De Brabandere, Eric; Holloway, David --- "Sanctions and international arbitration" [2017] ELECD 1006; in van den Herik, Larissa (ed), "Research Handbook on UN Sanctions and International Law" (Edward Elgar Publishing, 2017) 304

Book Title: Research Handbook on UN Sanctions and International Law

Editor(s): van den Herik, Larissa

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784713027

Section: Chapter 14

Section Title: Sanctions and international arbitration

Author(s): De Brabandere, Eric; Holloway, David

Number of pages: 26

Abstract/Description:

The sanctions enacted by the European Union (EU), the United States of America (US) and various other States in 2014 against several Russian individuals have sparked a debate amongst scholars and practitioners concerning the arbitration of disputes involving Russian parties or transactions targeted by the sanctions. The issues arising, 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. This chapter focuses on the impact of sanctions on international arbitration which can be provided for in contracts which have been targeted by the sanctions, or in international investment agreements. On a general jurisprudential level, economic sanctions highlight various complexities within the arbitral process, viz. the operation and interaction of various laws and legal systems (the lex arbitri and law governing the arbitration agreement, the substantive law of the contract and the law of the enforcing jurisdiction as well as overriding international law principles). 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 and public policy (whether at the seat or in the enforcing jurisdiction). On a more practical level the increase in relatively recent sanctions regimes has led to growing discussion about the implications of these regimes for arbitrators and arbitral institutions. Keywords international arbitration, arbitrability, lex arbitri, jurisdiction, responsibility of arbitrators and arbitration institutions, investment arbitration