USA Law and Practice Contributed by: Bruce G. Paulsen, Brian Maloney and Hannah Thibideau, Seward & Kissel LLP
The enforcement factors in play include: • whether the violation was wilful or reckless; • the Subject Person’s awareness of the conduct giving rise to the apparent violation; • the actual or potential harm to the sanctions pro - gramme objectives caused by the apparent viola - tion; • whether the violation was voluntarily disclosed; • the particular circumstances and characteristics of the Subject Person; • the existence, nature and adequacy of the Subject Person’s risk-based OFAC compliance programme at the time of the apparent violation; • any corrective action taken by the Subject Person in response to the apparent violation; • the nature and extent of the Subject Person’s co- operation with OFAC; • the timing of the apparent violation in relation to the adoption of the applicable prohibition; • the existence of other enforcement actions against the Subject Person; • the impact any administrative action may have on promoting future compliance by the Subject Per - son and similar persons; and • such other factors that OFAC deems relevant on a OFAC can impose civil penalties for sanctions viola - tions even where the person had no knowledge or reason to know they were engaging in a sanctions vio - lation. In practice, OFAC considers the facts and cir - cumstances surrounding an apparent violation when determining the appropriate enforcement response, taking into account various aggravating or mitigating factors. Regarding criminal violations of US sanctions, the US government is typically required to establish a wilful or knowing violation. case-by-case basis. 2.2.6 Strict Liability
for a class of persons without the need for a licence application. A specific licence, on the other hand, is a written document issued by OFAC in response to a licence application and authorises certain activities of specific “licensees” on a case-by-case basis. OFAC cautions that persons engaging in transactions pursuant to general or specific licences must ensure that all conditions of the licences are strictly observed. Those applying for a specific licence should ensure that the request includes all necessary information as required in the application guidelines or the regulations pertaining to the particular sanctions programme. When applying for a licence, the applicant should provide a detailed description of the proposed trans - action and the names and addresses of all persons or entities involved, and ensure that the request is supported by sufficient documentation. Applications should also consider including a discussion estab - lishing why approval of the requested licence will not interfere with the policy goals underlying the relevant prohibition(s). 2.3.2 Provision of Legal Services There is no catch-all general licence that permits all provisions of legal services to be offered to desig - nated persons. In a release on 12 January 2017 enti - tled “Guidance on the Provision of Certain Services Relating to the Requirements of US Sanctions Laws”, OFAC clarified that providing information or advice regarding the requirements of US sanctions laws and opining on the legality of specific transactions under US sanctions laws is permitted. However, such servic - es can only be provided to persons other than those whose property and interests are blocked by OFAC (including persons listed on OFAC’s Specially Desig - nated Nationals and Blocked Persons (SDN) List) or to whom a US person is prohibited from exporting or importing services. Notwithstanding this guidance, OFAC has issued general licences authorising the provision of certain legal services to SDNs, including the representation of SDNs in connection with delisting requests. If the regulations for the specific programme under which a person was designated do not contain such a general
2.3 Licensing 2.3.1 Derogation
OFAC issues both “general” and “specific” licences that permit persons to engage in otherwise prohib - ited transactions. General licences provide blanket authorisation for certain enumerated transactions
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