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An Overview of U.S. Sanctions Against Iran and the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”)

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An Overview of U.S. Sanctions Against Iran and the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”) An Overview of U.S. Sanctions Against Iran and the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”) Melvin S. Schwechter Dewey & LeBoeuf LLP 1101 New York Avenue, NW Washington, DC 20005 202-346-8011 1301 Avenue of the Americas New York, NY 10019 212-259-8676 Dewey & LeBoeuf LLP [email protected] dl.com The U.S. Embargo Of Iran ● A comprehensive U.S. embargo of Iran has been in place since 1995. It is principally based on the statutory authority of the International Emergency Economic Powers Act (“IEEPA”), pursuant to which the President has issued a number of Executive Orders imposing the embargo. ● The embargo is principally administered by the Office of Foreign Assets Control (OFAC), a part of the Treasury Department, under the Iranian Transactions Regulations (“ITR”). Dewey & LeBoeuf LLP | 1 The U.S. Embargo Of Iran ● The ITR apply principally to “U.S. persons”. In addition, they apply to foreign persons who reexport certain U.S.-origin goods, technology and software to Iran, or who send transactions through the U.S. financial system on behalf of Iranian customers. ● “U.S. persons” are: – U.S. citizens and permanent resident aliens, wherever they are located, and for whomever they are employed; – Anyone physically in the United States and U.S. branches of foreign companies; and – U.S.-organized entities, including their foreign branches. Dewey & LeBoeuf LLP | 2 The U.S. Embargo Of Iran ● The ITR include a wide variety of prohibitions. Among the most significant are the following: – U.S. imports of Iranian products and services – Almost all U.S. exports/reexports (including goods, technology, software and services) by U.S. persons to Iran (OFAC licenses may be requested for exports of agricultural commodities, medicine and medical devices; a General License was recently issued for certain exports of most foods); reexports by foreign persons of certain U.S.-origin goods, technology and software – Any dealing by U.S. persons (whether inside or outside the United States) in Iranian-origin goods or services, or with the Government of Iran (includes entities identified as part of the Government of Iran, no matter where in the world they are located) – Investments by U.S. persons in Iran and loans or other extensions of credit to Iran – Sending transactions through the U.S. financial system on behalf of Iranian customers (exporting “financial services” from the United States) – Trading by U.S. persons in Iranian oil or petroleum products refined in Iran, and financing such trading – U.S. persons providing services for the benefit of the Iranian oil industry – The “facilitation” prohibition - U.S. persons cannot approve, finance, guarantee or otherwise facilitate transactions by foreign persons that would be prohibited if performed directly by U.S. persons Dewey & LeBoeuf LLP | 3 The U.S. Embargo Of Iran ● OFAC has also identified as Specially Designated Nationals (“SDNs” or “Blocked Persons”) a wide variety of Iranian persons, entities, and vessels involved in terrorism, WMD proliferation, and human rights abuses, including the Islamic Republic of Iran Shipping Lines (“IRISL”) and its vessels, approximately 40 Iranian banks, and Iran’s Revolutionary Guard Corps and about 60 of their front companies/affiliates. Many of those designated are coincident with designations under U.N. resolutions. ● In addition to the ITR restrictions, any property of an SDN that comes into the possession or control of U.S. persons must be blocked. In addition, all U.S. person transactions with SDNs are prohibited. Dewey & LeBoeuf LLP | 4 Sanctions Against the Islamic Republic of Iran Shipping Lines (“IRISL”) ● Since first being identified as an SDN in 2008, OFAC has added many renamed IRISL vessels to the SDN List. ● March 31, 2011 – OFAC issues an advisory to the trade community regarding evasive practices used by IRISL and companies acting on its behalf to evade U.S. and international economic sanctions. These include: – using container prefixes registered to another carrier, e.g., “IRSU”, “XBIU”, “SBAU” and “HDXU”; – omitting or listing invalid, incomplete or false container prefixes in shipping container numbers, e.g., “ALXU”; and/or – naming non-existent ocean vessels in shipping documents. ● Enhanced due diligence is recommended by OFAC – Be alert to the presentation of fabricated vessel names in trade documents, check the bona fides of unfamiliar entities issuing shipping documents, and verify the accuracy of container numbers (can be done on the internet). Dewey & LeBoeuf LLP | 5 OFAC Enforcement ● OFAC violations are subject to both criminal and civil penalties. Potential civil penalties under IEEPA have increased dramatically in recent years. – Before March 9, 2006 – Civil penalties of up to $11,000, per violation. – March 9, 2006 – Civil penalties of up to $50,000, per violation. – October 16, 2007 – Civil penalties, per violation, of up to the greater of $250,000, or an amount that is twice the amount of the transaction that is the basis of the violation with respect to which the penalty is imposed. – OFAC takes a “strict liability” approach to civil violations, although having a compliance program in place can mitigate the severity of any penalties that might otherwise be imposed. – Potential criminal penalties can be as high as a fine of $1 million, imprisonment for up to 20 years, or both. – Some very significant Iran-related enforcement cases against financial institutions, in recent years, have involved Credit Suisse ($536 million), ABN AMRO Bank (now RBS) ($500 million), Lloyds TSB Bank plc ($350 million), Barclays Bank PLC ($298 million), and JP Morgan Chase Bank N.A. ($88.3 million). Dewey & LeBoeuf LLP | 6 The Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”) – Enacted July 1, 2010 ● Substantially amended, expanded, and extended the 1996 Iran Sanctions Act (“ISA “) ● Enacted, in statutory form, the principal aspects of the U.S. import/export embargo of Iran that were previously based on Presidential Executive Orders and the ITR ● Provides for new sanctions against banks and other foreign financial institutions that engage in certain transactions with Iran ● Increased and harmonized criminal penalties for a variety of laws regulating foreign trade ● Allows state and local governments to divest their assets from, or prohibit investments of such assets in, foreign companies engaging in certain sanctionable activities with Iran ● Provides for measures to address diversion of shipments of U.S. products from third countries to Iran Dewey & LeBoeuf LLP | 7 The ISA (Prior to enactment of CISADA) ● As originally enacted, the ISA provided for the imposition of two out of a menu of six possible sanctions against foreign companies: (i) investing, with actual knowledge, $20 million or more (or a combination of investments of at least $5 million each, totaling $20 million in a 12 month period) in the development of Iran’s energy sector, or (ii) providing Iran with WMD technology, or destabilizing numbers and types of advanced conventional weapons. ● The original six sanctions options were: – prohibition on Export-Import Bank financing for exports to a sanctioned person; – denial of export licenses for shipments to the sanctioned entity; – denial of U.S. bank loans/credits exceeding $10 million in any 12 month period to the sanctioned entity; – Prohibition on a financial institution serving as a primary dealer in U.S. Government bonds; and/or a prohibition on its serving as a repository for U.S. Government funds (each counts as one sanction); – prohibition on U.S. Government procurement from the sanctioned entity; and – restriction on imports from the sanctioned entity. Dewey & LeBoeuf LLP | 8 Amendments to the ISA – Three New Possible Sanctions ● CISADA added three new possible sanctions to the menu of available sanctions. The new sanctions are prohibitions on transactions subject to U.S. jurisdiction and in which the sanctioned person has any interest involving: – foreign exchange, – transfers of credit or payments between financial institutions, or by, through, or to, any financial institution, and – the acquiring, holding, withholding, using, transferring, withdrawing, transporting, importing or exporting any property subject to U.S. jurisdiction and with respect to which the sanctioned person has any interest, or dealing in or exercising any right, power or privilege with respect to such property. Dewey & LeBoeuf LLP | 9 Amendments to the ISA - Persons Against Whom Sanctions May Be Imposed ● Sanctions became imposable not only against the person engaging in the sanctionable activity, but also against: – That person’s parent company if that parent had actual knowledge or should have known of the subsidiary’s activity, or – An affiliate or subsidiary of a person found to be engaged in sanctionable activities if the affiliate or subsidiary knowingly engaged in sanctionable activities. Dewey & LeBoeuf LLP | 10 Amendments to the ISA – Newly Sanctionable Activity ● The new legislation requires the imposition of three or more out of the nine authorized sanctions against foreign companies that knowingly (actual knowledge or “should have known” standard): – sell, lease or provide to Iran goods, services, technology, information or support with a fair market value of $1 million or more, or which, during a 12 month period, have an aggregate fair market value of $5 million or more, that could directly and significantly facilitate the maintenance or expansion of Iran’s domestic production of refined petroleum products (defined as diesel, gasoline, jet fuel (including naphtha-type and kerosene-type jet fuel), and aviation gasoline), including any direct and significant assistance with respect to the construction, modernization, or repair of petroleum refineries. – sell, lease or provide to Iran refined petroleum products in the amounts set forth above, or Dewey & LeBoeuf LLP | 11 continued > Amendments to the ISA – Newly Sanctionable Activity – sell, lease or provide to Iran goods, services, technology, information or support in the amounts set forth above, that could directly and significantly contribute to the enhancement of Iran’s ability to import refined petroleum products.
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