On 5 November 2021, the Supreme Court issued a landmark judgment in the setting-aside proceedings against the Yukos Awards. Siding with the former majority shareholders of Yukos, the Supreme Court rejected all the Russian Federation's complaints regarding the Tribunal's and the Hague Court of Appeal's interpretation and application of the Energy Charter Treaty (ECT), thereby confirming the Tribunal's jurisdiction. The Supreme Court remanded the case to the Amsterdam Court of Appeal to further assess the Russian Federation's allegations of fraud in the arbitration, which the Hague Court of Appeal had dismissed on procedural grounds.
The judgment provides important guidance on the interpretation of both the ECT and Dutch arbitration law:
- In assessing a tribunal's jurisdiction, the setting-aside court is not limited to the grounds used by the tribunal to assume jurisdiction. The setting-aside court may also use other grounds to confirm the tribunal's jurisdiction.
- The Supreme Court gives a preliminary interpretation of the limitation clause in Article 45 ECT: a signatory which has not made the declaration referred to in Article 45(2)(a) is obliged to apply the ECT provisionally except to the extent that provisional application of one or more provisions of the ECT is inconsistent with national law. The Russian Federation's interpretation of the limitation clause – that there is no room for the provisional application of Article 26 ECT if Russian law itself does not provide for the possibility of arbitration as regulated in Article 26 ECT – is incorrect.
- The former majority shareholders and their shares meet the definitions of 'Investor' and 'Investment' in Article 1(6) and (7) ECT. These terms have a special meaning and therefore no significance is to be attached to the requirements formulated in Salini. There are also no internationally recognised principles of international investment law entailing that the ECT provides protection only to investments making an economic contribution to the host state or that the ECT provides no protection to companies wholly controlled by nationals of the host state.
- Under Dutch arbitration law, allegations of fraud in the arbitration may not only be brought in revocation proceedings but also in setting-aside proceedings under the setting-aside ground violation of public policy, subject to certain conditions.
The Supreme Court also rejected the Russian Federation's complaints related to alleged illegalities and violations of public policy, the interpretation and application of Article 21 ECT, the alleged involvement of the Tribunal's assistant in the creation of the awards, and the Tribunal's reasoning.
The Hague Court of Appeal had dismissed the Russian Federation's allegations of fraud in the arbitrations based on the procedural argument that such allegations may only be brought in revocation proceedings. As the Supreme Court deemed this incorrect, the case was remanded to the Amsterdam Court of Appeal for further assessment of the fraud allegations.
De Brauw represented the former majority shareholders in all proceedings before the Dutch courts, including the Supreme Court.