The decade-long battle to get compensation for the illegal seizure of Yukos will continue well into the future after an unexpected — and legally questionable — court ruling in the Netherlands.
- By Keith JohnsonKeith Johnson is Foreign Policy’s acting managing editor for news. He has been at FP since 2013, after spending 15 years covering terrorism, energy, airlines, politics, foreign affairs, and the economy for the Wall Street Journal. He has reported from Europe, the Middle East, Africa, and Asia and, contrary to rumors, has absolutely no plans to resume his bullfighting career.
A Dutch court threw Russia an unexpected lifeline Wednesday in a $50 billion arbitration case, pushing a decade-long legal saga into further appeals that could drag on for years.
The dispute — the biggest arbitration case in history — deals with the fate of now-defunct Yukos, once Russia’s biggest oil company. Moscow seized the firm in 2003, allegedly for tax fraud, and threw Yukos boss and Kremlin critic Mikhail Khodorkovsky into prison in Siberia.
Shareholders of Yukos took the case to international arbitration in the Hague and won a landmark ruling in the summer of 2014 that found that Russian President Vladimir Putin and the Kremlin had gobbled up Yukos for political reasons. Under that ruling, former Yukos shareholders can grab Russian assets anywhere in the world to the tune of $50 billion as compensation for Russia’s seizure of Yukos.
But on Wednesday, the District Court of the Hague essentially questioned the 2014 ruling. Under the terms of the Energy Charter Treaty, which Russia signed but never ratified, foreign investors can seek legal protection if they feel they’ve been wronged. The court ruled that the treaty did not apply to Russia, meaning that Yukos shareholders can’t seek legal redress internationally.
The district court ruling is a small setback, not a defeat, for Yukos shareholders. The broader 2014 ruling still stands while the case is being appealed. This means that Yukos shareholders can still continue to pursue Russian assets abroad, unless and until some local court says they can’t, and have already targeted some Russian assets in Belgium and France. Shareholders are also seeking to get the 2014 ruling enforced in other countries, such as the United States and the United Kingdom, which could open the door to more asset seizures.
Tim Osborne, director of GML, the company that held the bulk of Yukos shares, said in a statement: “We will appeal this surprise decision by the Hague Court and have full faith that the rule of law and justice will ultimately prevail.”
The case has had both financial and political repercussions. Russia reacted angrily to the 2014 ruling and threatened countries that sought to comply with it. Russia also drafted its own legislation last year that allows it to grab any assets belonging to foreign companies, an eye-for-an-eye response to the Hague’s ruling.
Despite the small victory Russia won on Wednesday, its reputation is already sullied among foreign investors; kicking the resolution of the Yukos case further down the road probably won’t change that.
“Whether or not the Russian state will be held liable is increasingly becoming a moot point,” said Sijbren de Jong, an analyst at the Hague Center for Strategic Studies. “The whole Yukos ordeal, coupled with the Kremlin’s adventurous foreign policy and the international sanctions that came in response, have already done tremendous damage to the country’s investment profile abroad.”
The District Court ruled on a seemingly arcane point that Russia, which is no longer part of the Energy Charter Treaty, is not bound by its provisions, even though it was a signatory to the treaty when it snatched up Yukos. Lawyers for GML noted that the original arbitration panel already considered that question and found that Russia was bound by its provisions.
Wednesday’s ruling seems to contradict the treaty, which explicitly ensures protection for investors for a period of up to 20 years — even before a country ratifies the treaty, and even if a country later abandons it. Russia ditched the Energy Charter Treaty in 2009.
“The court’s reading is strange,” de Jong said. Russia provisionally applied the provisions of the Energy Charter Treaty for years, right up to August 2009, when it abandoned the treaty altogether, he said. “How can you formally terminate something you claim you are not bound by?”
Photo credit: IVAN SEKRETAREV/AFP/Getty