English Court Weighs In on $530 Million Attachment of Kazakh National Fund Assets
On April 22, 2020, the High Court of Justice of London handed down its judgment in the matter of National Bank of Kazakhstan and the Republic of Kazakhstan vs The Bank of New York Mellon, Anatolie Stati and Ors, arising out of an attachment obtained by the Stati parties in Belgium against assets of Kazakhstan's National Fund held under the custody of BNY Mellon (BNYM) in October 2017.
According to Marketwatch, the Stati parties secured this attachment in aid of their efforts to enforce a US$542 million arbitral award in various jurisdictions as a result of Kazakhstan's continued refusal to honor its payment obligations under the award. BNYM initially froze cash and securities worth US$22.6 billion comprising the entirety of National Fund assets held in its custody, which amount was subsequently reduced to US$530 million in May 2018 with the Stati parties' consent and in line with the then outstanding amount under the award. The assets in question were held by BNYM under a global custody agreement (the GCA) with the National Bank of Kazakhstan (NBK) governed by English law.
Following a ruling from the Brussels Court of First Instance in May 2018 upholding the original Belgian attachment, questions relating to the GCA were referred by the Belgian court to the English courts, which in turn led to two-year-long proceedings culminating in today's ruling. Kazakhstan and NBK sought broad ranging declarations relating to the GCA, the relationship between Kazakhstan and NBK, the reasonableness of BNYM's position, the ultimate ownership of the assets held under the GCA, and whether the Stati parties had any claims under any system of law with respect to the frozen assets.
In its judgment, the English court refused to grant the broad relief sought by Kazakhstan and NBK, instead granting narrow declarations concerning the GCA, in particular to the effect that, as a matter of English law, a debt under the GCA is payable to NBK.
However, the court also found that "the Republic [of Kazakhstan] is ultimately beneficially entitled to the proceeds of the debt and has the right to require the NBK to make payments from the National Fund to enable demands on the Republic's budget to be met, which could of course include payment of the award in favour of the Stati Parties if the Republic so wished." This is consistent with the Stati parties' position that Kazakhstan could and should have paid the award. As part of its analysis, the court further noted that Kazakhstan's own expert on Kazakh law did not dispute the "autocratic" nature of the political regime in Kazakhstan allowing the President and Government of Kazakhstan to exert influence over the NBK.
Paying due deference to the principle of comity, the English court agreed with the Stati parties' position that it cannot "purport to determine the outcome of the attachment or garnishment proceedings in Belgium," and will not therefore "prejudge the decision of the Belgian Court," by dismissing NBK's separate debt claim against BNYM for the entire value of the attachment (US$530 million plus interest).
Anatolie Stati, CEO and sole shareholder of Ascom Group S.A., one of the award creditors, said: "This ruling confirms our long-held position that only courts in Belgium - where a final hearing is scheduled for December 2020 - should be the ultimate arbiter of the parties' dispute with respect to this particular attachment. This decision leaves the Belgian court to decide whether Kazakhstan's - fully established - ownership of National Fund assets and its beneficial entitlement to the proceeds of this particular attachment means that the Belgian attachment has a subject matter and whether the frozen assets in the hands of BNYM should therefore be available for handover to the award creditors in Belgium."
In addition to the Belgian attachment, the Stati parties have successfully secured and maintain the benefit of various other attachments of Kazakh state property in the Netherlands, Luxembourg and Sweden, with the combined total value of all attachments worldwide exceeding US$6.25 billion.
The English court's ruling is the latest development in the Stati parties' long-running battle to enforce the award for Kazakhstan's violations of the investor protection provisions of the Energy Charter Treaty. In December 2013, a Sweden based arbitration tribunal found that Kazakhstan had violated international law by failing to treat the Stati parties' investments in Kazakhstan fairly and equitably, and awarded the Stati parties more than US$500 million in damages, legal costs, and interest. The award has since been fully upheld by two tiers of the Swedish judiciary, including the Swedish Supreme Court.
The claims originally arose out of Kazakhstan's seizure of the Stati parties' petroleum operations in 2010. The Stati parties acquired two companies in 1999 that held idle licenses in the Borankol and Tolkyn fields in Kazakhstan. They invested more than US$1 billion over the ensuing decade to turn the companies into successful exploration and production businesses. By late 2008, the businesses had become profitable and had yielded considerable revenues for the Kazakh state. Just as the Stati parties expected to start receiving dividends, more than half a dozen government agencies carried out multiple burdensome inspections and audits of the companies' businesses that resulted in false accusations of illegal conduct directed at the Stati parties and their Kazakh companies, including criminal prosecutions of their general managers on false pretenses. Kazakhstan's actions challenged the Stati parties' title to their investments, subjected them to hundreds of millions of dollars in unwarranted tax assessments and criminal penalties, and ultimately led to the seizure and nationalization of their investments by Kazakh authorities in July 2010.
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