General Note on the Apparent Scope of "Evasion/Avoidance" Provisions (System Ed. Note)

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TURBOFAC Commentary (2964 words)

General Note on the Apparent Scope of "Evasion/Avoidance" Provisions (System Ed. Note)

Jul. 2020 Update: The 2nd Circuit court of appeals ruled, in U.S. v. Atilla (2nd Cir. 2020), that the one cannot violate the IEEPA by "evading" or "avoiding" a secondary sanctions provision. Instead, the "evasion" and "avoidance" language extends only to conduct that is actually "prohibited," i.e. itself unlawful, rather than merely "sanctionable." This accords with the views expressed below. The court also held, notably, that in the prohibition on “evading” or “avoiding” sanctions laws needn’t be interpreted in a manner that treats “evading” and “avoiding” as separate prohibitions with differing scopes. This generally accords with the views expressed below.

1) BACKGROUND; "EVASION" AND "AVOIDANCE" AS ANTI-CIRCUMVENTION DEVICES IMPLICIT IN OFAC’S STATUTORY AUTHORITIES

Virtually all sets of sanctions regulations, and many executive orders,...