Sanctions and International Arbitration

Eric De Brabandere and David Holloway, “Sanctions and International Arbitration” (with David Holloway), in Larissa van den Herik (ed.), Research Handbook on Sanctions and International Law (Cheltenham: Edward Elgar, 2016)

Grotius Centre Working Paper 2016/058-IEL

Leiden Law School Research Paper

25 Pages Posted: 8 Oct 2016

See all articles by Eric De Brabandere

Eric De Brabandere

Leiden University - Grotius Centre for International Legal Studies

David J. Holloway

City University of Hong Kong (CityUHK); No5 Barristers Chambers

Date Written: October 3, 2016

Abstract

This chapter focuses on the impact of sanctions on international arbitration which can be provided for in contracts which have been targeted by the sanctions, or in international investment agreements. There are indeed many aspects to this interaction, both legal and practical. On a general jurisprudential level, economic sanctions highlight various complexities within the arbitral process, viz. the operation and interaction of various laws and legal systems (the lex arbitri and law governing the arbitration agreement, the substantive law of the contract and the law of the enforcing jurisdiction as well as overriding international law principles). These various laws may be in play throughout the process, to be applied not only by tribunals themselves during the course of proceedings, but also potentially by courts deciding or reviewing questions of jurisdiction and public policy (whether at the seat or in the enforcing jurisdiction). On a more practical level the increase in relatively recent sanctions regimes has led to growing discussion about the implications of these regimes for arbitrators and arbitral institutions.

This chapter will discuss these two questions in two separate sections. The first section discusses the arbitrability of the dispute, the impact of sanctions on the jurisdiction of an arbitral tribunal, and the impact of sanctions on the enforcement of the arbitral award. The second section tackles the influence of sanctions on the conduct of arbitration proceedings. This chapter covers international arbitration in general, making no distinction between international commercial arbitration and international investment arbitration, the questions arising in both areas being of a similar nature, unless otherwise mentioned. This chapter however does not engage with the question of the effect of sanctions on the performance of contractual or other obligations which may have been affected by the imposed sanctions which is discussed elsewhere in this volume. Similarly, this chapter does not engage with the conformity of sanctions with international economic and trade law, notably in the context of the World Trade Organization, which is covered by Andrew Mitchell in his chapter in this volume.

Keywords: international arbitration, international sanctions, arbitral procedure, settting aside, applicable law

Suggested Citation

De Brabandere, Eric and Holloway, David J., Sanctions and International Arbitration (October 3, 2016). Eric De Brabandere and David Holloway, “Sanctions and International Arbitration” (with David Holloway), in Larissa van den Herik (ed.), Research Handbook on Sanctions and International Law (Cheltenham: Edward Elgar, 2016); Grotius Centre Working Paper 2016/058-IEL; Leiden Law School Research Paper. Available at SSRN: https://ssrn.com/abstract=2847000

Eric De Brabandere (Contact Author)

Leiden University - Grotius Centre for International Legal Studies ( email )

Leiden University Law Faculty
P.O. Box 9520
Leiden, 2300 RA
Netherlands
+31 71 527 7399 (Phone)
+31 71 527 7509 (Fax)

HOME PAGE: http://www.law.leiden.edu/organisation/publiclaw/publicinternationallaw/staff/eric-de-brabandere-.ht

David J. Holloway

City University of Hong Kong (CityUHK) ( email )

83 Tat Chee Avenue
Kowloon
Hong Kong

No5 Barristers Chambers ( email )

London
United Kingdom

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