Following the strengthening of the Russian and Belarusian related financial sanctions earlier this year, the dispute resolution community raised numerous concerns regarding the subsequent and anticipated impact on the administration and conduct of ICC proceedings implicating these countries.
With the goal of ensuring that all parties have equal access to justice and reassuring arbitral tribunals and other neutrals in ICC dispute resolution proceedings, the International Chamber of Commerce (ICC) contacted last April the French Treasury, the authority in charge of monitoring international sanctions in France, to seek clarification on the European sanctions regimes.
ICC has been in constant contact with the French Treasury to monitor continuously the impact of EU sanctions on ICC proceedings. ICC’s request for clarification was consistent with ICC’s long-term agreement and trust-built relationship with the French Treasury.
As representative of the French Government, the French Treasury advocated ICC’s position and interpretation of the EU sanctions at the appropriate level of the EU Commission and with the relevant EU members states’ stakeholders. ICC is pleased to share today that an important milestone was reached on 21 July 2022 with Decision (CFSP) 2022/1271 and Regulation (EU) No 2022/1269 of the Council of the European Union. Such decision explicitly amends Regulation (EU) No 833/2014 (in its version of 15 March 2022, resulting from Council Regulation (EU) No 2022/428) concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine. The amendment introduces an exemption to the general prohibition set out in Article 5 aa paragraph 1 to enter into any direct or indirect transactions with Russian public entities listed at Annex XIX or with subsidiaries owned at more than 50% by these entities and established outside the EU.
Article 5 aa paragraph 3 of Regulation (EU) No 833/2014 now explicitly incorporates a new paragraph (g) pursuant to which the above prohibition shall not apply to “transactions which are strictly necessary to ensure access to judicial, administrative or arbitral proceedings in a Member State, as well as for the recognition or enforcement of a judgment or an arbitration award rendered in a Member State and if such transactions are consistent with the objectives of this Regulation and Regulation (EU) No 269/2014.”
ICC welcomes this amendment, which would undoubtedly help in clarifying the scope of the EU Regulation and increase legal certainty for the business community. ICC also notes the initiative of the six European arbitral institutions which also sought clarification of the regulations via different channels.
Acting on the basis of its core principles and commitments, ICC has and will consistently endeavour to pave the way for access to justice for all parties to dispute resolution proceedings, irrespective of their country, nationality or residence. By way of example, in October 2021, ICC became the first arbitral institution to be granted a specific license by the U.S. Office of Foreign Assets Control (OFAC) allowing for the receipt and processing of certain payments in ICC arbitration proceedings implicating Iran.
For any compliance-related questions in relation to the above or to ongoing ICC dispute resolution proceedings, kindly contact ICC Legal Services Department’s dedicated team at firstname.lastname@example.org.