The Dutch Supreme Court (the “DSC”) rendered a decision on December 04, 2020 (the “decision”), regarding the enforcement suspension of the $57 billion arbitration awards. The DSC stated that:
- The Russian Government (“Russia”) arguments for a stay of the awards in favor of the Yukos Oil Company (“Yukos”) majority shareholders were rejected by the DSC.
- The decision was made by the DSC following a preliminary assessment of Russia’s arguments to set aside the awards. The assessment included, how the parties would be affected by continuing or suspending enforcement and saw no reason to grant the stay.
The dispute arises out of the expropriation of Yukos by the Russian Government (the “expropriation”). According to the award, the expropriation was politically motivated and the Russian Government drove Yukos into bankruptcy by imposing retroactive tax demands.
In 2014, UNCITRAL Tribunals issued several awards with a combined value of $57 billion including interest. The UNCITRAL Tribunals found that Russia breached the Energy Charter Treaty (“ECT”).
Afterward, in 2016 the District Court of the Hague set aside the awards since Russia never ratified the ECT and was not bound by it. However, shortly after, the Hague Court of Appeal reinstated the awards set aside and also rejected Russia’s other arguments including the alleged corruption by investors.
In May 2020, Russia took the case to the DSC and requested a preliminary ruling on the interpretation of the ECT. The referral request is still pending in the DSC.Russia argues among its grounds of appeal that the Hague Court of Appeal:
- Made a mistake in the ECT limitation clause reasoning when it found that the arbitration was not prohibited.
- Was wrong in deciding that the illegal acts committed by the Yukos former majority shareholders are only relevant if they were directly related to Yuko’s purchase of shares (the “Illegal Acts”).
- The ECT requirement to consult tax authorities constitutes a strong justification to set aside the award.
- The tribunal improperly delegated part of its decision making to the tribunal secretary.
- The UNCITRAL awards based on illegally obtained or exploited investments are contrary to Dutch public policy.
The DSC decision stated that:
- Russia did not address all the ECT’s limitation clause grounds of the Hague Court of Appeal on the DSC appeal. Russia only addressed one of three grounds on why the ECT’s limitation clause did not apply.
- There was no error of law in the Hague Court of Appeal decision that the nationality of the investors should be determined by the law of the country pursuant to the ECT.
- Under investment treaties there is no general legal principle that protects companies that are controlled by nationals of the host state.
- Russia was likely not going to be successful in the Illegal Acts argument.
- DSC decided that none of Russia’s arguments had the possibility of success to warrant Russia’s request for a stay.
The DSC decision is of a preliminary character that lacked questions of Dutch and European Union law. Russia looks to the main cassation proceedings in the Netherlands to answer all these questions, and might also take the case to the European Court of Justice (ECJ).
Furthermore, in October 2020, a Dutch court lifted a Russian alcohol trademark attachment obtained by Yukos shareholders on two vodka brands since they are not held by the Russian state but by a state-owned company.
