Former shareholders of the liquidated Yukos, trying to restore the decision of the Hague Tribunal to award them compensation of $50 billion, have adopted a new argument: they believe that the legal order of Russia’s annexation of Crimea in 2014 proves the validity abolished in present time of the award.
13 March 2017-controlled Gibraltar GML structure Hulley Enterprises, Yukos Universal and Veteran Petroleum, which owned a 70% stake in Yukos, filed in the Hague court of appeal statement (statement of appeal), essentially outlining the reasons why the decision on compensation of $50 billion should be restored. This decision was overturned in April of last year, the Hague court of first instance on the sole ground that Russia has not ratified the Energy Charter Treaty (ECT, it sued the former shareholders), and its provisional application by Russia did not apply to the entire document and, in particular, did not extend to the article on settlement of disputes with investors in international arbitrations.
“The Russian Federation agreed to apply the ECT is temporary, pending its entry into force, and such provisional application is extended to dispute resolution mechanisms provided by the Treaty. Therefore, the arbitration Tribunal [in the Hague] had jurisdiction to entertain the dispute”, — stated in summary appeals (have). The fact that the provisional application of the ECT is fully consistent with Russian law, repeatedly confirmed by the Russian constitutional court, including — indirectly — in its ruling of 19 March 2014 on the legality of the annexation of Crimea, according to lawyers of former Yukos shareholders.
In that ruling, the constitutional court “was dismantled General question of the provisional application of international treaties and confirmed that the provisional application of the agreement is binding for the Russian state even before ratification, and despite the differences between this Treaty and existing provisions of the Russian law” explained the position of the lawyers, the Director of communications GML Jonathan hill. sent to the press-service of the constitutional court a request for comment.
The interpretation of the words
Russia signed the energy Charter Treaty, which protects foreign investments in the oil and gas sector of post-Soviet countries in 1994 but not ratified. In 2009 Hague arbitration court established that the Contract was temporarily used by Russia from the moment of signing until such time as Moscow in 2009, had notified the Depositary of the Treaty (government of Portugal) refusal to ratify the document. The Tribunal considered that provisional application was extended to the entire contract, that is, on all parts, including Article 26 on the procedure of settlement of disputes with investors.
Russia objected, claiming that the ECT applies temporarily only to those of its provisions that do not contradict the current Russian legislation. In April 2016, the Hague district court, cancelling the decision of arbitration agreed with the position of Russia and found that St. 26 do not meet Russian standards, according to which disputes in public law (such as a dispute with the shareholders of Yukos) may not be submitted to international arbitration they shall be referred to the Russian courts.
The Hague arbitration and the Hague district court differently interpreted a provision of the ECT, which in English translation reads: “Each signatory agrees to provisionally apply this Agreement pending its entry into force <…> to the extent (to the extent that in the English version. — ) that such provisional application is not inconsistent with its Constitution, laws or regulations”.
The agreement on the accession of Crimea to the Russian Federation was signed on 18 March 2014 and was applied provisionally pending its ratification, which took place a few days later. The constitutional court, having considered the urgent request of President Vladimir Putin, March 19, wrote that “in fact, the adoption of the Republic of Crimea into the Russian Federation is envisaged as an element of application of this Treaty prior to its ratification”. This possibility has emerged from the Vienna Convention on the law of treaties which participant is Russia. In relation to the Crimea doing so means that Crimea and Sevastopol are part of Russia since the signing of the contract, not from the moment of its entry into force, explained the constitutional court.
Constitutional court Chairman Valery Zorkin, later wrote in “Rossiyskaya Gazeta” that in the conditions, when to be sent to the Crimea was preparing for “armed troops of the Maidan,” Russia, including by the constitutional court, had to hastily respond to the challenge of living in Crimea to citizens — the time for “strict legal cricketarchive” was not.
In the preparation of the appeal document was attended by Russian experts in the field of law, but GML is not yet able to disclose their names, said hill.
New PR war
This month GML has launched a website for coverage of the trial of confrontation with Russia, ongoing since 2005. Resource positions the dispute as part of a “war” declared by the West, President Vladimir Putin. Previously, GML and the Russian authorities preferred unless absolutely necessary do not make public the details of the court proceedings. In 2015, Russia has delegated the work on international protection from the claims of shareholders of Yukos of the nonprofit organization “international centre for the legal protection” (MTSPZ), which also engaged in active communication support of the processes. CEO MTSPZ Andrey Kondakov did not answer the question .
In November 2016 at GML appeared Director of communications — a former speechwriter for the European Commission Jonathan hill. When it launched, the website explains to the public how “Russia has carried out violent and illegal expropriation of YUKOS”, the statements of the hill. The website draws a commercial dispute with Moscow as part of a large-scale geopolitical confrontation between Russia and the West, or as the company explains in a special information booklet “the new war, which the West announced Vladimir Putin”. “His goal is clear — to weaken our democracy and undermine our values and the world order. It is a struggle against the truth and our ability to distinguish fact from fiction,” from this document.
“If we talk about our lawsuit, much is at stake: the rule of law and the ability of Western institutions to defend Western values, explained hill communication strategy. — Through a booklet about the confrontation between Russia and the West that we are trying to convey to the public what’s at stake is much more than just a separate lawsuit”. According to him, the Yukos case is important in itself, but it is also only part of a broader geopolitical picture, one element of a wider conflict between Russia and the West. “Our goal is maximum openness and transparency in covering this case. We always strive. There are new technologies, new means of communication, we strive to use all possible communication resources, which are possible to illuminate this process,” says hill.
The booklet provides a series repeated in Moscow a high-profile accusations — the murder of journalists, intimidation of judges, the funding of nationalist parties in Europe, the creation of the state system of support doping, etc. the Kremlin has always denied the allegations. “Reported cases point to a clear pattern. The Kremlin is making every effort to achieve their goals. He openly disregards human lives, democracy and rule of law. He will stop at nothing and no one can feel safe”, — the document says. Recently, this “war” has entered a new phase — at this point the “intervention of the Kremlin in the Western campaign, covert operations, cyber attacks, and the use of state propaganda and Internet trolls,” says GML.