Revue - Les Cahiers de l'Arbitrage N°1-2023 - 5

ÉDITORIAL
The third contribution in this issue regarding the relationship between
international arbitration and the law of the EU concerns the judgment of the Greek
Conseil d'État, in the AIA case. The facts of the case are sufficiently and clearly
set out in the remarkable analysis of Polly Efstratiadi and Evanthia Kasiora and
again do not need to be repeated here. Suffice it to say that the Greek Conseil
d'État refused to recognize and therefore to give res judicata effect to an arbitration
award rendered by an LCIA arbitral tribunal with a London seat. The award was
made pursuant to a concession agreement between AIA and the Greek State,
regarding the operation of the Athens International Airport. The concession
agreement included specific exemptions regarding VAT, which were the subject
matter of the dispute on which the tribunal found in favour of AIA. The Conseil
d'État refused to recognize and give effect to the award and remanded the matter
to the administrative court of appeal to rule on the merits of the VAT dispute.
Considering that the Concession Agreement, although purely contractual, was to
be considered an " investment agreement " the Conseil d'État proceeded, on the
basis of the reasoning of the CJEU in Achmea, to hold that its arbitration clause
was incompatible with EU law, which governs the subject of VAT in the EU. As
the authors point out, this decision gives rise to serious concern and they consider
that it may seriously be criticized. No attempt is made to define what is to be
considered an " investment agreement " . The Conseil d'État has simply disregarded
the fact that the arbitration in issue was treaty-based. And it is noteworthy that
the Conseil d'État did not see fit to consult the CJEU on the issue. But, whatever
criticisms may be made, the case clearly raises the possibility that Achmea could
be invoked in any contractual arbitration case where one of the parties is an EU
Member State.
This issue is also dedicated to the many tensions raised by the enhanced
sanctions regimes affecting Russian nationals and entities since the invasion of
Ukraine in February 2022. We include two valuable contributions in this regard.
The first, by Frederik Ringquist, Angela Evans and Christian Andersson, considers
the impact of EU and UK sanctions in particular on European arbitration institutions
and arbitrators. The heightened sanctions regimes do make allowance for payments
by sanctioned ( " listed " ) persons, so as to allow them continued access to legal
proceedings, including arbitration. However, these exceptions do not always
effectively align with the administrative role played by arbitral institutions, who do
not directly provide legal services. Certain situations, such as payments made by
one party in lieu of a defaulting (sanctioned) party are not always clearly covered
by applicable rules. And it is quite often the case that banks will decline to process
necessary payments, even where they are allowed under applicable sanctions rules.
Ioana Knoll-Tudor considers the impact of sanctions on lawyers representing
sanctioned parties and how this may affect such parties' access to arbitral justice,
with a particular emphasis on lawyers from Switzerland, the European Union and
the United Kingdom. While all these jurisdictions allow the provision of legal
services for the purpose of arbitration, the regimes differ. Where legal services are
only permitted in relation to judicial or arbitral proceedings, does this extend to
pre-litigation or arbitration assistance? The rules also differ concerning payment
for these legal services. Issues also arise in relation to the resignation of counsel
to sanctioned Russian parties. Whereas State courts can and have obliged counsel
Les Cahiers de l'Arbitrage 2023‑1
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Revue - Les Cahiers de l'Arbitrage N°1-2023

Table des matières de la publication Revue - Les Cahiers de l'Arbitrage N°1-2023
