International sanctions enacted against Russia as overriding mandatory rules—on which foot should international arbitrators stand?

Abstract

Abstract Over the last decades, the role of international arbitrators has evolved from dealing with purely private interests to promoting the rule of law worldwide and safeguarding the interests of the international community. Following the armed conflict in Ukraine, a plurality of States has enacted international sanctions against Russia, which are currently impacting the performance of many international contracts. This article analyses the enforcement of international sanctions by international arbitrators as a matter of overriding mandatory public policy rules. This article also draws a new perspective on the subject, by analysing it from two different yet complementary approaches. First, because national courts have supervisory powers at the post-award stage, the reasoning of international arbitrators may depend on whether such international sanctions are regarded as public policy rules within relevant national legal orders. Secondly, because international arbitral tribunals have no forum, their decision regarding the enforcement of international sanctions will depend on the existing legal theories of international arbitration. After comparing the different results under the territorial, multilocal, and transnational approaches, the author advocates for the enforcement of international sanctions against Russia as part of transnational public policy rules.