US and EU sanctions related to Russia and Iran have a direct and targeted impact on the energy sector. The sanctions regimes against Russia and Iran differ substantially and seem to be moving in different directions. In this article, we explore the challenges facing US and EU energy companies seeking to operate in Russia and Iran.

Brief overview of energy related sanctions against Russia

Since March 2014, the US has imposed an increasingly strict set of sanctions against Russian and Ukrainian individuals and companies. These sanctions generally fall into four categories: a list of blocked persons and entities, identified as Specially Designated Nationals, or SDNs; much more limited restrictions for specified Russian banks, oil companies and technology companies, identified as a Sectoral Sanctions Identification List or SSI List; export controls; and a full commercial embargo of Crimea. These sanctions are imposed pursuant to several Executive Orders promulgated by President Obama and the Ukraine-Related Sanctions Regulations1. US Persons—defined as US citizens and permanent residents, entities organized under US jurisdictions, and persons physically in the United States—must comply.

The US has designated as SDNs a number of key government and military officials (both Russian and from the former Ukrainian Government), individuals with close ties to the Russian Government, and Russian and Crimean entities2. US Persons are generally prohibited from transacting with any of these blocked persons, and must freeze such blocked persons’ property in their possession, custody, or control. These SDNs are also banned from traveling to the US. In comparison with the SSI List, SDNs targeted inter alia leaders of the Russian oil companies.

According to SSI List and its related OFAC’s Directives, the following activities by a US Person or within the United States related to oil companies are prohibited, except to the extent provided by law or unless licensed or otherwise authorized by the Office of Foreign Assets Control: the provision, exportation, or re-exportation, directly or indirectly, of goods, services (except for financial services), or technology in support of exploration or production for deep-water, Arctic offshore, or shale projects that have the potential to produce oil in the Russian Federation, or in a maritime area claimed by the Russian Federation and extending from its territory, and that involve any person determined to be subject to this Directive, its property, or its interests in property. The prohibition on the exportation of services includes, for example, drilling services, geophysical services, geological services, logistical services, management services, modeling capabilities, and mapping technologies3. The SSI List includes, among others, Russia’s largest energy companies.

The US and EU sanctions are largely aligned. Like the US, the EU has also adopted sanctions that block persons, restrict financing, limit certain exports, and broadly prohibit trade with Crimea. EU persons—EU citizens and permanent residents, entities organized in EU member states and persons physically in the European Union—must comply.

While there are differences between the US and EU sanctions, these are more of a degree than of a kind. For example, the EU and US do not block an identical set of individuals and entities, but the implications for those blocked persons are the same: a visa ban (for individuals) and a freezing of all assets4. Notably for EU companies in the energy sector, EU sanctions prohibit the provision of loans or investment services to Crimean companies, ban exports of goods and technology and prohibit the provision of technical assistance, brokering, construction, or engineering services, in the energy sector and in the prospecting for, and exploration and production of oil, gas, and mineral resources, to any Crimean entity, or for use in Crimea. Contracts signed prior to 20 September 2014 are exempted5.

Brief overview of energy related sanctions against Iran

On 14 July 2015, the “P5+1” working group (China, France, Germany, Russia, the UK and the US) reached a landmark agreement with the Government of Iran to adopt the Joint Comprehensive Plan of Action (the JCPOA). Under the JCPOA, the P5+1 agreed to implement broad UN, US and EU sanctions relief in exchange for Iran’s ongoing compliance with a number of nuclear-related measures. This sanctions relief will occur in two phases: (1) when the International Atomic Energy Agency (the IAEA) verifies Iran’s compliance with nuclear-related measures, which occurred on 16 January 2016; and (2) when the IAEA, together with the UN Security Council, confirms that Iran’s nuclear materials are being used for peaceful activities, or 18 October 2023, whichever is sooner6.

Most of the US sanctions that are suspended—both in the first and second phases—are extraterritorial, i.e., they apply to non-US Persons who do business with Iran. US companies seeking to engage the Iranian market, therefore, need to be aware of the limits of US sanctions relief under the JCPOA, namely:

  1. US Persons generally remain prohibited from doing business with Iran. The JCPOA will not lift the general commercial embargo which prohibits US Persons from doing business with Iran, except for certain sales of civilian commercial aircraft to Iran, imports of Iranian-origin carpets and foodstuffs.
  2. US companies’ overseas subsidiaries will be licensed to transact with Iran under OFAC’s General License H. The JCPOA will license overseas subsidiaries of US entities for activities consistent with the agreement. However, the licensing methodology and the definition of “overseas subsidiaries” are not described and remain to be clarified.
  3. Other US sanctions including those related to counter-terrorism or human rights-related sanctions asserting extraterritorial application7 will remain in place.
  4. On 7 October 2016, OFAC issued updated guidance on several issues. The issues addressed include banking transactions with Iranian banks; dollar-denominated transactions; acceptable due diligence standards; and part-ownership of Iranian companies by entities who remain on the SDN list8.

With regard to Iran’s vast oil and gas reserves, the first phase of relief will mean the US will no longer sanction non-US Persons who engage in transactions with Iran’s energy, shipping and shipbuilding sectors, or port operations9. Nor will the US any longer sanction non-US persons who invest in Iran’s oil, gas and petrochemical sectors; purchase, sell, transport, or market oil, gas and petrochemicals from Iran; export, sell or provide refined petroleum products and petrochemical products to Iran; or otherwise transact with Iran’s energy sector including Naftiran Intertrade Company, National Iranian Oil Company and National Iranian Tanker Company, and associated services10. Non-nuclear-related sanctions still remain in place on all companies and persons, regardless of nationality, who seek to do business with any Iranian people or entities which remain on the SDN List.

EU sanctions relief is far more expansive. Unlike the US, the EU will allow its companies to invest directly in Iran and transact with Iranian persons. EU member states have agreed to terminate or suspend all “economic and financial sanctions” against Iran11. As a result of the first phase of sanctions relief under the JCPOA, EU persons are permitted to trade in Iranian crude oil and petroleum products, natural gas and petrochemical products, as well as related financing. Similarly, the sale, supply or transfer of equipment and technology, as well as the provision of technical assistance and training in this sector are permitted. In addition, EU Persons are free to grant financial loans or credit and to participate in joint ventures with any Iranian persons engaged in the oil, gas and petrochemical sectors in Iran or elsewhere.

Implications for energy companies

While the US and EU have both imposed a number of sanctions on Russia that aim directly to constrain investment in Russia’s energy sector—and in particular its future oil development—there are a number of reasons why Russia’s energy sector may possibly continue to attract US and European investment.

To begin with, US and EU sanctions are (thus far) narrowly targeted. Unless specifically prohibited, Russia’s economy, including its energy sector, is fully open to investment. Second, the sanctions against Russia could be lifted, if the situation in Eastern Ukraine and Crimea develops in certain directions. Finally, US and EU companies are more familiar with Russia and Russian business practices in comparison to Iran, a country where numerous other compliance and other business risks are encountered.

During the first phase of sanctions relief under the JCPOA, which began on 16 January 2016, EU energy companies and the overseas subsidiaries (again yet to be defined) of US energy companies will now have the opportunity to engage Iran’s vastly underdeveloped energy sector. It is estimated that the country will need hundreds of billions of dollars of investment to restore its petroleum fields and then further develop them. EU and the overseas subsidiaries of US companies seeking to engage Iran should therefore be prepared to understand and implement an updated sanctions compliance program that ensures they do not inadvertently risk breach of the ongoing EU and US sanctions. These companies will need to also actively monitor Iran’s compliance as determined by the IAEA and the JCPOA Committee, as a breach may trigger a mandatory wind-down and withdrawal.

The same is not true with regard to the remaining US sanctions against Iran, for example, which would require approval by the US Congress. Moreover, critically, the JCPOA provides for UN, US and EU sanctions to “snapback.” This means that while many companies may now be allowed to invest in Iran, they will face the prospect of having to wind down their operations in the event that Iran is found to have breached the JCPOA12.

“We note that other countries, including Canada, also continue to maintain sanctions against Iran that go beyond the limited sanctions imposed by the UN. To the extent there is any connection to such other countries in particular transactions, country-specific sanctions compliance advice should also be sought.”

1. 31 CFR Part 589.
2. Executive Orders of the President of the US on “Blocking Property of Certain Persons Contributing to the Situation in Ukraine,” No 13660 dated 6 March, 2014 and No 13661 as of 19 March 2014 “Blocking Property of Additional Persons Contributing to the Situation in Ukraine,” Section 1, 19 December 2014. As a result of blocking sanctions, all property and interests of designated persons which are within (or may come into) the possession and control of any US individual or entity (which extends to a foreign branch of a US entity) are blocked, and an entry into the US of designated persons is suspended.
3. Directive 4 under Executive Order 13662 of the Office of Foreign Assets Control as of 12 September 2014.
4. The Council of the European Union, giving force to its Decision 2014/145/CFSP authorizing travel restrictions and the freezing of funds and economic resources of certain individuals believed to have been responsible for actions “which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine“ (“designated individuals”), adopted Council Regulation (EU) No. 269/2014 of 17 March 2014.
5. US and EU embargo Crimea, and US adopts new Ukraine sanctions law, 29 December 2014.
6. The second phase of sanctions relief is eight years after “Adoption Day,” defined as 18 October 2015. See http://www.state.gov/secretary/remarks/2015/10/248311.htm
7. Executive Order of the President of the US on “Blocking the Property and Suspending Entry Into the United States of Certain Persons With Respect to Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology” No. 13606 dated 22 April 2012.
8. https://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20161007_33.aspx
9. Iran Freedom and Counter-Proliferation Act as of 2012, Section 1244(c)(1),(d).
10. President Obama directs key US agencies to prepare for sanctions waivers under the JCPOA, 21 October 2015 and The Joint Comprehensive Plan of Action: A First Look, 17 July 2015.
11. In the second step, on Transition Day, the EU will seek to terminate the sanctions suspended in the first step and terminate EU proliferation-related sanctions. As such, EU proliferation-related sanctions, among some other measures, will remain in place for eight years after Implementation Day.
12. Special thanks to former Managing Associate of Dentons US LLP, Mr. Kenyon Weaver, for his contribution to this article.