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 (UKRAINE-RUSSIA BIT)
- and -
THE ARBITRATION RULES OF THE UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW, 1976
PCA CASE NO. 2015-07
- between -
(1) AEROPORT BELBEK LLC
(2) MR. IGOR VALERIEVICH KOLOMOISKY
The Claimants
- and -
THE RUSSIAN FEDERATION
The Respondent
The Arbitral Tribunal
Professor Pierre-Marie Dupuy (Presiding Arbitrator)
Sir Daniel Bethlehem QC
Dr. Václav Mikulka
Registry
Permanent Court of Arbitration
March 19, 2016
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1.0 On February 29, 2016, Claimants filed their responses to the questions posed by the Tribunal on December 18, 2015 (“Claimants' Responses"). Respondent did not submit any responses to the Tribunal's questions by February 29, 2016. Nor did it indicate within the time limit granted (March 14, 2016) whether it wished to comment on the Claimants' Responses.
1.1 The Tribunal notes the preliminary statement at pages 1-2 of the Claimants' Responses. The Tribunal considers that it is its responsibility, as it is the responsibility of any tribunal, to determine its jurisdiction and the admissibility of the Claimants' claims. The Tribunal's questions to the Parties are posed in the fulfilment of that responsibility.
1.2 The Tribunal has carefully reviewed the Claimants' responses and has two further questions to which it invites the Claimants' response by April 4 2016:
Question 27 (related to Question 1):
[Redacted]
The Claimants are invited to inform the Tribunal if there are any special considerations of confidentiality with regard to any such documents.
Question 28 (related to Question 14): The Tribunal notes that the Claimants have used different terms to describe the status of the Crimea at various places in their pleadings. The Tribunal accordingly invites the Claimants to indicate what in their view was the de jure and the de facto status of the Republic of Crimea vis-à-vis the Russian Federation, during each of the following time periods:
- (a) from February 20 to March 6, 2014;
- (b) from March 6 to 18, 2014; and,
- (c) after March 18, 2014.
This question is not an invitation to the Claimants to address the issue of the legality or illegality of the annexation of the Republic of Crimea and its incorporation into the Russian Federation but rather only the status of the Republic of Crimea during the periods in question.
1.3 The Tribunal recalls that Article 27(1) of the UNCITRAL Rules and paragraph 6.3 of the Rules of Procedure permit it to order, in consultation with the Parties, the appointment of an expert. In its letter to the Parties dated November 30, 2015, the Tribunal indicated that at that time it was minded to appoint one or more experts to address issues in this case including but not necessarily limited to issues of Ukrainian and Russian law. The Tribunal intimated that it would take a final decision on the matter following receipt of the Parties' responses to its questions posed on December 18, 2015.
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1.4 Having now received responses to its questions, the Tribunal has decided, in principle, that it would be appropriate for it to appoint an expert in Ukrainian civil law and an expert in Russian civil law. The Tribunal intends to revert to the Parties shortly concerning all relevant modalities for the appointment of the experts.
1.5 In its letter to the Parties dated November 30, 2016, the Tribunal noted the Claimants' suggestion that it jointly address in a single hearing the jurisdictional issues common to this arbitration and to PCA Case No. 2015-21: PJSC CB PrivatBank and Finance Company Finilon LLC v. The Russian Federation (“PCA Case No. 2015-21”). The Tribunal indicated then that it would revisit this issue after February 29, 2016, bearing in mind relevant steps in the procedural timetable in this case and in PCA Case No. 2015-21.
1.6 The Tribunal directs that the hearing on jurisdiction and admissibility in this arbitration be held concurrently with the hearing on jurisdiction and admissibility in PCA Case No. 2015-21, i.e., from 12-14 July 2016.
1.7 The Tribunal is currently minded to issue the press release attached at Annex 1 to this Procedural Order. Any comments that the Parties may have on the press release should be submitted to the Tribunal by March 28, 2016.
Date: March 19, 2016
Place of Arbitration: The Hague, the Netherlands
Signature
On behalf of the Tribunal
Professor Pierre-Marie Dupuy
Presiding Arbitrator