Adoption Day in Iran Sanctions Deal: US and EU Give Clarification, But No Lifting of Sanctions Yet

The United States and European Union took preparatory steps on 18 October 2015 to begin fulfilling their commitments to suspend certain sanctions against Iran pursuant to the Joint Comprehensive Plan of Action (“JCPOA”) agreed to earlier this year. Each offered clarification as to what its commitment to ease sanctions would look like in practice. However, no sanctions have yet been lifted: all current sanctions will remain in place until the IAEA verifies that Iran has fulfilled key nuclear-related commitments made under the deal – which is not expected to occur until spring 2016 at the earliest. For a description of the various types of sanctions relief expected to occur at that time, please see our prior OnPoint. 

Adoption Day fell on October 18, 2015, exactly 90 days after the United Nations Security Council endorsed the JCPOA. Iran is now expected to begin (if it has not already started) fulfilling the various commitments to scale back its nuclear program and ultimately implement the IAEA’s “Additional Protocol,” which will permit international inspectors to verify whether Iran has taken the requisite steps. In exchange, the United States and European Union have taken certain steps in preparation for the eventual easing of certain sanctions against Iran. They have set out in greater detail the sanctions changes which will come into effect on Implementation Day (when the IAEA confirms that Iran has taken the steps it is required to take). We describe the EU and US actions below. 

Actions by the European Union 

The EU has adopted Council Regulation 2015/1861 ("the Amending Regulation") to give effect to the EU's sanctions-related commitments under the JCPOA from Implementation Day. In brief, some existing restrictions will remain, some will be amended, while others will be removed entirely. key changes include: 

Financial, Banking and Insurance Measures 

All EU restrictions on funds transfers and financial services will be removed. From Implementation Day, authorizations and notifications will no longer be required for transfers of funds to or from Iranian persons or entities. Banking and insurance services will also no longer be prohibited, and it will be permissible to sell or purchase public-guaranteed bonds issued by the Iranian government or Iranian financial institutions. A number of listed financial institutions and individuals will still be “blacklisted”. Additionally, financing and financial assistance in relation to certain activities (nuclear proliferation related measures, for example) will continue to be subject to authorization.

Oil, Gas and Petrochemicals 

All EU restrictions related to oil, gas and petrochemicals will be removed. From Implementation Day, imports of crude oil, natural gas and petrochemicals from Iran into the EU will be allowed, as will the export of related equipment and technology into Iran. 

Ship, Ship Building and Transport sectors 

EU restrictions related to naval equipment or technology for shipbuilding, maintenance or refitting will be removed, as will the restrictions on providing oil tankers and services to Iranian-flagged oil tankers and cargo vessels. It will still be prohibited to provide services to Iranian-owned vessels and aircraft where the service provider has reasonable grounds to determine that the vessel or aircraft is transporting goods listed on the EU’s Common Military List or certain additional goods that are identified in the Amending Regulation. 

Nuclear Proliferation Related Measures 

The EU restrictions on Dual-Use and nuclear proliferation related goods and technology will be replaced with a licencing system. The Amending Regulation sets out the criteria for obtaining a licence, which in some cases will require UN Security Council or JCPOA Joint Commission approval. While the regime that will come into force from Implementation Day is less restrictive than the current EU prohibitions, there are still a number of hurdles that need to be cleared and care will certainly be required to navigate the licensing system whilst it is in its infancy. 

Other 

EU restrictions related to gold, precious metals, diamonds, banknotes and coinage will be removed. The prohibitions related to graphite and raw or semi-finished metals will be replaced with an authorization scheme. Enterprise Resource Planning software will no longer be prohibited, and prior authorization will only be required if the software is being provided for use in the nuclear and military industries. 

Arms and Military Equipment 

The EU arms embargo will remain in place, including the restrictions on provision of technical and financial assistance. 

Listing of Persons and Entities 

The list of designated individuals and entities will change. A number of individuals and entities currently subject to sanctions will come off the list, and a new listing criterion will be added allowing persons to be listed for activities contrary to the JCPOA. 

Actions by the US Government 

President Obama issued a memorandum directing the Departments of State, Treasury, Commerce and Energy to begin taking all necessary steps to fulfill US sanctions relief commitments made in the JCPOA. In response, the State Department issued contingent waivers to implement US commitments under the JCPOA. These include: (i) the suspension of almost all “secondary sanctions” regarding Iran that authorize penalties to be imposed against non-US persons that engage in certain activities involving Iran; and (ii) the establishment of a licensing regime permitting US persons to apply for authorization to export commercial passenger aircraft and related items and services to Iran. However, as with the new EU regulation, these waivers will not take effect until Implementation Day. 

The US Treasury Department’s Office of Foreign Assets Control also issued Frequently Asked Questions regarding the effect of Adoption Day. OFAC confirmed in the FAQs that US persons generally are and remain prohibited from entering into any contracts, contingent or otherwise, involving Iran or individuals or entities on the SDN List. Notably, the FAQs formally confirm that non-US persons also may be subject to sanctions for entering into certain contracts involving Iran prior to Implementation Day, which “could include contracts that are contingent on the implementation of sanctions relief under the JCPOA, such as contracts involving individuals or entities on the [List of Specially Designated Nationals].” 

Otherwise, the releases from the US Government do not provide any new information regarding the manner in which US sanctions commitment will be implemented, though OFAC again stated its intention to issue more detailed guidance on the implementation of US sanctions commitments prior to Implementation Day. For example, OFAC is expected to issue a general license authorizing non-US entities that are owned or controlled by US persons to engage in almost all activities involving Iran, as long as the US parent or other US persons are not involved. However, the precise scope of such authorization will not be known until additional guidance is provided. 

Proceeding with Caution 

Until sanctions relief actually occurs on Implementation Day, global companies (both US and non-US) should continue to exercise caution with respect to any dealings involving Iran. That said, it may be permissible to begin exploring potential business opportunities involving Iran that would be authorized once sanctions relief occurs. This is especially the case for EU companies, where greater insight into the sanctions relief that will take effect from Implementation Day has been provided, and for other non-US companies. However, all companies should ensure that any pre-Implementation Day activities are conducted in a manner that is fully consistent with all international sanctions measures currently in place. 

Dechert’s International Trade team, based primarily in London and Washington DC, stands ready to advise on all aspects of sanctions risk and compliance in this changing legal environment. Further on-points will follow as developments occur.