Revue - Les Cahiers de l'Arbitrage N°1-2023 - 53

DOCTRINES - DÉBATS
for both arbitral institutions and practitioners, as payments for legal services related
to access to arbitral proceedings were exempted from the sanctioning regime.
Thus, lawyers can, in theory, receive payments for services provided during an
arbitration or post-award. In practice however, payments are much more difficult
to obtain since banks are very reluctant to release these amounts.
21. The Consolidated FAQs 32
of the Regulation 833/2014 provide that
" Article 5aa should be interpreted in light of the fundamental rights protected
under the Charter, in particular the right of defence. " The interpretation given by
the FAQ links the right to an effective legal remedy to the exception, a right which
is protected by both the EU Charter of Fundamental Rights ( " EU Charter " ) and the
European Convention of Human Rights ( " ECHR " ). Although the Regulation appears
to distinguish between contentious and non-contentious situations, it is difficult to
draw a line between these two.
2.2 United Kingdom
22. Once the UK had left the EU, the EU sanction package stopped applying to
it. 33
2019. 34
same way the EU did. 35
Thus, a first regulation containing sanctions against Russia was introduced in
However, the UK expanded and made its sanctions regime evolve in the
Actually, the UK first mentioned a ban on legal advisory
services in a public announcement made on 30 September 2022, six days before
the 8th
EU package was made public. 36
23. Unlike the EU though, the UK sanctions regime does not contain a
prohibition of providing legal services. Thus, the announcement of 30 September
2022 never materialised, 37
legal consulting services. 38
as the list stipulated by Regulation 54B does not mention
Therefore, UK based lawyers are free to provide legal
services related to arbitration, without any limitations.
24. Conversely, the payment regime in case of the UK does not provide for
a general exception. It rather prescribes that a licence has to be obtained from
the Office of Financial Sanctions Implementation (OFSI), based on Regulation 64
of the Russia (Sanctions) (EU Exit) Regulations 2019 (and similarly Regulation 32 of
the Republic of Belarus (Sanctions) (EU Exit) Regulations 2019). Obtaining such a
licence proved to be very difficult in practice.
the-eus-clarification-on-access-to-arbitration-in-its-seventh-package-of-sanctions-against-russiatrivial-or-consequential/,
last accessed on 15th
of February 2023.
32. Commission Consolidated FAQs, on the implementation of Council Regulation No 833/2014
and Council Regulation No 269/2014 (2023)
accessed 15 February 2023.
33. For an overview of the sanctions in England and Wales after Brexit see Cornell (n 25) 269-270.
34. The Russia (Sanctions) (EU Exit) Regulations 2019 Accessed 15 February 2023.
35. Alexander Gridasov, Olga Dementyeva and Federico Amodeo, 'Navigating UK Sanctions
Against Russian Persons in International Arbitration' (Kluwer Arbitration Blog, 20 January 2023)

accessed 15 February 2023.
36. Ministry of Justice, 'Sanctions in response to Putin's illegal annexation of Ukrainian regions',
Press Release
accessed 15 February 2023.
37. Claypoole (n 2) 9.
38. The Russia (Sanctions) (EU Exit) Regulations 2019 with amendments.
Les Cahiers de l'Arbitrage 2023‑1
51

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/the-eus-clarification-on-access-to-arbitration-in-its-seventh-package-of-sanctions-against-russia-trivial-or-consequential/ https://finance.ec.europa.eu/system/files/2023%E2%80%9102/faqs-sanctions-russia-consolidated_en_3.pdf https://finance.ec.europa.eu/system/files/2023%E2%80%9102/faqs-sanctions-russia-consolidated_en_3.pdf https://www.legislation.gov.uk/uksi/2019/855/contents/made https://finance.ec.europa.eu/system/files/2023-02/faqs https://www.legislation.gov.uk/uksi/2019/855/contents/made https://arbitrationblog.kluwerarbitration.com/2023/01/20/navigating-uk-sanctions-against-russian-persons-in-international-arbitration/ https://arbitrationblog.kluwerarbitration.com/2023/01/20/navigating-uk-sanctions-against-russian-persons-in-international-arbitration/ https://www.gov.uk/government/news/sanctions-in-response-to-putins-illegal-annexation-of-ukrainian-regions https://arbitrationblog.kluwerarbitration.com/2023/01/20/navigating-uk-sanctions-against-russian https://www.gov.uk/government/news/sanctions-in-response-to-putins-illegal-annexation-of-ukrainian-regions https://www.gov.uk/government/news/sanctions-in-response-to-putins-illegal

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

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