It is now a year on since the historic Joint Comprehensive Plan of Action (JCPOA) between Iran and E3/EU+3. Although both the Iranian and the Western side of the deal have stood by their obligations, there remain serious concerns on the Iranian side as to overall economic and practical achievements of the JCPOA for Iran’s young and highly educated population. Failure of practical relief may call into question the effectiveness of the JCPOA and the practical removal of such widely imposed restrictive measures.
Although significant positive steps and measures have been implemented by both sides, and Iran offers tremendous opportunities in an unprecedented range of sectors,the rate of foreign investment into Iran has been lower than what Iran initially hoped for.
Apart from the political concerns of the upcoming presidential elections in the US and Iran, there are various other domestic factors which should be considered by foreign investors and could influence the attraction of direct foreign investment into Iran:
Banking and financial channels
Under the terms of the JCPOA, The Implementation Day on January 16, 2016 marked the effective lifting of the majority of restrictive EU measures and the US secondary sanctions (applicable to non-US persons and transactions taking place outside US jurisdiction). This was followed by detailed guidance from the OFAC of the Department of Treasury, in an attempt to ease the remaining concerns of foreign businesses to enter the Iranian market. However,banks and financial institutions remain hesitant to fully re-engage with Iran. While the deal was followed by historic delegations from various European countries leading to MoUs in various sectors ranging from oil and gas to infrastructure, aviation and telecommunications, few if any transactions have progressed, nor will they have any realistic chance of survival without the re-establishment of adequate banking channels with Iran.
There are strong deterrents for banks. The remaining US primary sanctions and USD restrictions prohibit any Iranian person or entity from conducting a transaction in USD, and the financial and reputational risks for banks remain significant. There are settlement agreements and deferred prosecutions between banks and US authorities by which many banks such as HSBC, Standard Chartered and BNP Paribas were subject to heavy fines (1.9bn for HSBC, $327mn for Standard Chartered and $8.9bn for BNP Paribas) as a result of breaching restrictions on providing services to Iranian individuals and entities.Additionally, there is a concern that the Iranian banking sector lacks a sufficient regulatory framework, to ensure compliance with international money laundering and other standards.
Due to the isolation of the market, appropriate legal and banking reforms and collaboration with Western service providers for training and education is needed to assist Iran in upgrading its domestic procedures to instil the necessary confidence in the market. Although Iran has implemented legal measures to combat money laundering and terrorist financing, the technical implementation may take longer and/or require significant support and assistance from Western service providers.
In light of these positive steps taken by Iran, on June 24, 2016, the FATF published a statement suspending for a year the counter-measures imposed against Iran and welcomed Iran’s adoption of, and high-level political commitment to address its strategic AML/CFT deficiencies, as well as Iran’s decision to seek technical assistance to implement the recommended Action Plan. While Iran remains on the FATF Public Statement during this one-year period, this is certainly a reflection of positive steps taken by Iran to increase transparency and update its regulatory, money laundering and anti-corruption framework. This, in my opinion,is a helpful step towards attracting further foreign investment and sufficient engagement from banks and financial institutions to facilitate and process Iran related transactions.
Furthermore, the QeshmInvestment and Development Co. has recently announced plans to establish a new financial centre to serve as a gateway for foreign businesses interested in entering the Iranian market. Further practical steps remain a necessity during this one-year period by Iran to assist the return of sufficient confidence by foreign banks tore-engage with Iran.
Although the vast majority of nuclear related sanctions were effectively lifted as of the Implementation Day,over 200 entities and individuals remain subject to EU/UK sanctions in addition to many more on the US SDN List. This includes the Iranian Revolutionary Guard Corp, which is estimated control between 25% and 40% of Iran’s GDP. Many businesses therefore correctly remain cautious not to inadvertently create trade relationships with a designated person or entity.
However, establishing the beneficial ownership of privately owned or semi-governmental/governmental entities is no easy task. The current regulatory framework, the complicated business structure and general ambiguity, which is particularly a concern when dealing with governmental and semi-governmental entities, all make conducting due diligence in Iran more complicated. The risks of getting this wrong are substantial and would expose foreign investors to legal challenges, fines and significant reputational risk.
Alack of transparency and sufficient procedures is not unusual when it comes to emerging markets, and it would be beneficial to introduce official reliable and independent domestic channels to assist foreign investors in this crucial step.
Domestic regulatory framework
Due to the isolation of the market, there is a pressing need for various areas of domestic Iranian law to be reviewed, and for foreign investors to obtain reliable advice on Iranian law before entering the market. Law firms in Iran are generally smaller than those with which Western businesses will be familiar, and there is no official guide or legal sector ranking services to assist market newcomers. Therefore, it is advisable to secure and conduct business through reliable contacts.
Prior to formalising commercial relationships, careful consideration should be given to appropriate contractual choice of law and dispute resolution provisions. While Iranian law recognises the choice of a foreign law where one party is non-Iranian, according todomestic law, a contract will beconsidered to be governed by the law of its place of execution. There is therefore a risk that Iranian courts may not recognise foreign choice of law clauses in contracts physically signed in Iran.
While Iran is a signatory of the New York Convention 1958 and recognises agreements to arbitrate outside Iran, there is no transparent record of enforcement of arbitral awards byIranian courts. Additionally, when dealing with state-owned or governmental entities, the non-Iranian party will require prior parliamentary authorisation before initiating arbitration. Due to concerns aboutthe lack of transparency and the time consuming nature of the domestic legal system, it is essential thatsufficient measures are adopted to create and develop further confidence in this sector.
In general, it is a straight forward procedure to register intellectual property rights in Iran, and highly advisable for foreign investors to do so, as the domestic law does not permit an unregistered owner to commence an action for infringement of IP rights.
Although Iran is a signatory to the Paris Convention and a contracting state of all major treaties administered by WIPO, including the Madrid Agreement, the Madrid Protocol and the Patent Cooperation Treaty, foreign investors and IP rights holders will find it time consuming and frustrating to enforce those rights through the domestic courts.It is worth mentioning that Iran has not agreed to the Berneor the Rome Conventions. Therefore, there remains a lacuna in the domestic law, and there may also be significant inconsistencies between the Iranian domestic legal system and the scope of protections in international conventions.
AzadehMeskarian is a solicitor at Zaiwalla and Co LLP