Uitspraak Nº C/09/477160 / HA ZA 15-1 (english translation). Rechtbank Den Haag, 2016-04-20

• ECLI: ECLI:NL:RBDHA:2016:4230
• Date: 20 Abril 2016
• Docket Number: C/09/477160 / HA ZA 15-1 (english translation)
• Court: Rechtbank Den Haag (Neederland)

judgment

THE HAGUE DISTRICT COURT

Chamber for Commercial Affairs

case number / cause list number

Judgment of 20 April 2016

in the following joined cases

I. the case with case number / cause list number: C/09/477160 / HA ZA 15-1 (hereinafter: case I) of

THE RUSSIAN FEDERATION,

seated in Moscow, the Russian Federation,

claimant,

lawyer mr. L.Ph.J. Baron van Utenhove of The Hague,

versus

the company incorporated under and subject to Cypriot law

VETERAN PETROLEUM LIMITED,

with its registered office in Nicosia, Cyprus,

defendant,

lawyer mr. M.A. Leijten of Amsterdam;

II. the case with case number / cause list number: C/09/477162 / HA ZA 15-2 (hereinafter: case II) of

THE RUSSIAN FEDERATION,

seated in Moscow, the Russian Federation,

claimant,

lawyer mr. L.Ph.J. Baron van Utenhove of The Hague,

versus

the company incorporated under and subject to Cypriot law

YUKOS UNIVERSAL LIMITED,

with its registered office in Douglas, Isle of Man,

defendant,

lawyer mr. M.A. Leijten of Amsterdam;

III. the case with case number / cause list number: C/09/481619 / HA ZA 15-112 (hereinafter: case III) of

THE RUSSIAN FEDERATION,

seated in Moscow, the Russian Federation,

claimant,

lawyer mr. L.Ph.J. Baron van Utenhove of The Hague,

versus

the company incorporated under and subject to Cypriot law

HULLEY ENTERPRISES LIMITED,

with its registered office in Nicosia, Cyprus,

defendant,

lawyer mr. M.A. Leijten of Amsterdam.

Parties are hereinafter referred to as the Russian Federation, VPL, YUL and Hulley, respectively. The court also jointly refers to the three defendants as “defendants”.

(Translation) Only the Dutch text of the ruling is authoritative.

INDEX

1 THE PROCEEDINGS

in case I 1.1

in case II 1.1

in case III 1.1

in all cases 1.1–1.3

2 THE FACTS ESTABLISHED BETWEEN THE PARTIES

in all cases 2.1-2.13

3 RELEVANT LEGISLATION

The Energy Charter Treaty (“ECT”) 3.1

The Vienna Convention on the Law of Treaties (“VLCT”) 3.2

The Russian Constitution 3.3

The Russian Federal Law on International Treaties (“FLIT”) 3.4

The Russian Fundamentals of Legislation 3.5

The Law on Foreign Investments 3.6

4 THE DISPUTE BETWEEN THE PARTIES

in all cases 4.1–4.4

5 THE ASSESSMENT OF THE DISPUTES

in all cases 5.1–5.100

INTRODUCTION 5.1–5.3

Authentic texts or translation? 5.1–5.2

The competence of the court in these proceedings 5.3

THE COMPETENCE OF THE TRIBUNAL 5.4–5.96

Introduction 5.4–5.5

Article 45 ECT 5.6–5.31

General 5.6

Article 45 paragraph 1 5.7–5.13

Article 45 paragraph 2 5.14–5.17

Provisional conclusion on Article 45 paragraph 1 5.18

Object and purpose of the ECT and the nature of international law 5.19

Opinion of other tribunal 5.20

State practice 5.21

The travaux preparatoires 5.22

Conclusion about the interpretation of Article 45 5.23

Prior declaration required? 5.24–5.31

Article 26 ECT 5.32–5.34

The Law on Foreign Investments 5.35–5.58

General 5.35–5.42

Article 9 The Law on Foreign Investments 1991 5.43–5.51

Article 10 The Law on Foreign Investments 1999 5.52–5.58

The Explanatory Memorandum to the ratification act 5.59–5.63

Interim statement on Article 26 ECT 5.65

Bound by virtue of signature or ratification? 5.66–5.74

General 5.66

Articles 2, 6 and 23 FLIT 5.67–5.71

Article 39 ECT 5.72

Provisional conclusion on the binding force of signature and ratification 5.73

The principal of seperation of powers 5.74–5.95

General 5.74

The Russian Constitution 5.75–5.93

Article 23 FLIT 5.94

Final conclusion on the meaning of Article 45 ECT

in connection with Article 26 ECT 5.95

Final conclusion on the jurisdiction of the Tribunal 5.96

THE CONSEQUENCES OF THE RULING ON THE JURISDICTION

OF THE TRIBUNAL 5.97–5.98

THE COSTS OF THE PROCEEDINGS 5.99–5.100

6 THE RULING6.1–6.9

in case I 6.1–6.3

in case II 6.4–6.6

in case III 6.7–6.9

1 The proceedings

1.1.

The course of the proceedings is evidenced by:

in case I

- the summons of 10 November 2014 served on VPL, with Exhibits RF-1 up to and including RF-95;

- the court documents in the interim proceedings for the consolidation of the proceedings, initiated by the Russian Federation, resulting in the decision on the procedural issue of 11 March 2015, in which the court joined this case with the cases II and III;

in case II

- the summons of 10 November 2014 served on YUL, with Exhibits RF-1 up to and including RF-95;

- the court documents in the interim proceedings for the consolidation of the proceedings, initiated by the Russian Federation, resulting in the decision on the procedural issue of 11 March 2015, in which the court joined this case with the cases I and III;

in case III

- the summons of 10 November 2014 served on Hulley, with Exhibits RF-1 up to and including RF-95;

- the court documents in the interim proceedings for the consolidation of the proceedings, initiated by the Russian Federation, resulting in the decision on the procedural issue of 11 March 2015, in which the court joined this case with the cases I and II;

in all cases

- the defendants’ joint statement of defence of 20 May 2015, with Annexes numbered 1-7, of which Annex 1 comprises Exhibits HVY-1 up to and including HVY-107;

- the court’s letter to the parties of 22 June 2015 containing the correspondence of the parties sent to the court (the letters of 18 and 25 May 2015 and 2 June 2015 from the Russian Federation and the letters of 21 May 2015 and 3 June 2015 from the defendants) concerning the subsequent course of the proceedings;

- the letter of 2 July 2015 from the Russian Federation, stating the dates on which the party is unable to appear as well as the terms for the reply and rejoinder;

- the interim judgment of 8 July 2015, in which the court referred the case to the 9 February 2016 hearing of a three-judge panel for the closing arguments;

- the e-mail message of 8 July 2015 from the registrar of the court to the lawyers, with the dates for presenting the replies and rejoinders;

- the joint reply of 16 September 2015 of the Russian Federation, with Exhibits RF-96 up to and including RF-198;

- the letter of 16 November 2015 from the Russian Federation, concerning some of the facilities available in the court room;

- the letter of 30 November 2015 from the Russian Federation, with Exhibit RF-199;

- the letter of 10 December 2015 from the registrar of the court to the parties, with a response to the letter of 16 November 2015;

- the letter of 15 December 2015 from the Russian Federation, with Annex 1, a translation into the Dutch language of the Interim Awards and the Final Awards, Annex 2, an overview of the folder structure on the USB flash drive submitted alongside the letter, and Annex 3, a USB flash drive containing all court documents and all documents previously submitted by the parties;

- the joint rejoinder of the defendants dated 15 December 2015, with Exhibits HVY-108 up to and including HVY-126;

- the letter of 11 January 2016 from the Russian Federation, regarding the course of action during the hearing (speaking time and audio recording);

- the letter of 13 January 2016 from the defendants, with a response to the letter of 11 January 2016;

- the letter of 19 January 2016 from the registrar of the court to the parties’ lawyers, with the court’s decisions on the procedural questions in the letters of 11 and 13 January 2016;

- the letter from the Russian Federation of 22 January 2016 with the document containing Exhibits RF-200 up to and including RF-222 of the same date;

- the letter from the Russian Federation of 25 January 2016 with the additional document containing Exhibits RF-223 up to and including RF-225, dated 25 January 2016;

- the letter of 26 January 2016 from the lawyer of the Russian Federation, listing the persons who would attend the hearing on the part of the Russian Federation;

- the letter of 26 January 2016 from the lawyer of the defendants, listing the persons who would attend the hearing on the part of the defendants;

- the letter of 27 January 2016 from the lawyer of the Russian Federation, with the additional document containing Exhibit RF-226 as well as a USB flash drive with Annexes to the previously submitted Exhibits RF-200 up to and including RF-202 and, again, Exhibit RF-225, dated 27 January 2016;

- the letter of 27 January 2016 from the Russian Federation, with Exhibit R-282 in hard copy (previously submitted on a USB flash drive);

- the letter of 28 January 2016 from the lawyer of the defendants, with an objection to the additional Exhibits of the Russian Federation;

- the official report of the hearing of 9 February 2016, for the closing arguments in this case, as well as the statements of case and other documents of the lawyer of the Russian Federation handling the case, Prof. mr. A.J. van den Berg, and of the defendants’ lawyer and his colleague mr. M. Ynzonides;

- the dispatch on 16 February 2016 of this official report to the lawyers, with the notification that any remarks about the official report can be communicated to the court within two weeks of receipt;

- the letter of 22 February 2016 from the lawyer of the Russian Federation handling the case, with a response to the official report;

- the letter of 26 February 2016 from the lawyer of the defendants with a response to the official report and to the letter of 22 February 2016 from the lawyer of the Russian Federation;

- the letter of 1 March 2016 from the registrar of the court to the lawyers, containing the confirmation of receipt of the above-mentioned letters of 22 and 26 February 2016.

1.2.

At the end of the hearing of 9 February 2016, the court informed the parties that it would deliver its judgment on this day, 20 April 2016.

1.3.

In its judgment, the court has taken into account, in so far as possible, the remarks of the parties about the text of the official report of the hearing of 9 February 2016. For the rest, these remarks...