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SEPARATE AWARD SCC Arbitration No. V2014/078/080 National Joint Stock Company Naftogaz of Ukraine Claimant and Public Joint S

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SEPARATE AWARD SCC Arbitration No. V2014/078/080 National Joint Stock Company Naftogaz of Ukraine Claimant and Public Joint S SEPARATE AWARD SCC Arbitration no. V2014/078/080 National Joint Stock Company Naftogaz of Ukraine Claimant and Public Joint Stock Company Gazprom Respondent I. THE PARTIES TO THE DISPUTE AND THEIR COUNSEL The Claimant National Joint Stock Company Naftogaz of Ukraine B. Khmelnitskogo Str., 6 01001, Kiev Ukraine hereinafter referred to as Naftogaz or the Claimant represented in this Arbitration by Wikborg, Rein & Co. Advokatfirma DA Attorneys-at-law Dag Mjaaland and Aadne M. Haga P.O. Box 1513 Vika N-0117 Oslo Norway Gernandt Danielsson Advokatbyrå KB Attorneys-at-law Björn Tude and Marcus Johansson Hamngatan 2 P.O. Box 5747 SE-114 87 Stockholm Sweden AEQUO LLC Attorneys-at-law Denis Lysenko and Pavlo Byelousov Vector Business Centre B. Khmelnitskogo Str., 52 01030 Kiev Ukraine The Respondent Public Joint Stock Company Gazprom Nametkina Street No. 16 Moscow, GCP-7, 117997 Russia hereinafter referred to as Gazprom or the Respondent represented in this Arbitration by DLA Piper UK LLP Attorneys-at-law Phillip Chong and Christina Lawrence 3 Noble Street London EC2V 7EE England DLA Piper Rus Limited 1 Attorneys-at-law Yaroslav Moshennikov and Angela Kolesnitskaya Leontievsky pereulok, 25 Moscow 12509 Russian Federation Advokatfirman Vinge Attorney-at-law James Hope Smålandsgatan 20 Box 1703 SE-111 87 Stockholm Sweden The Claimant and the Respondent are collectively referred to as the Parties. 2 II. THE ARBITRATORS The Arbitral Tribunal has been constituted as follows: - Naftogaz has nominated as arbitrator: Mr. Jens Rostock-Jensen Advokatfirmaet Kromann Reumert Sundkrogsgade 5 DK-2100 Copenhagen Denmark Telephone: +45 38 77 44 50 Mobile phone: +45 40 59 04 32 Email: [email protected] in accordance with Article 13(3) of the Arbitration Rules of the Stockholm Chamber of Commerce (SCC) in force as of 1 January 2010 (the “SCC Rules”). - Gazprom has nominated as arbitrator: Mr. Johan Munck Anhaltsvägen 48 SE-191 40 Sollentuna Sweden Telephone: +46 8 358068 (or +46 8 964164) Telefax: +46 8 51989183 Email: [email protected] in accordance with Article 13(3) of the SCC Rules. In accordance with Article 13(3) of the SCC Rules, the Board of SCC appointed as Chairperson of the Arbitral Tribunal: Mr. Tore Wiwen-Nilsson, Pålsjövägen 24, 223 63 Lund, Sweden Telephone: +46 709 100 134 Email: [email protected] Administrative Secretary to the Tribunal, appointed by SCC with agreements of the Parties: Professor Boel Flodgren Pålsjövägen 10 223 62 Lund, Sweden Email: [email protected] 3 III. THE DISPUTE III.1 The Parties ( 1 ) The Claimant Naftogaz is a Ukrainian wholly state owned oil and gas company with over 170 thousand employees, founded in 1998. Naftogaz is Ukraine's largest oil and gas producer as well as the major importer, transit provider through its wholly owned subsidiary Ukrtransgaz AC, and marketer of Natural Gas, covering all segments of the Ukrainian gas market, such as gas field exploration and development, production, transportation, storage and supply to final consumers, from industrial users down to direct residential and commercial customers. ( 2 ) Naftogaz and its subsidiaries produce over 90% of the oil and gas produced domestically in Ukraine. Natural gas is the primary energy source in Ukraine, providing 40-45% of the total energy consumption. ( 3 ) The Respondent Gazprom is the world's largest gas extracting company with over 350,000 employees. It was reorganised into a Russian joint stock company in 1993, and began the process of privatisation in 1994. It is today a publicly listed company situated in Moscow, Russia. Currently, 50.23% of Gazprom’s shares are owned or controlled (directly or indirectly) by the Russian Federation (through the Federal Agency for State Property Management, OAO Rosneftegaz and OAO Rosgazifikatsiya). Gazprom is the biggest supplier of gas to Europe. Gazprom accounts for 14% and 74% of the global and Russian gas output respectively, and owns the world's largest gas transmission network – the Unified Gas Supply System of Russia – with a total length of over 168 thousand kilometres. III.2 The Dispute ( 4 ) On 19 January 2009, the Parties entered into Contract No. KP for the purchase and sale of natural gas for the period 2009-2019, the “Gas Sales Contract” or the “Contract”, and into Contract No. TKGU on volumes and terms of transit of natural gas through the territory of Ukraine for the period 2009-2019, the “Gas Transit Contract” or the “Transit Contract”. Both Contracts are now under dispute. The disputes are handled in separate arbitration proceedings (“The Sales Arbitration” and “The Transit Arbitration”) but by the same Tribunal. The present Arbitration deals with the Gas Sales Contract. The Parties are in dispute about the price of gas under the Contract and about the validity of various clauses in the Contract. With regard to the price of gas, Naftogaz claims an adjustment of the price provisions of the Contract and determination of the price payable under the Contract. Naftogaz also claims that the volume and Take or Pay provision, the destination clause, the unilateral suspension right clause and the 4 mandatory sales clause of the Contract should be declared invalid or ineffective and that the volume and Take or Pay provisions and the unilateral suspension right clause should be replaced. Naftogaz claims repayment, alternatively damages plus interest. Gazprom denies that Naftogaz is entitled to the relief sought and requests that Naftogaz' claims be rejected in their entirety. In its counterclaim, Gazprom claims payment of outstanding amounts due for gas delivered to Naftogaz and for gas accessible to Naftogaz but not off-taken by Naftogaz under the Contract, plus interest. Naftogaz requests the rejection of the relief sought by Gazprom in its counterclaim. 5 IV. THE ARBITRATION AGREEMENT AND APPLICABLE LAW ( 5 ) The Contract contains the following arbitration clause: “ARTICLE 8. Regulation of disputes 8.1. All disputes and controversies, which may arise concerning the interpretation and application of the present Contract or in connection with it, shall be resolved by means of negotiations and consultations. 8.2. The Parties shall seek to resolve between themselves all disputes and controversies relating to the interpretation and application of this Contract by means of negotiations. Should the Parties fail to reach a mutually acceptable solution within 30 days upon the occurrence of any dispute or controversy, any dispute, controversy or claim in connection with the present Contract either its breach, termination or invalidity shall be finally resolved by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The Arbitral Tribunal shall consist of three Arbitrators. The Arbitration shall be held in Stockholm, Sweden. The language of the arbitration proceedings shall be Russian. The arbitral award shall be final and binding on both Parties. 8.3. The award of the Arbitration Institute of the Stockholm Chamber of Commerce shall be final, not subject to appeal, and binding on the Parties. 8.4. Articles 8.2-8.3 hereof relating to arbitration shall be binding on the Parties, their authorized representatives and legal successors, and the working of these Sections will remain in force regardless of the expiration or termination of the Contract.” ( 6 ) With regard to applicable law, Article 9.4 of the Contract reads as follows: “The present Contract is regulated exclusively by the material law of Sweden.“ 6 V. THE BACKGROUND OF THE DISPUTE V.1 The Gas Industry and the Development of Gas Sales Contracts ( 7 ) The development of the gas industry in Europe has been characterised by imports from giant gas fields, starting with the development of the Dutch Groningen field discovered in 1959. The development of the Groningen field was the first large gas export project worldwide and the principles of its contractual arrangements became the reference for all later gas imports into Europe, including from the major suppliers, Russia, Norway and Algeria. ( 8 ) When the first agreements for sales of gas from the Groningen field were entered into in the mid-1960s, natural gas was a new energy source which was then introduced into the Dutch and European fuel and energy markets. There was no separate market or price formation mechanism for natural gas in the European fuel and energy market at the time. In the absence of a separate market and independent price formation mechanism for natural gas, the Groningen sellers, Shell, Exxon and the Dutch government, agreed to link the price of natural gas to the price of other alternative fuels for which there existed separate markets and price formation mechanisms, and which were likely to be the most competitive alternative energy source for the various types of consumers. ( 9 ) Thus, the price of gas was linked to the price of alternative fuels likely to be substituted by the different types of consumers – for instance, gas oil for small-scale users and fuel oil for large- scale users. On the one hand, the introduction of the market value principle meant that consumers would not have to pay more for gas than for alternative fuels. On the other hand, they would not pay much less. ( 10 ) The market value approach enabled Shell, Exon and the Dutch government to obtain much higher revenues than by pricing based on the low production costs of gas from the Groningen field. It also made sure that the growing use of gas did not abruptly jeopardise the past marketing success for oil products. ( 11 ) The principles developed
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