Research On Blocking Measures Of Economic Sanctions

Economic sanctions are coercive economic measures implemented by the sanctions senders to the target stated and the third stated in order to achieve its specific political purpose.Because of its low cost and relatively flexible characteristics,economic sanctions have been widely used by sovereign states and international organizations,and have become a common foreign policy tool for international subjects.Theoretically,economic sanctions are legitimate under international law,because states have no obligation to trade with other states.However,in practice,different economic sanctions have received completely different international comments,and there are obvious differences in their legitimacy.Chapter 1 summarizes the economic sanctions and blocking measures.Before the 20 th century,economic sanctions were often accompanied by wars;from World War I to the promulgation of the Charter of the United Nations,economic sanctions attempted to be independent from the war;after the promulgation of the Charter of the United Nations,economic sanctions are separate from war in principle.According to different classification criteria,economic sanctions can be divided into different types.Economic sanctions are generally not regarded as an unacceptable means under international law.However,all states must comply with their bilateral or multilateral treaty obligations,apply the recognized principles of jurisdiction under international law,and meet the conditions for the application of general exceptions,security exceptions and countermeasures.Throughout the world,the measures to deal with economic sanctions can be divided into international measures,such as making good use of the WTO dispute settlement body,UN General Assembly resolutions and the International Court of Justice;domestic defensive measures are known as blocking measures.At present,the types of blocking measures established by blocking laws in various countries mainly include reporting measure,injunction measure,claw-back measure and exemption measure,blocking measures are divided into obligatory measures and entitlement measures according to their impact on the rights and obligations of national entities or individuals.Blocking measures play a role in blocking the improper extraterritorial application of relevant foreign laws in the country and prohibiting domestic entities or individuals from complying with relevant foreign laws.At first,foreign blocking legislation was to block the discovery of evidence in American antitrust litigation,and then gradually applied to various fields to block the extraterritorial application of American economic sanctions law.Chapter II discusses the obligatory measures to block economic sanctions.The obligatory measures of economic sanctions are the measures that blocking legislation specifies the measures to be complied with by national entities or individuals,including reporting measure and injunction measure.Reporting measure refers to the obligation of national entities or individuals to truthfully the competent national authorities of the sanctions they encounter.The reporting measure is the first step to block economic sanctions and the basis for other blocking measures.The reporting measure has four characteristics: clear applicable subjects,clear reporting procedures and contents,limited power of sovereign departments and great difficulty in supervision.The effect of reporting measure is to collect and obtain information on foreign sanctions suffered by domestic entities or individuals.Taking the EU as an example,based on the information collected from the reporting measure,the European Commission informs the European Parliament and the Council of the impact of the extraterritorial legislation listed in the Annex,and regularly provides a complete public report on its findings.Injunctive measure directly and clearly denies the effectiveness of any extraterritorial judgment,ruling and administrative decision made in accordance with foreign extraterritorial sanctions legislation in their own country,and make it clear that they cannot be observed,recognized and implemented in their own country,so as to achieve the goal of blocking.There are two types of injunctive measures,namely,prohibition of compliance and prohibition of recognition or enforcement.Prohibition of compliance can be divided into two categories: prohibition of the production and provision of evidence and prohibition of compliance with foreign sanctions.Due to the principle of international comity and the limitation of domestic jurisdiction,the prohibition of the production and provision of evidence is limited by certain conditions,such as the four-test standards set by the UK and the strict preconditions set by Canada.The prohibition of compliance with foreign sanctions has the following characteristics: a clear personal scope,a clear subject matter scope and the adoption of strict criteria requiring compliance by national entities or individuals.Based on the impact of the prohibition of recognition or enforcement on the mutual and mutually beneficial relationship between international civil litigation and sovereign states,the prohibition of recognition and enforcement has also been strictly limited.First,the legal scope on which foreign court decisions are based is limited.Second,the amount of compensation is limited.Third,the procedure for declaring the prohibition of recognition and enforcement is rigorous.The expected effect of the injunction measure is not to force domestic entities or individuals not to comply with foreign sanctions legislation,but to protect them from being forced to comply with foreign sanctions legislation.However,due to the lack of awareness of EU operators and judicial departments,as well as the general lack of law enforcement,the injunction measure did not achieve the goal of protecting EU operators from foreign sanctions.Violation of the obligatory measures will be punished,including civil,administrative and criminal penalties.The expected effect of punishment is to force domestic entities or individuals to comply with the obligatory measures,but it has proved that only appropriate punishment can promote domestic entities or individuals to comply with the obligatory measures.Chapter III focuses on the entitlement measures to block economic sanctions.Among the blocking measures,the entitlement measures are claw-back measure and exemption measures.Claw-back measure is the core measures of various countries to block economic sanctions.and it is an relief measure for domestic entities or individuals.Claw-back measure provides that after the relevant affected subject can obtain compensation through judicial procedures after being damaged.Injunctive measure is mainly used in the "lawsuit of breach of contract" in the judicial practice of various countries,and the claw-back measure is mainly the "lawsuit of infringement" under civil law.Claw-back measure has three characteristics: the scope of damage compensation is clear,it is limited based on the principle of international comity,and measures are taken to ensure the implementation of recovery judgments.In practice,the implementation of claw-back measure faces two difficulties,namely,the implementation of non-domestic entities or individuals and sovereign immunity.Since the UK Trade Interests Protection Act and Canada’s foreign extraterritorial Measures Act do not provide exemption measure,this section mainly studies the exemption measure stipulated in the EU blocking regulation.The background of EU exemption measure is the dilemma between the prohibition of compliance by domestic entities or individuals and the punishment of economic sanctions by other countries.The characteristics of EU exemption measure are clear application standards,strict procedures and the assistance of the Extraterritorial Legislative Committee to the EU Commission in examining the application for authorization of exemption.Both claw-back measure and exemption measure provide a way for EU operators to protect their rights and interests from the impact of U.S.sanctions laws.However,the different application conditions and procedures of claw-back measure and exemption measure in fact lead to an imbalance of rights and obligations.In practice,the EU Commission applies a high threshold to evaluate the exemption authorization application of the applicant,and the review decision of the Commission’s exemption application is not public,so it is impossible to know the success rate of the exemption authorization application.Chapter IIII is the discussion of China’s blocking measures of economic sanctions and suggestions for improvement.At present,the most influential sanction against China comes from the United States.The domestic legal basis of US economic sanctions against China is congressional legislation,presidential executive orders and departmental regulations.The economic sanctions imposed by the United States on China can be divided into two categories.The first category is economic sanctions of important trade laws and regulations that are not unique to China,and the second category is specific economic sanctions specifically imposed on China.The US economic sanctions against China have three characteristics: launching economic sanctions under the guise of human rights,imposing economic sanctions to deliberately stifle China’s high-tech development,and seizing high fines to implement economic sanctions against Chinese enterprises.In order to block the harm of US economic sanctions to China,the Ministry of Commerce issued the Blocking Rules,which established reporting measure,injunction measure,claw-back measure and exemption measure.In addition to the disclosure provisions,the Blocking Rules stipulate the "improper" evaluation factors for the unjustified extra-territorial application of foreign legislation and other measures,that is,violating international law and the basic principles of international relations,violating national sovereignty,security and development interests,and endangering the legitimate rights and interests of entities or citizens of China.The problems existing in China’s blocking legislation system are that the legal rank of the Blocking Rules is low,the personal scope is limited and the "measures" are not clear.There are some problems in the reporting measure,such as unclear starting time point,report content and subject matter scope,unclear application subject of injunction measure,no scope of damages specified in claw-back measure,and uncertain recovery object and execution of recovery judgment.In view of the above problems,the following suggestions are put forward.First,improve the legal status of the Blocking Rules,expand the scope of personal and clarify the scope of "measures".Second,clearly specify the starting time point,specific content and subject matter scope of the reporting measure,and define the applicable subject of the injunction measure.Third,the scope of damages for measures should be judged by the combination of compensatory damages and liquidated damages.The execution object of recovery judgment should include overseas subjects.Sign a judicial cooperation agreement to improve the execution of recovery judgment.Fourth,set up detailed exemption application procedures.At the same time,in order to prevent enterprises from excessively complying with their compliance obligations,set up strict exemption application criteria to avoid abuse of exemptions.