Ireland's proposed boycott of Israeli businesses creates dangerous legal trap for American investors

Ireland has announced plans to pass a first-of-its-kind European law banning imports from Israeli businesses operating in Jerusalem and the West Bank. 

Like most Boycott, Divestment and Sanctions (BDS) efforts, the bill is unlikely to inflict measurable economic harm on Israel. However, it poses a very real — and potentially devastating — threat to American businesses and investors.

Under U.S. law, it is illegal for American companies to participate in or support foreign-government-backed boycotts of Israel. The Export Administration Regulations (enforced by the Department of Commerce’s Office of Antiboycott Compliance) and Internal Revenue Code § 999 (administered by the IRS) prohibit exactly the kind of conduct Ireland’s legislation seeks to compel. These statutes were enacted in response to the Arab League boycott and are grounded not only in economic self-interest but also in civil rights law: The boycotts of the Jewish State have always been about who Jews are—not what Israel does. More recent legislation, like the 2016 Trade Facilitation and Trade Enforcement Act, reaffirmed America’s bipartisan commitment to combating BDS. 

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The penalties for violating U.S. anti-boycott laws can be steep, including civil fines, criminal prosecution, possible imprisonment, and the loss of export privileges. Any decision to alter operations in response to Ireland’s law — particularly if it involves termination of Israeli partnerships or divestment — may constitute a material event triggering these laws and requiring disclosure to both shareholders and the SEC under existing risk factor or geopolitical reporting guidelines. Public companies should be especially mindful of how such changes are characterized in their filings to avoid accusations of misrepresentation or politically motivated discrimination.

Aside from federal restrictions, the majority of U.S. states have adopted anti-BDS laws that bar companies from receiving state contracts if they boycott Israel. That means firms that comply with Ireland’s law also risk contract termination, state debarment and possible enforcement actions from these states’ attorneys general. The backlash faced by Unilever in 2021, after its subsidiary Ben & Jerry’s sought to boycott parts of Israel, provides a concrete warning: multiple states divested pension funds, the company suffered reputational harm, and they ultimately had to walk back the decision under immense pressure from shareholders and lawsuits.

If Ireland were seeking to chase American capital out of the country, it could not have devised a better way to do so.

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American businesses with operations in Ireland — or even transactions that touch Irish jurisdiction — must now take proactive steps to protect themselves.

First, as a threshold matter, any American company operating in Ireland should conduct a foreign law compliance audit to identify any decisions or actions that might be tied explicitly or implicitly to foreign legal pressure. 

Second, companies should educate stakeholders that anti-Israel divestment generates unwanted legal exposure, not safety, and ensure that internal directives do not imply or implement foreign boycott goals. 

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Third, companies should implement a boycott response policy that would require all foreign law compliance actions to be reviewed by legal counsel. General counsel offices should track and report any foreign government requests to the Department of Commerce, as required.

Fourth, American companies operating in Ireland ought to review their state contract exposure. If a company does business with certain states, particularly those with anti-BDS laws on the books, the company ought to ensure its compliance with anti-BDS contract clauses.

Finally, if legal exposure cannot be mitigated, businesses may have to consider corporate restructuring, including reducing or ending operations in Ireland altogether; if the cost of doing business in Ireland now includes federal investigations, SEC scrutiny, and shareholder lawsuits, among other risks, companies may need to rethink their presence in the country.

The bottom line is that American companies are not at risk because they do business with Israel. They’re at risk if they stop doing business because a foreign government pressured them to do so. Anti-boycott law is not just about trade—it’s about protecting American sovereignty, American investors, and American civil rights. And when it comes to obeying the law American companies must remember: America first.