sovereign Immunities Act (“FSIA”). It grants foreign states and their agencies and instrumentalities a baseline of immunity in U.S. court, subject to various statutory exceptions. Consistent with the restrictive theory, most of those exceptions deny states sovereign immunity for their commercial activities (like entering contracts). One of them, though, the so-called expropriation exception, has a different focus. Drafted in response to Communist nations’ expropriation of American-owned property abroad, it eliminates a foreign state’s sovereign immunity in any suit where “rights in property taken in violation of international law are in issue.” But the exception also contains what’s called the “commercial nexus,” which limits the exception to cases where the expropriated “property or any property exchanged for it” is present in the United States in connection with certain types of commercial activity here.
In 2010, a group of Jewish survivors of the Hungarian Holocaust sued Hungary and Hungary’s national railroad in federal court, seeking compensation for Hungary’s genocide of hundreds of thousands of Hungarian Jews in 1944–45. One part of Hungary’s genocidal campaign was property expropriations: Before sending Jews to their death, Hungary stripped them of their personal property, which it then auctioned off. While no recognized FSIA exception allowed the plaintiffs to assert tort-like claims over their mistreatment, they asserted that they could sue for the value of that stolen property under the expropriation exception. But unlike most expropriation-exception cases—where a plaintiff seeks to reclaim an identifiable piece of property still in the foreign state’s possession—the property was long gone. Plaintiffs tried to avoid that problem by arguing that the proceeds Hungary obtained from selling off their property amounted to “property exchanged for” their long-lost possessions. And while the plaintiffs could not trace those specific funds to Hungary’s present day commercial activity in the United States, they argued they didn’t have to: Because Hungary “commingled” the proceeds from those property confiscations with the funds in its general treasury, all the money in its treasury became “property exchanged for” their stolen property. And because Hungary uses money in its general treasury to engage in some commercial activity in the United States (like buying military hardware), a small piece of those proceeds are likely present in the United States now in connection with commercial activity here.
The District Court and then the D.C. Circuit endorsed this “commingling” theory, holding that plaintiffs’ allegations were enough to satisfy the expropriation exception’s commercial nexus and that the burden should be on Hungary to disprove that any of the proceeds from its property theft had made their way to the United States. At the same time, the lower courts rejected several other arguments made by Hungary that the expropriation exception didn’t cover the plaintiffs’ claims. One of those other holdings made its way to the Supreme Court back in 2020, alongside a companion case, Federal Republic of Germany v. Philipp. In that case, the Court ultimately held that the expropriation exception is not satisfied by allegations that a foreign state expropriated the property of its own nationals. Hungary argued that Philipp disposed of the case, but on remand, the D.C. Circuit concluded that some of the Simon plaintiffs were not Hungarian nationals when their property was taken. In the meantime, though, the Second Circuit had considered and rejected the D.C. Circuit’s comingling theory, holding that in order to satisfy the expropriation exception, a plaintiff had to plead and prove that identifiable property—or in cases of sold property, specifically identifiable proceeds from the sale of that property—were present in the United States. The D.C. Circuit declined to reexamine its earlier decision endorsing the commingling theory, so the Supreme Court granted cert to resolve this newly arisen circuit split.
Writing for a unanimous court, Justice Sotomayor rejected the D.C. Circuit’s expansive approach to the expropriation exception’s commercial nexus. She started with some points where the parties agreed: In a suit involving a piece of property that the foreign state still owns—say a work of art—the expropriation exception clearly requires the plaintiff to plead that the property is “present in the United States” in connection with commercial activity here. And if the foreign state exchanged that originally expropriated work of art for another piece of identifiable property—say another work of art—the plaintiff would have to show that this subsequently acquired work of art is present here in the United States. But what happens if rather than exchanging the expropriated work of art for another piece of art, the foreign state sells it? In some cases, the proceeds from that sale can still be traced to the United States, say if the foreign state transferred the proceeds to a particular bank account and then used those funds for some transaction here. But plaintiffs and the D.C. Circuit held that this level of specificity wasn’t required given the fungible nature of money: In essence, they argued the once a foreign state sells expropriated property and commingles the proceeds in its general treasury, any specific tracing requirement goes out the window and all the state’s money presumptively becomes property “exchanged for” the original disputed property unless the foreign state can disprove any alleged connection.
The Court concluded that this went too far for two main reasons. First, not unlike plaintiffs in any other suit, plaintiffs in FSIA cases have to “plausibly” allege that an exception to foreign immunity applies. But states raise money from all sorts of sources, and they spend it on a wide range of commercial and non-commercial activities both at home and abroad. As a general matter, then, it is not “plausible” that the specific proceeds from Hungary’s auctioning off of Jewish-owned property in 1944 and 1945 have ended up in the United States today in connection with one of Hungary’s limited commercial actions here. The factual connection between 1944 Hungary and present-day Hungary’s purchases of military hardware in the United States is just not that plausible given all that’s happened in the interim. Second, the expropriation exception is itself a bit of an anomaly, as it departs from the “restrictive” theory of sovereign immunity by subjecting foreign states to suit in the United States for takings of property, “sovereign” acts if there ever were any. Justice Sotomayor was thus unwilling to read the expropriation exception’s commercial-nexus requirement in a way that would further extend the exception’s reach.
All this is not to say that a plaintiff can never rely on the expropriation exception to sue a foreign state over the expropriation of property the foreign state has since sold. Rather, Justice Sotomayor took pains to point out prior examples—including one that figured prominently in Congress’s creation of the expropriation exception—where the proceeds from the sale of expropriated property could be directly tied to the United States without relying on some commingling presumption. And while Sotomayor acknowledged that it may be difficult for plaintiffs to provide similar evidence in many other cases, including perhaps this one, that is the inevitable result of the statute Congress created. The Court thus once again remanded to the D.C. Circuit where the plaintiffs can decide whether to try to plead and prove that the specific proceeds from the sale of property stolen from them can be traced to the United States.
Supreme Court Update: Lackey v. Stinnie (No. 23-621)
In Lackey v. Stinnie (No. 23-621), the Supreme Court addressed a question that had divided the circuits: If a plaintiff sues under Section 1983 and obtains a preliminary injunction, but subsequent events moot the suit before the district court can make that temporary relief permanent, is the plaintiff a “prevailing party” entitled to attorney’s fees under Section 1988(b)? Rejecting the approach favored by most lower courts, a 7-2 Supreme Court held that they are not.
The case began in Virginia, where state law required courts to suspend the license of any driver who had failed to pay “any fine, costs, forfeitures, restitution, or penalty lawfully assessed against him.” Such suspensions remain in effect until the driver paid the amount due in full or entered into a payment plan approved by a court. In 2016, a group of drivers whose licenses were suspended under this provision and alleged that they could not pay the fines required to reinstate their license sued the Commissioner of the Virginia Department of Motor Vehicles in federal court under Section 1983. The drivers alleged that the law violated the due process and equal protection clauses because it did not provide them with adequate notice before their licenses were suspended, and it applied even to people who were financially unable to pay the fines. The drivers sought declaratory relief, preliminary and permanent injunctive relief, and attorney’s fees under 42 U.S.C. § 1988(b).
In December 2018, the District Court entered a preliminary injunction against the law, holding (among other things) that the drivers were likely to prevail on the merits. Although Virginia could have appealed the preliminary injunction, it didn’t, so the case moved toward a full trial on the merits. In April 2019, a few months before trial was scheduled to begin, Virginia moved to stay the suit, arguing that it would soon become moot because the Virginia General Assembly was likely to pass a law eliminating the fines in an upcoming legislative session. The District Court entered the stay, and the next year, the General Assembly repealed the law and reinstated any licenses that had been suspended under it. Given that legislative change, the parties agreed the case was moot and stipulated to a dismissal, but the drivers asserted they were “prevailing parties” entitled to recover their attorney’s fees under Section 1988(b). The District Court refused to award fees, concluding that a party who obtains just a preliminary injunction (with no final relief) is not a prevailing party under Section 1988(b). Relying on circuit precedent, a Fourth Circuit panel affirmed, but the en banc Fourth Circuit then took up the case and overruled its precedent. In doing so, it joined the majority of the other courts of appeals in holding that a plaintiff who obtains “concrete, irreversible relief” on the merits of their claim via a preliminary injunction can be a prevailing party if the suit then becomes moot before a final judgment. Because the lower courts had divided on how to apply Section 1988(b)’s prevailing-party standard to cases like this one, the Court granted cert.
A 7-2 Court reversed the Fourth Circuit in an opinion written by Chief Justice Roberts. The Chief began by reciting the familiar “American Rule,” which provides that a prevailing party is generally not entitled to recover their attorney’s fees unless a statute expressly authorizes the court to award them. Section 1988(b) obviously is such a statute, as it provides that a “court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” But the statute doesn’t define when someone is a “prevailing party.” So Roberts looked to legal dictionaries, which generally define the term as looking at who prevailed at “the end of the suit . . . when the matter is finally set at rest.” A preliminary injunction, by contrast, requires a party to show only that they are “likely to succeed on the merits,” meaning that a party who obtains a preliminary injunction may nonetheless go on to lose the suit on the merits. Preliminary injunctions are thus at most a “transient victory.” And that transient victory does not become any more final when some “external event” (like the legislature changing the law) makes it impossible to obtain enduring, court-ordered relief. In short, because a preliminary injunction does not conclusively resolve a case, a party obtaining a preliminary injunction, without more, is not a prevailing party entitled to recover fees.
Justice Jackson, joined by Justice Sotomayor, dissented. She emphasized that Section 1988(b) was enacted precisely because Congress wished to depart from the American Rule in civil rights litigation. Under both the plain language and the Court’s precedent, she concluded that securing a preliminary injunction is enough for a plaintiff to qualify as a prevailing party so long as the preliminary injunction is never reversed by a final ruling on the merits. She also objected to the significant practical consequences of the majority’s approach: It is hardly unique for civil-rights cases to be mooted out either by settlement or legislative action, and depriving successful litigants of attorney’s fees in those cases may deter the filing of meritorious suits, deter settlements, and reward gamesmanship from defendants.
Accessibility Law in Canada: Cross-Country Disability Access Legislation
Some jurisdictions in Canada are subject to accessibility legislation that sets disability access standards, such as for provincially regulated organizations operating in the provinces of Ontario and Manitoba and for federally regulated industries (such as telecommunications, transportation, etc.).
These laws generally do not provide a direct right of action for alleged violations of disability access standards. Rather, recourse is available through other legislation that prohibits discrimination on the basis of disability, including human rights legislation in every Canadian jurisdiction.
Quick Hits
Organizations that are provincially regulated in Ontario and/or Manitoba, and/or organizations that are federally regulated (e.g., telecommunications, railways, etc.) are currently subject to accessibility legislation.
Provincially regulated private-sector organizations in other Canadian provinces and territories are not currently subject to accessibility standards legislation.
For federally regulated organizations, the Accessible Canada Act (ACA) requires development of an accessibility plan in consultation with people with disabilities and annual reporting on progress. The next deadline, for private-sector organizations to file their second progress report, is June 1, 2025.
In Ontario, the Accessibility for Ontarians with Disabilities Act (AODA) applies to all organizations and requires compliance reporting every three years. The next deadline is December 31, 2026.
In Manitoba, the Accessibility for Manitobans Act sets accessibility standards for all organizations. The next deadline is for meeting information and communication standards by May 1, 2025.
Provincial Accessibility Legislation
Ontario has Canada’s oldest and most fulsome accessibility legislation: the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). Organizations operating in Ontario are required to meet the standards set out in the AODA and its regulations. Every three years, organizations covered by the AODA must submit a report regarding their compliance to the Ontario Ministry of Seniors and Accessibility. The next reporting deadline is December 31, 2026.
Manitoba was next to enact accessibility legislation with the establishment of the Accessibility for Manitobans Act in 2013. Organizations are currently subject to accessibility standards under the legislation and were required to meet those standards for customer service in 2018 and employment in 2022.
The next deadlines are to meet the information and communication standards by May 1, 2025 (some specific public-sector organizations had earlier deadlines) and the transportation standard by January 1, 2027 (with the exception of accessibility upgrades to existing buses operated by conventional transit operators). Standards for the design of outdoor public spaces are in development.
Several other provinces have enacted accessibility legislation under which accessibility standards will or may apply to private-sector employers once established by regulation at some point in the future.
British Columbia’s Accessible British Columbia Act (2021) currently applies only to school districts, educational institutions, municipalities, health authorities, and other public-sector organizations, who were required to comply by September 1, 2024.
Saskatchewan’s Accessible Saskatchewan Act (2023) currently applies only to the government of Saskatchewan.
Accessibility legislation in New Brunswick (the 2024 Accessibility Act), Newfoundland and Labrador (2021’s An Act Respecting Accessibility in the Province), and Nova Scotia (Accessibility Act (2017)) do not yet impose accessibility standards on organizations, as regulations are still in development.
Several other provinces and territories do not have accessibility legislation at this time: Alberta, Northwest Territories, Nunavut, and Prince Edward Island.
Federal Accessibility Legislation
Notably, federally regulated organizations (e.g., telecommunications, railways, etc.) operating in any Canadian province or territory are subject to the federal Accessible Canada Act (ACA), regardless of whether the jurisdiction has separate provincial accessibility legislation.
Under the ACA, organizations are required to develop an accessibility plan that identifies barriers to accessibility in seven priority areas (including employment, the built environment, communication, information technology, procurement, design and delivery of programs and services, and transportation). Organizations are required to consult with people with disabilities in preparing their plans, which should outline the actions that are being taken to address the identified barriers.
Private-sector organizations were required to publish their first accessibility plans by June 1, 2023. Annual progress reports setting out what has been done to address the identified barriers were required to be published in June of each of the next two years (i.e., June 1, 2024) for the first progress report and June 1, 2025, for the second progress report. The following year, by June 1, 2026, organizations are required to publish a new accessibility plan, and the reporting cycle continues. Governmental organizations have their deadlines one year before private-sector organizations.
Arbitrator Selection in International Automotive Supply Chain Disputes
Why Arbitrator Selection Matters
International automotive supply chains often involve tight just-in-time deadlines, so resolving disputes quickly and efficiently is critical. When arbitration is the designated resolution method, the arbitrator’s qualifications and experience can significantly affect the speed, fairness, and effectiveness of the process. Choosing an arbitrator with relevant industry expertise and strong procedural management skills can help minimize business disruptions and financial risks.
Key Considerations for Selecting an Arbitrator
Industry-Specific Expertise
Select arbitrators with a solid background in automotive manufacturing, logistics, or supply chain operations.
Knowledge of OEM-supplier relationships, production timelines, and quality control standards is essential for understanding contractual obligations and industry best practices.
Legal and International Trade Knowledge
The arbitrator should be well-versed in the contract’s governing law.
If the dispute involves multiple jurisdictions, an arbitrator with cross-border contract enforcement experience is highly beneficial.
Experience in Supply Chain Disputes
Prior experience resolving contract breaches, supply chain interruptions, force majeure claims, and pricing conflicts is key.
An arbitrator familiar with assessing damages from delayed deliveries, nonconforming goods, or production disruptions can expedite dispute resolution.
Case Management Skills
Effective arbitration depends on an arbitrator’s ability to enforce clear timelines, oversee evidentiary processes and prevent unnecessary delays.
Selecting arbitrators with a strong track record of efficiently managing proceedings can reduce the risks of drawn-out disputes.
Ask potential arbitrators whether their schedules permit them to expeditiously decide the dispute, including granting emergency interim relief if appropriate.
Impartiality and Neutrality
Ensure the arbitrator has no conflicts of interest from prior business dealings or industry ties that could compromise neutrality.
Established institutions such as the ICC International Court of Arbitration (ICC), the International Centre for Dispute Resolution (ICDR), which is affiliated with the American Arbitration Association, and the Singapore International Arbitration Center (SIAC) offer pre-screened arbitrators known for their impartiality.
Best Practices for Arbitrator Selection
Define Arbitrator Qualifications in Contracts
Prevent selection disputes by specifying qualifications such as:
“Arbitrator must have at least five years of experience in international automotive supply chain disputes.”
“Arbitrator must be licensed to practice law in the following jurisdiction: ______________.”
Keep in mind that if the qualifications are too specific it may increase the time it takes for arbitrator selection, thereby delaying resolution of the dispute.
Utilize Established Arbitration Institutions
Many arbitration bodies provide industry-specific arbitrators, including:
ICC– commonly used in global supply chain agreements.
ICDR– well-suited for North American contracts.
SIAC– preferred for disputes in Asia-based supply chains.
Consider Three-Arbitrator Panels for Complex Cases
For high-value disputes or supply chain disruptions, a three-member tribunal can provide broader perspectives.
Each party selects one arbitrator, and the third neutral arbitrator is appointed by the institution or panel. Alternatively, all three arbitrators can be selected from a list proposed by the institution.
Keep in mind that dealing with the schedules of three arbitrators as opposed to one can significantly slow down the process and increases arbitrator fees.
Incorporate Virtual Arbitration for Efficiency
Many institutions now facilitate remote hearings and digital case management.
SIAC and ICDR support virtual arbitration, reducing costs and logistical delays associated with international disputes.
Final Takeaways
Selecting the right arbitrator is a strategic decision that directly affects the efficiency, fairness, and outcome of an automotive supply chain dispute. By prioritizing industry expertise, legal proficiency, procedural efficiency, and impartiality, companies can ensure smoother dispute resolution.
To minimize risks and improve arbitration outcomes, U.S. automotive executives or their lawyers should:
Clearly define arbitrator qualifications in contracts.
Choose reputable arbitration institutions with emergency relief options.
Consider three-arbitrator panels for high-stakes disputes.
Explore virtual arbitration to reduce costs and speed up proceedings.
CSRD Slashed: EU’s Corporate Sustainability Regulations Significantly Reduced
On 26 February 2025, the European Commission (the “Commission”) adopted a new package of proposals to simplify the regulations on sustainability. Their aim is to combine the competitiveness and climate goals of the European Union, which we reported on here, as part of their aim for a “simpler and faster” Europe.
The proposals, packaged in an “Omnibus”, dramatically reduce the scope and reporting required under the Corporate Sustainability Reporting Directive (“CSRD”), the Corporate Sustainability Due Diligence Directive (“CSDDD”) and the EU Taxonomy (“Taxonomy”).
We set out below the key changes proposed for CSRD.
The Omnibus’ aims for the CSRD are to make it “more proportionate and easier to implement by companies” through:
Reduction of scope:
“large undertakings” in scope of CSRD are redefined as those with over 1000 employees on a group or standalone basis, rather than 250 employees, with the financial thresholds of EUR 50 million turnover or a balance sheet total above EUR 25 million remaining static. This is significantly impactful reducing the scope of companies in scope of CSRD by around 80% (and aligns more with the CSDDD threshold). Listed SMEs are no longer in scope unless they meet the “large undertakings” thresholds; and
non‑EU parents will only be in scope of CSRD if they generated EU‑derived turnover of EUR 450 million, rather than EUR 150 million, with either an EU large undertaking meeting the revised thresholds set out above or with an EU branch with EUR 50 million in turnover to align with that required of “large undertakings”, revised upwards from EUR 40 million.
Postponement of reporting: for those companies who were due to report on year 2025 in year 2026 who remain in scope as they have over 1000 employees, there will be a two‑year delay to reporting.
A shield – the value chain cap: for companies not in scope of the CSRD (those with less than 1000 employees), the Commission will adopt by a delegated act a voluntary reporting standard leveraging the standard that was developed for SMEs. This standard is intended to act “as a shield” by limiting the amount of information that companies and banks falling into scope of the CSRD can request from companies in their value chains with few than 1,000 employees.
Reporting standards to be revised: the European Sustainability Reporting Standards (“ESRS”), which are at the heart of CSRD’s requirements, are to be revised via a delegated act to substantially reduce the number of data points, clarify unclear provisions and improve consistence with other legislation. They will remove datapoints that are deemed least important for general purpose sustainability reporting, prioritise quantitative datapoints over narrative text and further distinguish between mandatory and voluntary datapoints. Clearer instructions will be provided on how to apply the materiality assessment process. There is also reference to making sure that there is “very high” interoperability with global reporting standards.
No sector‑specific standards will be required
Limited assurance to remain: there will be no uplift to reasonable assurance over time.
Next steps
There is no impact assessment on the potential economic, social and environmental effects as the Commission has deemed the Omnibus to be so urgent and important that a derogation from the need to provide the impact assessment was granted under the Commission’s Better Regulation Guidelines. However, the market and a range of stakeholders will no doubt hotly debate the impact across all these areas. The Commission itself acknowledges that the proposed changes to CSRD may “partially diminish the positive impacts” but that the “reduction of administrative burden” should lead to economic and competitive gains.
The Commission has called on the European Parliament and European Council to “reach rapid agreement” on the proposals. The legislation needs European Parliament approval with a majority of MEPs voting in favour and at least 55% (15 out of 27) of Member States voting in favour at the European Council. It will then come into force following its publication in the EU Official Journal.
This legislation is also in the form of a Directive and requires national transposition by each Member State, which had not yet occurred across the EU for the current guide of CSRD. It could be that we witness some gold‑plating or an emergence of a range of EU Member State expectations through national guidelines at a juxtaposition with the aims of the EU’s Single Market.