October 18, 2015, marked “Adoption Day,” the day on which the Joint Comprehensive Plan of Action (JCPOA) (the agreement reached by Iran, the United States, Britain, France, Germany, Russia and China,) went into effect. The agreement was endorsed 90 days ago by the United Nations, and Adoption Day represents the date that JCPOA participants must start taking steps necessary to implement their commitments under the agreement. This means the United States and European Union must begin the work necessary to implement their commitments to reduce nuclear related sanctions, and Iran must begin the nuclear-related measures identified in the Agreement. However, the word “begin” is important here, as Adoption Day represents not an end-point where sanctions are removed, but a beginning, where the parties begin to adopt the measures they agreed to.
Consistent with its obligations, the United States issued two documents on Adoption Day.
First, the president issued a Memorandum to the Secretaries of State, Treasury, Commerce, and Energy to direct them to “take all appropriate measures to ensure the prompt and effective implementation of the U.S. commitments in the JCPOA, in accordance with U.S. law.” Specifically, the president’s memo referred to Annex V of the Agreement, and sections 17.4 (which terminates certain Executive Orders) and 17.5 (which relates to the licensing of activities set forth in Section 5 of Annex II).
Perhaps of most interest to U.S. companies is Section 5.1.2 of Annex II, which states that the United States commits to “License non-U.S. entities that are owned or controlled by a U.S. person to engage in activities with Iran that are consistent with this JCPOA.” Of course, how Section 5 will be implemented is not yet known, and the Administration will need to address statutory restrictions on such U.S.-owned entities.
The Treasury Department also released a Frequently Asked Questions document that unfortunately does not answer the questions that people most want answered. It does, however, make quite clear that until Implementation Day, “all U.S. sanctions against Iran remain in effect, with the exception of the limited relief provided for in the Joint Plan of Action,” which relief relates almost exclusively to non-U.S. entities that are not owned or controlled by a U.S. person.
Therefore, until such time as the parties confirm that Iran has implemented the measures agreed to in the JCPOA, parties subject to U.S. jurisdiction must continue to carefully review all transactions with Iran to determine whether such transactions are prohibited or an exception or authorization exists.