26 January 2018

De Brauw secures lifting of EUR 22 billion asset freeze for the National Bank of Kazakhstan

De Brauw has acted for the National Bank of Kazakhstan in summary proceedings and secured the lifting of an attachment order that led to the freezing of EUR 22 billion in cash and securities belonging to the National Fund of Kazakhstan. This case involved issues of state immunity, Kazakh trust law, and English banking law. In light of recent enforcement actions by Moldovan investors Anatolie and Gabriel Stati and their companies in various other jurisdictions, including Sweden and England, this decision, rendered by former Supreme Court Justice Mr. F.B. Bakels, represents an important victory for the National Bank.

The dispute arose out of a number of heavily-publicised enforcement actions recently taken by the Statis against assets of the Republic of Kazakhstan and the National Bank (the central bank of Kazakhstan) in several jurisdictions. The Statis levied attachments under BNY Mellon in September and October 2017, which led to the freezing of EUR 22 billion in cash and securities accounts of the National Bank, held with BNY Mellon. The National Bank’s accounts with BNY Mellon are part of a National Fund for the Kazakh economy. De Brauw commenced summary proceedings on behalf of the National Bank to lift the attachments. The Republic of Kazakhstan and the BNY Mellon appeared as interested parties.

On 9 January 2018, the hearing in the summary proceedings was held at the Amsterdam District Court before former Supreme Court Justice and current Preliminary Relief Judge Mr. F.B. Bakels. Albert Marsman and Marnix Leijten pled on behalf of the National Bank at the hearing. Preliminary Relief Judge F.B. Bakels rendered a decision on 23 January 2018, lifting the attachment on the accounts with BNY Mellon on the basis of two separate grounds raised by the National Bank.

The successful lifting of the attachment has been publicised in various media outlets. On 24 January 2018, Reuters Business News included an article reporting on the decision of 23 January 2018. Reuters reports that the freeze, now successfully lifted, “had shocked the oil-exporting nation and the sovereign fund industry”. On the same day, Global Arbitration Review (GAR) was also headlined with an article on the recent summary proceedings before the District Court of Amsterdam and its connection to a number of cases in various jurisdictions. De Brauw’s Albert Marsman was approached for comment by the GAR:

“Partner Albert Marsman of De Brauw welcomes yesterday’s decision, which he says “confirms that the National Bank of Kazakhstan’s funds cannot be the subject of attachment by purported creditors of the Republic. The court also made clear that it does not accept information being concealed in an attachment application, and imposed a significant fine for any future failure to be transparent.”

Team:
Albert Marsman (lead partner), Marnix Leijten, Abdel Zirar, Esther Huijzer, Gianni Molewijk, Varvara Aryutina, Alessio Gracis, Ondine Sinsheimer.

Read more at GAR and Reuters.