Regulatory: Sanctions and Investigations

Sanctions Advice and Representation

International political affairs have constant, and significant, bearing on international trade. Further, a government’s use of economic leverage (such as sanctions) to advance national strategy can dramatically impact trading patterns and plans, including on a very fast developing basis.

In such circumstances, clients routinely seek our counsel regarding sanctions advice and representation. We advise businesses from around the world on the reach and impact of various sanctions regimes, particularly those implemented by the US Department of Treasury’s Office of Foreign Asset Control. Our involvement runs throughout the phases of a commercial transaction. At the front-end, we advise regarding contractual sanctions clauses and the conduct of counterparty due diligence. During the course of a transaction, we advise regarding responses to developing sanctions regimes. Throughout, we are well prepared to interact with the concerned regulators, where necessary.

Perhaps most importantly, we stand ready to assist our clients at the institutional level with implementation of compliance programs focused on enhancing cultures of compliance.

Post-Brexit sanctions

When the UK leaves the European Union at the end of 2020, the UK will set its own sanctions and sanctions policy. The UK is committed to maintain national legislation to give effect to UN sanctions and many UK businesses will find that EU restrictions still apply because of the their business practices and locations. It remains to be seen whether UK sanctions policy will be materially different to the EU position given UK and EU relevant foreign policies are broadly aligned. On 6th July 2020, for the first time, the UK introduced its own domestic sanctions regime. The Global Human Rights Regulations 2020 was adopted to target individuals involved in serious violation of human rights permitting individuals to be excluded from the UK and their assets frozen. We can provide a detailed analysis of such regulations if clients are interested (please do contact us). Moving forward, it will be critical to our clients based in the UK or doing business in the UK or with UK based counterparties to ensure a close eye is kept on newly implemented UK sanctions together with changes in the EU and US regimes.

Coastwise Trade Laws

In the United States, as in some other countries, laws and regulations strictly limit what vessels may trade between two or more coastwise points. The US laws governing these restrictions are commonly referred to as the Jones Act. Such laws provide, in pertinent part, that “No merchandise shall be transported by water, or by land and water, on penalty of forfeiture thereof, between points in the United States, including districts, territories, and possessions thereof embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States.” These laws, and resulting regulations, are administered by the US Customs and Border Protection.

Through many years, we have had extensive experience advising clients on the complexities of the coastwise laws and liaising with the relevant offices of the CBP for approval and/or opinions. Equally, we advise on how to deal with difficult situations which arise when there may be little or no choice but to call at a second, coastwise point and discharge merchandise.

Such situations involve complex considerations requiring a deep understanding of the relevant law, insightful perspective gained from relevant experience, and good means for interacting with the concerned regulators. We are skilled in all of those areas and stand ready to guide clients through challenging Jones Act situations.

Financial Regulatory Action

We have extensive experience dealing with investigations and other actions brought by financial regulators in multiple countries. We have represented clients served with documentary and testimonial disclosure requests from the US Securities and Exchange Commission, including defense of depositions taken by the SEC. We are also experienced in counseling clients regarding the US Foreign Corrupt Practices Act and, as with other areas, how to develop cultures of compliance on a global basis. Beyond the US, we have handled a major discovery and documentary investigation conducted by the UK Serious Fraud Office in relation to the UN Oil for Food Programme investigation.  We have also negotiated and liaised with the Australian Securities and Investments Commission on investigations and enforceable undertakings in relation to a major Australian bank’s pensions pricing policies and separately, a multinational construction’s failures to disclose market material information.

US Federal Maritime Commission

From tariffs to terminal operations, clients rely on our lawyers to provide timely and practical advice on issues related to Federal Maritime Commission regulations. Carriers and logistics companies require guidance on tariff requirements and compliance issues to avoid running afoul of the ever-changing rules. Marine terminal operators rely on Floyd Zadkovich to maximize the effectiveness of terminal schedules and minimize exposure to claims. Our proactive approach and outside-the-box thinking results in efficient and effective solutions, often before issues become problems.