After UN Showdown, INSTEX Can Help Sustain Iran Nuclear Deal

In return for limits to Iran’s nuclear activities under the 2015 agreement, or the Joint Comprehensive Plan of Action (JCPOA), the other side—the United States, the EU/E3 (France, Germany and the UK), China and Russia—were supposed to lift sanctions on the country. The US opted out of this compromise in May 2018 by withdrawing from the JCPOA. By deterring most private sector actors from Iran-related activities, US secondary sanctions have also prevented other JCPOA parties from living up to their end of the deal. In addition to a deep socio-economic crisis within Iran, US sanctions have undermined Iranian people’s access to basic humanitarian goods--and pushed the country to reduce its nuclear commitments. The EU and E3 efforts to protect the JCPOA under these circumstances have offered a grim lesson about the limits of European autonomy in a dollar-dominated world economy. 

When the Trump administration withdrew from the JCPOA, the EU stressed its commitment to ensuring continued sanctions lifting and to upholding the agreement. This determination was also expressed in practical measures. In summer 2018 the EU included the upcoming US sanctions on Iran in the so-called Blocking Regulation, thus banning EU companies from complying with them. In September 2018 the EU and the E3 announced that they would develop a special trade instrument to facilitate European-Iranian trade, including in oil, which was to be targeted by US secondary sanctions.

However, the Trump administration’s obliviousness to the Blocking Regulation soon exposed the absence of an effective enforcement mechanism to enforce it, and in practice US law took priority over EU law in the private sector’s risk assessments. Apparently recognizing their lack of political and economic leverage over US policy, by January 2019 the E3 had reduced the mission of the trade instrument—then named Instrument in Support of Trade Exchanges (INSTEX)— to trade in humanitarian goods.

While its limited focus fell short of previous expectations that the EU could counter or even significantly minimize the negative effects of US sanctions, INSTEX addresses a critical problem created by them. Humanitarian trade, which is in principle exempt from sanctions, has also been hit by the banking sector’s fear of US penalties, leading to a medicine shortage in Iran. In addition to being urgent, addressing this particular area of sanction over-compliance is also practical, as humanitarian trade runs a lower risk of being targeted by US sanctions than other trade areas.

INSTEX seeks to enable the exchange of humanitarian goods or services between Europe and Iran without the transfer of currency, thus minimizing the risk of US penalties. European exporters are to be compensated with funds located in Europe, based on the value commensurate with the value of imports from Iran. INSTEX’ Iranian counterpart, the Special Trade and Finance Instrument (STFI), is similarly tasked to coordinate payments within Iran.

INSTEX can reassure banks and companies through its joint ownership by the E3 and four other European states—Belgium, Denmark, the Netherlands and Norway, as well as Finland and Sweden, which are expected to join soon. In addition to providing a high level of trust in the instrument’s due diligence procedures, governmental ownership raises the threshold for the USA to impose sanctions on INSTEX.

Having processed only one pilot transaction thus far, INSTEX still needs to overcome major obstacles to function as intended. One key challenge is that the value of European exports to Iran exceeds the value of Iranian exports to Europe. Potential solutions to the problem include paying European exporters using Iran’s revenues currently frozen in foreign banks, or offering Iran a loan to buy humanitarian goods. However, the US is seeking to block these options.

The chances of striking a functioning trade balance could also be increased through the expansion of INSTEX to non-European companies, and extension of the INSTEX mandate to non-humanitarian trade that are not targeted by the USA but are impeded by fear of secondary sanctions. While INSTEX is unlikely to deliberately go against US sanctions, the E3 might decide to take further steps to protect is economic sovereignty if the instrument is targeted by the USA.

Currently it might seem that INSTEX is being taken over by political events, in particular the 2020 US presidential elections. Democratic Party victory in the elections could open the door for the US re-entry into the JCPOA, which would appear to make INSTEX less relevant. However, restoring the JCPOA or reaching any new agreements with Iran is dependent on sanctions lifting. This is likely to be difficult given the private sector’s disillusionment with the Obama administration’s previous assurances about the safety of engaging with Iran. INSTEX could help address this problem by providing additional guarantees to risk-averse banks and companies fearing the next U-turn in US policy towards Iran. 

Alternatively, the possibility of Trump’s re-election as US president—or a snapback of UN Security Council sanctions on Iran—could lead to the collapse of the JCPOA. While this can be expected to reduce European commitment to INSTEX, its humanitarian mission should be pursued as a matter of ethical necessity, even without the JCPOA.

Clearly, INSTEX alone cannot save the JCPOA, the future of which essentially depends on US-Iranian relations. INSTEX can nevertheless help maintain the nuclear agreement until, or even after, diplomatic solutions are found. In addition to demonstrating solidarity on the JCPOA and commitment to basic humanitarian principles, INSTEX can also been seen as a test case of a more independent European foreign policy.

Photo: IRNA

Europe Can Preserve the Iran Nuclear Deal Until November

By Ellie Geranmayeh and Elisa Catalano Ewers

The United States just lost the showdown at the United Nations Security Council over extending the terms of the arms embargo against Iran. The U.S. government was left embarrassingly isolated, winning just one other vote for its proposed resolution (from the Dominican Republic), while Russia and China voted against and 11 other nations abstained.

But the Trump administration is not deterred: In response to the vote, President Donald Trump threatened that “we’ll be doing a snapback”—a reference to reimposing sanctions suspended under the 2015 nuclear deal from which the United States withdrew in 2018.

The dance around the arms embargo has always been a prelude to the bigger goal: burning down the remaining bridges that could lead back to the 2015 deal.

The Trump administration now seeks to snap back international sanctions using a measure built into the very nuclear agreement the Trump White House withdrew from two years ago. This latest gambit by the Trump administration is unsurprisingly contested by other world powers.

On the one hand, Russia and China are making a technical, legal argument against the U.S. move, namely that the United States forfeited its right to impose snapback sanctions once it exited the nuclear deal. This is based on Security Council Resolution 2231 that enshrined the nuclear agreement, which clearly outlines that only a participant state to the nuclear deal can resort to snapback. This is a legal position that even former U.S. National Security Advisor John Bolton—an opponent of the nuclear deal and under whose watch Trump left the agreement—has recently endorsed.

In the end, however, this is more a political fight than a legal one. The political case—which seems to be most favored by European countries—is that the United States lacks the legitimacy to resort to snapback since it is primarily motivated by a desire to sabotage the multilateral agreement after spending the last two years undermining its foundations. 

The main actor that will decide the fate of the nuclear deal after snapback sanctions is Iran itself. Iran has already acted in response to the U.S. maximum pressure campaign, from increasing enrichment levels and exceeding other caps placed on its nuclear program, to attacking U.S. forces based in Iraq and threatening to exit the Nuclear Nonproliferation Treaty.

But the calculations of decision-makers in Tehran will be influenced by the political and practical realities that follow snapback sanctions. And here, the response from the remaining parties to the nuclear deal—France, the United Kingdom, Germany, China, and Russia—will be critical. These countries remain committed to keeping the deal on life support—at least until the U.S. presidential election in November.

Seizing on its failure to extend the arms embargo, the United States now claims it can start the clock on a 30-day notification period, after which U.N. sanctions removed against Iran by the nuclear deal are reinstated. This notification will be timed deliberately to end before October—when the arms embargo is set to expire, and also when Russia takes over presidency of the U.N. Security Council: a time when Washington could face more procedural hurdles.

What is likely to follow snapback is a messy scene at the U.N. in which council members will broadly fall into three groups. First, the United States will seek to build support for its case—primarily through political and economic pressure—so that by the end of the 30-day notice period some U.N. member states agree to implement sanctions. The Trump administration will likely use the threat of U.S. secondary sanctions, as it has done successfully over the last 18 months, if governments don’t move to enforce snapback sanctions.

Even if most governments around the world disagree that the United States has any authority to impose snapback sanctions, some countries may be forced to side with Washington given the threat that the United States could turn its economic pressure against them.

The second group will be led by China and Russia, both of which have already started to push back. Not only will this group refuse to implement the U.N. sanctions that the U.S. government claims should be reimposed, but they likely will throw obstacles into the mix, such as blocking the reinstitution of appropriate U.N. committees that will oversee the implementation of such sanctions. This group may also see it as advantageous to seek a determination by the International Court of Justice on the legal question over the U.S. claim.

The third grouping will be led by the France, Britain, and Germany, who remain united in the belief that the deal should be preserved to the greatest extent possible. In a statement in June, the three governments already emphasized that they would not support unilateral snapback by the United States. But it is unclear if this will translate into active opposition—and their approach will certainly not include the obstructionist moves that Russia and China may make.

This bloc will look to stall decisions to take the steps necessary to implement the U.N. sanctions. This is a delicate undertaking, as European countries are not in the habit of blatantly ignoring the binding framework of some of the U.N.’s directives, and will want to balance their actions against the risk of eroding the security council’s credibility further. But they will also take advantage of whatever procedural avenues are in place to delay full enforcement of the sanctions, buying time to urge Iranian restraint in response to the U.S. moves.

Countries such as India, South Korea, and Japan are likely to favor this approach. These governments may even go so far as to send a significant political signal to Iran and back a joint statement by most of the security council members vowing not to recognize unilateral U.S. snapback sanctions.

As part of this approach, the 27 member states of the European Union could embark on a prolonged consultation process over how and if to implement snapback sanctions. The separate EU-level sanctions targeting Iran’s nuclear program are unlikely to be reimposed so long as Iran takes a measured approach to its nuclear activities.

Reimposing EU sanctions against Iran will entail a series of steps, the first of which requires France, Britain, and Germany, together with the EU High Representative, to make a recommendation to the EU Council. The return of EU sanctions would then require unanimity among member states, a goal which will take time to achieve in a context where Washington is largely viewed as sabotaging the nuclear deal.

In this process, the EU should seek to preserve as much space as possible to salvage the deal and avoid the reimposition of nuclear-focused sanctions against Iran—at least until the outcome of the U.S. election is clear. The U.K., in the run-up to Brexit, may well lean toward a similar position rather than tying itself too closely to an administration in Washington that may be on its way out.

Until now, the remaining parties to the nuclear deal have managed to preserve the deal’s architecture despite its hollowing out. The aim has been to stumble along until the U.S. election to see if a new opening is possible to resuscitate the agreement with a possible Biden administration in January.

While a Trump win could spell the end of the deal and further dim the prospects of diplomacy between the United States and Iran, the two sides could come to a new understanding over Iran’s nuclear program at some point during the second term that is premised on the original deal. Judging by the pace of the Trump administration’s nuclear diplomacy with North Korea, this will be a Herculean process with no certain outcome.

In Tehran, there will be some sort of immediate response to the snapback—most likely involving further expansion of its nuclear activities. However, Iran may decide to extend its strategic patience a few weeks longer until the U.S. election. A legal battle by Russia and China against snapback, combined with non-implementation of U.N. sanctions by a large number of countries and continued hints from the Biden camp that Washington would re-enter the nuclear deal could provide the Rouhani administration with enough face-saving to stall the most extreme responses available to Iran.

But with Iranian elections coming in the first half of 2021, there will be great domestic pressure from more hardline forces to take assertive action, particularly on the nuclear program, to give Iran more leverage in any future talks with Washington.

If Iran takes more extreme steps on its nuclear activities, such as a major increase in its enrichment levels or reducing access to international monitors, it will make it nearly impossible for the Britain and the EU to remain committed to the deal in the short term. There are also factors outside Iranian and U.S. control that could have an impact, such as a potential uptick in Israeli attacks against Iranian nuclear targets.

Over the course of the Trump administration, Europe and Iran have managed to avert the collapse of the nuclear deal. Having come so far, and just 11 weeks away from the U.S. election, they will need to work hard to prevent the total collapse of the agreement. Even if Biden—who has vowed to re-enter the deal if Iran returns to compliance—is elected, the remaining parties will need to continue the hard slog to preserve it until January.

Those opposed to the nuclear deal with Iran may see the last two months of a Trump administration as a window to pursue a scorched-earth policy toward Iran’s nuclear program. That leaves Britain and Europe with the job of holding what remains of the deal together, for as long as they can.

Ellie Geranmayeh is a senior policy fellow at the European Council on Foreign Relations. Follow her at  @EllieGeranmayeh.

Elisa Catalano Ewers is an adjunct senior fellow at the Center for a New American Security and a former U.S. State Department and National Security Council official.

Photo: IRNA

U.S. Sanctions on Iran Set to Return: A Simple Explainer

This client note was prepared by the German trade compliance team at Dentons Europe. It is republished here with permission. 

On 8 May 2018, U.S. President Trump announced that the United States “will withdraw from the Iran nuclear deal” and that the United States “will be instituting the highest level of economic sanctions”. At the same time, U.S. authorities announced that U.S. sanctions would be re-instated, at the latest by 4 November 2018. What does this mean for companies who have ties to Iran or who do business in Iran?

In January 2016, the U.S. and the EU lifted some of the sanctions that they had imposed on Iran. This was based on an international agreement, the so-called Joint Comprehensive Plan of Action (“JCPOA”). Since 2016, many European companies engaged in business activities in Iran or extended their activities. Transactions with Iran will now meet with severe difficulties, and many companies will be forced to cease and wind down their operations.

In the following, we summarize the most important developments and applicable rules.

U.S. Companies and Their Subsidiaries

Applicable U.S. laws generally prohibit U.S. companies from engaging in any business activities with a relation to Iran. This prohibition also applies to non-U.S. subsidiaries of U.S. companies. Based on the JCPOA, the U.S. had issued General License H. This General License broadly allowed non-U.S. subsidiaries of U.S. companies to engage in business activities with Iran.

General License H will be revoked “as soon as feasible”. It will then be replaced with a “new” General License H; this new General License will, however, only authorize the wind down of existing transactions and operations that had been made possible by the “old” General License H. Wind-down operations must be completed by 4 November 2018.

Adding Parties to the U.S. List of Blocked Parties

The U.S. Government has imposed prohibitions a number of individuals, entities and groups (“Specially Designated Nationals” – “SDN”). Any dealings with SDN are prohibited. In addition, all dealings with a company in which an SDN owns at least 50% of the interest are also prohibited.

Not only U.S. nationals and U.S. companies (amongst others) must comply with this prohibition. Any party must comply with these prohibitions when that party is involved in a transaction that is made in US Dollars or when a U.S. bank or U.S. company is also involved in that transaction.

In 2016, a large number of companies and individuals were removed from the SDN List of the U.S. These parties will be added to the SDN List again. It is currently unclear when that will happen, but at the latest on 5 November 2018. Amongst these parties are Iranian banks as well as the National Iranian Oil Company, and also companies and banks established outside of Iran, e.g. in the EU.

U.S. Measures Targeting Specific Industry Sectors

Before 2016, the U.S. had adopted numerous regulations to deter also non-U.S. companies from doing business with Iran. These regulations, so-called Secondary Sanctions, threaten that the U.S. Government can impose severe measures on non-U.S. companies who enter into transactions with certain industry sectors and with certain entities and individuals in Iran.

These measures can amount to a complete exclusion of the non-U.S. company from the U.S. market and from transactions with all U.S. companies worldwide. This can also mean that companies are designated as SDN. Companies which are faced with the risk of Secondary Sanctions should carefully analyze the risks for continuing their activities. U.S. authorities have stated that they want to enforce Secondary Sanctions in the future.

These measures had been waived or lifted under the JCPOA. They will now be re-instated by 6 August 2018 and by 4 November 2018. Until then, companies engaged in the industry sectors concerned must wind down their operations if they want to avoid Secondary Sanctions.

The most important Secondary Sanctions concern the following activities:

• Wind-down by 6 August 2018
  • Transactions with the automotive sector;
  • Sale or purchase of graphite, raw or semi-finished metals such as aluminum and steel, and coal;
  • Provision of software for integrating industrial processes.
• Wind-down by 4 November 2018
  • Transactions involving ports, shipping and shipbuilding, including Iranian shipping lines;
  • Petroleum-related transactions;
  • Transactions with the petrochemical sector;
  • Investments in the development of oil resources;
  • Transactions by non-U.S. banks with certain Iranian banks, including the Iranian Central Bank;
  • Forwarding of “SWIFT” messages to Iranian banks.

Commercial Aircraft and Related Services

As a result of the close global cooperation in the aircraft industry, any commercial aircraft will include material parts with U.S. origin. As a consequence, commercial aircraft and most spare parts for commercial aircraft can only be supplied to Iran with a license from U.S. authorities. Similarly, even non-U.S. companies require licenses from U.S. authorities for maintenance and other services for commercial aircraft.

Under the JCPOA, U.S. authorities granted such licenses to both U.S. and non-U.S. companies. All these licenses will be revoked. U.S. and non-U.S. companies must wind down their activities under these licenses by 6 August 2018.

The Meaning of Wind-Down

Where a wind-down of operations or business relations is required, deliveries and supplies can be made, and services can be provided, until the wind-down date, but only if the contract has been concluded before 8 May 2018.

Business activities and operations must end by the applicable wind-down date. In order to end business operations, companies are allowed to “engage in all transactions ordinarily incident and necessary to wind down” the activities. This may be necessary, for example, where contracts specify delivery dates that are later than the wind-down date.

Non-Iranian companies can receive payments even after the wind-down date, if the following two conditions are fulfilled: The contract has been concluded before 8 May 2018, and all deliveries have been made by the wind-down date. This also applies to loans or credits granted by non-Iranian banks. By contrast, Iranian banks and companies may not receive any payments after the wind-down date.

Activities that Remain Permitted

Even before 2016, U.S. authorities had issued General Licenses which permit certain business activities in Iran. The most important General Licenses are a General License that permits the export to Iran of food, foodstuffs, agricultural items, pharmaceutical products (drugs) and medical devices (often referred to as the “AgriMed” General License). In addition, U.S. authorities had issued a General License that permits the export to Iran of many standard IT items and software, if these products could be acquired without restrictions on the general market (General License D-1).

Based on information that is currently available, these General Licenses will not be revoked, and exports under these General Licenses remain permitted. These General Licenses cannot only be used by U.S. companies, but by companies from other countries as well.

EU Companies: Existing EU Sanctions Still Apply

The EU has not changed or amended the respective EU sanctions. For EU companies who have business operations in or with Iran, the EU sanctions and embargo apply in addition to the U.S. measures. The most important restrictions under EU sanctions and embargos are the following.

Sanctioned Parties and “Financial” Sanctions

The EU has imposed prohibitions to enter into business transactions with a number of individuals, entities and groups in Iran (so-called “Designated Parties”). EU companies may not make any payments and any deliveries to Designated Parties. There are also restrictions for dealing with companies which are owned or controlled by Designated Parties. These range from increased due diligence requirements to prohibitions on dealing with such subsidiary.

Export Prohibitions

The EU has adopted several lists of items which may not be supplied to Iran. It is also prohibited to conclude sales contracts for these items, to provide technical support services or the provision of export financing for these products. These prohibitions apply, e.g., for military items (arms embargo) and for certain items that could be used in a nuclear program.

Export Licensing Requirements

In addition, licenses are required to supply certain items to Iran. The items concerned are also included in several lists adopted by the EU. As with the export prohibitions, licensing requirements do not only apply for the actual export of these items, but in addition for the conclusion of the respective sales contract, the provision of technical support services for these items or for the provision of export financing of these products. Licensing requirements apply, for example, for the supply of items for the interception of telecommunication, of less important items that could be used in a nuclear program or for graphite, raw or semi-finished metals such as aluminum and steel. Depending on the product in question, licensing procedures may be quite complex, because some licenses must be reviewed by a special committee established under the JCPOA before they are granted.

Restrictions for Investments in Iran

In accordance with the EU sanctions and embargo, establishing companies in Iran or investing in companies in Iran may be prohibited or may require a license. These restrictions apply to companies which engage in certain business activities in Iran (e.g. in activities linked to the nuclear sector). The same restrictions apply for providing financing to companies in Iran.

Trading With Iran in the Future

These new unilateral U.S. measures will severely impact doing business with Iran and doing business in Iran. In addition to the prohibitions and other restrictions that apply to certain business activities directly, the U.S. measures will have a severe “chilling” effect. Companies will refrain from business activities involving Iran, and banks will refuse to provide financing for business activities in Iran.

As a result of the Secondary Sanctions threatened for sending SWIFT messages to Iranian banks, there is a risk that it will become impossible (again) to make electronic transfers of funds to and from Iranian banks. In addition, banks will now be even more reluctant with processing payments to and from Iran. EU companies will face the problem again that they may have perfectly legal business activities in Iran but will not be able to find a bank where they can receive payments.

It remains to be seen if European leaders manage to find a unified response to the new measures adopted unilaterally by the U.S.

Photo Credit: REX/Shutterstock

Trump's Unequivocal Iran Deal Withdrawal Was the Best Outcome for Iran

President Trump has violated the Joint Comprehensive Plan of Action and withdrawn from a landmark arms control agreement that enjoyed broad international support. Crucially, he did so more decisively than many expected. In his televised announcement on Tuesday, Trump clearly relished the opportunity to follow through on his campaign promise to “rip up” the Iran nuclear deal, declaring, “The United States no longer makes empty threats. When I make promises, I keep them.”

There is no doubt that the JCPOA is in jeopardy. But the deal has been in jeopardy for a long time. New polling data from IranPoll, drawing on a nationally representative survey of Iranians conducted between April 13-17 and released on May 8 at a Bourse & Bazaar round table in Stockholm, illustrates this point. When asked how confident they are that the “United States will live up to its obligations toward the nuclear agreement,” a resounding 92 percent of Iranians indicated that they lacked confidence, up dramatically from 41 percent in September 2015. Iranians consider U.S. violations of the deal to have been indisputable, even prior to today’s announcement.

The real question is whether the decisiveness with which Trump discarded three months of negotiations with the E3 on a “fix” to the Iran deal will change political perceptions in Europe. European leaders may have be tempted to latch onto any ambiguity in the extent of the U.S. withdrawal, for example had Trump pursued the reapplication of sanctions without immediate enforcement. Over the last few months, France, Germany, and the United Kingdom have proven reluctant to take a robust stance vis-a-vis the United States’ unilateral demands for the renegotiation of the JCPOA. Unsurprisingly, the E3 negotiating strategy was lambasted as one of “appeasement” by Tehran.

The significant and very public investment of political capital in trying to convince Trump to remain in the deal, which saw Macron and Merkel make visits to Washington, as well as British foreign secretary Boris Johnson, meant that an admission of defeat would always have been unlikely. Had Trump taken a more muddled stance on the future of the United States as a party to the nuclear deal, it is not difficult to image that the E3 would have “welcomed” certain aspects of Trump’s relevant announcement.

But there was no muddling on Tuesday. As per the White House statement, Trump “has directed his Administration to immediately begin the process of re-imposing sanctions related to the JCPOA” with the aim of targeting “critical sectors of Iran’s economy, such as its energy, petrochemical, and financial sectors.” The implementation memo shared with the Secretary of State, Secretary of Treasury, and other key actors within the executive branch makes the detail of the impending actions even more clear.

Responding to Trump’s bold move, the joint statement from Macron, Merkel, and May calls for “the US to ensure that the structures of the JCPOA can remain intact, and to avoid taking action which obstructs its full implementation by all other parties to the deal.” Moreover, the statement declares that the E3 will “remain committed to ensuring the agreement is upheld, and will work with all the remaining parties to the deal to ensure this remains the case including through ensuring the continuing economic benefits to the Iranian people that are linked to the agreement.”

The statement from European Union High Representative Federica Mogherini further declares the importance of protecting trade and investment, stressing that “The lifting of nuclear related sanctions is an essential part of the agreement” and “that the lifting of nuclear related sanctions has not only a positive impact on trade and economic relations with Iran, but also and mainly crucial benefits for the Iranian people. The European Union is fully committed to ensuring that this continues to be delivered on.”

Bold statements beget bold statements and European governments are growing increasingly confident in signaling their willingness to protect channels for trade and investment with Iran. However, signaling will need to be followed-up by action. Again, the decisiveness of Trump’s move on Tuesday will probably help ensure that practical measures are pursued in earnest.

The clear failure of the E3 negotiating strategy will likely see the mantle of leadership on Europe-Iran relations return to Mogherini and the European External Action Service. This will happen first and foremost with the convening of the Joint Commission of the JCPOA which is expected in the coming week. Mogherini’s position draws on the foreign policy consensus of the EU’s 28 member state governments. With the policy debate once again expanded to this wider group, the input of the governments of Sweden, Austria, Italy, and the Netherlands, among other countries, will become more influential as Europe seeks to preserve the JCPOA’s economic benefits and keep Iran in the deal. Importantly, these smaller member states are those which have made the most progress in devising special financial vehicles, concluding export credit agreements, and encouraging banks to engage in the Iranian market in adverse conditions. In short, Trump’s rebuke of the E3 can restore the mantle of JCPOA engagement to the wider EU—an outcome that is good for Iran.

Moreover, in taking itself out of the deal, the Trump administration may have actually limited the damage it can do to the legal environment for trade and investment in Iran. Administration officials have confirmed that the United States will not pursue the snapback of UN sanctions lifted as part of United Nations Security Council resolution 2231, which enshrined the JCPOA in international law. As the United States is out of the deal, they no longer have the right to trigger such a vote as per Article 37 of the JCPOA. So while the White House has announced a full snapback of U.S. primary and secondary sanctions eased under the nuclear deal, European and Iranian commercial actors can take some comfort that EU and UN sanctions will not snapback (so long as Iran continues to abide by its commitments under the deal).

Finally, and perhaps most importantly, the nature of Trump’s withdrawal will impact public opinion in Iran. For President Rouhani, there will be great pressure to retaliate in order to prove that Iran cannot be bullied by the United States. This pressure is coming not just from hardliners, but from the general public as well.

When asked whether Iran should “retaliate” or “continue to live by the JCPOA” in the event that “the United States takes measures against Iran that are in violation of the JCPOA agreement,” 67 percent of Iranians believe that Iran should retaliate. Just 31 percent believe that Iran should stick with its commitments under the deal. The proportion of Iranians calling for retaliation has risen 8 percent in the past three months, which corresponds precisely to the period in which the E3 launched its attempt to fix the deal by placating Trump. The political consequences of that strategy are starkly exhibited in the new polling.

Yet, the undeniably aggressive nature of Trump’s move may actually serve to inspire Iranians to choose resilience over retaliation. Resilience is what has made Iran one of the world’s twenty largest economies despite enduring both a decade of war and a decade of sanctions in just the last forty years. In his address to the nation, Rouhani described Trump's decision as "an act of psychological warfare against Iran.” The Iranian response to this psychological warfare will be determined following consultations with the remaining parties in the JCPOA. If the Rouhani administration can credibly demonstrate to the public that there is a plan for principled defiance, and if that plan includes clear commitments from Europe to protect Iran’s economic prospects, it remains possible for Iran to remain in the deal. If this can be achieved, following such a direct attempt by Trump to kill the deal, Iran will reassert its strength in a remarkable way. Cooperative resilience, not retaliation, must prevail. Defying Trump must be the rallying cry. 

Photo Credit: REX/Shutterstock

Trump Stance on JCPOA Nuclear Deal Poses Legal Dilemmas for Iran

With the May 12 deadline for the issuing of key sanctions waivers as part of the Iran nuclear deal fast approaching, what could be the impact of the collapse of the 2015 agreement? While Donald Trump's conditions for the review of the current arrangement have yet to be met and Iran's clear rejection of any amendments to the plan, the breakdown of the Joint Comprehensive Plan of Action (JCPOA) seems inevitable.

The nuclear deal is the most important multilateral agreement reached in the global nuclear non-proliferation system in the last decade. It is now at risk of collapse.  There are three options for Iran should the US withdraw from the JCPOA.

First, Iran could exit the deal immediately and continue to fulfill the obligations under NPT and to the IAEA based only on the safeguard agreements with the agency. This is seen as the worst case scenario by the EU, E3 and the IAEA.

Second, Iran could exit the deal immediately, but continue to fulfill its commitments to the International Atomic Energy Agency (IAEA) based on both safeguard agreements with the IAEA agreed as part of the JCPOA and its preceding agreement, the Joint Plan of Action (JPOA). Under these safeguards Iran has suspended enrichment of uranium to 20 percent.  

Third, Iran could opt to remain  in the deal on the basis that the European Union and E3 (UK, France and Germany) will provide additional  benefits to Iran to compensate for the negative effects of US withdrawal.Iran’s deputy foreign minister, Abbas Araghchi, one of the key architects of the JCPOA, has stated that as long as Iran continues to benefit from a removal of sanctions, it will remain committed to the deal, but has expressed doubts that the France, Germany and the UK will be able to guarantee Iran’s interests in the absence of the United States.

Regardless of which route Iran takes, the withdrawal of the United States from the JCPOA will have a legal impact on its parties. Any possible change in the partnership or the provisions of the agreement will be reflected within the domain of international law.

The Threat of Snapback

Trump has threatened not to issue the crucial waivers that have suspended US secondary sanctions on Iran. On May 12, Iran may find itself in a position not of its own making. Despite unprecedented international monitoring and scrutiny of its nuclear program, and despite the IAEA's approval of its commitments without the slightest deviation for military purposes, it may once again face significant economic sanctions, even over the vital sale of its oil. However, snapback of US secondary sanctions could actually preclude snapback of UN sanctions, if the deal remains intact following Trump’s withdrawal.

One of the provisions of the JCPOA, unprecedented in the 70-year history of the Security Council, is the decision-making process of the partners required to resume sanctions. According to Article 37 of the JCPOA, if the dispute resolving mechanism is unsuccessful, the UN Security Council will vote on a resolution to continue the lifting of sanctions.

In such a case, the United Nations Security Council would vote for a resolution to suspend sanctions. As described in a recent report by Stephen Mulligan, an attorney with the Congressional Research Service:

The ‘snapback’ mechanism thus places the onus on the Security Council to vote affirmatively to continue to lift its sanctions by stating that those sanctions will be implemented automatically unless the Security Council votes otherwise. As a permanent member of the Security Council, the United States would possess the power to veto any such vote and effectively force the reinstatement of the Security Council’s sanctions on Iran.

In this process, the vote of all five permanent members of the Council is critical. If one of these members does not agree with the suspension of sanctions, it alone can easily restore a series of Council sanctions under Article 41 and Chapter 7 of the United Nations Charter (threats to global peace and security).

However, if the United States pulls out of the JCPOA, triggering the snapback of its secondary sanctions against Iran, it may lose the ability to use the UN sanctions snapback threat which is articulated with Article 37 under JCPOA. In other words, only parties to the Iran deal are able to trigger the UN nuclear sanctions snapback procedure. If the US withdraws from the deal, it loses the ability to trigger this mechanism.

This would be a reprieve for Iran, but there are further legal pathways that should be considered in order to prevent more damages by the US to the non-proliferation regime and international law.

Recourse to the International Court of Justice

The IAEA has verified in eleven reports that Iran has fully complied with its commitments under the nuclear agreement. On this basis, Iran feels it is facing punishment without justification.

Iran can, on the basis of Clause 2 of Article 21 of the Treaty of Amity, Economic Relations, and Consular Rights (1955), file a complaint with the International Court of Justice (ICJ) against the United States on the basis that it has had a detrimental effect on its business and trade with other countries. 

Punishing Iran with various economic sanctions, including the vital sale of its oil, may result in Iran’s withdrawal or limited implementation of its political commitments under JCPOA. Depending on whether Iran completely abandons JCPOA or suspends some of its commitments under the agreement, it means the end of the current inspections and the IAEA's ability to continue a complete and unprecedented monitoring of Iran's nuclear program. The result is the inability of a United Nations agency to carry out its mission.

The current situation has created a legal impediment, despite the wishes of Iran, for the IAEA and the members of its board of governors including the United Kingdom, France and Germany. According to the definition of the Vienna Convention on the Law of Treaties 1969, the JCPOA is not considered to a treaty, under which definition a violation would result in a case directly taken as a complaint to the International Court of Justice. 

However the IAEA is an agency authorised by the UN and if it cannot reciprocate with its obligations to a UN member state that has been in compliance with the nuclear agreement (Iran) due to the interference of a third country, the IAEA can, on the basis of Article 96 of the UN Charter, and Clause 1 of Article 65 of the Statute of the International Court of Justice, for the first time in its history, resort to the ICJ for an advisory opinion on the legal status of the JCPOA.

There is some precedent for such a request by an international organization like the IAEA. The World Health Organisation has taken a similar action on threats to the use of nuclear weapons in armed conflict, requesting a referral from the International Court of Justice. The ICJ’s response would not be legally binding but it would be a new source of international law, and may be considered by the other parties to the nuclear agreement as an official advisory about their treatment of deadlock with the United States.

The JCPOA is an improbable achievement, an agreement reached after Iran had been subjected to the harshest sanctions regime ever imposed. In political practice and in the domain of international law, the JCPOA provides a new way of resolving disputes in support of the nuclear non-proliferation regime.  the agreement collapses it would be, as in the words of Yukiya Amano, Director General of the IAEA, a “great loss for nuclear verification and for multilateralism” and in my view also for international law more generally. 

Photo Credit: Wikicommons

Can Blocking Regulations Help Europe Protect Its Iran Business From Trump?

In the last week, European business leaders and policymakers have grown more vocal about the possibility that the European Union would employ blocking regulations to protect European businesses from the reach of US secondary sanctions on Iran. These regulations would penalize European companies for complying with secondary sanctions, which may snapback if the Trump administration decides to withdraw from the Iran nuclear agreement.

Total CEO Patrick Pouyanné became the first high-profile European executive to publically call for such measures to be considered, disclosing that Total has been in discussions with French and European authorities about “means to protect investments already made in Iran, even in the case of the return of sanctions.”

Speaking at a conference in Paris last week, Denis Chaibi, head of the Iran Task Force of the European External Action Service, stated that the EU was “looking at a number of possibilities” regarding the regulations.” In his assessment, “it is not complicated to do it legally in that the legal instrument exists, but it doesn’t require a huge internal debate,”

These public statements come as European concerns grow regarding the Trump administration's ultimatum to “fix” the Joint Comprehensive Plan of Action. The critical deadline is May 12, when the United States will need to once again waive its secondary sanctions on Iran. Failure to do so would see secondary sanctions “snapback,” exposing European companies to extraterritorial penalties for their commercial activities in Iran.  

But even if the European Union finds the political will to reinstitute blocking regulations in the event of snapback, it is unclear whether they fully effective as a standalone measure to protect European trade and investment in Iran. Blocking regulations are a legal mechanism which seeks to mitigate the extraterritorial effects of sanctions under Public International Law (PIL), the body of law that governs relations between sovereign states and their unions, such as the European Union.

International trade attorney, Edward Borovikov, managing partner at the Brussels office of Dentons, a global law firm, notes that under international law “Sovereign states are expected to exercise moderation and restraint if their legal acts may affect vital economic and commercial interests of another state. But sometimes states violate the principle of restraint for their own national security considerations.” The snapback of secondary sanctions by the Trump administration would represent once such case. In such situations, “there is no efficient and universal legal avenue under PIL to challenge such non-compliance,” says Borovikov.

While the World Trade Organization (WTO), which was established under the authority of PIL, may seem a venue to challenge extraterritorial sanctions which restrict trade in goods and services, it is unlikely Europe would be able to successfully challenge the snapback of U.S. sanctions under the WTO’s legal authority.

Article XXI of the General Agreement on Tariffs and Trade (1994) declares that nothing in WTO rules will “prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests.” Borovikov explains that this exemption “means that member states can depart from WTO commitments on trade in goods and services” and points out that while there have been several attempts to bring to WTO adjudication disputes on the application of national security exemptions, “none of the cases ended with conclusive guidance.”

In 1996, the European Union began a dispute process against the United States with regard to extraterritorial sanctions against Cuba. This dispute reached the state of WTO consultations. But ultimately, the EU and US reached a political solution in which the US assured that its secondary sanctions would not be enforced upon European companies. The WTO case was suspended.  

The political solution was necessary for a simple reason. “Even if the WTO had found in the favor of the EU, deciding that the national security exemption did not apply, the United States was never going agree with a WTO’s interpretation of its national security requirements,” observes Borovikov. “The idea that the United States would comply with WTO recommendations in such a situation is hard to believe.”

Given the dead end presented by the WTO dispute avenue, the EU has sought legal mechanisms that rely on the legal authority of the union and its member states. The legal act is the 1996 EU Blocking Regulation. This regulation was established in response to US sanctions on Iran, Cuba, and Libya. The regulations prohibit EU entities and courts from complying with foreign legal acts, such as sanctions laws, listed in an annex. Borokivov explains that “in principle any new extraterritorial laws of any third country may be added to the Annex and indeed help EU persons to continue business with a sanctioned third country.” However, the past success of such regulations in enabling European companies to continue conducting business in these jurisdictions such as Iran was the result of political rather than legal influence.

Borovikov warns that these blocking regulations “cannot provide full protection from secondary sanctions because if the EU persons doing business in the US start economic activities in the Iran, they are at risk of being penalised under the US sanctions regime.” Even if the European Union seeks to penalize its companies for complying with US sanctions, “it is clear that a lot of EU companies would simply face a dilemma between doing business in the US or Iran and where to accept the penalty,” he says.

Given the fact that the US market both frequently offers more attractive economic opportunities and poses more severe penalties and consequences for non-compliance with US law, most companies are likely to wind down their Iran operations and pay any penalties that the EU or their national governments may levy under the blocking regulations.

However, the discussion about blocking regulations is nonetheless worthwhile. Borovikov notes that the prospect of such regulations has in the past played “an important role in bringing about an acceptable solution. The regulations are secondary to the political process between the US and EU and its member states that will hopefully lead to an understanding on Iran business.”

Ellie Geranmayeh of the European Council on Foreign Relations, echoes this assessment: "The threat of reviving the EU blocking regulation in itself can be a useful political tool for Europe to create a cost for the Trump administration and make it think twice about its actions." Moreover, while the blocking regulations may only be partially effective for major multinationals, they can "provide an avenue for smaller-medium sized companies in Europe and Asia that have little or no US exposure to continue conducting business in Iran in non-dollar currencies," says Geranmayeh. 

Multinational executives seem to agree. In a recent survey conducted by Bourse & Bazaar and commissioned by International Crisis Group, a substantial 54 percent of senior executives indicated that “assuming Iran remains committed to the nuclear deal,” blocking regulations, which would protect companies from U.S. penalties, would positively affect the “decision to invest in Iran.” 

Blocking regulations can serve an important role as part of the suite of political, legal, and commercial measures that can be employed by European governments to protect their businesses from the consequences of snapback. At a time when the economic quid-pro-quo that underpins the nuclear deal is under threat, each and every such measure ought to be considered. 

Photo Credit: WTO

Total CEO Pouyanné Considers Measures to Protect European Business in Iran

In a major interview given to French newspaper Le Monde looking at Total’s strong performance in 2017, CEO Patrick Pouyanné was asked about the “American threat” to the company’s “important gas project” in Iran. Pouyanné’s forthright response marks perhaps the first time that a major European executive has publicly called for a diplomatic intervention to protect commercial interests in Iran.

Total’s CEO explained that the South Pars project was “progressing well, without delay, and [Total] continues to work, even if the situation with the American Congress is rather vague.” He noted that even if the Americans “decide to exit the nuclear agreement and if secondary sanctions return in place,” it would pose a “real question” for the French energy giant.

However, echoing comments made to reporters on the sidelines of Davos, Pouyanné did not cast snapback as an automatic game-over for the South Pars project. Rather, he suggested that it was necessary to “clarify the horizon for European business working in Iran.”

He explains that Total has been in discussions with French and European authorities about “means to protect investments already made in Iran, even in the case of the return of sanctions.” Pouyanné points to the experience of European blocking statutes and sanctions waivers applied in the 1990s which proved sufficient to to protect Total’s gas projects at the time. Pouyanné concludes by noting that it is “up to European diplomats to consider these questions.”

The confidence of Pouyanné’s response stands in stark comparison to the general uncertainty that has gripped the business community and will be seen as an important signal. The landmark USD 3.8 billion South Pars project is seen as a bellwether for the larger project of Iran’s post-sanctions economic recovery.

However, Total is far from the only major European multinational engaged in the Iranian market. Pouyanne was one of select group of European CEOs invited to dine with Donald Trump at a special dinner held during the American President’s trip to the World Economic Forum in Davos. Other guests included Siemens CEO Joe Kaeser, ABB CEO Ulrich Spiesshofer and Volvo CEO Martin Lundstedt. Overall, nine of the fifteen companies represented at the dinner are currently active in Iran, and a further five have had a historical presence in the market. Pouyanné’s peers are likely to share his sentiments on the need to protect European interests in Iran and the wider global economy.

While the legal value of blocking statutes or sanctions waivers is questionable given the greater interconnectivity in global markets and greater reticence of the banking sector to engage Iran when compared to the 1990s, the political message behind such measures could be valuable, enabling companies to seek creative solutions to structure their Iran engagements in a way that avoids sanctions exposure.

In a recent survey conducted by Bourse & Bazaar and commissioned by International Crisis Group, a substantial 54 percent of senior executives indicated that “assuming Iran remains committed to the nuclear deal,” blocking statutes, which would protect companies from U.S. penalties, would positively affect the “decision to invest in Iran.”

Photo Credit: Total

Oil Giant Total Takes to Twitter to Underscore Iran Commitment

In an unusual move, Total's press office issued a series of tweets on Tuesday in order to correct an apparent mischaracterization of the company's position on its planned USD 4.8 billion gas deal in Iran. 

A piece published by CNN Money on Tuesday, and later echoed by Reuters, suggested that Total was "rethinking" its comittment to Iran in light of the company's large presence in the U.S. and President Trump's opposition to the Iran deal. The piece centered on comments made to CNN Money on the sidelines of an energy conference in Abu Dhabi, with Total CEO Patrick Pouyanné stating that "If there is a sanctions regime [on Iran], we have to look at it carefully... We work in the U.S., we have assets in the U.S., we just acquired more assets in the U.S." 

But a series of tweets from Total's official press office account have since sought to dispel the idea that there has been any change in the company's policy towards Iran. The tweets explain how the comments made by Pouyanné are consistent with those made in several interviews since Trump's de-certification of the JCPOA Iran Deal. 

Hey :) Total's position is & has been consistent on the matter. The CNN piece does not say anything new. Don't mind the tittle of the article...just focus on the quotes: "We are working on the project. We launched the tenders, we should award contracts by January." @yarbatman

— Total Press Office (@TotalPress) November 14, 2017

📢💬 @PPouyanne was very clear in an interview with @energyintel less than a month ago: "We signed the contract, we have launched the tenders, we are supposed to award contracts by year-end, so all that is fitting well in terms of schedule..."

— Total Press Office (@TotalPress) November 14, 2017

💬 "We’ll have clarity on situation before year-end. Congress has 2 months to decide what to do. If Total can do it in a legal way, we’ll do that project as we are committed to Iran. If we cannot do it, we’ll have to stop. It’s not politics, it’s just a matter of legal framework"

— Total Press Office (@TotalPress) November 14, 2017

Total's response clarifies that the company remains committed to its project in Iran's South Pars gas field and draws attention to an earlier interview in which Pouyanné stated he does not see a political barrier to conducting business in Iran. That Total is continuing to push ahead on its Iranian project demonstrates considerable resolve, especially given the company's extensive operations in both the United States and Saudi Arabia, two countries whose governments largely oppose Iran's economic opening. Indeed, the company has recently moved to more directly manage political risks by opening an office in Washington. 

Pouyanné's comments to CNN Money do however raise the possibility that the United States will reimpose secondary sanctions, which would penalize non-U.S. entities for conducting business with Iran. Such a "snapback" scenario would compel nearly all European multinational firms, including Total, to pull back from the market. Total, like many other companies, is simply waiting to see what legal approach Congress is likely to take. Pouyanné told CNN, "We are working on the project. We launched the tenders, we should award contracts by January... I hope by that time, Congress will have an answer for the president and the president will have to renew, or not [renew], the certification."

Encouragingly, it remains unlikely that Congress will opt for snapback, which would constitute withdrawal from the JCPOA. Total's landmark deal still seems poised to open a new era of energy investment in Iran. 

Photo Credit: IRNA

In Reprieve for Multinational Business, Trump to Stave Snapback of Iran Sanctions

Following a lengthy interagency review, Donald Trump will today unveil his new Iran policy, bringing to an end months of speculation as to his administration's intentions. Despite Trump’s view of the Iran Deal as “the worst deal ever,” early reports make clear that Trump will not be withdrawing from the Joint Comprehensive Plan of Action (JCPOA).

Despite recent political uncertainty, underlying commercial momentum has remained strong in 2017. Trade between Europe and Iran nearly double in the first half of 2017, compared to the same period the year prior. The Iranian government reports that commitments of foreign direct investment have risen 55% in the last Iranian calendar year. The spectre of decertification has been seen as a risk to this steady growth.  

On Thursday, the Trump administration provided background briefings to European diplomats and the members of the press outlining the content of the pending announcement. While specific details of the new strategy remain embargoed until shortly before Trump’s speech, which will be made at 12:45 EST, reporting by the Julian Borger of The Guardian and the Matthew Lee of the Associated Press, outlines a strategy that is less damaging than had been feared.

While President Trump will formally decertify Iran’s compliance with the JCPOA, he will do so not in denial of Iran’s technical compliance with the agreement, which has been subject to eight confirming reports by the International Atomic Energy Association (IAEA), but rather on the basis of America’s national security interest, in accordance with a specific provision for decertification stipulated in the Iran Nuclear Agreement Review Act (INARA).

The move to decertify will push the issue of the Iran Deal to Congress. The Trump administration is seeking new amendments to INARA in an attempt to address perceived “flaws” in the JCPOA. These include new provisions relating to Iran’s ballistic missile program and the activities of Iran’s Islamic Revolutionary Guard Corps (IRGC) that would automatically trigger the snapback of secondary sanctions in the event of a violation. Importantly, the administration is also seeking an amendment to INARA to remove the requirement for Trump to certify Iran’s compliance every 90 days, a move widely seen as a face-saving maneuver for an administration beset by infighting on the issue.

Crucially for multinational businesses active in Iran, the administration will not be recommending Congress reimpose the sanctions removed as part of the implementation of the JCPOA, which would have been tantamount to America’s withdrawal from the deal. The administration has also decided not to designate the IRGC as a terrorist organization, a move which would have risked drawing the Iranian government into an escalation.

As such, Trump’s announcement will have little immediate bearing on the ability of multinational companies to continue to trade and invest in Iran. Business leaders had long expected Trump to eventually decertify Iran’s compliance and had proceeded with commercial contracts accounting for such a move. In a recent survey of business leaders,  68% of Iranian respondents and 63% of non-Iranian respondents considered snapback a likely or very likely outcome of decertification. The fact that the administration is not recommending the reimposition of secondary sanctions will be seen as a reprieve. The question that now remains is the extent to which Congress wishes to redefine the scope of compliant trade and investment through amendments to INARA.

In what some business leaders see as a silver lining of the turmoil caused by the decertification issue, it may be that more definitive action by Congress could actually help safeguard the implementation of the JCPOA and by extension the operations of multinational businesses in Iran. For example, removing the rolling certification requirements would reduce political uncertainty surrounding the deal and its continued implementation. 

Moreover, that Trump is not withdrawing from the agreement demonstrates that coordinated diplomacy can protect the JCPOA in Washington, and by extension, protect market access. In response to rising political uncertainty, and in the lead-up to today's announcement, European governments and the European business community significantly increased their level of direct dialogue on matters related to Iran Deal implementation. This dialogue helped ensure that the missions of the European diplomatic corps and the business community were mutually reinforcing. The progress made by businesses in engaging in Iran, with notable deals signed this summer by many of Europe’s industrial giants, helped underline the strategic value of the JCPOA for Europe beyond the realm of security issues.

The diplomatic efforts will need to continue. Congress is expected to make its determinations regarding the amendments to INARA within the next two months. There is significant risk that Congress could introduce new provisions to INARA that make compliance politically untenable for the Iranian government, which will see possible automatic snapback as a kind of booby trap. However if Congress takes a more sensible approach, the Iran Deal may yet emerge stronger than before. The new Trump strategy is minimal in its prescriptions. European leaders, must step in to define what a workable Iran policy looks like for all parties.  

Photo Credit: Wikicommons

Majority of Business Leaders Blame Trump for Slow Iran Investments

This article was originally published in LobeLog.

As President Donald Trump threatens to de-certify Iran’s compliance with the JCPOA, the political environment around post-sanctions trade and investment has grown more contentious. Yet, at the same time, after extensive negotiations with leading multinational companies, Iran has witnessed landmark agreements signed across industries, with billions of dollars of investment committed and financing agreements inked. For those business leaders continuing to push ahead in Iran, and for the Iranian public to whom they are accountable, the question is what to make of such contradictions.

To examine this and other questions, Bourse & Bazaar partnered with IranPoll to conduct a unique survey focused on economic attitudes and business confidence in Iran. The survey was conducted in August 2017 and covered a representative sample of 700 Iranians.

Several of the questions centered on post-sanctions investment and the political importance of the JCPOA. But perhaps most notably, 70% of Iranians surveyed believe that multinational companies are “moving slower than they could” to trade and invest in Iran following the lifting of international sanctions. Of this group, a significant 76% of Iranians identified “pressure or fear of the United States” as the key reason, compared to just 16% would blamed Iran’s “weak business environment.”

It is certainly sensible for Iranians to blame Trump’s antipathy towards the nuclear deal as a primary reason for the slow pace of Iran’s post-sanctions economic recovery. But this view might unfairly discount the inherent difficulties of investing in Iran, a fact that the Obama administration highlighted when concerns over the slow pace of economic engagement first emerged in early 2016.

It seemed a reasonable assumption that the “experts” who are the business leaders or policymakers actually trying to make trade and investment happen might have a different, more nuanced view than the Iranian public. The barriers to trade and investment in Iran are very real. The country ranks 120 in the World Bank’s “Ease of Doing Business” rankings, having actually fallen three places in the last year.

Results of the “Expert” Survey

To investigate this assumption, IranPoll and Bourse & Bazaar administered an online survey that collected responses from just over 250 “experts,” sampled based on their active involvement in Iran trade and investment matters. Of these respondents, 79% held either a master's degree or PhD, and 70% were professionals from European or Iranian private-sector enterprises. The remainder worked in state-owned enterprises, government agencies, or policy institutes. Importantly, 70% of respondents considered themselves to be either somewhat or well-informed about investing in Iran.

In an amazing example of statistical congruence, 70% of the expert respondents surveyed believe that multinational companies are “moving slower than they could” on trade and invest in Iran. Of this group, 76% blame “pressure or fear of the United States” for the slow movement, with just 17% blaming Iran’s challenging business environment. These proportions directly mirror the results seen in the survey of the Iranian public. How can it be that these experts, who know all too well that Iran is a difficult place to do business, are seemingly discounting those difficulties in the face of Trump’s rhetoric?

The answer may lie in the slow and steady progress that has been made in Iran trade and investment in the last year. Major contracts signed in 2017 include the first major post-sanctions investment in Iran’s oil sector, the first automotive investment majority owned by a foreign multinational, and the first equity stake taken by a global financial institution in an Iranian financial services firm, in addition to several major financing agreements and even more unheralded deals. This overall momentum, hidden to all but those watching Iran most closely, suggests that business leaders, as well as the regulators and policymakers with whom they work, have gained a sharper understanding of how to conduct business in the country. Although Iran’s economy remains rife with obstacles, business leaders are proving more adept navigators. For example, in the same survey, 74% of respondents said that they believe they know the right people to conduct business in Iran. As business leaders gain confidence in their own abilities and greater means to manage challenges within their control, the turmoil in Washington remains the key complication to trade and investment plans.

But if the business leaders are able to recognize American rhetoric as superficial, why exactly is it slowing the pace of trade and investment? This is likely because the rhetoric is impacting decision-making not for those closest to projects in Iran but for those stakeholders on whom they rely.

Commercial Agenda Advances

Reading the headlines on Iran, driven by Trump’s soundbites, it would be easy to believe that Iran is an untenable place to do business in the current political environment. Yet, the “country managers” who run business divisions in Iran for multinational companies have made considerable progress over the last year in pushing forward a commercial agenda. This contradiction may explain why 69% of respondents in the expert survey felt that international media outlets are not an accurate source of information about Iran’s “trade and investment environment.”

The slowdown occurs when the question of Iran crosses the desks of decisionmakers further from the point of contact. By dint of their progress, country managers increasingly need to draw on support from other parts of their multinational organizations and suppliers and partners in order to execute strategy. Most crucially, as a project reaches contract stage, it becomes imperative to find a financing solution. This requires the country manager to both bring his senior executives on board with the project plan and then seek engagement from a financial institution. When critical decisions reach this wider circle of stakeholders, headlines become far more salient. These stakeholders cannot draw on firsthand experience to bolster their confidence in an Iran-related commercial decision and rely instead on the incomplete picture painted in the international media. Understandably, they find it difficult to act decisively in the face of uncertainty, particular when personal or company reputations come into play.

In this way, Trump’s rhetoric is slowing the momentum of trade and investment prior to any snapback of sanctions. No doubt, Trump’s impending decision on decertification of Iran’s compliance with the JCPOA does make snapback a potential outcome. Tellingly, 68% of Iranian respondents and 63% of non-Iranian respondents in the expert survey considered snapback a likely or very likely outcome of decertification.

However, in this intervening period, during which there has been no instrumental change in US policy, the reported slowdown in trade and investment helps demonstrate a deficiency in how deal supporters are counteracting Trump’s message. The critical point is that Trump only has his message. Given the track record of his administration, he is unlikely to have a cohesive Iran policy at any stage, even if he decides to decertify.

Deal supporters in Washington ought to define the economic scope of sensible Iran policy more clearly and thereby support business confidence more actively. The imperative here follows directly from what it means to offer “sanctions relief.” As a policy tool, sanctions impose political ideology on economic structures. The act of sanctions “designations” makes a normative judgement about the objective composition of an economy, defining the acceptable level of commercial relations with certain economic actors. Consequently, crafting an effective post-sanctions policy requires its own congruence between ideology and structure.

In the case of Iran, the objective reality that trade and investment are incentivizing structural liberalization in Iran’s economy needs to be expressed and valued in ideological terms. Encouragingly, European stakeholders have become more assertive in presenting such a vision. Helga Schmid, secretary general of the European External Action Service, stated in a recent speech at the 4th Europe-Iran Forum, “We recognize that it is important that the benefits of the Iranian deal are felt directly by the Iranian people and Iranian businesses. This is necessary for the success of the deal, but it is also in the interest of the EU, its Member States and economic operators.”

Deal supporters in Washington should likewise be more confident in declaring that, where sanctions relief allows, companies ought to be free in engaging in trade and investment in Iran. Commerce not only helps preserve the nuclear deal but it can also help incentivize financial, industrial, and legal reforms, in a manner akin to how enterprise has helped successfully open economies in Eastern Europe, Latin America, and Southeast Asia. Of course, this amelioration will only take place in the medium to long term. But in the near term, a tactical insistence on stronger messaging around economic engagement is necessary to support those stakeholders whose work is so crucial to the quid-pro-quo of the deal and whose activities are fundamental to winning the hearts and minds of an Iranian public already so hopeful that engagement will deliver a brighter future.

Photo Credit: Wikicommons