Sanctions: Company Compliances Gain Traction

Introduction: Sanctions as international foreign policy

Economic sanctions are the deliberate, government-inspired withdrawal or threat of withdrawal of customary trade or financial relations1¹. Sanctions are at the forefront of international diplomacy today as an alternative to military intervention and are commonplace – the brutal terror attacks in Pulwama triggered enhanced customs duty on goods originating and imported from Pakistan², increasing hostilities between Russia and Ukraine intensified sanctions against Russian oil³, the United States’ Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010 (CISADA) imposed financial sanctions on foreign financial institutions for transacting with individuals and organisations incorporated in Iran⁴, etc.

Though sanctions are largely inter se the “sender” (the country imposing the sanctions) and the “target” (the subject of sanctions), the increased fluidity of global trade also may expose third-party entities to significant civil and even criminal penalties for merely transacting with entities in “target” nations⁵. This article attempts to understand how sanctions influence business trends and impact compliances under the Companies Act, 2013 (Indian Act).

Types of sanctions

Sanctions may be imposed on a particular State or a particular organisation or an individual to restrict the flow of goods or flow of services, the flow of money and even restrict the target’s access to markets. While some sanctions are unilateral in that a particular nation imposes restrictions to further its foreign policy, multilateral sanctions [such as those imposed by the United Nations Security Council (UNSC) or Organisation of the Petroleum Exporting Countries (OPEC)] will bind the member countries. Primary sanctions prohibit transactions by persons with the target in the sender country by way of asset freezes, whereas secondary sanctions impact foreign entities/persons for directly or indirectly transacting with target countries.

Sanctions and their impact on financial transactions

Increased opportunity for international trade has birthed the “facilitation rule”, auguring permutations in risks for companies. As per the facilitation rule any person in the US, or entities incorporated under the laws of the US are prohibited from “facilitating” prohibited transactions and everyday transactions involving the dollar would render routing banks subject to scrutiny for “facilitating” trade with a target.

Secondary sanctions may expose third-party entities to a “doomed if done, damned if not” situation. For instance, an Indian company setting out to declare dividends⁶ may face a formidable challenge if their shareholders were connected to a target – should the Indian company pay out dividends to the shareholder in the target country and risk penal consequences for violating the sanctions⁷ or should the Indian company detain the dividend amount payable in respect of that shareholder connected to the target country and violate Section 123 of the Indian Act?

Questions galore

Such situations beget concerns over everyday compliances as also speculations that go to the very heart of the business and it is advantageous for companies to evolve a tailored response. A company may assess if custody⁸ of the dividend amount (payable to shareholders in target countries) can be retained till sanctions are duly lifted. Must companies scrutinise and audit their shareholders for any nexus with target entities/companies? Is it possible for companies to become selective about shareholder credentials to insulate themselves against potential sanctions violations? Is it prudent to educate personnel about changing political landscapes and evolve crisis settings for such situations? Must companies routinely reassess risk strategies and invest in a robust system for compliance monitoring? Must workforce be acquainted with compliance monitoring systems? How would a regime of economic sanctions impact claims in ongoing international arbitrations? Would sanctions alter the enforceability of an arbitral award? Should MNCs formulate strategies for exit and re-entry?

Many a question may arise over how to straddle a regime of economic sanctions efficiently yet conscientiously. It is befitting for an entity to thoroughly assess their risk strategy seeing as sanctions are becoming popular measures of diplomatic policy.

Conclusion

The business implications of unilateral sanctions on a third-party entity in India unconnected with the target remain debatable. Yet, there is a need to be more acquainted with the increasing scope of sanctions and their far-reaching implications on international trade. Backchannel corporate diplomacy as a means to define international business strategy may be the gamechanger, what with entities called upon to devise alternative means to remain statutorily compliant while also honouring instruments of international law.

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