The Global Lawyer: The charge of the BIT brigade

Like the Light Brigade memorialised in Alfred Lord Tennyson’s 1854 ode to misguided bravery, more than half-a-dozen arbitral tribunals in the past two years have charged headlong into Crimea. None have flinched in adjudicating Crimean property disputes under the treaty protecting Ukrainian investments in Russia. Perversely, these rulings arguably legitimise Russia’s sovereign claim to Crimea. Of the rank-and-file cavalry soldiers, the poet could justly say, “Theirs was not to reason why.” But the arbitrators here have no such excuse.

After Russia conquered Crimea by the illegal use of force in 2014, the Moscow-installed government seized enterprises owned by the Ukrainian state and state-allied oligarchs such as Ihor Kolomoisky, who has allegedly helped fund the fight against Russian proxies in eastern Ukraine. Many of those targeted heeded Ukraine’s call to file investment arbitrations against Russia.

In the fastest track case, Everest Estate versus Russia, a Permanent Court of Arbitration (PCA) panel asserted jurisdiction in April 2017, and ordered Russia in May 2018 to pay more than $150m in compensation for its seizure of luxury hotels and apartments on the Black Sea’s ‘Gold Coast’. In an enforcement ruling in February 2019, Ukraine’s Supreme Court held that the claimants may seize assets in the Ukrainian arms of Russian state banks VEB, Sberbank and VTB. Though Russia refused to engage with the arbitrators, it is now challenging the arbitral award in the Dutch courts. In addition, the Russian state bank VEB has reportedly notified Ukraine of a $2.27bn retaliatory arbitration in the Stockholm Chamber of Commerce, claiming it has lost the full value of Ukrainian subsidiary Prominvestbank.

Larger Ukrainian claims for Russian seizures in Crimea are following the same pattern. In November 2018, a panel in the Hague awarded $1.3bn to the Ukrainian state bank, Oschadbank. In February 2019, a UN Commission on International Trade Law tribunal held Russia liable for seizing Mr Kolomoisky’s interests in Belbek Airport and the Crimean arm of Privatbank. Only this March, a PCA panel held that Russia stripped the rights to Black Sea gas exploration and development from state-owned Naftogaz of Ukraine. Still pending are the damages claims by Privatbank and Naftogaz for more than $1bn and $5bn, respectively.

But the most legally notable Crimean ruling came in October 2018, when the Federal Supreme Court of Switzerland vindicated the prevailing arbitral rationale on jurisdiction, in claims against Russia for seizing petrol stations from investors led by Ukrnafta.

The Ukraine-Russia bilateral investment treaty, or BIT, protects “foreign investors” in “Russian territory”. To apply that treaty to Ukrainian investments made in Crimea before 2014 requires a creative interpretation of both terms. Nonetheless, the Swiss Supreme Court agreed that the treaty should be read broadly to animate the object and purpose of investment protection. Citing Article 29 of the Vienna Convention on the Law of Treaties, it read the treaty 'dynamically', to cover territory that came under de facto Russian control only belatedly – and never as a matter of law.

The trouble is that the UN General Assembly, in its March 2014 Resolution on the Territorial Integrity of Ukraine, called on all international actors “not to recognise any alteration of [Crimea’s] status… and to refrain from any action or dealing that might be interpreted as recognising any such altered status”. At first blush, it would seem that the arbitrators who charged into Crimea violated the UN resolution. Or as Tennyson would have it, “someone had blundered”.

Then again, the object and purpose of the non-recognition principle is to deprive irredentist states of any benefits flowing from their aggression. It is certainly not designed to let an occupying state avoid the costs of its aggression. Like it or not, arbitrators tend to construe their jurisdiction broadly to animate the design of international law – which is to say, to charge forward.

Russian expansionism and arbitral expansionism were bound to collide. They may next clash in the Donbas region of eastern Ukraine, where Russia asserts effective control more indirectly.

Michael D Goldhaber serves as US correspondent for the International Bar Association. He is author of the award-winning e-book Crude Awakening: Chevron in Ecuador, available on Amazon. E-mail: michael.goldhaber@gmail.com