Russian sanctions: Six things every GP should know

The reach of US sanctions on non-US portfolio companies are among the key aspects of new sanctions against Russia, write Debevoise & Plimpton lawyers Alan Kartashkin, Matthew Howard Getz and Robert Dura.

Compliance with sanctions regimes has become a hot topic this year as the rapid expansion of sanctions against Russia, a country well-integrated into the global economy, coincides with aggressive enforcement and the imposition of a record-setting penalty against BNP Paribas. Here, we provide a quick primer for private equity firms and their portfolio companies to help them understand key aspects of the new sanctions against Russia and the steps they can take to mitigate potential risks.  

1. Sanctions against Russia are complex and expanding

Beginning in March 2014, the US and the European Union have imposed progressively harsher sanctions on Russia in response to events in Ukraine. Both the US and the European Union have attempted to tailor their sanctions regimes in a manner that recognizes Russia’s interconnectedness with the global economy. This tailoring has created complexity, which presents its own set of compliance challenges for many firms. A quick breakdown on some key sanctions:

Blocking sanctions:The US and European Union maintain “blocking” sanctions, which prohibit most business dealings by US and EU companies and persons (including USprivate equity firms and funds and their US portfolio companies), and in some cases their affiliates, with a large number of Russian government officials, businessmen and companies.

Financing and capital markets restrictions: The US and European Union have also instituted so-called “sectoral” sanctions, targeting certain Russian financial, defense and energy companies.  These sectoral sanctions restrict US and EU companies and persons from providing long-term financing to, or dealing in new long-term debt instruments (including loans) of, designated companies and, in some cases, dealing in new equity of designated companies. For this purpose “long-term” debt is debt payable more than 30 days (or more than 90 days) in the future (depending on the company and the circumstances).

Oil-related restrictions: US and EU companies and persons are also prohibited from providing many goods and services to support most Russian oil exploration or production projects. 

2. US sanctions can apply to non-US portfolio companies

US private equity firms may not be aware that a non-US portfolio company is also required to comply with US sanctions if the private equity firm or fund is deemed to control the management of the portfolio company. In such cases, the private equity firm or fund could face liability for sanctions violations by the portfolio company. And while many US private equity firms have in place sanctions compliance programs, their non-US portfolio companies may not.

3. Risk assessment is key

Private equity firms should monitor sanctions developments and conduct regular risk assessments with respect to their operations, both at the fund level and at their portfolio companies. Sanctions on Russia substantially increase compliance risks faced by US and EU companies because, unlike many more “traditional” sanctions targets, Russian companies are frequent counterparties to US and EU companies, both within Russia and in international financial markets.

4. Due diligence is more important than ever

Private equity firms should conduct comprehensive sanctions-related due diligence when considering new investment opportunities or add on acquisitions. Among other things, private equity firms should ensure that they understand the ownership structures of their counterparties. Under both US and EU sanctions regimes, prohibitions and restrictions apply not only to listed Russian companies and persons but also, in many cases, to entities that may be owned or controlled by sanctioned persons.  Know who you’re dealing with!

5. Employees and directors can be liable

Employees and directors of private equity firms or their portfolio companies may be held liable in their personal capacities for their violations of sanctions laws.

6. Compliance programs mitigate sanctions-related risks

In many cases, even an inadvertent violation of sanctions can result in significant penalties. However, regulators may give meaningful credit to firms that have in place good compliance programs, training and oversight. Firms should adopt risk-based sanctions compliance plans that provide appropriate controls for investor intake (e.g., screening potential fund investors (LPs) and co-investors against sanctions lists); encourage comprehensive sanctions-related due diligence on new investment opportunities pursued by the firm’s funds; and require, where appropriate, portfolio companies to implement compliance programs as well.

Alan Kartashkin is a partner in the Moscow office of Debevoise & Plimpton. Matthew Howard Getz is international counsel in the firm’s London office, and Robert Dura is an associate in the firm’s Washington, DC office. A version of this article originally appeared in the fall 2014 issue of the Debevoise & Plimpton Private Equity Report.