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TOKIOS TOKELS -V -UKRAINE International Centre for Settlement of Investment Disputes Tokios Tokelės (Claimant) v. Ukraine (Respondent) Case No. ARB/02/18 AWARD Members of the Tribunal Lord Mustill, President Professor Piero Bernardini Mr. Daniel M. Price Secretary of the Tribunal Ms. Martina Polasek Representing the Claimant Representing the Respondent Mr. Ivan Lozowy, General Counsel, Prime Minister of Ukraine Tokios Tokelės Cabinet of Ministers Mr. Serhiy Danylov, Chairman of the Deputy Minister of Justice Board of Directors, Tokios Tokelės Department on Representation of State in Ms. Ludmilla Zhyltsova, Tokios Tokelės Courts of Ukraine and Foreign Judicial Mr. Oleksandr Danylov, Tokios Tokelės Institutions, Ministry of Justice of Ukraine Mr. Dmitri Grischenko, Counsel Mr. Sergei Voitovich, Counsel Mr. Oleg Schevchuk, Counsel Mr. Andriy Alekseyev, Counsel Date of Dispatch to the Parties: 26 July 2007 TABLE OF CONTENTS Page Number A. INTRODUCTION ......................................................................................................................4 B. THE SITUATION IN UKRAINE ..............................................................................................6 1. The Political Situation in Brief ...................................................................................................6 2. The Economic Situation in Brief ................................................................................................7 C. THE CLAIMANT’S CASE........................................................................................................8 D. SUMMARY OF PROCEDURAL HISTORY..........................................................................11 1. The Request for Arbitration ......................................................................................................11 2. Withdrawal and Resubmission..................................................................................................12 3. Notice of Registration ...............................................................................................................13 4. Constitution of the Arbitral Tribunal ........................................................................................13 5. Hearing on Jurisdiction: Reconstitution of the Tribunal...........................................................14 6. The Substantive Oral Hearing...................................................................................................15 E. THE CLAIMANT’S NARRATIVE .........................................................................................16 1. Taki Spravy Produces Campaign Materials for BYT ...............................................................17 2. The State’s Press Statements.....................................................................................................19 2.1 The Press Statement of 25 March 2002 ...............................................................................19 2.2 Other STA Press Statements................................................................................................22 3. Investigations and Court Proceedings.......................................................................................22 3.1 Taki Spravy and Produkt BVO ............................................................................................22 3.2 Taki Spravy and Rembudproekt ..........................................................................................23 3.3 Investigation of Taki Spravy Clients ...................................................................................24 3.4 Other Allegedly Unfounded Investigations, Searches and Seizures....................................24 4. Tax Notice Decisions and Related Proceedings .......................................................................25 5. Tax Investigations and Arrest of Taki Spravy Assets...............................................................26 6. The Criminal Case Against Mr. O. Danylov: Case No. 79/00032............................................27 7. Other Denials of Claimant’s Requests for Relief......................................................................28 8. The Tax Authorities’ Requests for Taki Spravy to Provide Testimony Against BYT.............29 9. Evidence of Discrimination Against Other Publishers .............................................................30 10. Political Asylum Granted by Lithuania ..................................................................................31 11. Other Evidence that the State’s Actions Were Politically Motivated.....................................32 F. THE CLAIMANT’S MAJOR ALLEGATIONS......................................................................33 1. The Press Statement of 25 March 2002 ....................................................................................33 2. The Raids of 17 – 20 June 2002................................................................................................35 3. The Administrative Arrest of Taki Spravy’s Assets .................................................................36 4. The Electoral Commission........................................................................................................36 5. Proceedings in the Courts of Ukraine .......................................................................................36 G. THE CLAIMANT’S FORMULATION OF BREACHES .......................................................37 H. THE CASE FOR THE STATE OF UKRAINE........................................................................39 I. JURISDICTION........................................................................................................................41 1. Investment: Local Requirements ..............................................................................................42 2. Pre-existing Assets....................................................................................................................42 3. The Order of Events..................................................................................................................43 4. The Transfer of Assets ..............................................................................................................45 J. THE TRIBUNAL’S FINDINGS ..............................................................................................48 K. EXPROPRIATION...................................................................................................................49 L. PROOF OF A BREACH ..........................................................................................................52 1. Introduction...............................................................................................................................52 1.1 Proof.....................................................................................................................................52 2 1.2 “Admitted or Proved” ..........................................................................................................54 1.3 Documents ...........................................................................................................................55 2. Individual Items ........................................................................................................................55 2.1 The Press Statement.............................................................................................................55 2.2 Entry to Premises .................................................................................................................56 2.3 Failure to Set Out Grounds for Actions ...............................................................................57 2.4 The Electoral Commission...................................................................................................58 2.5 The Events of 2005 ..............................................................................................................58 3. The Complaints as a Whole ......................................................................................................59 4. Conclusions...............................................................................................................................60 M. APPLICABILITY OF UKRAINIAN LAW.............................................................................61 N. COSTS ......................................................................................................................................62 O. ORDERS OF THE TRIBUNAL...............................................................................................63 3 A. INTRODUCTION 1. This Award is made in an arbitration between the above-captioned parties in accordance with the dispute-resolution mechanism of the International Centre for Settlement of Investment Disputes (hereafter “ICSID”). The arbitration is brought to enforce various provisions of a bilateral investment treaty, dated 8 February 1994 and entitled Agreement Between the Government of Ukraine and the Government of the Republic of Lithuania for the Promotion and Reciprocal Protection of Investments (hereafter “the Treaty”), between the Republic of Lithuania and Ukraine. 2. The Claimant in the arbitration is Tokios Tokelės, a corporation registered in 1989 as a co- operative enterprise under the laws of Lithuania, and subsequently reorganised as a joint- stock company. Although Tokios Tokelės is the Claimant, the companies most immediately involved in the events giving
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