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Экономические санкции глазами российских судей: между защитой публичного порядка и интересов бизнеса

Старженецкий В. В., Бутырина В. А., Драгунова Ю. В.

In the current article, the authors analyze emerging approaches of Russian courts (the Constitutional Court of the Russian Federation, arbitrazh (commercial) courts and courts of general jurisdiction) on resolution of disputes connected with economic sanctions imposed against Russia in 2014, as well as legal qualification of relevant legal issues. The Russian courts take a clear stand that these economic sanctions are unlawful from the standpoint of international law; for this reason, the effect of foreign regulations and the relevant provisions of commercial contracts aimed at enforcing sanctions’ restrictions is blocked in Russia on the basis of protection of the national public order. In this context, Russian case law is consistent with Russia's general state policy aimed at denying the legitimacy of unilateral coercive measures, which are introduced without authorization of the UN Security Council and are considered as unfriendly actions by foreign states that threaten Russia's sovereignty. At the same time, Russian courts try to mitigate negative legal consequences of sanctions for Russian and foreign businesses in domestic jurisdiction. There is sufficient evidence to support the assumption that Russian courts try to use balanced approaches in relation to legal responsibility for compliance with foreign sanctions by private individuals. Courts are rather neutral to contract provisions that are aimed at preventing conflicts caused by economic sanctions (sanction clauses), and also generally adhere to fair solutions in cases of non-performance of obligations caused by sanctions’ prescriptions. Courts distinguish failure to perform obligations based on objective circumstances (force majeure, fundamental change of circumstances) and non-compliance with contractual and other duties for the reason of failure to act diligently or standard business risks.