Matthew Fisher

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U.S. authorities take an expansive view of their jurisdiction when it comes to sanctions. They cannot, however, directly restrict persons outside U.S. jurisdiction from dealing with sanctioned persons. They therefore exert pressure on persons outside U.S. jurisdiction by threatening to designate them as sanctioned persons if they engage in certain activities contrary to U.S. sanctions policy (“Target Activities”). Sanctions imposed in such circumstances are known as ‘secondary sanctions’, and were the topic of the September 2019 judgment of the High Court of England and Wales in Lamesa Investments v. Cynergy Bank. In a ruling that will surprise many, the Court found that the risk of incurring secondary sanctions could be invoked by a party seeking to be excused from its contractual obligations under an illegality clause. While the Court’s interpretation of secondary sanctions appears questionable in several respects, parties will nonetheless need to take it into account when drafting contractual provisions.
Continue Reading High Court of England: U.S. Secondary Sanctions can Trigger Illegality Clauses

Over the past few months a number of developments have highlighted the growing pressure in favour of reactive sanctions implementation in the EU and the UK.

New EU chemical weapons sanctions regime

On October 15, 2018, the Council of the EU adopted a new programme of restrictive measures (Council Regulation (EU) 2018/1542). Where necessary to address the use or proliferation of chemical weapons, the EU is now able to impose asset freezes and travel bans on persons and entities anywhere, regardless of their nationality and location, and forbid EU persons and entities from making funds available to them.Continue Reading Fast-Moving Political Developments Increase the Pressure for Reactive Sanctions Implementation

In recent years, sanctions have become one of the issues of greatest concern for parties entering into international transactions. As a result, detailed contractual clauses designed to manage sanctions risks have become commonplace. The October 2018 judgment of the High Court in Mamancochet Mining v. Aegis Managing Agency[1] (the “Judgment”) has highlighted certain pitfalls in the standard wording of some sanctions clauses, and should be heeded by any party seeking to contractually protect itself from sanctions risks by, for example, making its performance under the contract conditional upon the non-occurrence of certain sanctions events, or tying a termination event to sanctions. The Judgment also casts some light on the interpretation of the EU Blocking Regulation[2] and suggests exercising contractual rights (even ones designed to ensure compliance with U.S. sanctions) does not breach the Blocking Regulation.
Continue Reading Interpreting Sanctions Clauses and the EU Blocking Regulation: The High Court of England Weighs In

On 18 May 2018, the European Commission announced its intention to expand Council Regulation (EC) 2271/96 of 22 November 1996 (the “Blocking Regulation”) in order to discourage European companies from complying with newly re-imposed U.S. Iran-related sanctions. On 6 June 2018, the European Commission adopted a delegated regulation to enact these changes, which will come into force by 6 August 2018 (the date when the first wind-down period for the U.S. secondary sanctions on Iran expires), provided the EU Parliament and Council do not have objections.

This blogpost considers how the Blocking Regulation will work in practice for UK and European companies, in particular in light of the UK’s departure from the European Union (“EU”) in 2019.
Continue Reading The Blocking Regulation and Brexit: the Effect of U.S. Sanctions in a Changing Europe

On 24 May 2018, the Sanctions and Anti-Money Laundering Act 2018 (the “Act”) received Royal Assent, marking the conclusion of its passage through Parliament and its entry into law. The sanctions powers under the Act are expected to be exercisable following the UK’s withdrawal from the European Union in March 2019 (“Brexit”).[1] This blog post takes a look at the sanctions provisions in the Act and explores how the UK’s sanctions regime might look following Brexit.
Continue Reading UK Passes New Sanctions Legislation