In a recent development, significant light has been shed on the concept of “control” within the realm of UK sanctions. The English Court of Appeal’s judgment on Mints & others v PJSC National Bank Trust & PJSC Bank Otkritie Financial Corporation [2023] EWCA Civ 1132 (“Mints”) on 6 October 2023 involves pivotal considerations for concepts under the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA”) and the ancillary sanctions regulations, primarily the Russia (Sanctions) (EU Exit) Regulations 2019 (the “Regulations”).
Key issues broached during these proceedings include the interpretation of “ownership” and “control” of a sanctioned person’s property, the meaning of “making economic resources available” to a sanctioned person, and the notion of “knowingly” participating in circumvention attempts of the sanctions listed under SAMLA.
In Mints’ case, the key focus was the nature of “control”, a term frequently utilised but often open to many interpretations. The court took an expansive view and deduced that “control”, as per the Regulations, transcends mere legal control. It extends over areas where a person can exercise power and influence. Hence, one need not legally own an entity or property to exert “control” over it. In this context, the court’s interpretation has substantial implications for corporations and legal firms engaged in navigating sanctions regulations.
The “Mints” judgment underscores the multifaceted nature of “control”, asserting that the determination of “control” hinges on the existing circumstances rather than rigid statutory interpretation. This fact emphasizes the sanctions landscape’s inherent complexity, necessitating astute legal acumen for its navigation.
Given these findings, it is incumbent upon firms to approach the concept of “control” within sanctions law with care and diligence. Legal experts must stay abreast of evolving judicial determinations to avoid non-compliance and mitigate the potential risks associated with sanctions penalties.