Article 1 (extract)
For the purposes of this Regulation, the following definitions apply:
(a) ‘dual-use goods and technology’ means the items listed in Annex I to Regulation (EU) 2021/821 of the European Parliament and of the Council.
Article 11
Article 11 of both Council Regulation (EU) No 833/2014 and Council Regulation (EU) No 269/2014 contains a so-called “no-claims” clause. Put simply, it restricts the satisfaction of claims made by listed Russian entities in connection with contracts or transactions affected by EU sanctions.
A practical question often arises where a contract has been disrupted by sanctions after an advance payment has already been made: can the advance be repaid to the Russian counterparty? The answer is not entirely straightforward, but the current direction is available: EU authorities and courts have tended to read Article 11 broadly, which makes repayment increasingly difficult. This matters because sanctions may prevent performance of the underlying contract altogether. In that situation, the refund of an advance payment may look like a simple restoration of the parties’ pre-contractual position. At the same time, however, it can also be viewed as a “claim” connected to a sanctioned transaction, which is exactly the type of payment Article 11 is designed to prevent. The non-payment may also interfere with the principle of a fair trial enshrined in Article 6 of the ECHR. Finally, parties should focus their requests on declarations concerning the preservation of the frozen capital, including accrued interests and related amounts.
Several national and supranational authorities within the EU have already taken the view that repayment of advance payments falls within Article 11. This is particularly evident where the claim for repayment is made after the sanctions rules have taken effect and non-payment is the immediate result of those sanctions. The Commission’s likely position on Article 11, as reflected in the German Federal Ministry for Economic Affairs and Energy FAQs, appears to be that the repayment of advance payments is prohibited. The FAQs currently state that this position has been revised following consultations with the competent units of the European Commission. This approach was then endorsed by the Higher Regional Court of Stuttgart, which held that, in view of the Commission’s stance, the prohibition extends to advance payments. This reading, however, appears overly broad and difficult to reconcile with the wording of Article 11 itself.
This prospective line of argumentation is further supported by the definition of claims in Article 1 of Council Regulation 269/2014, which covers any claim for performance of any obligation or for any compensation under the contract. The Commission itself has held that the term “claims” shall be interpreted broadly and read together with the definition given to this term in Article 1 of the Regulation No 269/2014. Taken together, this suggests that the interpretation of Article 11 adopted by Union’s and national authorities is likely to cover a prohibition to repay advances and reinforces the practical risk of repayment. Whether such a position is legally accurate is a separate question, however, it remains important for clarity.
At the same time, advance payments relate to the return of amounts paid for obligations that are never performed, rather than to the satisfaction of claims for civil remedies. The repayment is a mere consequence of contract termination that restores the status quo and does not confer any financial advantage on the claimant. It is, in other words, only a matter of restitution. The fact that “claims” are defined broadly by Union authorities does not mean that every claim for restitution is automatically prohibited. The broad reading of Article 11 essentially disregards this distinction and treats restitutionary claims in the same way as substantive claims for performance or damages.
The Reibel case pending before the CJEU is now particularly important. The case concerns a Belgian supplier (Reibel) that was unable to export dual-use goods to its Russian counterparty (Stankoimport), as the goods became subject to EU sanctions. Since Reibel failed to repay an advance payment, the arbitral tribunal ordered repayment, finding this fell outside the Article 11 prohibition. Reibel then sought to set aside the award before the Svea Court of Appeal, which, in turn, referred questions to the CJEU on (i) whether sanctions-related disputes are arbitrable, (ii) whether Article 11 of the Regulation is a rule of EU public policy, and (iii) whether restitution of an advance payment is a claim within Article 11.
In his recent Opinion, the Advocate General confirmed that sanctions-related disputes remain arbitrable but concluded that claims for repayment of advance payments fall within the scope of Article 11 and should not be granted. In other words, the need for strict compliance with the sanctions regime is perceived as justifying the impossibility of returning advance payments, even if the facts of a specific case do not suggest that repayment would amount to circumvention. The Advocate General also treated Article 11 as part of EU public policy, which means that even if a tribunal issues an award in favour of the Russian claimant, enforcement in the EU may still be refused. In that scenario, the granting of a claim brought by a Russian party may be rendered unenforceable under Article V(2)(b) of the New York Convention as contrary to EU public policy due to sanctions. It should be stressed, however, that this reasoning is fact-specific to Reibel, where both the goods and the underlying transaction were specifically affected by sanctions at the relevant time. It does not in itself extend Article 11’s prohibition to situations in which neither the goods nor the counterparty were ever sanctioned and non-payment stems from impediments other than strictly legal impediments to performance.
The Advocate General’s Opinion confuses the satisfaction of substantive claims prohibited under Article 11 with neutral restitutionary claims whose sole function is to rescind a transaction never performed. By extending the scope of Article 11 beyond its original wording and original purpose, the Advocate General’s approach risks transforming this provision into a general bar on any payments in favour of Russian parties, irrespective of their legal nature.
The Advocate General’s position thus leads to a notable tension: it confirms the arbitrability of sanctions-related disputes touching Article 11 of the Regulation, while leaving claimants without a realistic prospect of obtaining an enforceable award, even for advances repayment. This raises valid questions about claimants’ access to justice in arbitration proceedings within the EU. It also raises questions about EU’s overreach in the sphere of international arbitration. It risks throwing out the baby – the rule of law – with the bathwater of contemporary political concerns and policy objectives.
Against the background of earlier CJEU case law on broad interpretation of sanctions and repetitive efforts to ensure that sanctions encompass all necessary acts to prevent circumvention, it appears possible that the CJEU will follow the Advocate General’s conclusions, mirroring the broad sanctions approach, and confirm that the “no-claims” clause covers the restitution of advance payments. That would not be a good development, and over time, could become a serious blow to international arbitration.
From a practical perspective, the Advocate General Opinion fleshes out the EU’s position to the interpretation of Article 11. At the same time, if upheld by the CJEU, it may have a chilling effect on choosing EU-seated arbitration in sanctions-related matters, as Russian parties will tend to avoid EU-seated tribunals. Moreover, even if a neutral jurisdiction is chosen, this does not alter the principal conclusion on the impossibility of repayment of advances, once enforcement is sought in the EU. Furthermore, the threat of extra-judicial application is likely to send cold chills through the world of global merchants, who will have to consider an additional sanctions-related risk.
As a consequence, if the CJEU aligns with the Advocate General on the advance payments’ restitution, businesses will gain clarity regarding the scope of application of Article 11. It is, however, likely to come at the price of heightened enforcement and sanctions-compliance risk for arbitration in the EU. This is a worrying development of EU sanctions law, which undermines the integrity of arbitration and, in many cases, prevents the parties from obtaining a realistically enforceable award, especially where the claim is in substance restitutionary.
