On January 31, 2019, France, Germany and the UK (the “E3”) announced the creation of the Instrument in Support of Trade Exchanges (“INSTEX”), a special purpose vehicle intended to facilitate legitimate trade between European companies and Iran, registered in France.  This initiative is supported by the European Union. The vehicle was created in the wake of the U.S.’ withdrawal in 2018 from the Iran nuclear deal (the  Joint Comprehensive Plan of Action (“JCPOA”)), in addition to the EU Blocking Regulation, and as part of the EU’s response to the re-imposition of U.S. secondary sanctions on Iran through the U.S. Executive Order 13846 (the “Executive Order”).  The Executive Order re-imposed the secondary sanctions regime against Iran that it have been suspended while it was a party to the JCPOA.  Continue Reading France, Germany, UK Launch INSTEX to Facilitate Trade With Iran

On March 8, 2019, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) further amended the general licenses governing secondary trading of pre-sanctions Government of Venezuela (GoV) debt and Petróleos de Venezuela, S.A. (PdVSA) debt and equity by issuing new General Licenses (GL) 3D and 9C.  In both, OFAC extended the authorization for all transactions and activities ordinarily incident and necessary to winding down financial contracts or other agreements entered into before January 28, 2019 (for transactions involving PdVSA debt and equity) or February 1, 2019 (for transactions involving certain GoV debt listed in GL 3D) to May 10, 2019.

OFAC has stated that these authorizations permit settling trades entered into prior to the relevant restrictions even where the related sale or transfer is to a U.S. person.  OFAC also revised previously issued FAQ guidance to reflect the extended expiration dates.

On February 13, 2019, a bipartisan group of senators introduced a draft bill that, if adopted, would significantly strengthen sanctions relating to the Russian Federation.  Introduced as the “Defending American Security from Kremlin Aggression Act of 2019” (“DASKA”), the wide-ranging bill covers a number of subjects, in particular a range of new cybersecurity provisions.  This note focuses on the sanctions provisions, which would: Continue Reading Russia Sanctions Bill Reintroduced by Bipartisan Group of Senators

The Office of Foreign Assets Control of the U.S. Treasury Department recently issued a series of instructive press releases regarding enforcement actions taken against several companies.  The decision to publicize these enforcement actions could signal a more activist and expansionist approach to sanctions enforcement matters and may evidence a broadening of OFAC’s enforcement priorities as the long run of enforcement against financial institutions begins to wind down.  The actions demonstrate a focus on acquisition due diligence and conduct by overseas entities, and in particular on aggressive action against U.S. companies who fail to terminate sanctioned business by their newly acquired overseas subsidiaries; indeed, in a number of these cases OFAC took enforcement action despite the fact that the U.S. acquiror explicitly directed the termination of the sanctioned business, was deceived by officials of the acquired entity, and voluntarily self-reported the violation after discovering it.  OFAC has also begun to spell out, in enforcement actions, the elements of sanctions compliance programs it imposes on violators (and, presumably, would consider a benchmark for other companies). Continue Reading OFAC Takes Aggressive Enforcement Action in Connection With M&A Transactions and Spells Out Compliance Expectations

On March 4, 2019, Secretary Pompeo extended the suspension of actions under Title III of the Helms-Burton Act for another 30 days, until April 17, 2019.  We have updated our memorandum on the potential impact of a revival of Title III accordingly.

On January 16, 2019, U.S. Secretary of State Mike Pompeo announced that the administration would issue a limited, 45 day extension of the suspension of Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (known as the “Helms Burton Act”).

If this limited suspension is not renewed on or before March 17, 2019, it will be possible for plaintiffs to assert the cause of action authorized by Title III of the Helms Burton Act. That cause of action has been suspended for successive six month periods by every presidential administration since the law was enacted in 1996. Continue Reading Potential End of Suspension of Title III of the Helms-Burton Act: Authorization of Claims Under U.S. Law for “Trafficking” in Certain Cuban Properties

Today the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued new general licenses (GL) 3C (amending GL 3B) and GL 9B (amending GL 9A) and amended previously issued FAQ 661 and FAQ 662.  The changes clarify that U.S. persons remain prohibited from purchasing or investing in listed GL 3C (GL 3C Bonds) or pre-sanctions PdVSA debt and equity (PdVSA Securities) and that OFAC’s facilitation prohibitions apply to such purchases other than (in both cases) purchases or investments that are “ordinarily incident and necessary” for divestment or transfers to non-U.S. persons. In other words, U.S. persons may purchase, invest in, or facilitate purchases and investments in GL 3C Bonds and PdVSA Securities where doing so is a necessary part of a transaction involving divestment or transfer to a non-U.S. person.  OFAC further specifically noted in the revised FAQs that this authorization includes activities such as acting as custodian for U.S. and non-U.S. persons’ holdings in GL 3C Bonds and PdVSA Securities (including acting as custodian for a non-U.S. person after that person receives the securities from a U.S. person) and receipt and processing of principal and interest payments. See FAQ 661, FAQ 662.  The wording is not fully clear, but the changes appear designed to reassure U.S. intermediaries in particular that they are authorized to provide services such as custody, transfer, and payment so long as no prohibited acquisition by a U.S. person is involved.

OFAC also made minor corrections to the list of GL 3C Bonds and to the GL 9B list of PdVSA Securities and made non-substantive changes to FAQ 650 conforming it to the updated General Licenses.

On February 1, 2019, the U.S. Department of Treasury’s Office of Foreign Assets Control issued FAQs providing guidance on the designation of Petróleos de Venezuela, S.A. under Executive Order 13850 and concurrent issuance of related general licenses. OFAC also issued amended general licenses governing secondary trading of pre-sanctions Government of Venezuela and PdVSA debt (General License (“GL”) 3B and 9A).

Highlights of the new OFAC guidance and license amendments include that:

  • holders of the PdVSA 2020 8.5 percent bond, including U.S. person bondholders, are licensed to execute on the underlying collateral despite the blocking of PdVSA property under GL 9A;
  • authorized trades in pre-sanctions GoV bonds pursuant to GL 3B are now limited to sales to non-U.S. persons, as was the case for PdVSA bonds;
  • technical fixes were added that are designed to permit settlement of open trades and securities transactions if the transactions were entered into before the effective time of the relevant sanctions (4:00 pm NY time on January 28 for PdVSA entities, and 4:00 pm NY time on February 1 for other GoV entities), regardless of whether the transferee is a U.S. person;
  • U.S. financial institutions’ authority to reject (rather than block) “U-turn” funds transfers relating to PdVSA has been limited to maintenance or wind down activities involving U.S. persons authorized under GL 11, and all other unlicensed, PdVSA-related U.S. dollar clearing transactions must be blocked;
  • U.S. and non-U.S. persons may continue to form and invest in funds providing synthetic exposure to PdVSA-related debt or equity where the underlying basket being tracked does not consist predominantly of blocked securities;
  • Non-U.S. persons can engage in transactions with a U.S. nexus to purchase PdVSA petroleum and petroleum products outside of the United States until April 28, 2019.

Please click here to read the full alert memorandum.

OFAC has clarified that, pursuant to the terms of General License 14 and General License 16, it still expects all U.S. persons who participated in transactions with United Company Rusal PLC, EN+ Group PLC, JSC EuroSibEnergo, or their subsidiaries in reliance on the general licenses during the period when these entities were SDNs (April 6, 2018 through January 27, 2019) to file reports with OFAC.  The delisting of these entities does not terminate the reporting requirement.  Reports are due Monday, February 11, 2019, and must include “a comprehensive, detailed report of each transaction, including the names and addresses of parties involved, the type and scope of activities conducted, and the dates on which the activities occurred.”  Reports are to be filed with the Office of Foreign Assets Control, Office of Compliance and Enforcement, U.S. Department of the Treasury, 1500 Pennsylvania Avenue N.W., Freedman’s Bank Building, Washington, DC 20220, or via email to OFACReport@treasury.gov.

Please contact Paul Marquardt or Sameer Jaywant with any questions.

On January 28, 2019, the U.S. Department of the Treasury’s Office of Foreign Assets Control designated Petróleos de Venezuela, S.A.; effective immediately PdVSA is on OFAC’s Specially Designated Nationals and Blocked Persons List and all of its assets within U.S. jurisdiction are blocked.

Simultaneously, OFAC issued a number of general licenses intended to mitigate the impact of this designation outside of Venezuela by providing limited authorization for certain transactions and activities related to PdVSA and its subsidiaries. As a result:

  • all assets of PdVSA and its direct and indirect subsidiaries owned 50% or more by PdVSA or other specially designated nationals (SDNs) (in the aggregate) within U.S. jurisdictions are now blocked and all transactions within U.S. jurisdiction involving these persons and entities are prohibited, absent a license;
  • PdVSA and its subsidiaries may still service debt issued prior to August 25, 2017, and U.S. persons can continue to hold and provide services related to such debt, but transfers of such debt are now only permitted to non-U.S. persons (in other words, U.S. persons may only divest PdVSA debt, not acquire it);
  • purchase and importation into the United States of petroleum and petroleum products from PdVSA is permitted until April 28, 2019, so long as all proceeds from such sales are paid into blocked, interest-bearing accounts in the United States rather than released to PdVSA;
  • certain U.S.-linked PdVSA subsidiaries—including PDV Holding, Inc., CITGO Holding, Inc., and their subsidiaries—are not subject to blocking sanctions until July 27, 2019, and thus their assets are not frozen and transactions with these entities within U.S. jurisdiction remain permitted; and
  • U.S. financial institutions are permitted to reject rather than block (i.e., return rather than seize) funds transfers involving PdVSA or its subsidiaries, so long as the funds transfers originated outside of the United States and both the originator and beneficiary are non-U.S. persons located outside of the United States or Venezuela, until March 29, 2019.  Note that this does not authorize the processing of U.S. dollar transfers relating to PdVSA, which are now prohibited unless related to U.S.-licensed activities.

Please click here to read the full alert memorandum.