Insights / News
Insights / News
The sanctions enacted by the European Union (EU), the United States of America (U.S.) and various other States in 2014 against several Russian individuals, as well as the (re-imposed) sanctions regimes put in place against Iran and Iranian nationals have sparked a debate among scholars and practitioners concerning the arbitration of disputes involving parties or transactions targeted by the sanctions.
The issues arising from these actions, however, are not completely novel. The impact of sanctions on international arbitration has been studied and discussed for many years, notably in relation to the sanctions against Iraq, Libya and Iran Sanctions, of course, are a diverse and incoherent set of (economic) measures. Sanctions can emanate from a State, a group of States, international or regional organisations. The types of sanction measures taken have also proven to be very diverse, ranging from general trade embargos to sanctions targeting specific individuals, groups of individuals and/or specific transactions.
There are many aspects to the interaction between sanctions and international arbitration, both legal and practical. On a general jurisprudential level, economic sanctions highlight various complexities within the arbitral process, namely the operation and interaction of various laws and legal systems, such as the lex arbitri and law governing the arbitration agreement, the substantive law of the contract and the law of the enforcing jurisdiction. These various laws may be in play throughout the process, to be applied not only by tribunals themselves during the course of proceedings, but also potentially by courts deciding or reviewing questions of jurisdiction in relation to public policy (whether at the seat or in the enforcing jurisdiction).
David Holloway has co-authored a chapter in the International Chamber of Commerce’s publication ‘Overriding Mandatory Provisions and Arbitrability in International Arbitration’. It focuses on the impact of sanctions on international arbitration viewed from the perspective of the arbitrability of disputes involving or relating to international sanctions, in light of the characterisation of sanctions as overriding mandatory rules.
Read the full chapter; ‘The Case of Multilateral and Unilateral Sanctions.’ here