Abstract

This paper analyses how the interaction between economic sanctions and the operation of international arbitration creates challenges for dispute resolution within the BRICS nations. As such, the aims of this paper are threefold: (i) to provide an overview of the constitutional structures of Brazil, with an emphasis on the mechanisms through which Brazilian courts ensure that foreign economic sanctions do not supersede Brazilian law and continue to provide certainty to those engaging in arbitration, (ii) to provide an analysis of China’s Anti-Foreign Sanctions Law and Draft Arbitration Law to illustrate the ambiguity and risk faced by arbitrators, lawyers, and arbitration institutions that operate in cross-border proceedings, and (iii) to explore how India has developed a legal strategy of strategic legal minimalism that permits India to remain compliant with UN sanctions while allowing for financial innovation and narrow judicial review of enforcement of arbitral awards. As a result of this approach to arbitration across BRICS nations, the neutrality, enforceability, and practicality of arbitration will continue to evolve based on these factors. This article also outlines potential avenues to navigate sanctions in a manner that maintains the credibility of arbitration as a mechanism for resolving disputes.

This paper will be part of the third TDM Special Issue on "Sanctions and International Arbitration: Impact on Substantive and Procedural Issues". More information here www.transnational-dispute-management.com/news.asp?key=1960