Onder 5.41. Rechtbank Den Haag 20 april 2016

The court follows the analysis in the experts’ reports based on the legal provisions and the references to the Russian doctrine and jurisprudence cited in the two experts’ reports. Incidentally, the defendants did not contest this interpretation of the legal provisions discussed above. In this context, they limited their defence to the argument that the legal provisions solely relate to arbitration within the Russian Federation’s national legal system. Even if their defence were correct – which in any case does not hold for the 1993 International Arbitration Law van 1993, which explicitly concerns cases in which one of the parties is not established in the Russian Federation – this does not alter the fact that the Russian legislation mentioned here limits the option of arbitration to civil-law disputes. Moreover, the court does not agree with the defendants’ argument that the fact that public-law disputes can only be brought before the national court is in no way contrary to the fact that the Russian Federation has committed at an international level to compensating foreign investors for damages ensuing from acts of the State that are contrary to international rules (statement of defence, under 256). In their statement, the defendants ignore that incompatibility with Russian law can also exist if that law does not provide for the option of arbitration as laid down in Article 26 ECT. The legislative provisions discussed above in any case do not provide for the option of arbitration for disputes arising from a legal relationship between the Russian Federation and (foreign) investors, in which the public-law nature of the Russian Federation’s actions in that relationship is predominant and in which an assessment of the exercise of public-law authorities by Russian Federation state bodies is concerned. In the opinion of the court, it is beyond doubt that such a dispute exists in the current cases. The conduct for which the defendants reproach the Russian Federation cannot be designated as acts carried out by the Russian Federation as an equal party or private-law party. Moreover, the Tribunal did not derive its jurisdiction from these legal provisions.

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