Master From the Lena Goldfields Case to the Yukos Shareholders Cases: State Control over Strategic Subsoil Vs Protection of Foreign Investors' Interests BAQUIE, Mathurin Abstract International investment law and arbitration have become attractive to solve expropriation cases between a state and foreign investors. Such evolution is mainly based on key cases. The 1930 Lena Goldfields, Ltd vs USSR case directly contributed to the recognition of arbitration and the definition of several international legal principles that have gradually been acknowledged as the minimum standards of international investment law. Moreover, the Lena Goldfields case has clearly showed that legal considerations and enforcement of the arbitration award are influenced by geopolitical matters, especially when strategic subsoil is involved. If societies with different (ideological) references are in latent conflict, arbitration in international investment law turns out to be a weapon. Such approach continues to be valid when capitalism prevails and private entities gain economical strength in a weakened state. The 2000’s Yukos Shareholders vs Russian Federation cases further illustrate it, as the geopolitical force of a country is notably defined by its standing on the energy market. To fully grasp the way in which the [...] Reference BAQUIE, Mathurin. From the Lena Goldfields Case to the Yukos Shareholders Cases: State Control over Strategic Subsoil Vs Protection of Foreign Investors’ Interests. Master : Univ. Genève, 2017 Available at: http://archive-ouverte.unige.ch/unige:102670 Disclaimer: layout of this document may differ from the published version. 1 / 1 Prof. Makane Moïse Mbengue Mrs Stefanie Schacherer Master Thesis in International Investment Law From the Lena Goldfields Case to the Yukos Shareholders Cases - State Control over Strategic Subsoil Vs Protection of Foreign Investors’ Interests Mathurin Baquié 4 April 2017 Summary International investment law and arbitration have become attractive to solve expropriation cases between a state and foreign investors. Such evolution is mainly based on key cases. The 1930 Lena Goldfields, Ltd vs USSR case directly contributed to the recognition of arbitration and the definition of several international legal principles that have gradually been acknowledged as the minimum standards of international investment law. Moreover, the Lena Goldfields case has clearly showed that legal considerations and enforcement of the arbitration award are influenced by geopolitical matters, especially when strategic subsoil is involved. If societies with different (ideological) references are in latent conflict, arbitration in international investment law turns out to be a weapon. Such approach continues to be valid when capitalism prevails and private entities gain economical strength in a weakened state. The 2000’s Yukos Shareholders vs Russian Federation cases further illustrate it, as the geopolitical force of a country is notably defined by its standing on the energy market. To fully grasp the way in which the above-mentioned cases have contributed to the international jurisprudence, the two parts of the current manuscript will follow the same structure. First, will be presented the global historical context and the local history. Then, will be described the chronological phases of the cases and briefly analyzed the key legal aspects of the cases. Acknowledgements I’m sincerely grateful to Dr. Liudmila Efremova for her translation skills. ii Contents page Table of Abbreviations vi Bibliography ix I. Introduction 1 II. The Lena Goldfields Case 3 A. Global Historical Context 3 B. Lena Goldfields Ltd prior 1925 and relevance of foreign concessions 23 C. Lena Goldfields Case 30 D. Key Legal Aspects 33 III. The Yukos Shareholders Cases 37 A. Global Historical Context 37 B. Yukos History 47 C. Overview of Yukos Cases 51 D. Key Legal Aspects 66 IV. Conclusion 67 Annexes 70 iii Extended Contents page Table of Abbreviations vi Bibliography ix I. Introduction 1 II. The Lena Goldfields Case 3 A. Global Historical Context 3 1. Russian Empire Era 3 2. Disaster of First World War and Twilight of the Romanov 5 3. End of World War I and 1917 Russian Revolution 6 4. Russian Civil War (November 1917-October 1922) 9 5. New Economic Policy (21 March 1921-1928) 11 6. Great Turn and First Five Year Plan (1928-1932) 20 B. Lena Goldfields Ltd prior 1925 and relevance of foreign concessions 23 1. Lena Goldfields Ltd and the Lena Massacre 23 2. Relevance of Foreign Concessions in the Lena River Region 26 3. Attractivity of Foreign Concessions 27 4. Expropriation Conditions of Foreign Concessions in the 1920s and -30s 28 C. Lena Goldfields Case 30 1. The Lena Goldfields and its 1925-1929 Concession 30 2. Chronological Phases of the Arbitration 32 D. Key Legal Aspects 33 1. General Principles of Law 33 2. Expropriation Compensation 34 3. Truncated Tribunal 35 4. Procedural and Jurisdictional Issues 35 5. Other Aspects 36 6. Enforcement 36 III. The Yukos Shareholders Cases 37 A. Global Historical Context 37 1. Gorbachev Era (11 March 1985 - 25 December 1991) 37 2. Yeltsin Era (25 December 1991 - 31 December 1999) 42 3. The First Two Terms of The Putin Era (31 December 1999 - 7 May 2008) 46 B. Yukos History 47 1. Promising Creation (1993 - 1994) 47 2. Wild Hunter (1995 - 1998) 48 3. Search for Respectability and Power (1999 - 2003) 49 4. Paying Back Envy and Greed (2004) 50 C. Overview of Yukos Cases 51 1. Some Cases in Non-Russian National Courts 51 2. Arbitration Case of Yukos Capital Sarl 52 3. Yukos Case Before the European Court of Human Rights 54 4. Arbitration Cases of Majority Shareholders 56 5. Arbitration Cases of Minority Shareholders 64 a. RosInvestCo UK Ltd v The Russian Federation 64 b. Quasar de Valores SICAV SA, Orgor de Valores SICAV SA, GBI 9000 SICAV SA and Alos 34 SL v iv The Russian Federation 65 D. Key Legal Aspects 66 1. General Principles of Law 66 2. Expropriation 66 3. Expropriation Compensation 66 4. Unclean Hands Principle 67 5. Procedural and Jurisdictional Issues 67 6. Enforcement 67 IV. Conclusion 67 Annexes 70 Annex 1. Anglo-Russian Relations from 1856 to 1950 70 Annex 2. Copy of a Lena Goldfields Ltd share warrant given on 4 May 1910 71 Annex 3. Pictures related to the 1912 Lena Massacre 72 Annex 4. Location of the activities of Lena Goldfields Ltd 74 Annex 5. Trade Agreement Between His Brittanic Majesty's Government and the Government of the Russian Socialist Federal Soviet Republic, 16 March 1921 75 Annex 6. Article 90 of the 1925 Lena Goldfields Concession Agreement: The Arbitration Clause 80 Annex 7. Text of the Award in the Lena Goldfields Ltd Arbitration, 3 September 1930 82 Annex 8. Russian GDP from 1989 to 2016 and crude oil price from 1861 to 2014 92 Annex 9. Logo of OJSC Yukos Oil Company 93 v Table of Abbreviations ARCOS All-Russian Co-operative Society Arbitrazh Arbitration Art. Article BIT Bilateral investment treaty BV Besloten vennootschap met beperkte aansprakelijkheid; Dutch version of a private limited liability company BP British Petroleum PLC CFO Chief financial officer CIS Commonwealth of Independent States CPSU Communist Party of the Soviet Union Demokratizatsiya Democratization Dept. Department DK-Russia BIT Agreement between the Government of Denmark and the Government of the Russian Federation concerning the Promotion and Reciprocal Protection of Investments on 4 November 1993 ECA Export credit agency ECT Energy charter treaty ECHR European Convention on Human Rights, formally the Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights ECG Export credit guarantee ECGD Export Credits Guarantee Department ed. Edition EPA Economic partnership agreement et al. et alii EU European Union Ekonomicheskaya Zhizn Economic Life; founded on 6 November 1918, the oldest high- volume and most reputable economic/corporate weekly newspaper in Russia FDI Foreign direct investment FET Fair and equitable treatment ff Following fn. Footnote FSB Federal'naya sluzhba bezopasnosti Rossiyskoy Federatsii; Federal Security Service of the Russian Federation; the principal security agency of Russia and the main successor of KGB since 12 April 1995 FTA Free trade agreement GAAP Generally Accepted Accounting Principles GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade GDP Gross Domestic Product Glasnost Openness Gosbank Gosudarstvennyi Bank SSSR; Soviet State bank Gossnabsbyt’ State Committee for Material-Technical Supply ICSID International Centre for Settlement of Investment Disputes ICSID Convention Convention on the Settlement of Investment Disputes between States and Nationals of other States; also called Washington Convention Ibid. Ibidem IIAs International investment agreements IIL International investment law vi ILC International Law Commission IMF International Monetary Fund INF Intermediate-range nuclear forces infra Below IPPA Investment Promotion and Protection Agreement ISDS Investor-State Dispute Settlement Izvestia news or reports, newspaper of record in the Soviet Union from 1917 until the dissolution of the USSR in 1991 JSC Joint-stock company Khozraschyot Economic accounting KGB Komitet gosudarstvennoy bezopasnosti; Committee for State Security; the main security agency for USSR from 1954 until its collapse in 1991 lit. Littera LLP Limited liability partnerships Loc. cit. Loco citato Ltd Limited MAI Multilateral Agreement on Investment NAFTA North American Free Trade Agreement NEP Novaya Ekonomicheskaya Politika;