Choice of court agreements as a mechanism to circumvent EU economic sanctions

Abstract

Despite the magnitude of the European economic sanctions imposed on Russia for its illegal invasion of Ukraine, they present inconsistencies and porosities that call for their tightening and the fight against their circumvention. In this fight, it is important to examine the role that choice of court agreements could be playing as mechanisms of its ‘deactivation’ through a delocalization of the litigation in third States. The aim of this paper is to analyse the mechanisms, if any, Private international law provides to prevent such deactivation and whether the response should be a European or a national one. We advocate for the need of an ex ante control, under the Brussels I bis Regulation regime, of the choice of court agreement in favour of the courts of a third State, in order to invalidate the clause as being contrary to European public policy.