Both the United States and the European Union have issued calibrated Ukraine-related sanctions as a direct response to the recent political upheaval in Ukraine. Although both US and EU sanctions target certain persons for escalating the Ukrainian crisis (see Annex A), there is a budding rift in the international sanctions community. Specifically, the economic, structural and legal limitations of the EU make it unlikely that the EU will match US sanctions (already authorized but not issued) that directly target the Russian economy.

What You Need to Know

  • Although the initial US and EU sanctions targeting the Russian Federation appear to have been in close lock-step, a closer review of who has been designated under each regime reveals a different story. There are a total of 64 persons designated in the two regimes, but only 18 persons (less than 29%) are designated under both regimes. Indeed, 13 members of President Vladimir Putin's inner circle have been designated only under US sanctions.
  • If the Ukrainian crisis persists, there may be additional divergence due in large part to: (i) the EU's unanimous vote requirement to impose any sanction; (ii) the degree that the EU and Russian economies are intertwined — the Russia Federation conducts 14 times more business with the EU than it does with the US; and (iii) the EU's Iranian designations having been successfully challenged in member states' judicial systems.
  • US authorities have taken a carrot and stick approach to sanctioning persons under the Ukrainian Orders. On the one hand, prior guidance and recent releases from US authorities have made it clear that the 50% rule is being strictly interpreted, i.e., if a specially designated national and blocked person (SDN) holds more than 50% of any entity, then that entity would automatically be blocked as well. But in the absence of a clear 50% ownership interest, the entity is not likely to be blocked. On the other hand, US Executive Order 13662 (dated March 20, 2014) authorizes (and thus threatens) sanctions on entire sectors of the Russian economy, including financial services, energy, metals and mining, engineering, and defense and related materiel. Thus, US authorities are indicating that they will not block an entity not clearly owned by an SDN (i.e., the carrot), but they may impose sanctions on any person (individual or entity) they desire based on their political calculations (i.e., the stick). Based on this approach, we would expect any future US sanctions to be targeted towards the specific interests of President Putin, his cronies, or specific sectors of the Russian economy likely to impact either of those interests.

Overview of Ukraine-Related US Economic Sanctions

In a span of two weeks, President Obama issued three executive orders (13660, 13661, and 13662, the "Ukrainian Orders," each an "EO") targeting Russian Federation officials, the inner circle that supports them, Bank Rossiya, and potentially certain sectors of the Russian economy. The first order authorizes the imposition of sanctions on persons who threaten the peace, sovereignty, and territorial integrity of Ukraine, as well as persons deemed to have materially assisted, sponsored, or provided support, goods, or services in support of such activity or entities owned or controlled by persons designated under this order. The second order also authorizes the imposition of sanctions on any person determined to (i) be a Russian Federation official, (ii) operate in the Russian arms or related materiel sector, or (iii) be owned or controlled by a person designated under either EO 13660 or EO 13661. The third order significantly expands the scope of the prior two orders by authorizing the blocking of property of persons who operate in certain sectors of the Russian economy, including financial services, energy, metals and mining, engineering, and defense and related materiel.

At present, OFAC has designated 31 individuals and one entity, Bank Rossiya. Under these executive orders, the individuals have been designated because they are either officials of the Russian government or close advisors to senior Russian government officials. According to a recent press statement issued by the US Department of the Treasury, many were designated for their public display of support for Russian President Vladimir Putin's use of the Russian Armed Forces in Ukraine. Bank Rossiya was targeted because it is the personal bank for senior officials of the Russian Federation. Its shareholders include members of President Putin's inner circle associated with the Ozero Dacha Cooperative, and the bank has numerous correspondent relationships with banks in the United States, Europe, and across the globe.

Overview of Ukraine-Related EU Economic Sanctions

The EU sanctions primarily consist of asset freezes and travel bans of individuals deemed to have taken actions that undermine or threaten the territorial integrity, sovereignty and independence of Ukraine. The EU has designated 51 individuals (see Annex A) under these sanctions. These individuals are primarily senior political officials in the Russian Federation, senior political officials in the Crimean peninsula, or senior military personnel in Russia.

The EU, however, has yet to sanction any entity relating to the Ukrainian crisis. Still, media reports have indicated that the EU will be taking a closer look at issuing broader so-called "Phase 3" sanctions that would involve restrictions on energy, trade, and financial relations with Russia, if Russia were to move further into eastern Ukraine.

A Comparison of the Two Regimes' Approach to the Ukrainian Crisis

As referenced above and apparent from the table in Annex A, the United States and the European Union have taken two slightly different approaches to their respective sanctions targeting Russia. Most notably, although there is some significant overlap on the respective SDN lists, the US sanctions have targeted a number of persons with strong ties directly to President Putin, either because they were appointed by him, are longtime friends or business acquaintances of his, or have some other close nexus to the president of the Russian Federation, i.e., the US sanctions target Putin's cronies. In contrast, the EU sanctions list includes a number of senior military personnel in Crimea and Russia and a broader swath of senior political officials in both Crimea and Russia but does not target as many members of President Putin's inner circle.

The US Approach

US economic sanctions operate as an extension of US foreign policy goals. The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) often imposes sanctions to force foreign entities to adhere to the international commitments, treaties, and agreements that they have previously signed. Traditionally, OFAC has used a targeted approach to imposing US economic sanctions based on various political calculations made to bring about a certain desired result. Although all the information and factors are not known, two dominant factors are the threat to US national security and US foreign interests, including the extent of US dependency on trade relations with the home jurisdiction of any potential SDN. Based on the persons initially designated as SDNs under the Ukrainian Orders, it appears that the Obama Administration is seeking to apply as much pressure to the personal interests of President Putin as possible without taking the extraordinary measures of either directly (i) sanctioning him, or (ii) disrupting the Russian economy.

To this end, OFAC has stated that property blocked pursuant to any executive order or regulations administered by OFAC is broadly defined to include any property, tangible or intangible, or any interest therein, including present, future, or contingent interests. A property interest subject to blocking includes interests of any nature whatsoever, direct or indirect. With that said, a person whose property and interests in property are blocked pursuant to an executive order (i.e., a blocked person) is considered to have an interest in all property and interests in property of an entity in which it owns, directly or indirectly, a 50% or greater interest, i.e., the 50% rule. The property and interests in property of such an entity are blocked regardless of whether the entity itself is listed in the annex of an executive order or otherwise placed on OFAC's SDN List. Under the 50% rule as applied to the Ukrainian Orders, US persons are prohibited from doing any business with any entity in which Bank Rossiya has a 50% or greater interest (unless specifically authorized by OFAC), whether or not the entity itself has been designated. Thus, by targeting cronies of President Putin, the 50% rule used by OFAC effectively applies additional pressures on the interests (personal, business, and political) of President Putin.

More importantly, EO 13662 has authorized OFAC to sanction any person determined to operate in certain sectors of the Russian Federation, including financial services, energy, metals and mining, engineering, and defense and related materiel. This thinly veiled threat puts all persons engaged in these various sectors of the Russian economy on notice (while intentionally not making any designations) that they could be exposed to US sanctions. Thus, the Obama administration has already escalated its sanctions program to its next phase.

The EU Approach

Unlike the US, the EU must consider the interests, stability, and political agenda of all 28 of its member states before it can pass a decision under the Common Foreign and Security Policy (CFSP). Furthermore, such decision may only be passed with a unanimous vote. With so many disparate nations whose interests must be calculated, including many post-Soviet states or countries deeply tied to specific sectors of the Russian economy, the EU has the difficult task of balancing potentially competing interests to protect any disproportionate impact of any sanctions it seeks to impose.

The EU must also consider its delicate trading dependency on and with Russia. Indeed, according to Eurostat, Russia's top trading partner in 2012 was the EU, which accounted for €267.5 billion in trade. Its next highest trading partner was China, which accounted for €64.1 billion. The US was only Russia's fifth largest trading partner accounting for €18.9 billion (just over 7% of Russia's trade with the EU). Moreover, the EU's dependence on Russian oil is well documented. As of 2012, the EU imported 76.3% of its mineral fuels from Russia.

Nevertheless, the EU has indicated that it will employ a four-step plan to prompt Russia to revoke its annexation of Crimea. The first two steps have generally consisted of asset freezes and travel bans. The initial targets of the EU sanctions were principally senior officials in Crimea and Russia and senior personnel in the Russian military. The second round of EU sanctions ratcheted up the pressure on the Russian Federation by targeting individuals within President Putin's inner circle, his top aides, as well as a TV anchor known for his provocative views.

However, the recent EU sanctions have also increased some tensions within the 28 member states as the EU seeks to continue imposing sanctions on Russia. Indeed, according to at least one media source, some member states expressed reservations on the latest names put forward based on fear of Russian retaliation. Thus, the additional steps in the EU four-step approach to the Ukrainian crisis, which include possible sanctions targeting Russia's financial sector, its energy industry, trade, and its arms business will likely be a difficult (if not impossible) road for the EU to safely navigate without directly damaging the stability of some of its member states.

What's On Deck?

Possible Further Actions that Could be Taken

We expect that as the Ukrainian crisis continues to unfold, both the US and EU authorities will make a concerted effort to coordinate their actions, but the degree of coordination will likely be hampered by the diverging interests between the US and EU. For example, both regimes may continue to designate former Ukrainian or current Russian officials, as well as persons in various sectors of the Russian economy. And, both US and EU authorities may ultimately begin undertaking enforcement actions against companies in their respective jurisdictions that violate the prohibitions set forth in the Ukrainian Orders.

But as the crisis continues, it is not clear whether both regimes will impose escalation sanctions to the same degree, such as direct import or export bans, restricting Russian banks and corporations from accessing EU or US financial institutions, or targeting specific firms within the Russian Federation, e.g., the state-owned energy giant Gazprom would probably be a likely target of US regulators.

Possible US Legislation

There are at least three congressional bills pending that seek to address the Ukrainian crisis. HR 4154 (the Russia Visa Sanctions Act) would deny visas and entry into the United States to Russian Federation officials and employees until the Russian military intervention into Ukraine has ceased and the Russian Federation respects the sovereignty, independence, and territorial integrity of Ukraine. H.R. 4278 (the Ukraine Support Act) and S. 2124 (the Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act of 2013) are substantially similar in that both seek to provide support and stability to the democratic processes and economy in Ukraine while ensuring its media outlets remain open and accurate. Both of these bills would also seek to lock in the present Ukraine-related sanctions with respect to persons designated under the Ukrainian Orders until congress receives a written report from the President that certain thresholds have been met and thus the sanctions are no longer necessary. However, the Ukraine Support Act would give President Obama 30 days to develop a plan to fully implement the Iran, North Korea, and Syria Nonproliferation Act, which would allow the President to impose sanctions against Russian companies for supporting Syria and Iran.

Although none of these bills have made it out of their respective houses, members of Congress have publicly stated a strong desire for Congress to act swiftly to address the Ukrainian crisis.

Further Russian Retaliation

On Thursday, March 20, 2014, the Russian Federation announced it had imposed sanctions against several advisers to President Obama and several members of Congress, including Speaker of the House John Boehner and Senate Majority Leader Harry Reid. The sanctions ban Boehner and Reid, as well as Sens. Mary Landrieu, Daniel Coats, Robert Menendez, John McCain and Obama advisers Caroline Atkinson, Daniel Pfeiffer and Benjamin Rhodes from entering Russia. Although President Putin recently announced that he would refrain from imposing further sanctions on the US or the EU, there is no guarantee that Russia will not economically retaliate in the future if additional US or EU sanctions are implemented against Russia.

Key Provisions of the Recent Executive Orders Issued by President Obama

Executive Order 13660 — Blocking Property of Certain Persons Contributing to the Situation in Ukraine (March 6, 2014)

EO 13660 was issued based on a finding that persons who have asserted governmental authority in the Crimean region without authorization from the Government of Ukraine threaten the democratic process, peace, security, stability, and sovereignty in the region. As such, these persons pose an extraordinary threat to US national security. Accordingly, EO 13660 requires the blocking (i.e., blocked property cannot be transferred, paid, exported, withdrawn, or otherwise dealt in) of all property and interests in property — in the United States, that comes into the United States, or comes into the possession or control of a US person ("US Property") — of certain persons determined by the US government to have:

  • Undermined the democratic processes of Ukraine;
  • Threatened the peace, security, stability, or sovereignty of Ukraine;
  • Misappropriated the assets of Ukraine or an economically significant Ukrainian entity;
  • Asserted governmental authority without authorization over any part of Ukraine;
  • Led an entity that has (or whose members have) done any of the above;
  • Provided material assistance or support for any of the above or a person blocked under this order; or
  • Been (or be) owned or controlled (or acting on behalf of) any person blocked pursuant to this order.

These prohibitions generally include the making of any contributions or provision of funds, goods, or services by, to, or for the benefit of and from any blocked person.

Executive Order 13661 — Blocking Property of Additional Persons Contributing to the Situation in Ukraine (March 17, 2014)

EO 13661 expands the scope of EO 13660 based on a finding that the actions and policies of the Government of the Russian Federation1 has directly undermined the democratic process, stability, and sovereignty of Ukraine. Specifically, EO 13661 designates seven individuals as blocked persons, generally targets the Russian government, and notes that the following persons may be subsequently designated as a blocked person:

  • An official of the Government of the Russian Federation;
  • A person that operates in the arms or related materiel sector in Russia;
  • A person that owns or is controlled by a senior Russian official or person blocked pursuant to this order;
  • A person who materially assists, sponsors, or provides material support, goods, or services to a senior Russian official or a person blocked pursuant to this order.

In addition, EO 13661 authorizes the Secretary of the US Treasury to lift the sanctions applied to persons designated in Annex A of this order.

Executive Order 13662 — Blocking Property of Additional Persons Contributing to the Situation in Ukraine (March 20, 2014)

This most recent order continues to ratchet up the pressure on the Government of the Russian Federation for its purported annexation of Crimea and its use of force in Ukraine. This order authorizes the blocking of all US Property of persons determined to have:

  • Operated in certain sectors of the Russian Federation, including financial services, energy, metals and mining, engineering, and defense and related materiel;
  • Materially assisted, sponsored or provided financial, material, or technological support goods, or services to any person whose US Property is blocked pursuant to this order; or
  • Been (or be) owned or controlled by or acted on behalf of any person whose US Property is blocked pursuant to this order.

Key Provisions of the Ukraine-Related EU Economic Sanctions

Council Regulation (EU) No 208/2014 of 5 March 2014 ("Regulation 208")

Regulation 208 provides for the freezing of funds and economic resources of certain persons identified as responsible for the misappropriation of Ukrainian state funds and persons responsible for human rights violations in Ukraine. It was issued in response to the conflict between the Ukrainian government and the opposition leaders in late February 2014.

There are two prohibitions regarding persons listed in Annex I of the Regulation:

  • All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body shall be frozen; and
  • No funds or economic resources shall be made available directly or indirectly, to, or for the benefit of, natural or legal persons, entities or bodies listed in the annex.

Applications for a license can be made in certain situations including:

  • Where funds or economic resources concerned are necessary to satisfy the basic needs of persons, entities or bodies listed in Annex I;
  • Where funds are subject to an arbitral or judicial decisions on certain conditions; and
  • Where funds are required for a payment by the listed person on an obligation that is due under a contract that was concluded before such person was listed.

It is an offence to circumvent the prohibitions stated above, i.e., to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions.

Finally, actions by persons, entities or bodies shall not give rise to any liability on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the prohibitions set out in the Regulation.

Council Regulation (EU) No 269/2014 of 17 March 2014 ("Regulation 269")

Regulation 269 has the same key provisions as Regulation 208, however these prohibitions are directed at those individuals responsible for actions which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine (i.e., by Russia). The list of 21 individuals has been incorporated into Annex A below.

Council Regulation (EU) No 284/2014 of 21 March 2014 ("Regulation 284")

Regulation 284 adds a further 12 individuals to the designated list as those targeted by the prohibitions under Regulation 269.

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1 Government of the Russian Federation means the Government of the Russian Federation, any political subdivision, agency, or instrumentality thereof, including the Central Bank of the Government of the Russian Federation, and any person owned or controlled by, or acting for or on behalf of, the Government of the Russian Federation

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