Felicia Ellsworth: Welcome to “In the Public Interest,” a podcast from WilmerHale. I’m Felicia Ellsworth.
Michael Dawson: And I’m Michael Dawson. Felicia and I are Partners at WilmerHale, an international law firm that works at the intersection of government, technology and business.
Felicia Ellsworth: This week, I’m thrilled to be joined by Neena Shenai to discuss some of the pressing questions lawyers, business executives and public servants are currently tackling when approached with multijurisdictional trade-related opportunities and challenges. Neena is a Partner in our Washington, D.C. office who specializes in international trade law. With over 20 years of legal, compliance, and policy experience in global cross-border activities, Neena focuses her practice on sanctions and export controls, imports and customs, foreign investments, M&A due diligence and trade policy.
Before joining WilmerHale, Neena served as Senior Legal Director and Chief Counsel for Global Trade, Global Trade Legal, and Compliance at Medtronic, the world’s largest medical technology company, as Trade Counsel for the House of Representatives, Committee on Ways and Means, Senior Advisor at the U.S. Department of Commerce, Bureau of Industry and Security and as a law clerk to the honorable Evan Wallach on the U.S. Court of International Trade, as well as several other high-ranking legal and advisory positions in the private sector and in government. Neena also currently acts as a board member of the Washington International Trade Association and as a nonresident fellow at the American Enterprise Institute, where her research focuses on global trade, international economics and globalization.
This promises to be a fun episode exploring Neena’s remarkable career and her perspective on the current and prospective state of international trade law. I hope you all enjoy.
Neena, thank you so much for joining us on today’s episode for what is sure to be both an interesting and a practical conversation for our audience, especially for the in-house counsel and policy advisors listening in who are currently navigating the ever-shifting landscape of international trade.
Neena Shenai: Thanks so much, Felicia. And it’s really great to be with you on this episode of “In the Public Interest.”
Felicia Ellsworth: So as evidenced by your resume and list of accomplishments, no small stretch to say that you are a leading expert in the field of international trade and compliance law. But for those of our listeners who might not know exactly what it means to be a trade lawyer, can you describe your practice? Can you give us a taste of a day in the life of Neena Shenai?
Neena Shenai: Well, thanks for the question, Felicia. I have to say I used to get this question a lot more earlier in my career. Over the past few years, we’ve just seen trade become the tool of choice for U.S. and other governments to pursue foreign policy, national security, human rights and other international goals. So, things like tariffs, sanctions, export controls are making daily news in the front page of most international newspapers these days. I was in an Uber the other day and the driver struck up a conversation with me when I mentioned I was a trade lawyer. He said, “well, does that mean tariffs, sanctions and China?” This would not be the type of conversation I would have had a few years ago. As far as day in the life, well, no day is like the one before. We have a space which we would have been pleased to see any regulatory updates every few years, but, in fact, these are now happening almost on a daily basis. And the rules have become mind bendingly complex, even for those of us who have been doing this work for a very long time. To ensure I’m advising clients in real time, I need to be vigilant because of how dynamic the space is and watching the issues of the day and helping clients connect the dots strategically on what’s before them today, but also help them see and prepare for what may be around the corner.
Felicia Ellsworth: You’ve had a lot of really diverse experiences that brought you here to WilmerHale. But one thing that stands out to me from your prior experience, not just that they’re incredibly prestigious, but also all of them seem directed towards developing the legal expertise that you now have in trade and trade policy. And we have a lot of law students who listen to the podcast who may have a sense that they’re interested in transactional or litigation or regulatory generally, but maybe will specialize later in their careers. For you, it seems that you were always going to be an international trade lawyer, so I thought it’d be interesting to hear, why trade?
Neena Shenai: Well, I had always been interested in being a lawyer, so as a kid I was involved in local political campaigns and D.C. always fascinated me. I also traveled a lot growing up with my parents, so I knew I wanted to be an international lawyer. But I can’t say that I knew what that really meant till I was a junior at Swarthmore College and took an international politics seminar with late Professor Ray Hopkins and I wrote the seminar paper on the World Trade Organization for that week, and I really have been doing trade in one way, shape or form since that fateful week. And what has interested me and what has kept me in the field is the unique mix of policy, law, economics, politics that trade encapsulates, and really these complex relationships between governments and the private sector globally that lead to really fascinating issues. These days we see these existential geopolitical issues like how the world is contending with the rise of China, Russian aggression, to name a few, and the whole host of associated issues that have their primary arena in trade measures. I began my career on import and trade policy-related issues. And as trade issues have grown in salience, not only in these spaces but also on the export and sanctions side, this continued dynamism has kept me in the space and has kept it fresh and exciting.
Felicia Ellsworth: So thinking back for all the unique and interesting experiences you’ve had in government, private practice, in-house, is there any one that sticks out in your mind as being most formative for your practice or personal development or the actual work that you performed?
Neena Shenai: Well, I’d say that my experience has been accretive. I pride myself as one of the few professionals in this field who’s had credible and deep expertise on both import and export side issues, and I’ve seen different aspects of this area in all three branches of the U.S. government and at an international organization, the World Trade Organization, and also where the rubber hits the road, inside a multinational company. As a result of seeing these issues from so many different perspectives, I feel like I bring this compass of legal and policy trends, being able to see around the corners, as well as bring a practical, operational, and risk-based approach that captures business realities.
Felicia Ellsworth: So, let’s talk about some of these complex issues. For the folks who may be listening who are either helping an emerging company grow a global presence or those who may already be working on complex trade issues for a major international company, what do they need to be thinking about when they’re thinking about balancing legal risk against their global commercial endeavors?
Neena Shenai: I think the issue that you raised here about balancing legal risk and commercial opportunity is probably one of the most complex areas for in-house counsel to negotiate in this area. I don’t think that there’s a one-size-fits-all approach for this balance, but in my experience, it really boils down to in-house counsel internalizing the role that it plays in these types of transactions and the scope of the legal department and the purview of legal in these types of decisions. Lawyers are advisors and need to provide business with options and tools in a non-alarmist way to make these complex business calls on balancing risk and commercial opportunities. And a lot of times, it’s not for the lawyers to make these decisions. There are certainly instances where a lawyer can and should say no, but often the hardest legal issues in trade, and in other spaces writ large, really live not in the black and white, but in the gray. And when it comes to risk tolerance, whether a company wants to take on varying degrees of risk or decisions of risk, it’s just important that, in my view, as a legal advisor to allow the business to take those decisions with eyes wide open, with clear information on implications. Lawyers play a really critical role in that framing and counseling in helping the business see this full color, and the better the lawyer is at that, the more trusted the business partner they are.
Trade compliance resourcing and what constitutes sufficient trade compliance infrastructure for a company is really based on a company’s bespoke risks. So, if a company has a complex international footprint or operates in high-risk jurisdictions or in high tech sensitive technologies, or it conversely is a smaller company really getting started on this journey, there are going to be different risks. All companies do need to be clear eyed about global trade issues and that they can arise in counterintuitive and not logical ways. So, for example, it is not intuitive that sharing certain types of technology, say in an R&D setting, with foreign nationals in the United States can be considered an export, a deemed export, under U.S. export control laws. Or say a non-U.S. company that’s manufacturing products completely outside the United States may nevertheless be subject to U.S. jurisdiction if there is a single piece of machinery in their factory that is U.S. made. So, even for those of us who have been working most of our careers in this space, the regulations are getting increasingly complex and the regulators are expecting more from companies of all sizes. Companies also need internal mechanisms and capacity internally to, at a basic level, identify these issues and take appropriate steps. Regulators are expecting it and companies big and small I think no longer have the chance to plead ignorance.
Felicia Ellsworth: So let’s talk a little bit about the state of the trade world today. Obviously, there have been many ongoing major global conflicts—war in Ukraine and the unrest in the Middle East and others. How do these geopolitical and macroeconomic factors affect the daily practice of a trade lawyer like yourself?
Neena Shenai: Well, I’m chuckling because I feel like it’s hard for me to separate what I do at work from simply say, just reading the newspaper. My work requires me to think really extensively about these most difficult and intractable issues facing the world, like the ones that you’ve mentioned—the conflict in Ukraine, Gaza. And I care deeply about public policy issues and the future of rules-based trade, which we have been seeing collapsing before our eyes, and I really pride myself on really bringing that 360-degree thinking and I’m able to draw unique connections to issues which can be very helpful for clients in this ever-changing world.
Felicia Ellsworth: As we sit here for the remainder of 2024 and even looking into 2025 and, of course, an election year, what are the global trade issues that are top of mind for you and for your clients?
Neena Shenai: Well, it’s no secret that trade issues are a hot button issue in this year’s election cycle. So, no matter who’s in the Oval Office come January, trade tools are going to continue to be the mechanism of choice, short of armed conflict, to effectuate U.S. foreign policy goals and those of other nations. I think, sort of stepping back here, multinationals have built their businesses based on global trade rules—this rules-based trading order that I referred to earlier that were really a hallmark of the post-World War 2 order—and global supply chains, where products cross borders innumerable times and are sourced with parts and technologies from numerous countries and then are fanned out to consumers around the world. That’s been our prevailing model. And what we’ve seen building over the past 15 years or so, but really kind of crescendoing following the COVID-19 pandemic, the war in Ukraine, is where the U.S. and others are really concerned about existential issues like the rise of China, autocracies and are turning inward. The result has been a shift from free trade to focus of erecting trade barriers in the heightened use of industrial policy in the West, in the U.S. and really on a bipartisan basis. And this trend is really likely to continue putting pressure on those global footprints the companies have grown around.
Trade and investment with China, I think, is going to be a continued heightened focus under a Harris or Trump administration. And, if the past is at all a harbinger of the future, just see how little change in trade direction there’s been from the Trump to the Biden administrations. The China tariffs put in place by President Trump in 2018 have largely been kept in place by the Biden administration, and both President Trump and President Biden have presided over an unprecedented increase in the use of sanctions and export controls against entities and individuals worldwide. So, if I were to do some crystal ball gazing here, I would estimate that the policies of either future administration would be directionally similar, I’d say, with differences in tone, the “how” and degree.
Felicia Ellsworth: Fascinating. So, just to close out our conversation here, I did want to talk just a little bit about the experiences you’ve had and particularly as a woman in the law, considering some of the unique barriers that women have historically faced in our profession and, in some respects, continue to face.
Neena Shenai: Well, I just feel so fortunate to have benefited from the path paved by the generations of women that have preceded us. They have striven to create equal seats at the table for women. I really feel like I stand on their shoulders. I’ve benefited throughout my career from strong women and men mentors who have seen me for who I am and have supported me, and I’m just eternally grateful to them and I feel responsibility to give back to the next generation. So, I try my hardest to make time for younger lawyers, women and men, who reach out to me and are seeking career advice and do what I can to support them.
Felicia Ellsworth: I know you serve as a mentor, formal and informal, to many. What’s one or two words of advice that you might provide to our listeners who are just embarking on their legal career?
Neena Shenai: I would say speak up. The legal profession and law firms need young lawyers to bring everything they have and their experiences to the table. You have a powerful voice and a lot to say, so use it.
Felicia Ellsworth: One last question before we wrap up. I understand that WilmerHale is putting on an inaugural Sanctions Symposium on September 19th in our New York office. So, for our guests who are eager to learn more about some of the cross-border issues that you talked about today, can you give a quick preview about the event on September 19th?
Neena Shenai: Oh, thanks for mentioning the Sanctions Symposium. I’m just so excited about this half day in person event. The attendees are going to have the opportunity to hear from key industry executives and thought leaders during panel discussions on several topics—China and economic statecraft, cross-border enforcement, the convergence of sanctions and export controls, and the use of artificial intelligence and sanctions compliance. I’m going to be moderating the panel on the conversion of sanctions and export controls. Over time, we have seen the U.S., the European Union, the United Kingdom, other authorities strategically working together, using heightened complementary sanctions and export control measures to amplify their effects for foreign policy and national security reasons. The panel’s going to look at how this increased alignment amongst these measures affect companies and affect the complexity for companies in terms of their compliance and how they operate in multiple jurisdictions. While these risks can vary across industry, tailored compliance programs are necessary under these dynamic conditions so we’ll have the chance to flush out those issues.
Felicia Ellsworth: Sounds like it’s going to be a great event and a great panel. For those who are interested in attending the Sanctions Symposium, you can visit our website and we’ll put some links in the show notes as well. And to meet other leaders of WilmerHale’s trade team, you can also visit our newly-launched Sanctions and Export Controls page, also on our WilmerHale.com website. Neena, thank you so much for joining us today and for sharing some of your experience and your knowledge. You are always going to be welcome back on the podcast and this was an incredibly interesting and fascinating conversation so I appreciate you joining us.
Neena Shenai: Thanks so much, Felicia. I’ve really enjoyed our conversation as well.
Felicia Ellsworth: Thank you, everyone listening for tuning in to this episode of “In the Public Interest.” We hope you’ll join us for our next episode. If you enjoyed this podcast, please take a minute to share with a friend and subscribe, rate and review us, wherever you listen to your podcasts. If you have any questions regarding this episode, please e-mail them to us at [email protected].
Michael Dawson: For our WilmerHale alumni in the audience, thank you for listening. We are really proud of our extended community, including alumni in government, the nonprofit space, academia, other firms and leadership positions in corporations around the world. If you haven’t already, please join our recently launched Alumni Center at alumni.wilmerhale.com so we can stay better connected.
Our show today was produced by Shanelle Doher with sound engineering and editing by Bryan Benenati, marketing support by Emily Freeman and her team, all under the leadership of executive producers, Sydney Warren and Jake Brownell. Thank you for listening.
Felicia Ellsworth: See you next time on “In the Public Interest.”
