Revue - Les Cahiers de l'Arbitrage N°1-2023 - 59

DOCTRINES - DÉBATS
45. A similar decision was taken by a tribunal in a commercial litigation in
front of the Eastern Caribbean Supreme Court, in the JSC VTB Bank v Sergey Taruta
and Arrowcrest Ltd case, where counsel for VTB filed to come off the record. 65
Their filing also contained that the chairman of VTB was under sanctions in the
UK. 66
The motion was denied by the judge of the High Court, with the following
reasoning: (i) counsel had not proved having applied for a special license allowing
it to continue providing legal services and /or being denied one; (ii) the departure
of counsel would seriously hinder the conduct of the proceeding by VTB; and
most importantly (iii) nothing in the sanctions regime showed any intention to limit
sanctioned entities' right to participate in litigation. 67
46. The final consideration is also applicable in case of arbitration falling
under EU Regulation 833/2014. The question is: are arbitral tribunals able to rule
on the decision of counsel to withdraw? Unlike a state court which is equipped
with discretionary powers to decide on whether a legal representative can resign or
not, arbitral tribunals are historically ill-equipped to deal with these issues.
47. Most frequently, arbitral rules only provide for a mandatory notification
whenever a party changes its legal representative. 68
Some institutional rules, such as
the 2021 ICC Rules, provide that a new legal representative might be barred to join
an ongoing procedure if their participation would create a conflict of interest with
a member of the tribunal or a counsel in the case. 69
There is however one example
of express powers granted to the tribunal to consider and withhold „any intended
change or addition by a party to its authorised representatives " under Article 18.3 of
the 2020 LCIA Rules. 70
The question persists with regard to other arbitral institutions
and the tribunals constituted under their rules, as to whether arbitral tribunals have
the power to deny counsel from parting ways with their client. 71
These issues will
most certainly remain under the jurisdiciton of the national courts of the seat.
3.3 The case of request for appointment of legal representation
48. Once most major law firms representing Russia have resigned from their
mandates, a new question arises, namely, what happens in case of lack of counsel
for sanctioned entities and the Russian Federation in those procedures in which
legal representation is mandatory and how is the principle of access justice
complied with in such cases?
49. An illustrative case, decided by the Disciplinary Appeals Court of The
Hague, sheds some light on such situations. 72
The Russian Federation was involved
65. JSC VTB Bank v Sergey Taruta and Arrowcrest Ltd, BVIHC (COM) 2014/0062 Open
Judgement dated 17 March 2022.
66. Ibid. [4].
67. Hamish Lal and Brendan Casey, 'EU, UK & US 'Sanctions': Procedural and Substantive
Impact on International Arbitration?' (2022) 16.2 Dispute Resolution International, 109, 119-122.
68. 2016 SIAC Rules, Art. 23.2.
69. 2021 ICC Rules, Art 17(2)
70. 2020 LCIA Rules, Art 18.3.
71. Hamish Lal and Brendan Casey, (n 66) 121-123. See also Karl-Heinz Böckstiegelm,
'Applicable Law in Disputes Concerning Economic Sanctions: A Procedural Framework for Arbitral
Tribunals Get access Arrow' (2014) 30.4 Arbitration International 605, 608-612.
72. Hof Van Discipline, Beslissing in de zaak onder nummer van: 220199, 18 August 2022.
Les Cahiers de l'Arbitrage 2023‑1
57

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

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