(1) That Ukraine has not lost the state immunity to which it is otherwise entitled under s. 1 of the State Immunity Act 1978 ("the SIA") by virtue of s. 9 of the SIA, because it did not agree to submit the disputes (alternatively, all the disputes) in respect of which the Merits Award has been made, to arbitration. On this basis this court has no jurisdiction over Ukraine in this matter (alternatively, no jurisdiction over it in relation to part of the Merits Award).
(2) That Tatneft failed in its duty of full and frank disclosure both when it made its original application for an order enforcing the Merits Award, and thereafter.
1. France : On 27 August 2014, Ukraine applied to the Paris Court of Appeal, as the seat of the arbitration, to annul both the Jurisdiction and Merits awards. The Paris Court of Appeal rejected Ukraine's arguments on 29 November 2016. Although Ukraine filed a cassation appeal challenging the decision on 21 March 2017, the Court of Cassation removed this appeal from the docket on 9 November 2017 following a motion filed by Tatneft under Article 1009-1 of the French Code of Civil Procedure on the ground that Ukraine had not paid the damages due under the Merits Award and the attorney's fees of Eur 200,000 awarded by the Paris Court of Appeal. On this basis, if Ukraine fails to pay these amounts by February 2020 the proceedings will be dismissed with prejudice. Ukraine is currently seeking the abrogation of the decree which introduced Article 1009-1 insofar as it applies to sovereign states which would otherwise have immunity from execution. It has stated that if it is successful, it will pursue its cassation appeal.
2. USA : On 30 March 2017, Tatneft filed a petition in the United States District Court for the District of Columbia to confirm the Merits Award in the USA. On 12 June 2017, Ukraine filed a motion to stay the proceedings until the conclusion of the French setting aside proceedings. On 26 June 2017, Tatneft filed an opposition to Ukraine's motion contending inter alia that the court should decide whether it had jurisdiction before deciding whether to stay the case. Ukraine then filed a motion to dismiss Tatneft's original petition on 25 July 2017 on the grounds that it was immune from jurisdiction under the US Foreign Sovereign Immunities Act because Tatneft was not a private party and the Merits Award went beyond the scope of the arbitration agreement. On 19 March 2018, the District Court dismissed that application. Ukraine has appealed this decision and the confirmation proceedings are stayed pending decision by the Circuit Court.
3. Russia : On 13 April 2017, Tatneft applied to the Moscow Arbitrazh Court seeking the recognition and enforcement of the Merits Award in Russia. Ukraine opposed this motion. The Moscow Arbitrazh Court ruled in favour of Ukraine but this decision was reversed by the Moscow Cassation Court. The Russian Supreme Court dismissed Ukraine's appeal from this decision on 31 October 2017. I was informed that the Moscow Arbitrazh Court has now dismissed the proceedings in Moscow and transferred them to a court in Stavropol.
(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.
(1) There are two relevant claims or disputes:
i. The successful claim by Tatneft for breach of the fair and equitable treatment ("FET") standard in relation to its own shares in Ukrtatnafta.
ii. The successful claim by Tatneft for breach of the FET standard in relation to Amruz's and Seagroup's shares in Ukrtatnafta ("the Amruz/Seagroup shares claim").
(2) By the BIT, Ukraine did not agree to submit to arbitration any claim for breach of the FET standard because the BIT does not itself include that standard and it is not incorporated by means of the Most Favoured Nation provision in the BIT. That has been called "the FET point".
(3) Further or alternatively, Ukraine did not agree to submit to arbitration the Amruz/Seagroup shares claim:
i. because it did not relate to an investment by Tatneft in Ukraine ("the No Investment point"); or
ii. because Tatneft only acquired its shares in Amruz and Seagroup after the dispute relating to Amruz's and Seagroup's shareholding in Ukrtatnafta had arisen ("the Timing point"); or at a time when that dispute was reasonably foreseeable (and in fact foreseen) and for the purpose of bringing that dispute within the scope of the BIT ("the Abuse of Rights point").
(1) It is for the Court to interpret the BIT in accordance with international law, and the principles of interpretation contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (1969) ("the Vienna Convention"), which codifies customary international law (GPF, ).
(2) Article 31 sets out the primary rule of interpretation:
(1) A treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
(2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
(3) There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
(4) A special meaning shall be given to a term if it is established that the parties so intended.
"Supplementary means of interpretation.
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable."
"It is important to note that the supplementary means of interpretation in Article 32 is applicable only to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. Thus if the meaning resulting from the application of Article 31 is clear (i.e. where there is no ambiguity etc., such as where there are two equally possible meanings) the supplementary means of interpretation in Article 32 cannot be used to change or contradict the meaning resulting from the application of Article 31."
"Each of the Contracting Parties shall, in respect of investments made by investors of the other Contracting Party and of activities relating to such investments, ensure in its territory a regime that is no less favourable than the one provided to its own investors or investors of any third state, and which excludes the application of measures of a discriminatory character that might prevent the management and disposal of investments."
"Investments of investors of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party."
(1) That this point is one which goes to jurisdiction, and not simply to the merits of Tatneft's claims. Ukraine says that, if Ukraine did not agree to the FET standard, then it did not agree to a claim of that type (ie for breach of that standard) being arbitrated.
(2) That on a proper construction of the BIT there was no FET obligation. The omission of any express FET obligation from the BIT must be considered as deliberate. Ukraine refers to the fact that out of 56 bilateral investment treaties to which Ukraine is a party, only four, including the BIT, do not include a FET provision, and out of 59 bilateral investment treaties to which Russia is a party, only four, including the BIT, do not include a FET provision.
(3) That there was a deliberate decision not to include a FET obligation is borne out by the negotiating history of the BIT. Russia had originally sent a draft of the BIT to Ukraine which included a provision for fair and equitable treatment, but this was not included in the treaty as eventually concluded.
(1) That the question of whether there was any FET obligation is not one which goes to the jurisdiction of the Tribunal. The only jurisdictional issue is whether the dispute as to existence or otherwise of an FET obligation fell within the arbitration agreement. Tatneft submitted that it plainly did. It was a "dispute in connection with" the investment in the Ukrtatnafta project. Whether there was an FET obligation and whether it had been breached were questions on the merits.
(2) In any event, even if the issue were one which went to jurisdiction, the construction contended for by Ukraine is wrong. The MFN provision did indeed incorporate the FET obligation.
"In case of any dispute between the Contracting Party and the investor of the other Contracting Party, which may arise in connection with the investments …" [the parties submit to arbitration] [emphasis added]
(1) Article 9(1) of the BIT provides:
Any dispute between one Contracting Party and an investor of the other Contracting Party, arising in connection with investments …shall be set out in a written notification accompanied by detailed comments which the investor shall send to the Contracting Party involved in the dispute. The parties to the dispute shall attempt to resolve that dispute where possible by way of negotiation. (emphasis added)
(2) It follows that there is no agreement to submit to arbitration any dispute with an "investor" (i.e. claim by an investor) that does not arise in connection with an "investment".
(3) Article 1(1) and (2) of the BIT define "investment" and "investor " inter alia as follows:
" Investments" means assets and intellectual property of all kinds that are invested by an investor of one Contracting Party within the territory of the other Contracting Party in accordance with the latter's legislation…
"Investor of a Contracting Party" means:
"b) any body corporate created in accordance with the legislation in force within the territory of this Contracting Party, provided that that [sic] the said body corporate has legal capacity under the legislation of its Contracting Party to make investments within the territory of the other Contracting Party. (emphasis added)"
(i) making an investment requires the input of resources by the investor into the relevant asset in return for an interest in that asset ;
(ii) mere passive ownership of an asset is insufficient: what is required is an active relationship between the investor and the investment .
(i) Tatneft's purchases of almost 50% of the shares of Amruz and 100% of the shares of Seagroup, a Swiss and a US company
(iii) Unlike in Gold Reserve, there is no evidence that subsequent to Tatneft's purchase of the Amruz and Seagroup shares, Tatneft made any investment in Ukraine in connection with Amruz's and Seagroup's shareholding in Ukrtatnafta.
(1) That what it acquired by the purchase of the Amruz and Seagroup shares was control of shares in Ukrtatnafta, which, with the shares it already owned, gave it majority control. That was an investment in Ukraine because Ukrtatnafta was a Ukrainian company.
(2) As a matter of the language of the BIT, the acquisition of an indirect shareholding by a Russian purchaser was intended to be protected by the BIT.
(3) The decision in Gold Reserve does not suggest the contrary. That was a case concerned with an internal movement of shares within the same economic undertaking, which is not so in this case. Furthermore, Tatneft was not simply a passive investor. It invested a significant amount of money to acquire the indirect shareholdings which gave it a controlling interest in Ukrtatnafta.
(4) The interpretation of the BIT contended for by Ukraine would not serve the purposes of the investment treaty framework, as states would find that investment treaties were ineffective to promote flows of capital if the protection they afford is limited to the original acquirer and will not extend to subsequent purchasers.
"To a considerable extent, this argument seeks to replace the definition of an "investment" in Article 2 of the Treaty with a definition which looks more to the economic processes involved in the making of investments. However, the Tribunal's jurisdiction is governed by Article 1 of the Treaty, and nothing in that Article has the effect of importing into the definition of 'investment' the meaning which that term might bear as an economic process, in the sense of making a substantial contribution to the local economy or to the well-being of the company operating within it. Although the chapeau of Article 2 refers to 'every kind of asset invested ', the use of that term in that place does not require, in addition to the very broad terms in which 'investments' are defined in the Article, the satisfaction of a requirement based on the meaning of 'investing' as an economic process: the chapeau needs to contain a verb which is apt for the various specific forms of investments which are listed, and since all of them are being defined as various kinds of investment it is in the context appropriate to use the verb 'invested' without thereby adding further substantive conditions."
" Article 1(1) of the BIT defines 'investment' as 'every kind of asset invested by an investor' (emphasis added). It has been suggested by Respondents that the broad range of potential assets (listed in a demonstrative fashion) that potentially qualify as investments is limited by the additional requirement that any such asset must be 'invested' in order to constitute an investment covered by the BIT.
 According to Respondents any assets specifically mentioned in Article 1(1)(a)-(e) of the BIT do not constitute investments in themselves, but must be 'invested' in order to qualify as 'investments'. In their view, the Contracting Parties of the BIT must be considered as having 'intended to protect only claims to money and other claims under contract which are related to or associated with an investment'.
 In the view of the Tribunal, Respondents' interpretation would, however, unduly restrict and unpredictably limit the meaning of an otherwise clear and straightforward investment definition. The Tribunal finds that the core of the definition lies in the characterization of 'every kind of asset' as an 'investment'. The examples of assets added in an illustrative fashion to this definition in Article 1(1)(a)-(e) of the BIT and the verb 'invested' do not add to it. Rather, the verb 'invested' appears necessary for the further qualification that the investments must be made 'in accordance with the [host State's] legislation'.
 [reference to the Award in Saluka]
 The Tribunal finds that in a similar way Article 1(1) of the [treaty relevant in that case] requires the verb 'to invest' in order to add a subject who is making the investment and the territorial requirement of where the investment has to be made ('invested by an investor of one Contracting Party in the territory of the other Contracting Party') in a grammatically satisfactory way. Apart from that, the verb 'invest' does not add to or diminish in any way the definition of 'investment' as 'any kind of asset'."
" In such a situation, although the identity of the investor will change with every endorsement, the investment itself will remain constant, while the issuer will enjoy a continuous credit benefit until the time the notes become due. To the extent that this credit is provided by a foreign holder of the notes, it constitutes a foreign investment which in this case is encompassed by the terms of the Convention and the Agreement. While specific issues relating to the promissory notes and their endorsements might be discussed in connection with the merits of the case, the argument made by the Republic of Venezuela that the notes were not purchased on the Venezuelan stock exchanges does not take them out of the category of foreign investment because these instruments were intended for international circulation. Nor can the Tribunal accept the argument that, unlike the case of an investment, there is no risk involved in this transaction: the very existence of a dispute as to the payment of the principal and interest evidences the risk that the holder of the notes has taken."
In the Award on Jurisdiction and Admissibility rendered in the case of Philip Morris Asia Limited v The Commonwealth of Australia (PCA Case No. 2012-12) (Award dated 17 December 2015) the Tribunal referred, at paragraph  to an earlier award in the case of Gremcitel v Peru. In Gremcitel part of the tribunal's award was as follows:
" … it is clear to the Tribunal that, where the claim is founded upon an alleged breach of the Treaty's substantive standards, a tribunal's jurisdiction is limited to a dispute between the host [S]tate and a national or company which has acquired its protected investment before the alleged breach occurred. In other words, the Treaty must be in force and the national or company must have already made its investment when the alleged breach occurs, for the Tribunal to have jurisdiction over a breach of that Treaty's substantive standards affecting that investment.
 This conclusion follows from the principle of non-retroactivity of treaties, which entails that the substantive protections of the BIT apply to the [S]tate conduct that occurred after these protections became applicable to the eligible investment. Because the BIT is at the same time the instrument that creates the substantive obligation forming the basis of the claim before the Tribunal and the instrument that confers jurisdiction upon the Tribunal, a claimant bringing a claim based on a Treaty obligation must have owned or controlled the investment when that obligation was allegedly breached.
 […] [A claimant] must therefore prove that [it] had already acquired [its] investment at the time of the impugned conduct." (emphasis added by Tribunal in Philip Morris).
"The Tribunal agrees with this approach and considers that, whenever the cause of action is based on a treaty breach, the test for a ratione temporis objection is whether a claimant made a protected investment before the moment when the alleged breach occurred. Investor-State jurisprudence is in accord with this approach. [footnote 1039] In this respect, the identification of the critical date is essential for the assessment of the scope of the Tribunal's ratione temporis jurisdiction."
" […] the critical date is the one on which the State adopts the disputed measure, even when the measure represents the culmination of a process or sequence of events which may have started years earlier. It is not uncommon that divergences or disagreements develop over a period of time before they finally 'crystallize' in an actual measure affecting the investor's treaty rights."
" The Tribunal shares this view. [ie the approach in Gremcitel]. …
 In conclusion, for purposes of the ratione temporis objection the critical date is the date when the State adopts the disputed measure, which in this case is the date of enactment of the [Tobacco Plain Packaging Act 2011], as before that moment the Claimant's right could not be affected. …"
" The evidence produced by [Tatneft] indicates that it acquired shares in Amruz and Seagroup in December 2007. [Ukraine] does not challenge that Tatneft had control of Amruz and Seagroup after that date. A number of the acts complained of by [Tatneft], especially the court proceedings that were commenced in 2008 and resulted in the sale of Amruz's and Seagroup's shares by auction in June 2009, took place after the acquisition. It is true, however, that [Tatneft], Amruz and Seagroup alleged in 2008 that the interests of Amruz and Seagroup started to be adversely affected in 2007, i.e. prior to Tatneft's acquisition. In its Statement of Claim, Tatneft indicated that the improper transfer of Amruz's and Seagroup's shares to Naftogaz in May 2007 deprived them of their shareholder rights. Similarly, Seagroup stated in broader terms in its Notice of Dispute dated 10 June 2008 that '[d]uring 2007, as a result of a series of actions and omissions of the Ukrainian Government, the Ukrainian courts and enforcement officers, Seagroup has been deprived of its shares in Ukrtatnafta and of its shareholding rights, suffering significant and ongoing damages.' Amruz's Notice of Dispute of 11 June 2008 is identically worded and refers to the same date and events.
 … following an application for interim relief by the Ministry of Fuel and Energy of Ukraine, Amruz and Seagroup were indeed ordered to transfer their shares in Ukrtatnafta to Natfogaz on 22 May 2007. On 17 September 2007 and 30 October 2007, the Economic Court and the Economic Court of Appeal of the city of Kiev successively upheld claims from the Prosecutor General of Ukraine seeking the invalidation of the share purchase agreements entered into by Seagroup and Amruz and ordered the transfer of their shares to the State (represented by the Ministry of Fuel and Energy of Ukraine). On 14 December 2007, according to Respondent, the Economic Court of the city of Kiev ordered measures for the enforcement of its decision of 17 September 2007.
 In subsequent submissions, however, [Tatneft] has given evidence of a third court action that was initiated in February 2008, after its acquisition of shares in Amruz and Seagroup, and resulted this time in a final and irrevocable decision to transfer these shares to a third party. By contrast, the outcome of the first court proceedings that took place in the first half of 2007 was temporary by nature since the court ordered the transfer of shares by way of interim relief. The second court proceedings were stayed in May 2008 pending the resolution of the third court proceedings and eventually discontinued in February 2009. It is only in late 2008, in the third court proceedings, that the issue of the validity of Amruz's and Seagroup's share purchase agreements reached the Supreme Court of Ukraine which then confirmed the annulment by the lower courts of the purchase agreements and the order to return the shares to Ukrtatnafta. The returned shares were then sold at an auction in June 2009 to a company called Korsan, following a court order to that effect.
 While [Tatneft] concedes that there is no evidence in the record that Tatneft sought to obtain any specific guarantee with respect to its purchase of shares in December 2007, the Tribunal agrees that when Tatneft acquired its shares in Amruz and Seagroup, the court decisions that affected these shares could still be subject to review by higher courts and thus were not final. [Tatneft] could still seek to obtain a remedy. In addition, in previous proceedings regarding the validity of Amruz's and Seagroup's acquisition of shares in Ukrtatnafta, the Supreme Court of Ukraine had twice handed down decisions in favour of Amruz and Seagroup, in 2002 and as recently as April 2006. The prospect of prevailing in the new proceedings of 2007 and 2008, though uncertain, was not unreasonable or unlikely.
 The Tribunal thus further agrees that the cumulation of the three above-described court proceedings, which concerned the same issue and all resulted in the transfer of Amruz's and Seagroup's shares to a third party, along with the alleged raid on Ukrtatnafta, should be considered in aggregate to determine what the alleged breach was and when it occurred. It is only in mid-2009, when the shares were auctioned and acquired by Korsan, or at the earliest in late 2008, when the Supreme Court of Ukraine confirmed the lower court's decision to transfer Amruz's and Seagroup's shares to Ukrtatnafta, that it became clear that Amruz and Seagroup had been fully and finally deprived of their shares….."
(1) In order to determine whether a claim is an abuse of rights, what is required is the application of an imprecise principle of international law to the particular, and it may be strongly contested, facts of the case, including issues as to the characterisation of the purpose of the parties in taking certain steps. One would not expect the result of an exercise of that type to determine jurisdiction.
(2) This is especially so, given that it has been recognised that "the threshold for finding an abusive initiation of an investment claim is high" (Philip Morris award, paragraph ). The binary question of whether a tribunal does or does not have jurisdiction would not be expected to depend on whether or not the facts are sufficiently out of the ordinary as to pass a "high threshold".
(3) Various of the awards considering the issue have characterised the issue as one of "abuse of process": see the awards referred to in paragraphs ,  and  of the Philip Morris award, and paragraph  of that award itself. In paragraph  of the same award the issue was described as "an abuse of rights (or an abuse of process, the rights abused being procedural in nature)". The "process" (or the procedural rights) which is being abused must be the arbitration regime established by the relevant investment treaty, and the abuse must be the initiation of a claim in an arbitration thereunder in circumstances where an investor has taken particular steps to gain the protection of the treaty when a specific dispute was foreseeable. The issue of whether there has been such an abuse of process is one which is for the tribunal whose process is alleged to have been abused. It would, in my judgment, be surprising and unsatisfactory if, that tribunal having considered and determined that its process had not been abused, it was possible for that issue to be reargued in front of an enforcement court.
(4) While the award in Phoenix Action is, in any event, only persuasive, and while paragraph  refers to the tribunal there as "lacking jurisdiction", nevertheless I consider that the award as a whole is consistent with the issue of abuse not being truly jurisdictional. In particular in paragraph  the tribunal referred to its being its "duty" not to protect an abusive manipulation of the system of international investment protection, and that the tribunal had "to ensure" that the ICSID mechanism did not protect investments which it was not designed to protect. That is not consistent with the issue of abuse going to the tribunal's jurisdiction, in the sense that the tribunal would not be able to decide as to whether there was abuse. It is consistent rather with the tribunal as having a duty to resolve that question.
"When a judge is faced with an application for permission to enforce an award against a state as if it were a judgment the judge will have to decide whether it is likely that the state will claim state immunity. If that is likely then he would probably not give permission to enforce the award but would instead specify (that being the language of CPR 62.18(2) that the claim form be served on the state and consider whether it was a proper case for granting permission to serve out of the jurisdiction. He would envisage that there would be an inter partes hearing to consider the question of state immunity. For that reason any applicant for permission must draw the court's attention to those matters which would suggest that the state was likely to claim state immunity. Indeed, since the court is required by section 1(2) of the State Immunity Act 1978 to give effect to state immunity even though the state does not appear, it is important that the court be informed of the available arguments with regard to state immunity."
"… Such is the importance of the duty that in the event of any substantial breach the court inclines strongly towards setting aside the order and not renewing it, even where the breach is innocent. Where the breach is deliberate, the conscious abuse of the court's process will almost always make it appropriate to impose the sanction."
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