U.S. Sanctions Laws: Dangers Ahead For Foreign Companies (Part II)

The following is Part II of this article. Part I is available HERE. 

Click here to download a PDF. 

C.  Secondary Sanctions – Requirements On Non-U.S. Parties That Have No Contacts With the U.S.  OFAC also has adopted sanctions that specifically apply to non-U.S. companies and individuals, even if such parties do not fit within the definition of “U.S. person” and even if they have no contacts whatsoever with the United States.  These are commonly referred to as “secondary sanctions” or “extraterritorial sanctions.”  While only used in limited instances prior to 2016, after enactment of CAATSA and other recent events the incidence of secondary sanctions has been increasing and is set to expand even further in the coming year.

The term “secondary sanctions” is a broad term that covers a wide array of restrictions on foreign companies.  These are typically imposed under an existing U.S. sanctions program to bring additional leverage on the country that is the target of the sanctions.  The most typical secondary sanctions prohibit non-U.S. companies from engaging in business activities that benefit a sanctioned country, such as purchasing oil from Iran or selling luxury goods to N. Korea.  But they can also be applied to restrict foreign parties from engaging in many other types of business transactions as discussed further below.  The legal implications of secondary sanctions are significant, as they impose U.S. restrictions on non-U.S. parties with absolutely no contacts with or presence in the U.S.   

The most recognized secondary sanctions are under the Iran sanctions program.  Prior to entering the Iran nuclear accord in July 14, 2015 (the “Joint Comprehensive Plan of Action”), the U.S. had imposed a number of secondary sanctions on non-U.S. persons for dealing with Iran to apply pressure on Iran in the nuclear negotiations.   These included restrictions on non-U.S. companies engaging in certain transactions with Iran involving: (i) insurance; (ii) petroleum products; (iii) shipping;[i] (iv) trade in gold and certain other precious metals; (v) trade in metals and industrial materials;[ii] (vi) trade in software for integrating industrial processes; (vi) transactions involving the Iranian automobile industry;[iii] and (vii) certain financial and banking activities.[iv]  Clearly restrictions on dealing in basic industrial commodities such as coal, oil, metals and software were aimed at crippling the Iranian economy.

Once the JCPOA was implemented in January 2016 many of the U.S. secondary sanctions on Iran were lifted or waived.[v]  However when President Trump announced the U.S. withdrawal from the JCPOA on May 8, 2018, these secondary sanctions “snapped back” and the U.S. re-imposed a wide array of secondary sanctions on Iran subject to 90-day and 180-day wind down periods.  At the time of this writing, the U.S. just completed the process of re-imposing the secondary sanctions across a wide array of industries in Iran including involving: (i) U.S. dollar banknotes; (ii) gold and precious metals; (iii) graphite, raw and semi-finished metals, coal, and software for integrating industrial processes; (iv) dealing in Iranian rial and sovereign debt; (v) the Iranian automotive sector ; (vi) ports and shipping; (vii) the petroleum industry; (viii) transactions by foreign financial institutions and (ix) insurance. [vi] As part of this, the U.S. listed over 700 Iranian persons, entities, aircraft and vessels on the SDN List, and has prohibited foreign countries from purchasing Iranian crude oil.  Under these actions, non-U.S. parties that engage in these prohibited activities involving Iran will be subject to a number of potential consequences including a “menu” of additional sanctions discussed below.  

In announcing the re-imposition of the Iran secondary sanctions, Treasury Secretary Mnuchin stated: “Treasury’s imposition of unprecedented financial pressure on Iran should make clear to the Iranian regime that they will face mounting financial isolation and economic stagnation until they fundamentally change their destabilizing behavior.”

Similarly during the past three years the U.S. has imposed a number of secondary sanctions involving N. Korea.  In 2016 and 2017 Presidents Obama and Trump issued a series of Executive Orders that authorized an array of secondary sanctions on foreign companies that engage in transactions with N. Korea and foreign financial institutions that finance trade with N. Korea to apply pressure on the N. Korean regime in the nuclear negotiations.[vii]  These included, for example, the authority to designate for sanctions any person (including foreign companies) that engage in at least one significant importation from or exportation to N. Korea of any goods, services or technologies.  Following these Executive Orders the U.S. then designated numerous private companies based in China, Singapore, Hong Kong, Panama and other countries for sanctions for engaging in transactions with N. Korea.  This included trading companies,[viii] oil companies,[ix] transportation companies[x] and financial intermediaries.[xi]   The U.S. placed a high priority on foreign financial institutions in the effort to cut off financial transactions with N. Korea.  In addition, OFAC even designated individual shipping vessels on the SDN List.[xii]  (These designations of non-Korean companies were in addition to designations of N. Korean companies, government organizations and individuals.)  The purpose was simple: to isolate the N. Korean regime and cut it off from the rest of the world economy.

Thus through the imposition of secondary sanctions the U.S. announced to the world that non-U.S. companies can choose to do business with the U.S., or countries targeted for sanctions, but not both. 

Prior to 2017 the use of secondary sanctions such as described for Iran and N. Korea were limited.  However CAATSA, enacted in August 2017, specifically addresses secondary sanctions - providing not just increased authorization for secondary sanctions but also requiring the President to impose them in certain situations. 

D.     Assisting Others In Violating Sanctions Laws.  A fourth category in which non-U.S. parties can be subject to U.S. sanctions is assisting others in sanctions violations.  This covers a number of restrictions including providing material assistance and support to sanctioned parties and knowingly facilitating significant transactions with such parties.  This is perhaps the broadest category of potential liability and presents the greatest level of risk for foreign companies. 

The rule here is simple – if you provide assistance to a party that is designated for sanctions, you run the risk of being designated for sanctions yourself.  It is important to note that these restrictions apply not just to entering transactions with a rogue regime such as Iran or N. Korea – but also entering transactions with individual parties that are designated for sanctions, including parties listed on the SDN List in many cases.  In addition, there is no definition of “material assistance” - and many types of business transactions can theoretically fit within this term.  Thus merely entering significant business transactions with certain parties designated for sanctions opens a foreign company up to potential sanctions liability as well. 

This became clearly evident under OFAC’s Russian “oligarch” sanctions designations in April 2018.[xiii]  In these designations, the sanctions were not just aimed at the 38 Russian parties that were added to the SDN List but also other U.S. and foreign companies that conducted business with such parties.  Thus when the SDN listings of the Russian oligarchs and their companies were announced, other companies (including non-U.S. companies) quickly ceased conducting business with the designated parties out of fear of being designated as SDN’s themselves.  This issue was addressed in the Treasury Department’s April 6, 2018 press release accompanying the new sanctions:  “Additionally, non-U.S. persons could face sanctions for knowingly facilitating significant transactions for or on behalf of the individuals or entities blocked today.”  

Many of the secondary sanctions are aimed at parties that provide direct support to a sanctioned regime.  However they are also aimed at parties that play a secondary or tertiary role in dealing with sanctioned parties – in targeting the shipping companies, insurance companies, financial intermediaries and business advisors that provide services to support transactions with sanctioned parties.  This is a subset of secondary sanctions - broadening the net from those who are primary actors to those in the background that provide an indirect level of support. 

Once again under OFAC’s 50% rule, these risks arise not just in entering transactions with parties that are listed as SDNs, but also with companies that are owned 50% or more by SDNs.  So the complex web of sanctions restrictions extends even farther.

Many of the parties that provide “assistance and support” may not have a direct business relationship with the sanctions regime, and may not even know that there is any sanctions involvement (for example they might not recognize that SDNs own the stock of a company with which they are dealing).  This creates perhaps the greatest risk for foreign companies – when they are not aware of any sanctions involvement in the transaction.

The legal authority for imposing sanctions on persons that provide “material support” to sanctions parties or who “knowingly facilitate” significant transactions with sanctioned parties arises from a number of sources.  First, many of the recent Executive Orders issued in connection with various sanctions programs authorize sanctions not just on the party that is the primary target of the sanctions, but also on others who aid and assist such parties.  For example, Executive Order 13662 (one of the three Executive Orders used to authorize the April 2018 designations of the Russian “oligarchs”) authorizes the President to impose sanctions on the targeted Russian parties, and also on any other person determined by the Secretary of the Treasury and State:

“To have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any person whose property and interests in property are blocked pursuant to this order;  or

To be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.”  [xiv]   

This language was drafted quite broadly to capture a wide array of activities.

In addition, CAATSA provides legal authority for sanctions on foreign parties that “knowingly … facilitate a significant transaction” with parties designated for sanctions under certain of the sanctions programs, and actually requires  the President to impose them in certain instances.   For example, §228 of CAATSA provides that the President shall impose sanctions on foreign persons if the President determines that the person knowingly “facilitates a significant transaction or transactions, including deceptive or structured transactions, for or on behalf of … any person subject to sanctions imposed by the U.S. with respect to the Russian Federation, or any child, spouse, parent or sibling” of such party.  Similarly §226 of CAATSA amended §5 of the Ukraine Freedom Support Act of 2014 (“UFSA”) to impose mandatory sanctions on foreign financial institutions if Treasury determines that they knowingly facilitate significant financial transactions on behalf of any Russian person who is listed on the SDN List pursuant to the UFSA or Executive Orders 13660, 13661, 13662, 13685 or any other Executive Order addressing the crisis in Ukraine. 

Other examples of potential liability for foreign companies providing assistance to sanctioned parties include under OFAC’s Foreign Sanctions Evaders List[xv] and the State Department’s Section 231 List.[xvi]

The exact restrictions on providing “material support” and “facilitation” vary under the different sanctions programs, and sometimes within the same program.  Thus one must look at the specific legal authority behind a particular sanctions designation to assess if restrictions also apply to providing support or facilitation to the sanctioned party. 

These legal authorities provide a number of qualifiers which must be satisfied in order for a violation to occur.  For support and assistance, the support must be “material” – hence insignificant transactions might be excluded.  Similarly under §228 of CAATSA a person must “knowingly” facilitate a “significant” transaction.[xvii]  Thus there are some limitations on these provisions, however they are still quite broad and provide significant discretion to U.S. regulatory officials.

The following are examples of parties that have been designated by OFAC for sanctions solely because they provided some form of material support or assistance to the primary target of the sanctions:

• Designation of the Russian port service agency Profinet Pte. Ltd. that provides port loading, bunkering and departure arrangements for vessels calling at various Russian ports.  The designation was for providing port loading services for vessels listed on the SDN List (including Chon Myong 1 and Rye Song Gang 1).  Profinet’s Director General Vasili Kolchanov was also designated.  (August 15, 2018)
• Designation of the Russian bank Agrosoyuz Commercial Bank for knowingly conducting or facilitating a significant transactions on behalf of Han Jang Su, the Moscow-based chief representative of N. Korean Foreign Trade Bank.  Ri Jong Won, the Moscow-based deputy representative of Foreign Trade Bank, was also personally designated.  (August 3, 2018)
• Designation of Velmur Management Pte. Ltd., a Singapore company, for having materially assisted, sponsored, or provided financial, material or technological support for another SDN (Transatlantic Partners Pte. Ltd.).  On the same day the U.S. Justice Department filed a complaint against Velmure Management in the U.S. District Court For the District of Columbia for money laundering violations. (August 22, 2017)
• Designation of Lebanon-based Nasco Polymers and UAE-based Sonex Investments for chartering vessels and serving as consignee for Syrian Company Oil Transport – which is the port authority for the ports of Baniyas and Tartus in Syria; Also designation of Adnan Al-Ali  for providing financial, material or technological support and serving as advisor to Abar Petroleum (which was designated as an SDN). (September 6, 2018)
• Designation of Russian born South African Vladlen Amtchentsev pursuant to Executive Order 13722 for having acted on behalf of and advised another SDN (Velmur Management Pte. Ltd.) in evasion of the N. Korean sanctions. (November 19, 2018)
• Designation of the Chinese entity Equipment Development Department and its director Li Shangfu for engaging in significant transactions with persons on the CAATSA Section 231 List of Specified Persons (“LSP”). (September 20, 2018)

To date, parties designated for sanctions for providing material support or assistance to parties on the SDN List generally appear to have engaged in egregious activities to assist other parties in circumventing sanctions requirements.

The U.S. effort to curtail “material assistance and support” has targeted entire industries such as the worldwide shipping industry.  For example OFAC has issued numerous shipping industry advisories warning foreign companies to avoid providing support for shipments to sanctioned countries or parties or face U.S. penalties.  In one recent release OFAC stated:

“Treasury reminds the shipping industry, including flag states, ship owners and operators, crew members and captains, insurance companies, brokers, oil companies, ports, classification service providers, and others of the significant risks posed by N. Korea’s shipping practices. [xviii]

Thus if you are operating a foreign shipping company, insurance company, cargo inspection company, port facility or freight forwarder, OFAC wants you to verify that your customers are not engaging in activities that evade U.S. sanctions.  Similarly, if your company sells any other types of products, services, software or other resources, OFAC wants you to verify that these will not be sold to parties that are evading U.S. sanctions. 

Another major industry focus has been on foreign financial institutions.  For example, Executive Order 13810 related to the N. Korea sanctions provides specific authorization to the Secretary of the Treasury to impose secondary sanctions on foreign financial institutions if the institution has:

“(i) knowingly conducted or facilitated any significant transaction on behalf of any person whose property and interests in property are blocked pursuant to Executive Order 13551 of August 30, 2010, Executive Order 13687 of January 2, 2015, Executive Order 13722 of March 15, 2016, or this order, or of any person whose property and interests in property are blocked pursuant to Executive Order 13382 in connection with North Korea-related activities; or

(ii) knowingly conducted or facilitated any significant transaction in connection with trade with North Korea.”[xix]

The U.S. is effectively saying: if the foreign banks do not comply with U.S. sanctions laws, they can be cut off from dollar-based transactions and the U.S. financial system – a death sentence for most international financial institutions.

Thus in this fourth category of requirements for foreign companies - if your company knowingly facilitates significant transactions with parties subject to sanctions, or provides material support and assistance for such parties, this opens the door to your company being designated for sanctions as well.  While the transactions must meet certain thresholds such as being “material,” “knowing” and/or  “significant,” the authority is still quite broad.  It is not clear how far the U.S. will go in enforcing these restrictions – but the legal authority is now in place for it to do so.

The above is not necessarily an exhaustive list of all areas of potential sanctions liability for foreign companies – others may also exist either under current authorities or new ones adopted in the future. 

E.     Penalties For Violations of Secondary Sanctions.   If a non-U.S. party violates U.S. secondary sanctions it becomes subject to a number of significant consequences.  The exact penalties for such violations will depend on the legal authority behind the secondary sanction in question.  In most cases the most significant consequence is that the foreign company runs the risk of being placed on the SDN List.  In addition, in certain instances the President has the option to impose other sanctions under a “menu” of options such as denial of the target party’s right to obtain U.S. visas, to obtain access to U.S. government sponsored export financing, to receive export licenses and to sell goods and services to the U.S. Government.[xx]

The penalties for secondary sanctions are technically different from those under civil enforcement actions or criminal prosecution for sanctions violations.  Civil enforcement actions would typically be used for a direct sanctions violation, especially if the respondent had sufficient contacts in the U.S. (such as the B Whale Corporation cases discussed In Section 2.A. above) or assets subject to U.S. jurisdiction.  However the U.S. Government could certainly pursue multiple remedies to bring maximum leverage on the target party and has done so on multiple occasions.  For example, following OFAC’s designation of Tan Wee Beng on the SDN List on October 5, 2018 for financing shipments of goods to N. Korea, he was indicted in the Southern District of New York for sanctions evasions and money laundering.[xxi]  Similarly, following Velmur Management Pte. Ltd.’s designation to the SDN List referenced above, the U.S. Justice Department simultaneously filed a complaint against Velmure Management for money laundering violations.[xxii]  There are additional examples of simultaneous sanctions designations and law enforcement actions,[xxiii] and these will most likely continue in the future.  

It is not clear how aggressive the U.S. will be in enforcing secondary sanctions, either alone or in conjunctions with conventional law enforcement actions.  The U.S. is still in the early stages in the use of this practice and details are still evolving.  However due to the importance of the sanctions programs to the U.S. Government, it will likely take secondary sanctions very seriously.  World events are moving quickly – we will likely find out very soon.

 

3.         Steps To Mitigate Risk.     Foreign companies face growing challenges – and legal risks - under the U.S. sanctions laws.  In response, many are taking heightened precautions in dealing with these laws in their business activities.  Questions for foreign companies to consider in addressing these risks include: 

(i)   Is your company engaged in transactions with U.S. parties, U.S. products, U.S. technologies or U.S. software or does your company have a presence in the U.S.?

(ii)  Is your company doing business in countries subject to the U.S. sanctions laws, such as Iran, N. Korea, Cuba, Syria, Russia, Ukraine and Venezuela?  Are there secondary sanctions involving those countries that affect your company?

(iii)   If your company is doing business in countries subject to U.S. sanctions laws, are you conducting a heightened level of due diligence review in such transactions to understand the applicable legal requirements and parties with whom you are dealing?

(iv)  Is your company engaged in transactions with persons or entities listed as an SDN or other OFAC restricted party lists?

(v)   Is your company engaged in transactions with entities that are owned 50% or more by parties listed on the SDN List?

(vi)   Does your company own shares in companies that are listed on the SDN List or their subsidiaries?  Are officers and/or directors of your company, subsidiaries or joint ventures SDNs?  Does your company have shareholders that are SDNs?     

(vii)   Are SDNs investors in your investment, private equity or real estate funds or partnerships? 

(viii)  Does your company have contacts with the U.S. financial system and if so are these sufficient to subject your company to U.S. sanctions jurisdiction? 

(ix)   Is your company engaged in transactions that could be viewed as providing material support or assistance to SDNs or knowingly facilitating “significant” transactions with such parties?

There are a variety of compliance practices that foreign companies can use to address these issues and help reduce potential liabilities and we can advise further on these.

            Sanctions laws have become a major focal point for the United States in dealing with some of its most important foreign policy issues. As a result, OFAC takes enforcement of these laws extremely seriously.  Companies should use care to understand these requirements so they do not get caught in the cross-fire.

February 21, 2019

This article contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel. For more information, please visit our website at www.williamsmullen.com or contact Thomas B. McVey, 202.293.8118 or tmcvey@williamsmullen.com.

 

EXHIBIT A

LIST OF U.S. SANCTIONS PROGRAMS

 

Balkans-Related Sanctions ​

​Belarus Sanctions ​

​Burundi Sanctions  ​

​Countering America's Adversaries Through Sanctions Act of 2017 (CAATSA)

​Central African Republic Sanctions  ​

​Counter Narcotics Trafficking Sanctions

​Counter Terrorism Sanctions

​Cuba Sanctions  ​

​Cyber-Related Sanctions ​

​Democratic Republic of the Congo-Related Sanctions  ​

​Foreign Interference in a United States Election Sanctions 

​Global Magnitsky Sanctions

​Iran Sanctions  ​

​Iraq-Related Sanctions  ​

​Lebanon-Related Sanctions ​

​Libya Sanctions   ​

Magnitsky Sanctions ​

​Nicaragua-Related Sanctions ​

​Non-Proliferation Sanctions ​

​North Korea Sanctions   ​

​Rough Diamond Trade Controls ​

​Somalia Sanctions ​

​Sudan and Darfur Sanctions  ​

​South Sudan-Related Sanctions ​

​Syria Sanctions ​

​Transnational Criminal Organizations  ​

​Ukraine-/Russia-Related Sanctions  ​

​Venezuela-Related Sanctions  ​

​Yemen-Related Sanctions ​

​Zimbabwe Sanctions

 

EXHIBIT B

EXAMPLES OF SANCTIONS REQUIREMENTS

Examples of recent sanctions requirements include[xxiv]:

• Iran – Restrictions on U.S. persons entering most types of business and financial transactions with Iran, the Government of Iran and persons in Iran with limited exceptions; certain secondary sanctions apply to non-U.S. parties;
• Russia/Ukraine – Multiple restrictions on U.S. persons including (i) restrictions on entering transactions with designated Russian and Ukrainian government officials and private parties; (ii) a complete trade and investment ban for the Crimea region of Ukraine; (iii) restrictions on entering certain transactions with targeted Russian companies in specific industry sectors including energy, banking and defense;[xxv] (iv) restrictions on entering transactions with certain Russian “oligarchs” and companies in which they have ownership interests of 50% or more; and (v) restrictions on entering transactions with Russian individuals and entities that have been designated for sanctions for cybersecurity violations, election meddling, corruption and other activities;  certain secondary sanctions apply to non-U.S. parties;
• Syria, Cuba, N. Korea – For U.S. persons, comprehensive sanctions similar to Iran sanctions program; certain secondary sanctions may apply in certain instances to foreign parties;
• Venezuela - Restrictions on entering certain transactions with  the Government of Venezuela, Petroleos de Venezuela, S.A., other designated Venezuelan parties and transactions involving cryptocurrency issued by the Government of Venezuela; 

Chinese Banks, Trading and Shipping Companies – In addition to restrictions on dealing with N. Korean parties, the N. Korean sanctions program imposes restrictions on U.S. and foreign parties in dealing with designated Chinese and other non-U.S. banks,