Analysis
14 July 2019

Société Générale DPA for violations of Cuban embargo – manipulation of the law in global economic warfare

Bastille Day Newsletter 2019 - Enforcement / Court Decisions

 

Three months after agreeing to settle for 1.3 billion dollars in the Libyan and LIBOR case 1, Société Générale signed another Deferred Prosecution Agreement (“DPA”) on November 18, 2018, with the US Attorney’s Office of the Southern District of New York (“SDNY”) for Cuba’s embargo violation 2.

Extraterritorial application of U.S. laws on embargo

As a matter of international law, an embargo should apply only to nationals of the concerned State or the nationals of the States imposing the measure, who must refrain from any commercial exchange with the State or entities subject to the measure says the leading French legal publication 3. The general sentiment in France is that in the case concerning Société Générale, the US have gone beyond that principle.

Sanction of the French bank justified by the use of the U.S. trade system

Put in place in 1962, the embargo on Cuba prohibits in particular most imports and exports between the U.S. and Cuba and has been strengthened several times 4. As a unilateral decision, it is supposed to be applicable only to US nationals.

By stating however that Société Générale “engaged in a deliberate practice of concealing the Cuban nexus of U.S. dollar payments that were made in connection with those facilities5 the agreement enshrines the US dollar as the tool of one of the US’s exports.

In the Société Générale case, the French bank has been accused of having, from 2004 to 2010, granted payment facilities to Cuban entities and hidden transactions, that should they have been revealed, would have been prohibited by the Office of Foreign Assets Control (“OFAC”).

Nearly 2,500 transactions occurred and are presumed to have used the U.S. trade system, amounting to a total of 13 billion dollars. Most of these transactions financed oil purchases or sales between a Dutch trading company and the Cuban state-owned company with a monopoly on crude oil production and refining.

The investigations revealed that a majority of the transactions were put an end to in 2007 in fear of the US authorities, which were at that time investigating violations of the Iranian embargo in various companies.

European companies and French banks in particular, have already faced investigations by US authorities and this is not the first time that such a fine is imposed. On June 30, 2014, BNP Paribas accepted to pay a 8.9 billion fine for violation of the U.S. embargoes on Cuba, Sudan and Iran 6 and in October 2015, Crédit Agricole, faced with similar charges, negotiated a 787 million dollar deal 7.

Economic and legal battle

More recently, on May 2, 2019, the US government reactivated Title III of the Helms-Burton Act, passed in 1996 but never implemented 8, paving the way for claims to be brought before US courts by US nationals against foreign persons and entities that have made profits by trading with nationalized Cuban companies.

This law enables proceedings to be brought against any foreign company (including European and Canadian) that manage business in Cuba – from hotel and tourist venues to rum distilleries and cigar factories 9.

At the announcement of this DPA and considering the application of unilateral measures against Cuba running contrary to international law, the EU has decided to react and threatens to bring the case before the World Trade Organization – marking a short-lived attempt at a recast of the global economic and legal landscape 10.

Related content

Analysis
6 May 2024
Overview of the future European Anti-Money Laundering Authority
The new Authority for Anti-Money Laundering and Countering the Financing of Terrorism will be based in Frankfurt and shall start...
Publication
27 February 2024
New sustainability reporting obligations in France: what’s new?
Navacelle contributes to The Legal Industry Reviews' fifth edition about the transposition of the Corporate Sustainability Reporting Directive (CSRD) in...
Publication
The discreet ramping up of environmental criminal law
5 December 2023
The discreet ramping up of environmental criminal law
Navacelle contributes to The Legal Industry Reviews' fourth edition about recent gradual application of environmental criminal law in France, with...
Press review
24 May 2024
Press review – Week of 20 May 2024
This week, the press review covers the fine imposed on bank company N26, the trial of EDF and its former...
Press review
17 May 2024
Press review – Week of 13 May 2024
This week, the press review covers the death of Renaud Van Ruymbeke, the conviction of former Mayor of Toulon for...
Event
16 May 2024
Anticorruption initiatives in Latin America: Lessons from the last decade (webinar)
To contribute to the Latin America and Caribbean Weeks event, organised by the French Ministry of Europe and Foreign Affairs...
Publication
14 May 2024
LIR 6th Edition : Focus on ADP INGENIERIE and SEVES Group/SEDIVER CJIPs
Navacelle contributes to The Legal Industry Reviews' sixth edition, focusing on the last two CJIPs (kind of French DPAs) concluded....
Press review
3 May 2024
Press review – Week of 29 April 2024
This week's press review focuses on the indictments of Arnaud Lagardère for misuse of company assets and abuse of power,...
Press review
26 April 2024
Press review – Week of 22 April 2024
This week, the press review covers the European Parliament’s adoption of the Corporate Sustainability Due Diligence Directive, the definitive conviction...
Video
25 April 2024
Webinar: Economic Sanctions Law – Similarities and Differences between the U.S. and French Approach
Roxane Castro has been invited by the Philadelphia Chapter of the French American Chamber of Commerce (FACC Philadelphia) and Buchanan...
Analysis
22 April 2024
Focus on the CJIPs respectively concluded at the end 2023 by ADP Ingénierie and SEVES...
By approving the CJIPs signed between the National financial prosecutor’s office (procureur national financier - PNF) as well as ADP...
Press review
19 April 2024
Press review – Week of 15 April 2024
This week, the press review covers the publication of TRACFIN’s 2023 report on professionals’ suspicious transaction reports, the decision of...
Analysis
16 April 2024
The AFA’s new practical guide to corporate sponsorship operations
On 26 March 2024, the French Anti-Corruption Agency (“AFA”) published its new practical guide to securing patronage and sponsorship operations.
Analysis
16 April 2024
Overview of the “anti-gift” procedure applicable to actors operating in the health sector in the...
The “anti-gift” procedure provided by the French public health code prohibits actors operating in the health sector, except for some...