2月11日国际有关各方就长期政治解决乌克兰危机达成停火协议。本文简要介绍了因乌克兰危机，欧盟对俄罗斯和克里米亚制裁的总体情况和近期发展（2月10日，本文原稿在英士官网上发布）。
本次欧盟制裁，针对克里米亚，主要是在交通、通讯和能源领域；针对俄罗斯，主要是在能源和武器领域（美国制裁与此类似）。提醒大家在进行有关贸易时，注意制裁问题，对贸易标的和贸易伙伴进行必要的调查和研究，在合同中加入必要的制裁除外条款。
Russia and Crimea Sanctions – where are we at the start of 2015?
2014 was a busy year for EU sanctions. In this update, we give an overview of thevarious sanctions that have been implemented by the EU authorities over thelast 12 months following the events that took place in Ukraine during 2014.
There has recently been a renewed push for peace talks to resolve the continuing fighting in the East of Ukraine, but there has still been little progress towards a lasting ceasefire. Further, despite the fact that peace talks have been taking place, there is currently noindication that the sanctions implemented to date are going away. Indeed, EU foreign ministers have just agreed to extend existing sanctions against Russiauntil September 2015 and to discuss the addition of further names to the list of individuals subject to EU asset freezes and travel bans. Sanctions will undoubtedly continue to play a role in 2015, with the potential for further measures to be introduced, if no solution is found to the crisis.
In March 2014, we published a client alert titled “Shipping issues arising out of the Ukraine crisis”and, in July 2014, we published an alert on “Maritime legal issues arising out of trading to Ukraine/Crimea”. Those articles provide an overview of the EU Regulations until June 2014. This article seeks to build on those updates whilst at the same time providing a summary of the sanctions that have beenintroduced and that will impact on any business with these affected regions.
Background
The EU issued its first round of sanctionsin relation to the situation in Ukraine in March 2014, freezing the assets ofindividuals in Ukraine and Russia (Regulation 269/2014). On 23 June 2014, EURegulation 692/2014 came into force, which prohibited the import of goods fromCrimea and Sevastopol, discussed in our July alert.
Following the shooting down of a MalaysianAirlines aircraft (flight MH17) in Ukrainian airspace on 17 July 2014, theinternational community levied increasingly restrictive measures on Russia inorder to try to persuade the Russian government to take steps to de-escalatethe ongoing crisis in Ukraine. As fighting continued, and indeed escalated, inthe East of Ukraine, further restrictions were introduced by the EU authoritiesthrough to the end of 2014.
Application ofthe EU sanctions
The jurisdictional reach of the EUsanctions regimes in respect of Ukraine and Russia is the same as that found inother EU sanctions regimes such as Iran and Syria. As such, the sanctions applyas follows:
1. within theterritory of the EU;
2. on board anyaircraft or vessel under the jurisdiction of an EU country;
3. to any EUnational wherever located;
4. to any legalperson, entity or body incorporated or constituted under the law of an EUcountry; and
5. to any legalperson, entity or body in respect of any business done in whole or in partwithin the EU.
Those with EU connections should remainvigilant when transacting any business with a Russian or Ukrainian element(including Crimea / Sevastopol). As noted in our previous sanctions updates,even if you consider that neither you nor your business is subject to thesanctions, there could be an impact on those providing financing to certainprojects or insurance to elements of the business. Indeed, even if not aconcern for you, it may be a requirement that your counterparty ensurescompliance with the EU sanctions in any transactions with you.
Leaving aside the restrictions that have been imposed on certain Ukrainianindividuals and entities, the EU sanctions affect two geographical regions: (A)Crimea / Sevastopol and (B) Russia. We discuss the restrictions affecting eachof these regions in turn:
(A) Crimea /Sevastopol
Pursuant to UN General Assembly Resolution68/262 of 27 March 2014, Crimea and Sevastopol continue to be considered partof Ukraine. The EU authorities have continued to condemn what is considered theillegal annexation of Crimea and Sevastopol and restrictions have beenintroduced in response to this annexation, effectively trying to restrict tradeand assistance to the region.
On 19 December 2014, the latest EURegulation on Crimea / Sevastopol came into effect (Regulation 1351/2014). Therestrictions contained in this Regulation have replaced a number of the earlierrestrictions, and are more extensive in scope. In summary, the restrictionsimplemented by this Regulation and previous legislation can be broken down asfollows:
I. Importation of goods originating in Crimea
It is prohibited to import into the EUgoods originating in Crimea or Sevastopol and to provide, directly orindirectly, financing or financial assistance, insurance and reinsurancerelated to such import.
ii. Sale or supply of goods and technology
It is prohibited to sell, supply, transferor export certain goods and technology to any natural or legal person, entityor body in Crimea / Sevastopol or for use in Crimea / Sevastopol. These aregoods and technologies that relate to the following key sectors:
a. transport;
b. telecommunications;
c. energy; and
d. the prospection, exploration and production of oil, gas and mineralresources.
Prohibited goods include, amongst others, minerals fuels and oils, iron andsteel, motor vehicles for the transport of people and goods, aircraft andships.
There is a limited exception to this restriction relating to the executionuntil 21 March 2015 of obligations arising from contracts (or ancillarycontracts) concluded before 20 December 2014, provided that certain formalitieswith the relevant authority are complied with.
It is also prohibited to provide technical assistance, or brokering,construction or engineering services directly relating to infrastructure inCrimea / Sevastopol to the industry sectors outlined above.
iii. Tourism
It is prohibited to provide services directly related to tourism activities inor for use in Crimea / Sevastopol.
“Tourism activities” is not definedin the sanctions legislation, but there is an express prohibition on cruiseships flagged by an EU Member State or owned / operated by an EU entity callingat any port situated on the Crimean peninsula, namely Sevastopol, Kerch, Yalta,Theodosia, Evpatoria, Chernomorsk and Kamysh-Burun. Consideration will have tobe given to whether other activities can be considered as “tourismactivities” in Crimea / Sevastopol.
Again, there is an exception that allows obligations under contracts concludedprior to 20 December 2014 (and ancillary contracts) to be performed and forships to call at the listed ports for reasons of maritime safety.
iv. Investment in Crimea
There are also a number of restrictions that curtail investment in Crimea /Sevastopol. These include restrictions on real estate in the region, ownershipor control of entities in Crimea / Sevastopol and the creation of any jointventure.
v. Sanctioned persons
Sanctions often include restrictions on providing funds and economic resources,directly or indirectly, to designated persons. These persons are commonlyreferred to as ‘sanctioned persons’. It is worth highlighting that a number ofcommercial enterprises in Crimea are subject to these designations, includingthe Crimean ports of Sevastopol and Kerch. Any business involving such entitiesis likely to be in breach of the sanctions and checks should therefore becarried out on all counterparties and beneficiaries of transactions.
(B) Russia
EU Regulation 833/2014 came into force on31 July 2014 in response to Russia’s failure to comply with EU demandsregarding the annexation of Crimea and Sevastopol. This Regulation targeted themilitary, oil and financial services industry and was further amended by EURegulation 960/2014, which entered into force on 12 September 2014, and EURegulation 1290/2014, which entered into force on 5 December 2014. A summary ofthe restrictions imposed to date are as follows:
i. Military
It is prohibited to make available dual-use goods and technology, originatinginside or outside the EU, to anyone in Russia or for use in Russia, if thoseitems are for military use or for military end users, such as the Russian army.In addition, it is prohibited to provide directly or indirectly technicalassistance, brokering services or financial assistance related to these goods.An authorisation may be granted if an obligation arises from a contract enteredinto before 1 August 2014.
ii. Technology
The Regulation prohibits making available, directly or indirectly, a wide rangeof technologies originating inside or outside the EU, to anybody in Russia orto anyone outside Russia for use in Russia, without prior authorisation. If theauthorities have reasonable grounds to determine that the technologies will beused in deep water or Arctic oil exploration / production and shale oilprojects in Russia, no authorisation will be given, save that authorisation maybe granted if a contract was entered into before 1 August 2014.
The types of technology that are prohibitedinclude, amongst other items, drill pipes, mobile drilling derricks, floatingor submersible drilling or production platforms and sea-going light vessels.
iii. Oil exploration
It is prohibited to provide, directly or indirectly, the following servicesnecessary for deep water oil exploration and production, arctic oil explorationand production of shale projects in Russia:
a. drilling;
b. well testing;
c. logging and completion services; and
d. supply of specialised floating vessels.
The prohibition does not apply if anobligation arises from a contract (or ancillary contract) entered into before12 September 2014.
iv. Financial instruments
It is prohibited to directly or indirectly purchase, sell, provide investmentservices or assistance in the issuance of, or otherwise deal with transferablesecurities and money-market instruments with a maturity exceeding 90 days,issued between 1 August – 12 September 2014, or with a maturity exceeding 30days if issued after 12 September 2014, by certain entities who are linked tocertain Russian banks (including those entities outside the EU owned 50% ormore by a listed bank).
v. Sanctioned persons
Certain Russian persons have also been designated as sanctioned persons fortheir involvement in events in Crimea. In addition, the EU authorities havedesignated various Russian entities as subject to certain sectoral sanctions.These sectoral sanctions are designed to prevent specific business dealingswith the entity involved. They restrict, for example, financial investmentinvolving these persons, but notably fall short of listing that entity as asanctioned person and the wider restrictions that would be imposed by such adesignation, not least an asset freeze. With the varying levels ofrestrictions, checks should be undertaken on any business involving suchentities to ensure that the relevant EU sanctions are complied with.
Russianretaliatory measures
In response to the EU and US sanctions, theRussian government has banned a wide range of imports from the EU, Norway, theUnited States, Canada, and Australia. From 7 August 2014, fruit, vegetables,meat, fish and dairy from those countries can no longer be exported to Russia.The ban is said to last for one year.
Comment
The EU has, in particular, targeted thetransport, telecommunications and energy sectors in Crimea and the energy and arms sectors in Russia. The US has introduced similar restrictions. Given thesituation in Ukraine and the continued fighting, it seems likely that there could be an introduction of further sectoral or other sanctions against Russiaby the EU and US. As such, we recommend that contracts related to these areasbe kept under review and that legal advice be sought where necessary. Those subject to the EU sanctions would do well to ensure rigorous due diligence before entering into new business connected to Russia or Crimea and to include appropriate sanctions exclusion clauses in any new contracts that could be affected by existing or future sanctions against Russia and/or Crimea.
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