Summary

Vernietigingsprocedure. Arbitrale uitspraken gedaan naar aanleiding van gebeurtenissen op de Krim in 2014 op grond van een bilateraal investeringsverdrag gesloten tussen Oekraïne en de Russische Federatie.

Aeroport Belbek LLC and Mr. Igor Valerievich Kolomoisky v. The Russian Federation PCA Case No. 2015-07

...

"Herewith a letter from Mr.. .., Deputy Director of the Department of International Law and Cooperation, Ministry of Justice of the Russian Federation, is conveyed to the Permanent Court of Arbitration.

Nothing in the attached letter of the Ministry of Justice of the Russian Federation can be interpreted as consent of the Russian Federation to constitution of an arbitral tribunal, participation in arbitral proceedings, or as procedural action taken in the frame work of the proceedings on the claims of Aeroport Belbek LLC and Mr. [gedaagde 2] and of (...) against the Russian Federation, or as a waiver by the Russian Federation of the jurisdictional immunities in respect of itself and its property in relation to any judicial or administrative proceedings or procedures, connected directly or indirectly with these claims, including immunity from court jurisdiction and immunity from any measures of constraint that can be connected directly or indirectly with these claims, regardless of the jurisdiction (national or supranational) under which they are initiated."

...

"We return you herewith the Notices of Arbitration on the arbitration proceedings initiated under Article 9 of the Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine on the Encouragement and Mutual Protection of Investments before the Permanent Court of Arbitration by the Aeroport Belbek LLC and Mr. [gedaagde 2] vs. the Russian Federation (...).

It is manifest that such claims cannot be considered under the Agreement mentioned above and, therefore, the Agreement cannot serve as a basis for composing an arbitral tribunal to settle these claims.

In accordance with paragraph 1 Article 1 of the Agreement the term "investment" means every kind of movable and immovable and intellectual property invested by an investor of one Contracting Party in the territory of the other Contracting Party in accordance with the legislation of the latter Contracting Party. The property in question which is the matter of the claims is situated in the territory of Crimea and Sevastopol, i.e. in the territory that was a part of Ukraine but at the present time pursuant to the will of people forms an integral part of the territory of the Russian Federation and cannot be regulated by the Agreement.

On the basis of the abovementioned the Russian Federation does not recognize the jurisdiction of an international tribunal at the Permanent Court of Arbitration in settlement of the abovementioned claims."

... Interim Award. ..

"For the foregoing reasons, the Tribunal finds that:

1. the Russian Federation has assumed obligations under the Treaty in respect of the Claimants and their claimed investments in the Crimean Peninsula as of 21 March 2014

2. the Claimants are "investors" for the purposes of Article 1 of the Treaty

3. there is a dispute between the Parties arising in connection with what the Claimants allege to constitute "investments" under the Treaty and

4. the Claimants have satisfied the notice and negotiation requirements under Article 9 of the Treaty."

... Partial Award. ..

"For the foregoing reasons, the Tribunal finds that:

1. the Tribunal has jurisdiction over the Claimants' claims under the Treaty

2. the Claimants' claims are admissible and

3. the Russian Federation has breached Article 5 of the Treaty in respect of the Claimants' investment.

The issue of compensation due in the light of this finding of liability and any decision of the costs of arbitration are deferred to a subsequent phase of the arbitration."

... Interim Award. ..

"§157. The Tribunal observes that its jurisdiction derives from the Treaty alone. It is not an inter- State tribunal of general jurisdiction. While the Tribunal has an incidental jurisdiction under the Treaty to address ancillary issues that are properly engaged by the proceedings of which it is seised and which are necessary for its decisions, its jurisdiction does not in principle go beyond that conferred upon it by the Contracting Parties under Article 9 of the Treaty. Given the circumstances of this case, the Tribunal emphasises these limits on its jurisdiction, which it considers to be axiomatic.

§158. In this regard, the Tribunal notes that this Interim Award does not reach any view on the legality or illegality under international law of the incorporation of the Crimean Peninsula by the Russian Federation or on the sovereignty claims of Ukraine and the Russian Federation in respect of the Crimean Peninsula. None of the findings contained in this Interim Award are intended to take any position on such matters."

§170 "As it informed the Parties by letter from the PCA dated 19 March 2016, the Tribunal considers that it is required to determine its jurisdiction and the admissibility of the claims whether or not objections have been raised by the respondent".

§200 "The Tribunal therefore considers that the term "territory" in the Treaty is used in accordance with the meaning of that term in Article 29 of the VCLT, and that the latter term has a wider meaning capable of encompassing territory for which a State has assumed the responsibility for international relations. In view also of the Respondent's correspondence, which refers to "territory", the Tribunal construes the term "territory" for purposes of the Treaty to include territory over which a State exercises settled jurisdiction or control and on behalf of which it has assumed responsibility for international relations."

§252 "In summary, the Tribunal considers that its jurisdiction falls to be assessed on the date on which proceedings were instituted, having regard, as appropriate, to the circumstances in place on the date on which the violation is alleged to have occurred. The Tribunal does not see any explicit temporal limitation in Article 1(1) of the Treaty, and finds neither reason nor basis to read into that provision any such limitation by reference to the text, context or object and purpose of the Treaty. Nor does the Tribunal find support for such a limitation in investment-treaty jurisprudence or practice. Accordingly, the Tribunal finds that the Treaty does not exclude from its protection investments that were made by Ukrainian investors in the Crimean Peninsula before the Russian Federation assumed responsibility for the international relations of the Crimean Peninsula and, thus, that the Claimants' investments are not excluded from the scope of the Treaty's protections on the basis that they were initially made before 21 March 2014."

...