Onder 5.60. Rechtbank Den Haag 20 april 2016

It is the court’s opinion that in assessing the meaning of the explanatory memorandum the Tribunal insufficiently recognised that this memorandum originated from the executive and was primarily aimed at prompting the Duma, as part of the legislature, to ratify the ECT. Since the ECT was never ratified, the opinion of the executive (the government) cannot be ascribed to the legislature and the government’s standpoint therefore does not have independent meaning. This observation alone necessitates an assessment of (the relevance of) the explanatory memorandum from the government with the utmost restraint. This is all the more relevant since the explanatory memorandum only discusses the compatibility of the ECT with Russian laws in general terms. For instance, the arbitral provision of Article 26 ECT is not explicitly stated in the explanatory memorandum. Furthermore, the court follows the standpoint taken by the Russian Federation on this aspect that the remark of the government that (the regime of) the ECT is in line with Russian law and “ does not require the acknowledgement of any concessions or the adoption of any amendments” of Russian legislation, should be viewed against the backdrop of the intended ratification. Whether or not the ratification of the ECT and more specifically of Article 26 would require and adjustment of Russian legislation, is a wholly different question than the question whether the provisional application of this provision is in accordance with Russian law. The latter question is not answered in the explanatory memorandum.

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