Yue Zhao (Univ. of Geneva – Law) &
Han-Wei Liu (Singapore Management Univ. – Law) have posted
Lawfare’s New Frontier: International Commercial Arbitration in the Shadow of Sanctions (Vanderbilt Journal of Transnational Law, forthcoming). Here’s the abstract:
This Article examines how international commercial arbitration is being reshaped by economic statecraft through the lens of lawfare, or the strategic use of law as a substitute for traditional coercive tools. Building on prior lawfare theory, it identifies two modalities of State-driven lawfare affecting arbitration. Instrumental lawfare arises where domestic legal measures displace arbitral authority, exemplified by assertions of exclusive jurisdiction over sanctions-related disputes. Compliance-leverage lawfare, by contrast, raises the costs and risks of participation by restricting legal services and banking access. Beyond State action, these measures generate spillovers that reshape arbitral practice by enabling private actors to exploit jurisdictional fragmentation, regulatory conflicts, and blocking statutes through contract design and forum selection. Drawing on case studies from European civil law systems, common law jurisdictions, and Asia, the Article maps how overlapping forms of lawfare produce both direct State intervention and diffuse ripple effects. It argues that while international commercial arbitration remains resilient, it is increasingly entangled with lawfare, revealing deeper intersections of law, power, and commerce in a fragmented geopolitical order.
