Onder 5.45. Rechtbank Den Haag 20 april 2016

When reading the two paragraphs, it is clear that Article 43 makes a distinction between two types of dispute. Following the words of expert Asoskov, the court holds that the first paragraph concerns investment disputes “within the strict meaning of this term” . It furthermore concerns disputes arising from the exercise of public-law authorities, or sovereign government actions (expert’s report Asoskov, under 73). This dispute type must be brought before a Russian court unless other proceedings are provided for in an international treaty of the Russian Federation. The second paragraph of Article 43 concerns investment disputes between various entities, including between companies and between companies and Russian state bodies, in which the latter act in the capacity of a private party (“acting as a party to relationships regulated by civil legislation” ). This type of dispute must – in so far as is relevant – be adjudicated by a Russian court or by arbitration if provisions have been made for arbitration in an agreement. In short, concerning the first type of dispute, Article 43 paragraph 1 of the Fundamentals of Legislation appoints the Russian court as the competent court and stipulates that arbitration is only possible when there is a treaty. The second paragraph contains an explicit provision for arbitration besides regular proceedings if the parties have agreed to that.

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