Onder 5.32. Rechtbank Den Haag 20 april 2016

In light of the meaning the court assigns to the Limitation Clause of Article 45 paragraph 1 ECT, the question arises – and this is also the subject of dispute between the parties – whether the arbitral provision in Article 26 ECT, from which the Tribunal derived its competence, is in accordance with Russian law. This provision, as follows from paragraph 1 of Article 26, relates to “disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part III” . Article 26 has therefore only created the option for arbitration for an (alleged) breach of obligations as laid down in Part III of the Treaty (“ Investment Promotion and Protection ”). One of the obligations laid down can be found in Article 10 ECT. This provision obliges the contracting parties to treat the investments of foreign investors fairly and equitably and to refrain from taking discriminatory measures which hamper (the use of) these investments. Another obligation (to refrain from an action), laid down in Article 13 ECT, put briefly, determines that investors may not be nationalised, expropriated or subject to measures with a similar effect as nationalisation or expropriation. The obligations arising from Articles 10 and 13 ECT, through references in Article 21 ECT which relates to “taxes”, may also pertain to taxes or tax measures of contracting parties. The defendants’ claims for compensation in the Arbitration are based on the assertion that the Russian Federation has breached these obligations. The breach of the obligations of Article 10 ECT asserted by the defendants consisted of, among other things, impeding the course of justice and a fair trial, more specifically, by the numerous house searches and seizures, the failure to give due notice of administrative acts, cases not being heard by an impartial judge, the sale by auction of Yuganskneftegaz (YNG) and the initiation of bankruptcy proceedings against Yukos. The defendants have based their allegation about a breach of the obligations in Article 13 ECT on a number of circumstances, some of which also form the basis of the breach of Article 10 ECT. This includes, among other things, the seizure of the defendants’ shares in Yukos, the additional tax assessments over the years 2000-2004, the sale of YNG at a sham auction and the initiation of Yukos’ bankruptcy. According to the defendants, these circumstances have led to the deprivation of all of their investments. They qualified this as expropriation. In the Final Awards, the Tribunal accepted the breach of Article 13 ECT and therefore did not take a position on the alleged breach of Article 10 ECT.

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