Onder 5.47. Rechtbank Den Haag 20 april 2016

Although the wording of Article 9 is not literally the same as that of Article 43 of the Fundamentals of Legislation, a comparison of both provisions appears to reveal that Article 9 is based on the same principles as Article 43. Article 9 paragraph 2 also applies to both disputes between foreign investors and state bodies and disputes between foreign investors and other companies – disputes in the latter situation being civil-law in nature by definition – while, as in Article 43 paragraph 2, arbitration is possible besides regular proceedings if the parties have agreed to that (“or, upon agreement by the parties” ). Unlike in Article 43 paragraph 2, Article 9 paragraph 2 does not contain the explicit statement that the paragraph exclusively provides for cases in which the government acts in the capacity of a private party, but that scope of application appears to be implied, in light of the disputes and the context of the disputes described in Article 9 paragraph 1. For its part, Article 9 paragraph 1 appears to be in line with Article 43 paragraph 1 and explicitly designates the regular Russian courts as the competent authorities, with the added remark that this principle can only be deviated from by an international treaty (“unless another procedure is established by an international treaty in force” ).

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