JOINT EMLO AND MMLA SPRING SEMINAR 2014 EU

Transcript:JOINT EMLO AND MMLA SPRING SEMINAR 2014 EU:
JOINT EMLO AND MMLA SPRING SEMINAR 2014 EU Sanctions - An update FERGUS RANDOLPH QC The EU courts and the rule of law Preamble to the Charter of Fundamental Rights of the EU: the Union is based on the rule of law” Firm recognition of that in the EU Courts’ rulings in sanctions cases Different approach to other jurisdictions in which substantial judicial deference is given to the will of the legislature In praise of awkwardness Interesting recent article in the European Constitutional Law Review by Prof Gearty at the LSE “Standing in the way of [the challenge to the rule of law] are a few unelected judges from an entity that cannot even call itself a state without risking terminal offence. It is an heroic story ...” Ukraine/Russia Most recent EU activity has been in relation to Ukraine and Russia Well-oiled EU sanctions machine swung into action Absence of UN resolution Aim as ever is to bring the “recalcitrant State” to heel At present, that doesn’t appear to be working but UK’s SFO obtained a £23 million restraint order against Ukrainian assets un the UK on 28 April 2014 Iranian sanctions Long-running saga Focus has moved to the Geneva process In the meantime, challenges continue to be brought before the EU courts – many are won – but Council then moves the goalposts Malta has a substantial number of companies affected by these sanctions Melli Bank Commercial Court judgment Judgment of Simon J of 31 July 2013 Iranian ship owning companies and guarantors attempted to avoid their repayment liabilities under various loan facilities by asserting that the EU sanctions regime forbade payment The Court dismissed the argument - “it is not the effect of the Regulations nor is it consonant with their broad intent.” Recent UK proposals FCO recently proposed contract sanctions These would stop British courts from enforcing commercial agreements involving countries covered by sanctions Unsurprisingly, substantial criticism from interested parties as such a scheme could threaten London’s role as global legal hub UN / EU / UK Sanctions UN: Imposed by UN Security Council Resolution under Chapter VII of the UN Charter in order to maintain or restore international peace and security; EU: Decisions of the Council / Implementing Regulations UK: Statutory Instrument / Counter-Terrorism Act 2008 Target of sanctions Typically governments Effects not confined to governments E.g. UN, EU and UK sanctions targeting Iranian nuclear proliferation