Действующие против Ирана санкции США и ЕС представляют собой некий пэчворк юридических инструментов. Это затрудняет применение соответствующих юридических актов.
Настоящая публикация представляет собой обзор, призванный помочь при исследовании вопросов, связанных с действием экономических санкций в отношениях перевозки тех или иных грузов.
EU AND US IRAN SANCTIONS: BRIEFING TO MEMBERS – JUNE 2013
INTRODUCTION
The current EU and US Iran sanctions consist of a patchwork of legislative instruments. This patchwork nature makes it difficult to apply the laws to the carriage of a particular cargo.
This briefing note has been produced with a view to assisting Members in gaining an overview of how the carriage of a particular cargo may be affected by the US and EU sanctions.
CONTENTS
This briefing note provides further information on:
•
Legal sources ……………………………………………………………………. 2
•
EU and US Iran Sanctions – where and to whom applicable? …………….. 2
•
Screening of counterparties …………………………………………………… 5
•
Summary of EU and US Iran sanctions by type of cargo………………. 9
•
Restrictions on the use of port facilities in Iran ………………………….. 20
•
Trading with Iran and effect on P&I cover…………………………………… 22
•
Penalties …………………………………………………………………………. 24
•
Protective clauses ……………………………………………………………… 25
Legal sources
•
Legal sources of EU and US Iran Sanctions legislation referred to in this text are either hyperlinked or can be found on the Iran Sanctions websites maintained and updated by the UK and US authorities:
o
For the legal sources of EU Iran Sanctions on the UK Treasury site click here.
o
For the legal sources of US Sanctions on the US Treasury click here. Note: the legal sources are to be found at the end of the hyperlinked page.
US and EU Iran Sanctions – where and to whom applicable?
US Iran Sanctions.
•
The US maintains two sets of sanctions regimes against Iran.
(i)
Sanctions applicable to US Persons only:
Pursuant to a number of statutes, regulations and executive orders, US Persons have for some years been generally prohibited from engaging in virtually any transaction having a connection with Iran. The US sanctions legislation applying to US Persons is complex and subject to frequent change. It is not covered here and Members who qualify as US Persons are advised to seek specialist US legal advice.
(ii)
Sanctions also applicable to non-US Persons:
Since 2010, the US authorities have been introducing legislation which provides for potentially severe penalties to be applied against “foreign persons” involved in:
(a)
transactions with targeted Iranian entities. The list of Iranian entities targeted by the US is published by the US Office of Foreign Asset Control (OFAC) and is named “Specially Designated Nationals List” (SDN list). The legislation requires systematic screening of counterparties in shipping transactions connected or potentially connected with Iran and this is explained in further detail below. See the section below: “Screening of counterparties”
(b)
certain trade or financial transactions. The transactions which are most relevant for shipping are set out below and are ordered by types of trade/cargo. See the section below: “Summary of EU and US Iran sanctions by type of cargo.”
(c)
Assisting Iranian entities in evading US sanctions (e.g., by acting as a middleman for funds transfers, etc.).
(d)
Causing US Persons to breach US Sanctions regimes which apply to US Persons. The US authorities have indicated that companies who do not qualify as an US Person and who engage in transactions which are legitimate under the laws of the countries to which they are subject may still be subject to penalties if as a result of such transaction, they cause US Persons to be in breach of US Sanctions. An example would be when a non US Person carries out a transaction involving Iran (and which would be sanctionable if the company was an US person) which involves US dollar payments and attempts are made in the payment instruction to conceal the fact that the underlying transaction has a connection to Iran or a SDN.
Definition of “US Persons” in US Sanctions Legislation
•
The definition of US Persons includes the following:
(i)
Any US citizen (wherever he is located)
(ii)
Any person (individuals and entities) in the territory of the US
(iii)
Entities organised under the law of the US
(iv)
As of 9 October 2012, Non-US entities owned or controlled by US companies are subject to the same restrictions as U.S. Persons and U.S. parent companies are liable for violations by their foreign subsidiaries. For these purposes “owned and controlled” means a 50% or greater equity interest, a majority of seats on the board of directors or otherwise control over the actions, policies or personnel decisions of the entity (e.g. control over the day-to-day operations). [31 CFR 560.215 ]
•
A non-U.S. company listed on a US stock exchanges is not a US Person for the purpose of sanctions legislation, but under the listing rules, they must generally disclose their own and their affiliates’ transactions with Iran and dealings with the Iranian Government or SDN’s.
•
Directors of companies that are not companies which qualify as US Persons are nevertheless themselves subject to the US sanctions legislation (and penalties) if they are US citizens.
EU Iran Sanctions
•
EU Iran sanctions apply to:
(i)
transactions carried out (in whole or in part) in the EU irrespective of whether the parties are EU Persons or not.
(ii)
transactions carried out world-wide, if one or more of the parties are EU Persons.
[Article 49 of EU Regulation 267/2012]
•
Definition of EU Persons:
The term “EU Persons” is defined to include:
(i)
vessels under the jurisdiction of an EU Member State [Article 49 (b of EU Regulation 267/2012)
(ii)
companies incorporated or constituted under the law of a Member State. [Article 49 (d) of Regulation 267/2012]
•
Directors of companies that are not EU Persons (as defined above) are nevertheless themselves subject to the EU sanctions legislation (and penalties) if they are EU nationals.
Application of EU Sanctions to non-EU Persons:
•
Unlike US legislation, sanctions under EU legislation are essentially only applied to EU Persons, although the EU sanctions apply to anyone if the transaction is carried out in the EU. This will mean that some Members of the Association are not affected by them directly.
•
However, for those Members who are not affected directly by the EU legislation (because the transaction is not carried out in the EU or because they do not qualify as EU persons) and who wish to perform transactions which would be sanctionable under EU Sanctions legislation, it should be borne in mind that in such cases the Association would be affected by the EU sanctions legislation and in order to remain in compliance, its scope to provide service, including the P&I insurance itself, is restricted in such circumstances. (See the section below: “Trading with Iran and Iranian entities and effect on P&I cover”).
Screening of counterparties against entities targeted by US and EU Iran sanctions.
Sources listing targeted entities:
•
The targeted entities are listed by the EU and US because they are considered as supporting Iran’s development of weapons of mass destruction, or they are linked with the Iranian Revolutionary Guard Corps, or they are deemed owned or controlled by the Iranian Government.
o
They include the National Iranian Oil Company (NIOC), National Iranian Tanker Company (NITC), Naftiran Trading Company, Islamic Republic of Iran Shipping Lines (IRISL), Tidewater Middle East Co and companies deemed associated, as well as certain Iranian banks and insurers.
o
They also include a number of entities which are located outside of Iran (e.g. in Cyprus, Hong Kong and Germany) but which are linked with Iran.
•
The lists are regularly updated and available electronically and in easily searchable PDF format:
o
EU list of targeted entities (as listed by the UK Treasury): Please click here
o
US list of targeted entities (as listed by the US Treasury): Please click here
•
In addition, there is specialised software available. This generally allows a single search against a consolidated list of multiple sanctions lists, and may also, depending on the provider, include searches against new sources and/or include more sophisticated search tools (e.g. fuzzy logic and/or close matches). Automated batch searching is also available, and is widely used by banks, who will conduct daily searches against all of their customers.
•
Members should also consider subscribing to the on line news alert service on changes to the list of targeted entities or sanctionable transactions which are issued by the US and EU, as well as, possibly, by their national authorities.
o
The UK’s Treasury/sanctions website includes a useful on line alert facility. Please click here
o
The US Treasury Department Office of Foreign Assets Control (OFAC) includes a similar on line alert facility. Please click here.
o
The EU sanctions website does not yet provide an alert service, but Member States may provide such a service.
Guidance on extent of screening required.
•
To date neither the US or EU authorities have provided any substantial guidance on the extent of screening required in the context of shipping.
•
As far as the tanker and dry bulk trades are concerned, legal advice received indicates that the screening should include all parties involved in the transaction, including the charterers and sub charterers, and as far as any bills of lading are concerned, should include the shippers, notify party and receivers.
•
Members who are EU subjects and involved in the tanker trade should also bear in mind the obligation, under EU legislation, to undertake appropriate measures to prevent ships being made available by their charterers for carriage or storage of oil or petrochemical products that originate in Iran [Article 37b of Regulation 267/2012 as inserted by Regulation 1263/2012].
o
Although no further official guidance has been provided, it appears that in order to comply with this obligation, Members should ensure the inclusion of express wording in their charterparties which reflects this obligation.
o
This could include an express reference in the cargo exclusion clauses to “cargo which originates in Iran or has been exported from Iran”, as well as an exclusion of Iran from the trading limits.
•
Members should also bear in mind that the list of targeted entities maintained by the US and EU authorities includes ships and in case of for example ship to ship transfers, Members should also consider screening the names involved.
•
Members should also check the identity of operators of the terminal/port if the cargo is to be loaded or discharged in Iran (since some are expressly listed as targeted entities) as well as any other party (receiving payment in Iran).
•
In addition, Members should check the banks being used in the transaction if known.
•
OFAC has given some guidance on screening containers. For the guidance note please click here.
Chartering to Iranian or Iranian controlled entities which are not yet on the US list of targeted entities
•
Members should be aware that new US Sanctions legislation which will come into force on 1st July 2013 (and which also applies to non US persons) are potentially sufficiently broad to render sanctionable the chartering of vessels to any Iranian or Iranian controlled entity even if these entities are not (yet) listed on the US list of targeted entities [Section 1244 of the National Defence Authorisation Act 2013}. Members should therefore be able to show due diligence that their chartering counterparties are not Iranian or Iranian controlled entities.
Systematic screening of counterparties.
•
The EU and US sanctions on the face of it operate on the basis that the identities of trading partners are known. There is little understanding among regulators regarding practical feasibility, for example in the context of a complex chain of charter parties or in case of negotiable bills of lading.
•
However, whether the US or EU authorities would impose penalties on a Member because the transaction or the counterparty involved gives rise to sanctions is likely to depend on whether the Member has carried out sufficient due diligence with a view to avoiding a transgression.
o
U.S. sanctions typically require either actual knowledge or that the party “should have known” after its due diligence that it was engaging with a targeted entity.
o
EU sanctions typically state that sanctions shall not be imposed if the person or entity concerned “did not know, and had no reasonable cause to suspect, that their actions would infringe [EU Sanctions]”. [Article 42 Regulation 267/2012]
•
Accordingly, Members should adopt a policy of systematic screening of their counterparties and trades.
World-wide screening
•
In dealing with listed entities, the US and EU sanctions apply to world-wide trading and are not limited to transactions involving the movement of goods and services to or from Iran.
•
Accordingly Members, as part of a systematic approach, should therefore consider screening all counterparties on a world wide basis, including any financial institutions involved (whether merely as a conduit or a finance party).
Screening for direct or indirect transactions with targeted entities.
•
Targeted entities under US sanctions include any entity owned or controlled by targeted entities. The definitions used in various US Sanctions legislation are not entirely consistent and while the threshold therefore varies depending on the basis of designation, a conservative working definition according to guidance issued by OFAC is that: “owned” means 50% or more equity interest or a controlling minority interest. “control” means controlled in fact. For the OFAC Guidance note please click here
•
Under EU sanctions, transactions with targeted entities include transactions “directly or indirectly, to or for the benefit of” a targeted entity. [EU Regulation 267/2012 Article 23 (3)]. However no further guidance on this definition has been provided so far.
Screening for suspicious information
•
Members should be alert in their diligence for other indications that the transaction may be an attempt to circumvent applicable sanctions. For example:
o
Payment terms involve moving money through a country/entity that has no relationship to the transaction.
o
Goods/quantity of goods destined for a third-country which are not the type of goods used in that country (for example the carriage of heavy mining equipment to a country that does not have a mining industry).
o
Charterers or counterparties that are not known or appear unfamiliar with the trade.
o
Where Charterers instruct STS operations at unusual locations or unusual vessels.
o
Where Charterers order an unusual switch of bills of lading.
•
Such suspicious information can often be explained, but should be cause for further diligence.
Record keeping.
•
It is critical that members keep detailed records of the above screening and diligence.
o
OFAC officials have been clear that if there is no written record of diligence efforts/screening, then they will assume that none has been done.
SUMMARY OF EU AND US SANCTIONS BY TYPE OF CARGO
a) Crude Oil – Petroleum Products – Petrochemical Products – Natural Gas
EU Sanctions
•
Under EU Regulation 267/2012 (as amended by Regulation 1263/2012), the following transactions are sanctionable:
o
Carriage or storage of crude oil, petroleum products, petrochemical products and natural gas from Iran or originating in Iran (and the insurance thereof).