Overriding Mandatory Rules and Compliance in International Arbitration - Institute Dossier XIX

No. P808E

ISBN : 978-92-842-0527-1

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Economic sanctions, exchange and export control regulations adopted by countries and regional organisations are increasingly interconnected with arbitral proceedings worldwide. Their overriding mandatory nature with respect to certain territories is unquestionable. But does that make them relevant, or binding, on international arbitral tribunals sitting outside of these territories? Party submissions arguing bindingness or irrelevance, vary greatly, whether as a result of ignorance or unease, or as a deliberate attempt to mislead the tribunal. In turn, arbitral awards show no uniform position among tribunals. Scarce institutional guidance exists. Until now.

In this Institute Dossier, leading arbitrators, counsel, business decision makers, and diplomats—the very drafters of sanctions regulations—discuss their conflicting expectations of how or if mandatory rules pertaining to sanctions should be complied with.

This must-have publication is destined to enrich the database of international arbitrators, counsel, business executives, law enforcement agencies and anyone else involved in strategic decision-making.

Code ISBN :	978-92-842-0527-1
Number of pages :	211
Publishing date :	2022
Language :	English

Foreword Eduardo Silva Romero

Introduction Georges Affaki

Chapter 1

Overriding Mandatory Rules in International Arbitration:

National Monetary Restrictions

Sir William Blair, Grace Cheng

I. Introduction

II. Lois de police

III. Effect of the Covid-19 Pandemic

IV. Party Autonomy in International Commercial Arbitration

V. Public Policy

VI. Overriding Mandatory Rules

VI.1 Definition of Overriding Mandatory Rules

VI.2 Provisions Rendering the Performance of the Contract Unlawful

VI.3 Application of these Principles to Complex Financial Products

VII. Effect of the Pandemic on Financial Contracts

VIII. National Monetary Restrictions

VIII.1 Exchange Control

VIII.2 Currency Rules within a State

VIII.3 Currency Manipulation

VIII.4 Export Control

VIII.5 Sovereign Debt Moratoria

IX. Financial Sanctions

IX.1 Unilateral and Multilateral Sanctions

IX.2 The Libyan Sanctions Litigation

X. Case Law arising from the Case of Venezuela

XI. Corrupt Payments and Breaches of AML/CFT

XII. Conclusion

Chapter 2

The Evolving Dynamics of Monetary Restrictions as International Arbitration’s Next Big Challenge?

Carolyn B. Lamm, Eckhard Hellbeck, Madina Lokova and Maximilian Clasmeier.

I. Introduction.

II. States’ Regulatory Powers under General Public International Law to Impose Monetary Restrictions.

III. Potential Investment Treaty Claims against Monetary Restrictions.

III.1. Expropriation.

III.2. The Guarantee of Fair and Equitable Treatment.

III.3. The Guarantee of Full Protection and Security.

III.4. Non-Discrimination (National Treatment and Most-Favoured-Nation Treatment).

III.5. Umbrella Clause.

III.6. The Right to Transfer Funds.

IV. Defences against Claims Resulting from Monetary Restrictions.

IV.1. Customary International Law.

IV.2. Treaty-Based Exceptions and Defences.

V. The Evolving Dynamics in International Arbitration.

V.1. The Geographic and Substantive Diversity of Monetary Restrictions.

V.2. The Interconnectedness of Markets as a Multiplier.

V.3. Conclusion.

VI. The Adaptability and Adequacy of International Arbitration.

VI.1. The Role of Systemic Developments

VI.2. The Adequacy of Decisions in International Arbitration.

VI.3. The Newest Fruit of Adaptation: Doctrine of Compliance?

VII. Conclusion.

Notes.

Chapter 3

Sovereign Debt Moratoria and Covid-19: Some Necessary Thoughts on Necessity

Ali Malek, QC, Cameron Miles.

I. Introduction.

II. Customary international law and the concept of the “Grotian Moment”.

III. The “Current” International Law on Sovereign Debt Moratoria and States of Necessity.

IV. Covid-19 and the Evolution of Necessity.

V. Conclusion.

Chapter 4

Impact Of Sanctions on International Arbitration

Vladimir Khvalei.

In lieu of foreword

I. Retention of a Legal Counsel

II. Payment of an arbitration fee

III. Going through a compliance procedure within an arbitration institution

IV. Formation of an arbitral tribunal free from the impact of sanctions

V. Getting a visa and other forms of access to the country of the seat

of arbitration

VI. Organizing a hearing

VII. Retaining an expert

VIII. Avoiding negative provisions of governing law

IX. Avoiding the setting aside of an arbitration award

X. Enforcement of the award

Conclusion

Chapter 5

Overriding Mandatory Provisions and Arbitrability in International Arbitration: The Case of Multilateral and Unilateral Sanctions

Eric De Brabandere, David Holloway

I. Introduction

II. Sanctions, Overriding Mandatory Rules and Arbitrability: General Principles

III. The Arbitrability of Sanctions-Related Disputes

IV. The Specific Nature of Unilateral Sanctions

V. Concluding Remarks

Chapter 6

Overriding Mandatory Rules and Arbitration in a Changing World

Dominique Hascher

I. Overriding Mandatory Rules: A Definition

II. The Arbitrability Question

III. Should Arbitrators be Trusted?

IV. Have Arbitrators kept their Promises?

Chapter 7

Anti-corruption Compliance in International Arbitration:

The Shadow Theatre of Agent and Consultant Agreements

Laurent Cohen-Tanugi

I. Introduction

II. The Rise of Compliance and its Impact on Agent

and Consultant Agreements

III. A Conflicted Case Law

IV. The Shadow Theatre of Legacy Agreements

V. A Way Out and the Way Forward

Chapter 8

Economic Sanctions and the World Trade Organisation:

An Exception under Review

Laurence Boisson de Chazournes

I. Introduction

II. Security Exceptions in the WTO Framework

III. UN Economic Sanctions in the WTO Framework

IV. Non-UN Economic Sanctions in the WTO Framework

IV.1. Jurisdiction to Review the Invocation of Sub-paragraph (b)

of the Provisions on Security Exceptions

IV.2. The “Action” in Question must Fall under One of the

Three Sub-paragraphs of Article XXI(b)

IV.3. The Conditions of the Chapeau of Article XXI(b): “which it considers necessary for the protection of its essential security interests”

V. Concluding Remarks

Edited by

Georges Affaki

Vladimir Khvalei

Authors (as they appear in the publication)

Eduardo Silva Romero

Georges Affaki

Sir William Blair, Grace Cheng

Carolyn B. Lamm, Eckhard Hellbeck, Madina Lokova and Maximilian Clasmeier

Ali Malek, QC, Cameron Miles.

Vladimir Khvalei

Eric De Brabandere, David Holloway

Dominique Hascher

Laurent Cohen-Tanugi

Laurence Boisson de Chazournes

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