For the purposes of the respective E.O.s, the Office of Foreign Assets Control (OFAC) views “investment” as the commitment of capital or other assets for the purpose of generating returns or appreciation. OFAC interprets “new” investment as such a commitment made on or after the effective date of the respective E.O. prohibitions. As a general matter, new investment includes such commitments that are pursuant to an agreement entered on or after the effective dates of the respective E.O. prohibitions. New investment also includes such commitments pursuant to the exercise of rights under an agreement entered into before the effective dates of the respective E.O. prohibitions, where such commitment is made on or after the effective dates of the respective E.O. prohibitions. We note, however, that new investment does not include the maintenance of an investment made prior to the applicable effective dates of the respective E.O. prohibitions (see FAQ 1050).
Unless exempt or otherwise authorized by OFAC, transactions that OFAC considers to be “new investment” for the purposes of the respective E.O. prohibitions include:
- The purchase or acquisition of real estate in the Russian Federation, other than for noncommercial, personal use;
- Entry into an agreement requiring the commitment of capital or other assets for the establishment or expansion of projects or operations in the Russian Federation, including the formation of joint ventures or other corporate entities in the Russian Federation;
- Entry into an agreement providing for the participation in royalties or ongoing profits in the Russian Federation;
- The lending of funds to persons located in the Russian Federation for commercial purposes, including when such funds are intended to be used to fund a new or expanded project or operation in the Russian Federation;
- The purchase of an equity interest in an entity located in the Russian Federation (see FAQs 1054 and 1055); and
- The purchase or acquisition of rights to natural resources or exploitation thereof in the Russian Federation.
Examples of transactions that OFAC does not consider to be “new investment” for the purposes of the respective E.O. prohibitions include:
- Entry into, performance of, or financing of a contract, pursuant to ordinary commercial sales terms, to sell or purchase goods, services, or technology to or from an entity in the Russian Federation (e.g., a payment of an invoice for goods, where payment is made within the contracted time period and such payment does not involve participation in royalties or ongoing profits);
- Maintenance of an investment in the Russian Federation, where the investment was made prior to the effective date of the respective E.O. prohibitions, including maintenance of pre-existing entities, projects, or operations, including associated tangible property, in the Russian Federation (see FAQ 1050); and
- Wind down or divestment of a pre-existing investment, such as a pre-existing investment in an entity, project, or operation, including any associated tangible property, located in the Russian Federation (see FAQs 1053 and 1054).
Even if a transaction is not a prohibited form of “new investment” pursuant to the respective E.O.s, U.S. persons engaging in the transaction must comply with all other relevant sanctions prohibitions, including those pursuant to Ukraine-/Russia-Related Sanctions Regulations and Russian Harmful Foreign Activities Sanctions Regulations (see, e.g., FAQ 415). For example, the respective E.O.s include provisions prohibiting any approval, financing, facilitation, or guarantee by a United States person, wherever located, of a transaction by a foreign person where the transaction by that foreign person would be prohibited if performed by a United States person or within the United States. For more information, see FAQ 1053.