U.S.Export Control and Economic Sanctions Exposure of Commercial Arbitration Institutions and Arbitrators in China
The exposure of commercial arbitration institutions and arbitrators in China to U.S.export control and economic sanctions is primarily due to the extraterritorial jurisdiction provisions of such control and economic sanctions.The U.S.export control follows the items subject to the Export Administration Regulations(US Items)no matter whether such U.S.Items are within or outside the United States,irrespective of whether the parties to US Items-related transaction are U.S.persons or not.Such activities as export,re-export,or in-country transfer outside the U.S.as well as deemed export of U.S.Items may be subject to U.S.export license requirement from the U.S.Department of Commerce.Such activities if conducted without an export license as required will be in violation of EAR.The arbitration institution or arbitrators in China if either assisting or causing any such activities in violation of EAR,would be exposed to penalties or sanctions under US export control regime.As far as U.S.economic sanctions are concerned,the arbitration institution or arbitrator in China can be directly blacklisted by the United States if it is viewed as repugnant to U.S.national security or foreign policy interests or possibly posing such risks.Further,the arbitration institution or arbitrator in China if causing a US person to violate US economic sanctions or assisting such transactions as involving a party blacklisted by the United States with secondary consequences,will be also subject to US economic sanctions,despite that Chinese law does not recognize the extraterritorial effect of the U.S.laws.The arbitration institution or arbitrator in China if violating US export control or economic sanctions would incur severe penalty consequences and/or are subjected to sanctions as well.Therefore,commercial arbitration institutions and arbitrators in China need to be aware of such U.S.export control and economic sanctions risks.This paper accordingly analyzes the potential risks of U.S.export control and economic sanctions that may arise in the arbitration activities,to which the arbitration institutions and arbitrators in China are exposed,as well as strategies as to how to tackle such risks.
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