a. That Ukraine's application should be refused because it has waived any right to dispute the Tribunal's jurisdiction on the basis of the illegality argument, having failed to raise the challenge before the Tribunal (the "waiver argument);
b. That Ukraine is estopped by the judgment of Butcher J from contending that the Merits Award deals with claims, or decides matters, beyond the scope of the submission to arbitration ("Tatneft's issue estoppel argument"); and
c. That the Court should reject Ukraine's application as an abuse of process because Ukraine did not raise its argument on the State Immunity Application and it makes a collateral attack on the judgment of Butcher J (the "abuse of process argument").
a. That "the judgment must be given by a foreign court of competent jurisdiction";
b. That "the judgment must be final and conclusive and on the merits";
c. That "there must be identity of parties"; and
d. That "there must be identity of subject matter, which means that the issue decided by the foreign court must be the same as that arising in the English proceedings".
(a)...; (b)...; (c) purchase of immovable or movable property not directly prohibited by the laws of Ukraine, including houses, apartments, premises, equipment, vehicles and other property objects, by direct receipt of property or property complexes or in the form of shares, bond and other securities".
"I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before".
"1. The arbitral tribunal shall have the power to rule on objections that it has no jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the arbitration agreement.
3. A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than in the statement of defence or, with respect to a counterclaim, in the reply to counterclaim".
The plural term "objections" in article 21.1 contemplates, I think, that the plea to jurisdiction should raise specific objections, not just a general challenge to it.
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