Revue - Les Cahiers de l'Arbitrage N°3 - 2024 - 52

ARTICLES - DEBATES
12. Other jurisdictions in continental Europe are also affected. Germany
and France, to name but two, have mechanisms which have been used to allow
declarations 5
or injunctions, 6
to achieve the same result.
13. This has prompted a reaction from the European Union (the " EU " ), which
adopted two mechanisms, as part of its 14th
sanctions package, specifically targeting
the use of Article 248 by Russian parties.
14. First, a transaction ban, which can be imposed on Russian entities which
sought to obtain " an injunction, order, relief, judgment or other Court decision "
pursuant to Article 248 of the Code of Commercial Procedure or " equivalent
Russian legislation " in connection with any contract or transaction, the performance
of which has been affected, directly or indirectly, in whole or in part, by the
imposition of sanctions. 7
15. Secondly, the ability for EU entities to recover losses, in judicial proceedings
before EU member states' courts, arising from claims lodged by Russian parties
with courts in third countries (including in the Russian Federation) in connection
with any contract or transaction, the performance of which has been affected by
the imposition of sanctions. 8
16. In the face of conflicting awards, decisions and/or declarations, there
is effectively little prospect of enforcement of foreign decisions in Russia or of
Russian decisions in the home state of the foreign entities. If the situation persists,
it is likely that the legal battlefield will move to places where assets are held in
supposedly " neutral " jurisdictions.
5. Section 1032(2) of the German Code of Civil Procedure allows parties to obtain a declaration
from the German courts on the admissibility of arbitral proceedings, prior to the constitution of the
arbitral tribunal. Although German courts are traditionally depicted as reluctant to issue anti-suit
injunctions, this mechanism can be equally potent.
Section 1032(2) was for instance applied in one dispute arising out of the termination of an
electrical supply and maintenance contract by a German company to comply with the sanctions
imposed on the Russian co-contractor. The contract was governed by German law and provided for
arbitration in Vienna.
In this case (No. 12 SchH 5/22), the Berlin Higher Regional Court issued a decision on 1 June
2023 holding that arbitration was the proper forum, thereby excluding the jurisdiction of State
courts, including Russian Courts pursuant to the Law. It is the authors' understanding that, absent
any appeal, this decision has now become final.
6. See: V. Carriou, op. cit., paras. 33 et seq.
7. See Council Regulation (EU) No. 833/2014 of 31 July 2014 concerning restrictive measures
in view of Russia's actions destabilising the situation in Ukraine, Article 5ab, introduced via Council
Regulation (EU) No. 2024/1745 of 24 June 2024.
8. See: Council Regulation (EU) No. 833/2014 of 31 July 2014 concerning restrictive measures
in view of Russia's actions destabilising the situation in Ukraine, Article 11a, introduced via Council
Regulation (EU) No. 2024/1745 of 24 June 2024; Council Regulation (EU) No. 269/2014 of 17 March
2014 concerning restrictive measures in respect of actions undermining or threatening the territorial
integrity, sovereignty and independence of Ukraine, Article 11a, introduced via Council Regulation
(EU) No. 2024/1739 of 24 June 2024.
694
The Paris Journal of International Arbitration 2024‑3

Revue - Les Cahiers de l'Arbitrage N°3 - 2024

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