为什么将涉俄投资争端提交香港国际仲裁中心？
来源：香港国际仲裁中心HKIAC
This article discusses the proliferation of foreign investors seeking redress through arbitration as a result of the international sanctions imposed against Russia and special retaliatory economic counter-measures imposed against certain investors. It suggests that HKIAC, as a Permanent Arbitration Institution (PAI) designated under Russian law, would be a preferred arbitral institution for the resolution of these disputes and argues that Russian-related disputes administered at HKIAC can achieve practicable results for investors with assets in Russia, highlighting several benefits and challenges accruing to such parties as a result of PAI designation.
Introduction
The imposition of international sanctions on Russia has resulted in the freezing of half of the nation's foreign exchange reserves. In response, Russia has enacted retaliatory special economic counter-measures against foreign investors affiliated with sanctions-imposing countries. Accordingly, this will lead to an increase in claims involving Russian international investment agreements.
The role of investment arbitration in the investor-state dispute settlement (ISDS) system will grow as a result of the proliferation of international investment claims brought by investors against Russia. As Hong Kong International Arbitration Centre (HKIAC) was designated as a Permanent Arbitration Institution (PAI) under Russian law in April 2019, the authors suggest that it will become the preferred arbitral institution for Russian-related international investment disputes. Following Russia's Arbitration Reform, which came into force in September 2016,[1] the designation 'PAI' attaches to those institutions that have obtained special government authorisation and thus the status to continue operating in Russia. Arbitral institutions that do not obtain PAI status will only be able to render ad hoc arbitrations under Russian law.
"The imposition of international sanctions on Russia … [and that country's] retaliatory special economic counter-measures[enacted] against foreign investors affiliated with sanctions-imposing countries … will lead to an increase in claims involving Russian international investment agreements."
The current status quo of sanctions against and by RussiaSanctions against Russia
(1) The European Union (EU): With regard to the sanctions imposed against Russia in 2022, the EU has, to date, implemented four packages of sanctions:[2]
(1) full blocking sanctions on a large list of individuals and entities of the Communist Party of the Russian Federation;
(2) a prohibition on providing specialised financial messaging services to certain banks;
(3) a prohibition on investing and co-investing in Russian investment funds; and
(4) a ban on the export of certain products and trade restrictions, particularly on luxury goods.
(2) The United States: The nature of the economic sanctions imposed by the US is similar to those of the EU and has the same targets.[3]
(3) Asian jurisdictions: Australia, Japan, South Korea and Taiwan have taken measures to exclude several Russian banks from the global SWIFT payment system.
Russian retaliatory sanctions
In light of the sanctions imposed against it, Russia developed a series of retaliatory counter-measures, identifying a list of "unfriendly states" which includes all of the EU countries and other countries that support those sanctions.[4] These counter-measures are intended to protect the Russian rouble and include restrictions on (1) currency transfer by residents involved in foreign economic activities who seek to sell 80% of all foreign currency received from non-residents, and (2) the transfer of currencies abroad. Other measures include prohibitions on the export of foreign currency and on the export and import of certain products and raw materials, and restrictions on debt repayments.
The impact of sanctions on Russian-related foreign investments
For Russian businesses with interests abroad, direct international sanctions against Russia will have a major impact on commercial relationships. This may lead to an increase in disputes as sanctions will drastically shift the economics of existing contracts, or even render performance impossible. For foreign businesses with assets in Russia, retaliatory sanctions create a double-bind situation in which international sanctions imposed on operating entities in Russia will result in a squeeze in cross-border trading. Simultaneously, these foreign businesses may potentially be subject to Russian retaliatory measures because the domestic entity’s parent company may be traced back to an "unfriendly state".
"In light of the sanctions imposed against it, Russia developed a series of retaliatory counter-measures, identifying a list of "unfriendly states" which includes all of the EU countries and other countries that support those sanctions."
In light of this, what categories of Russian-related foreign investments or assets are likely to be affected?
A cursory examination of the list of sanctions imposed so far suggests that domestic and foreign-related businesses involved in cross-border trade are set to be affected on two fronts. On the financing front, Russian entities would face a squeeze on foreign exchange payments and on export/import supply agreements. This would mean that contractual performance-related disputes underpinning negative cash flow are very likely to arise.
"For Russian businesses with interests abroad, direct international sanctions against Russia will have a major impact on commercial relationships. This may lead to an increase in disputes as sanctions will drastically shift the economics of existing contracts, or even render performance impossible."
Another likely species of disputes concerns those falling within the 'conditional arbitration' category: that is, disputes that are permitted to be administered by a PAI (including HKIAC), including work and service contracts between Russian State-owned enterprises and foreign businesses. As elaborated below, this is something worth bearing in mind when considering 'why HKIAC?'
The authors also note three issues that will be affected by disputes arising out of international sanctions imposed by and on Russia.
(1) Practical difficulties for international parties in arbitrating disputes involving economic sanctions: There are general issues relevant to the effective running of arbitration proceedings. These include, for example, whether a designated or appointed arbitrator holding citizenship in "unfriendly states" may decline to act in disputes involving sanctioned parties or issues relating to sanctions. Alternatively, there may be concerns about an arbitrator's impartiality or independence that could later constitute a valid ground for challenging his or her appointment under a number of institutional rules. There is also the matter of the elevated risk posed to the award or order issued by an arbitral tribunal that is in violation of the arbitrator's own national law.
(2) The impact on parties of the June 2020 anti-sanctions reform of the Russian Commercial Procedure Code: Article 248 of the Russian Commercial Procedure Code (effective as of June 2020) extends the exclusive jurisdiction of Russian courts over disputes with either Russian-sanctioned entities or non-Russian entities under Russian-related sanctions. This entitles a sanctioned Russian party to opt unilaterally for litigation in the Russian courts should its right of access to justice in a foreign court or arbitral forum be restricted.
"For foreign businesses with assets in Russia, retaliatory sanctions create a double-bind situation in which international sanctions imposed on operating entities in Russia will result in a squeeze in cross-border trading."
Additional risks arise of a sanctioned Russian party proceeding with an anti-suit or anti-arbitration injunction in the Russian courts to prevent a dispute from proceeding in its original forum even if the parties have stipulated the place of arbitration or jurisdiction in their governing law clause. As Hong Kong has not adopted any Russia-related sanctions, any international disputes seated in Russia and administered at HKIAC would not prejudice a Russian-sanctioned party or limit its access to justice, thereby reducing the risk of unenforceability in a resulting foreign award.
"… [G]eneral issues relevant to the effective running of arbitration proceedings … include, for example, whether a designated or appointed arbitrator holding citizenship in "unfriendly states" may decline to act in disputes involving sanctioned parties or issues relating to sanctions … [and] concerns about an arbitrator's impartiality or independence that could later constitute a valid ground for challenging his or her appointment."
(3) The impact of sanctions on the enforcement of an award where a Russian party is subject to sanctions or where a dispute arose out of the sanctions: It is important to note that there are dual concerns when considering the impact of sanctions on the enforcement of arbitral awards. From the award debtor's perspective, that party may be precluded from making any payments to sanctioned award creditors. From the sanctioned debtor's perspective, that party's debts may be precluded from being paid with frozen funds. Competing considerations of national and international public policy will play a role. In addition, difficulties will arise in practice when trying to enforce awards against targeted Russian entities, as it is probable that enforcement against frozen funds may be impossible.
Why HKIAC?
HKIAC is one of the world's foremost dispute resolution organisations, specialising in arbitration, mediation, adjudication and the adjudication of domain name disputes. HKIAC also provides cutting-edge hearing facilities, which have been named first in the world for location, value for money, IT services and staff friendliness. According to the Queen Mary University of London and White & Case 2021 International Arbitration Survey: Adapting arbitration to a changing world,[5] HKIAC is the third most chosen and used arbitral institution globally. Along with having obtained the 2014 innovation award from Global Arbitration Review (GAR),[6] HKIAC is at the forefront of creative arbitration practice.[7]
On 4 April 2019, HKIAC announced that the Russian Council for the Development of Arbitration had recommended that it be granted permission to function as a Permanent Arbitral Institution in accordance with art 44(3) of Federal Law No 382-FZ dated 29 December 2015 on Arbitration in the Russian Federation (the Federal Law), as amended by (inter alia), Federal Law No 531 dated 27 December 2018. Consequently, the Russian Federation Ministry of Justice granted HKIAC this permission on 25 April 2019.[8]
In accordance with the September 2016 Russian Arbitration Reform, only a PAI as defined by the Federal Law may hear institutional arbitrations seated in Russia and arbitrations involving specific types of corporate dispute involving Russian enterprises.
According to HKIAC, "as a permanent arbitral institution, HKIAC will become the first international arbitral institution authorized to administer (i) international disputes seated in Russia; (ii) disputes between parties from any special administrative region as defined under Russian law or disputes arising from agreements to carry out activities in any such region; (iii) disputes arising from contracts made in accordance with or in connection with Federal Law No 223-FZ dated 18 July 2011 'On Procurement of Goods, Works and Services by Certain Types of Legal Entities' seated in Russia; and (iv) certain types of corporate disputes in respect of a legal entity in Russia (Article 45(7) and (7.1) of the Federal Law and Article 225.1 of the Russian Arbitral Procedure Code)."[9]
"Article 248 of the Russian Commercial Procedure Code … extends the exclusive jurisdiction of Russian courts over disputes with either Russian-sanctioned entities or non-Russian entities under Russian-related sanctions. This entitles a sanctioned Russian party to opt unilaterally for litigation in the Russian courts should its right of access to justice in a foreign court or arbitral forum be restricted."
HKIAC would therefore be the preferred arbitral institution for Russian-related international investment disputes.
Although disputes administered at HKIAC cannot achieve practicable results for investors with assets in Russia, nevertheless, through the New York Convention 1958, arbitration in Hong Kong offers users a binding legal decision that is enforceable in 171 countries worldwide. HKIAC awards are predicted to have a solid record of enforcement in Belt and Road Initiative (BRI) nations and already have an unparalleled history of enforcement in the Mainland.
"Additional risks arise of a sanctioned Russian party proceeding with an anti-suit or anti-arbitration injunction in the Russian courts to prevent a dispute from proceeding in its original forum even if the parties have stipulated the place of arbitration or jurisdiction in their governing law clause."
Professor Anton Asoskov argued in his article, The Advantages of Arbitrating Russia-Related Disputes at HKIAC as a Permanent Arbitral Institution under Russian Law that, given its status as a PAI, choosing HKIAC for arbitrating Russia-related disputes has a number of significant benefits.[10] For example, under Russian law, a party may only request assistance from the Russian courts in the taking of evidence for ongoing arbitral proceedings if the dispute is governed by a PAI and the place of arbitration is in Russia. The Russian Supreme Court has emphasised in Plenary Session that a request for assistance in the taking of evidence may be made in support of arbitrations conducted not only by Russian PAIs but also by non-Russian institutions (such as HKIAC) having PAI status.[11] Such a feature demonstrates that HKIAC will be an ideal institution for parties involved in Russian-related disputes.
Under the Federal Law, however, some other corporate disputes, such as derivative claims, may only be adjudicated by institution shaving both PAI status and unique procedures for corporate disputes. HKIAC has no such unique procedures for corporate disputes at present. Furthermore, in addition to PAI, a separate division established in Russia is also required for a foreign arbitral institution to manage domestic arbitrations. Thus, in this regard, there are certain limitations for HKIAC.
Yet, Hong Kong and HKIAC remain attractive options for Chinese parties who seek geographical proximity and cultural familiarity and for non-Chinese parties who seek independence, neutrality and international best practice. The Chinese government has also acknowledged and supported Hong Kong's position as a centre for international dispute settlement for the BRI through the implementation of the Interim Measures Arrangement between the Hong Kong SAR and the Mainland.[12] By implementing this arrangement, Hong Kong is the first jurisdiction outside of the Mainland in which parties to eligible arbitral proceedings may seek interim relief from the Chinese Mainland courts.
Furthermore, the legal framework regulating the mutual recognition and enforcement of arbitral awards between the Hong Kong SAR and the Mainland has also been modified recently. The Supplemental Arrangement on this matter, which came into force on 19 May 2021, provides modifications and explanations to the prior enforcement regime of 1999.[13]
Conclusion
Having examined the current status quo on the sanctions imposed against Russia and the retaliatory sanctions imposed by Russia, the authors have highlighted that Russian-related disputes in the conditional arbitration category are likely to arise in the future. HKIAC, as a designated PAI, would therefore be a preferred arbitral institution for Russian-related disputes. There are three key advantages to arbitrating Russian-related disputes at HKIAC, as follows.
(1) As Hong Kong has not adopted any Russian-related sanctions, Russian-seated disputes administered at HKIAC would not prejudice sanctioned parties. This would benefit parties in reducing the risk of unenforceability of a resulting foreign award.
(2) There are clear advantages to HKIAC's PAI status with regard to additional judicial support in taking evidence from the Russian courts.
(3) For Chinese parties with operations in Russia, the geographic proximity of Hong Kong to Greater China and preferential measures in place for cross-border arbitration mean that HKIAC can be an obvious choice for those with vested interests in both regions.
"Under the Federal Law, however, some other corporate disputes, such as derivative claims, may only be adjudicated by institutions having both PAI status and unique procedures for corporate disputes. HKIAC has no such unique procedures for corporate disputes at present."
"For Chinese parties with operations in Russia, the geographic proximity of Hong Kong to Greater China and preferential measures in place for cross-border arbitration means that HKIAC can be an obvious choice for those with vested interests in both regions."
本文注释（请上下滑动参阅）
[2] Council of the EU and the European Council, EU sanctions against Russia explained (2022), available at https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/sanctions-against-russia-explained/.
[3] US Department of The Treasury, Ukraine-/Russia-related Sanctions (2022), available at https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/sanctions-against-russia-explained/.
[4] Russian Government, Government expands the list of unfriendly countries and territories (2022), available at http://government.ru/en/news/46096/.
[5] Available at https://www.whitecase.com/publications/insight/2021- international-arbitration-survey.
[6] Editorial note: See Chiann Bao & Joe Liu, Innovation in Asia, in GAR, ‘The Asia-Pacific Arbitration Review 2016’, available at https://globalarbitrationreview.com/review/the-asia-pacific-arbitration-review/2016/article/innovation-in-asia.
[7] HKIAC, About HKIAC (2022), available at https://www.hkiac.org/about-us.
[8] HKIAC Press Release, HKIAC First Foreign Arbitral Institution Permitted to Administer Disputes in Russia (2019), available at https://www.hkiac.org/news/hkiac-permitted-administer-disputes-russia.
[9] Ibid.
[10] Asoskov, op cit (note 1 above).
[11] Ibid.
[12] Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (2020).
[13] Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (2019).
*本文原载于Asian Dispute Review。
说 明：文章仅代表作者个人观点，不应视为HKIAC的立场或观点。
关于作者
Charles Ho Wang Mak
PhD Candidate in Law and Graduate Teaching Assistant, University of Glasgow
Charles Ho Wang Mak is a PhD Candidate in international law and a Graduate Teaching Assistant at the University of Glasgow. His research concentrates on sovereign debt restructuring, international economic law, and dispute resolution. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb), the Hong Kong Institute of Arbitrators (FHKIArb), the Arbitrators and Mediators Institute of New Zealand (FAMINZ (Arb/Med)), the Asian Institute of Alternative Dispute Resolution (FAIADR), and the Royal Asiatic Society of Great Britain and Ireland (FRAS).
Arbitration Analyst, Jus Mundi
Roslyn Lai is now an Incoming Arbitration Trainee at WilmerHale. Roslyn is also a Tsinghua LL.M graduate in the International Arbitration & Dispute Settlement Programme (Young ICCA scholar); an Analyst at Jus Mundi; a Research Associate to Dr Cameron Ford; and a State of Legal Innovation Report Editor at the Asia Pacific Legal Innovation & Technology Association.
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