Despite global automation and harmonisation of trade, customs operations and procedures, the following article exemplifies the continued need and importance of knowledgeable trade practitioners and customs specialists. Human intellect and ‘expertise’ will forever play a critical role in the interpretation international trade law and national customs procedure.
Long used by governments to punish rogue countries, regimes, entities and individuals, trade and economic sanctions impact an ever-widening range of goods, technology and services. Recent developments in Iran, Syria and Libya, for example, resulted in far-reaching sanctions by Australia, Canada, the European Union and its 27 Member States, the United Nations, the United States and others. The complexity of sanctions and the speed with which governments implement them to address rapidly changing political situations create serious compliance challenges.
Companies are therefore well advised to implement compliance from management through all levels of sales, logistics and finance. The stakes are extremely high because compliance failures—even unintentional ones—can result in the imposition of substantial fines, debarment from government contracts, damage to public reputation and even imprisonment. Recent penalties illustrate the risks and the high governmental enforcement priority for trade sanctions. These include fines of up to US$536 million imposed by US and UK regulators against financial institutions and major businesses. Individuals may also be subject to prison sentences of up to 10 years in the United States and the United Kingdom.
Anyone involved in cross-border transactions therefore needs to determine if their conduct and that of persons acting on their behalf is regulated by trade sanctions. At a minimum, businesses must understand: which countries, regimes and individuals are targeted by trade sanctions; who is obliged to comply; which transactions are prohibited or restricted; and which authorisations may be available or required for any restricted action.
Businesses should also consider the long reach of US and EU sanctions. US sanctions generally apply to “US persons” wherever they are located in the world and to anyone located in the United States. Similarly, EU sanctions apply to “EU persons” wherever they are located in the world and to anyone located in the European Union. Adding to the breadth of coverage, US rules prohibit “facilitation”, which means neither persons nor companies subject to the rules may support a transaction undertaken by another party, including a foreign affiliate, from which a US person would be prohibited from engaging in directly. EU rules likewise prohibit covered persons from infringing sanctions rules indirectly – so much for economic freedom!
Law firm McDermott Will & Emery recommends that companies should take appropriate steps to minimise the risk of infringing trade sanctions by introducing the following safeguards:
- Require due diligence in connection with all transactions. This should involve at least the screening of all counterparties against the ever-changing sanctions lists that identify the countries, regimes, entities and persons blacklisted. Trade sanctions can apply to goods, technology licensing and the provision of technical assistance, and to ancillary services such as financing, insurance and transport.
- Establish internal procedures to ensure prompt legal review in the event a transaction with a sanctioned party is identified.
- Check that the due diligence checklist for merger or acquisition transactions includes an assessment for compliance with trade sanctions.
Source: McDermott Will & Emery