USA LAW AND PRACTICE Contributed by: Seward & Kissel LLP
When more information is required, OFAC will send the petitioner questionnaires that identify the addi - tional information or clarification needed from the petitioner. OFAC states that it “endeavours to send the first questionnaire within 90 days from the date OFAC receives the petition”. It is not uncommon for OFAC to send one or more follow-up questionnaires and to engage in additional research to verify claims made by a petitioner. 5. Trade and Export Restrictions 5.1 Services OFAC implements sanctions that prohibit the export or import of services to or from other countries. For example, under the Russia sanctions programme, pursuant to Executive Order 14071, the US prohibits the exportation, re-exportation, sale or supply, directly or indirectly, from the United States or by a United States person of a wide array of services, including: • accounting, trust and corporate formation services; • management consulting; • covered metals acquisition services; • IT support services for enterprise management software, design and manufacturing software; • cloud-based services for enterprise management software, design and manufacturing software; • architecture, engineering, IT technology consul - • trading/commodities brokering, financing, ship - ping, insurance (including reinsurance and protec- tion and indemnity), flagging and customs broker - ing services as they relate to the maritime transport of crude oil and petroleum products of Russian Federation origin. 5.2 Goods OFAC implements sanctions that prohibit the export or import of goods to or from other countries. For example, under the Russia sanctions programme, pursuant to Executive Order 14066, the US prohibits the importation of the following products of Russian Federation origin into the US: tancy and design services; • quantum computing; and
• crude oil and petroleum; • petroleum fuels, oils and products of their distilla- tion; • liquefied natural gas; • coal; and • coal products. Executive Order 14068 likewise prohibits the impor - tation of fish, seafood, alcoholic beverages and non- industrial diamonds of Russian Federation origin into the United States. 6. Civil Litigation and Arbitration 6.1 Force Majeure In the United States, whether compliance with sanc - tions constitutes a bar to a party’s performance of its contractual obligations is a fact-specific inquiry that largely depends on the terms of the applicable con- tract. Parties will typically raise defences relating to non- performance – namely, impossibility, illegality, force majeure or frustration of purpose. In evaluating these defences, US courts will look to a variety of factors, including: • the language of the parties’ agreement; • the specific sanctions at issue; • the purpose of the applicable contract; and • the impact of sanctions on the circumstances of the parties. When a sanctioned party seeks relief from its con - tractual obligations, US courts have also considered the foreseeability of such sanctions and the parties’ efforts to comply with the contract’s terms, conduct - ing a close review of what the sanctions at issue expressly prohibit in practice. 6.2 Enforcement In dealing with the enforcement of judgments when sanctions issues arise, US courts generally adhere to OFAC’s requirement that the judicial disposition of blocked property is prohibited unless authorised by OFAC through either a specific or general licence.
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