Belarus has established a procedure for applying retaliatory restrictive measures
- Grounds for the application of special measures
- What counts as "unfriendly acts"?
- Subjects subject to measures
- Types of restrictive measures
- Exception
- Who must comply with the restrictive response?
- New rules for consideration of economic disputes
- When?
- REVERA Comment
On 12 July 2023, Act No. 280-Z of the Republic of Belarus entitled "On the Application of Special Restrictive Measures" (hereinafter referred to as the Act) was adopted, which establishes the general grounds, procedure, principles and types of restrictive measures taken by the Republic of Belarus in response to unfriendly actions by foreign States.
| For reference: the current special restrictive measures of the Republic of Belarus can be found in the review prepared by REVERA law group team. |
Grounds for the application of special measures
Committing unfriendly actions by a foreign state, including unilateral restrictive measures as a means of economic and (or) political coercion, not authorised by the UN Security Council and (or) incompatible with the principles and norms of international law.
What counts as "unfriendly acts"?
Unfriendly actions mean actions of a discriminatory nature committed by a foreign state against the national interests and security of the Republic of Belarus, its sovereignty and territorial integrity, political and economic stability, rights, freedoms and legitimate interests of citizens and (or) organisations, causing damage to the Republic of Belarus, its citizens and (or) organisations.
Subjects subject to measures
Foreign states committing unfriendly acts and persons from these states*.
Persons from foreign states committing unfriendly acts include:
- foreign persons having citizenship of these states, the place of registration, the place where they preferentially conduct their business activities or the place where they preferentially derive their profits is these states;
- entities controlled by foreign persons, regardless of the place of registration or place of preference.
Special restrictive measures may not be applied to citizens and/or organisations of the Republic of Belarus.
Types of restrictive measures
The Law establishes an open list of applicable restrictive measures*, among which are:
- ban on import/transit/export of certain groups of goods;
- a ban on the import into Belarus of work (services) performed by entities subject to restrictive measures;
- prohibition of the use of the territory of the Republic of Belarus (including the airspace of the Republic of Belarus);
- prohibition or restrictions on financial transactions;
- postponement of fulfilment of obligations (moratorium) under foreign trade contracts for the period of validity of the circumstances that served as grounds for the application of special restrictive measures;
- postponement of fulfilment of obligations (moratorium) in respect of entities to which restrictive measures have been applied;
- suspension of international co-operation of the Republic of Belarus and/or initiation of suspension or termination of international treaties.
The Council of Ministers of the Republic of Belarus is entitled to apply other restrictive measures by order of the President. Decisions on the application or cancellation of special measures shall be taken by the Council of Ministers of the Republic of Belarus in the form of resolutions, taking into account the assessment of the reasonableness of their initiation and the effectiveness of their application.
Exception
Special measures do not apply to:
- food or other goods that are essential for the domestic market of Belarus;
- goods whose analogues are not produced in Belarus;
- goods imported into the territory of Belarus by its citizens, foreign citizens and stateless persons for personal use;
- international technical assistance, humanitarian assistance and foreign donations.
Who must comply with the restrictive response?
- organisations and citizens of the Republic of Belarus;
- foreign organisations (including those that are not legal entities) subject to Belarusian law,
- foreign citizens and stateless persons temporarily staying, temporarily or permanently residing in the Republic of Belarus.
The above-mentioned persons are exempted from civil liability for failure to fulfil contractual and other obligations, the fulfilment of which was significantly affected by special restrictive measures.
At the same time, non-compliance with restrictive measures may lead to prosecution in accordance with legislative acts.
New rules for consideration of economic disputes
The Law pays special attention to the consideration of economic disputes that are related to the application of restrictive measures.
- The Law establishes exclusive jurisdiction of certain categories of disputes to the courts of Belarus:
- involving the Republic of Belarus represented by the relevant state bodies, its legal entities, individual entrepreneurs and other citizens against whom hostile acts have been committed;
- one Belarusian or foreign person with another Belarusian or foreign person, if the basis for such disputes is unfriendly actions against Belarusian persons.
- The Law introduces a new category of cases - cases of prohibition to initiate or continue proceedings in a foreign court or arbitration. Thus, a person against whom proceedings in a foreign court or foreign arbitration court (arbitration) have been initiated, or if there is evidence that such proceedings will be initiated, has the right to apply to the economic court of the region (the city of Minsk) with an application to prohibit the other party from initiating or continuing such proceedings in a foreign court or foreign arbitration court (arbitration).
When?
- The Act comes into force on 31 July 2023
REVERA Comment
The Law will be the main legal act for the Republic of Belarus to take retaliatory restrictive measures against foreign states. At the same time, some types of restrictive measures listed in the Law have already been adopted and are in force in Belarus.
Undoubtedly, a rather significant innovation is the change in the rules of consideration of certain categories of economic disputes - sanctions disputes. The provisions of the Law on exclusive jurisdiction of a certain category of disputes to Belarusian courts is a similar measure adopted in Russia - Articles 248.1-248.2 of the Arbitration Procedure Code of the Russian Federation establish that disputes involving persons subject to restrictive measures and disputes based on restrictive measures fall within the exclusive competence of Russian arbitration courts.
For more details on the new rules of economic disputes in Belarus, read in the next materials of REVERA lawyers.
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