Revue - Les Cahiers de l'Arbitrage N°1-2023 - 44

ARTICLES - DEBATES
expressing reticence to file for arbitration not only due to anticipated payment
difficulties, but also due to perceptions of being unable to receive a fair hearing.
Many of the major arbitral institutions published official statements following the
imposition of EU sanctions in 2014 to assure prospective Russian parties that they will
continue to receive the same impartial and equal treatment, and that administrative
and practical concerns can be readily navigated. 64
The SCC has renewed these
statements through further information statements published on its websites in March
2022. 65
Similarly, the Vienna International Arbitration Centre (VIAC) has stated
that " VIAC has a strict and thorough sanctions procedure in place to ensure that
arbitrations are administered in compliance with any applicable sanctions taking into
consideration the parties right to have access to justice and right to be heard " . 66
It remains to be seen whether such assurances will have the intended effect on
prospective Russian parties.
33. What is perhaps more likely, is that the onset of the recent sanctions
measures, coupled with the wider shifts in relations and trading activity between
Russia and the West, will lead to Russian parties turning elsewhere to resolve their
disputes. This reflects a trend that was already in motion even prior to 2022, which
saw Russian parties consider arbitration administered in Asia or the Middle East as
increasingly viable options. 67
These alternative options, however, may not be the
panacea to sanctions headaches that Russian parties hope for: these institutions
may nevertheless be affected by the jurisdictional reach of Western sanctions, or
by restrictive banking policies that reflect global compliance considerations rather
than merely the law. 68
34. Further, amidst other alarming legal developments in Russia, 69
inroads
are being made on the use of arbitration altogether. In 2020, Russia enacted
Article 248.1 of its Arbitrazh (Commercial) Procedure Code (APC) that allows
sanctioned Russian parties to bring claims before the Russian courts, and obtain an
anti-suit injunction against foreign court or arbitral proceedings, where: (i) one of
the parties is sanctioned; (ii) the dispute concerns a sanctioned matter; or (iii) an
64. ICC, LCIA, SCC, " The potential impact of the EU sanctions against Russia on international
arbitration administered by EU-based institutions " , 17 June 2015, available here: https://www.
europeansanctions.com/wp-content/uploads/2022/11/ICC-LCIA-and-Arbitration-Institute-Thepotential-impact-of-the-EU-sanctions-against-Russia-on-international-arbitration-administered-byEU-based-institutions.pdf;
and ICC, Note to Parties and Arbitral Tribunals on ICC Compliance,
29 September 2017, available here: https://iccwbo.org/content/uploads/sites/3/2017/11/note-toparties-and-arbitral-tribunals-on-icc-compliance-english.pdf.
65.
SCC, " General information for parties covered by the EU Sanctions " , 11 March 2022, available
here: https://sccarbitrationinstitute.se/sites/default/files/2022-11/general-information-to-listed-parties11-march-2022.pdf;
and SCC, " Q&A on the EU sanctions against Russia " , March 2022, available
here: https://sccarbitrationinstitute.se/sites/default/files/2022-11/sanctions-q-and-a-march-2022.pdf.
66. VIAC, " Sanctions & Arbitration - how do the two get along? " , available here: https://www.
viac.eu/en/arbitration/content/sanctions-arbitration-how-do-the-two-get-along.
67. See the LCIA 2021 Annual Casework Report, p. 4; and Russian Arbitration Association,
2022 Russian Arbitration Association Survey: The Impact of Sanctions on Commercial Arbitration,
available here: https://arbitration.ru/upload/medialibrary/319/rwbwb3rdjvkywize5jo5e6nu12t8c6it/
RAA-2022-Study-on-sanctions_eng.pdf.
68. Sarah Steven, " GAR Live London Lookback: Sanctions - a triangular look " , Global Arbitration
Review, 23 April 2018, available here: https://globalarbitrationreview.com/gallery/gar-live-londonlookback-sanctions-triangular-look.
69.
See Rachel Barnes QC et. al., Global Investigations Review - The Guide to Sanctions (3rd ed.),
(Law Business Research Ltd, 2022), pp. 1-2.
42
The Paris Journal of International Arbitration 2023‑1

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Revue - Les Cahiers de l'Arbitrage N°1-2023

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