論經濟制裁對國際商事仲裁的影響

The Impact of the Economic Sanctions on International Arbitration

由於單邊經濟制裁在國際經濟交往中越來越頻繁地出現，商業主體開始重新評估彼此之間的業務關係，甚至不得不採取措施終止合同，從而產生大量急需通過仲裁解決的商業糾紛。而單邊經濟制裁對仲裁機構、仲裁員、仲裁准據法以及仲裁裁決的承認與執行都會帶來法律風險，其中，資產凍結制裁限制可能會阻礙仲裁機構收取費用，且在仲裁過程中導致案件無法順利進行。我國《反外國制裁法》缺乏豁免機制，也容易對仲裁機構和仲裁員造成負面影響。因此，仲裁庭應充分尊重當事人意思自治，不應像法院一樣將經濟制裁納入准據法範圍。我國法院應堅持支持仲裁原則，審慎採用公共政策保留，拒絕承認與執行涉及經濟制裁的外國裁決。

As unilateral economic sanctions are popular in international economic interaction, business entities begin to re-evaluate 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.