Upon the Swedish Court
of Appeal’s request to the Court of Justice of the European Union (‘ECJ’) for
preliminary ruling in NV Reibel v. JSC VO Stankoimport, the article examines
the arbitrability of disputes related to EU sanctions regimes using the example
of claims under Article 11(1) of Council Regulation (EU) 833/2014 (‘Regulation’).
The article
establishes the relevant understanding of the concept of arbitrability in the
EU before discussing and rejecting the notion that the arbitrability of matters
pertaining to the Regulation follows from the Regulation itself, namely from
its Article 11(3).
The article
subsequently takes note of the ECJ’s jurisprudence precluding the
interpretation of EU law by arbitral tribunals. While acknowledging the fact
that commercial arbitration is commonly exempt from this jurisprudence, the
article questions whether this also applies to sanctions-related disputes.
The article further
assesses jurisprudence on the arbitrability of claims under the Regulation and
other EU sanctions regimes from Member-State courts. In this regard, the
article points out the lack of civil penalties for transactions in breach of
the Regulation as considered by courts in some of these jurisdictions to
determine the arbitrability of related disputes. The article concludes that
claims under Article 11(1) of the Regulation are arbitrable under EU law.