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地缘政治日益复杂：如何应对“一带一路”国家的OFAC制裁风险？

June 30, 2020

by Catherine X. Pan-Giordano and Karen Yiqin Fan

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2019年12月9日，国际反腐败日的当天，美国财政部下属的海外资产控制办公室（OFAC）1 宣布对若干位于东欧和东南亚的个人采取经济制裁行动。此次行动的法律依据是《全球马格尼茨基人权问责法案》（Global Magnitsky Human Rights Accountability Act）和美国总统特朗普第13818号行政命令授权，OFAC以违反人权和涉嫌严重腐败为由，将拉脱维亚文茨皮尔斯市前市长Aivars Lembergs、柬埔寨前政府官员Try Pheap以及柬埔寨前皇家武装部队军官Kun Kim列入“特别指定国民和禁止人员名单”（Specially Designated Nationals and Blocked Persons List，“SDN名单”），对其实施经济制裁。与我们以往常常会听闻的国别类制裁不同，这次被OFAC制裁的对象均为个人，而且都是在其本国内有一定影响力的人物，其不同程度上直接或间接地参与在其本国内一些重大投资项目中。值得注意的是，OFAC针对这些个人采取的经济制裁，将不可避免地波及到与制裁对象有合作关系的商业伙伴，很可能严重影响其经济利益。另外，本次被制裁的个人均来自“一带一路”沿线国家。这也提醒我们：在当前地缘政治日益复杂的大环境下，中国企业在“一带一路”沿线国家开展经贸投资活动时，应着重注意对OFAC制裁风险的评估和管控。

1. 哪些“一带一路”沿线国家存在被OFAC采取经济制裁措施的风险？
OFAC目前实施的经济制裁项目可以大致分为两种类型：一是国别类制裁项目，包括全面制裁（如古巴、朝鲜、伊朗等）和部分制裁（如俄罗斯某些行业）；二是行为类制裁项目，例如，集团犯罪、生产销售毒品、反人权和严重腐败等，这类制裁是不分国别的。“一带一路”沿线国家中包括被列入国别类制裁目录的国家，2  例如：伊朗和俄罗斯。但是，理论上而言，“一带一路”所有沿线国家的个人或实体都有可能因其行为而被列入OFAC非国别类的制裁名单，譬如：即便拉脱维亚和柬埔寨本身并不在国别类制裁清单上，上述拉托维亚和柬埔寨的前政府官员们依然被列为制裁对象的，。因此，在评估OFAC制裁风险时，首先应确立的一个重要观念是：在任何“一带一路”沿线国家进行投资和经贸活动，都可能面临被卷入OFAC经济制裁的风险，切不可因为投资目标国不在国别类制裁的清单上而忽视其可能存在的OFAC制裁风险。

2. OFAC对拉脱维亚和柬埔寨个人施以非国别类制裁的理由是什么？
Global Magnitsky制裁属于行为类制裁项目，其适用于任何参与和共谋严重侵犯人权行为的外国个人、或者具有腐败行为的现任和离任外国政府官员，包括该政府官员的代表以及参与、协助转移违法所得财产的个人。Global Magnitsky制裁适用范围广泛，涵盖了政治人物、商人、军事和司法人员、牵涉有组织犯罪的人员，还包括这些人控制的实体。

拉脱维亚和柬埔寨的这几位个人都是因其存在违反人权和腐败行为而受到“Global Magnitsky制裁”。具体而言，Aivars Lembergs系拉脱维亚文茨皮尔斯市前市长，他被认为：通过其政党和其他政府官员控制众多实体并利用这些实体谋求私人经济利益，他还操作政府人员任命、培养亲信保护其私人利益。而柬埔寨前政府官员Try Pheap则被认为：利用其在柬埔寨的政府权力、军方保护建立了庞大的非法伐木集团。比如，Pheap利用军队向来自越南、中国、欧洲和俄罗斯的买家走私木材。Kun Kim系柬埔寨前皇家武装部队军官，他被认为曾指使柬埔寨皇家武装部队军人利用职权和暴力征用、夺取土地出售给买家。这三位个人被列入制裁清单的同事，他们控制的众多实体以及Kun Kim的个别家庭成员，也同时被列入了制裁名单。

除了上述拉脱维亚和柬埔寨几位前任高官的例子，美国总统特朗普还曾于2017年12月20日签署第13818号行政命令，对13名外国人适用Global Magnitsky制裁，并授权美国财政部牵头、并联合美国国务院和司法部三方协商实施Global Magnitsky制裁。于是，2017年12月21日，OFAC又对与前述13名外国人有关联的其他39名个人和实体实施Global Magnitsky制裁。

3. 由谁来决定哪些个人应被列入Global Magnitsky制裁名单？
Global Magnitsky制裁由美国财政部牵头、并联合美国国务院和司法部三方协商实施。操作层面，具体由OFAC负责评估和实施Global Magnitsky制裁。OFAC有法律义务审查由美国国会委员会、其他国家/非政府组织提供的关于某个人或实体应受到经济制裁的证据。OFAC应在120天内决定是否基于美国国会委员会提供的证据实施制裁，例如众议院外交事务委员会。但OFAC没有义务必须回复由非政府组织提供的证据。

美国法律规定适用Global Magnitsky制裁必须基于“可信证据”（“Credible Evidence”），还规定美国财政部可以基于显示受制裁方无辜的证据、受制裁方受到他国政府公诉、受制裁方的悔过行为以及基于美国国家安全利益需要而终止制裁。需要注意的是，是否有“可信的证据”证明制裁是合理的，将由OFAC的行政裁量权决定。如果被制裁主体想要对OFAC的制裁决定进行申诉，其必须首先寻求美国财政部的行政审查。

总之，Global Magnitsky制裁代表着美国经济制裁体系的重大变化。相较于过去强调美国国家安全和打击恐怖主义，Global Magnitsky制裁将美国经济制裁适用到更广泛的人权保护和反腐败领域。即使对于美国传统的海外反腐败领域，Global Magnitsky制裁也通过经济制裁措施进一步扩大了美国法律的影响范围，例如，美国的FCPA海外反腐败法律一般性并不适用于收取贿赂的人，而Global Magnitsky制裁对于腐败行为的定义非常宽泛，既包括支付贿赂行为还包括收取贿赂行为。再例如，Global Magnitsky制裁并不需要FCPA要求的司法连接点（Jurisdictional Nexus），Global Magnitsky制裁通过行政手段直接针对海外腐败行为实施经济制裁。

4. OFAC对个人施加的非国别类经济制裁的具体处罚措施有哪些？
OFAC会将被制裁个人列入SDN名单，由此禁止任何美国人以及美国金融系统与被制裁个人、其拥有的财产、及其拥有50%及以上控制权的实体发生任何交易。OFAC制裁对个人的处罚措施还可以包括，以Global Magnitsky制裁为例：（1）不能获得美国入境签证；（2）撤销其现有的美国签证；（3）冻结其受美国管辖的财产，包括被制裁主体拥有50%或以上控制权的实体的资产；和（4）禁止受制裁的个人从受美国管辖的交易中获利。

其次，即使非美国人与被制裁个人发生与美国无关的交易，OFAC也可以根据其自由裁量权以“提供重要帮助”为由将该非美国人列入SDN名单。因此，由于OFAC可以对参与非美国交易的非美国主体具有侵略性地适用经济制裁，全球各大银行和金融机构都会主动避免与SDN名单上的个人、其控制的财产和实体发生交易，避免为其提供服务。根据美国财政部网站公布的合规指引，如果某银行发现SDN名单上的主体会发生收款或正在进行交易，银行可以经内部核查后直接拨打OFAC热线电话进行举报。被制裁个人将会面临全面危机，没有人会与其进行交易，其跨境美元支付将受到阻碍，并且其商誉将严重受损。

5. 中国企业在“一带一路”国家面临的OFAC制裁风险有哪些？
由于OFAC适用经济制裁的侵略性，中国企业在“一带一路”项目中如果不是特别谨慎的话，就有可能被OFAC认为对被制裁主体的严重腐败和反人权行为“提供重要帮助”，因而中国企业也可能被列为制裁对象。被列入SDN名单的中国企业将会直接面对上述第4点中被制裁主体可能面对的一系列处罚措施和严重后果。另外，中国企业与被制裁主体共同设立的合资公司本身也可能被列为制裁对象，如果该合资公司50%以上的控制权由被制裁主体控制。那么中国企业在合作公司中的利益就会受到经济制裁。

6. 中国企业在“一带一路”国家投资、进行贸易或提供服务，如何防范OFAC制裁的风险？
在美国经济制裁日益广泛且严厉的情况下，中国企业首先应保持高度的风险意识，做好充分准备防范OFAC制裁风险。为此，我们总结了以下几方面经验，供您参考。

首先，加强尽职调查，防患于未然。为了避免与被制裁主体发生交易，企业必须对目标国家进行OFAC制裁项目调查。更重要的是，企业还需要对交易对方的所有客户、供应商和商业伙伴及其受益所有人进行尽职调查。尽职调查必须重点着眼于“受益所有人”，以避免与被制裁主体个人拥有50%或以上控制权的实体进行交易。日常经营中，对于海外销售和海外业务，企业应重视客户和供应商背景调查，这对防范OFAC风险具有重要意义。

其次，“一带一路”国家合作伙伴丰富的“本地资源”可能是把双刃剑。企业开展海外投资项目往往会与当地拥有丰富政商资源的合作伙伴合作。而这些合作伙伴的“本地资源”很可能会被认为属于权利滥用和腐败。所以，企业在选择投资标的国的合作伙伴时，应有意识地从OFAC风险防范的角度，对合作伙伴进行评估，对与之合作可能会面临的潜在经济影响进行量化和管控。

最后，中国企业在“一带一路”国家的贸易和运营中应重视反腐败合规工作。如前所述，OFAC经济制裁已经将腐败行为纳入适用范畴。腐败行为包括传统意义上的收受贿赂、也还包括利用职权谋取不法利益。因此，加强内部反腐败合规制度的制定和执行也是OFAC风险防控的重要环节。

7. 中国企业如果卷入OFAC制裁风波，甚至被列入OFAC制裁名单，有哪些行政或司法救济途径？
第一，向OFAC提起申诉。任何被OFAC列入SDN名单的个人和实体都有权向OFAC提出书面复议请求，要求OFAC将其从SDN名单移除。第二，向美国法院起诉OFAC。如果OFAC否决了除名申请，行政程序途径用尽之后，该个人或实体可以向美国联邦法院起诉，要求法院通过司法程序审查OFAC的行政决定。

1 美国财政部下属的海外资产控制办公室（OFAC）是美国实施经济制裁的主要政府部门之一，其根据美国法律和总统行政命令授权，对国家以及个人采取经济制裁行动。
2 http://www.chinagoabroad.com/zh/article/23525 

 

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Overview On September 25, 2026, the U.S. Environmental Protection Agency (“EPA”) published a final rule that significantly limits the ability of third parties to use the Clean Air Act (“CAA”) Title V permitting process to revisit New Source Review (“NSR”) permitting decisions years after those decisions were made. The rule establishes that NSR permitting determinations generally must be challenged during the original permitting proceeding, thereby providing regulated sources with greater permitting certainty and finality for major capital projects. Published in the Federal Register titled Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program (Docket ID No. EPA-HQ-OAR-2023-0401), the rule amends 40 C.F.R. Parts 70 and 71 to codify EPA’s interpretation regarding when requirements established under other CAA programs may be reviewed, modified, or implemented through the Title V operating permit program. The rule becomes effective 30 days after publication. The rule addresses two principal issues: (1) the relationship between NSR preconstruction permitting and Title V operating permits, and (2) the treatment of the General Duty Clause under CAA section 112(r)(1). Most significantly, the rule provides greater certainty for sources navigating the NSR permitting process. EPA’s amendments are intended to ensure that NSR permitting decisions made through an approved public process are generally not revisited later through Title V permit proceedings. The rule responds to a circuit split between the U.S. Courts of Appeals for the Fifth and Tenth Circuits. In Environmental Integrity Project v. EPA, 969 F.3d 529 (5th Cir. 2020), the Fifth Circuit upheld EPA’s interpretation, concluding that it was consistent with the text, structure, and purpose of Title V. In contrast, the Tenth Circuit reached the opposite conclusion in Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020), finding that the then-existing regulatory definition of “applicable requirement” did not support EPA’s position. By amending the regulatory language on which the Tenth Circuit relied and codifying the interpretation approved by the Fifth Circuit, EPA has established a nationwide framework governing the interaction between NSR and Title V. NSR and Title V: EPA Establishes a Uniform Nationwide Framework At the core of the rule is EPA’s effort to define the respective roles of NSR and Title V. The rule codifies the approach EPA has applied since 2017: once a source obtains an NSR permit under an EPA-approved permitting program, and that permit was issued following public notice with an opportunity for comment and judicial review, the permit establishes the NSR-related “applicable requirements” of the State Implementation Plan (“SIP”) or Federal Implementation Plan (“FIP”) for Title V purposes. Under this framework, Title V is not a vehicle for re-examining underlying NSR permitting decisions. EPA does not intend to use the Title V process to revisit applicability determinations, emissions calculations, control technology determinations, permit conditions, or other issues resolved through the NSR permitting process. This principle applies regardless of the stage of the Title V proceeding; whether the NSR permit was issued pursuant to a SIP or FIP; the type of NSR issue involved; or whether the NSR permit is incorporated into Title V sequentially or concurrently. Limited Exceptions EPA recognizes several circumstances in which NSR issues may still be reviewed through the Title V program: No NSR permit was issued at all; The permit was issued without public notice and an opportunity for comment and judicial review; or The issue involves substantive overlap between Title V and NSR requirements, such as the adequacy of monitoring provisions. As a result, the rule does not insulate unpermitted projects or foreclose review of matters that independently arise under Title V. Key Regulatory Amendments The rule revises the definition of “applicable requirement” in 40 C.F.R. §§ 70.2 and 71.2. Paragraph (1): Where an NSR permit is issued with public notice and an opportunity for comment and judicial review, the permit establishes and defines the applicable SIP or FIP requirements for Title V purposes. Paragraph (2): All NSR permit terms, including terms contained in minor NSR permits, constitute applicable requirements that must be incorporated into Title V permits. Paragraph (4): CAA section 112(r)(1) (the General Duty Clause) is expressly excluded from the definition of “applicable requirement,” while section 112(r)(7) Risk Management Program requirements remain included. EPA also amended 40 C.F.R. §§ 70.8 and 70.12 to clarify that alleged defects in requirements established outside the Title V process generally do not provide a basis for EPA objection to a Title V permit or for a Title V citizen petition. General Duty Clause Exclusion The rule also codifies EPA’s longstanding position that the General Duty Clause in CAA section 112(r)(1) is not an “applicable requirement” for Title V purposes. EPA points to several considerations supporting that conclusion, including the distinction between the General Duty Clause and Title V permit terms, the provision’s origins in the Occupational Safety and Health Act’s general duty clause, and the different enforcement structures applicable to the General Duty Clause and Title V permit requirements. Importantly, excluding section 112(r)(1) from the definition of “applicable requirement” does not eliminate EPA’s authority to enforce the General Duty Clause independently of the Title V program. The final rule instead clarifies that the General Duty Clause need not—and should not—be incorporated into Title V permits as an applicable requirement. Practical Implications for Regulated Sources Greater Finality for NSR Permits  For projects requiring PSD, nonattainment NSR, or minor NSR permits, the permitting process becomes the primary forum for resolving disputes regarding applicability determinations, emissions calculations, control technology requirements, offsets, and permit conditions. Once an NSR permit is issued through a qualifying public process, regulated sources should face substantially reduced risk that those same issues will be challenged years later through Title V permit proceedings. Reduced Risk of Collateral Permit Challenges Stakeholders have sometimes sought to use Title V permit issuance, renewal, revision, or citizen-petition proceedings to challenge underlying NSR determinations. The final rule makes clear that Title V is not the appropriate vehicle for challenging whether an applicable requirement was correctly established in the first instance. This should reduce the risk of permit delays and uncertainty associated with collateral challenges to previously issued NSR permits. The rule does not, however, eliminate all Title V challenges relating to an NSR permit. Challenges concerning the Title V permit itself—including whether it appropriately incorporates applicable requirements or contains adequate compliance provisions—remain possible. Increased Importance of the Initial NSR Proceeding Because Title V generally will not provide a second opportunity to challenge the substantive validity of an NSR determination, the administrative record developed during the NSR process becomes increasingly important. Permit applicants should ensure that applicability analyses, emissions calculations, control technology evaluations, modeling demonstrations, and supporting technical documentation are thoroughly developed during the original permitting proceeding. For significant projects, applicants may therefore have an additional incentive to identify and resolve potential permitting issues before the NSR permit is issued rather than assuming that unresolved issues can be addressed during a subsequent Title V proceeding. Potential Incentive for Broader Public Participation EPA also notes that permitting authorities may choose to provide public notice and an opportunity for comment for a broader range of NSR permits because permits issued through a qualifying public process receive the benefit of the finality framework established by the rule. Some permitting authorities may conclude that greater public participation at the NSR stage is preferable to uncertainty during subsequent Title V proceedings. Conclusion The final rule is principally a permitting-certainty measure. For sources that obtain NSR permits through a public process, EPA has substantially limited the ability of third parties to revisit underlying NSR determinations through the Title V program. As a result, regulated entities should benefit from greater finality regarding key permitting decisions, reduced risk of collateral permit challenges, and increased certainty when planning and implementing capital projects.

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SEC Proposes Expansion of Investment Adviser Performance-Based Compensation Rule

On September 30, 2026, the Securities and Exchange Commission (the “SEC”) proposed amendments to Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), which provides an exemption from the general prohibition under Section 205(a)(1) of the Advisers Act on registered investment advisers receiving performance-based compensation (the “Proposal”) so long as performance-based compensation is limited to “qualified clients”.1 Most notably for private fund sponsors, the Proposal would expand the definition of “qualified client” to include any investors that satisfy the “accredited investor” definition under Regulation D. The Proposal may also have implications for private fund managers that rely on exemptions from investment adviser registration under state law because certain state-level investment adviser registration exemptions incorporate or otherwise reference the federal qualified client definition. Expansion of the Qualified Client Definition Under the current Rule 205-3, an investor generally may qualify as a qualified client if, among other alternatives, the investor has at least $1.4 million under management with the adviser or has a net worth exceeding $2.7 million. These thresholds are higher than the financial thresholds applicable to many accredited investors under Regulation D. As a result, an investor may currently qualify as an accredited investor for purposes of investing in a private offering without qualifying as a qualified client for purposes of paying performance-based compensation. The Proposal would expand the qualified client definition to include any natural person or legal entity investor that satisfies the accredited investor definition under Regulation D. The Proposal would also remove the assets under management and net worth thresholds under the current Rule 205-3 qualified client test. For private funds relying on Section 3(c)(1) of the Investment Company Act of 1940, this change could reduce the need to apply a separate qualified client standard to investors that already qualify as accredited investors. Dorsey Observations and Next Steps If adopted as proposed, the expanded qualified client definition could be particularly significant for private fund managers. Most private fund offerings are already limited to accredited investors under Regulation D. However, the Proposal could expand the pool of prospective investors available to emerging private fund managers while reducing the regulatory burden associated with complying with Rule 205-3. The Proposal could also benefit advisers operating below the SEC registration threshold that rely on a state private fund adviser exemption. A number of states have adopted exemptions modeled on the North American Securities Administrators Association (“NASAA”) private fund adviser exemption, which may condition relief for advisers to certain funds relying on Section 3(c)(1) on each beneficial owner satisfying the federal qualified client definition. However, state requirements vary, and any effect of the Proposal would depend on the text of the applicable state exemption and how it incorporates Rule 205-3. Many emerging private fund managers may have a larger network of accredited investor relationships than qualified client relationships during the early stages of their investment advisory business. Currently, under Rule 205-3, private fund managers may receive performance-based compensation from investors who do not satisfy the qualified client definition if those investors were admitted to their private funds prior to registration with the SEC. Following registration with the SEC, however, managers may continue to permit investors that are not qualified clients to invest in future private funds but may not receive performance-based compensation from those investors with respect to such investments. In addition, because the net worth and assets under management thresholds for qualified client status are adjusted for inflation every five years, the pool of qualified client investors may diminish over time as previously eligible investors no longer satisfy the applicable thresholds. The Proposal could provide the dual benefit of greater flexibility for private fund managers to establish and maintain relationships with accredited investors as their businesses scale and they become registered with the SEC, and greater flexibility for certain accredited investors to participate in investment strategies that historically have been restricted to much larger institutional investors. Unless and until the Proposal is adopted, investment advisers should continue to comply with the existing qualified client requirements. If the Proposal is adopted, private fund sponsors should consider whether corresponding changes are appropriate for their subscription documents, investor questionnaires, and other offering materials. Advisers that are state-registered or rely on a state-level exemption should also consult the laws and regulations of each relevant jurisdiction before changing investor eligibility standards or performance-based compensation practices, because adoption of the federal amendments may not automatically modify state requirements. Comments on the Proposal will be due 60 days after publication in the Federal Register. 1 Investment Adviser Performance-Based Compensation Modernization, Investment Advisers Act Release No. IA-7022 (Sept. 30, 2026), available at https://www.sec.gov/rules-regulations/2026/09/s7-2026-28#33-11443proposed.

Regulatory Affairs Partner Randy Dann Joins Dorsey

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Regulatory Affairs Partner Randy Dann Joins Dorsey