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The UK Sanctions Laws
The UK Sanctions Laws
SAMLA confers powers to enact regulations imposing sanctions. The statutory scheme broadly follows the EU law model. For example, section 3 provides for the conferring of powers for the purpose of, amongst other things, freezing “funds” and “economic resources” and “preventing funds or economic resources from being made available to, or for the benefit of” designated persons. “Funds” and “economic resources” are defined similarly to their EU law definitions, which have been referred to above.
The UK Regulations. Regulations 11 of 15 of the UK Regulations contain the relevant asset freezing provisions and prohibitions on the making of funds and economic resources available to or for the benefit of designated persons, breach of which is made a criminal offence. Each regulation follows a similar pattern. It suffices to refer here to regulation 15 by way of illustration.
Regulation 15(1) provides that “[a] person ("P") must not make economic resources available to any person for the benefit of a designated person if P knows, or has reasonable cause to suspect, that P is making the economic resources so available.”. The prohibition is not merely on knowingly making economic resources available to anyone for a designated person’s benefit. Rather, if economic resources are in fact made available for the benefit of a designated person, it is sufficient for the prohibition to have been breached if P merely had “reasonable cause to suspect” that it was making the economic resources so available.
Regulation 15(2) provides “[p]aragraph (1) is subject to Part 6 (Exceptions and licences)”. It has not been suggested that Part 6 is relevant in this case. Regulation 15(3) makes breach of the paragraph 15(1) prohibition a criminal offence. Regulation 15(4)(a) goes on to state that “economic resources are made available for the benefit of a designated person only if that person thereby obtains, or is able to obtain, a significant financial benefit”.
Regulation 48 of the UK Regulations provides:
“A person who commits an offence under any provision of Part 3 (Finance) … is liable—
…
(d) on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).”
The material regulations, namely Regulations 11 to 15 of the UK Regulations, are all Part 3 regulations.
- 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