CL-2022-000456 - [2025] EWHC 1938 (Comm)

Regulation 833 contains various prohibitions on the sale, supply, transfer, or export (directly or indirectly) of certain “dual-use” goods or technology to or for use in Russia, as well as prohibitions on the provision of “financing or financial assistance” related to those items.

I heard only brief submissions in relation to Regulation 833, because anything more extensive was unnecessary in light of the parties’ agreement that I should proceed on the assumed basis that the underlying construction Contracts are or include a “contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under Regulation 833”. Whether that is so, or not, will be decided in the arbitration proceedings between EuroChem NW2 and Tecnimont.

On the basis of the assumption, the only provision of Regulation 833 that I was asked to consider was Article 11, which provides as follows:

“Article 11

1.

No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, notably a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

(a)

legal persons, entities or bodies listed in the Annexes to this Regulation or legal persons, entities or bodies established outside the Union whose proprietary rights are directly or indirectly owned for more than 50 % by them;

(b)

any other Russian person, entity or body;

(c)

any person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in points (a) or (b) of this paragraph.

2.

In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited by paragraph 1 shall be on the person seeking the enforcement of that claim.”

It being assumed that the performance of the underlying Contracts between EuroChem NW2 and Tecnimont have been affected by Regulation 833, the main issue arising for my decision is whether the claims under the Bonds are claims “in connection with” those underlying Contracts.