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Sanctions 2020 a Practical Cross-Border Insight Into Sanctions Law International Comparative Legal Guides Sanctions 2020 A practical cross-border insight into sanctions law First Edition Featuring contributions from: Allen & Gledhill LLP DORDA Rechtsanwälte GmbH Miller & Chevalier BonelliErede Esenyel & Partners MinterEllison Bonifassi Avocats Eversheds Sutherland Navigant Consulting, Inc. BSA Ahmad Bin Hezeem & Associates Hill Dickinson LLP Nishimura & Asahi LLP Homburger Noerr LLP De Brauw Blackstone Westbroek N.V. JSA Paul, Weiss, Rifkind, Wharton & DELTA legal JunHe Law Offices Garrison LLP Dentons US LLP Kluge Plesner Djingov, Gouginski, Kyutchukov & Lee & Ko Proskauer Rose LLP Velichkov Linklaters LLP Stikeman Elliott LLP ICLG.com ISBN 978-1-83918-003-3 ISSN 2633-1365 Sanctions 2020 Published by First Edition glg global legal group 59 Tanner Street London SE1 3PL United Kingdom +44 207 367 0720 Contributing Editors: www.iclg.com Roberto J. Gonzalez & Rachel M. Fiorill Group Publisher Paul, Weiss, Rifkind, Wharton & Garrison LLP Rory Smith Publisher Jon Martin Senior Editors Caroline Oakley Rachel Williams Sub-Editor Amy Norton Creative Director Fraser Allan Printed by Stephens & George Print Group Cover Image www.istockphoto.com Strategic Partners ©2019 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, PEFC Certified digital or analogue, in whole or in part, is strictly forbidden. This product is from sustainably managed forests and controlled sources PEFC/16-33-254 www.pefc.org Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents Expert Chapters 1 Recent Developments in U.S. Sanctions: OFAC Compliance Guidance and Enforcement Trends Roberto J. Gonzalez & Rachel M. Fiorill, Paul, Weiss, Rifkind, Wharton & Garrison LLP 7 The Current Iran Sanctions Landscape and Potential Issues in 2020 Peter G. Feldman, Jason M. Silverman, Michael E. Zolandz & Shahrzad Noorbaloochi, Dentons US LLP 12 The Difficulties in Assessing Sanctions Risks (With an Emphasis on Venezuela) Siiri Duddington & Charlie Fraser, Hill Dickinson LLP 17 The Implementation of UN Sanctions at the EU Level Guillaume Croisant & Stefaan Loosveld, Linklaters LLP 21 Sanctions and Export Controls Enforcement Trends Timothy P. O’Toole & Aiysha S. Hussain, Miller & Chevalier vs. 26 Technology Innovation in AML, Sanctions, and KYC/Due Diligence: Reality Aspirations Patrick J. McArdle, Adam Klauder & Louis DeStefano, Navigant Consulting, Inc. 32 Navigating the Complex Relationship Between Voluntary Self-Disclosure and Enforcement Seetha Ramachandran & Lucas Kowalczyk, Proskauer Rose LLP Country Q&A Chapters 38 Australia 97 Japan MinterEllison: David Moore & Mellissa Lai Nishimura & Asahi: Kazuho Nakajima, Masahiro Heike & Marie Wako 42 Austria DORDA Rechtsanwälte GmbH: Bernhard Müller & 103 Korea Dominik Widl Lee & Ko: Kyunghoon Lee & Jungmin Pak 47 Bulgaria 109 Netherlands Djingov, Gouginski, Kyutchukov & Velichkov: Kamen De Brauw Blackstone Westbroek N.V.: Marlies Gogov, Lora Aleksandrova & Viktoriya Marincheva Heemskerk-de Waard & Marnix Somsen 55 Canada 113 Norway Stikeman Elliott LLP: Shawn C.D. Neylan Kluge: Ronny Rosenvold & Siri Fosse Sandve 59 China 119 Russia JunHe Law Offices: Weiyang (David) Tang, Runyu (Roy) Eversheds Sutherland: Anu Mattila & Elizaveta Liu & Siyu (Rain) Wang Belotserkovskaya Czech Republic 65 125 Singapore DELTA legal: Michal Zahradník & Lukáš Koukal Allen & Gledhill LLP: Evangeline Oh & Tan Zhi Feng 69 Denmark 130 Switzerland Plesner: Jacob Ørskov Rasmussen & Morten Vibe Homburger: Claudio Bazzani & Reto Ferrari-Visca France 74 135 Turkey Bonifassi Avocats: Stéphane Bonifassi & Sinem Paksüt Esenyel & Partners: Selcuk Esenyel Germany 79 140 United Arab Emirates Noerr LLP: Dr. Anke Meier & Dr. Bärbel Sachs BSA Ahmad Bin Hezeem & Associates LLP: Rima Mrad & Tala Azar 85 India JSA: Shivpriya Nanda & Adhiraj Gupta 146 United Kingdom Hill Dickinson LLP: Paul Taylor & Trudie Protopapas 91 Italy BonelliErede: Angelino Alfano, Alessandro Musella & USA 151 Vincenzo Dell’Osso Paul, Weiss, Rifkind, Wharton & Garrison LLP: Roberto J. Gonzalez & Rachel M. Fiorill Chapter 29XX 151 USA USA USA Roberto J. Gonzalez Paul, Weiss, Rifkind, Wharton & Garrison LLP Rachel M. Fiorill 1 Overview These various forms of U.S. sanctions can co-exist. For example, with respect to Russia, there is a U.S. embargo on the Crimea region, various Russian companies and individuals have been designated 1.1 Describe your jurisdiction’s sanctions regime. SDNs or SSIs, and specified activities in Russia are subject to the threat of secondary sanctions. The U.S. Government maintains a range of economic sanctions, administered primarily by the U.S. Department of the Treasury’s 1.2 What are the relevant government agencies that Office of Foreign Assets Control (“OFAC”). administer or enforce the sanctions regime? Most U.S. sanctions are considered “primary sanctions”. To violate U.S. primary sanctions, a transaction must generally involve OFAC administers and enforces economic sanctions based on U.S. both (i) a U.S. nexus, and (ii) a sanctioned person (entities or individ- foreign policy and national security goals. uals) or a sanctioned jurisdiction. A transaction can have a U.S. Jurisdictions become the target of U.S. sanctions by means of nexus if it involves a U.S. person or U.S.-origin products, software, executive orders signed by the President of the United States (“the or technology, or if it causes or involves activity within U.S. territory. President”). Persons can become the target of U.S. sanctions by Importantly, non-U.S. companies and individuals can engage in U.S.- being named in executive orders or by OFAC’s exercise of authority nexus transactions and thereby violate U.S. sanctions. delegated by the President (where the President provides criteria for Primary sanctions encompass several types of sanctions: imposing sanctions), in consultation with the U.S. State Department ■ List-based blocking sanctions generally prohibit U.S.-nexus trans- and sometimes other agencies (such as the U.S. Department of actions with designated persons (individuals, entities, vessels, Justice (“DOJ”)). OFAC also has primary responsibility for licensing aircraft, etc.), which OFAC has placed on its Specially Designated transactions that would otherwise be prohibited by U.S. sanctions. Nationals (“SDN”) List. OFAC maintains a number of sanctions Additionally, OFAC has the power to investigate and impose civil programmes, including country-specific programmes and monetary penalties against persons (including non-U.S. persons) that programmes targeting international narcotics trafficking, violate U.S. sanctions laws and regulations. proliferation, malicious cyber activity, and other illicit activity. DOJ criminally investigates and prosecutes “willful” violations of OFAC has authority to designate persons that satisfy a U.S. sanctions. programme’s criteria and then add those persons to the SDN The federal banking agencies, including the Office of the List. Any property or property interests of SDNs that come Comptroller of the Currency and the Federal Reserve Board of within U.S. jurisdiction must be “blocked” or frozen. The Governors, also have the authority to impose civil penalties for blocked funds must be placed into separate suspense accounts violations of U.S. sanctions laws and regulations. The New York and cannot be released absent specific authorisation from OFAC. Department of Financial Services (which supervises certain financial (List-based sanctions are discussed below in question 2.4.) institutions operating in New York) also plays a high-profile role in ■ Targeted sanctions generally prohibit specified U.S.-nexus dealings sanctions enforcement under New York state-law requirements. with particular persons. In the Russia/Ukraine sanctions Finally, the Treasury Department’s Financial Crimes Enforcement programme, so-called “sectoral sanctions” prohibit certain Network (“FinCEN”) administers and enforces U.S. anti-money categories of activity with persons designated on the Sectoral laundering laws. Its Section 311 authority under the USA PATRIOT Sanctions Identification (“SSI”) List from four sectors of the Act to designate a jurisdiction or non-U.S. entity as of “primary Russian economy (financial, energy, defence, and oil money laundering concern” can have effects similar to sanctions. exploration/production). (These sanctions are discussed further below in question 2.8.) 2 Legal Basis/Sanctions Authorities ■ Comprehensive country or region sanctions broadly target coun- tries or regions (together, “jurisdictions”) and generally prohibit almost all U.S.-nexus transactions with those jurisdictions. 2.1 What are the legal or administrative authorities for Currently, there are five jurisdictions subject to comprehensive imposing sanctions? U.S. sanctions: Iran; Syria; Cuba; North Korea; and the Crimea region of Ukraine. In addition, pursuant to “secondary sanctions”, the U.S. govern- Under various statutory authorities, the President has broad ment has threatened to sanction non-U.S. persons that engage in discretion to regulate commerce where
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