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As one of its cofounders has warned, chip designer Arm could find its technology subject to greater scrutiny and restrictions by US authorities if its planned sale to Nvidia for $40 billion in cash and stock goes through, international trade experts told Business Insider.
But as a matter of practice, Arm likely wouldn’t find the new restrictions any more confining than what it faces today, they said. Even though it’s presently owned by Japan-based SoftBank, not Silicon Valley’s Nvidia, Arm likely already has enough of a presence in and connection to the US to fall under the restrictions that could most meaningfully constrict its business, the trade experts said.
In terms of being subject to US trade restrictions, “in practical business terms, for the way that they were conducting operations already, that ship has sailed,” said Amy Deen Westbrook, a professor of international and commercial law at Washburn University School of Law.
Since Nvidia and current Arm owner SoftBank announced the deal Sunday, Arm cofounder Hermann Hauser has argued against it, warning in part that as a result of the acquisition, Arm and its customers in the UK would be subject to US export controls and sanctions on particular countries. The result would be that “the decision about who Arm is allowed to sell to will be made in the White House and not in Downing Street,” Hauser said in an open letter opposing the deal.
In his letter, Hauser specifically raised the alarm that a purchase by Nvidia would put Arm and its customers under the control of “US OFAC,” or the Office of Foreign Assets Control, a branch of the US Treasury Department. Trade experts said he’s not wrong.
Two US agencies oversee trade restrictions
OFAC is one of two agencies through which the US government imposes trade restrictions and export controls, said Larry Ward, a partner at law firm Dorsey & Whitney and a member of its national security law practice group. The Treasury Department agency oversees sanctions against particular countries, such as Cuba and Iran, and against certain individuals, such as those accused of assisting Russia’s invasion and occupation of Ukraine’s Crimea region. OFAC’s sanctions limit the ability of US companies to do business in particular countries and its restrictions typically apply to the corporations’ foreign subsidiaries, Ward said.
The other primary agency involved in trade restrictions is the Commerce Department’s Bureau of Industry and Security, or BIS, which administers export controls on particular products. The BIS is charged with protecting national security by prohibiting or limiting countries or companies within those countries from accessing particular US products or technologies, such as computers or nuclear materials.
The prohibition on the sale of certain technology products to Huawei is being overseen by BIS. Unlike OFAC sanctions, BIS export restrictions don’t automatically cover products or technologies developed by the foreign subsidiaries of US companies, Ward said. Instead, there’s a calculation done about whether something is a US product or not based on the amount of contribution to it by US individuals or the work that’s done on it on US soil, he said.
OFAC’s sanctions likely won’t affect Arm’s business
As a UK subsidiary of a Japanese company, Arm likely doesn’t fall under the purview of OFAC at the moment, the legal experts said. But Hausmann’s right that a purchase by Nvidia would likely make Arm — and potentially UK-based companies that use Arm chips in their products — subject to the agency’s sanctions, they said.
“They will be under greater scrutiny by US controls,” said James Lewis, a researcher at the Center for Strategic and International Studies, a national security think tank.
As a practical matter, though, being subject to OFAC sanctions isn’t likely to affect Arm’s business very much, other experts said. Those trade restrictions generally are focused on countries that have long been subject to US sanctions and don’t do a whole lot of international trade in technology products, such as Cuba or North Korea. Although some OFAC sanctions are focused on other countries that are big players in the international trade system, such as Russia and China, they tend to be concentrated in those counties on particular individuals, rather than on the country itself.
For Arm, the OFAC sanctions “are going to be, from a commercial standpoint…relatively insignificant, because markets like Cuba and Iran tend not to be very large commercial markets,” Ward said.
The Huawei restrictions already affect Arm
At least in theory, BIS controls could hamper Arm’s business much more significantly. Huawei in particular is a large customer of all sort of products, and as the leading smartphone maker, it relies on Arm-based chips in its products.
Its unclear whether Arm’s chip designs are subject to BIS’s export restrictions on Huawei. Arm reportedly was concerned enough about the initial trade restrictions BIS put in place last year to cease working with Huawei. Later in the year, it resumed work with the company after determining that its designs were of UK, not US origin.
That’s still the company’s stance, according to company CEO Simon Segars, on a recent conference call with analysts on the deal. Arm’s products are designed outside the US and will continue to be after an Nvidia acquisition. As such, they aren’t and won’t be subject to US export controls, he said.
The trade experts disagreed. Once Arm is under Nvidia’s auspices, it would be hard for the companies to maintain the line that Arm’s products aren’t of US origin, they said. Nvidia officials will likely be overseeing development and Nvidia engineers will likely be brought in to assist. And US officials don’t generally look favorably on the notion of US companies trying to get around export restrictions by locating their research and development operations overseas, Lewis said.
“Arm can argue now that in some cases it’s a UK entity and not subject to all US controls,” he said. “When they become part of Nvidia, they can’t make that case anymore.”
But there’s reason to think that even now, before the Nvidia acquisition, Arm actually is subject to BIS’s export controls, the trade experts said. Arm was formed in part by Apple, an American company. It’s long had US operations. It’s quite possible those operations or US persons have been involved in the design of its chips, which could lead to a determination that they are US products. At the very least, it’s likely a gray area, the experts said.
“The minute you step into the gray, which is almost immediately, you’re already worried about US export controls,” Westbrook said.
At this point, though, the debate is basically moot. The US stepped up its export restrictions with regards to Huawei earlier this year, which basically made it impossible for it to manufacture its own Arm-based chips. Even if Arm is still taking the position that its designs aren’t ultimately of US origin, its business with Huawei has likely already been throttled.
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