The recent and numerous penalties imposed by the Office of Foreign Assets Control (OFACThe new legislation has generated alarm and concern in many companies, especially due to the lack of knowledge regarding its scope and field of application.
The first thing to explain is that these sanctions may be applied by the United States Government provided that:
- the company is headquartered or has jurisdiction in the U.S.,
- when the company uses the U.S. financial system
- or when the company processes payments through commercial transactions with persons or companies sanctioned by OFAC.
It is for the foregoing reasons that the body itself, on May 2, 2019, as followspresented a "Framework for the Fulfillment of OFAC Commitments" (SCP's The text includes a series of recommendations for the design, implementation and periodic updating of programs where companies, through internal procedures and controls, are able to detect risk situations in advance in order to be able to react appropriately to them.
Compliance Programs address the need to implement and enforce good management protocols. that guarantee that the shareholders, administrators, managers and employees of an organization act in accordance with the laws applicable to their sector or area of service. In this way, an effective business model is achieved that allows mitigating the risks in the application of OFAC sanctions, and in many cases these programs achieve the exoneration of the criminal and civil liability of the company against third parties for infractions or crimes committed by its executives or employees.
The implementation of compliance programs within the company.
This is considered a favorable factor by OFAC. when determining whether or not to impose a sanction, becoming a fundamental element to be removed from the "OFAC list", and even a fundamental element to be removed from the OFAC list.s in the recent case of the Serenity Maritime Limited Companywho was sanctioned and included in the "OFAC black list" for shipping oil from Venezuela to Cuba. It was also blocked the vessel "Leon Días" which transported Venezuelan oil to Cuba. Following these sanctions, the company adopted Sanctions Compliance measures that resulted in the unblocking of all assets and all legal transactions between U.S. persons and Senerity.
At Alan Aldana & Abogados we recommend that in addition to complying with the specific regulations applicable to each branch or sector of your organization, you should manage an effective Compliance Program. That identifies the main dangers of the corporation in order to plan, prepare and anticipate an eventual legal contingency.
On the other hand, it is also important that those companies that already have a Compliance Program review and update it on a regular basis, especially when there are substantial changes in the rules and regulations applicable to each sector or when the company plans a modification or expansion of its corporate purpose.
