Revue - Les Cahiers de l'Arbitrage N°1-2023 - 57

DOCTRINES - DÉBATS
only involve the client and its legal counsel, but it can already involve experts,
third-party funders, or other service providers.
36. The only question is whether this preparatory phase is deemed strictly
necessary, and, whether there is a need for an actual arbitral proceeding to be
initiated for this. In this respect, Regulation 833/2014 raises many questions and
offers only few answers. 54
Can a too diligent pre-contentious analysis by a law
firm exceed the level of services allowed by Regulation 833/2014? Do such
legal services fall under the exception if in the end the dispute is not brought to
arbitration? What are the services which are strictly necessary ahead of an arbitral
proceeding?
37. The most difficult question may concern the lack of an arbitral procedure.
How can the exception related to arbitration be interpreted in practice? From a
formalistic point of view, a preparatory phase which ends with a recommendation
issued by the lawyer considering that the dispute should not be brought to
arbitration does not result in an arbitration, and thus, might not fall under the
exception. Similarly, a client might always decide not to pursue a claim for strategic
or organisational or financial reasons. It might be subsequently questioned whether
the legal services were actually strictly necessary without an arbitral proceeding.
When interpreting Regulation 833/2014, is there a need to consider the mean or
the actual result?
38. A more careful approach would suggest that a company's decision process
with regard to pursuing (or not) a claim is part of the right to be heard, therefore it
is strictly necessary in order to ensure access to justice. There is limited evidence
as of now that such an interpretation would prevail.
39. Elements of response may be sought in the actual texts which prohibit
the provision of legal services. Based on Council Regulation (EU) 2022/1904, 55
a legal advisory service is " the provision of legal advice to customers in noncontentious
matters, including commercial transactions, involving the application
or interpretation of law; participation with or on behalf of clients in commercial
transactions, negotiations and other dealings with third parties; and preparation,
execution and verification of legal documents. " . Further on, Regulation 833/2014
provides that " 'Legal advisory services' does not include any representation,
advice, preparation of documents or verification of documents in the context
of legal representation services, namely in matters or proceedings before
administrative agencies, courts or other duly constituted official tribunals, or in
arbitral or mediation proceedings. " 56
Yet, the preparatory stage of a representation
is not included in the list of activities which are not covered by the prohibition.
Therefore,
this
definition cannot erase
interpretation of the prohibition.
the concerns regarding a formalistic
54. CNB, 'Des restrictions applicables aux avocats dans le 8e paquet de sanctions relatif à l'invasion
de l'Ukraine' (10 October 2022)
accessed 15 February 2023.
55. Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU)
No 833/2014 concerning restrictive measures in view of Russia's actions destabilising the situation
in Ukraine
56. Ibidem.
Les Cahiers de l'Arbitrage 2023‑1
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https://www.cnb.avocat.fr/fr/actualites/des-restrictions-applicables-aux-avocats-dans-le-8e-paquet-de-sanctions-relatif-linvasion-de https://www.cnb.avocat.fr/fr/actualites/des-restrictions-applicables-aux-avocats-dans-le-8e-paquet-de-sanctions-relatif-linvasion-de

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

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