Hulley v. Russia 2014

3.Tribunal’s Analysis

1607. In Chapter IX.A above, the Tribunal reviewed some 28 instances of alleged “illegal and bad faith conduct” by Claimants or “attributable to the Claimants”, which Respondent argues have contributed to Yukos’ demise or should, in any event, prevent Claimants from recovering damages from the Russian Federation. For the reasons set out in that chapter, the Tribunal has already concluded that most of these “actions or omissions” cannot be considered as having materially contributed to Yukos’ demise.

1608. There are, however, four remaining instances of alleged willful or negligent conduct by Claimants and/or Yukos which, the Tribunal agrees, must be considered as potentially constituting fault that may have contributed to the destruction of Yukos, for which the Tribunal has found Respondent responsible. These four instances are:

i)Yukos’ conduct in some of the low-tax regions;

ii)Yukos’ use of the Cyprus-Russia DTA;

iii)Yukos’ conduct in connection with the YNG auction, notably the procuring of a Temporary Restraining Order by a Texas court and the published threat of a “lifetime of litigation”; and

iv)Yukos’ conduct in connection with its bankruptcy, notably the non-payment of the A Loan.

1609. The Tribunal will now review these four instances and seek to determine whether any one of them qualifies as contributory fault as that legal principle has been interpreted in the decisions which it has reviewed earlier.

(a)Conduct of Yukos in Some of the Low-Tax Regions

1610. At the outset of its review, the Tribunal needs to recall that the central, indeed the only, focus of its remit with respect to the tax optimization schemes in the ZATOs and other low tax regions of Russia was the series of arrangements implemented by one Russian oil company, Yukos. These arrangements have been documented by hundreds of exhibits which the Tribunal has considered and analyzed in Chapters VIII.A and VIII.B of the present Award.

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1611. While there is ample evidence in the record that nearly all Russian oil companies also availed themselves of such tax optimization arrangements which were permitted by law, 2117 there is no evidence that the operations of those other oil companies, in any respect, breached the legislation and abused the low tax regimes as the Tribunal has found Yukos did through the sham-like nature of some elements of its operations in at least some of the low-tax regions notably in the ZATOs of Lesnoy and Trekhgorny.

1612. The Tribunal also recalls its further findings, in Chapters VIII.A and VIII.B above, that this abuse by Yukos in some of the low-tax regions occurred prior to the confrontation between President Putin and Mr. Khodorkovsky in February 2003. At the February 2003 meeting, President Putin said to Mr. Khodorkovsky that, henceforth, he would no longer receive any protection from the Kremlin. Specifically, President Putin said to Mr. Khodorkovsky: “We have already discussed it with you recently, that your company, for example, has had problems with the payment of taxes.”2118

1613. This specific reference by President Putin to Yukos’ tax issues at the February 2003 meeting is significant.

1614. While the Tribunal has concluded, on the basis of the totality of the evidence, that Respondent’s tax assessments and tax collection efforts against Yukos were not aimed primarily at the collection of taxes, but rather at bankrupting Yukos and facilitating the transfer of its assets to the State, it cannot ignore that Yukos’ tax avoidance arrangements in some of the low-tax regions made it possible for Respondent to invoke and rely on that conduct as a justification of its actions against Mr. Khodorkovsky and Yukos.

1615. Accordingly, even though the Tribunal has found that President Putin and his administration used Yukos’ tax problems as a pretextual justification for setting in motion a plan to bankrupt Yukos, as opposed to just collecting the taxes that might have been legitimately assessed

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against the trading companies on the basis of the “bad faith taxpayer” doctrine, the Tribunal concludes that there is a sufficient causal link between Yukos’ abuse of the system in some of the low-tax regions and its demise which triggers a finding of contributory fault on the part of Yukos.

(b)Conduct of Yukos under the Cyprus-Russia DTA

1616. As detailed in the Expert Reports of Thomas Z. Lys, Yukos’ “tax optimization” plan included use of the trading companies in the low-tax regions to receive proceeds from the sale of Yukos’ oil and oil products, and the transfer of those proceeds to other Yukos-controlled trading and holding companies in the Russian Federation and in off-shore jurisdictions such as Cyprus and the British Virgin Islands.2119

1617. Respondent, relying on the expert reports of Professor H. David Rosenbloom,2120 Professor Dr. Stef van Weeghel and Mr. Polyvios G. Polyviou, has argued that Yukos’ use of the CyprusRussia DTA was abusive. Claimants, relying on the Expert Report of Mr. Philip Baker QC, counter Respondent’s argument and assert that the use by Yukos of the DTA was not abusive. It is noteworthy that the Parties did not call as witnesses one another’s respective experts on that issue.

1618. Claimants note that, to this day, the Russian authorities “have done absolutely nothing” in respect of the alleged improper invocation of DTA benefits by Claimants, including under the specific mechanisms of review that exist under the treaty itself and/or under the domestic laws of the contracting parties.2121 They also submit that the first time Respondent raised any issue regarding the tax arrangements subject to the Cyprus-Russia DTA was on 6 October 2006 in the present arbitration and that Respondent “concocted [this issue] specifically for the purposes of these arbitrations.”2122

1619. The Tribunal accepts Claimants’ argument that it is incongruous for the Russian Federation to complain in these proceedings about Yukos’ use of the treaty while never having invoked the

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mechanisms available to it to trigger the review of such use by, for example, invoking the information-sharing provisions of the treaty.2123

1620. At the same time, it seems clear to the Tribunal, on the facts, that Yukos’ operations under the DTA were wholly conducted by Mr. Lebedev from Yukos’ established offices in Moscow, that his “place of management” where he habitually concluded contracts relating to operations under the Treaty was in Moscow, which of itself demonstrates that Yukos’ avoidance of hundreds of millions of dollars in Russian taxes through the Cyprus-Russia DTA, was questionable. Hulley appears to the Tribunal to have falsely declared on Cypriot withholding tax forms that “income”—dividends from Yukos—“was not connected with activities carried on in the Russian Federation” despite Mr. Lebedev’s activities in Moscow.2124

1621. In any event, even if there was an abuse by Yukos of that treaty, as in the Tribunal’s prima facie view there was, such conduct would be subsumed into and enlarge the abuse by some of Yukos’ trading companies in some of the low tax regions, which the Tribunal has already found amounted to contributory fault on the part of Yukos.

(c)Conduct of Yukos in Connection with YNG Auction

1622. The Tribunal reiterates that the abusive use of some of the low-tax regions by Yukos including its questionable use of the Cyprus-Russia DTA occurred prior to the February 2003 encounter between President Putin and Mr. Khodorkovsky and thus prior to the plan formed by the Russian Federation not simply to collect taxes from Yukos but to bankrupt the company and transfer its assets to the State.

1623. The YNG auction took place in December 2004 well after Respondent had put in motion its plan to expropriate Yukos. It was preceded by Yukos’ resort to bankruptcy proceedings in Texas, the issuance of a Temporary Restraining Order by the Texas court, and Yukos’ public threats, most strikingly a full page advertisement in the Financial Times, warning prospective purchasers of YNG against participating in the auction.

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1624. Respondent submits that these actions discouraged prospective purchasers of YNG from taking part in the auction and depreciated the price realized at the auction.

1625. The Tribunal agrees that, but for these actions of Yukos, it is reasonable to surmise that the auction of YNG on 19 December 2004, the unlawful measure of Respondent that dealt as “fatal blow” to the survival prospects of Yukos, could have resulted in a higher bid price than the auction actually did. However, in the view of the Tribunal, Yukos’ ultimate fate would have been no different if it had not threatened a lifetime of litigation or obtained a Temporary Restraining Order from a Texas Court. Its demise may have been postponed, or the path to its demise altered in some minor way, but it would not have been avoided.

1626. The Tribunal observes with interest that the RosinvestCo tribunal found that “Yukos did in some respects contribute to its own demise” and that it referred in that context to the Houston bankruptcy proceedings.2125

1627. In addition, before concluding its analysis of this facet of Claimants’ conduct, the Tribunal needs to contrast these actions of Yukos with a series of actions of Respondent before the YNG auction which must have depreciated the auction price very significantly and thus served the Russian Federation objective of acquiring the Yukos assets at a bargain price.

1628. Those actions of Respondent include:

The threat by Russia’s Ministry of Natural Resources to withdraw YNG’s operating licenses;2126

The massive tax liabilities imposed on YNG in October and December 2004;2127

The statement by the Russian Federation Ministry of Justice that the USD 10.4 billion valuation of YNG was “due to the high risk to a potential buyer”;2128

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The decision by Respondent to fix the date of the auction exactly one month after the auction was announced, being the minimum length of the notice required under Russian law;2129

The alleged pressure of Respondent on would be bidders from India and China not to participate in the auction.2130

1629. In conclusion, the Tribunal finds that the actions of Yukos which may have depreciated the auction price, do not constitute contributory fault as they did not contribute in a material way to its demise.

(d)Conduct of Yukos in Connection with its Bankruptcy (Non-Payment of the A Loan)

1630. With respect to the non payment by Yukos of the A Loan and Respondent’s submission that such non-payment rendered Yukos responsible for its own bankruptcy, the Tribunal accepts Respondent’s contention that Yukos was in a position to pay off the balance of the A Loan and that its willful failure to do so contributed to the circumstances of its bankruptcy by leading SocGen to petition for it. At the same time, the loan provisions contemplated that YNG oil production and sale would fuel payment of the loan, and it was understandable that, once YNG was taken over by Rosneft, Claimants should have felt that responsibility for repayment of the A Loan was not theirs or theirs alone.

1631. Moreover, in the view of the Tribunal, even if Yukos had paid off the A Loan, it represented only a fraction of the claims against Yukos which could have been used to petition the company into bankruptcy. In view of the larger circumstances, it is difficult to conclude that, even if the A Loan had been paid, another ground for pushing Yukos into bankruptcy would not have been found.

1632. Consequently, the Tribunal concludes that, while Yukos may have been at fault in refusing to pay off the A Loan, its behavior does not rise to the level of contributory fault.

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4.Tribunal’s Decision on Contributory Fault

1633. Paraphrasing the words of Article 39 of the ILC Articles on State Responsibility and its commentary, the Tribunal must now determine whether Claimants’ and Yukos’ tax avoidance arrangements in some of the low-tax regions, including their questionable use of the CyprusRussia DTA summarized above, contributed to their injury in a material and significant way, or were these minor contributory factors which, based on subsequent events such as the decision of the Russian authorities to destroy Yukos, cannot be considered, legally, as a link in the causative chain. As the Tribunal noted earlier in this chapter, an award of damages may be reduced if the victim of the wrongful act of the respondent State also committed a fault which contributed to the prejudice it suffered and for which the trier of facts, in the exercise of its discretion, considers the claiming party should bear some responsibility.2131

1634. In the view of the Tribunal, Claimants should pay a price for Yukos’ abuse of the low-tax regions by some of its trading entities, including its questionable use of the Cyprus-Russia DTA, which contributed in a material way to the prejudice which they subsequently suffered at the hands of the Russian Federation.

1635. In considering the extent of the contribution of Claimants’ faults to their injury, the Tribunal notes that the subsequent conduct of the Russian Federation, as the Tribunal has found, was disproportionate and tantamount to expropriation of Claimants’ investment in Yukos. Claimants’ damages were caused by the series of events starting with the arrest of Messrs. Khodorkovsky and Lebedev, and the tax assessments, and culminating in the YNG auction, which led to the bankruptcy and liquidation of Yukos. The Tribunal must now determine to what extent and in what proportion Claimants’ and Yukos’ conduct prior to 2003, including their questionable use of the Cyprus-Russia DTA, contributed so as to lessen the responsibility of Respondent.

1636. The Tribunal agrees with the ICSID Annulment Committee in the MTD v. Chile case that “the role of the two parties contributing to the loss [is] [ . . . ] only with difficulty commensurable

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and the Tribunal [has] a corresponding margin of estimation.” 2132 However, the Tribunal, as other tribunals have done, must reach a decision and it has done so on the basis of all the evidence which it has reviewed.

1637. Having considered and weighed all the arguments which the Parties have presented to it in respect of this issue the Tribunal, in the exercise of its wide discretion, finds that, as a result of the material and significant mis-conduct by Claimants and by Yukos (which they controlled), Claimants have contributed to the extent of 25 percent to the prejudice which they suffered as a result of Respondent’s destruction of Yukos. The resulting apportionment of responsibility as between Claimants and Respondent, namely 25 percent and 75 percent, is fair and reasonable in the circumstances of the present case.

XI. INTEREST

1638. As will be seen in Part XII of the Award dealing with quantification of Claimants’ damages for Respondent’s breach of the ECT, one of the elements factored into the Tribunal’s calculation of damages will be interest.2133 Accordingly, the Tribunal, in the present Part XI will determine the applicable rate of such interest, whether it should be simple or compound and, if compound, the period of compounding.

A.CLAIMANTS’ POSITION

1639. Claimants request the Tribunal to award them preand post-award interest.2134 In their Submission on Costs, Claimants also request interest on any costs awarded to them.2135

1640. According to Claimants, “payment of interest can be required to ensure full reparation.”2136 Claimants quote the tribunal in Vivendi v. Argentina, which stated that the purpose of the payment of interest is “to compensate the damage resulting from the fact that, during the period of non-payment by the debtor, the creditor is deprived of the use and disposition of that sum he

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was supposed to receive.”2137 Claimants submit that the Tribunal has “full discretion to determine the most appropriate rate of interest to achieve full reparation”2138 and quote the award in Compañía del Desarollo de Santa Elena, S.A. v. Republic of Costa Rica (“Santa Elena”):

[T]he determination of interest is a product of the exercise of judgment, taking into account

all of the circumstances of the case at hand and especially considerations of fairness which must form part of the law to be applied by this Tribunal.2139

1641. Claimants further contend that the Tribunal may award compound interest2140 and that compound interest has become “the norm in investment arbitration as regards full reparation.”2141 Putting emphasis on the awards in Santa Elena and Wena Hotels Limited v. Arab Republic of Egypt (“Wena”), Claimants explain that compound interest should be awarded in order for the amount of compensation to reflect the additional sum that the claimant would have earned if the money had been reinvested each year at generally prevailing rates of interest.2142

1642. Claimants’ valuation expert, Mr. Kaczmarek, analyzed three possible rates of interest: the LIBOR plus two or four percent; the yield on Russian sovereign bonds issued in USD; and the U.S. Prime rate of interest plus two percent.2143

1643. According to Claimants:

Navigant observed that the Russian Federation’s breaches “have effectively turned Claimants into unwilling lenders to Russia.” The yield on Russian sovereign bonds issued

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in U.S. dollars corresponds to the rate that the Russian Federation offers to its willing lenders. Therefore, in order to be fully compensated for the Russian Federation’s breaches, the Claimants should be awarded interest at a commercial rate higher than this latter rate. LIBOR +4% would represent such an appropriate commercial rate, which is the rate used by Navigant in its expert report.2144

[emphasis in the original]

1644. Claimants have requested that interest of LIBOR plus 4 percent, compounded annually, be applied preand postaward, including on costs.2145

1645. At the Hearing, Claimants presented the following table to summarize their submission on interest rates:2146

1646. Claimants noted that the Russian cost of debt is “a natural candidate” for interest rate.2147 In response to a question by the Chairman whether Claimants “still rely on LIBOR”, counsel for Claimants noted that he had “avoided making any comment on the reliability of LIBOR.”2148

B.RESPONDENT’S POSITION

1647. Respondent submits that Claimants’ request for preand post-award interest is “manifestly unfounded and disproportionate, and should be rejected.”2149 Respondent refers to the

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