Awards and decisions
April 7, 2011
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UK firm victorious in dispute with Russia, but damages much less than claimed
RosInvestCo UK Ltd. v. The Russian Federation, SCC Case No. Arb. V079/2005
Lise Johnson
In an award dated 12 September 2010, the tribunal in RosInvestCo v. Russian Federationissued an award in which it found that the Russian Federation had unlawfully expropriated RosInvestCo’s property, but muted the claimant’s victory by awarding it only US$3.5 million of its US$232.7 million claim.
The award is particularly notable for its treatment of the most-favored nation (MFN) provision, and specifically the degree to which that provision allows investors to “cherry-pick” favorable clauses from bilateral investment treaties (BITs) while disregarding provisions that might narrow the rights granted in those clauses.
The issue of the scope of the MFN provision first arose in the tribunal’s October 2007 decision on jurisdiction. In that decision the tribunal determined that the governing UK-Soviet BIT alone did not grant it the power to hear the dispute. However, the tribunal concluded that RosInvestCo could use the MFN provision in the UK-Soviet treaty to incorporate a broader dispute settlement provision found in the BIT between Denmark and Russia.
In the 2010 award, the tribunal again addressed RosInvestCo’s ability to rely on the broader dispute resolution provision in the Denmark-Russia BIT. This time, the tribunal considered whether it would also have to take into account limitations of the Denmark-Russia BIT’s dispute settlement provisions; specifically the carve-out for disputes related to taxation.
Despite saying that it did not need to definitively resolve the issue, in its award the tribunal effectively disregarded those limitations.
Background
Beginning in December 2003, Russian tax authorities began re-assessing Yukos Oil Corporation’s tax liabilities, eventually claiming billions of dollars in back taxes and penalties against the company. By 16 November 2004, those tax assessments amounted to roughly US$15 billion, and the government had taken steps to collect that sum.
As Yukos’ shares plummeted in value, RosInvestCo, an English corporation, purchased a total of seven million shares in the company in late 2004, allegedly on the basis that the market had overestimated the risks to Yukos.
However, Russia proceeded with its efforts to collect the taxes and associated penalties, which by the middle of December 2004 had grown to an amount of roughly US$20 billion. Russia began by auctioning a key part of Yukos’ business on 19 December 2004. Yukos’ remaining assets were then liquidated in a series of auctions, with the final auction held on 15 August 2007.
RosInvestCo submitted a request for arbitration in October 2005, asserting that the tax assessments, penalties, and enforcement actions expropriated RosInvestCo’s property in violation of the governing UK-Soviet BIT.
On the merits, Russia defended the claim on various grounds, including that the measures were not expropriatory because they were legitimate exercises of its police and taxation powers; and that the government’s actions had not caused the investor any substantial or permanent losses, nor interfered with any legitimate expectations.
Analysis of the award
According to the tribunal, whether Russia’s tax assessments, penalties, and enforcement actions constituted an expropriation depended on whether they were (1) bona fide, (2) non-discriminatory, and (3) non-confiscatory.
The tribunal found that “some of Respondent’s explanations and arguments [justifying its tax assessments and enforcement actions] seemed plausible,”[1] that the 19 December 2004 auction appeared “to have been conducted within the limits of discretion awarded by Russian law,”[2] and that the subsequent bankruptcy auctions seemed consistent with Russian law and even “the higher standards to be applied under the IPPA.”[3]
Ultimately, the tribunal concluded that the “Respondent’s measures, seen in theircumulative effect towards Yukos” did not pass the test of being bona fide, non-discriminatory, and non-confiscatory, and therefore constituted an expropriation.[4]However, the tribunal declined to determine whether any of the challenged measures, taken alone, would constitute a breach of the BIT.
With respect to the Russia’s arguments regarding RosInvestCo’s legitimate expectations and its purported losses (or, more accurately, the lack of either), the tribunal determined that such issues related to the amount of damages that would be awarded, not whether there had in fact been an expropriation. That the tribunal found Russia’s arguments on those points persuasive is reflected in its decision to award RosInvestCo just a fraction of its claimed sum.
The lengthy award’s analysis of the merits is notable for its treatment of such issues as the bounds of legitimate government regulatory freedom, the elements of an expropriation claim, and determinations of damages. Yet the award is particularly remarkable for its treatment of jurisdiction and, within that broad issue, the specific matter of whether and how a clause excepting “taxation” from the scope of the Denmark-Russia BIT might affect the tribunal’s ability to rely on that agreement’s dispute resolution provisions (in conjunction with the UK-Soviet BIT’s MFN article) to hear RosInvestCo’s claims.