Sanctions: Effect on terminal operators
This article first appeared in the September 2011 issue of Port Strategy under the title “On Whose Authorisation” and is reproduced with their kind permission. www.portstrategy.com.
International sanctions pose a threat to worldwide ports and terminals.
Imprisonment, seizure of assets and exclusion from the US banking system are amongst the penalties which face companies and individuals who breach one or more of the raft of sanctions which national and international bodies have imposed against a number of countries over the past year or so.
Because of their wide-ranging reach and remit, international sanctions will affect every company which is involved in any way with trade to or from a sanctioned country, such as Iran, Libya or Syria.
Operators of ports and terminals are exposed to a number of particular risks, not only through their own activities, but also through the activities of those they deal with. They therefore need to have in place robust compliance procedures, carry out thorough due diligence, and, where possible, ensure that their contracts include appropriate warranties and indemnities. Those operators which have a US connection (even where that is limited to a reliance on US dollar payments) need to be particularly cautious.
This article identifies the key risks which port and terminal operators face, as well as suggesting a number of practical steps which they can take to minimise those risks. While it concentrates on operators who are carrying on business in the European Union, it also considers a number of issues which will affect operators wherever they are based.
We recommend that every port or terminal operator should carry out the following risk assessment to determine the extent to which sanctions affect their business.
Stage 1: Identify the applicable sanction regimes
Generally speaking, operators will be subject to any sanctions imposed by (i) the place where the port or terminal is based and (ii) the place where the operator is incorporated. Where the operator is a local special purpose vehicle, sanctions relevant to the companies which own or control the operator may also be relevant. While the most high profile sanctions against Iran are probably those imposed by the EU and the US, national sanctions have also been imposed by, among others, Australia, the United Arab Emirates and Japan.
It is important to note that, in addition to the potential corporate exposure, directors and other employees may themselves be subject to sanctions imposed by their national state. This will be particularly relevant where the operator employs US nationals in senior posts.
Stage 2: Identify whether the operator’s business itself relates to a sanctioned country
Clearly if the port or terminal is itself in a sanctioned country, the operator will face particular difficulties, including problems making and receiving payments.
Recent sanctions have also imposed an asset freeze against designated port operators, including Tidewater Middle East Co Ltd (which has operations at seven of the main ports in Iran, including the Shahid Rajaee Container Terminal at Bandar Abbas and Bandar Imam Khomeini Grain Terminal), and six Libyan port authorities. Other operators need to ensure that they do not have any ongoing commercial relationships with these designated persons.
Stage 3: Identify whether a particular business or transaction has a connection with a sanctioned entity
This will be relevant where the operator and/or the port or terminal is based in a country which has either enacted national legislation to give effect to a UN resolution (eg Singapore) or which has imposed restrictions of its own (eg the US and EU Member States).
Where the terminal user is from a sanctioned country, or has connections with entities which are located or incorporated in sanctioned countries, the operator should ensure that no payments are made to or received from a sanctioned entity. Because the prohibitions include both direct and indirect payments and because the sanctioned entities often have links with a number of other entities, it is important that detailed due diligence is carried out on all counterparties, to ensure that no prohibited payments are made or received.
Checks should be carried out against all applicable lists of sanctions targets and particular care should be taken to identify any entity which is associated with the Islamic Republic of Iran Shipping Lines (IRISL) or the Islamic Revolutionary Guard Corps (IRGC), both of which are subject to the UN asset freeze. Likewise, any connection with Colonel Gaddafi’s regime in Libya should be carefully scrutinised.
It is also important to keep in mind that the sanctioned entities may well be incorporated in countries which are not themselves subject to sanctions. By way of example, the sanctions against Iran include companies incorporated in Germany, Malta, Malaysia and Switzerland.
Even where no designated person is involved, EU operators should ensure that all payments to or from Iranian persons (which includes people of other nationalities resident in Iran) are processed in accordance with the necessary procedures.
Finally, terminal operators need to be aware that terminal users which are themselves subject to sanctions, or which are based in a country which is subject to sanctions, may not be able to obtain insurance cover at a level which is available to other terminal users. This may potentially give rise to problems if the terminal user causes damage to the terminal or other assets.
Stage 4: Identify whether a particular business or transaction has a connection with sanctioned goods
Again, this will be relevant where the operator and/or the port or terminal is based in a country which has either enacted national legislation to give effect to a UN resolution or which has imposed restrictions of its own.
Where cargoes are bound for any sanctioned country, checks should be carried out to identify the true nature (and intended use) of the cargo. Terminal operators will already be aware of the risks of cargoes being misdeclared to conceal their identity, and earlier this year a major liner operator discovered that one of its vessels had been duped into carrying unlawful weapons which had been stowed behind a false container wall and declared as food products.
Terminal operators may try to obtain appropriate warranties and indemnities from terminal users as to the nature (and intended use) of the cargo, but terminal users may themselves have insufficient information to provide such warranties and indemnities.
The EU sanctions prohibit the sale, supply, transfer or export of prohibited goods to Iran, Libya and Syria. The authorities may choose to interpret these prohibited activities (particularly the term “supply”, which is not defined) sufficiently widely to include the activities of terminal operators. In addition, if prohibited goods are being carried, it is prohibited to provide bunkering or ship supply services, or any other servicing of vessels to vessels owned or controlled directly or indirectly by an Iranian person, entity or body.
The EU sanctions include not only the predictable prohibited cargoes (such as weapons or equipment which might be used for internal repression) but also, in the case of sanctions against Iran, equipment for Iran’s oil and gas industry. The prohibited equipment and technology is listed in Annex VI to EU Regulation 961/2010, and relates primarily to exploration, production and refining.
Finally, EU-based operators should be aware that the EU Regulation also imposes additional requirements in respect of pre-arrival and pre-departure information where goods are transported to or from Iran.
In addition, every company worldwide is potentially subject to the US Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010 (CISADA), which is intended to have extra-territorial effect. Breach of CISADA may result in seizure of assets in the US, imposition of a ban on loans from US banks, and exclusion from the US banking system (which would prevent making or receiving any US dollar payments).
CISADA prohibits a range of activities, in order to hinder Iran’s ability to import and produce refined petroleum products (diesel, gasoline, jet fuel and aviation gasoline). The prohibited activities are widely drafted, and they specifically include provision of ships or shipping services to deliver refined petroleum products to Iran.
They also include provision of other goods or services which could either (i) facilitate the maintenance or expansion of Iran’s domestic production of refined petroleum products or (ii) contribute to the enhancement of Iran’s ability to import refined petroleum products.
The US State Department and Office of Foreign Asset Control (OFAC) is taking an increasingly robust line and is stepping up its enforcement activities. Given the breadth of the definitions of prohibited activities, there is certainly scope for the US authorities to take enforcement action against a terminal operator if prohibited goods are being supplied to Iran.
Stage 5: Identify whether a particular business or transaction may give rise to a potential exposure for another reason
The key issue in this respect is payment in US dollars. Because all US dollar payments clear through the US, US legislation will affect not only US nationals and US companies (who are effectively prohibited from trading with Iran, by reason of the Iranian Transaction Regulations), but also non-US nationals and companies which trade in US dollars, or which have some other connection with the US.
Companies which are engaged in business which has a connection with Iran may wish to ensure that payments are made in a currency other than US dollars, to ensure that there is no US connection.
The above summary identifies a number of the particular risks which port and terminal operators face, through their own operations, as well as the activities of those they deal with. It highlights the need for appropriate due diligence, particularly as to the operators’ counterparties, and the cargo which is being carried.
This is a complex and dynamic area, and appropriate legal advice should be taken if there is any concern about exposure to international sanctions.
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