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Iran: State of the Art and Future Perspectives After the Reintroduction of All the Us Sanctions Against Iran

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IRAN: STATE OF THE ART AND FUTURE PERSPECTIVES AFTER THE REINTRODUCTION OF ALL THE US SANCTIONS AGAINST IRAN AVV. MARCO PADOVAN AVV. MARCO ZINZANI Operating (or not) with Iran after the reintroduction of the second round of sanctions by the US Government Bologna, 9 November 2018 Sanctions against Iran between 16 January 2016 and 8 May 2018 - Free supply/export towards any Iranian person, entity or body or for the use in Iran - Prohibition for US persons to engage in transactions with Iran and with the of all goods, except for: Government of Iran except for operations conducted under an ad hoc or general authorisation; • those indicated in (EU) Regulation No. 267/2012; - General authorisations for, inter alia, medical devices (General License medical • specific goods which may be used with the purpose of internal devices); export of commercial passenger aircraft; import of Persian carpets and repression and control of telecommunication (EU Regulation foodstuff of Iranian origin, including pistachios and caviar. General License H No.359/2011); enabled non-US entities owned or controlled by a US person to establish trade relationships with Iran; • armaments (EU embargo in force until the Transition Day); - Designation of Iranian persons/entities suspected of committing human rights • the provision to designated persons/entities. violations, terrorism and engaged in missile proliferation; - Transactions with non-designated Iranian persons are allowed, as well as opening of - Prohibition for non-US financial institution to clear transactions in dollars new branches, subsidiaries or representative offices of non-designated Iranian connected with Iran through US financial institutions; banks, use of SWIFT services; provision of financial assistance services for - Secondary sanctions which may be imposed to non-US persons engaged in importing/exporting with Iran and with the Iranian Government, in compliance with transations with Iranian persons on the List of Specially Designated Nationals and the requirements on financial assistance in connection with the goods indicated in Blocked Persons (‘SDN List’) of the Office of Foreign Assets Control (‘OFAC’) - US Regulations 267/2012 and 359/2011. Department of Treasury; - Re-exporting to Iran of goods of US origin, classified as EAR99, allowed only at certain conditions («general inventory» rule); - ‘Ordinary’ US export control limitations ( ‘de minimis’rule: 10% threshold); - According to some US States Laws: restrictions to government procurement and to state investments in companies doing business with Iran. 2 Iran: Trump’s statement on 8 May 2018 3 When is the US legal framework applicable? ➢ In general, US law may apply because of one of the conditions indicated below: ✓ One of the entities involved in the export operation qualifies as a US-Person: The term United States person or U.S. person means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States ✓ The product to be exported is of US origin or contains parts or components of US origin; ✓ The conditions for the applicability of secondary sanctions (i.e. sanctions having extraterritorial application) are fullfilled, therefore also in cases where conditions sub (i) and (ii) are not met. 4 US sanctions reintroduced on 7 August 2018 | EO 13846 ➢ Sanctions on the purchase or acquisition of US dollar banknotes by the Government of Iran; ➢ Sanctions on Iran’s trade in gold or precious metals; ➢ Sanctions on the direct or indirect sale, supply, or transfer to or from Iran of graphite, raw, or semi-finished metals such as aluminum and steel, coal, and software for integrating industrial processes; ➢ Sanctions on significant transactions related to the purchase or sale of Iranian rials, or the maintenance of significant funds or accounts outside the territory of Iran denominated in the Iranian rial; ➢ Sanctions on the purchase, subscription to, or facilitation of the issuance of Iranian sovereign debt; and ➢ Sanctions on Iran’s automotive sector. 5 Focus: US sanctions on Iran automotive sector - EO 13846 ➢ Correspondent and Payable-Through Account Sanctions, provided for in section 2(a)(i) EO 13846 and applicable to financial institutions which have knowingly conducted or facilitated any «significant» financial transaction, on or after August 7, for the sale, supply or transfer to Iran of significant goods or services used in connection with the automotive sector of Iran; ➢ Menu-based Sanctions, provided for in section 3(a)(i) EO 13846, applicable to persons who, on or after August 7, 2018, knowingly engaged in a «significant» transaction for the sale, supply, or transfer to Iran of significant goods or services used in connection with the automotive sector of Iran. 6 The notion of ‘significant transaction’ See: OFAC FAQ 289: The Department of the Treasury may consider the totality of the facts and circumstances set forth a list of broad factors that can play a role in the determination whether transactions, financial services, and financial transactions are significant, including: a) the size, number, and frequency of the transactions, financial services, or financial transactions; b) the nature of the transactions, financial services, or financial transactions, including their type, complexity, and commercial purpose; c) the level of awareness of management and whether the transactions are part of a pattern of conduct; d) the nexus of the transactions, financial services, and financial transactions and blocked persons; e) the impact of the transactions, financial services, and financial transactions on statutory objectives; f) whether the transactions, financial services, and financial transactions involve deceptive practices; g) whether the transactions solely involve the passive holdings of Central Bank of Iran (CBI) reserves or repayment by the CBI of official development assistance or the transfer of funds required as a condition of Iran’s membership in an international financial institution; and h) other relevant factors that the Secretary of the Treasury deems relevant. We anticipate adopting a similar approach to interpreting the term “significant” as it applies to goods or service 7 Revocation of General License H ➢ On 27 June 2018 «General License H» - GL H (issued by OFAC on 16 January 2016 and which authorised US owned or controlled foreign entities) was revoked; ➢ 27 June 2018 - 5 November 2018: Wind-down General License; ➢ On and after 5 November: prohibition for U.S. owned or controlled foreign entity to operate with Iran; ➢ Definition of US owned or controlled foreign entity: an entity is “owned or controlled” by a United States person if the United States person: (i) Holds a 50 percent or greater equity interest by vote or value in the entity; (ii) Holds a majority of seats on the board of directors of the entity; or (iii) Otherwise controls the actions, policies, or personnel decisions of the entity. 8 US sanctions reintroduced on 5 November 2018 ➢ Sanctions on Iran’s port operators, and shipping and shipbuilding sectors, including on the Islamic Republic of Iran Shipping Lines (IRISL), South Shipping Line Iran, or their affiliates; ➢ Sanctions on petroleum-related transactions with, among others, the National Iranian Oil Company (NIOC), Naftiran Intertrade Company (NICO), and National Iranian Tanker Company (NITC), including the purchase of petroleum, petroleum products, or petrochemical products from Iran; ➢ Sanctions on transactions by foreign financial institutions with the Central Bank of Iran and designated Iranian financial institutions under Section 1245 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA); ➢ Sanctions on the provision of specialized financial messaging services to the Central Bank of Iran and certain Iranian financial institutions; ➢ Sanctions on the provision of underwriting services, insurance, or reinsurance; and ➢ Sanctions on Iran’s energy sector. 9 Focus: US sanctions on the energy sector – Iran Sanctions Act It is prohibited to order, sell, lease, or provide to Iran : ➢ goods, services, technology, or support in the Oil & Gas sector that has a fair market value of $1,000,000 or more or that, during a 12-month period, has an aggregate fair market value of $5,000,000 or more, and; ➢ goods, services, technology, or support in the petrochemical sector that has a fair market value of $250,000 or more or that, during a 12-month period, has an aggregate fair market value of $1,000,000 or more. 10 The relevant wind-down periods In the sectors affected by US sanctions 11 The designation of Iranian persons ➢ Update of the blacklists: the persons listed according to EO 13599 have been moved to the Specially Designated Nationals And Blocked Persons List (SDN List). In total, the persons/entities designated on 5 November are about 700. 300 are ‘new’ designations, not previously designated under EO 13599; ➢ As a result of the so-called ‘50 percent rule’, entities owned 50 percent or more in the aggregate, by one or more blocked persons, are considered blocked regardless of whether such entities appear on OFAC’s Specially Designated Nationals and Blocked Persons List; ➢ SDN-designated Iranian persons are divided into: Subject to Secondary Sanctions or Not Subject to Secondary Sanctions, depending on whether or not they are subject to extraterritorial sanctions. 12 Listing of almost all Iranian banks * * Please note: The
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