Crimea Sanctions Questions and Answers
Q1: What sanctions has the U.S./OFAC imposed on the Crimea Region?
The U.S. sanctions on the Crimea Region (“Crimea”) are broad and are comparable to the sanctions imposed on countries such as Iran, Sudan, or Syria. Specifically, the sanctions prohibit:
1. New investment in Crimea
2. The importation directly or indirectly, of any goods, services, or technology from Crimea;
3. The exportation, re-exportation, sale, or supply, directly or indirectly of any goods, services, or technology to Crimea; and
4. The approval, financing, facilitation, or guarantee of any prohibited activities or transactions
The sanctions also expand the categories under which persons may be blocked and listed on the Specially Designated Nationals List (“SDN”). All of those designated pursuant to the order will be placed on the SDN list, therefore screening against the SDN list will capture the individuals and entities with whom all transactions are prohibited.
Practically speaking, the sanctions impose broad restrictions on all US Persons, including AIG and its companies, and prohibit the provision of services (including insurance) to Crimea, those in or organized in Crimea, or those who are owned or controlled by those in or organized in Crimea. In order to comply with these sanctions, AIG must take specific steps to eliminate Crimea exposure, including cancelling some existing policies by February 1, 2015, as previously communicated on January 16, 2015. Further, although AIG is permitted to remit premium on cancelled policies up to January 31, 2015, it must NOT do so after that date.
Q2. What steps is AIG taking?
AIG businesses have been asked to identify cases of known or possible exposure to Crimea and to refer such cases to Corporate Compliance for review and advice concerning next steps. AIG may not provide insurance in or related to Crimea as of February 1, 2015. Where such exposures have been identified by AIG businesses, those businesses have been instructed to exit any existing policies and conclude all transactions relating to those policies before February 1, 2015.
Q3. The OFAC sanctions themselves do not refer to the provision of insurance or reinsurance services, so why is AIG affected by them?
As stated, above, the sanctions include prohibitions on the exportation, re-exportation, or provision of services to Crimea. This includes the provision of financial services, such as insurance.
If OFAC intended to exclude from such prohibitions any services, such as insurance or other financial services, then it would have done so explicitly. In other cases, OFAC has specifically exempted the provision of financial services from otherwise broad sanctions prohibitions. That it did not do so here underscores that financial services (including insurance services) are prohibited.
Q3. Are there any OFAC General Licences that would enable AIG to continue doing business in Crimea?
Not at this time. Although winding down of activities is permitted before February 1, 2015 pursuant to a General License, OFAC has not issued any other General License. As a result, Crimea is subject to comprehensive sanctions and no business may be transacted as of February 1, 2015, unless specifically authorized by OFAC.
Q4. What action must be taken with respect to insurance coverage involving Crimea? Must it be cancelled, or is there a ‘de minimis’ clearance process on which coverage can be maintained?
There is no ‘de minimis’ approach. If the coverage involving Crimea cannot be concluded prior to February 1 (such as by cancelling the policy or making clear to the policy holder that Crimea is no longer covered), then the business must block the Policy internally. When a policy is blocked, that means that no activity may be taken with respect to the coverage involving a sanctioned country or region. Premium must not be refunded after a Policy is blocked. If the Policy remains in force and the Crimea exposure is excluded from the cover, then a premium refund may be given provided this is carried out before February 1, 2015. As of February 1, no activity (including premium refunds) will be allowed involving Crimea exposure.
Q5. For an existing policy which includes an approved sanctions exclusion clause, are any steps necessary?
Where an existing policy contains an approved sanctions exclusion clause, the exclusion of Crimea under such a clause will automatically become operable under the definitions of the terms of such clause. No amendment to the policy is necessary. However, where the policyholder is known to have exposure to the Crimea Region, or may have exposure to Crimea Region, (e.g. through worldwide cover), then you should attempt to inform the policyholder that there is no longer any coverage for Crimea. Please make sure that the notification is given in writing such as by e-mail or letter. A copy of the communication should be kept in the underwriting file.
Below is a sample communication that businesses can issue to affected policyholders:
“We are writing to in you in connection with [Policy No. ]. Please note that on December 19th, 2014 the United States of America (through Executive Order 13685) imposed wide ranging sanctions against the Crimea Region of Ukraine. Your policy contains a sanctions exclusion clause. Due to the recent sanctions imposed by the US Government, the sanctions exclusion clause now excludes coverage for any activities involving the Crimea Region of Ukraine.
[We have identified Crimea exposure in your coverage, please note this exposure is no longer covered under this policy] [language in brackets to be supplemented according to type of coverage identified].
Q6. What should we do when a standard pre-approved sanction exclusion clause is in use and there is no exposure in Crimea? Do we need to advise the client Crimea is not covered?
Where there is an approved sanctions exclusion clause in place but no exposure to Crimea Region is found, then no further action is required. The business is free to advise a policy holder that Crimea is not covered, if it chooses to do so. Should any such conversation lead to determination that there is in fact Crimea coverage, then Corporate Compliance should be informed immediately.
Q7. What needs to be done about existing policies where there is no sanctions exclusions clause but there is also no known Crimea exposure? Do we need to amend the policy to exclude the Crimea from global coverage or only policies where there is known or potential exposure to Crimea?
It is always best practice to use a pre-approved sanction exclusion clause in all contracts. There is no requirement to amend the policy to exclude the Crimea Region or to specifically contact the policyholder where there is no known exposure. However, AIG cannot pay claims related to Crimea as of February 1, 2015. If any claim arises with Crimea exposure after this date, it must be escalated to Compliance immediately.
Q8. Are existing pre-approved sanctions exclusion clauses still appropriate for use for new policies going-forward?
Already approved sanction exclusion clauses are still appropriate for use, however for those clauses which specifically list prohibited countries, such as Cuba, Iran, Syria, and Sudan, the sanctions exclusion clauses should be updated to also add Crimea to such exclusion clauses.
Q9. What type of an analysis should be performed to identify existing Crimea risk for multinational programs that may have underlying policies in Russia or Ukraine?
For existing programs, underlying Russia and Ukraine policies will have to be monitored for claims to ensure that claims involving Crimea are identified and escalated per the OFAC Escalation Procedures. New policies issued in Russia and Ukraine should exclude Crimea from the coverage.
Q10. What standard wording should we use when advising an insured that we will no longer be covering risks in the Crimea?
See Q5 for sample language.
Q11. If AIG cannot provide cover to a client can we suggest alternative firms who may be able to provide cover?
No. OFAC prohibits not just direct activities with sanctioned parties but also facilitation of activities by others with such sanctioned parties. Facilitation is interpreted extremely broadly and extends to all manners of activities. Where sanctions would prohibit a particular business opportunity, it would also constitute a sanctions violation to refer such opportunity to another party. AIG is strictly prohibited from helping in any manner which could be deemed an attempt to avoid the application of or compliance with sanctions.
Q12. What is meant by “worldwide policy that contains Crimea exposure”?
A ‘worldwide’ policy is one that provides cover for a client globally, regardless of where the entity is registered or does business. This type of coverage should include a sanctions exclusion clause. If any global policies have been written for companies with operations in Crimea or that ship goods to Crimea, such a policy would have Crimea exposure.
Q13. With regards to Marine business, what communication can be used by Marine as there may be shipments to Crimea that we are not currently aware of and we may need to activate the sanctions clause.
Marine should ensure that any certificate or claim involving Crimea is identified. All certificates for shipments to Crimea should be rejected (if possible). If it is not possible to identify the shipment ahead of time, any claim involving Crimea should be blocked and escalated to Compliance for review.
If it is known that a customer has shipments to Crimea, or Ukraine and/or Russia they should be notified that those shipments involving Crimea are no longer covered pursuant to the sanctions exclusion clause.
Sample language:
We are writing to in you in connection with marine cargo policy [#] which specifies voyages to or from Ukraine [or Russia] as one of the covered voyage rou