Available in Russian
Authors: Iliya Rachkov, Andrey Saveliev
Keywords: international investment law; Energy Charter Treaty; Yukos; setting-aside of international investment arbitration awards; legality of investments; fraud in arbitration proceedings
This article deals with the decision of the Supreme Court of the Netherlands (the Court) in a case setting-aside arbitration awards (the Awards) rendered ad hoc by the international investment arbitration tribunal on the claim of former shareholders of OAO Oil Company Yukos (Yukos) (the Claimants) against Russia. According to Russia, the Hague Court of Appeal came to incorrect conclusions regarding the issues of provisional application of the Energy Charter Treaty of 1994 (ECT) and of qualification of the acquisition of Yukos shares as investments within the meaning of the ECT, as well as the Court of Appeal’s conclusions on the legality of these investments. Russia also presented arguments in support of procedural violations by the arbitration tribunal in all three of its proceedings: the active role of the tribunal’s assistant when rendering the Awards, its ignoring the requirement of consultation with the competent Russian tax authority, and its insufficient justification of individual issues. The Court presented its reasoned decision on many of the arguments stated by Russia. The Court also considered the issue of the admissibility of the Claimants’ statements of arguments presented for the first time after the arbitration proceedings. Separately, Russia claimed fraud by the Claimants during the arbitration proceedings. According to the respondent State, the Claimants did not disclose certain evidence and bribed a witness. These are infrequent in international investment arbitration practice, especially at the stage of setting-aside arbitral awards. In this regard, the authors have researched the validity of Russia’s arguments and the prospects for them at a new hearing of the case by the Amsterdam Court of Appeal on setting-aside the Awards. To assess these prospects, they review a similar case in the Netherlands court in which fraud was alleged after rendering of an arbitral award. The article reveals the particularities of the Netherlands’ legislation regarding two procedures for cancellation of arbitral awards – setting-aside (vernietiging) and revocation (herroeping). Russia asserted that the Dutch state courts had the right to annul the Awards on both legal grounds, a claim which the Court found permissible. However, the Court did not agree with Russia’s arguments on issues of international investment law.
About the authors: Iliya Rachkov – Candidate of Sciences (PhD) in Law, Associate Professor of the Departament of International Law, MGIMO, Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia; Andrey Saveliev – MA Degree, International Economic Law Program, MGIMO, Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia.
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