Onder 5.51. Rechtbank Den Haag 20 april 2016

Based on the considerations stated here, the court concludes that Article 9 paragraph 1 concerns (civil-law) disputes arising from legal relations between foreign investors and the Russian Federation in which the public-law nature predominates. The scope of application of Article 9 paragraph 2, on the other hand, is limited to investment disputes of a predominantly civil-law nature. This is in line with the distinction made by Russian jurisprudence and doctrine, as described in section 5.36 et seq. in this judgment. The Tribunal did not acknowledge this distinction. Instead, it limited itself to the representation of Article 9 paragraph 2 in the Interim Awards and subsequently drew the conclusion that disputes between an investor and a state can be settled by arbitration according to Russian law. The court deems this opinion incorrect. As has been considered above, the Arbitration is connected to the previously described mode of action of the Russian Federation, which in the view of the defendants constitutes a breach of Article 13 (and Article 10) ECT. The Arbitration concerned a dispute that had arisen from a public-law legal relationship and that centred on compensation for damage caused by the actions of the government. This finding means that the option of arbitration is not determined by Article 9 paragraph 2, as was the reasoning of the Tribunal, but by the first paragraph of Article 9. In view of the fact that Article 9 paragraph 1 favours proceedings before the Russian court for civil-law disputes arising from public-law legal relationships and only provides for other modes of dispute resolution if a treaty provides for it, this provision does not offer an independent legal basis for arbitration between the defendants and the Russian Federation.

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