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Economic Sanctions Compliance Resources Table of Contents This document is intended for ASIFMA members and is for informational purposes only. | Not for circulation. | Last updated: 17 March 2021 Economic Sanctions Compliance Resources This document provides informational resources compiled by Steptoe & Johnson’s Hong Kong office to assist ASIFMA members in understanding recent US economic sanctions developments and selected non-US developments that have impacted markets in Asia and related topics. This information does not constitute legal advice. To request additional information about these or other topics, please contact Nick Turner at [email protected] or Patrick Pang at [email protected] . For more information on these and other compliance topics, visit the Steptoe International Compliance Blog. Table of Contents Sanctions Targeting or Focused on Asia • US Sanctions Related to China/Hong Kong o Executive Order 13959 “Addressing the Threat From Securities Investments That Finance Communist Chinese Military Companies” o Section 4 of Executive Order 13936 “The President’s Executive Order on Hong Kong Normalization” o Hong Kong Autonomy Act o Global Magnitsky Sanctions (XPCC-related) o Executive Orders on Chinese Mobile Apps (e.g., WeChat, TikTok) • Myanmar-related Sanctions • MOFCOM Blocking Order and the Provisions for the Unreliable Entity List Other Relevant Sanctions • Ukraine/Russia-related Sanctions (including Sectoral Sanctions) • Venezuela-related Sanctions Glossary of Terms Used in This Document Disclaimer: The materials in this document are provided to ASIFMA members for informational purposes only and do not constitute legal advice. This information may not be the most up-to-date information and may not include all of the information relevant to these topics. For additional information, consult the website of the US Treasury Department’s Office of Foreign Assets Control (OFAC) or your legal advisor. This document is intended for ASIFMA members and is for informational purposes only. | Not for circulation. | Last updated: 17 March 2021 Executive Order 13959 Overview: The US President issued Executive Order (“EO”) 13959 on 12 November 2020 and amended it on 13 January 2021 under EO 13974. The amended EO prohibits “US persons” from engaging in certain transactions related to publicly traded securities of companies identified as “Communist Chinese military companies” (“CCMCs”) by the US Department of Defense or the US Treasury Department. The EO also mandates that US persons divest such securities by deadlines described in the EO. The prohibition extends to securities that “are derivative of, or designed to provide investment exposure to” publicly traded securities of CCMCs. On 12 March 2021, the US District Court for the District of Columbia granted Xiaomi Corporation’s request for a preliminary injunction concerning its designation as a CCMC on 14 January 2021. As a result, restrictions under EO 13959 will not apply to publicly traded securities of Xiaomi, pending the outcome of the litigation. (Click here for a copy of the Court’s opinion.) Selected Source Documents: • Executive Order 13959 of 12 November 2020 (US Federal Register) • Executive Order 13974 of 13 January 2021 (US Federal Register) • Non-SDN List of CCMCs published by OFAC (as of 8 January 2021) (OFAC Website) • Batch 1 and Batch 2 of the Department of Defense List of CCMCs (Department of Defense news release) • Batch 3 of the Department of Defense List of CCMCs issued on 3 December 2020 (Department of Defense news release) • Batch 4 of the Department of Defense List of CCMCs issued on 14 January 2021 (Department of Defense news release) Selected General Licenses: • General License 1 of 8 January 2021 (Expired) authorizing certain transactions until 28 January 2021 (OFAC Website) • General License 1-A of 26 January 2021 authorizing certain transactions until 27 May 2021 (OFAC Website) • General License 2 of 14 January 2021 authorizing certain transactions of US exchanges (OFAC Website) Disclaimer: The materials in this document are provided to ASIFMA members for informational purposes only and do not constitute legal advice. This information may not be the most up-to-date information and may not include all of the information relevant to these topics. For additional information, consult the website of the US Treasury Department’s Office of Foreign Assets Control (OFAC) or your legal advisor. This document is intended for ASIFMA members and is for informational purposes only. | Not for circulation. | Last updated: 17 March 2021 Selected OFAC Guidance: • FAQ 857 – concerning the identification of CCMC subsidiaries by OFAC pursuant to Section 4(a)(iii) of EO 13959. • FAQ 858 – stating that EO 13959 applies to securities of any entity “with a name that exactly or closely matches the name of an entity” identified in the Annex to EO 13959 or subsequently identified by the DoD or Treasury Department. • FAQ 859 – stating that the term “publicly traded securities” includes both exchange-listed and over- the-counter securities in any jurisdiction, for the purposes of EO 13959. • FAQ 860 – providing examples of financial instruments that are “securities that are derivative of, or are designed to provide investment exposure to” publicly traded securities of CCMCs “to the extent such instruments also meet the definition of ‘security’” in Section 4(d) of EO 13959. • FAQ 861 – stating EO 13959’s restrictions apply to a financial instrument regardless of a CCMC security’s “share of the underlying index fund, ETF, or derivative thereof.” • FAQ 862 – confirming that the EO does not require US persons (including US funds and related market intermediaries and participants) to divest holdings in covered securities by 11 January 2021. • FAQ 863 – stating that US persons may engage in activity related to “clearing, execution, settlement, custody, transfer agency, back-end services, as well as other such support services” “to the extent that such support services are not provided to US persons in connection with prohibited transactions.” • FAQ 864 – stating that US-listed ADRs of three particular subsidiaries of CCMCs are subject to the EO because, according to OFAC, their names “exactly or closely matches the name of an entity identified in the Annex to EO 13959.” • FAQ 865 – stating that “ancillary or intermediary activities that are necessary to effect divestiture [of CCMC securities] during the relevant wind-down periods or that are otherwise not prohibited” are permitted, including by US persons. • FAQ 871 – explaining the scope of GL-2: “[i]n general, all transactions and activities by securities exchanges operated by US persons . are authorized” through the relevant wind-down periods. • FAQ 872 – affirming that the amended EO 13959 requires US persons to divest securities within the relevant wind-down periods in Sections 1(b) and 1(c) of EO 13959. • FAQ 873 – restating the amended definition of “transaction” in Section 4(e) of EO 13959. Disclaimer: The materials in this document are provided to ASIFMA members for informational purposes only and do not constitute legal advice. This information may not be the most up-to-date information and may not include all of the information relevant to these topics. For additional information, consult the website of the US Treasury Department’s Office of Foreign Assets Control (OFAC) or your legal advisor. This document is intended for ASIFMA members and is for informational purposes only. | Not for circulation. | Last updated: 17 March 2021 • FAQ 874 – stating that “[a]ny transaction (including purchases for value and sales) entered into” within the relevant wind-down period that are “solely to divest, in whole or in part, from securities” held by a US person are permitted. • FAQ 878 – explaining the scope of GL-1A stating that US persons “may engage in transactions . involving covered securities of entities whose names closely match, but do not exactly match, the name of a” CCMC, subject to the terms of GL-1A. • FAQ 879 – stating that GL-1A does not apply to four CCMC subsidiaries included in the Non-SDN CCMC List on 8 January 2021. FAQ 879 also notes the restrictions on securities of the four entities take effect on 9 March 2021. • FAQ 880 – confirming that the restrictions under EO 13959 will not take effect with respect to Xiaomi Corporation following the issuance of a District Court injunction. • FAQ 881 – noting that restrictions under EO 13959 will take effect with respect to Luokung Technology Corp. on 8 May 2021, with divestment required by 9 March 2022. Key Points (in Plain Language): • Per Section 4 of EO 13959, a CCMC may be identified by either the Department of Defense or the US Treasury Department (i.e., OFAC). • Per Section 1(a) of EO 13959, the prohibitions under the EO take effect 60 days after the identification of a CCMC. • Per Sections 1(b) and 1(c) of EO 13959, US persons have 365 days from the identification of a CCMC to divest securities covered by the EO. • The definition of “US person” is provided in Section 4(f) of EO 13959 and includes any: o United States citizen, o United States permanent resident alien, o entity organized under the laws of the United States or any jurisdiction within the United States o foreign branches of an entity organized under the laws of the United States or any jurisdiction within the United States; or o person in the United States. • The definition of “US person” does not include entities incorporated outside of the territory of the United States (i.e., foreign subsidiaries of US companies). Disclaimer: The materials in this document are provided to ASIFMA members for informational purposes only and do not constitute legal advice. This information may not be the most up-to-date information and may not include all of the information relevant to these topics. For additional information, consult the website of the US Treasury Department’s Office of Foreign Assets Control (OFAC) or your legal advisor. This document is intended for ASIFMA members and is for informational purposes only.
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