NEW YORK, July 14, 2020
Ruling Paves Way for Foreclosure of Kashagan Field Shares
NEW YORK, July 14, 2020 /PRNewswire/ -- The Amsterdam Court of Appeal handed down its judgment in Anatolie Stati et al v Republic of Kazakhstan, affirming recognition on Dutch soil of a US$543 million arbitral award issued by a Stockholm seated arbitral tribunal in December 2013.
Kazakhstan has brought multiple challenges to the recognition of the award arguing that it was contrary to Dutch public policy, among other things, on the ground that the Stati parties had allegedly fraudulently inflated the value of an LPG Plant near Borankol in western Kazakhstan, compensation for which formed part of the overall damages awarded to the Stati parties under the award.
Following almost three years of proceedings, the Dutch court in its detailed and well-reasoned ruling handed down on July 14, 2020 conclusively and comprehensively rejected all of Kazakhstan's objections. In particular, the court found that the Stati parties had not misled the arbitral tribunal regarding the valuation of the LPG Plant and that the alleged fraud did not have a material impact on the outcome of the underlying arbitration proceedings.
Noting that Kazakhstan never contested the construction costs claimed by the Stati parties during the arbitration proceedings, the Amsterdam Court of Appeal held that the LPG construction costs had not been fraudulently inflated by the Stati parties, and that Kazakhstan's arguments in this regard were contradicted by its own expert evidence. In this context, the Court further noted that Kazakhstan was already in control of the LPG Plant and its operating entity at the time of the arbitration proceedings and thus had an insight into the actual state of affairs including by way of carrying out an inspection of the plant at the time.
This decision comes in the wake of another ruling by the same Amsterdam Court of Appeal rendered on May 7, 2019, whereby it fully upheld an attachment secured by the Stati parties in September 2017 on the shares held by the Kazakh sovereign wealth fund JSC Samruk-Kazyna in the Dutch entity KMG Kashagan B.V. with a nominal value of US$5.2 billion, through which the Republic of Kazakhstan participates in the international consortium for the exploration of the major Kashagan oil and gas field in the Caspian Sea.
Anatolie Stati, CEO and sole shareholder of Ascom Group S.A., one of the award creditors, said: "We welcome this ruling of the Amsterdam Court of Appeal, which confirms the pro-arbitration stance of the Dutch courts and represents a total and resounding victory for the award creditors. The judgment also paves the way for the foreclosure of the attached shares in KMG Kashagan B.V. In the meantime, the award creditors will continue unabatedly with their efforts to collect any and all amounts due under the award and related legal costs in all available jurisdictions."
In addition to the Kashagan shares attachment, the Stati parties have successfully secured and maintain the benefit of various other attachments of Kazakh state property in Sweden, Luxembourg and Belgium, with the combined total value of all attachments worldwide exceeding US$6.25 billion.
The Dutch court ruling is the latest development in the Stati parties' long-running battle to enforce the award for Kazakhstan's violations of the investor protection provisions of the Energy Charter Treaty. In December 2013, a Sweden based arbitration tribunal found that Kazakhstan had violated international law by failing to treat the Stati parties' investments in Kazakhstan fairly and equitably, and awarded the Stati parties more than US$500 million in damages, legal costs, and interest. The award has since been fully upheld by two tiers of the Swedish judiciary, including the Swedish Supreme Court.
The claims originally arose out of Kazakhstan's seizure of the Stati parties' petroleum operations in 2010. The Stati parties acquired two companies in 1999 that held idle licenses in the Borankol and Tolkyn fields in Kazakhstan. They invested more than US$1 billion over the ensuing decade to turn the companies into successful exploration and production businesses. By late 2008, the businesses had become profitable and had yielded considerable revenues for the Kazakh state. Just as the Stati parties expected to start receiving dividends, more than half a dozen government agencies carried out multiple burdensome inspections and audits of the companies' businesses that resulted in false accusations of illegal conduct directed at the Stati parties and their Kazakh companies, including criminal prosecutions of their general managers on false pretenses. Kazakhstan's actions challenged the Stati parties' title to their investments, subjected them to hundreds of millions of dollars in unwarranted tax assessments and criminal penalties, and ultimately led to the seizure and nationalization of their investments by Kazakh authorities in July 2010.