论经济制裁对国际商事仲裁的影响

The Impact of the Economic Sanctions on International Arbitration

由于单边经济制裁在国际经济交往中越来越频繁地出现,商业主体开始重新评估彼此之间的业务关系,甚至不得不采取措施终止合同,从而产生大量急需通过仲裁解决的商业纠纷。而单边经济制裁对仲裁机构、仲裁员、仲裁准据法以及仲裁裁决的承认与执行都会带来法律风险,其中,资产冻结制裁限制可能会阻碍仲裁机构收取费用,且在仲裁过程中导致案件无法顺利进行。我国《反外国制裁法》缺乏豁免机制,也容易对仲裁机构和仲裁员造成负面影响。因此,仲裁庭应充分尊重当事人意思自治,不应像法院一样将经济制裁纳入准据法范围。我国法院应坚持支持仲裁原则,审慎采用公共政策保留,拒绝承认与执行涉及经济制裁的外国裁决。

As unilateral economic sanctions are popular in international economic interaction,business entities begin to reevaluate trade and commercial relations between them,and even have to take measures to terminate their contracts,resulting in a large number of commercial disputes that need to be resolved through arbitration.Such unilateral economic sanctions influence the mechanism of international commercial arbitration,particularly arbitral institutions,arbitrators,the applicable law of arbitration,as well as the recognition and enforcement of arbitral awards.Such influence may come in many forms.For example,the asset-freezing restrictions under sanctions regulations might hinder payment of professional fees and thus affect the arbitration procedure.The lack of exemption clauses under the Anti-foreign Sanctions Law of the People's Republic of China could lead to adverse consequences on arbitral institutions and arbitrators.Thus,the article argues that the arbitration tribunal should fully respect the autonomy of the parties and should not include economic sanctions in the scope of applicable law.The article argues that the court in China shall insist on the principle of supporting arbitration,and the use of public policy as a ground to challenge awards and to refuse their recognition and enforcement shall be considered in a prudent manner.