В статье освещаются вопросы, связанные с санкционным режимом, в том числе, изменения этого режима. Эти изменения повысят важность соблюдения санкционных требований и имеют особое значение для морской отрасли. Особенное внимание уделяется санкциям ООН, США, ЕС и Великобритании, а также следующим отношениям:
- Вероятные последствия автономного режима санкций Великобритании, вступающего в силу в конце переходного периода Brexit.
- Внимание властей США и Великобритании к судоходству.
- Экстерриториальный эффект некоторых санкций.
- Трудности соблюдения.
This report highlights some recent developments and forthcoming changes in the sanctions landscape. They are developments and changes which will increase the importance of compliance, most likely complicate the task and which have particular relevance for the maritime industry.
• The use of sanctions as a foreign and security policy tool has led to a proliferation of sanctions regimes. These sometimes have conflicting requirements. However, they use broadly the same tools: prohibitions or restrictions on trading, exports and imports and freezing and blocking of funds, and it is this that makes them of particular relevance to shipping, which is at the heart of world trade.
• The US and UK authorities recognise this. Compliance by the shipping industry is essential to the effectiveness of sanctions regimes. It is no surprise therefore that in recent months both the relevant US and UK authorities have issued “guidance” to the maritime industry.
• The guidance from both the US and UK authorities, although different in tone, focus on the recognition of illicit practices and the measures required or suggested to ensure compliance.
• This guidance requires careful consideration and it comes at a time when the sanctions landscape is changing.
• To date, for reasons explained in this briefing, the principal sanctions regimes for those operating in international markets have been those of the US and the EU. The position will be changed and complicated by the UK’s departure from the EU.
• From the end of the Brexit transition period, EU sanctions will cease to be applicable in the UK and its own regime will take effect under the Sanctions and Anti-Money Laundering Act 2018 (SAMLA).
• The UK regimes (like the EU regimes) will have extra-territorial effect in some respects and will not apply only to UK persons – see further below on this.
• SAMLA includes extensive provisions empowering the imposition of sanctions affecting shipping. The principal provisions are summarised in this briefing. Not surprisingly, these too have extra-territorial effect.
• As a result of the potential extra-territorial application of the EU and UK regimes, in some cases both the EU and UK regimes will apply. In these instances it will therefore be necessary to check the UK regime in addition to the EU regime.
• In some cases they will have differing provisions and it will be necessary to comply with both. If there are not just differences, but conflicts, complex issues will arise.
• Similar complexities have existed for decades resulting from the application of US sanctions – and in this briefing we summarise the differing mechanics of US primary sanctions, secondary sanctions and their extra-territorial effect. However, the Trump Administration has dramatically expanded the use of secondary sanctions and the EU has enhanced its anti-boycott legislation leading to the real possibility of conflicting requirements where it is not possible to comply with both.
• Against this background of increasingly complex sanctions regulation and ever closer attention by the relevant authorities, it will be important to have a full understanding of the sanctions applicable to the business, the risks posed in the relevant activity and the due diligence and compliance measures required to address those risks. In the context of specific transactions, the contractual terms should be tailored to manage the risks.
RECENT DEVELOPMENTS,FORTHCOMING CHANGESAND THE NEED FOR COMPLIANCE
Sanctions and the maritime industry
Compliance with sanctions has long been a high priority and a complicated matter for entities involved in the maritime industry.
There are a number of reasons for this. The use of sanctions as a foreign and security policy tool, in particular by the US, EU and UK, has increased considerably in recent years and this trend continues. This has led to a proliferation of sanctions regimes. These regimes may have sometimes conflicting requirements (see below) but they largely employ the same tools: partial or blanket prohibitions on trading with certain countries, restrictions on the export or import of various goods, restrictions on the transfer of certain technologies and asset freezes. It is therefore inevitable that they have a particular significance for shipping and that those involved in the sector are particularly exposed to the risk of sanctions violation.
Ships trade worldwide, often with varying trading patterns. The contractual chain, from lenders or lessors through charterers and sub-charterers to cargo interests may be long and there is often no direct contractual nexus between all parties in the chain. Sanctionable activities may be difficult to detect and may be disguised by illicit practices.
The US and UK authorities recognise both that compliance by the shipping industry is essential to the effectiveness of sanctions regimes and that shipping is susceptible to would be sanctions evaders. It is no doubt partly for these reasons, even if in differing measures, that in the past few months, the US Department of State, US Department of the Treasury’s Office of Foreign Assets Control (OFAC), and US Coast Guard issued a joint Sanctions Advisory for the Maritime Industry (the “US Advisory”), which built on and expanded several prior sanctions advisories for the maritime community issued in 2018-19. Shortly thereafter the UK Office of Financial Sanctions Implementation (OFSI) issued its Maritime Guidance for entities and individuals operating within the maritime shipping sector
– see further below on these measures.1
All the above issues go to the complexity of ensuring compliance. Notwithstanding the complexities, the potential consequences of non-compliance can be draconian, including criminal liability (and imprisonment), significant fines, exclusion from the US banking system and reputational damage.
Set in this context, we look at:
• The likely implications of the UK’s autonomous sanctions regime coming into
effect at the end of the Brexit transition period;
• The recent US and UK authorities’ focus on shipping;
• The extra-territorial effect of certain sanctions; and
• Complications in compliance.
The existing regimes and a new regime
To date, for entities operating in the international markets, the four principal sanctions regimes to consider have been those of the UN, US, EU and UK.2
In practice, this has meant primarily the US and EU regimes. The UN regimes are enacted by the EU (which also enacts autonomous sanctions). EU sanctions (both those implementing UN sanctions and its autonomous sanctions) have a direct effect in all Member States, including the UK, and while the UK has had powers to impose its own autonomous sanctions, there have been relatively limited autonomous UK measures to date with UK legislation being primarily concerned with setting out the penalties for breaches of the EU regimes.3 As a result, to date, UN and UK sanctions could, in general, be ascertained by reference to EU sanctions and, on the other side of the coin, most sanctions in the UK have derived from UN and EU sanctions.
This position is in the process of, possibly fundamental, change.
When the UK joined the EU by signing the Treaty of Accession in 1972, it enacted the European Communities Act (ECA). This provided for the incorporation into UK law of directly applicable EU law. Following the Brexit vote, the UK enacted the European Union (Withdrawal) Act 2018 (EUWA) and the European Union (Withdrawal Agreement) Act 2020, pursuant to which the ECA was repealed on exit day (31 January 2020) subject to certain savings provisions effective until the end of the transition period (31 December 2020).
As a result of the above, with effect from 1 January 2021, EU sanctions (amongst other EU laws) will generally cease to apply in the UK in their current form.
The Sanctions and Anti-Money Laundering Act 2018
In order to cover the position, the UK enacted the Sanctions and Anti-Money Laundering Act 2018 (SAMLA) which is enabling legislation empowering the UK government to impose a wide array of sanctions.
SAMLA confers the power to create six types of sanctions for 11 purposes.
The types of sanctions that may be imposed are: financial sanctions, immigration sanctions, trade sanctions, aircraft sanctions, shipping sanctions (see below) and sanctions for purposes of meeting UN obligations.4
The purposes for which they may be created are compliance with a UN obligation, compliance with any other international obligation, or where an “appropriate Minister” considers that the imposition of sanctions would achieve one of nine other specified purposes and it is these nine purposes which give the power to create an independent sanctions regime in addition to “replicating” the EU regime.5
The nine other purposes are: (a) the prevention of terrorism, in the United Kingdom or elsewhere, (b) the interests of national security; (c) the interests of international peace and security; (d) furthering a foreign policy objective of the government of the UK; (e) promoting the resolution of armed conflicts or the protection of civilians in conflict zones; (f) providing accountability for or being a deterrent to gross violations of human rights, or otherwise to promote compliance with international human rights law, or respect for human rights; (g) promoting compliance with international humanitarian law; (h) contributing to multilateral efforts to prevent the spread and use of weapons and materials of mass destruction; and (i) promoting respect for democracy, the rule of law and good governance.
Two points to note, which we return to further below, are that:
• while one of the main purposes of SAMLA was to enable sanctions to continue uninterrupted after the end of the Brexit transition period, it does not follow that the provisions which thereafter apply will be exactly the same as those currently in force; and
• SAMLA has extra-territorial effect in a number of respects and is therefore not just of significance to the UK.
When will the changes apply?
Although SAMLA was enacted in 2018 and the majority of its provisions came into effect on 22 November 2018, it did not bring immediate changes and we are now approaching the date when the changes it will bring will come into effect. This is because SAMLA is essentially enabling legislation empowering the government to impose sanctions; it does not impose sanctions itself but empowers sanctions to be made by secondary legislation.
Some autonomous sanctions have already been brought into effect – The Global Human Rights Sanctions Regulations 2020 – however, the numerous statutory instruments which have been laid under SAMLA to transfer EU sanctions into UK law will not come into effect until 1 January 2021.
What is the position now and what will it be when the changes apply?
The current position is that we are in the implementation period. This commenced on 31 January 2020 and expires on 31 December 2020. During this period, EU sanctions continue to be directly applicable in the UK and therefore both EU and UN sanctions continue to be implemented in this manner. Additionally, the UK can enact autonomous sanctions and, as referred to above, it has already done so in the form of The Global Human Rights Sanctions Regulations 2020.
As the law currently stands, at the end of the implementation period (from 1 January 2021), EU sanctions will cease to be directly applicable in the UK and the UK will be free to transfer the EU regulations into UK law subject to such variations as it chooses. For this purpose, as noted above, the government has already laid legislation before Parliament under SAMLA to provide for the transposition of a number of the EU regimes and these will come into effect on 1 January 2021.
The regimes covered to date include those in respect of: Belarus, Bosnia and Herzegovina, Burma (Myanmar), Burundi, Central African Republic, Democratic People’s Republic of Korea, Democratic Republic of the Congo, Guinea, Guinea-
Bissau, Iran (human rights), Iran (nuclear), Iraq, Lebanon, Lebanon (Assassination of Rafiq Hariri and others), Mali, Nicaragua, Russia, Somalia, South Sudan, Sudan, Syria, Venezuela, Yemen and Zimbabwe.6
While the government has said that there will be no gaps in implementing the sanctions regimes after the implementation period, the position will not be a
straightforward matter of checking whether there is an “equivalent” SAMLA regime to the previous EU regulations. Sanctions reviews following 1 January 2021 will necessitate:
• Checking if there are (new) SAMLA regulations covering the relevant regime. If there are, these will need to be carefully reviewed to ascertain if they are the same as the existing EU regime. In its publication “Sanctions Policy after 31 December 2020”, the government cautions: “Do not assume that all aspects of existing EU sanctions will be exactly the same”.7 As detailed below, it is clear that all aspects will not be the same.
• If the UK government has not yet made new SAMLA regulations to replace an EU sanctions regime by 11pm on 31 December 2020, it will be necessary to refer to the EU regulations retained under the EUWA and to check whether they have been modified under that Act.8
Source: Watson Farley & Williams
Источник: https://www.hellenicshippingnews.com/sactions-and-shipping-update-and-overview/