Economic sanctions arbitrability and public policy.

Kotelnikov, Andrey

Abstract

This article, through an overview of international experience, considers the interplay between economic sanctions and international commercial arbitration, in particular, the effect of sanctions on the arbitrability of disputes and the public policy exception. Both arbitrability and public policy have previously been used to address the sanctions issue in arbitration, and the courts will likely have to deal with them again in the future. The article argues that any impact of sanctions on arbitrability of disputes is unjustified, but the use of public policy as a ground to challenge awards and to refuse their recognition and enforcement, as well as to invalidate arbitral agreements, has to remain the primary tool of control for the competent national courts. It also considers how, in the atmosphere of high foreign policy tension, even a court decision to recognise and enforce an arbitral award does not always guarantee the payment of an award debt. Where an an overseas government subject to economic sanctions is involved in such a case, this raises a host of additional questions related to sovereign immunity, and may provide other creditors of that state with additional opportunities for the debt recovery.

Citation

KOTELNIKOV, A. 2020. Economic sanctions, arbitrability and public policy. International arbitration law review [online], 23(1), pages 19-39. Available from: http://westlaw.co.uk

• Journal Article Type: Article
• Acceptance Date: Jan 11, 2020
• Online Publication Date: Mar 27, 2020
• Publication Date: Mar 31, 2020
• Deposit Date: Jan 17, 2020
• Publicly Available Date: Mar 28, 2021
• Journal: International arbitration law review
• Print ISSN: 1367-8272
• Electronic ISSN: 1367-8272
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 23
• Issue: 1
• Pages: 19-39
• Keywords: Arbitration awards; Economic sanctions; Enforcement; International arbitration; Public policy; Russia; Setting aside; Arbitrability; Public policy
• Public URL: https://rgu-repository.worktribe.com/output/830000
• Publisher URL: http://westlaw.co.uk