Doing Business With Iran: Mitigating Risk Exposure Under Canada s Economic Sanctions, Export Controls and Anti-Corruption Regimes

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1 Doing Business With Iran: Mitigating Risk Exposure Under Canada s Economic Sanctions, Export Controls and Anti-Corruption Regimes John W. Boscariol February 23, 2016

2 Why This Now Matters to Canadian Companies 2 the Canadian trade controls regime operating in the shadow of the United States increased penalties, enforcement by U.S. authorities pressure from U.S. affiliates, suppliers and customers (and U.S. government) Canada s reputation as an emerging sanctions hawk? penalty, operational, reputational exposure financings, banking relationships, joint ventures, private equity investments, mergers and acquisitions, going public transactions Canadian companies are now more concerned than ever before about whom they deal with, where their products and technology end up, and who uses their services

3 3 What Are Canada s Trade Controls? economic sanctions Special Economic Measures Act United Nations Act Freezing Assets of Corrupt Foreign Officials Act Criminal Code export and technology transfer controls Export and Import Permits Act Export Control List Area Control List domestic industrial security Defence Production Act, Controlled Goods Program other legislation of potential concern blocking orders (Cuba) anti-boycott policy and discriminatory business practices laws anti-bribery law (Corruption of Foreign Public Officials Act)

4 Who Administers and Enforces Canada s Trade Controls? 4 Global Affairs Canada Export Controls Division (export controls) Economic Law Section (economic sanctions) Canada Border Services Agency export reporting and enforcement at the border ensuring compliance with export controls and economic sanctions can detain and seize your goods Royal Canadian Mounted Police

5 5 Today s Focus new opportunities and risks in doing business with Iran economic sanctions export and technology transfer controls anti-corruption law

6 Economic Sanctions: Iran 6 starting in 2010, escalating Special Economic Measures Act measures against Iran culminating in broad trade embargo (May 29, 2013): included prohibitions against exporting, selling, supplying or shipping goods, wherever situated, to Iran, to a person in Iran, or to a person for the purposes of a business carried on in or operated from Iran importing, purchasing, acquiring, shipping or transhipping any goods that are exported, supplied or shipped from Iran, whether the goods originated in Iran or elsewhere making an investment in an entity in Iran providing or acquiring financial services to, from or for benefit of a person in Iran over 600 entities and individuals had been designated under Canada s Special Economic Measures (Iran) Regulations

7 Economic Sanctions: Iran 7 effective February 5, 2016, broad trade embargo measures have been removed, leaving only: SEMA prohibitions on activities involving 202 listed persons SEMA prohibitions on supplying any Schedule 2 items and related technical data United Nations restrictions export and technology transfer controls

8 Economic Sanctions: Iran 8 prohibitions against dealings with listed persons it is prohibited for any person in Canada or any Canadian outside Canada to (a) deal in any property, wherever situated, that is owned, held or controlled by a listed person or by a person acting on behalf of a listed person; (b) enter into or facilitate any transaction related to a dealing referred to in paragraph (a); (c) provide any financial or related service in respect of a dealing referred to in paragraph (a); (d) make any goods, wherever situated, available to a listed person or to a person acting on behalf of a listed person; or (e) provide any financial or related service to a listed person or to a person acting for the benefit of a listed person.

9 Economic Sanctions: Iran 9 prohibitions on supplying Schedule 2 items and technology it is prohibited for any person in Canada or any Canadian outside Canada to export, sell, supply or ship any of the goods listed in Schedule 2, wherever situated, to Iran, to a person in Iran, or to a person for the purposes of a business carried on in or operated from Iran it is prohibited for any person in Canada or any Canadian outside Canada to transfer, provide or disclose to Iran or any person in Iran any technical data related to the goods listed in Schedule 2 Schedule 2 has 41 categories, including: aluminum and aluminum alloy products - piping, tubing, fittings, flanges, forging, castings, valves, any unfinished products in any form and any waste or scrap that are made of aluminum and its alloys that are not specified in the Export Control List stainless steel valves, piping, tubing and fittings - any valves, piping, tubing and fittings that are made of stainless steel type 304, 316 or 317 and that are not specified in the Export Control List

10 Economic Sanctions: Iran 10 prohibitions against facilitating a violation: it is prohibited for any person in Canada or any Canadian outside Canada to do anything that causes, facilitates or assists in, or is intended to cause, facilitate or assist in, any act or thing prohibited by sections 3 or 4 [prohibitions on dealings with listed persons and prohibited items] requirement to report to RCMP or CSIS: every person in Canada and every Canadian outside Canada must disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service (a) the existence of property in their possession or control that they have reason to believe is owned, held or controlled by or on behalf of a listed person; and (b) any information about a transaction or proposed transaction in respect of property referred to in paragraph (a)

11 Economic Sanctions: Iran 11 Canada s United Nations Act Iran regulations amended in accordance with UN Security Council Resolution 2231 list of designated persons (and regular reporting for FS firms) very long list of prohibited goods and technology prohibitions on provision of property and financial services in connection with prohibited items uranium mining restrictions shipping and aircraft restrictions sourcing ban on arms and related materials prohibitions against facilitation

12 Export Controls: Iran export and technology transfer controls under Export and Import Permits Act Notice to Exporters No. 196 (Feb 5, 2016): policy of denial for transfer of certain Export Control List items: certain Group 1 dual-use (cybersecurity, sensors, special materials, aerospace and propulsion, etc.) all Group 2 (munitions), Groups 3 and 4 (nuclear) certain Group 5 (strategic items) all Group 6 (missile technology, GPS) certain Group 7 (chemical weapons materials, containment facilities, human toxins) exceptions for items for civil aircraft 12

13 13 Export Controls on US-Origin Items: Iran ECL item 5400 covers US-origin goods and technology not elsewhere specified on ECL designed to ensure Canada is not used as a diversionary route to circumvent U.S. embargoes a permit is required for the transfer of all US-origin goods and technology from Canada to all destinations (excluding US) excludes goods that have been further processed or manufactured outside of the United States so as to result in a substantial change in value, form or use of the goods or in the production of new goods 50% rule of thumb used to be applied

14 14 Export Controls on US-Origin Items: Iran available General Export Permit No. 12 allows for export of US-origin goods and technology to all destinations except Iran (and Belarus, Cuba, North Korea, Syria) no written ECD policy for granting permits for export of US-origin goods or technology to these countries

15 15 Export Controls on US-Origin Items: Iran in the past, ECD has issued permits for US-origin goods to be shipped to Cuba (or Iran) in three circumstances: a US re-export licence has been obtained or humanitarian purposes (for the basic necessities of human life ) or in support of a previously permitted export or Canadian operations even if you determine that a permit is not required or if you obtain a permit, still must consider US law

16 Key Issues to Address in Your Iran Dealings 16 screening against listed and designated individuals and entities screen if any involvement in the transaction purchaser, ultimate user, vendor, creditor, borrower, broker, service provider applies regardless of where Canadian company is doing business include principals, directors, senior officers, entities and individuals who own or control Canada s lists differ from those of EU, US over 2,000 individuals and entities are listed in Canada s economic sanctions and anti-terrorism regulations

17 Key Issues to Address in Your Iran Dealings 17 review of all goods and technology to be supplied, sourced, transferred, exchanged screen against SEMA list screen against UN lists confirm no export controlled items technology transfer includes s, server uploads and downloads, server access from abroad, telephone discussions, training, tech support

18 Key Issues to Address in Your Iran Dealings new disconnect between US and Canadian sanctions against Iran re-exports/re-transfers of US-origin items to Iran US takes jurisdiction with as little as 10% US-origin differs from ECL 5400 test applied by Canadian authorities Iranian visitors / temporary resident employees access to US technology are you US-owned or controlled? OFAC General License H authorizes certain transactions for US-owned foreign entities involvement of US persons use of recusals other US touchpoints 18

19 Ongoing Challenges in Administration of Canadian Economic Sanctions 19 significant differences vs United States in administration and guidance on economic sanctions no FAQs, guidelines, rulings, opinions no consolidated lists for SEMA no voluntary disclosure process no deferred or non-prosecution agreements reporting obligations mandatory for property of designated or listed persons when Global Affairs Canada becomes aware of potential violation, immediate notification to RCMP

20 Anti-Corruption Law Compliance 20 Iran as high risk jurisdiction for corruption Corruption of Foreign Public Officials Act prohibits direct and indirect bribery of foreign government officials, including employees of state-owned or controlled entities benefits of any kind over 35 ongoing investigations by RCMP

21 Anti-Corruption Law Compliance 21 dealings with third parties screening contracts monitoring potential application of other anti-bribery laws US Foreign Corrupt Practices Act UK Bribery Act local (Iranian) law

22 Key Elements of Trade Controls and Anti- Corruption Compliance Programs 22 basic components of your compliance program should include: corporate compliance manual screens and lists third party due diligence, certifications appointment of compliance officers internal audit procedures whistleblower reporting and voluntary disclosure process training programs contracts written evidence of ongoing implementation

23 John W. Boscariol McCarthy Tétrault LLP International Trade and Investment Law Direct Line: LinkedIn: Twitter: