Revue - Les Cahiers de l'Arbitrage N°1-2023 - 52

ARTICLES - DEBATES
2. Current sanctions against Russia: how it affects EU,
Swiss and UK lawyers in arbitration
17. Two practical questions arise when assessing the current sanctions
regime: can lawyers provide legal services to the Russian state or to companies
established in Russia? In the affirmative, can they receive their legal fees? This
section will provide answers for these questions with respect to the EU, the UK
and Switzerland.
2.1 European Union
18. A prohibition to provide legal services was first introduced in the 8th
of EU sanctions by Council Regulation (EU) 2022/1904. 27
package
These measures came
after the sanctions imposed by the EU against Russia evolved regularly, becoming
more severe and expanding in an increasing number of sectors.
19. After the modifications, Article 5n of the consolidated version of Council
Regulation (EU) No 833/2014 28
( " Regulation 833/2014 " ) states that " [i]t shall be
prohibited to provide, directly or indirectly, (...) legal advisory services (...) to:
(a) the Government of Russia; or (b) legal persons, entities or bodies established in
Russia. " Yet, arbitration is treated as an exception, as article 5n para 6 provides that
this prohibition does not apply in cases where the services are " strictly necessary to
ensure access to judicial, administrative or arbitral proceedings in a Member State " .
The legal services which are allowed by Regulation 833/2014 also involve the postaward
phases as the exception includes " recognition or enforcement of a judgment
or an arbitration award rendered in a Member State " . However, Regulation 833/2014
qualifies this exception, by adding, that provision of services has to be " consistent
with the objectives of this Regulation and Regulation (EU) No 269/2014 " .
20. Whether lawyers can obtain a payment for these services is an equally
important question. Counsel and law firms were already affected by uncertainty
when the EU prohibited entering into any transaction with Russian public entities,
a provision which was set out by Article 5aa(1) of Regulation 833/2014. 29
subsequent change, Decision (CFSP) 2022/1271, 30
brought an exception, which set
out the possibility to enter into a transaction which is " necessary to ensure access
to judicial, administrative or arbitral proceedings. " This exception came as a relief 31
27. Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU)
, nor the 10th
sanctions package contained modifications of the
No 833/2014 concerning restrictive measures in view of Russia's actions destabilising the situation
in Ukraine, article 5n. Nor the 9th
rules of providing legal services.
28. Consolidated text: Council Regulation (EU) No 833/2014 of 31 July 2014 concerning
restrictive measures in view of Russia's actions destabilising the situation in Ukraine.
29. Council Regulation (EU) 2022/1269 of 21 July 2022 amending Regulation (EU) No 833/2014
concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine,
article 5aa(1).
30. Council Decision (CFSP) 2022/1271 of 21 July 2022 amending Decision 2014/512/CFSP
concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine.
31. Mercédeh Azeredo da Silveira, Stephan den Hartog, The EU's Clarification on Access to
Arbitration in its Seventh Package of Sanctions Against Russia: Trivial or Consequential?, Kluwer
Arbitration Blog, 2022, Available online at https://arbitrationblog.kluwerarbitration.com/2022/08/16/
50
The Paris Journal of International Arbitration 2023‑1
A

https://arbitrationblog.kluwerarbitration.com/2022/08/16/the-eus-clarification-on-access-to-arbitration-in-its-seventh-package-of-sanctions-against-russia-trivial-or-consequential/ https://arbitrationblog.kluwerarbitration.com/2022/08/16/

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

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