Photo: Sergei Karpukhin / Reuters
Yukos Capital, affiliated with the former oil company YUKOS, has won an interim victory in an arbitration dispute with Russia. The Tribunal decided that the claim for $13 billion could be considered at the next stage essentially
Despite the fact that Russia has managed in the past year through the District court of the Hague to overturn arbitral awards in the amount of $50 billion, ruling in favour of former majority shareholders of Yukos, and Yukos-related companies are still trying to recover from Russia the lost assets. Luxembourg Yukos Capital in 2013 initiated a trial in the Hague for arbitration against Russia and has now won an interim victory — a panel of three arbitrators the decision of two to one decided that the matter may be considered on the merits, in accordance with an international Treaty to the Energy Charter Treaty (ECT).
This is an interim solution until the matter is Russia will challenge it in the Supreme court of Switzerland and will still be able to submit their jurisdictional objections at the stage of consideration of claim Yukos Capital essentially says General Director of the International centre for the legal protection (MTSPZ, coordinates on behalf of the Ministry of justice, the protection of foreign claims of former shareholders of Yukos) Andrey Kondakov. According to him, the bankruptcy court dismissed three of the five jurisdictional objections of the Russian side, but the remaining two objections together with the claims on the merits will be considered at the next stage of the proceedings.
Claim Yukos Capital to the Russian Federation amount to $13 billion, It is one of the three cases of the so-called “second wave” (the other two — Luxtona against the Russian Federation and Financial Performance Holdings V. Russian Federation), which was not publicized by Russia nor by the applicants. FPH withdrew the claim last year, the Tribunal dismissed its review, reported RBC. The claim Luxtona Cyprus is at the stage of determining jurisdiction.
Yukos Capital contends that during the existence of the Yukos gave her loans of billions of dollars which was not repaid because of the bankruptcy and liquidation of the company according to decisions of the Russian authorities. But the head MTSPZ claims that the outstanding funds in fact belonged to the company YUKOS, was veiled in the form of a fictitious loan, and has been used in illegal schemes to withdraw funds and tax evasion. According MTSPZ, Yukos Capital, like other plaintiffs in the cases of the “second wave”, in fact, represent the interests of “Russian oligarchs” — the founders and former owners of Yukos.
Similarly developed Central, the Yukos case in the Hague arbitration: the company Hulley Enterprises, Yukos Universal and Veteran Petroleum filed a complaint in 2005, four years after the Tribunal has decided that it has jurisdiction to entertain the dispute under the Treaty to the Energy Charter. In 2014 the Hague Tribunal awarded three companies $50 billion But Russia successfully contested the jurisdiction of arbitration in the Dutch national court (in the Hague, the seat of the arbitral Tribunal) in April 2016 district court of the Hague acknowledged that Russia was not a full participant in the ECT.
Although Russia signed the Treaty governing the protection of foreign investment in the oil and gas sector of the former USSR countries, in 1994, but never ratified it. The contract contains a clause providing for its provisional application before entry into force. If the Hague court of arbitration in 2009, found that Russia was bound by the obligation of provisional application, the district court of the Hague has determined otherwise. This controversial issue was the focus of arbitration at the suit of Yukos Capital, and the panel actually sided with the position of the Hague Tribunal from 2009.
Today the law firm representing the interests of the Russian Federation, makes a motion to set aside interlocutory decisions of arbitration for Yukos Capital in the Swiss Federal court, said RBC Andrey Kondakov. Arbitration is conducted under the UNCITRAL rules, under the auspices of the Permanent court of arbitration in the Hague, but the place of arbitration is Switzerland, which a competent court to cancel the arbitral award. According to the head of MTSPZ, the Swiss court may consider the protest of Russia up to six months. In parallel, the Russian side will make an application for the suspension of the arbitral proceedings on the merits while the Swiss Federal court did not render its decision.
The arbitration process for claims Yukos Capital is “the only existing international processes in the Yukos case, which did not have MTSPZ,” says Kondakov. This case in the interests of Russia led the law firm Cleary Gottlieb, which in 2014 has already lost the Central Yukos case against Russia at $50 billion But subsequent defence of Russia in its dispute with Yukos Capital, apparently, will do just MTSPZ, said Kondakov. He notes that at the time the parties within the claims of the “second wave” have agreed to the confidentiality of those processes, but Yukos Capital “flagrantly violated” a condition — information on the interim arbitration award has flowed into a specialized edition of Global Arbitration Review, obviously, not at the initiative of the Russian side, he said.