Sanctions and Cyber and Crypto, Oh My: The Convergence of Emerging Regulatory and Enforcement Risks Requires Nimble Responses Across Sectors

At a sanctions convention held in Washington D.C. on Could 5, authorities officers, practitioners and firms highlighted the federal government’s broadening deal with anti-corruption enforcement, throughout extra historically siloed areas. Whereas Russian sanctions are a scorching subject in and of themselves, authorities representatives throughout companies famous that even other than measures ensuing from Russia’s invasion of Ukraine, america has been steadily heightening its expectations concerning firms’ creation, implementation, and supervision of anti-money laundering (“AML”), Overseas Corrupt Practices Act (“FCPA”), ESG and sanctions compliance applications.

The convention was an vital reminder of the six important areas that firms want to handle in cross-coordinating their compliance efforts:

  • Sanctions (U.S., U.Ok., E.U. and comparable regimes)

  • Anti-Cash Laundering (to incorporate cryptocurrencies)

  • Anti-Bribery (Overseas Corrupt Practices Act diligence)

  • Commerce Controls (CCL and IEEPA issues)

  • State Division Licensing Necessities (Arms Export Management Act and ITAR)

  • ESG (with robust deal with inside controls)

On this ongoing whole-of-government method to anti-corruption, nationwide safety, and international coverage, america continues to speed up the use of sanctions and different initiatives, such because the creation of a number of process forces, to show up the temperature on Russia and different international adversaries in addition to the non-public sector. However at the moment’s compliance dangers at the moment don’t look fairly the identical as they did in years previous, now presenting an assortment of arrows within the authorities’s rising quiver.

Over the previous couple of months, the Workplace of Overseas Asset Management (“OFAC”), has turn out to be more and more lively with initiatives that arguably have supplanted AML and FCPA diligence because the lead issues for entities participating in cross-border transactions. Notably, Andrea Gacki, Director of OFAC Enforcement, has highlighted a extra interdisciplinary, interagency method to sanctions enforcement within the coming 12 months.1 In her keynote handle on the convention, Gacki confirmed that cyber and digital forex are a prime precedence for OFAC, and that the company will deal with know-how, digital forex, and non-financial industries. The White Home equally confirmed that the administration is targeted on staying forward of new and rising tendencies in sanctions avoidance and is implementing an interagency technique to enforcement.

Not surprisingly, Gacki additionally careworn that “it’s never too soon to build a sanctions compliance program,” reminding firms that the federal government has excessive expectations for inside controls.2 Most firms know that proactive and thorough compliance applications are important within the AML and FCPA house, however as novel compliance points, such because the continued improve in ransomware assaults and the accessibility of cryptocurrencies, problem current applications, it turns into more and more troublesome to have faith that each one areas of transactional danger are being successfully addressed.

It’s no surprise that many firms are expressing elevated concern about assembly authorities expectations and feeling stress to strengthen compliance efforts on a variety of associated matters. Addressing these issues largely boils right down to successfully determining with whom you’re doing enterprise, the place your merchandise and companies are going, and the collateral penalties that might stream from these transactions. Typically, the enterprise curiosity evaluation should embody a consideration of the rocky sea of evolving regulation, and a practical evaluation of short- and long-term danger arising from authorities motion.

In gentle of these developments, firms ought to contemplate approaching compliance with a broader mandate, evaluating overlapping dangers and guaranteeing that counsel and different exterior advisors are wanting past anyone slim problem. Subject material experience is important, however silos of experience might lead to failing to detect pink flags. The ultimate technique could be one which mirrors the federal government’s interdisciplinary method to anti-corruption and sanctions enforcement.

During the last 12 months, Bracewell has offered steerage in regards to the steadily rising efforts by the Biden administration to convey extra scrutiny on company conduct, together with OFAC’s heightened expectations for firms’ anti-money laundering and “know your customer” applications; export management dangers associated to OFAC sanctions dangers; OFAC’s elevated scrutiny of ransomware funds; the Biden administration’s continued focus on anti-corruption, significantly illicit home and worldwide financing; the DOJ’s aggressive new method to monitoring company compliance; and extra. From sanctions to anti-corruption and past, our legal professionals can be found and ready to holistically advise purchasers on these and numerous different compliance and enforcement issues.


1. The pointy ends of sanctions enforcement are the felony investigations by the Division of Commerce, FBI, and the Division of Homeland Safety into violations of Worldwide Emergency Financial Powers Act, that are prosecuted by a number of DOJ elements, process forces and U.S. Attorneys’ Workplaces.

2. Latest pronouncements from the Departments of Justice, State, Commerce, and Treasury emphasize the upper expectations and burdens on know-your-customer, anti-money laundering and inside controls practices. UK and EU regulators are taking an identical method, including to the complexity of gaining confidence within the final propriety of cross-border transactions.

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