Onder 5.64. Rechtbank Den Haag 20 april 2016

These explanatory notes support the opinion that the Law on Foreign Investments in the versions of 1991 and 1999 does not contain a legal provision for arbitration in cases as referred to in Article 26 ECT, such as the current case. The court rejects the interpretation defended by the defendants which holds that from these explanatory notes it can only be deduced that the Law on Foreign Investments does not have a specific mechanism for arbitration between foreign investors and the State in the sense that the law does not include specific rules and a procedure that must be adhered to. This viewpoint proceeds from a too restrictive reading of the explanatory notes. The provided parliamentary notes can only be taken to mean that the versions of the Law on Foreign Investments of 1991 and 1999 do not contain any type of legal basis for investment arbitrations such as the ones in these proceedings. If arbitration had been permitted under this law, the arbitration provisions in the investment treaties concluded by the Russian Federation would not have been designated as “ provisions different from those provided by the Russian legislation ” and ratification would not have been deemed necessary. The fact that possibly not all explanatory notes to the ratified investment treaties discuss the differences between the arbitration clauses contained in the treaties and Russian law, as also argued by the defendants, does not alter the clear wording of the other explanatory notes.

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