Presenting a live 90-minute webinar with interactive Q&A OFAC Ukraine-Related Sanctions: Overcoming Compliance Challenges, Meeting Evolving U.S. and EU Sanctions WEDNESDAY, SEPTEMBER 10, 2014 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Barbara D. Linney, Member, Miller & Chevalier Chartered, Washington, D.C. Lawrence Ward, Partner, Dorsey & Whitney, Seattle The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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UKRAINE-RELATED SANCTIONS: Overcoming Compliance Challenges, Meeting Evolving U.S. and E.U. Sanctions presented by Barbara D. Linney Member Miller & Chevalier Chartered Lawrence A. Ward Partner Dorsey & Whitney LLP September 10, 2014* Strafford Live CLE Webinar * This PowerPoint presentation covers developments through September 5, 2014, the cut-off date for submission to Strafford for distribution. Any subsequent developments will be covered during the live webinar.
Agenda 1. Overview and Timeline of Implementation of U.S. and E.U. Ukraine-Related Sanctions 2. U.S. and E.U. Sanctions 3. Compliance Challenges & Strategies 4. Forecast for the Future and Questions UKRAINE-RELATED SANCTIONS 6
Overview and Timeline of Implementation of U.S. and E.U. Ukraine-Related Sanctions UKRAINE-RELATED SANCTIONS 7
Initial Implementation of U.S. Sanctions March 26-27, 2014 UKRAINE-RELATED SANCTIONS 8
Expansion of U.S. Sanctions and Further Designations UKRAINE-RELATED SANCTIONS 9
Continued Escalation of U.S. Sanctions UKRAINE-RELATED SANCTIONS 10
Initial Implementation of E.U. Sanctions UKRAINE-RELATED SANCTIONS 11
Expansion of E.U. Sanctions and Further Designations UKRAINE-RELATED SANCTIONS 12
Continued Escalation of E.U. Sanctions UKRAINE-RELATED SANCTIONS 13
U.S. and E.U. Sanctions UKRAINE-RELATED SANCTIONS 14
Types of U.S. Sanctions Asset Blocking Travel Bans Sectoral Sanctions Export Restrictions UKRAINE-RELATED SANCTIONS 15
Types of E.U. Sanctions Asset Freezing Travel Bans Restrictions on provision of financial services and certain financing/investment transactions Trade Bans UKRAINE-RELATED SANCTIONS 16
Other Ukraine-Related Sanctions Several other countries have sanctions programs, including Australia, Canada, Japan, New Zealand, Norway, Switzerland, and United Kingdom Programs vary, but most include similar elements, including asset freezing UKRAINE-RELATED SANCTIONS 17
U.S. Asset Blocking and Travel Bans Begins under E.O. 13660 E.O. 13660 blocks all property and interests in property (that are in or come within United States or that are or come within possession or control of U.S. person) of designated persons Blocked property may not be transferred, paid, exported, withdrawn or other wise dealt in Scope of authorized designations focused on those responsible for/complicit in unrest in Ukraine Designated persons are added to OFAC s Specially Designated Nationals and Blocked Persons List (SDN List) E.O. 13660 suspends entry into United States of designated persons E.O. 13660 prohibits evasion and conspiracy to violate prohibitions UKRAINE-RELATED SANCTIONS 18
U.S. Asset Blocking and Travel Bans Continue under E.O.s 13661 and 13662 E.O. 13661 effectively includes same prohibitions Expanded scope of designations to include senior officials of Russian Federation Government and persons operating in arms or related materiel sector in Russian Federation E.O. 13662 effectively includes same prohibitions Expanded scope of designations to include persons operating in sectors of Russian Federation economy determined by Treasury Secretary such as financial services, energy, metals and mining, engineering, and defense and related materiel No blocking of property under E.O. 13662 to date UKRAINE-RELATED SANCTIONS 19
Key URSR Provisions URSR prohibit all transactions prohibited under E.O.s 13660, 13661 and 13662 589.202 - discusses effect of transfers violating URSR provisions 589.203 - discusses holding of funds in interestbearing accounts; investment and reinvestment 589.204 - discusses expenses of maintaining blocked property and liquidation of blocked property 589.312 - defines U.S. person UKRAINE-RELATED SANCTIONS 20
Interpretations, Licenses and Authorizations under URSR Person whose property and interests in property are blocked has interest in all property and interest in property of entity in which it owns, directly or indirectly, 50% or greater interest Such entity also is blocked even if not included on SDN List Updated guidance issued August 13, 2014 U.S. financial institutions must block funds but may transfer funds or credit between blocked accounts in its branches or offices provided no transfer is from U.S. account to foreign account and transfer only to another blocked account held in same name U.S. financial institutions may debit blocked account for normal service charges UKRAINE-RELATED SANCTIONS 21
Interpretations, Licenses and Authorizations under URSR (cont d) U.S. persons may provide certain legal services to blocked persons and get paid Non-scheduled emergency medical services in United States may be provided to blocked persons and payment for such services is authorized Note that General License No. 1 issued July 16, 2014 is not yet incorporated in URSR UKRAINE-RELATED SANCTIONS 22
E.U. Asset Freezing and Travel Bans Obligations apply to Member States (travel bans) Nationals of any Member State and legal persons incorporated under laws of any Member State Legal persons doing business within European Union Within Member States and on board any vessel or aircraft under jurisdiction of Member State All funds and economic resources belonging to, owned, held or controlled by listed persons are frozen (including natural or legal persons, entities or bodies associated with them) Entry into and transit through E.U. Member States by individuals on list of persons subject to restrictive measures is prohibited UKRAINE-RELATED SANCTIONS 23
E.U. Asset Freezing and Travel Bans (cont d) Persons who may be subject to asset freezes and travel bans include Natural persons responsible for actively supporting or implementing actions or policies undermining or threatening territorial sovereignty of Ukraine or stability or security in Ukraine or which obstruct work of international organizations in Ukraine, and natural or legal persons, entities or bodies associated with them (only natural persons subject to travel bans) Legal persons, entities or bodies in Crimea or Sevastopol whose ownership has been transferred contrary to Ukrainian law or legal persons who have benefitted from such transfer (asset freezing only) Legal persons, entities or bodies who provide material or financial support for actions undermining or threatening territorial sovereignty of Ukraine (asset freezing only) Natural or legal persons actively supporting, materially or financially, or benefitting from, Russian decision-makers responsible for annexation of Crimea or destabilization of Eastern Ukraine (only natural persons subject to travel bans) UKRAINE-RELATED SANCTIONS 24
U.S. Sectoral Sanctions Directive 1 Targets financial services sector of Russian Federation economy Prohibits U.S. persons from transacting in, providing financing for, or otherwise dealing in new debt of longer than 90 days maturity or new equity for listed persons, their property or their interests in property 50% rule applies All other transactions permitted unless SDN involved Directive 2 Targets energy sector of Russian Federation economy Same prohibitions as under Directive 1 with respect to new debt but there is no restriction on dealing in new equity All other transactions permitted unless SDN involved UKRAINE-RELATED SANCTIONS 25
U.S. Sectoral Sanctions (cont d) On July 16, 2014 and on July 29, 2014, OFAC added numerous Russian banks and oil and gas companies to new Sectoral Sanctions Identifications List (SSI List) On July 16, 2014, OFAC issued General License No. 1 authorizing certain transactions involving derivative products OFAC has made clear that persons designated on SSI List are not considered SDNs unless also so designated U.S. persons must reject (and may be required to report) prohibited transactions and dealings UKRAINE-RELATED SANCTIONS 26
E.U. Financial Services & Investment Restrictions Prohibitions apply Within territory of European Union On board any vessel or aircraft under jurisdiction of Member State Nationals of Member States To any legal person, entity or body incorporated or constituted under law of Member State To any legal person, entity or body in respect of any business done in whole or in part within Union UKRAINE-RELATED SANCTIONS 27
E.U. Financial Services & Investment Restrictions (cont d) Prohibitions against Granting of any financial loan or credit specifically relating to creation, acquisition or development of infrastructure in transportation, telecommunications or energy sectors or exploitation of natural resources in Crimea or Sevastopol Acquisition or creation of participation in enterprises in Crimea or Sevastopol engaged in such activities; and Creation of related joint ventures Prohibitions extend to direct or indirect provision of related technical assistance and brokering services Knowing and intentional circumvention prohibited Performance of obligations under contracts or agreements concluded before July 30, 2014 and extension of such obligations are grandfathered provided 10 working days advance notice is provided to Member State UKRAINE-RELATED SANCTIONS 28
E.U. Financial Services & Investment Restrictions (cont d) Prohibition against direct or indirect purchase or sale of, brokering or assistance in issuance of, or any other dealings with transferable securities and money market instruments with maturity exceeding 90 days issued after August 1, 2014 by Five listed Russian credit institutions; Any legal person, entity or body outside Union owned more than 50% by such listed institutions; or Any legal person, entity or body acting on behalf of or at direction of any such person Knowing and intentional circumvention prohibited (including by acting as substitute for such institutions or persons) UKRAINE-RELATED SANCTIONS 29
U.S. Restrictions on Dual-Use Exports BIS rule regarding sanctions on Russian oil industry took effect on August 6, 2014 Rule imposes controls on certain items when exporter, reexporter or transferor knows or is informed item will be used directly or indirectly in Russia s energy sector for exploration or production from deepwater (greater than 500 feet), Arctic offshore, or shale projects that have potential to produce oil or gas in Russia Controls also imposed if exporter, reexporter or transferor is unable to determine if item will be used in such projects UKRAINE-RELATED SANCTIONS 30
U.S. Restrictions on Dual-Use Exports (cont d) Presumption of denial for license applications Items include items specified under ECCNs 0A998, 1C992, 3A229, 3A231, 3A232, 6A991, 8A992 and 8D992 Items also include those listed in Supplement No. 2 to Part 746 (Russian Industry Sector Sanctions List) List of 52 Schedule B numbers for various items UKRAINE-RELATED SANCTIONS 31
U.S. Restrictions on Defense Exports DDTC continues to deny pending applications for export or reexport of any high technology defense articles/services regulated under U.S. Munitions List to Russia or occupied Crimea that contribute to Russia s military capabilities DDTC is taking actions to revoke any existing export licenses that meet these conditions All other pending applications and existing licenses will receive case-by-case evaluation to determine their contribution to Russia s military capabilities UKRAINE-RELATED SANCTIONS 32
E.U. Trade Bans Prohibitions apply Within territory of European Union On board any vessel or aircraft under jurisdiction of Member State Nationals of Member States To any legal person, entity or body incorporated or constituted under law of Member State To any legal person, entity or body in respect of any business done in whole or in part within Union Prohibitions include both import and export bans and extend to goods, technology and services UKRAINE-RELATED SANCTIONS 33
E.U. Trade Bans (cont d) Prohibition against importation of goods originating in Crimea or Sevastopol Related financing or financial assistance, insurance or reinsurance also prohibited, whether direct or indirect Exceptions for goods controlled by Ukrainian authorities (certificate of origin required) Performance of contracts executed before June 25, 2014 permitted through September 26, 2014 Knowing and intentional circumvention prohibited UKRAINE-RELATED SANCTIONS 34
E.U. Trade Bans (cont d) Prohibition against sale, supply, transfer or export of key equipment and technology specified in Annex III to Council Regulation (EU) No 825/2014 of July 30, 2014 to or for use in Crimea or Sevastopol Prohibition also applies to related technical assistance or brokering services as well as financing or financial assistance Performance of contracts executed before July 30, 2014 permitted through October 28, 2014 upon 10 days prior notice to Member State Intended to target creation, acquisition or development of infrastructure in transport, telecommunications and energy sectors and exploitation of oil, gas and mineral reserves Knowing and intentional circumvention prohibited UKRAINE-RELATED SANCTIONS 35
E.U. Trade Bans (cont d) Prohibition against direct or indirect sale, supply, transfer or export of arms and related materiel, including spare parts for use in Russia Prohibition also applies to related technical assistance and brokering or other services, services as well as financing or financial assistance, including insurance and reinsurance Prohibition against import, purchase or transport of arms and related materiel from Russia Performance of contracts executed before August 1, 2014 and provision of spare parts and services necessary for maintenance and safety of existing capabilities within Union permitted Knowing and intentional circumvention prohibited UKRAINE-RELATED SANCTIONS 36
E.U. Trade Bans (cont d) Prohibition against direct or indirect sale, supply, transfer or export of all dual-use goods and technology and transfer, brokering and transit of dual-use items for military use in Russia or for any military end-user in Russia, whether in whole or in part Prohibition against direct or indirect sale, supply, transfer or export of certain technologies suited to deep water oil exploration and production, arctic oil exploration and production or shale oil projects in Russia without prior authorization of exporting Member State Prohibitions extend to related technical assistance and other services, as well as financing or financial assistance Performance of contracts or agreements concluded before August 1, 2014 is permitted UKRAINE-RELATED SANCTIONS 37
U.S. Congressional Action Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act of 2014 signed into law April 3, 2014 Section 8 requires President to impose asset blocking and travel bans on persons responsible for violence or undermining peace, security, stability, sovereignty, or territorial integrity of Ukraine Section 9 authorizes and encourages President to impose sanctions on persons in Russian Federation complicit in or responsible for significant corruption UKRAINE-RELATED SANCTIONS 38
Compliance Challenges & Strategies UKRAINE-RELATED SANCTIONS 39
Compliance Challenges & Strategies Determining Ownership and Control Distinguishing Between Old and New Debt/Equity Identifying Repayment Terms Exceeding 90 Days Obtaining End-Use Information Spotting SDN End-Runs Vetting Joint Venture Partners Determining Required Standard of Care UKRAINE-RELATED SANCTIONS 40
Forecast for the Future and Questions UKRAINE-RELATED SANCTIONS 41
What s On the Horizon? E.U. expected to announce more sanctions on Russian defense and energy companies E.U. expected to strengthen existing sanctions against state-owned banks U.S. expected to follow suit Impact of cease-fire on plans for additional sanctions remains unclear UKRAINE-RELATED SANCTIONS 42
Questions? Barbara D. Linney Miller & Chevalier Chartered 655 Fifteenth Street, NW Suite 900 Washington, DC 20005 202.626.5806 202.626.5801 (fax) blinney@milchev.com www.millerchevalier.com Lawrence A. Ward Dorsey & Whitney LLP Columbia Center 701 Fifth Avenue, Suite 6100 Seattle, WA 98104-7043 206.903.8817 206.299.5163 (fax) ward.lawrence@dorsey.com www.dorsey.com UKRAINE-RELATED SANCTIONS 43