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ICC Banking Commission - Use of Sanctions Clauses in Trade Finance

Following the escalation of sanctions on Russian businesses, individuals and financial institutions over the past few days, ICC has taken the decision to reissue the previous ICC guidance on the use of sanctions clauses in documentary credits in consolidated form.

 

To reiterate our core guidance:

Sanctions law and regulations are generally mandatory, and thus may override the ICC rules applicable to that instrument. As such, the addition of a clause, stating the bank’s commitment to respect such sanctions law or regulation applicable to it by law may be unnecessary and lead to confusion.

Nevertheless, in circumstances where a bank determines it wants to include a sanctions clause in a documentary instrument, it is recommended that the clause should be drafted in clear terms, restrictively, to limit the reference only to mandatory law applicable to the bank, and not be extended beyond that. Banks may refer to the addendum in the consolidated guidance for the drafting guidance which is combined with the guidance paper and available in the above page.

It is further reiterated that banks should refrain from issuing trade finance-related instruments that include sanctions clauses that purport to impose restrictions beyond, or conflict with, the applicable statutory or regulatory requirements. It is also advisable for practitioners to be aware of the risks posed by such clauses if included by other banks involved in their transactions, and be prepared to reject such clauses where it brings to question, the irrevocable, independent nature of the credit, demand guarantee or counter-guarantee, the certainty of payment or the intent to honor obligations.

 

Further guidance/capacity building 

ICC is committed to supporting the market in navigating the challenges posed to legitimate trade by the recent sanctions escalation, and will consider further interventions, as appropriate, to ensure that any and all new instruments are implemented in the most efficient manner possible.

To further support the market, the ICC Academy’s introductory course on compliance will be made available free of charge to ICC members throughout March.

ICC has unveiled the newest contribution to its tools to help business stamp out corruption: the 2022 edition of the ICC Whistleblowing Guidelines

Providing practical guidance to help enterprises establish and implement a Whistleblowing Management System, the guidelines are an update of the ICC Guidelines on Whistleblowing published in 2008, incorporating current experience and practice of ICC member enterprises across a wide range of sectors and jurisdictions worldwide. The 2022 edition also aligns with key international legal instruments as well as global standards and best practice such as the 2021 ISO 37002 Guidelines on Whistleblowing Management Systems and the 2019 European Directive on Whistleblower Protection, which is now being implemented by governments across Europe.

 

Viviane Schiavi, Global Policy Lead – Anti-corruption and Corporate Responsibility, emphasised that “a well-functioning and trusted Whistleblowing Management System supports enterprise objectives for sound risk management, internal control and effective compliance, and promotes a culture of transparency and accountability. It enables reporting through organised communication channels set out by the enterprise to ensure that concerns of wrongdoing swiftly reach those that are most able to investigate the matter and are empowered to remedy it.”

 

As employees are often the first to recognise a potential wrongdoing or risk of harm, they are valuable sources of information and well placed to help resolve a potential problem early on before it causes damage to the enterprise and society.

The ICC guidelines make clear that there is no “one-size-fits-all” solution and that the Whistleblowing Management System must be made part of the cultural environment and the governance of the enterprise.

 

Underscoring that non-retaliation against the whistleblower is the bedrock for an effective and trusted whistleblowing system, the guidelines help enterprises to evaluate whether to allow anonymous reporting, whether to accept reporting by third parties and/or the general public, and other criteria.

 

Hema Lehocky, Co-Chair of the ICC Working Group on Whistleblowing Guidelines and Chief Ethics and Compliance Officer at AFRY said: “A Whistleblowing Management System cannot work in isolation; it must be part of continuous efforts to build a strong foundation of ethics that encourages employees to speak up. Enterprises today are measured by how they deal with whistleblowers and how well they handle reports and concerns that are brought to their attention.”

 

Manuel Castelo Branco, Co-Chair of the ICC Working Group on Whistleblowing Guidelines and Counsel with Linklaters said: “The new edition of the ICC Whistleblowing Guidelines bolsters ICC’s crucial role on corporate compliance and is a concrete tool to help enterprises create a culture of integrity.”

 

The integrity tool reflects ICC’s commitment to supporting greater implementation of the United Nations Convention against Corruption (UNCAC) and delivers a concrete response to calls from G20 leaders for increased transparency and accountability in the face of the global pandemic crisis, set out in their G20 2022 – 2024 Anti-corruption Action Plan.   

 

The ICC Whistleblowing Guidelines are applicable for enterprises of all sizes and sectors, private or public. Developed by business, for business, they are unique in comprising up-to-date guidance on setting up whistleblowing systems.

The guidelines were drafted by experts of the ICC Global Corporate Responsibility and Anti-Corruption Commission that groups over 400 business leaders from all sectors in over 40 countries worldwide.

 

Download the Guidelines

ICC Statement on Russia – Ukraine Conflict 

Following the Russian incursion into Ukraine on 24 February, the International Chamber of Commerce has issued the following statement on behalf of the global business community.

 

ICC Secretary General John W.H. Denton AO said:

 

“As an organization founded to promote peace and prosperity by advancing international trade and the rule of law, we condemn Russia’s breach of international law in the strongest possible terms. We call on Russia to immediately cease military action, withdraw its forces from Ukraine and revert to diplomatic means."

 

“Russia’s invasion of Ukraine will undoubtedly have significant repercussions for global supply chains in the weeks and months ahead. The likely impact on energy and food markets is already well known – but we also see a deeper risk of disruption to manufacturing globally across a broad range of sectors."

 

“Setting aside the effect of sanctions, there’s a heavy risk that the production of semiconductors, automobiles and medicines will be severely impacted by the disruption of legitimate business activities in Ukraine – which, in recent years, have become a key supplier of essential metals and raw materials into global value chains.”

 

“We recognize that governments will inevitably move to tighten sanctions on Russia following this morning’s events. We urge the G7 to ensure that any such measures are carefully and closely coordinated. And, moreover, urge all governments to work with their local businesses to identify means to mitigate the risks of supply chain disruptions from all and any necessary measures to resolve the crisis in Ukraine.”  

 

We closely follow all developments in Ukraine and are in contact with ICC Ukraine. Should you have any questions, you can contact our Secretary General Thomas Pletscher directly (This email address is being protected from spambots. You need JavaScript enabled to view it.).

ICC Commission Report

Leveraging Technology for Fair, Effective and Efficient International Arbitration Proceedings

Global Launch | Friday 18 February 2022 | 15h CET

The Report will be presented by Working Group Lead Stephanie Cohen, along with members of the Working Group.

commission report launch 

IP

New Appointments in ICC Global Intellectual Property Commission

ICC has announced six appointments to lead the work of its Global Intellectual Property (IP) Commission. The Steering Committee of the IP Commission has been joined by new vice-chairs, among them Myrtha Hurtado Rivas with Nestlé, Switzerland.

 

Hurtdao Rivas

 

The new appointments will bring significant experience and leading voices in the business community to the Commission’s leadership, from a diverse range of industries, and with increased representation in key regions, with the creation of a new Regional Representative for Africa.

U.S. Sanctions on Companies from Iran as Parties in ICC Arbitration Cases

ICC Switzerland has addressed the issue of sanctions and arbitration in a number of ways, including organizing a seminar with the leading arbitral institutions and the competent U.S. authority OFAC in 2015. Due to sanctions policies and compliance requirements, banks could not make payments to arbitral institutions and arbitrators if one or more parties had a connection to a sanctioned country. According to ICC Switzerland, this resulted in an unacceptable denial of access to justice, a fundamental right of all actors in the market. Finding a solution in the case of ICC dispute resolution is even more complicated, as various regulatory and supervisory authorities are involved.

 

We are pleased to announce today that a targeted solution has been found and that the ICC Court has the capability to administer payments in arbitrations involving Iran.

 

In October 2021, the U.S. Office of Foreign Assets Control (OFAC) issued a special license to the ICC. Under this license, it is permitted to receive and process most payments in ICC arbitrations involving Iran. The ICC has communicated this special license to its banks and requested whether they would be willing to review their current internal policy of refusing to accept payments to or from Iranian or Iranian-related entities.

 

The ICC has received assurances from at least one of its banks that it is now able to process payments in arbitrations conducted under the ICC Arbitration Rules. ICC banks may request further information to ensure that these transactions are covered by the license. Nevertheless, there may be delays in payments. The ICC is taking all reasonable and necessary steps to ensure that the blocked cases can proceed without delay. 

 

This is an important step notably for the Swiss arbitration community and we are pleased that such ICC cases can now be handled. ICC Switzerland remains vigilant for this challenge.

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