Global Trade & Foreign Policy Insights

In a significant decision announced last week, the Department of Justice (DOJ) declined to prosecute a private equity (PE) firm after the firm voluntarily disclosed sanctions and export control violations committed by a portfolio company the firm acquired. This result, and the government’s joint enforcement actions against the portfolio company and its former CEO, offer several important takeaways:

• It is critical for PE firms to conduct robust, non-siloed due diligence for trade and other compliance both before and after acquisition.

• Sanctions and export controls enforcement remains a key government focus, as evidenced by the extensive behind-the-scenes coordination between Justice, Treasury, Commerce, and Homeland Security.

• It is not uncommon for private equity firms to acquire a company and then discover hidden problems. Firms that promptly investigate, self-report, cooperate, and remediate can avoid criminal prosecution, even for serious violations.

• The government continues to hold individuals personally responsible for violations of sanctions and export controls regulations.

The 1984 Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. established the ‘Chevron deference’ doctrine, which required courts to defer to administrative agency interpretations of ambiguous statutes if they were reasonable. This doctrine significantly impacted the financial services sector, making it difficult to challenge the US Department of the Treasury's actions, such as sanctions and penalties. 

The United States temporarily eased select sanctions related to Venezuela’s oil sector on October 18, 2023, after Maduro’s government and the opposition reached an agreement on electoral guarantees for an internationally monitored vote in the second half of 2024.

The European Union (EU) formally adopted an eleventh package of sanctions against Russia on June 23, 2023. This package focuses on preventing the circumvention of existing measures and includes a new anti-circumvention tool, new designations, additional import and export control bans and restrictions, new measures related to transport, tighter measures related to energy, clarification on existing measures, and additional media broadcasting bans.

On May 19, 2023, in coordination with the G7 summit in Japan, the U.S. announced new economic sanctions and export controls designed to further restrict the Russian Federation’s (Russia) ability to prosecute its invasion of Ukraine.

In light of the recent wave of sanctions against Russia issued by the United States (see Winston & Strawn’s post here), the European Union (“EU”) issued a tenth package of Russia sanctions on February 25, 2023. 

Since the start of Russia’s invasion of Ukraine on February 24, 2022, the United States (U.S.)—in partnership with the European Union (EU), the Group of Seven (G7),[1] and other Western countries— have designated 9,025 individuals, 2,636 entities, 119 vessels, and 22 aircraft.[2] In the U.S., the sanctions program against Russia has been codified into law by 31 CFR part 587 (the “Russian Harmful Foreign Activities Sanctions Regulations” or “RuHSR”), its amendments, declarations made by the Department of the Treasury’s Office of Foreign Assets Control (OFAC), and executive orders (E.O.) by the Biden administration.

Right before the end of the year, on December 16, 2022, the EU adopted the ninth package of sanctions against Russia. This new package includes additional designations, export control restrictions, additional service and media bans, and new sectoral measures targeting the Russian energy and mining sectors.

On October 6, 2022, the EU agreed to implement a new package of Russia sanctions in response to Russia’s annexation of the Donetsk, Luhansk, Kherson, and Zaporizhzhia regions, its mobilization of additional troops, and nuclear threats.

On August 8, 2022, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced its second-ever designation of a virtual-currency mixer—Tornado Cash (“Tornado”)—which was used to launder several billion dollars’ worth of virtual currency, including funds stolen by a North Korean state-sponsored hacking group.

In response to Russia’s invasion of Ukraine, the United States and dozens of its allies and partners around the globe have imposed what the White House has called “the most impactful, coordinated, and wide-ranging economic restrictions in history.”[1] Although Russia is still not subject to a complete embargo in the United States, the sanctions placed on Russia have been severe and targeted against individuals and entities (“persons”) operating in some of its most important sectors, such as the financial sector.[2]

On May 8, the U.S. Department of the Treasury’s Office of Foreign Assets Control announced a Determination pursuant to Section 1(a)(ii) of Executive Order 14071 of April 6, 2022, Prohibiting New Investment in and Certain Services to the Russian Federation in Response to Continued Russian Federation Aggression, determining that effective 12:01am ET, June 7, 2022, U.S. Persons are prohibited to directly or indirectly export, reexport, sell, or supply accounting, trust and corporate formation, or management consulting services to any person located in the Russian Federation.

In response to Russia’s invasion of Ukraine, the United States Government has undertaken several actions.

Since Russia’s recognition of the non-government-controlled areas of Donetsk and Luhansk, and the subsequent invasion of Ukraine, the EU has enacted additional restrictive measures to be added to those already-existing restrictions targeting Russia.

On April 15, 2021, President Biden issued an Executive Order (found here),“Blocking Property with Respect to Specified Harmful Foreign Activities of the Government of the Russian Federation.”

On March 2, 2021, the U.S. Department of State (State) determined Russia violated international law when it used chemical weapons against its own nationals on multiple occasions.

On December 14, 2020, more than a year and a half after the Republic of Turkey acquired a Russian surface-to-air missile system in violation of Section 231 of the Countering America’s Adversaries Through Sanctions Act (CAATSA), the United States has imposed sanctions on the Republic of Turkey’s Presidency of Defense Industries (SSB). 

As the Biden Administration takes shape, business leaders are anticipating how the economic sanctions environment might change. Below, Winston & Strawn’s Cari Stinebower addresses the sanctions questions we most frequently hear from our clients.  

Presidents have long used sanctions as a foreign policy tool. One question business leaders are grappling with is how the sanctions environment will change in a Biden administration.