This entry is the last in a series of three regarding issues faced by arbitral and financial institutions as a result of restrictions on transfers of funds under primary and secondary sanctions programmes. In the first post, the authors addressed the impact of asset freezes on arbitral institutions and their banks, while the second post…
This post, which follows up on a recent submission in respect of the impact of asset freezes on arbitral and financial institutions, addresses some of the issues that may be faced by such institutions as a result of restrictions that form part of the United States’ secondary sanctions against Iran. A third and final post…
This post is the first in a series of three regarding the potential impact of economic sanctions on arbitral and financial institutions. The series addresses critical issues faced by such institutions as a result of restrictions on transfers of funds under primary and secondary sanctions programmes. This first entry discusses the potential effects of asset…
In mid-2020, changes were enacted to the Russian Arbitrazh (Commercial) Procedure Code (“APC”) which established the exclusive jurisdiction of Russian Arbitrazh courts over cases where a Russian party is subject to sanctions or where the dispute has arisen out of sanctions. This raised concerns that sanctioned Russian parties would be able to easily avoid arbitration…
There is still a common misconception among foreign arbitration practitioners that in post-soviet countries the courts often tend to refuse recognition and enforcement of arbitral awards based on public policy. Is this characterisation fair with respect to Ukraine? There have been five recent cases in Ukraine on violation of public policy, with some landmark decisions…
On 19 June 2020, the new sanctions-related amendments1)Federal Law No. 171-FZ dated 8 June 2020, introducing the amendments (text in Russian). to the Russian Commercial (Arbitrazh) Procedure Code entered into force. The main objective of the law is to protect the interests of Russian natural and legal persons who are unable to effectively resolve their…
As a result of coronavirus, sanctions, for once, have not been grabbing the headlines. Unlike the media, the Russian legislative bodies have recently shown keen interest in the topic of sanctions as they have adopted a draft law from last year granting persons and companies affected by the sanctions against Russia with a right to…
In January 2020, following the Executive Order of President Trump, the United States imposed additional sanctions targeting predominately Iran’s metals sector including copper, iron and steel manufactures (the “Order”). These sanctions were designed to expand secondary sanctions to cover new industry sectors such as mining, textiles and construction. The secondary sanctions aim to deter and…
We live in time when sanctions hit the headlines almost every quarter. Naturally, this frustrates contracts and creates additional causes for disputes. However, there exists uncertainty as to whether sanctions also render awards unenforceable on the grounds of public policy. As will be shown in this post, even within the supreme court of one country…
Complex arbitration cases in financial transactions might arise within emerging markets involving gold swap transactions and syndicated loans for infrastructure projects. Gold Swaps allow central banks to receive cash from financial institutions in exchange for lending gold during a specific period of time. On the other hand, syndicated loans provide funding for large-scale, capital-intensive infrastructure…
Introduction The United States announced the reinstatement of sanctions on Iran in May 2018. Following that, the EU responded by revising their Blocking Regulation (Regulation 2271/96) in August 2018. The Blocking Regulation was designed to safeguard European entities from the extraterritorial reach of the U.S. sanctions. The uncertainty surrounding the scope of application and the nature of blocking…
Tribunal Directions re GDPR in Tennant Energy vs. Canada A NAFTA tribunal in the Tennant Energy vs. Canada case recently issued directions by email to the parties stating that “the Tribunal finds that an arbitration under NAFTA Chapter 11, a treaty to which neither the European Union nor its Member States are party, does not,…
More than one year has passed since the U.S. and Cuba started to rekindle their relationship and restore economic ties. The Cuban government is opening the country to foreign investment, the U.S. is relaxing the sanctions imposed on Cuba, and both countries reopened their embassies after half century of frosty relations. Despite U.S. sanctions, Cuba…
by Anja Havedal Ipp, Arbitration Institute of the Stockholm Chamber of Commerce A year into the sanctions regime, the arbitration community is trying to assess and predict its impact on Russia-related arbitration. Some commentators have drawn somewhat exaggerated conclusions. An October 22 post at the Kluwer Arbitration Blog, for example, talked about Russia’s “seismic shift” toward…
Financial, trade and political sanctions have long been used by states as a tool of foreign policy. This is no less true today, where high profile sanctions regimes have been imposed against Iran, Myanmar, Sudan, North Korea, and Zimbabwe amongst many others. See, for example, the lists of sanctions maintained by the EU (see here),…
In international arbitration, the effect of international sanctions regulations usually arises at two key stages. First, at the commencement of arbitration, where arbitral institutions, arbitrators and counsel involved in the proceedings must consider if they are potentially in breach of such regulations. Secondly, at the enforcement stage, if an award is challenged under the New…
As mentioned in a prior entry (Brussels’ Sanctions Against Russia and Moscow’s Retaliatory Measures Through the Eyes of the Arbitrator), under certain conditions, arbitrators have the authority to give effect to economic sanctions that are external to the applicable law. These, just like exchange control regulations and antitrust laws, fit into the category of overriding…
and Brenda Horrigan and Rebecca Soquier, Herbert Smith Freehills LLP, Shanghai The sanctions arising out of the Ukrainian crisis have led commercial entities to consider their options for resolving current or potential disputes. In this post, we consider the impact of the sanctions against Russia on the future of dispute resolution for Russian entities and…
By Resolution of 27 March 2014, the United Nations (UN) General Assembly condemned the violation of Ukraine’s territorial integrity (A/RES/68/262). The Security Council remained, however, powerless to impose against Russia economic sanctions which all UN member States would have had to implement. In the absence of such “multilateral” sanctions, the European Union (EU) and the…
The views expressed are those of the author alone and should not be regarded as representative of or binding upon the author’s institution or the ArbitralWomen. Guidelines 26 and 27 of the IBA Guidelines on Party Representation in International Arbitration have again raised the debate on the extent that Arbitral Tribunals are entitled to deal…
I. Power To Sanction Courts generally enjoy power to enforce procedural rules and orders by various means, such as fines, adverse inferences, cost/fee awards, preclusion of evidence, and even default judgment. Surprisingly, when arbitrators employ such measures, they enter a legal frontier of unsettled law. Why? An arbitrator’s procedural power derives from private contract, not…
Introduction: Many international commercial contracts (such as e.g., construction, distribution, sale and purchase) are governed by Swiss (substantive) law as per a choice of law provision. Often the choice of law is made in combination with an arbitration clause referring disputes to arbitration in Switzerland. The effect of international sanctions on commercial contracts has become…
