(Анти)санкционные оговорки в международных коммерческих контрактах

Закон. 2023. № 7. С. 123–145.

Starzhenetsky V., Багрова Я. А.

The  article provides analysis of sanctions clauses in international commercial contracts. Such clauses are intended to regulate actions of the  parties in the  event of sanctions and corresponding legal consequences. In comparison to classic force majeure clauses sanctions clauses have a  number of advantages and may serve several interrelated purposes, including securing compliance by the parties with mandatory rules that impose restrictions on certain economic activity, adaptation of the contract to new circumstances in the  event of economic sanctions, regulation of termination of the  contract, as well as the  distribution of risks and costs incurred by the parties in connection with this. The authors explore the structure of sanctions clauses and their provisions, which cause difficulties in practice, diverse approaches to determining the scope of sanctions clauses in the context of extraterritorial sanctions and blocking statutes, different threshold for sanctions risks that activate the  clause, spectrum of options to secure adaptation of contract provisions depending on the  specifics of the  sanctions regimes, standards of due care and endeavours that are expected from parties in the context of sanctions, conditions for termination of contracts and possibilities for the  distribution of costs incurred, including the  payment of indemnity. The  article also discusses validity of sanctions clauses, their relationship with overriding mandatory rules and norms preventing circumvention of the law, considers the risks of asymmetric and disparity provisions. Particular emphasis is placed on the relationship of sanctions clauses with other sections of international contracts, in particular applicable law and dispute resolution clauses.

Keywords: economic sanctions, экономические санкции, сверхимперативные нормы (нормы непосредственного применения), international commercial contracts, коммерческие контракты, sanctions clauses, overriding mandatory rules, санкционные оговорки

Publication based on the results of: Protection of economic actors’ rights via mechanisms of international justice (including international investment arbitration, courts of regional economic unions, WTO dispute settlement body, international commercial arbitration) (2023)