As a result of the applicable provisions on export control and international economic sanctions, today bank and business operators carry out their activities within a framework whose complexity is constantly increasing.
The above induces to either maximise the problem, limiting the access to foreign markets, or minimize it, potentially incurring into significant liabilities, which can be even criminal.
Export control refers to the transfer of certain goods that are deemed strategic, including, in particular, military goods and items that can be used for both civil and military applications (so called “dual use”).
The economic sanctions are, instead, a foreign policy instrument to which the competent authorities are more frequently making recourse against either governments of third countries or non-State organizations (such as terrorist groups), as well as against corporate entities and individuals. On today’s date, amongst the counties that are subject to EU restrictions, it is possible to mention Iran, North Korea, Russian Federation, Sudan and Syria.
The legal framework is made even more complicated by the circumstance that the USA has enacted, in the recent years, a complex set of rules, relating to both export control and international economic sanctions, which is often applicable also out of the US borders and that implies the inflictions of significant sanctions also against non-US entities or individuals.
Studio Legale Padovan stands out, in the Italian market, for its capacity to provide, on a continuous basis, personalised legal assistance in favour of Italian entities or individuals who are already operating in markets that are subject to restrictions or intend to make business in the same markets.
In particular, the Firm has a significant expertise in the performance of due diligence activities that are prodromal for proper business operations. Such activities are carried out from a subjective standpoint (screening of individuals and entities who are involved in the prospected transaction) and from an objective viewpoint (analysis of the technical characteristics of the concerned goods and comparison thereof with the list of items that are subject to restrictions).
The Firm usually avails itself of the collaboration of technical professionals specialized in the “dual use” field. Upon request of its Clients, the Firm is therefore able to draft legal opinions and legal-technical reports on the compliance of the goods to be exported (including software, machineries and technology) with the EU rules on “dual use” goods, as well as with the rules imposing restrictions to the export to certain counties, including Iran and the Russian Federation. Furthermore, the Firm stands aside to its Clients in the procedures before the competent Italian authorities and control bodies, such as the Italian Ministry of Economic Development, the Financial Security Committee of the Italian Treasury Ministry and the Italian Customs Agency.
- Technical/legal check of the compliance with EU and US rules of export transactions to countries that are subject to restrictions such as, by way of example, Iran, Russia, Syria and North Korea.
- Risk analysis (objective due diligence) through the technical/legal check of the compliance of the goods to be exported with the applicable export control law provisions.
- Risk analysis (subjective due diligence) through the checks of the individuals and the corporate and control structure of any other person involved in the transaction, so as to determine that none of them is included in any black-list.
- Cooperation in the definition and drafting of corporate procedures to secure export control compliance.
- Review of the contractual export models, through the drafting of specific clauses aimed at securing export control compliance and/or, if necessary, specific indemnification clauses in relation to countries which are subject to restrictions.
- Assistance for the performance in compliance with the applicable laws of payments from and to countries subject to restrictions.
- Criminal, customs and technical assistance in case of seizure of goods and in relation to criminal proceedings deriving from the breach of export control provisions.
- Assistance in the carrying out of commercial transactions relating to military goods that are subject to the Italian Law No. 185/1990.
- Assistance with regard to US laws governing control of export, re-export and, in general, transfer to certain countries of goods which can be used for both civil or military purposes or which, in any case, satisfy certain characteristics, including the provisions that are part of the Export Administration Regulations.
- Assistance to non-US companies that are subject to sanctions or penalties imposed by OFAC, the U.S. Department of State or the Department of Commerce Bureau of Industry and Security (BIS).
- Tailor-made in-house training on export control and economic sanctions.
Export Control Track Record
In its Export Control activities, Studio Legale Padovan assisted, among others:
- A world leader in the design, manufacture and marketing of machineries and systems for the ceramics, plastics, beverage & packaging, in the implementation, maintenance and enhancement of internal control programs and procedures to ensure compliance with a broad range of export controls programs.
- A joint venture between one of largest worldwide consumer products multinational and an Italian corporation active in the production of ready-to-drink coffee beverages, in the drafting of specific contract clauses aimed at sheltering the joint venture against changes in the EU sanctions regulations and sanctioned parties list.
- An Italian company active in processing stainless steel for the manufacture of equipment in the petrochemical field, in the challenging of sanctions imposed by the U.S. Department of State pursuant to the Iran Sanctions Act of 1996 (ISA), as amended by the Iran Threat Reduction and Syria Human Rights Act of 2012.
- A medium-sized Italian machinery and equipment trader, on alleged export control violations. Our Export Control Team succeeded in resolving the investigation and penalty claims and helped the company to implement proper controls in order to ensure export control compliance.
- An Italian company specialized in the manufacturing of complete lines for polymer processing, with regard to the authorization process for the transfer of dual use goods to Russia.
- A world leader in the field of nuclear medicine, in relation to a transaction with Iran concerning goods for medical purposes.
- One of the largest global suppliers of equipment and plants to the metal industry on compliance matters related to logistics and shipping services on a worldwide basis
- A European leader in central climate control systems on export control matters, including a proceeding with the Italian Ministry of Economic Development.
- An Italian company inserted by OFAC in a black-list in its capacity as entity participated by the Government of Iran, on the requirements provided under the laws of the United States for its de-listing.
- One of Italy’s biggest largest banking group, in relation to allegations of violations to Law No. 185/1990.