Summary

Civil judgment no 2021TALCH11-00001 XI chamber

Public hearing on Friday, eighth of January two thousand and twenty-one
Roll numbers TAL-2018-03665 and TAL-2018-03667

THE COURT

Given the [case preparation] closure orders of 11 December 2020, Given the notice of determination of 9 December 2020 by which the parties' representatives were informed of the Court's composition, The cases were deliberated at the hearing of 11 December 2020 by His Honour senior judge Joe ZEIMETZ, delegated for these purposes, Having heard the Moldovan company Ascom Group S.A., Anatolie STATI, Gabriel STATI and the Gibraltan company, Terra Raf Trans Traiding Ltd through their representative Maître Antoine LANIEZ, barrister-at-law, Having heard the REPUBLIC OF KAZAKHSTAN through their representative Maître François KREMER, barrister-at-law.

FACTS AND BACKGROUND

Pursuant to an arbitral award made by the Stockholm Chamber of Commerce on 19 December 2013, modified by an amending arbitral award of 17 January 2014 (hereinafter "the arbitral award"), the Moldovan company Ascom Group SA, Anatolie STATI, Gabriel STATI and the Gibraltar-based company Terra Raf Trans Traiding Ltd. have, on 16 August 2017, served a garnishee order on:

the limited liability company Eurasian Resources Group Sarl,
the public limited company ArcelorMittal SA,
the public limited company Cameco Luxembourg SA,
the limited liability company Tengizchevroil Finance Company Sarl,

on all sums, dividends, monies, securities, bonds, debentures, claims or property of any kind, to the extent not covered by state immunity, which they have or will have, may or will hold, pay or receive, owe or will owe to or on behalf of the REPUBLIC OF KAZAKHSTAN, in any capacity and for any reason whatsoever, as well as,

on all shares or holdings of Eurasian Resources Group Sarl, ArcelorMittal SA, Cameco Luxembourg SA and Tengizchevroil Finance Company Sarl, which belong to the REPUBLIC OF KAZAKHSTAN,

to ensure retention of their rights and payment of a total amount of USD 434,914,531.20 relating to a principal amount of USD 497,685,101.00, plus accrued interest to 16 August 2017 of USD 8,571,504.61, the amounts set at USD 8,975,496,40 and 802,103.24 euros (reimbursement of costs of proceedings, including lawyers' fees incurred in the course of the arbitral proceedings), in addition to an amount of 50,000 euros as a provision for additional interests, currency fluctuations and legal expenses.

This garnishment order was notified to the REPUBLIC OF KAZAKHSTAN by a bailiff's writ of 22 August 2017, this writ also contained a summons to validate the garnishment and a request for an order to be entered against the REPUBLIC OF KAZAKHSTAN for payment of a procedural indemnity of 5,000 euros on the basis of article 240 of the New [Luxembourg] Civil Proceedings Code, as well as the costs and expenses of the proceedings, including translation costs.

A writ to notify the garnishees was sent on 23 August 2017.

These proceedings were recorded under the roll number TAL-2018-03667.

Pursuant to the arbitral award, the Moldovan company Ascom Group SA, Anatolie STATI, Gabriel STATI and the Gibraltan company Terra Raf Trans Traiding Ltd (hereinafter "the STATI partners") have, on 16 August 2017, served a garnishee order on:

- the Luxembourg branch of Bank of New York Mellon (International) Limited,

- the Luxembourg branch of Bank of New York Mellon SA/NV,

- the public limited company BNY Mellon Fund Management (Luxembourg) SA, - the limited liability company BNY Mellon GSS Holdings (Luxembourg) Sarl,

on all sums, dividends, monies, securities, bonds, debentures, claims or property of any kind, to the extent not covered by state immunity, which they have or will have, may or will hold, pay or receive, owe or will owe to or on behalf of the REPUBLIC OF KAZAKHSTAN, in any capacity and for any reason whatsoever,

to ensure retention of their rights and payment of a total amount of 441,149,085.56 euros relating to a principal amount of USD 497,685,101.00, plus accrued interest to 1 December 2017 of USD 10,000,571.85, the amounts set at USD 8,975,496,40 and 802,103.24 euros (reimbursement of costs of proceedings, including lawyers' fees incurred in the course of the arbitral proceedings), in addition to an amount of 100,000 euros as a provision for additional interests, currency fluctuations and legal expenses.

This garnishment order was notified to the REPUBLIC OF KAZAKHSTAN by a bailiff's writ of 7 December 2017, this writ also contained a summons to validate the garnishment and a request for an order to be entered against the REPUBLIC OF KAZAKHSTAN for payment of a procedural indemnity of 10,000 euros on the basis of Article 240 of the New [Luxembourg] Civil Proceedings Code, as well as the costs and expenses of the proceedings, including translation costs.

A writ to notify the garnishees was sent on 12 December 2017.

These proceedings were recorded under the roll number TAL-2018-03665.

By presidential order number 40/2017 issued on 30 August 2017, the arbitral award was declared enforceable in the Grand-Duchy of Luxembourg.

On 27 May 2019, the REPUBLIC OF KAZAKHSTAN filed a criminal complaint with a claim for civil damages, dated 24 May 2019, before a Luxembourg investigating judge against the STATI partners for offences described as:

- Forgery and use of forgeries, respectively attempted forgery and use of forgeries in the sense of Articles 196 and 197 of the Luxembourg Criminal Code.

- Fraud, respectively attempted fraud in the sense of Article 496 of the Criminal Code,

- money laundering, respectively attempted money laundering in the sense of Article 506-1 of the Criminal Code.

By judgment number 133/19 - VIII - Exequatur issued on 19 December 2019 by the Luxembourg Court of Appeal, the appeal of the REPUBLIC OF KAZAKHSTAN against order number 40/2017 of 30 August 2017, by which the arbitral award was declared enforceable in the Grand Duchy of Luxembourg, was dismissed.

On appeal against an order of 9 October 2019, by which the investigating judge in Luxembourg declared himself territorially incompetent to investigate the facts underlying the criminal complaint with a civil claim for damages of the REPUBLIC OF KAZAKHSTAN, the Council Chamber of the Luxembourg Court of Appeal declared, by a judgment number 95/20 issued on 28 January 2020, that "the investigating judge at the District Court of and in Luxembourg is territorially competent to investigate the facts underlying the complaint with a civil claim of 24 May 2019".

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