Revue - Les Cahiers de l'Arbitrage N°1-2023 - 49

DOCTRINES - DÉBATS
possibility of relying on the services of a lawyer, be it during the arbitral procedure
itself or the annulment or enforcement proceedings, became subject to limitations.
The question of legal representation quickly became an issue.
4. Sanctions impacting legal counsel and the provision of legal services are
well-known in the context of international sanctions and they are among the tools
used by states in order to put pressure on a sanctioned state. Such tools have
been used by the US, for instance, in its sanctions against Iran or Libya. 5
These
require careful and regular review of the applicable laws and regulations in order
to determine whether provision of legal services is possible and if so under which
conditions.
5. The precaution of lawyers could have easily become a sentiment of secondguessing
under the broad prohibitions and limitations of the current sanctioning
regime. 6
One of
Both the Russian Federation and Russian companies have been often
involved in international arbitration proceedings and have relied on representation
by foreign law firms. According to Kryvoi, " Russia imported 85% of its legal services
from the G7 countries, with the UK accounting for 59% of that figure. " 7
the consequences of the Russian invasion and of the sanctions packages was an
unprecedented legal exodus and tie-cutting with the Russian State and Russianowned
and -based entities. 8
The combination of the obligation to comply with the
applicable sanctions regimes and public pressure rendered the continuation of the
concerned law firms' activity challenging.
6. Arbitration may be relevant in the future in relation to the current conflict.
For example, arbitration is a dispute mechanism which may be used by investors
and companies in order to claim compensation for damages suffered as a result
of the war. Commentators interpreted the decision of the Grand Chamber of the
European Court of Human Rights 9
which held that Russia effectively controlled the
territory of Eastern Ukraine, as one step further towards such claims and procedures
being introduced. 10
7. The article addresses the main issues arbitration practitioners need to assess
in relation to the application of the sanctions regime. Section 1 will revisit the way
in which sanctions regimes have been applied in the past, in similar situations.
Section 2 will present the current applicable sanctions regime in case of provision
of legal services in the EU, the UK, Switzerland, and other jurisdictions. Section 3
will then consider the future of providing legal services within the EU and looks at
current case law and recent developments.
5. Jill M. Troxel, 'Office of Foreign Assets Control Regulations: Making Attorneys Choose between
Compliance and the Attorney-Client Relationship' (2005) 24 The Review of Litigation 637, 640.
6. For a similar discussion regarding a 263 Sanction by the Ministry of Foreign Affairs of the
People's Republic of China on individuals and entities, including a London set of barristers, see Steve
Ngo and Steven Walker, 'Impact and Effects of International Economic Sanctions on International
Arbitration' (2022) 88.3 Arbitration: The International Journal of Arbitration, Mediation and Dispute
Management 388, 400-402.
7. Yarik Kryvoi, 'The effect of sanctions on investment arbitration' (BIICL, 24 October 2022)
accessed 15 February 2023.
8. Ibidem.
9. European Court of Human Rights, Ukraine and the Netherlands v. Russia (applications
nos. 8019/16, 43800/14 and 28525/20), Decision, January 25, 2023.
10. Ibid, [611].
Les Cahiers de l'Arbitrage 2023‑1
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Revue - Les Cahiers de l'Arbitrage N°1-2023

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