Trench warfare Yukos shareholders, sued a year ago, Russia $ 50 billion, with the Russian state assets in foreign jurisdictions moved into an active phase: Wednesday night, Interfax reported that the bailiffs in Belgium have asked the dozens of organizations located in the country – Russian, Belgian and international – a list of their available assets owned by the Russian Federation. These assets may be arrested in respect of compensation awarded by the arbitral tribunal in the Hague to shareholders of Yukos.
The news, which confirmed the head of the company GML (former represents Yukos shareholders) Tim Osborne, came in just before the start of the St. Petersburg Economic Forum He made adjustments to the thematic agenda of its first day. Russian officials and gosmenedzhery does not mince words: the head of Russian Railways Vladimir Yakunin called to take such a decision in Belgium “idiots” and advised to “go to a psychiatrist,” and vice-president of “Rosneft” Mikhail Leontiev suggested that “they’re Census Belgian beer.”
The process has started
Belgium, where many of the international organizations and financial services providers, has become the first country to Yukos shareholders have launched a process of confiscation of Russian assets. “We started the legal procedure to search for Russian assets both in Belgium and in France,” – said RBC Osborne on Thursday afternoon. The decision of the Hague arbitration registered in the US and the UK, but there are certain legal procedures and bailiffs is not yet involved. It’s a matter of time. “The decision of the Belgian not unexpected – told reporters Russian presidential aide Andrei Belousov. – We are concerned, we expect a number of countries that impose similar measures ».
The actual arrest of Russian state assets have already begun, albeit sporadically. In the French “daughter” VTB were temporarily blocked accounts of Russian diplomatic missions, some accounts of Russian companies on Thursday remained frozen. The arrest was imposed at the expense of the French state news “Russia Today”, said his chief editor Margarita Simonyan. Under arrest and horrible building in Paris, which houses the office of TV channel RT (formerly Russia Today), but, as explained RBC Simonyan, this building belongs to FSUE “Goszagransobstvennost” Office of the President of the Russian Federation. The representative of the Presidential Administration Viktor Khrekov declined to comment.
In Belgium based international settlement and clearing system Euroclear, which serves the settlements for Russian bonds (OFZ) and Eurobonds state-owned banks, but the representative of Euroclear in Brussels Martin Gregson said, RBC that the bailiffs did not apply to them and “the story is baseless.” A spokesman for one of the largest Belgian bank KBC declined to comment on questions bailiffs in the Yukos case, citing “obvious reasons of confidentiality.” The Ministry of Justice of Belgium stated that it had no details of the case.
The representative of the Ministry of Justice of France said RBC that the confrontation of the former shareholders of Yukos and Russia “refers to the individual dispute, which is not within the remit of authorities».
Sovereign immunity
Despite the outrage and dismay of Russian officials (to fears Belousov, for example, joined the Economic Development Minister Alexei Ulyukayev), the effect of the arrest of Russian state assets in the Yukos case yet more symbolic than real. “Dramatize the news of the arrest of Russian property in the Yukos case is not necessary. If these assets and sell, and what little long time, “- said Dmitry Gololobov, former Head of Legal Department NC” YUKOS “, now the principal private practice Gololobov and Co. Not all organizations that sent out regulations for the identification of Russian assets, generally they are found. The Russian authorities will vigorously contest the seizure, and the experience of the Swiss company Noga and German businessman Franz Sedelmayer shows that the fight could drag on for years and did not justify the effort.
Since the arbitration proceedings in the Yukos case was conducted by the international rules of UNCITRAL , the winning party is entitled to seek enforcement of a decision on compensation in 150 countries – participants of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. But in fact, the respondent States enjoyed such broad immunity from enforcement. In most national jurisdictions such measures against other states are impossible, except for the collection of sovereign assets used for commercial purposes (ie diplomatic objects can not be subject to arrest and seizure). In each case, Yukos shareholders have to prove that the asset is used “for commercial purposes”, which is difficult.
Central Bank and the state-owned
immunity in normal use, and the assets of the Central Bank (such as stored overseas securities), as the Bank of Russia is not legally an organ of state power. “European legislation clearly separates the government money and central bank money, so we do not see any big risks,” – he said on Thursday, Reuters first deputy chairman of the Central Bank Sergey Shvetsov. The controller is not liable for obligations of the state. In the case Noga were attempts to arrest the accounts of the Central Bank, recalls partner of law firm A2 Mikhail Alexandrov, but it has been proven that the bank is not controlled by the state and its assets can not be arrested. This does not mean that such attempts will not be negotiated Alexandrov, but they are unlikely to be successful.
YUKOS against Russia
In theory, Yukos shareholders may try to foreclose on the foreign assets of Russian state-owned companies. Tim Osborne asked RBC about whether they intend to attack any state-owned assets (eg, “Rosneft” and “Gazprom”), replied that considered various options, including those assets. However, the final decision on such purposes is not accepted.
Loopholes to overcome the immunity of state-owned companies have. In the United States, the law of Foreign States Immunities Act – the law on protection of foreign states. However, it provides for an exception, that if the property went to any person in contravention of international law (such as the property of Yukos got company “Rosneft” in violation of international law, as recognized by the Hague tribunal), the solution of international commercial arbitration and international investment arbitration potentially can be enforced against the assets of “Rosneft” in the US, said RBC lawyer of a major international law firm, who requested anonymity, given the political sensitivity of the Yukos affair.
The arrest of state property does not imply the automatic exclusion of the rights to it: for example, real estate can continue to be used, but it can not be sold or transferred to another owner, points out Alexander. After the arrest of the property is estimated and then put up for auction. However, comes to this extremely rare, said Dmitry Gololobov. Swiss Noga surrendered in a dispute with Russia, all its attempts to recover anything were unsuccessful and cost the company ogre GOVERNMENTAL legal costs. Only the building of the Russian trade mission in Sweden was arrested at the suit Sedelmayer. It was sold for about $ 2.3 million, and the billions from Russia nobody has been able to recover.
With the participation of Alexander Ratnikova, George Makarenko, Serhiy Sobolev, Elizabeth Surganova
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