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The EU Best Practices Guidance
The EU Best Practices Guidance
Guidance as to the meaning and effect of such provisions was given in the EU Best Practices for the effective implementation of respective measures dated 4 May 2018 (“the “EU Best Practices Guidance”), which stated:
“59. The term ‘making economic resources available’, which is not defined in the Regulations, has been interpreted by the Court of Justice as having a wide meaning … The prohibition on making economic resources available applies to any mode of making available an economic resource, whatever the consideration …
60. … [S]ince such economic resources are frozen, any new contractual arrangement concerning their use or any dealing with them requires prior authorisation …
68. It is to be noted that the indirect making available of funds or economic resources to listed persons or entities may also include the making available of these items to persons or entities which are not owned or controlled by listed entities” [emphasis added].
In relation to companies controlled by a designated individual, the EU Best Practices Guidance stated:
“66. … the making available of funds or economic resources to non-listed legal persons or entities which are owned or controlled by a listed person or entity will in principle be considered as making them indirectly available to the latter, unless it can be reasonably determined, on a case-by-case basis using a risk-based approach, taking into account all of the relevant circumstances … that the funds or economic resources concerned will not be used by or be for the benefit of that listed person or entity. …”.
Unlike the UK Sanctions Laws (as to which see below), the EU Sanctions Laws do not contain a definition of control.
- Heading
- Mr ANDREW HOCHHAUSER KC
- The Hearing, representation and the evidence
- The Expert Evidence
- The Relevant Factual Background
- The Issues
- The EPS Sanctions Clause
- The Claimant’s submissions on the proper construction of the EPS Sanctions Clause
- The Claimant’s submissions on “reasonable judgment” and the burden of proof
- The Claimant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- The Defendant’s submissions on the proper construction of the EPS Sanctions Clause
- The Defendant’s submissions on sub-clause (C) of the EPS Sanctions Clause
- The Defendant’s submissions on “reasonable judgment” and the burden of proof
- The Defendant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- Discussion and conclusion in relation to the proper construction of the EPS Sanctions Clause and burden of proof
- Discussion and conclusion on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- On the facts did the Claimant satisfy the provisions of sub-clause (C) of the EPS Sanctions Clause i.e. did the Claimant make an objectively reasonable judgment that there was an exposure to sanctions
- EU Sanctions Laws
- The EU Regulations
- The EU Best Practices Guidance
- The UK Sanctions Laws
- The UK provisions in relation to control
- The case law on control
- The Evidence
- The letter on Neftisa headed paper dated 16 November 2021
- The Kommersant Newspaper article dated 22 July 2021
- The Three Legal Opinions drafted by Herbert Smith and Baker and McKenzie which the Defendant provided to the Claimant in November 2021 (the “Legal Opinions”)
- Discussion and conclusion in relation to whether the Claimant made an objectively reasonable judgment that there was an exposure to sanctions, in that the listed persons were subject to the risk of sa
- The ECJ Decision
- Conclusion on the Claimant’s Claim
- Is the Claimant’s Claim time barred?
- The Claimants’ submissions on the Time Bar Clause
- The Defendant’s submissions on the Time Bar Clause
- Conclusions