As the world debated WikiLeaks’ late-November 2010 deluge of diplomatic cables, at least one recurring theme emerged from many of the documents: A large chunk of the world is increasingly concerned about Iran and its nuclear development. The revelation shouldn’t surprise Americans, who routinely hear politicians debate the best way to deal with the country. American corporations are prohibited from doing business there, and the U.S. first passed a law aimed at sanctioning foreign companies that work with Iran’s petrochemical industry in 1996.
However, as WikiLeaks shows, the stakes keep increasing. In July, President Obama signed the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA). The law expands the list of activities that can get foreign companies sanctioned. Additionally, CISADA makes it harder for the government to avoid enforcing the law if a business is found to violate it.
The U.S. has a poor track record of enforcing international sanctions. The international community staunchly resisted the original Iran Sanctions Act. But the new law has received significant support.
“There’s a growing consensus amongst our close allies that the Iranian nuclear program does pose a genuine threat,” says Daniel Waltz, a partner at Patton Boggs.
As a result, the current environment of cooperation is a watershed moment.
“Many countries around the world are willing to listen to the United States’ concerns,” says SNR Denton Partner Michael Zolandz. “[They] are imposing their own limitations in the banking and commercial sectors that they probably would not have five years ago.”
Us and Them
CISADA amends the original Iran Sanctions Act. It expands the definition of restricted investments to include the sale of any goods, services or technology related to Iran’s petroleum and natural resource development.
“Before, it was classic investment-type activities,” explains Richard Burke, counsel at White & Case. “But now you’ve got, pretty clearly, sales included.”
American companies whose foreign subsidiaries engage in forbidden activities will also be held responsible if they know–or should know–what their subsidiaries are doing.
Non-U.S financial institutions that do business with Iranian banks or facilitate the country’s acquisition of weapons of mass destruction could be unable to conduct banking transactions, exchange foreign currency or open branches in the U.S. Congress characterized these restrictions as imposing a choice on non-U.S. banks, Waltz says.
“Either do business with Iran or do business with us–the United States,” he says. “But you can’t have it both ways.”
Despite passing the controversial original Iran Sanctions Act, the U.S. never used it to issue sanctions. CISADA aims make the law enforceable.
“People were critical of that because it was never really enforced against foreign companies,” says Judith Lee, co-chair of Gibson, Dunn & Crutcher’s International Trade and Regulation Compliance Practice Group.
Now, the president must investigate credible reports of sanctionable activity unless he can explain to Congress why he chooses not to. If investigators decide sanctions are warranted, the president must levy at least three of the nine possible types of sanctions.
In September, the Treasury Department banned the Germany-based bank known as EIH from the U.S. financial system for its ties to Iranian weapons programs. Meanwhile, other companies have publicly committed to withdrawing from Iran-related business in light of the new regulations.
“If you’re a non-U.S. bank and you can’t have a correspondent bank in the U.S.–that’s pretty serious,” Burke says.
Change Your Ways
In-house counsel should know that the U.S. government does not want to sever ties with foreign businesses, Waltz says.
“The object of this law is not to impose sanctions,” he says. “The object is to influence behavior.”
That attitude appears to be contagious. The European Union announced similar regulations barely a month after President Obama signed CISADA, and they took effect in October. Other countries, including South Korea and Australia, also have announced their own Iran sanctions programs. And all this follows the passage of United Nations Security Council Resolution 1929 in June, which Waltz says may be the U.N.’s strongest sanction against Iran thus far.
With the regulations’ increased application, sanctions are now affecting businesses outside the oil industry. For example, technology companies that help the Iranian government restrict the flow of information could be in trouble.
“It’s getting harder and harder for companies to do business with Iran,” Lee says. “It’s really boxing them in.”
In order to comply with CISADA and pre-existing contracts, in-house counsel need to think about several layers of liability.
Zolandz says businesses need to know as much as possible about a company’s people, places and ideas before working with it.
By the same token, American counsel must be exceedingly careful about advising foreign subsidiaries about Iran. Attorneys could be personally liable for sanctions, and “I was doing it for the company” won’t cut it as a defense, Lee says.
“You’re not allowed to facilitate unlawful transactions,” she says. “There’s a real limit as to how far U.S. counsel can go in reviewing or approving anything that foreign subsidiaries might do in Iran.”
CISADA might make some financial institutions feel especially squeezed if it puts them into conflict with previous agreements.
“There are banks with existing contractual commitments, which, strictly speaking, may render them subject to sanctions,” Waltz says.
But, he adds, the government “has launched an education and persuasion campaign” to help companies see the law’s benefits and comply. The information is available on the Office of Foreign Asset Control’s section of the Treasury Department’s website.
The international regulatory landscape regarding Iran is not set in stone. More countries may add their own sanctions, and the EU regulations still require some fine tuning.
“There are expected to be more regulations coming out,” Lee says. “Everything is still in flux.”