The Yukos Arbitration Saga and Russia’s Constitutional Amendments (original) (raw)
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Gonzaga Journal of International Law, 2019
International law is often viewed by skeptics as unenforceable, incongruent, and lacking force. This paper addresses those common misconceptions. The question of "what law governs" can be properly analyzed through the Yukos v. Russia dispute. By analyzing the dispute from its origins through the arbitral award to Yukos and the appeal presently pending before the Hague Court of Appeals, the dispute demonstrates the predominance and preeminence of governments in the functioning and enforcement of international law. Even when governments take on large, powerful, and resourceful private companies, powerful governments have a unique sway in international investment law and arbitration. Further, a provisional application clause in a treaty may lead to national interpretations by powerful states, in favor of the government over private entities.
Case Comment:(Former) Yukos v. Russian Federation before the Permanent Court of Arbitration
国際協力論集, 2010
The aim of the present article is to evaluate the crucial legal points of the arbitral decisions issued under auspices of the Permanent Court of International Arbitration (hereinafter the PCA) on the admissibility and jurisdiction of the claim addressed by Yukos Universal Limited and others against the Russian Federation 1 (hereafter: Yukos arbitration, Yukos decision or Yukos case) . The different aspects of the dispute brought a lot of attention for several reasons. The amount of the claim was the highest in the history of international investment law and raised up to 100 billion dollars 2 . Moreover, the case was also political in nature and related to the shift in Russian natural resources policy. Different aspects and phases of the case have already served as the objects of an academic interest 3 . Eminent scholars -the internationally recognized professors of law -were engaged in arbitration itself as experts 4 .
Russia’s Termination of Mitsui’s and Mitsubishi’s Interests in Sakhalin-2: Navigating the Labyrinth of Enforcing International Arbitral Awards Against Rogue States, 2022
On 30 June 2022, Russia issued an Executive Decree which terminated the participation of Mitsui Corporation and Mitsubishi Corporation in the Sakhalin-2 gas project. This measure appears to violate, inter alia, Articles 3(1) and 5 for the Japan-Russia BIT due to its apparent discriminatory nature, what appears to be a retaliatory countermeasure against Japan who froze Russian assets in protest of its invasion of Ukraine. Mitsui and Mitsubishi have not initiated any investment arbitration proceedings against Russia before ICSID, a right which Article 11 of the BIT affords them. Based on past investor-state dispute settlement jurisprudence, Mitsui and Mitsubishi appear to have solid claims, which are likely to result in awards in their favour. Under normal circumstances, in a bid to demonstrate to its commitment to the rule of law to other watchful investors, Russia would have compensated these investors. However, judging by Russia's recent invasion of Ukraine, which led many developed countries to sanction it, Russia does not appear to have any desire to appease investors and to demonstrate its respect for the rules of international law. Article 3 of the New York Convention and Article 54 of the ICSID Convention provide avenues for enforcement in courts in Japan and in third countries. However, because of the operation of the international law principles of sovereign immunity and the difficulty involved in enforcing arbitral awards against State assets, this article submits that despite the apparent breaches of the BIT, these investors will encounter significant difficulties in enforcing any eventual arbitral awards handed down by a tribunal.
Russian Law Journal, 2017
The Court of the Eurasian Economic Union (EAEU Court) is a new structure operating since 2015, and whose mission is to ensure the uniform interpretation and application of EAEU law. The article focuses on the main challenges the Court is presently facing: limited competence; a lack of procedural mechanisms to ensure the dissemination of its case-law among national courts; and a low number of applications. Consequently, it is divided into three sections. The first section is devoted to an analysis of the Court's competence and focuses on the loss of the preliminary reference procedure that existed under the EurAsEC law. The authors analyze its role and the possibility of compensating for its lost powers. The second section explores the other tools available to the Court in order to influence the case-law of national courts indirectly. It explores the practical difficulties which economic entities face when bringing parallel proceedings before the EAEU Court and a national court, or when trying to obtain a review of a national court judgment following a positive outcome in the EAEU Court. The third section tackles the issue of the low number of applications, linked to a lack of trust from the business and legal communities. Thus, it is vital for the Court to earn a reputation based on accessibility, professionalism and efficiency. To this end, the authors analyze such issues as the duration of proceedings, the locus standi of economic entities and the way in which judgments should be drafted to ensure the protection of rights and legitimate interests of economic entities.
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Russian system of alternative disputes resolution has experienced relevant development over the last few years. On December 2015, the Russian President signed two laws, which entered into force on 1 September 2016 and substantially reshaped the legal framework for arbitration in the Russian Federation. These are the Federal Law on Arbitration and the Federal Law on Amending Certain Legislative Acts, which introduced amendments to various laws including International Commercial Arbitration Law, Arbitrazh (Commercial) Procedural Code and Civil Procedural Code. The present article provides a comment on the key changes introduced by the said reform, compared to the previous state-of-play. Special attention has been given to the validity of the arbitration agreement, the arbitrability of international disputes and the denial of enforcement of an arbitral award for matters of public policy. Starting from the evolution of the Russian Supreme Court’s approach to the ground for refusal of en...
AJIL Unbound
When states withdraw from bilateral investment treaties or denounce multilateral treaties related to foreign investment, a range of intersecting questions arise in domestic and international law. Recent developments have demonstrated potential incongruities between domestic and international approaches to investment protection, including as regards the effectiveness of withdrawal and the implications for existing investments. This essay reflects on international and domestic disputes involving the withdrawal of the Russian Federation from participation in the Energy Charter Treaty (ECT) to highlight these interactions. These issues have become particularly pertinent today because more than 1,500 international investment agreements (IIAs) are nearing expiry of their initial term, providing an opportunity for termination. Moreover, some states have begun to terminate or denounce investment treaties, while many more are engaging in a process of renegotiation and reform. The Russian cas...