President Trump Shifts the U.S. Policy Towards Cuba

As we have previously reported on the growing fear that the Trump Administration would roll back President Barack Obama’s plan to normalize relations with Cuba. Then-candidate Donald Trump was calling President Obama’s deals with Cuba “one-sided” and beneficial “only [to] the Castro regime.” Last week Friday, at an event at the Manuel Artime Theater in Miami, President Trump officially announced his Administration’s new public policy towards Cuba and fulfilled a campaign promise.

Cuban FlagPresident Trump’s speech culminated in the issuance of a National Security Presidential Memorandum and an accompanying White House Fact Sheet on the U.S. Policy toward Cuba.  In sum, President Trump’s directive:

(a)  Ends economic practices that “benefit the Cuban government” by prohibiting most economic activities with the Cuban military conglomerate, Grupo de Administración Empresarial (“GAESA”). This change is most likely to affect the hotel and tourism industry sectors, since these are the industries said to be largely controlled by GAESA. A list of companies that will be on the “blacklist” will be issued by the State Department at a later date.

(b)   Adheres “to the statutory ban on tourism to Cuba,” by amending regulations related to educational travel (i.e., by ending individual people-to-people travel) and enforcing the strict record keeping requirements related to travel to Cuba.

(c)   Opposes any efforts in the United Nations or other international forums to lift the embargo on Cuba.

(d)   Supports the expansion of internet services and free press in Cuba by convening a task force that will work with non-governmental organizations and private sector entities to examine the challenges and opportunities in those areas.

(e)  Keeps in place the Obama Administration’s elimination of the “Wet Foot, Dry Foot” policy.

(f)  Ensures that engagement with Cuba in general is advancing the interests of the United States.

As explained in the new FAQs issued by the U.S. Department of the Treasury, the policy changes will not go into effect until the Treasury Department and the U.S. Department of Commerce have finalized their new regulations. Importantly, the new Cuba policy changes will not have retro-active effect. Those travel arrangements and commercial engagements that were in place prior to the issuance of the upcoming regulations will not be affected.

Al Cardenas, who heads the Latin America practice group at Squire Patton Boggs and previously served as the former Chairman of American Conservative Union and former Chairman of the Florida GOP, explains:  “Despite the emotional setting and rightful remembrance of the struggles of the Cuban people found in President Trump’s speech, which was focused on a Cuban exile audience, President Trump’s executive action preserves many of the changes made during President Obama’s Administration (some of which were outlined in President Obama’s 2014 Speech). For example, the respective embassies in Washington and Havana will remain open, the U.S. licenses issued to airlines and cruise line companies have been kept, efforts to expand direct telecommunications and internet access will continue, and the additional categories for travel to Cuba for the most part remain in place. While one-step back is the prohibition on U.S. travelers from staying at government-owed facilities, this should be a boon to the family-owned B&B’s and other rentals on the island. It remains to be seen whether there will be a significant drop off in tourist travel to the island.”

Viewed as a whole, President Trump is tightening some areas where improved economic relations with the United States could have benefitted some auspices of the Cuban Government.

This post was written by Beatriz E. Jaramillo and  Stacy A. Swanson of Squire Patton Boggs (US) LLP.

The Day of North Korea Sanctions: the UN Imposes the Toughest North Korea Sanctions Yet While OFAC and State Designate More North Korean Entities

After weeks of negotiations and a Putin-backed delay, the UN Security Council unanimously adopted resolution 2270 on March 2, 2016, imposing new sanctions against North Korea. According to U.S. Secretary of State John Kerry, the resolution imposes the strongest set of UN sanctions in over two decades. This article provides a summary of the new UN North Korea sanctions followed by an overview of the most recent developments in North Korea sanctions under US law.

New UN North Korea Sanctions

The new sanctions require:

  • An asset freeze on all funds and other economic resources owned or controlled by the North Korean government or the Worker’s Party of Korea, if associated with its nuclear or ballistic missile program or other prohibited activities
  • A ban on the opening and operation of North Korean banks abroad
  • A ban on foreign financial institutions opening new offices in North Korea under all circumstances, unless first approved by the Sanctions Committee, and a requirement for UN Member States to order the closing of existing branches if there is credible information indicating the associated financial services are contributing to North Korea’s illicit activities
  • Designation of 16 new individuals and 12 entities (including North Korea’s Ministry of Atomic Energy and the Reconnaissance Energy Bureau)
  • A ban all public and private financial trade support to North Korea if there are reasonable grounds to believe there is a link to proliferation
  • Sectoral sanctions on North Korean trade in natural resources banning the export of all gold, titanium ore, vanadium ore and rare earth metals and banning the supply of all types of aviation fuel, including rocket fuel
  • A ban on the export of coal, iron, and iron ore used for North Korea’s nuclear or ballistic missile programs
  • Inspection of all cargo going to and from North Korea, not just those suspected of containing prohibited items
  • Expanding the arms embargo to include small arms and light weapons
  • A ban leasing or chartering vessels or airplanes, providing crew services to North Korea, and registering vessels
  • Expanding the list of luxury goods (prohibited for export to North Korea) to include luxury watches, aquatic recreational vehicles, snowmobiles worth more than $2,000, lead crystal items and recreational sports equipment
  • A sweeping ban on the transfer of any item if a UN Member State has reason to believe the item can contribute to the development and capabilities of the North Korean armed forces, except for food and medicine

China, a permanent member of the Security Council, joined the unanimous vote despite prior reluctance to strengthen UN sanctions against North Korea. It remains yet to be seen how China will enforce the sanctions.

U.S. North Korea Sanctions

Separately, the United States took action earlier against North Korea. We speculate that this action helped align the UNSC members toward the unanimous vote on UNSCR 2270. On February 18, 2016, President Barack Obama signed into law the North Korea Sanctions and Policy Enhancement Act of 2016. The bill had easily passed through both Houses of Congress on the heels of the most recent nuclear test and rocket launch by North Korea.

Then on March 2, the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) named two entities and 10 individuals to its list of Specially Designated Nationals and Blocked Persons. On the same day, the State Department designated three entities and two individuals for activities related to weapons of mass destruction (WMD).

Over the next few months, OFAC is expected to issue new North Korea regulations to implement other provisions of the new statute.

The Act

The new statute provides for both mandatory and discretionary designations. These sanctions are directed at activities by U.S. Persons, which includes any United States citizen, permanent resident alien, any entity organized under the laws of the United States or any jurisdiction within the United States (foreign branches of U.S. companies, that means you too), and any person in the United States.

In addition, any transaction by any non-U.S. persons supporting any of the designated entities or prohibited activities must be carefully scrutinized, especially if the transactions involve the U.S. financial system in any way.

Mandatory Designations

The Act requires the designation and freezing of all assets subject to U.S. jurisdiction of any person that engages in any of the following activities relating to North Korea:

  • Nuclear and ballistic missile proliferation
  • Dealings in North Korean metals and products tied to WMD activities, the Korean Workers’ Party, armed forces, intelligence, or the operation of political prison camps
  • “Significant financial transactions” related to weapons of mass destruction
  • Undermining cybersecurity
  • Internal repression
  • Forced labor
  • Censorship
  • Human rights violations

In addition, the Act requires the President to decide on the designation of North Korea as a Primary Money Laundering Concern in the coming months.

As a result, companies must ensure that no company activity supports the activities of entities designated under the above act provisions. Compliance programs, including those related to anti-money laundering, should be reevaluated as the sanctions are not simple reiterations of previous measures. These mandatory designations will make it all the more necessary that companies maintain reasonable and proportionate due diligence and screening procedures to prevent facilitating the enumerated activities.

Discretionary Designations

Before we reach the current regulation regime, we will leave you with the remaining provisions of the Act that have not yet been implemented. While no one holds the OFAC crystal ball, these provisions may rear their head and are worth considering in advance of promulgation.

1. Blocking sanctions

The Act explicitly codified the blocking of assets of the Government of North Korea, the Workers’ Party of Korea, and North Korean Specially Designated Nationals (SDNs). While this sanction is essentially already in effect under the various executive orders, the explicit restrictions would prohibit the use of the U.S. financial system in connection with any transaction with the Government of North Korea, the Workers’ Party of Korea, or SDNs of North Korea.

2. UN Security Council resolutions

The Act also authorizes designation as an SDN of any person who supports a person designated pursuant to an applicable UN Security Council resolution. The potential implications of this Act provision deserve attention as the recent resolution imposed the toughest set of sanctions yet.

3. Bribery

If you thought the FCPA was the sole concern out of U.S. soil relating to bribery of foreign officials, think again. The Act also authorizes designation of any person who knowingly contributes to bribery of a North Korean official, or to misappropriation, theft, or embezzlement of public funds by, or for the benefit of, a North Korean official.

4. Sanctions grab bag

The Act also authorizes the President to prohibit any person already designated under the above three categories from transactions in foreign exchange or credit or payments subject to U.S. jurisdiction, procurement, and/or travel by the designated person’s officers and shareholders.

Refresher: Pre-Existing OFAC Regulations

The new Act builds upon the pre-existing U.S. sanctions against North Korea. For further background, see Trading Up: Newly Implemented North Korea and Libya Sanctions.

Blocking sanctions

The regulations provide for the continued the blocking of property and interests in property of certain persons with respect to North Korea that had been blocked pursuant to the Trading with the Enemy Act (TWEA) as of June 2000.Further, the regulations block property and interests in property of persons listed in the Annex to E.O. 13551 and of individuals and entities determined by Treasury in consultation with the State Department to have engaged in activities related to:

  • The import, export, or reexport of arms or related materiel from North Korea

  • The import, export, or reexport of luxury goods to North Korea

  • Money laundering, counterfeiting of goods or currency, bulk cash smuggling, narcotics trafficking, or other illicit economic activity supporting the Government of North Korea or its senior officials

  • Providing support for or goods or services of any of the above-listed activities or any person whose property and interests in property are blocked pursuant to E.O. 13551

  • Owning, controlling, or acting on behalf of any person whose property and interests in property are blocked pursuant to E.O. 13551

Vessels

The regulations prohibit U.S. persons from registering, owning, leasing, operating, insuring or otherwise providing support to North Korean vessels.

Imports to North Korea

Lastly in terms of prohibitions, the regulations prohibit imports of goods, services, and technology (including those used as components of finished products of, or substantially transformed in, a third country) from North Korea without an OFAC licenses or applicable exemption.

Authorizations

The preexisting regulations also provided authorization for the provision of certain legal services, emergency medical services, and entries in certain accounts for normal service charges by U.S. financial institutions.

The Takeaway

Interactions with North Korea are an increasingly dangerous minefield of sanctions. The new North Korea sanctions add to an already restrictive program. As a result, we recommend additional review and specialized controls as the new sanctions reach new heights (or depths, depending your level of preparation).

Copyright © 2016, Sheppard Mullin Richter & Hampton LLP.

UN Secretary-General Election

After ten years in office, Ban Ki-moon, the UN Secretary General (UNSG),  will retire from the UN at the end of 2016. The race for his successor is already underway. Last December, the Presidents of the Security Council (UNSC) and of the UN General Assembly (UNGA) sent out a joint letter soliciting candidates from member countries.

The UN consists of 193 member states, traditionally divided into geographical groups, such as African, Latin American, etc. Certain important positions, including that of the UNSG, rotate among these groups, although this happens by custom and precedent rather than by some written rule of the UN Charter. After the Middle Eastern group (Boutros Boutros-Ghali), the African group (Kofi Annan) and the Asian group (the incumbent), the rotation system would have the Eastern European group take up the office of the Secretary General for the next four years (with the possibility of reelection).

Several candidates have already been put forward in response to the letter of the two presidents. Croatia has nominated Vesna Pusić, until recently the country’s first deputy prime minister and minister for foreign affairs. Alas, her government collapsed soon after her nomination was submitted and it is unclear whether she still enjoys her country’s support.

The former Yugoslav Republic of Macedonia has nominated its former foreign minister and a former UNGA President, Srgjan Kerim. And Montenegro has nominated Igor Lukšić, its current foreign minister.

The letter of the two presidents invites candidates to come forward by the end of July, though it doesn’t actually specify when the nomination process would close. A number of other candidates will emerge, and several are waiting in the wings. The ex-Yugoslav contingent is complemented by Danilo Türk from Slovenia, a former UN Assistant Secretary-General and a former President of his country, who declared his candidacy some two years ago, as well as by Vuk Jeremić, the former Serbian Foreign Minister who is reputed to have made quite a mess of his job as President of the UN General Assembly (2012-13).

Bulgaria is the home of no fewer than two potential candidates: Irina Bokova, the Director-General of UNESCO, and Kristalina Georgieva, a second-term European Commissioner and currently a Vice-President of the Commission. Bokova used to be favored by her government – but her government, too, has since changed and the new Bulgarian government, with a right-of-center orientation, prefers Georgieva.

Nowhere is it stated that a country could not put forward two candidates (however strange that would be). This sheds some light on the situation in Slovakia which also features two potential candidates: Miroslav Lajčák and Ján Kubiš. Lajčák is currently the country’s Deputy Prime Minister and Foreign Minister. Kubiš is a veteran of a number of international organizations. He has served as the Secretary General of the Organization for Security and Cooperation in Europe (OSCE), as EU’s special envoy for Central Asia, as Slovak Foreign Minister, etc. Currently, he serves as Ban Ki-moon’s Special Representative in Afghanistan.

This plethora of candidates and possible candidates may thin out as months pass – while others may throw their hat in. Consider that none of the past eight Secretaries-General has been a female. Is it a woman’s turn now? As much sympathy as the idea evokes, there is no rule to force it. Kristalina Georgieva, however, is considered by many as the ideal candidate, gender considerations aside.

In a novel approach, candidates will be asked to make presentations during open hearings that the current UNGA President intends to hold. Following Art. 97 of the UN Charter, their merits will then be considered by the Security Council which will recommend its favorite to the General Assembly. It has not been specified when this is supposed to happen but late fall is the likely time. This is based on the assumption that the US would want the decision made before its own elections. Also, Russia will want to take care of the matter during its October chairmanship of the Security Council.

Even though the UNSC only makes a recommendation, its views are critical. Its recommendation has always been followed. Moreover, the UNSC customarily submits only a single recommendation – no options left for the 193 nations. This follows from a 1946 resolution of the UNGA according to which submitting a single recommendation is “desirable”. And in the Security Council, it will be its five permanent members (the “P5”) who will carry the day.

Some skeptical but wise voices argue that the whole selection may boil down to a bargain between the US and Russia. In the past, the US has not expressed its views before actual decision time.  It might be inclined toward a female candidate and Kristalina Georgieva could be viewed favorably.

On the other hand, the Russians often oppose any European Union diplomat, for any position. This logic would make them oppose just about anyone mentioned above, except for some of the West Balkan candidates – after all, it was a powerful Russian lobbying campaign which hoisted Vuk Jeremić of Serbia into the GA Presidency a couple of years ago. Additionally, the Russians might support someone who studied in Moscow, in their Diplomatic Institute (MGIMO), including the two Slovak diplomats or Irina Bokova. They have their files.

So – the race for the next UN Secretary General is in flux and nothing will be decided very soon. Before the end of the year, however, one of the fairly obscure Eastern European names mentioned above may turn into an important international actor.

© 2016 Covington & Burling LLP

Negotiators Have Reached Deal with Iran – U.S. Persons Should Not Expect Quick Relief From Sanctions

On July 14, 2015, the five permanent members of the UN Security Council (China, France, Russia, the United Kingdom, and the United States) plus Germany (the “P5 + 1”) announced a Joint Comprehensive Plan of Action (JCPOA) with Iran intended to ensure that Iran’s nuclear program will be exclusively peaceful. The agreement builds on the JCPOA framework announced on April 2, 2015, and is intended to provide Iran with phased sanctions relief based on verification that Iran has implemented key nuclear commitments.

Under the JCPOA, Iran agrees to cap its uranium enrichment capability for 10 years and to accept international monitoring of its nuclear program. In exchange, the United States, European Union, and United Nations will relax sanctions on Iran in stages. Once international nuclear inspectors verify that Iran has implemented the agreed to nuclear-related restrictions, the United Nations will pass a new resolution that will terminate various resolutions currently in place. If, at any time, Iran is determined to be out of compliance with its obligations, those resolutions will “snapback” or be re-imposed against Iran. The EU further agreed to terminate its regulations implementing all nuclear-related economic and financial sanctions at the time the inspectors verify Iran is in compliance.

U.S. sanctions relief will initially be limited to the suspension of secondary sanctions that target the commercial activities of non-U.S. companies in key sectors of the Iranian economy, such as oil, gas and petrochemical industries, as well as companies in the shipping and shipbuilding and automotive sectors. In other words, the sanctions relief that was provided to non-U.S. persons earlier in the negotiations will continue. Eventually, these secondary sanctions may be eliminated (rather than suspended) but only if the International Atomic Energy Agency (IAEA) verifies that Iran has implemented key nuclear-related measures described in the JCPOA.

It is anticipated that the United Nations Security Council will endorse the Agreement over the new few days. The JCPOA and its commitments will come into effect 90 days after the Security Council’s endorsement, which will be known as “Adoption Day.” Beginning on Adoption Day, the P5+1 and Iran will prepare for implementation of the agreement, but no sanctions relief will be granted until inspectors have verified Iran is in compliance with its commitments.

What changes, if any, will be made in primary U.S. sanctions, such as the Iranian Transactions and Sanctions Regulations (ITSR), is less certain. Under the Iran Nuclear Review Act, passed into law in May 2015, the president must transmit the agreement to Congress, which then has 60 days to review it. During Congress’ review period, the president may not waive, suspend, reduce, or provide relief from statutory sanctions or refrain from applying existing sanctions. In other words, there will be no sanctions relief for U.S. persons in the immediate future. If, as some members of Congress have threatened, Congress issues a joint resolution of disapproval, which the president in turn has threatened to veto, there is another waiting period during which the president may take no action to reduce sanctions.

Thus, the status quo will likely continue for quite some time, and from the perspective of U.S. primary sanctions – those that apply to U.S. individuals and entities, as well as entities owned or controlled by U.S. persons – no changes are imminent.

©2015 Drinker Biddle & Reath LLP. All Rights Reserved

United Nations: A Renewed Focus on Climate Change This Week in New York

Covington BUrling Law Firm

Regardless of your perspective on the subject, expect significantly increasing media and public attention around climate change and greenhouse gas emissions this week.

The Secretary General of the United Nations, Ban Ki-moon, is convening a Climate Summit on Tuesday in conjunction with the meeting of the UN General Assembly in New York.  More than 120 world leaders are expected to attend this gathering, making it significant and historic to have so much focus on this issue.  The Climate Summit prompted activists to put together a People’s Climate March on Sunday calling for action by the assembled world leaders.  Hundreds of thousands of people reportedly joined the march in New York — creating media and popular momentum– and demonstrations also occurred in cities around the world.

This focus on climate change has come to be known as Climate Week in New York City.  One of the most notable features of it is the role that businesses are playing in promoting private sector innovation for clean energy solutions, accounting for their climate-related activities, and even advocating for clearer governmental climate emissions policies.  The week is filled with dozens of meetings and forums featuring such business approaches.  Today, for example, Apple’s CEO Tim Cook will be joining Climate Week opening day events to discuss his company’s approach, and dozens of CEOs will be attending a Private Sector Forum tomorrow at the UN.  These meetings include financial firms and investors, as well as greenhouse gas emitters.  The Carbon Disclosure Project (CDP) will be at the New York Stock Exchange on Tuesday to release its annual survey of company reporting on carbon emissions, showing that some 70% of the S&P 500 companies voluntarily report on their carbon emissions.  Several major companies are expected to announce commitments to power 100% of their operations from renewable energy.

The business discussions in New York will increasingly center on a call for companies to put an internal price on carbon, as a complement to efforts to have governments establish regulatory mechanisms — such as emissions limits or trading schemes — that likewise impose such a price.  A carbon price is believed to sharpen the business focus on climate change risks, costs and opportunities.  The UN Global Compact and the World Bank are promoting leadership criteria for companies based on such reporting.  Indeed, a just released report  from the Carbon Disclosure Project (CDP) shows that some 150 companies have developed internal carbon pricing schemes.  It would not be surprising for calls for company pricing policies to increasingly appear in future shareholder resolutions.

This increasing private sector focus complements the accelerating pace of the official UN negotiations.  Interestingly, the Climate Summit is merely an effort by the Secretary General to enhance the focus on the climate treaty negotiations, which are happening elsewhere.  The next step is the annual meeting of the parties of the UN Framework Convention on Climate Change in Lima, Peru in early December to continue with drafting a framework.  Countries will then submit emissions reduction commitments in the Spring, with an effort  to reach a global agreement at the Paris meeting of the parties in December 2015.  Yesterday, the Major Economies Forum of the largest nations met to tackle these issues and discuss next steps to accomplish such an agreement.  Several observers see this meeting as a demonstration of the increasing importance of this issue, as for the first time that meeting consisted of country Foreign Ministers (Secretary of State Kerry attended) rather than simply energy or environmental officials.  Issues around addressing the growing emissions from rapidly developing economies, such as China and India — which currently sit outside of the existing UN framework — remain central to the ultimate success of this endeavor.

Key to the United States’ position are the significant emissions reductions that would be derived from the Environmental Protection Agency’s recently proposed rules for existing power plants. They are a central piece in fulfilling the President’s international pledge in 2009 that the United States would reduce its carbon emissions by 17% by the year 2020.  The President’s speech this week will be important in setting a trajectory for how much further the United States may be willing to go after 2020.

The UN’s chief climate change official, Christian Figueres, speaking at a small gathering yesterday, regards the week’s activities as an indication that the climate issue may be reaching a tipping point.  She characterizes the public demonstrations as a statement that the nations of the world “must” address climate change, the business actions as a demonstration that governments “can” address climate change, and believes that governmental leaders are now poised to assert that they “will” address it.  While the outcomes may not be fully settled for some time, companies can expect to see a renewed public focus on these issues and will likely find that they present a range of increasing risks and opportunities.

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