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The New Era of Doing Business with Iran: Iran’S International Commercial Transactions and Global Security Pace International Law Review Volume 29 Issue 1 Article 1 January 2017 The New Era of Doing Business with Iran: Iran’s International Commercial Transactions and Global Security John Changiz Vafai Archival Magazine Follow this and additional works at: https://digitalcommons.pace.edu/pilr Part of the Banking and Finance Law Commons, Commercial Law Commons, Comparative and Foreign Law Commons, Contracts Commons, Dispute Resolution and Arbitration Commons, International Law Commons, International Trade Law Commons, and the National Security Law Commons Recommended Citation John Changiz Vafai, The New Era of Doing Business with Iran: Iran’s International Commercial Transactions and Global Security, 29 Pace Int'l L. Rev. 1 (2017) Available at: https://digitalcommons.pace.edu/pilr/vol29/iss1/1 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. JOHN CHANGEIZ VAFAI- THE NEW ERA WITH IRAN (DO NOT DELETE) 10/27/2017 2:26 PM THE NEW ERA OF DOING BUSINESS WITH IRAN: IRAN’S INTERNATIONAL COMMERCIAL TRANSACTIONS AND GLOBAL SECURITY John Changiz Vafai* ABSTRACT On January 17, 2016, in a statement following his signing of the Joint Comprehensive Plan of Action (JCPOA) with Iran, President Obama addressed that country’s people, stating that “yours is a great civilization, with a vibrant culture that has so much to contribute to the world – in commerce, and in science and the arts.” While the former U.S. President’s evaluation of the Iranian people’s greatness is indisputable, there are questions concerning doing business with Iran which transcend conventional legal issues and commercial problems. Given the juxtaposition of Iran’s duopolistic government * JD, Tehran University; LLM, Yale University; JSD, Yale University; MPA, Harvard University; Research Fellow, Archival Magazine; Attorney at Law. The author wishes to thank Shannon Niehaus for her support and con- structive critique of the earlier version of the manuscript. The author is grate- ful to Zulfiyya Kamali for her indefatigable assistance in various stages of this writing. The author acknowledges with appreciation the generous assistance of Jake B. Sher, JD, Pace Law School 2016, in editing and preparing this article for publication. The author is also grateful to Grant Lally for his insights in discussions throughout the course of the article’s preparation. This work has been undertaken under the auspices of Archival Magazine and Garza and Har- ris Ltd. 1 1 2 PACE INT’L L. REV. [Vol. 29:1 structure and ideologically oriented decision-making processes, questions arise as to what extent multinational corporations, including U.S. companies, should reasonably expect to conduct commercial transactions with that country. Specific issues arise related to Iranian banks, international credit recognition, terms of payment, and the conceptual legality of interest in Iran. In addition, more practical issues arise related to the governing law of contract and proper dispute resolution mechanisms. Furthermore, U.S. regulatory constraints limit the efficacy of certain contracts between Iran and U.S. companies. This article attempts to illustrate the structural, legal and operational issues concerning doing business with Iran and, where possible, means for mitigating such issues. ABLE OF ONTENTS T C Introduction ................................................................................. 6 I. Demise of the Regime of Sanctions ................................. 13 A. Parameters Concerning Iranian Sanctions Relief .... 14 B. Iran’s Terrorism-Based Sanctions and U.S. Courts ........................................................................ 19 C. Iran’s Banking Assets in the United States and the Opinion of the U.S. Supreme Court ................... 25 1. Sovereign Immunity under U.S. Law .................. 25 2. The Terrorism Exception to Sovereign Immunity .............................................................. 29 II. U.S. Supreme Court v. Iran’s Nuclear Deal Accord ........ 30 III. Ideological and Legal Constraints Related to Banking in Iran ............................................................... 40 A. Islamic Ideology Concerning Interest ....................... 41 B. Treatment of Interest under the Law of Iran ........... 42 C. Judicial Accommodations Concerning Interest ........ 44 D. Customary Requirements for Commercial Transactions with Iran .............................................. 46 IV. Iran’s International Commercial Transactions and Global Security Issues ..................................................... 48 A. Iran’s Position with Respect to International Financial Organizations. ........................................... 48 B. Quasi-Banking Institutions in Iran .......................... 52 C. Money Laundering Act of Iran .................................. 55 D. Standing of Iran’s Banking System to Engage in International Financial Transactions ....................... 56 E. Organizational Constraints on the Central Bank of Iran, Impeding Banking Transactions in https://digitalcommons.pace.edu/pilr/vol29/iss1/1 2 2017] THE NEW ERA OF DOING BUSINESS WITH IRAN 3 International Trade ................................................... 57 F. Iran’s Access to SWIFT and Related Developments ............................................................ 61 G. Agreement Between the Central Bank of Iran and Coface State Guarantees .................................... 64 V. Iran’s Sanction-Free Investments and Commercial Agreements with Foreign Companies ............................. 66 A. Investment and Commercial Agreements with French Companies ..................................................... 66 B. Investment and Commercial Agreements with Italian Companies ..................................................... 70 C. Investment and Commercial Agreements with German Companies ................................................... 72 D. Iran’s Transactions with the United States ............. 72 1. Iran’s Commercial Transactions with U.S. Corporations ......................................................... 72 2. The Dual Use Contractual Agreements- Sale of Aircraft to Iran ................................................. 74 3. The Iran-Boeing Contract and U.S. National Security Considerations ....................................... 78 4. Intellectual Property Protection Issues ............... 79 5. U.S. Aspirations Under the JCPOA Accord ......... 83 6. Iran’s Security-Based Transactions with the United States—The Saga of the Heavy Water Trade ..................................................................... 84 7. U.S. Commercial Transactions with Iran that Remain Prohibited ............................................... 89 E. U.S. Sanctions Against Iran—A Misguided Policy ... 90 1. U.S. Shares in Foreign Companies ...................... 91 2. Internal Transactions and Opaque Deals among Commercial Entities in Iran .................... 91 3. The U.S. Tax Policy vis-à-vis the Treasury’s Sanctions Policy.................................................... 92 F. Transactions with Asian and African Countries ...... 93 1. China .................................................................... 93 2. Japan .................................................................... 94 3. South Africa .......................................................... 94 G. Availability of Credit for Investment and Commercial Transactions with Iran, an Environment of Relative Credibility ......................... 95 VI. Dispute Resolution Mechanisms between Iran and Foreign Commercial Companies ..................................... 99 VII. Sanctions and the Extra-Constitutional System Governing Conduct of Transnational Business in 3 4 PACE INT’L L. REV. [Vol. 29:1 Iran ................................................................................. 103 A. Unlicensed Financial Institutions .......................... 104 B. Corporate Entities Acting to Achieve Political Goals ........................................................................ 105 C. Institutional Inefficiencies and Patrimonial Corruption ............................................................... 105 D. The Impact of Commercial Transactions on Extra-Constitutional Institutions in Iran ............... 109 E. Use of the Barter System in International Transactions in Iran ................................................ 113 F. Sanctions Fostering Economic Inefficiency in Iran .......................................................................... 114 G. International Trade Policy as a Disincentive for Iran to Undertake Weaponry Nuclear Research .... 116 VIII. Iran’s Integration in the International Trade Community .................................................................. 118 A. The Impact of the Regional Organizations Concerning Commercial Transactions with Iran ... 118 1. Monitoring Credibility and the Degree of Corruption in Various Countries in the World .. 120 2. Observing Regulatory Disciplines Including Anti-Corruption Measures ................................. 121 3. Following the Financial Disciplines Concerning Export Credits ................................ 121 B. Application of the OECD Rules Concerning Doing Business with Iran ........................................ 122 C. The JCPOA’s Contribution to Regional Security .... 124 Conclusion ............................................................................
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