|This article needs additional citations for verification. (July 2014)|
|Native name||Нефтяна́я Компа́ния Ю́КОС|
|Founded||Moscow, Russia (April 15, 1993)|
|Defunct||November 21, 2007|
OJSC "Yukos Oil Company" (Russian: ОАО Нефтяна́я Компа́ния Ю́КОС, IPA: [ˈjukəs]) was an oil and gas company based in Moscow, Russia. Yukos was acquired from the Russian government by Russian oligarch Mikhail Khodorkovsky's Bank Menatep during the controversial "loans for shares" auctions of the mid 1990s. Between 1996 and 2003 Yukos became one of the biggest and most successful Russian companies, producing 20% of Russia's oil output, as much as Libya or Iraq, and Khodorkovsky became an advocate of democratization, international co-operation and Russian reform. In October 2003 Khodorkovsky - by then the richest man in Russia and 16th richest man in the world - was arrested, and the company was forcibly broken up for alleged unpaid taxes shortly after and declared bankrupt in August 2006. Courts in several countries later ruled that the real intent was to destroy Yukos and obtain its assets for the government, and act politically against Khodorkovsky. In 2014 the largest arbitration award in history, $50 billion (€37,2 billion), was won by Yukos' former owners against Russia.
From 2003-04 onwards, the Russian government presented Yukos with a series of tax claims totaling US$27 billion(€20,1 billion). As the government froze Yukos' assets at the same time, and alternative attempts to settle by Yukos were refused, the company was unable to pay these tax demands. Between 2004 and 2007, most of Yukos's assets were seized and transferred for a fraction of their value to state-owned oil companies.
The Parliamentary Assembly of the Council of Europe condemned Russia's campaign against Yukos and its owners as manufactured for political reasons and a violation of human rights. Between 2011 and 2014 several court cases were won by the former company's management and investors against Russia or against the companies that acquired Yukos assets. The European Court of Human Rights ruled that there had been unfair use of the legal and tax system; the Arbitration Institute of the Stockholm Chamber of Commerce, an established neutral body used by Russia and the West since the 1970s for trade disputes, concluded that the government's action was an "unlawful expropriation" using "illegitimate" tax bills, whose effect was intended to "destroy Yukos and gain control over its assets"; and the Permanent Court of Arbitration in The Hague ruled unanimously upon awarding compensation of $50 billion for the company's assets, that Yukos was the target of a series of politically motivated attacks by Russian authorities that eventually led to its destruction, and that Russia had expropriated Yukos' assets in breach of the Energy Charter Treaty. (The treaty does not stop governments seizing or nationalizing commercial assets, but requires the investors to be fairly compensated if this happens. Russia never ratified the full treaty but these clauses were still legally binding under both the treaty and Russian law until 2029).
According to the Permanent Court of Arbitration's ruling, the primary objective of the Russian Federation was not to collect taxes but rather to bankrupt Yukos, appropriate its assets for the sole benefit of the Russian state and state-owned companies Rosneft and Gazprom, and remove Khodorkovsky from the political arena.
- 1 Formation and early years
- 2 Privatization (1995)
- 3 Post-privatization (1996 to 2003)
- 4 Yukos tax claims, breakup, and aftermath
- 4.1 Tax claims
- 4.2 Forced sale of assets
- 4.3 Bankruptcy
- 4.4 Management responses
- 4.5 International legal proceedings
- 5 See also
- 6 References
- 7 External links
Formation and early years
The company was created on April 15, 1993 by Resolution №. 354 of the Russian government, following Presidential Decree №. 1403 (November 17, 1992), which had directed the government to transfer its directly owned oil and gas operations into separate companies, in preparation for privatization, with the aim of developing the oil and gas sector in Russia.
- Yuganskneftegaz ("Yugansk Oil and Gas": Юганскнефтегаз), a West Siberian oil extraction operation based in Nefteyugansk, part of the Khanty-Mansi Autonomous Okrug and Tyumen Oblast ("district");
- Kuybyshevnefteorgsintez ("Kuybyshev Oil and Organic Synthesis": КуйбышевнефтеОргСинтез), founded in 1975-1976, comprising three Samara Oblast oil refineries in Kuybyshev (now known as Samara), Novokuybyshevsk and Syzran, and various other oil-related operations.
The company was named after these assets, "YUganskneftegaz" + "KuybyshevnefteOrgSintez". The Samaraneftegaz ("Samara Oil and Gas") refinery was added to Yukos in 1995 under decree №. 864, and at some point (date unknown) eight distribution companies in Central Russia and Siberia and assorted technical businesses.:12
The first chairman and president appointed to Yukos, then still a government owned business, was Sergei Muravlenko (Russian: Сергей Муравленко), the former General Director of Yuganskneftegaz and son of Viktor Muravlenko, a former head of the oil and gas sector during the Soviet regime.
During 1995 and 1996, with Russia in economic difficulty, many large state-owned industrial businesses were privatized in a second round of reorganization ("Loans for shares"), in which major state assets were sold off through - and often to - Russian commercial banks in a series of rigged auctions whose participants were limited to favored bidders with political connections. This acquisition of valuable state industrial enterprises for far less than their open market value also marked the emergence of a wave of Russian oligarchs - immensely wealthy Russian businessmen with powerful political connections, who held a dominant position in Russian business and politics for some time. (The first wave of wealthy individuals was banking and export driven following perestroika in the 1980s.)
In Putin and the Oligarch, Richard Sakwa offers a second perspective, that with oil prices varying from $16 to $25 a barrel, and great political and economic uncertainty, it was "unclear" at the time of the auction how much a company like Yukos was "actually worth", and concludes that perhaps the auctions were not wildly mispriced within the context, but regardless, they were a public relations disaster which "came to symbolize the flawed transition [of privatization] as a whole".:13
One of the commercial banks contending for Yukos - and controversially also managing its auction - was banking group Bank Menatep, chaired by its co-founder Mikhail Khodorkovsky, a 32 year old early import-export (1987) and banking entrepreneur (1989), former chairman of the Investment Fund for Assistance to the Fuel and Oil Industry (1992), former deputy minister of the Ministry of Fuel and Energy (briefly in 1993), and CEO of Rosprom, an investment and holding company created to manage Menatep's portfolio of around 30 large industrial companies (140,000 employees). Menatep became the owner of 78% of Yukos shares following a two-stage auction in December 1995 and Khodorkovsky became its CEO, and from 1997, also its chairman.
Post-privatization (1996 to 2003)
The initial period of "oligarchic privatization" was characterized by ruthlessness and bloodshed, with those having power sometimes compared to 19th century robber barons, and Yukos was certainly no exception. For example, the former Security Chief of Yukos, Alexei Pichugin, was convicted on multiple counts of murder and attempted murder, and is under investigation along with Yukos partner Nevzlin for the shooting of Vladimir Petukhov, mayor of the Yugansk oil province and a vehement opponent of Yukos, on Khodorkovsky's birthday in 1998. Initially, Yukos, like most other Russian energy companies, was badly affected by the economic recession of the 1990s; subsequent to acquiring Yukos, accusations were made of other parties being squeezed out, and Yukos became formally owned by Rosprom, Menatep's holding company. In the late 1990s Russia was badly affected by a deepening of the economic crisis, in the course of which Bank Menatep became insolvent.
Yukos however recovered very quickly and, in the course of the next few years, became one of Russia’s largest oil companies, one of the world's largest non-state oil companies, but more significantly, a leader in Russian corporate governance reform and corporate transparency, with Khodorkovsky being widely seen as a pro-democratic reformer who advocated for international co-operation and against corruption in Russia. In a marked change of direction which gained considerable United States coverage, the company and its owner came to be seen as a leopard that might be changing its spots and setting aside the dubious conduct previously associated with it in the early oligarch years. Yukos had five Americans on its board, and Khodorkovsky's charity "Open Russia" listed Henry Kissinger and Lord (Jacob) Rothschild as chairmen. In 2001 the company donated $1 million to the Library of Congress Open World Program, to aid the development of Russian leadership and rule of law, in part by funding Russian judges to visit and observe United States courts.
In a 2002 profile, Forbes described Khodorkovsky as being "villified by the West" until quite recently, but now being seen as perhaps "the West's best friend". It stated that in Russia, "the financial free-for-all is yielding to an ethic of reinvesting in your business" with Khodorkovsky "leading the charge", with Yukos now having an American Chief Financial Officer and publishing its previous three years of financial accounts in compliance with U.S. GAAP standards. It quoted Khodorkovsky as saying, "By now we understand how business is done in the West... I earn money in dividends and with the increase in the market capitalization of my company". At the peak of its success, Yukos was producing 20% of Russian oil—about 2% of world production; in its final year before being broken up (2003-2004), Yukos pumped 1.7 million barrels of oil a day. In April 2003, Yukos agreed to a merger/takeover with Sibneft, to create the fourth largest private company in the world, although this merger became undone in the aftermath of the October 2003 arrest of its CEO.
Yukos tax claims, breakup, and aftermath
Although weak at the time of the auctions and the economic downturn of the mid-1990s, from 2000 the government under new leader Vladimir Putin grew in strength, until it became able politically to outweigh the power of the oligarchs. On October 25, 2003, Yukos CEO Khodorkovsky was arrested on charges of fraud and tax evasion. Leonid Bershidsky, founder of Russian business newspaper Vedomosti, wrote: "Any of the oligarchs could have faced similar charges; Khodorkovsky's imprisonment made them so docile that Putin confined himself to making an example of just one victim".
At the time of his arrest, Khodorkovsky was believed to be the wealthiest man in Russia and was listed by Forbes as the 16th richest person in the world, with a fortune estimated at $15 billion. His eventual sentence in 2005 was for 10 years, and attracted widespread international concern related to a perceived political motivation and lack of due process.
(The European Court of Human Rights eventually ruled that while the arrest and several other points were unlawful, he was not a "political prisoner" since the charges against him had been based on reasonable suspicion.)
The arrest was followed by a tax investigation into Yukos by the tax authorities, in December 2003, after which in April 2004 Yukos was issued in stages with tax claims for $27 billion, a sum that exceeded its total revenues for 2002 and 2003. At the same time, Yukos' assets were frozen by the government and offers exploring other ways to settle, such as payment in stages or sale of non-core assets, were refused or ignored. In July 2004, its core asset, Yuganskneftegaz - producing 60% of the company's oil and by itself as much oil as Iraq or Libya and variously valued between $14.7 to $22 billion and $30.4 billion - was confiscated.
In December 2004, Yuganskneftegaz was sold for $9.35 billion in a closed-room auction of just two bidders (one of which, Gazpromneft, was subject to a US court injunction and did not enter a bid), to an unknown front company called Baikalfinansgrup which had been registered a few days before the auction, and whose bid was financed by state-owned oil company Rosneft. Rosneft acquired Baikalfinansgrup within days of the auction, at which point the tax bill was "slashed". Just over a year later Yuganskneftegaz was formally valued by Rosneft at $56 billion. On February 7, 2006, in response to a question posed by a Spanish journalist, Russian President Vladimir Putin disclosed that Rosneft had used Baikalfinansgrup as a vehicle to acquire Yuganskneftegaz to protect itself against litigation risks. Yukos was bankrupted in 2006 and liquidated in 2007.
In July 2004, Yukos was charged with tax evasion, for an amount of over US$27 billion. The Russian government accused the company of misusing tax havens inside Russia in the 1990s so as to reduce its tax burden; havens were set up by most major oil producers in outlying areas of Russia which had been granted special tax status to assist in their economic development; such "onshore-offshore" were used to evade profit taxes, resulting in Yukos having an effective tax rate of 11%, vs a statutory rate of 30% at the time. Yukos claims its actions were legal at the time and that the company used the same tax optimisation schemes as other Russian oil companies, such as Lukoil, TNK-BP and Sibneft. However, Yukos was the only one to be charged with tax evasion and penalised by the authorities.
Yukos subsidiaries declared the oil they produced to be "oil-containing liquids" to avoid paying full taxes. A general crackdown on such tax evasion practices began with Putin's presidency, with numerous companies closing or purchasing their trading vehicles. A management presentation from December 2004 shows that the tax claims put the "total tax burden" for 2000, 2001, 2002, and 2003 at 67%, 105%, 111%, and 83% of the company's declared revenue during those years. As a comparison, the annual tax bill of Gazprom is about US$4 billion on 2003 revenues of US$28.867 billion. Yukos' parent company, Menatep, lobbied extensively and successfully to influence Western public opinion, retaining Margery Kraus of APCO who successfully pushed through resolutions inter alia before the US House of Representatives and the Council of Europe. According to a resolution of the Council of Europe,
- "Intimidating action by different law-enforcement agencies against Yukos and its business partners and other institutions linked to Mr Khodorkovsky and his associates and the careful preparation of this action in terms of public relations, taken together, give a picture of a co-ordinated attack by the state."
- This "raises serious issues pertaining to the principle of nullum crimen, nulla poena sine lege laid down in Article 7 of the ECHR and also to the right to the protection of property laid down in Article 1 of the Additional Protocol to the ECHR."
- "The circumstances of the sale by auction of Yuganskneftegaz to “Baikal Finance Group” and the swift takeover of the latter by state-owned Rosneft raises additional issues related to the protection of property (ECHR, Additional Protocol, Article 1). This concerns both the circumstances of the auction itself, resulting in a price far below the fair market-value, and the way Yukos was forced to sell off its principal asset, by way of trumped-up tax reassessments leading to a total tax burden far exceeding that of Yukos’s competitors, and for 2002 even exceeding Yukos’ total revenue for that year."
Forced sale of assets
On October 31, 2003, shortly after the arrest of the company's CEO, the Russian government froze ownership of 44% of the company's shares. The reason given was to prevent a group of shareholders led by Khodorkovsky from selling a large stake of the company to the US oil firm Exxon. A Yukos shareholders' meeting scheduled for December 20, 2004 was to discuss a "crisis plan." A Russian company must hold such a meeting before it can apply for bankruptcy in Russia. The Russian Government sold Yukos's main production unit, known as Yuganskneftegas, at auction on December 19, 2004 to recover some of US$28 billion in alleged tax debts, following the loss of an appeal by the firm. Menatep, the company representing Khodorkovsky, promised to challenge the sale's legality in a number of countries, and to sue the buyer and any company helping to fund the deal. The expected buyer was the 38% Russian state owned company OAO Gazprom. Some European and American oil firms decided not to bid.
On December 19, 2004, the Baikalfinansgrup, an unknown company registered several days before the auction in Tver at an address where a snack bar was located, won the auction for Yukos's subsidiary Yuganskneftegas with a 260.75 billion rubles ($9.4 billion) bid. According to people familiar with the auction[who?] only two bidders registered for, and were present during, the auction process: Baikalfinansgrup and Gazprom's former oil unit Gazpromneft. Accounts from the auction say that the first bid of US$8.6 billion came from Baikal. When the auctioneer asked Gazpromneft to offer its price, a representative of the company asked to make a telephone call and left the room. A few minutes earlier, the auctioneer had told participants that using a mobile phone or leaving the room was against the rules. When a Gazpromneft representative returned to the room, Baikal made a bid of US$9.3 billion. Gazpromneft never placed a bid or spoke out. Shortly after the Yuganskneftegaz auction, Rosneft, Russian state-owned oil company, acquired 100% of shares in Baikalfinansgrup. The acquisition of Yuganskneftegaz significantly increased Rosneft's profits and made it one of the largest oil companies in Russia.
On June 15, 2006, based on a bank deposit of $4 million USD and its American CEO's Houston home, Yukos filed for bankruptcy protection in the United States, estimating its assets at US$12.3 billion and its debts at US$30.8 billion, including "alleged taxes owed to the Russian government". It accused the Russian authorities of "an unprecedented campaign of illegal, discriminatory, and disproportionate tax claims escalating into raids and confiscations, culminating in intimidation and arrests". After several weeks of deliberation, the Houston court declared that under no conceivable theory could Yukos assert domicile in the United States. On July 25, 2006, the creditors of Yukos decided to file for bankruptcy after the bankruptcy manager recommended the company be liquidated.
At the time, key management included:
By mid-December, 2004, all members of the board of Yukos, and most of the company's senior managers, had left Russia, some of them because of "fear of arrest" after being "summoned for questioning by prosecutors". According to a December 2004 Houston, Texas court filing, the CFO resides in Houston. According to a company spokeswoman the CEO resided in London, UK as of December 2004. Executives Mikhail Brudno and Vladimir Dubov fled to Israel in 2003, and were seen on February 2, 2005 in Washington, D.C. at an official function for President George W. Bush.
Both men were cited in an international arrest warrant regarding their involvement in the Yukos tax case. On Wednesday, April 6, 2006, the company's Executive Vice President, Vasily Aleksanyan, was arrested just six days into his new role. Yukos commented on its web site that, "We can only assume that this action against him is a direct result of his accepting a position to work to protect Yukos Oil Company and its legitimate stakeholders." The following month, it was reported that some individuals established themselves as the "New Management" of Yukos. However, this was apparently an illegal act, as Yukos "emphatically rejected" the legitimacy of the "new management" which had Vinokurov as President. According to Yukos, these individuals were "loyal to Rosneft" and had as goal the downfall of Yukos. A Yukos lawyer, Pavel Ivlev, was accused of several crimes,[clarification needed] after which he moved to the USA.[when?] In July 2006, one week before creditors would vote if they should file for bankruptcy, Steven Theede resigned his function as he believed the outcome of this vote was already fixed and therefore this meeting would qualify as a "sham".
International legal proceedings
The Yukos Oil Company's former shareholders and management filed a series of claims in courts and arbitration panels in various countries, seeking compensation for their expropriation. The largest, for over $100 billion, was filed at the Permanent Court of Arbitration in 2007 and resulted in the arbitrators awarding Yukos majority shareholders over USD $50 billion in damages. US and Russian investors, representing about 15 percent and 5 percent of Yukos, respectively, lack the benefit of an investment treaty. The sole remedy of US-based investors in seeking approximately $12 billion in redress is to request the State Department and the Office of the United States Trade Representative to espouse the claim to their Russian counterparts, as it is determined by the Magnitsky Act of 2012; State Department officials have reportedly raised Yukos investors' concerns at deputy prime minister level in the past.
Court proceedings of Yukos management
Claim in Houston court
In 2005, Yukos unsuccessfully asked a US court in Houston to send its multibillion-dollar tax dispute with the Russian authorities to an international arbitration forum. By bringing the case in a US court, Yukos sought to focus international attention on its travails and increase pressure on Russian authorities.
Claim in the European Court of Human Rights (EHCR)
On April 23, 2004, shortly after the imposition of the tax assessment for the year 2000, the former management of Yukos (OAO Neftyanaya kompaniya YUKOS) submitted an application to the European Court of Human Rights.
Yukos’ claim in the ECHR argued that the company's rights, protected by the European Convention on Human Rights, were violated in Russian courts, which led to its bankruptcy and liquidation; it also argued that Yukos has been singled out for discriminatory treatment. Yukos officials complained that their rights were breached under several articles of the Convention, specifically:
“Under Article 6 (right to a fair trial) of the Convention, the applicant company complains about various defects in the proceedings concerning its tax liability for the year 2000. Under Article 1 of Protocol No. 1 (protection of property), taken alone and in conjunction with Articles 1 (obligation to respect human rights), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights) of the Convention, it complains about the lawfulness and proportionality of the 2000–2003 Tax Assessments and their subsequent enforcement, including the forced sale of OAO Yuganskneftegaz. Lastly, the applicant company complains, under Article 7 (no punishment without law) of the Convention, about the lack of proper legal basis, selective and arbitrary prosecution and the imposition of double penalties in the Tax Assessment proceedings for the years 2000–2003.”
Following an admissibility assessment that took five years, the court declared the Yukos application admissible on 29 January 2009. This was a significant achievement for Yukos, as the Court declares admissible only less than 5% of all submitted applications.
The hearing on merits of the Yukos Oil Company v Russia case in the European Court of Human Rights took place on 4 March 2010. Yukos Oil Company was represented by Piers Gardner, Barrister of Monckton Chambers. The Russian side was represented by a team of lawyers, which included Georgy Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and British lawyer Michael Swainston. The claim before the ECHR amounted to US$98 billion – as majority shareholders did in the arbitration case bevore the Permanent Court of Arbitration in The Hague – but later reduced the claim. This was the largest claim to be brought in the court's history. The claim was an estimate of what the value of Yukos would have been if its assets had not been stripped away and the company had not been liquidated in 2007. The decision was announced on September 20, 2011.
The court announced that the Russian state violated the human rights of Yukos by agreeing there had been a violation of Yukos' right to fairness in legal proceedings in relation to a tax re-assessment for 2000. The court also established that there had been a violation of the right to protection of property through enforcement proceedings carried out over tax assessments from 2000–03. The interpretation of the tax liabilities which were applied to Yukos was foreseeable, but the court still noted that the crux of the case was the rapid and inflexible enforcement of those liabilities. Yukos had been effectively paralysed because all of its assets were frozen from the first assessment. The court held that two factors in particular contributed to Yukos' demise and violated Article 1 of Protocol No. 1:
''1. The bailiff's choice of Yukos' principal subsidiary as the first target for auction, without considering the implications for the company's future: this dealt Yukos a 'fatal blow';
2. The Russian authorities were unyielding and inflexible in response to requests for time to pay and the bailiffs imposed additional fines amounting to €1.15 Bn, which had to be paid before the taxes, but the payment of which was prohibited under the freezing orders." The court did however note that the tax assessments themselves were not considered disproportionate. It was agreed that there was not enough evidence to suggest that Yukos had been treated differently from other companies and so no violation of Article 14 was found. The court denied an allegation that Russia misused legal procedures to dismantle Yukos despite the court's nine-judge panel finding that Russia violated three articles of the European Convention on Human Rights. Both sides claimed victory over the ruling.
No monetary amount was awarded after the European Court of Human Rights (ECHR) found the question of damages as "not ready for decision". Both parties subsequently had three months to reach a settlement. The ECHR ruling became final on March 8, 2012 when the ECHR Grand Chamber did not accept the request of the Yukos Oil company to have its application to the court referred to the Grand Chamber.
The ECHR invited a claim for 'just satisfaction', or compensation, from Yukos, which sought compensation of just under 38 billion euros. These damages were being sought on behalf of all Yukos shareholders. There are around 55,000 named Yukos shareholders, some of which are funds representing a number of shareholders. On July 31, 2014, the ECHR awarded shareholders and their heirs €1.87 billion ($2.6 billion), finding Russia failed to strike a "fair balance" in its treatment of Yukos Oil Company. The ECHR also ruled Russia should pay 300,000 euros in costs and expenses, plus any tax.  The award fell well short of the €37.98 billion in damages Yukos had asked for. It was also significantly less than the $50 billion in damages that its former majority owners were awarded by a tribunal at the Permanent Court of Arbitration earlier that same week. However, it was the largest compensation award made by the court.
Arbitration proceedings by Yukos Capital
In 2006, Yukos Capital S.a.r.l., a Luxembourg-based company under two Dutch-registered protective foundations, obtained four ICC arbitration awards against Rosneft by a Russian tribunal in Moscow, totalling $245 million. The ruling was later overturned by the Supreme Court of Arbitration of Russia.
The Supreme Court of the Netherlands issued a final ruling in 2010 ordering Rosneft to pay $389.3 million in claims. As a result of the Dutch court decision, in 2010 Rosneft paid Yukos the value of the awards. However, it did not pay the $160 million post-award interest that had accrued since 2006. That same year, a UK court froze £425 million ($640 million) held in UK bank accounts by Rosneft to enforce the claim.
In June 2011, the English Commercial Court decided both issues in favour of Yukos, and Rosneft appealed to the Court of Appeal of England and Wales. In 2012, the Court of Appeal rejected Yukos Capital's argument that the Dutch treatment of the Russian judgments binds the English courts in any respect, leaving Rosneft free to defend based on the Russian annulment decisions. In a separate part of the English judgment, the court held that the English Act of state doctrine does not impact certain arguments Yukos Capital seeks to make concerning the Russian annulment decisions. Yukos Capital had claimed interest on arbitration awards that were annulled by the Russian courts but the Amsterdam Court of Appeal nevertheless enforced.
In 2013, Yukos Capital asked the United States District Court for the Southern District of New York to confirm a $421 million arbitration award against Rosneft. In 2014, a New York court ordered Samaraneftegaz, a former Yukos subsidiary now owned by Rosneft, to turn over assets to the US to satisfy a judgment to pay Yukos Capital $186 million and restrained it from transferring assets to either shareholders or affiliates. Samaraneftegaz has been refusing to pay the damages ever since 2007.
In 2005, GML Ltd. (formerly Group Menatep), the former owner of 60 percent of Yukos, filed a lawsuit under the Energy Charter Treaty before a tribunal at the Permanent Court of Arbitration in The Hague. The treaty aims to promote international investment and co-operation in the energy industry, and to stimulate foreign direct investment and global trade, in part by reassuring potential international investors that their investment will receive fair treatment. GML drew on two main provisions for its case -
- The treaty does not prevent governments from seizing or nationalizing commercial assets. However it requires that the investors must be fairly compensated if their assets are unfairly seized.
- Investors may seek arbitration for such claims against signatory governments, and rulings are legally binding and enforceable for both parties (subject to any appeal).
Although Russia did not ultimately ratify the full treaty, these clauses were still agreed as legally binding for a number of years, as part of the draft framework. European investments in Russian energy projects that took place before Russia agreed to leave the treaty still fall under the treaty's provision of protecting investments. As a consequence, the three-person tribunal led by Canadian lawyer Yves Fortier ruled in 2009 that it would hear the case and that the Veteran Petroleum Trust, a corporate pension fund covering 30,000 ex-Yukos employees, as well as two companies that own Yukos shares — all represented by GML – could seek payments from the Russian government.
Previously the main shareholder in Yukos, GML sued Russia for more than $100 billion; the core shareholders' stake was worth an estimated $25 billion at the time Yukos was dismantled, but the litigants asked for a multiple of that amount to reflect Yukos' estimated post-expropriation capitalisation and interest. This made the case the world's largest-ever arbitration case.
On July 28, 2014, the Permanent Court of Arbitration rendered the decision of the three arbitrators serving in the case – besides Fortier, Judge Stephen Schwebel of the United States (appointed by Russia) and Charles Poncet of Switzerland (appointed by the claimants) – in a roughly 600-page ruling. They ruled for the majority shareholders, awarding them $50 billion against Russia, around half of their claim yet 20 times the previous record for an arbitration ruling. The court found unanimously that an expropriation had taken place, with that Russia having expropriated the Yukos oil company in a series of politically-motivated attacks in breach of Article 13(1) of the Energy Charter Treaty. In particular, the panel said Russia “was not driven by motives of tax collection” in auctioning off a core business but “by the desire of the state to acquire Yukos' most valuable asset.”  However, the arbitrators docked 25 per cent from the value they attributed to the assets seized.
The main beneficiaries of just over $40 billion are Leonid Nevzlin, owner of just over 70 percent of GML, as well as four other ex-Yukos owners – Platon Lebedev, Mikhail Brudno, Vladimir Dubov and Vasily Shakhnovsky – who each have just under 7.5 percent. Khodorkovsky had signed over his Yukos majority stake to Nevzlin during his trial in 2005, in an effort to fend off the attack on the company. Other key beneficiaries include the Veteran Petroleum pension fund for about 30,000 former Yukos employees, which is due to receive another $8.2 billion from Russia.
According to the decision, Russia has until January 2015 to pay or face interest on what it owes. The possibility for setting the award aside by courts in the Netherlands is limited to technical issues. If Russia refuses to pay, the claimants may – unlike in previous Yukos-related litigation – pursue Russian sovereign commercial assets by winning court-ordered seizures in the 150 countries that are party to the 1958 New York Convention on enforcing arbitration awards.
Two arbitration tribunals in Stockholm in 2010 and 2012 ruled in favor of Yukos investors from the United Kingdom and Spain who demanded compensation under bilateral investment protection treaties. In early 2006, RosInvestCo UK Ltd., a former minority shareholder of Yukos Oil Company and affiliate of Elliott Associates, initiated a suit against Russia on the basis of a bilateral investment treaty between the United Kingdom and the Russian Federation. RosInvest had purchased its shares at a time when their value had already diminished significantly because of Russia's actions against Yukos, including auctioning off of Yukos' common shares in its principal production facilities. In May 2006, the tribunal was constituted at the Arbitration Institute of the Stockholm Chamber of Commerce and included Karl-Heinz Böckstiegel, Sir Franklin Berman KCMG QC and the Rt Hon Lord Steyn. In 2010, the tribunal decided that the Russian state's measures constituted an unlawful expropriation because their effect was intended to “destroy Yukos and gain control over its assets”, thus marking the first instance where an international court or tribunal ruled on the merits of an expropriation claim filed against Russia by former Yukos investors. The court ruled for the Yukos shareholders and for the recovery of $3.5 million in damages from Russia.
In 2012, Spanish minority investors in Yukos Oil Company won an arbitration award from Russia under the Spain-Russia investment treaty. The Arbitration Institute of the Stockholm Chamber of Commerce ruled that Russia used “illegitimate” tax bills to bankrupt and nationalize Yukos.
The tribunal awarded the Spanish shareholders $2 million plus interest since November 2007, when the company was liquidated. This put the value of Yukos at the time at $62.1 billion, which would be $83 billion with interest added. The arbitration proceeding, Quasar de Valores SICAV S.A., et al. v. The Russian Federation, had been filed in March 2007 under the jurisdiction of the Stockholm Chamber of Commerce. A tribunal of three jurists issued a unanimous award: Jan Paulsson (chair) of Freshfields Bruckhaus Deringer; Toby Landau QC, of Essex Court Chambers; and Judge Charles N. Brower of the Iran-United States Claims Tribunal.
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- Council of Europe, Parliamentary Assembly. "Resolution 1418 (2005)". Retrieved April 6, 2010.
- Arbitration Institute of the Stockholm Chamber of Commerce: About Us
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|Wikimedia Commons has media related to Yukos.|
Global Arbitration Review
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- http://www.nytimes.com/2009/12/02/business/global/02yukos.html *http://www.law.com/jsp/law/international/LawArticleIntl.jsp?id=1202436033122&Report_Shearman__Sterling_Wins_Round_for_Yukos_Shareholders
- [dead link]
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- Further information about the current YUKOS Oil Company claim in the European Court of Human Rights
- Report: The Yukos Affair, its Motives and Implications (Centre for Eastern Studies)[dead link]
- Khodorkovsky verdict: Business views Browder and Kraus
- Mysterious bidder pays $9.4 billion for Yukos unit[dead link](subscription required)
- Analysis: Gazprom's losing bid for Yukos? – (United Press International)
- Knight Ridder: Russia's dismantling of Yukos seen as part of a troubling trend
- Arrested oil tycoon passed shares to banker Jacob Rothschild – *Matteo M. Winkler, Arbitration without Privity and the Russian Oil: The Yukos Case before the Houston Court, already pub'ed in 27 U. PA. J. INT’L ECON. L. 115–153 (2006)