Limits of Judicial Intervention on International Commercial Arbitration:Focusing on Article 12 of Anti-Foreign Sanctions Law of the People's Republic of China
China has established a preliminary framework for anti-sanctions recovery litigation through Article 12 of the Anti-Foreign Sanctions Act(AFSA)and Article 9 of the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures(Blocking Rules).However,there are notable differences in the provisions of these articles.Article 12 of the AFSA is more broadly defined,authorizing Chinese parties to initiate anti-sanctions recovery litigation to contest arbitral awards made on the basis of discriminatory restrictive measures by foreign countries.The application of this provision may conflict with the commercial arbitration system.In order to better balance development and security,it is necessary to maintain equilibrium between counteracting foreign sanctions to safeguard national security and supporting the commercial arbitration system to maintain a favorable foreign-related rule of law environment.To that end,in cases of anti-sanctions recovery litigation,judicial intervention should be controlled within reasonable and necessary limits in scenarios involving international commercial arbitration.Overall,the recovery litigation should be applied cautiously,with priority given to utilizing the public policy reservation of the New York Convention and reciprocity principle to block the extraterritorial application of foreign unilateral economic sanctions and the effect of relevant arbitral awards.In specific scenarios,the application of recovery litigation clauses should serve as a last-resort judicial remedy.
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