On March 12, 2026, I had the privilege of being a panelist in a one-hour program during California International Arbitration Week, in San Francisco, whose subject matter was broadly the impact on international arbitration of economic sanctions such as – but not limited to – those imposed by the USA, Canada, the EU and Switzerland against Russia. And in the case of Russia, sanctions within the scope of our panel’s coverage included, but were not limited to, sanctions imposed as a consequence of Russia’s incursion into Ukraine that began in February 2022. Our subject was indeed quite broad, and included the impact of such sanctions on the ability of certain persons, whether sanctioned or not, to secure legal representation, and the ability of international arbitrators and arbitral institutions to accept funds from such persons. Necessarily in the context of a one-hour program, not all of the many important subjects could attract the attention they deserve. Here I take the liberty of addressing one such subject: jurisdictional conflict between Russian courts, on the one hand, and arbitral tribunals seated outside of Russia, on the other, in which at least one of the parties to the arbitration is the Russian Federation or a person/entity whose conduct is impacted by economic sanctions against a Russian person/entity.
As a disclaimer to what follows: I have no involvement as an arbitrator, mediator, advocate or otherwise, in any cases of the type discussed in this Post.
I take the liberty here of summarizing the issue by quoting from a recent publication by an international law firm based in Germany, bearing a date December 4, 2025: “Before Russian state courts there is currently a stable trend to apply Article 248.1 of the Russian Code of Commercial Procedure (hereinafter the “Russian Code”) to override choice of court and arbitration agreements. If a Russian party files contractual claims against a European counterparty, a Russian state court will declare itself competent to hear the dispute. Russian state courts routinely reject objections by European parties arguing that the claim should be dismissed without a hearing on the merits, due to the existence of an arbitration agreement designating an institution located outside Russia… Instead, courts proceed to hear the case on the merits, relying on Article 248.1 of the Russian Code.” [Overriding of Arbitration/Choice of Court Agreements in Russia – Procedural Solutions and Potential Impediments, www.advant-beiten.com, last visited March 23, 2026]. I would add here only two further introductory points: that US parties have also been impacted in regard to enforceability of arbitration agreements and forum selection clauses, and that the Russian legislation adopting Article 248.1 dates from 2020, and thus is not legislation adopted in response to sanctions specific to the Ukraine war, although the frequency of resort to the Artitrazh Court in Russia (which has divisions at least in Moscow and St. Petersburg) evidently has increased significantly since the outbreak of that war. There is some important US court jurisprudence. I do not cover it in this Post.
I will take one prominent and current, and partially public, case as a vehicle for discussion. It is formally titled Technimont S.p.A. and LLC MT Russia v. LLC EuroChem North-West, and in its arbitral configuration this is a London-seated ICC arbitration. A chronology of arbitration and judicial proceedings including full text judgments of the UK and Arbitrazh Courts is accessible on JusMundi. I will summarize, taking some liberties to simplify matters, as follows: An Italian construction contractor and its Russian affiliate enter into an EPC contract with a Russian counterparty for the development of an energy production facility in the vicinity of St. Petersburg. In 2022 after the onset of the Ukraine war, these parties commence an ICC arbitration under the arbitration agreement in their EPC contract, and seek to enforce their right to terminate the contract on the basis, inter alia, that EU sanctions imposed as a consequence of the war prevent its further performance and permit termination. The Russian counterparty avails itself of Article 248.1 to present the same termination dispute, and its counterclaim for damages for alleged unlawful repudiation of the EPC Contract, to the Arbitrazh Court in St. Petersburg. The Claimants apply for and obtain from the arbitral tribunal an anti-suit injunction as an interim measure, to enjoin the Russian counterparty from prosecution of the Arbitrazh Court case. The Russian counterparty proceeds with its case in St. Petersburg in defiance of that injunction, and obtains a corresponding countermeasure in that court: an anti-arbitration injunction that directs the Technimont Claimants to cease and desist from pursuing the ICC case. When the Technimont Claimants press on with the arbitration, the Arbitrazh Court imposes a fine equivalent to the money damages claimed in the counterclaim, and eventually enters a final judgment on the merits in favor of the Russian party for that sum, and incorporates its anti-arbitration injunction in the final judgment.
Meanwhile, back in London, the Claimants secure from the arbitral tribunal a remedy permitted under the UK Arbitration Act: a “peremptory order” – widely unfamiliar to US practitioners –whose nature is to fix a deadline for compliance with an order of the Tribunal, in default of which the order may be presented for its enforcement to the High Court in London. There was no compliance; the Technimont Claimants presented the matter on an accelerated timetable to the UK court, obtained enforcement at first instance, whereupon the Russian party challenged the enforcement order in the UK Court of Appeal, where, on an equally accelerated basis, that Court in January 2026 affirmed the enforcement order. Meanwhile, the Russian party that prevailed in the Arbitrazh Court took its Russian judgment for enforcement abroad to certain jurisdictions in which the Technimont Claimants, or their affiliates, were believed to have assets – notably including India.
According to the latest information available online, the High Court in Mumbai entered a provisional measure against assets of certain Technimont-related entities but has yet to rule on the underlying issue of the enforceability of the Russian judgment. I am not aware if the Technimont Claimants have countered in Mumbai by asking for enforcement of the judgments of the UK Courts.
As a disclaimer to what follows, I have not had access to any of the pleadings or submissions filed in the action before the High Court in Mumbai.
How might a competent court in India approach the issue of enforceability of the Arbitrazh Court Judgment? A potential starting place would be to consider the significance of any international treaty obligations owed by Russia, to whom those obligations are owed, and what should be the international consequences of any breach.
Let’s assume that each time a Russian Arbitrazh Court permits its “exclusive jurisdiction” to be invoked by the Russian Federation or by a Russian person or entity affected by sanctions, and if such a party is a party to a Treaty or contract that provides for arbitration of disputes elsewhere than in the Russian Arbitrazh Court, that there are two related violations of Treaties of which the Russian Federation is a Contracting State: the New York Convention of course, and, of considerable significance, the Vienna Convention on the Law of Treaties. The latter, in Articles 26 and 27, provides:
Article 26
“Pacta sunt servanda”
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Article 27
Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46. (The latter not relevant here).
Let’s assume that the exercise of jurisdiction by the Arbitrazh Court violates Article II(3) of the New York Convention if a Party contesting the Court’s jurisdiction asks that the matter be referred to arbitration under an arbitration agreement or Treaty, and the Arbitrazh Court does not grant the motion.
Let’s further assume that if the Arbitrazh Court reasons that, under Article II(3) of the Convention, the arbitration agreement is “null and void, inoperative, or incapable of being performed,” precisely because of the Russian legislation vesting jurisdiction of such cases in the Arbitrazh Court, there is a violation of Art. 27 of the VCLT: the Arbitrazh Court relies for its exercise of jurisdiction on internal Russian law as justification for failure to refer the parties to arbitration under Art. II(3) of the New York Convention.
In the case before the High Court in India, the court is asked to enforce the Arbitrazh Court judgment, and has already granted interim measures restraining assets of the Technimont Claimants and/or their affiliates. so that those assets might be available to satisfy the Arbitrazh Court judgment. India of course is also a Contracting State of the New York Convention. Is the India court’s obligation, under Art. II(3), to refer the Parties to arbitration assuming a Party asks that it do so? Were there such a referral, then the question of enforceability of the Arbitrazh Court judgment would then revert to the arbitral tribunal that already made its own anti-suit injunction against proceedings in the Arbitrazh Court. Or is the India court obligated, under law applicable in India to its enforcement of foreign judgments, to give effect to the Arbitrazh Court’s determination of the nullity/inoperability of the relevant agreement to arbitrate at a seat of arbitration outside of Russia?
The judges of the India court would reasonably begin by having a look at what the VCLT has to say about remedies available to a non-breaching party (India) in regard to a material breach by another party (Russia) of a multilateral treaty (the New York Convention). They would do so having in mind that Russia, and perhaps the majority of Contracting States of the New York Convention but not India are also parties to the VCLT. Article 60 of the VCLT provides in pertinent part:
A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State; or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
There does not appear to be very much in this text that would inform the approach the India judges might adopt – even if India were a VCLT party. (Of course India’s status as a VCLT non-party, as is the United States, does not prevent India’s courts from referring to the VCLT for principles applicable to the interpretation of other treaties to which India is a Party.) One could stretch the language of sub-part (b) above to reach the dilemma an India court now confronts. One could say that India is a New York Convention party “specially affected by the breach” by Russia, because its courts must address the enforceability in India of an Arbitrazh Court judgment. In the same stretch, it might be said that the India court is empowered to suspend the operation of the New York Convention “in part” by suspending, in its own determination under Article II(3), the operation of the “unless null and void …” clause under which the Artbitrazh Court’s exercise of jurisdiction might be claimed by the Russian party to be legitimate . But this approach would beg the question, which seems to be the essential question, of whether the Arbitrazh Court violates Article II(3), expressly or by implication, by relying on the Russian domestic legislation establishing Arbitrazh Court jurisdiction and powers as a basis for not only (i) refusing enforcement of the agreement to arbitrate outside Russia, but also (ii) actually enjoining the Technimont Claimants from proceeding in the foreign arbitral forum and punishing them with severe monetary contempt fines for their non-compliance.
So perhaps a big step toward the correct answer is the answer to this question: Under Art. II(3) of the New York Convention, may a court rely on domestic law that is not the law applicable to the arbitration agreement, to determine – with effect beyond the forum court’s national borders – that the arbitration agreement is “null and void, inoperative, or incapable of being performed”? Art. 27 of the VCLT, quoted above, would seem to point in the direction of a prohibition on invoking domestic law under Art. II(3). But it does not appear to be conclusive. Russia might say that it did not fail to apply Art. II(3). But if II(3) is meant to require that the “unless null and void …” clause be invoked under the law applicable to the arbitration agreement, the reliance on Russian law is clearly a material breach of Art. II(3).
For guidance I turned first to that ever-accessible and occasionally trustworthy scholar of International Law: ChatGPT (in a general, not companion, version of Itself). And here was the response: “Law Applicable to Article II(3) > Validity of the Agreement: The Convention does not explicitly define which law determines if an agreement is ‘null and void’ in Article II(3). However, courts generally apply the law chosen by the parties to govern the contract, or in the absence of a choice, the law of the seat of arbitration, or the law of the country where the agreement was made.” (emphasis supplied). This is not a ChatGPT hallucination, as a human examination of some of The Robot’s source material confirms. Yet the simple proposition stated is both elusive and intuitive – elusive because it does not emanate from the text of Article II(3) or even the travaux préparatoires of the Convention, and intuitive because the Convention’s purpose to harmonize globally the standards for enforcement of both arbitral awards and arbitration agreements would be frustrated, and the principle of pacta sunt servanda would be denigrated, if the “null and void…” clause in Article II(3) were governed solely by the domestic law of the State where the signatory resisting arbitration commences an action in court on an arbitrable claim.
An exceptionally well-researched 2016 article by a Turkish scholar – the lead resource cited by ChatGPT – summarizes the case for application of uniformly narrow international standards in the application of the “null and void…” clause according to the following principles:
[Bulent Tahiroglu, Interpretation of Article II(3) of the New York Convention, https://dergipark.org.tr/tr/download/article-file/.456989#, last visited March 23, 2026].
- The mandatory character of Article II(3)’s directive to domestic courts in Contracting States to refer the parties to arbitration — and, I would add, the centrality of that mandate to the overall scheme of the Convention — is widely seen as hostile to any interpretation based on domestic law that would convert that mandate into a broad discretionary option based on intrinsically domestic public policy criteria.
And here I would add that Russia has gone one step further, legislatively mandating that the Arbitrazh Court shall nullify the arbitration agreement by accepting jurisdiction.
2. The prevailing (albeit not unanimous) international perspective is that a domestic court requested to deny referral to arbitration under the “null and void…” clause of Article II(3) should apply a liberal prima facie standard that permits arbitration to proceed unless it is manifestly evident that the arbitration agreement is invalid. This view is informed by the widespread acceptance of the “negative” dimension of compétence-compétence, i.e. a general principle of restricted judicial intervention on a disputed issue of arbitral jurisdiction at the pre-arbitration stage as opposed to the award enforcement stage.
And here I would add that the notions of “prima facie” and “manifest” strongly imply that the invalidity of the agreement to arbitrate should be evident either of the face of the document that is presented to the Court as an arbitration agreement, or in the facts as reliably and credibly presented to the court. This is the antithesis of reliance by a domestic court on domestic law that expressly invalidates an arbitration agreement for reasons of domestic public policy.
3. No single approach to identifying the law applicable to the application of the “null and void…” clause exists, but there appear to be three principal approaches used where the contract or treaty containing the arbitration agreement itself does not make the choice with sufficient clarity: (1) a conflict of laws approach based on “national law standard,” which is to say the conflicts rules of the forum, (2) a “uniform international standard,” which is to say transnational principles of law adopted upon the view that international arbitration is an autonomous legal regime independent of national law, and (3) a “a maximum standard” that is an amalgam of (1) and (2), which is to say a national law conflict-of-laws approach influenced considerably by transnational norms.
3a. Here is it worth noting that the Turkish commentator identifies U.S. federal law as an instance of the “maximum standard”, quoting from Ledee v. Ceramiche Ragno, 685 F.2d184, 187 (1st Cir.1982):
“The parochial interests of the Commonwealth, or of any state, cannot be the measure of how the ‘null and void’ clause is interpreted. Indeed, by acceding to and implementing the treaty, the federal government has insisted that not even the parochial interests of the nation may be the measure of interpretation. Rather, the clause must be interpreted to encompass only those situations – such as fraud, mistake, duress, and waiver – that can be applied neutrally on an international scale.”
[Yes 1982 may seem like long ago. More recent adoptions of the Ledee formulation include Green Enters. v. Hiscox Syndicates Ltd., 68 F.4th 662 (1st Cir. 2023); Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279 (11th Cir. 2015); Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355 (4th Cir. 2012); Acab v. Chenrosa, 725 F. Supp.3d 1140, 11148-49 (S.D. Cal. 2024)].
Based on this limited excursion into the law potentially applicable to the “null and void” clause, it would appear that sound arguments can be made to a court in India that the Arbitrazh Court’s judgment in the Technimont case is based on an assertion of jurisdiction that violates Russia’s obligations under the New York Convention. But the court in India presumably will also consider: (1) India’s applicable law on the enforcement of foreign money judgments, and (2) any special considerations arising from geopolitical ties between Russia and India. I touch upon these elements briefly – not because they are less important, but only because they exceed the reasonable scope of today’s Post.
Section 13 of the Code of Civil Procedure applicable in the courts of India provides a list of certain exceptions to the res judicata effect of a foreign judgment. Notably, in relation to the foregoing discussion, this list includes: “(a) Where it has not been pronounced by a Court of competent jurisdiction; … [and] (c) “Where is appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [India] in cases in which such law is applicable.” Thus it appears that a good arguable case can be made for the non-enforceability of the Russian Court judgment in Technimont (and similar Arbitrazh Court judgments that might be presented for enforcement in India) . The application of Section 13 is linked to a bilateral mutual legal assistance treaty between India and Russia made on October 3, 2000, formally titled in its English version “Treaty Between the Republic of India and The Russian Federation on Legal Assistance and Legal Relations Concerning Civil and Commercial Matters.” Article 3 of the treaty lists nine categories of legal assistance to which the treaty applies, the eighth of which is “recognition and enforcement of judgements, including decrees, arbitration awards and settlements.” Article 13 of the treaty provides, however, that “[t]he requested Contracting Party may refuse legal assistance if it considers it may be prejudiced as to its sovereignty, security or public order or is in conflict with its laws or international obligations.” (emphasis supplied).
Complicating the issue of enforcement of the Arbitrazh Court judgment in India (and, if sought, enforcement of the UK Court judgments in India), is the existence of strategic partnership agreements between Russia and India, some of them of recent vintage, some of them much older, and whose legal status (as treaties under international law?) is beyond the scope of this Post. One such agreement is entitled “Declaration on Strategic Partnership Between the Republic of India and the Russian Federation” and bears the date October 3, 2000, i.e. the same date as the Legal Assistance Treaty discussed above. For a contemporary view of the status of Russia-India relations, one may examine a Government of India Press Information Bureau document dated December 4, 2025 and entitled “From Strategic Partnership to Special and Privileged Bond: India-Russia Relations at a Glance (https://static.pib.gov.in, last visited March 23, 2026). At least it must be said that the situation in India as to treaty obligations and public policy positions is less than clear, and the result indicated by analysis of obligations under New York Convention might not necessarily be predictive of the eventual outcome.
