US Sectoral Sanctions
CAATSA / Guidances / Lists (cont'd)
-
CAATSA has thus introduced a range of possible "secondary sanctions" - i.e., aimed at
non-US persons (as well as potential new sanctions against US persons for certain conduct)
whether or not there is any US person / US nexus
but OFAC's Oct. 2017 CAATSA Guidance reflects recognition that it would be inappropriate to
penalize any/all foreigners' activities - i.e., various possible dealings with SSIS (as opposed to
SDNs) that aren't prohibited for a US person
for example
per OFAC's section 226 Guidance, FFIS are not to be subject to sanctions solely on basis of knowingly facilitating
significant financial transactions on behalf of an SSI listed under Directives 1-4
and per OFAC's section 228 Guidance (appearing as FAQS 544-546 - and see FAQS 585, 589 and 590 as well):
ā
a transaction isn't "significant" if US persons wouldn't need a specific OFAC license to participate in it
and if involves only an SSI entity there must also be a deceptive practice (attempt to obscure, conceal, evade) to be
considered "significant"
and even if an SSI entity is involved, and also involves deceptive practices, it is still not automatically "significant" -
rather, totality of circumstances (bearing in mind the below-specified factors) are considered
but, caveat re the above and below references to US gov't agency "guidances" or FAQs:
they may be changed without notice (e.g., the July 2020 amended State Dep't Guidance re CAATSA sec. 232)
and in any event are not alone dispositive or otherwise sufficient to pursue a particular course of action, without
specific agency authorization and/or targeted professional advice
Morgan Lewis
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