在俄罗斯制裁中应对合规风险

BACKGROUNDSince Russia’s second invasion of Ukraine in February2022, the United States, along with a global coalitionof allies, has imposed an array of financial sanctionsand other restrictive measures intended to isolatethe Russian economy, restrict revenues, and limitaccess to the global financial system. Over the firsttwo years of the economic pressure campaign, thesanctions were primarily list-based (e.g., targetingspecific entities) and sectoral (e.g., targeting Russia’sfinancial and energy sectors or specific transactionsin the occupied territories), which were complimentedby various other restrictive measures such asexportcontrols.In recent weeks, the compliance landscape addedyet another degree of complexity. In late December2023, the United States issued Executive Order (E.O.)141141to amend previously issued E.O. 14024. Mostsignificantly, the amendment authorizes the UnitedStates to impose sanctions on foreign financialinstitutions who engage in certain transactions (i.e.,for persons designated pursuant to E.O. 14024 orinvolving Russia’s military industrialbase).1Refer to Executive Order 14114and its supporting documentation for more details including OFAC’s full definition of covered transactions,definition of foreign financial institutions, and the associatedprohibitions.These authorities introduce yet another type of sanctions, commonlyreferred to as “secondarysanctions.”A PRIMER ONSECONDARY SANCTIONSSecondary sanctions first gained notoriety asa defining characteristic of the Iran sanctionsprogram. Some have argued that the isolationbrought on through secondary sanctions helpeddrive Iran to the negotiating table to finalize theJoint Comprehensive Plan of Action (JCPOA). Since Primary vs. secondary sanctionsThere are fundamental differences betweenthe objectives and intended outcomes ofprimary and secondary sanctions:•Primary sanctionsrestrict transactionsthat US persons conduct with certainpersons, prescribing civil and criminalpenalties for US persons who violate orevade those restrictions•Secondary sanctionsrestrict transactionsthat non-US persons conduct withcertain persons, prescribing penaltiessuch as blocking US-based assets,prohibiting transactions with US persons,limiting use of US financial instruments,and prosecuting sanctions violationsand evasionsthen, secondary sanctions were also used as partof the Venezuela sanctions program — and nowRussia. These authorities are implicitly extraterritorialand carry potentially undesirable consequences forfinancial institutions in Europe, the Middle East, andAsia. Secondary sanctions serve as a mechanism toregulate the conduct of non-US-based third parties(e.g., foreign financialinstitutions). Oliver Wyman–A business of MarshMcLennanIn simple terms, the updated E.O. grants OFAC theauthority to impose sanctions on foreign financialinstitutions who facilitate significant transactionson behalf of persons designated for operatingin certain sectors of the Russian economy. Morespecifically, under these new authorities, OFAC maypenalize foreign financial institutions by imposingfull blocking sanctions, or prohibiting or restrictingthe maintenance of correspondent accounts inthe United States.In practice, this leaves foreignfinancial institutions with a simple choice: tocontinue doing business with the United Statesortocontinue doing business with sanctionedparties and faceconsequences.IMPLICATIONS FORYOUR INSTITUTIONThe recently expanded authorities introducesignificant risks to financial institutions that may beunwittingly exposed to Russia’s efforts to circumventsanctions as it is well documented that Russia usessophisticated tactics to evade detection and routesactivity through third countries to maintain access tothe global financial system. There have already beenreports of increased Russian transactional activityin Armenia, China, India, Kazakhstan, Turkey, UAE,Uzbekistan, to name a few. Several entities havealready been sanctioned by OFAC and other alliedauthorities in relation to Russia’s efforts to continueits war effort in Ukraine. As one example of controlsto reduce risk exposure, it would be advisable forfinancial institutions to bolster due diligence itconducts on counterparties in transactions thatinvolve jurisdictions known to pose greater risk forRussian sanctionsevasion.Beyond the more obvious implications forforeign financial institutions, there are certainprovisions within E.O. 14114 that warrant furtherattention. For example, the E.O. does not requireOFAC to establish whether a financial institutionhad reasonable knowledge of the sanctionable conduct prior to issuing secondary sanctions,which lessens the evidentiary burden and providesOFAC with greater latitude to target foreignfinancial institutions.It is imperative that financialinstitutionsare aware that the provisions inE.O. 14114 do not require that the institution isknowingly involved in processing the types ofcoveredtransactions.Additionally, the definition of “foreign fina