COUR PERMANENTE D'ARBITRAGE
PERMANENT COURT OF ARBITRATION
IN THE MATTER OF AN ARBITRATION BEFORE A TRIBUNAL CONSTITUTED IN
ACCORDANCE WITH
THE AGREEMENT BETWEEN THE GOVERNMENT OF THE RUSSIAN FEDERATION
AND THE CABINET OF MINISTERS OF UKRAINE ON THE ENCOURAGEMENT AND
MUTUAL PROTECTION OF INVESTMENTS DATED NOVEMBER 27, 1998
- and -
THE ARBITRATION RULES OF THE UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW, 1976
PCA CASE NO. 2015-21
- between -
(1) JSC CB PRIVATBANK
(2) FINANCE COMPANY FINILON
The Claimants
- and -
THE RUSSIAN FEDERATION
The Respondent
PROCEDURAL ORDER NO. 5
The Arbitral Tribunal
Professor Pierre-Marie Dupuy (Presiding Arbitrator)
Sir Daniel Bethlehem QC
Dr. Václav Mikulka
Registry
Permanent Court of Arbitration
3 May 2019
[Page 2]
1.1 On 29 March 2019, the Tribunal issued Procedural Order No. 4, confirming the change of PrivatBank’s counsel in the present proceedings.
1.2 In the covering letter to Procedural Order No. 4, the Tribunal recalled the finding made at paragraph 187 of its Partial Award that “Finilon’s claims fall outside the Tribunal’s jurisdiction”. The Tribunal consequently invited PrivatBank and Finilon to indicate what continuing status or role, if any, Finilon held or was envisaged to have in these proceedings.
1.3 [Redacted]
1.4 [Redacted]
1.5 By letter from the PCA dated 1 April 2019, the Tribunal invited PrivatBank to comment on [Redacted] The Tribunal also invited Finilon to respond to any comments made by PrivatBank, and invited the Respondent to provide any comments it might have on these issues.
1.6 [Redacted]
1.7 [Redacted]
1.8 The Respondent did not provide any comments on the continuing status or role of Finilon in these proceedings.
2.1 The Tribunal has considered the Parties’ comments in relation to the continuing status of Finilon and its counsel in these proceedings as well as whether Finilon and PrivatBank would remain parties in the same interest.
2.2 The Tribunal found at paragraph 187 of its Partial Award of 4 February 2019 that Finilon’s claims fall outside the Tribunal’s jurisdiction. [Redacted] In this regard, the Tribunal notes that it did indeed find that the Respondent has liability to Privatbank in its Partial Award.
2.3 [Redacted] The Respondent has offered no comment on these issues.
[Page 3]
2.4 [Redacted]
2.5 In light of the Tribunal’s finding that Finilon’s claim falls outside the Tribunal’s jurisdiction, and having regard to the submissions of Claimants’ counsel noted above that there is no longer any need to keep Finilon in the case, the Tribunal considers that there is no longer any basis for Finilon to remain as a claimant in these proceedings. Absent any reasoned application by Finilon to continue to participate in the proceedings as a party having a direct interest in the proceedings, or on some other basis, which the Tribunal is required to address, the Tribunal accordingly concludes that Finilon may no longer participate in the proceedings going forward.
Date: 3 May 2019
Place of Arbitration: The Hague, the Netherlands
Signature
On behalf of the Tribunal
Professor Pierre-Marie Dupuy
(Presiding Arbitrator)