Sanctions – what to do?

News & Affairs

11. 03. 22

As we have already previously emphasized, sanctions must be complied with not only by those who have a direct obligation established in the Law on International Sanctions and National Sanctions of the Republic of Latvia to perform sanction risk assessment and develop an internal compliance system. Everyone must comply with the sanctions! Including individuals, business entities, associations, foundations, self-employed, and farmsteads either, etc.

A failure to comply with the sanctions may cause crucial adverse consequences. Furthermore, any collaboration with sanctioned persons or persons affiliated to sanctioned persons in certain cases may result in adverse consequences. Therefore, take your time and resources now already in order to avoid scooping up spilled water at a later time.

Where to begin?

Begin with yourself. Verify, to the extent possible, whether your company is affiliated to a sanctioned person or not. Please verify not only the direct and indirect shareholders, members, ultimate beneficial owners etc., but also members of their management board and supervisory board, chief executive officers, presidents, etc. If there are no sanctioned persons – great! If there are, first it is necessary to understand what sanctions have been imposed (incl., who has imposed them and what the restrictions are), because it infers from there whether and what restrictions are applicable to you. Please bear in mind that the criteria for the sanctions to be attributed to a person who is not subject to sanctions itself while affiliated to the subject of the sanctions differ depending on who has established the sanctions.

For example, the “50% rule” in case the EU sanctions means more than 50% of a direct shareholding (i.e., above 50%) whereas in case of OFAC sanctions – 50% and more of direct, indirect (“cascade” principle) or joint shareholding (aggregation of the shareholding, i.e., shareholding of all sanctioned persons jointly is taken into consideration, and 50% of the shareholding is sufficient already). If the sanctions cannot be applied based on the 50% rule, then in the case of the EU sanctions the “control” is also evaluated, whereas in case of OFAC sanctions – the “economic benefit” either. Various sources are publicly available for resolution of simpler cases with one’s own resources. Therefore, depending on circumstances of the case and surrounding aspects, one should evaluate whether it is necessary to engage an expert for assistance.

If, in your own opinion, the sanctions are not applicable – great; however, be prepared to defend/justify your own opinion to both customers and business partners, as well as service providers, and also, probably, the media and law enforcement agencies. Quite recently there was a press release in the media that a major Latvian company was also subjected to the OFAC sanctions because it was affiliated to sanctioned persons. No extensive explanation was given in the press release as to why the sanctions were applicable to this Latvian company, just a simple note how the relevant company was affiliated to a sanctioned person. Even though later the press release was updated with a reference that the company is merely affiliated to the sanctioned persons, and not subjected to the sanctions itself, probably, such a report made customers and business partners of this company worried and assessing possibilities to further continue with cooperation with the respective company. Accordingly, a detailed and substantiated evaluation as to why the sanction are not applicable even if you are affiliated to the sanctioned person, might come in handy.

Conversely, if you are directly or indirectly subjected to the sanctions, you must carefully weigh whether and how to mitigate the consequences caused by the sanctions.

What next?

If you do not preform verification of your customers, business partners, service providers and all other possible persons with the sanction lists yet, this is the time to begin before it is too late. The level of thoroughness with which the verification is to be conducted (incl., whether the due diligence is to be performed and all persons known to be affiliated with the person are to be verified; what searches are to be made and how frequently) depends on the sphere of your own activities (services, goods, countries of operation, etc.) and with whom (sphere of activities, country of registration, countries of operation) your activities are related. Therefore, the sanction risk assessment needs to be made by all, not only those who has the separate obligation expressly established by the laws and regulations.

The sanction risk assessment is the most suitable tool to understand whether and specifically how your company may breach the sanctions or get involved in breaching or circumventing the sanctions. Public sources have guidelines in abundance as to how to perform the sanction risk assessment. However, to perform a proper sanction risk assestment, one must possess a good understanding of the sanctions per se. Therefore, it is advisable to consider performing the sanction risk assessment in collaboration with an expert in sanctions.

After the risk is identified you may introduce relevant measures to manage this risk or, if necessary, to mitigate it. Often it will be sufficient to verify, once in a while, the customers, business partners, service providers etc. against the sanction lists. However, in certain cases it will be necessary to introduce more serious measures for mitigation and management of the sanction risk, for instance, a due diligence of certain persons (incl., their areas of operation, business partners, etc.) before establishing a business relationship, and, possibly, in the course of business relationship, restriction of dealings with certain persons, regular and detailed verifications against the sanction lists, etc.

Currently, ready-made tools for sanction risk management are already available; however, it is advisable to carefully weigh whether the tool suits your needs and is really necessary/feasible to you. We certainly recommend paying attention, among other, to where and when reference data (sanction lists) is obtained for performance of searches, how searches for sanctions are being conducted (i.e., what criteria of search, algorithms, etc.), how often searches are made, how the findings of searches are registered and saved, and whether they conform to the applicable rules and requirements.

What else can be done?

It is advisable to revise concluded contracts and contract templates used in operations in order to ascertain that in case the opposite party of the contract is subject to the sanctions or becomes affiliated to the sanctioned person, you have sufficient rights contracted, for example, to terminate or suspend the contract, freeze payments, terminate provision of services or delivery of goods. If such provisions are not included in the concluded contracts or are deficient, it is advisable to incorporate or amend accordingly.

What do you if you encounter a sanctioned person though?

First ascertain whether the person is really directly sanctioned or only affiliated to a sanctioned person (for instance, a shareholder, a member of an executive body, ultimate beneficial owner, etc.). If merely affiliated to the sanctioned person, then you should ascertain whether the restrictions under the sanctions are attributable to the specific situation. Even if the sanctions are not breached or circumvented, one still has to assess whether and how a business relationship with the respective person and other business partners may be affected by a person sanctioned directly or indirectly. Furthermore, such assessment should be performed when you have business relationship with a person which is not subject to sanctions, but is somehow linked to a person subject to sanctions.

Conclusion

The risk that the company operating only in Latvia (including, in terms of customer base, business partners and all other respects) and in a sector which is not related to the “sanctioned” goods/sectors will breach the sanctions or will be inadvertently involved in breaching or circumventing the sanctions is low, as a general rule. However miniscule, this risk exists though, and, taking into account possible grave consequences (incl., criminal liability) in case the sanctions are breached, this risk should not be ignored.

We can assist you with your sanction risk assessment and development of the relevant procedure for sanction risk management (incl., mitigation), as well as evaluation of current contracts and templates of contracts, and supplementing/updating thereof. Furthermore, we can carry out due diligence of a business partner, customer, service provider etc. of yours and your business partner either, as well as carry out due diligence of a transaction already concluded or contemplated yet in order to identify possible sanction risks. We can provide you with assistance on all aspects to be resolved in order to ensure compliance with the sanctions in your operations.

In order facilitate understanding of the sanctions by a wider public and everyone’s obligations to this end, we kindly invite you to take part in a webinar held by FORT on the 18th of March which will be streamed from 9:15 am to 10:15 am and where we will talk about the most essential aspects of the recently adopted sanctions in a simple and easily comprehendible manner.

You can apply for the webinar by writing to email address riga@fortlegal.com or submitting an application form HERE. The webinar is free of charge and will be conducted on Microsoft Teams platform in the Latvian language.

Useful Links

The Sanctions Act – the Act on the International Sanctions and National Sanctions of the Republic of Latvia.

The Consolidated List of Sanctions Established (by UN and EU) Maintained by the Financial Intelligence Unit (FIU) – this does not include all sanctions binding on Latvia, incl., sectorial EU sanctions, which are established against a specific region, or product, or service, and not an individual or legal entity. Furthermore, the sanctions established by OFAC are not included there.

OFAC Sanctions List – the consolidated sanctions list of the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury.

ES sanctions search tool (EU Sanctions Map) – this is a convenient tool to conduct searches for the EU sanctions (incl., those established against specific region, product, service) and understand what sanctions have been imposed on the respective person.

Guidelines of the Ministry of Foreign Affairs for successful introduction of sanctions in Latvia – there is a general information available regarding sanction regimes, exemptions of restrictions, how removal from the sanctions lists is effected, etc.

Information compiled by the Ministry of Foreign Affairs regarding the sanctions – there a broad information is available as to the sanctions, among other, general descriptions and responses to general questions and specific questions associated with the sanctions (including the OFAC sanctions).

Legal framework for management of the sanction risk – regulations of FCMC where individual factors exposing to the sanction risk are listed which can be taken into account upon evaluating one’s own sanction risk, as well, as well as possible signs of increasing the sanction risk.

Guidelines of the State  Revenue Service (SRS) for sanctions risk assessment – the guidelines of SRS where individual factors having impact on the sanction risk are outlined; and these can be taken into account upon assessing one’s own sanction risk..

Seminar of SRS regarding sanction affairs – a presentation of the seminar “Compliance with the Sanctions Regime by entities of the Act on the Prevention of Money Laundering and Terrorism and Proliferation Financing. A record of the seminar is available here: https://www.youtube.com/watch?v=pLDaJz4I318.

EU model practice with respect to effective implementation of the restrictive measures – this  document outlined the key elements for implementation of the sanctions and provides recommendations for effective implementation of the sanctions.

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FORT advised EfTEN Kinnisvarafond II in acquisition of shopping centre Magistral

30. 03. 16

FORT has advised Digital Mind, one of the leading business technology experts and change management partners in the Baltics, on the acquisition of a business unit from Nortal – the largest Estonia based IT company

29. 03. 16

The Supreme Court of Lithuania will solve a case involving unprecedented legal questions with respect to the due process of arbitration

24. 03. 16

Attorney at law Andrius Bambalas attended 23rd Willem C. Vis International Commercial Arbitration Moot in Vienna

16. 03. 16

FORT Vilnius represents foreign bank before the Supreme Court of Lithuania in case involving unprecedented questions on application of EU, national and international law

15. 03. 16

Prof. dr Mindaugas Kiškis will give lecture on 1 April „Protection of the right to privacy. Actual court and the European Court of Human Rights practice“

10. 03. 16

FORT Vilnius has defended the client and achieved that the decision of the Migration Department prohibiting the client to arrive to the Republic of Lithuania and other Schengen states would be repealed

26. 02. 16

FORT Vilnius represents some of the biggest Lithuanian publishers in the court case regarding violation of the copyrights which does not have any analogue in practice of the national courts

19. 02. 16

Lithuanian business daily Verslo žinios has announced the legal advisors of 2015 according to number of M&A transactions done. We are happy that FORT Vilnius is among other active M&A advisors in the market.

11. 02. 16

The Court of Justice of the European Union has rejected a request of the Supreme Court of Lithuania to use urgent preliminary ruling procedure in a preliminary ruling case initiated by 262 individuals who had subscribed and paid up the emission of shares of currently bankrupt Snoras bank

03. 02. 16

FORT’s attorney at law Dr Gytis Kuncevičius has defended the client against unlawful decision of the Migration Department

11. 01. 16

Application of the EU deposit insurance protection to the subscribers of unissued Snoras’s shares will be resolved by the Court of Justice of the European Union

05. 01. 16

FORT Vilnius is constantly investing into the training and development of their lawyers skills necessary at work

31. 12. 15

EfTEN has completed one more acquisition in Vilnius

29. 12. 15

FORT successfully represents Chairman of NEPLP in a case against the Parliament of Latvia

10. 12. 15

FORT Vilnius has advised EfTEN on acquisition of an office building in Vilnius

07. 12. 15

Attorney at law Dr Gytis Kuncevičius has defended the interest of the client UAB “mogo LT” in the Supreme Court of Lithuania proving that the confiscation of the vehicle owned by the leasing company is neither fair, nor proportional, nor necessary

03. 12. 15

We share our warmth and care with children of Vilnius children’s home

19. 11. 15

FORT partner spoke in a conference of finance directors of Lithuania

08. 10. 15

European Court of Justice Adopted a Decision Abolishing the Safe Harbour Principle and Changing the Rules on Routing the Personal Data from EU to USA

30. 09. 15

Väljaanne „Best Lawyers“ tunnustab kõrgelt Advokaadibüroo FORT vandeadvokaate

16. 09. 15

FORT represents AS Mintos in a matter about operation of a peer-to-peer lending platform

15. 09. 15

Margus Kõivale omistati vandeadvokaadi kutsenimetus

17. 08. 15

FORT Vilnius advised EfTEN on acquisition of Saules Miestas shopping centre

19. 06. 15

FORT praised by IFLR1000 in the guide to energy and infrastructure

29. 04. 15

FORT receives high ranking from Chambers & Partners

14. 04. 15

Legal 500 has repeatedly praised FORT

26. 02. 15

For more than a month dissolution of private limited company and public limited company through the merger with assets of natural person has been possible

09. 02. 15

New Restrictions on the Consumer Credit Business Discussed in the Parliament

06. 11. 14

FORT attorney lectured in the annual Conference of Employment Law

29. 10. 14

FORT Vilnius has moved to the new premises

30. 09. 14

Capital Mill represented by FORT Vilnius has finished the Grand Office acquisition

26. 08. 14

FORT partner engages in organizing the first certification of mediators

20. 08. 14

FORT Riga office provides legal assistance in sale of Ask.fm shares

14. 07. 14

FORT Partner takes Part in the Media Breakfast organized by the Ministry of Justice

05. 06. 14

Ilona Nurmela published an article regarding alternative dispute

05. 06. 14

Upon the complaint prepared by FORT the European Commission requests explanation from Latvia regarding state aid to natural gas processing plants

19. 05. 14

High valuation of FORT by Chambers and Partners

08. 05. 14

Highly regarded mediator joins FORT

06. 05. 14

Team of FORT Vilnius is proud to represent 262 plaintiffs gathered by the Investors association in a class action seeking to declare that funds deposited for a non-registered share capital increase of Snoras Bank shall be treated as deposits falling under protection of deposit insurance scheme.

06. 05. 14

High valuation of FORT by international legal rating agency Legal 500

05. 05. 14

Candidates for the supervisory board must be proposed prior to the general meeting of shareholders

15. 04. 14

Partner Rūta Radzevičiūtė participated in the live broadcast of LRT televizija (Lithuanian national television), giving her comments on personal data protection issues

02. 04. 14

New team of attorneys joins FORT

27. 03. 14

FORT Lawyer‘s Publication in Vienna Journal on International Constitutional Law

27. 03. 14

Effectiveness of a commercial pledge is considerably limited

17. 03. 14

Attention entrepreneurs, your joint venture may qualify as an investment fund

03. 03. 14

FORT Partners will speak at the international conference

26. 02. 14

FORT Law Office is a sponsor to a high profile pan-Baltic training event

10. 02. 14

Courts of the Member State within the territory of which insolvency proceedings have been opened have also jurisdiction to decide an action of recovery that is brought against a person whose place of residence is not within the territory of a Member State

20. 01. 14

FORT Partner will speak at the Energy Efficiency Conference

11. 12. 13

The amount of the state fee is no longer dependent on how one submits its application

02. 12. 13

Law Firm ADVERSUS in Latvia, NORDEUS in Estonia and attorneys at law from Pavlov & Mamontovas in Lithuania have merged and adopted common name FORT

25. 10. 13

Continuously high rankings in IFLR1000 2014

24. 10. 13

FORT Riga Attorneys-at-Law are included in Best Lawyers

27. 09. 13

Partner Sandis Bertaitis moderates international seminar

27. 05. 13

Attorney-at-Law Zita Zeidmane joins the team

20. 05. 13

Sandis Bertaitis participated in conference Civil Engineering ’13

08. 05. 13

Chambers Europe 2014 rankings

25. 02. 13

New partner in Riga office

02. 01. 13

Sandis Bertaitis Participates in Discussion about Renewable Energy Sources

01. 01. 13

Pan-Baltic co-operation

11. 12. 12

Partner Sandis Bertaitis attending Conference 2012 held by the Ombudsman

04. 12. 12

Jaana Nõgisto on principle of separation of powers and judicial protection of rights

21. 11. 12

We participate drafting a complaint to the European Commission about possible violations in the renewable energy sector

19. 11. 12

FORT attorneys recognised by Best Lawyers

19. 11. 12

FORT attorneys recognised by Best Lawyers 2013

22. 10. 12

IFLR1000 edition 2013 recognises law firm FORT

16. 10. 12

Authorisation by way of acceptance of conduct

11. 09. 12

Against whom can the water undertakings and network operators file their claims?

10. 07. 12

Right of security of the lessor

02. 07. 12

Reducing of the state fees

27. 05. 12

Client identification requirements now more flexible

24. 05. 12

First demand bank guarantee – how to challenge?

11. 05. 12

Challenging the termination of the employment agreement – take notice!

23. 04. 12

Non-contractual damage – which court to choose?

30. 03. 12

Process of preparation of new codified planning and building laws

29. 03. 12

Public Procurement seminar in cooperation with Äripäev

26. 03. 12

FORT supports start-ups

23. 03. 12

How to determine the characteristics to which the object of the sale agreement has to conform?

23. 02. 12

Andreas Veeret published an article in magazine

14. 02. 12

Office Manager Kadri Lensment joined FORT Tallinn

11. 02. 12

Law Office FORT is representing Estonian Academy of Arts in challenging the decision by Archimedes Foundation

02. 02. 12

Lay-off – who should be preferred?

30. 01. 12

Riigikogu supported Chancellor of Justice’s proposal to bring the Citizenship Act into comformity with the Constitution

24. 01. 12

Inadequate source document brings about an obligation to pay income tax

21. 01. 12

Gender Discrimination at the Work Place

19. 01. 12

New EU thresholds for public procurement

18. 01. 12

Conversion of the share capital into euro as of 2012; use of shares without nominal value

27. 12. 11

Effective resolution of consumer disputes

23. 12. 11

Lessor’s right of security over movables belonging to third parties

13. 12. 11

UNFCC members decided to launch a process of developing a binding protocol to reducing carbon emissions

01. 12. 11

Unemployment insurance premiums will not change in 2012

30. 11. 11

EU court ruled against web filters to block file sharing

24. 11. 11

Secondary insolvency proceedings

17. 11. 11

The Supreme Court declared void provisions of administrative court procedure

16. 11. 11

Kirsti Pent obtained the qualification of Attorney at Law

08. 11. 11

How to determine when the company has become insolvent?

05. 09. 11

Who’s Who Legal 2011 nominated Kuldar-Jaan Torokoff as leading public procurement lawyer