The Challenge of Economic Sanctions to Arbitrability and Its Responses
Economic sanctions have led to a large number of international commercial disputes,and have posed a challenge to the arbitrability of such disputes.Two main viewpoints exist regarding the arbitrability of disputes involving economic sanctions.Most countries,such as Switzerland,Canada,France,and the United States,hold the opinion that the application of economic sanctions norms does not affect the arbitrability of disputes.A few countries,such as Italy,consider that economic sanctions will cause parties to be unable to freely disposing of their contractual rights,thereby rendering such disputes non-arbitrable.The divergence mainly stems from the fact that different countries adopt different criteria for determining arbitrability and hold different views on the arbitrability of disputes involving mandatory norms.Given that economic sanctions norms fall within the scope of mandatory norms,the divergence extends to the arbitrability of disputes involving economic sanctions.When choosing the applicable law of arbitration agreements,the seat of arbitration and the place of recognition and enforcement of arbitral awards,Chinese enterprises and natural persons should give full consideration to the criteria for determining arbitrability adopted by relevant countries and their positions on the arbitrability of disputes involving economic sanctions.Chinese courts and arbitrators should make a judgment on the arbitrability of disputes involving economic sanctions on the basis of clarifying the applicable law of arbitration agreements,and where the applicable law is the laws of China,it is appropriate to adopt the mainstream view and not to deny the arbitrability of disputes on the ground that they involve economic sanctions.
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