Applied Research Project

To what extent can Ukraine and Ukrainian legal persons, following the 2022 invasion by the Russian Federation, enforce court decisions and arbitral decisions awards on Russian State Owned Enterprises to secure reparations for expropriated assets, considering the relevant treaties, and the case law of the International Court of Justice, the European Court of Human Rights, and international Arbitral Tribunals awards?

Client Organization: MUSAT & ASSOCIATES

Contact Person: RĂZVAN STOICESCU

Email: [email protected]

ABSTRACT

In response to the Russian Federation’s invasion in 2022, this research evaluates the potential of the International Court of Justice , the European Court of Human Rights , and International Arbitration as mechanisms for Ukraine to target assets of Russian State-Owned Commercial Enterprises for their execution to obtain reparations. Situated within the realm of Public International Law and Arbitration, the study centers on the applicability of various legal avenues, including the 1998 Bilateral Investment Treaty, to facilitate asset execution and compensation for Ukraine.

The research employs a doctrinal and normative approach, systematically examining international treaties, case law, and legal doctrines to construct a roadmap. This roadmap is intended to ascertain whether the ICJ, ECtHR, and Arbitration can serve as effective platforms for Ukraine to pursue asset execution and secure reparations for damages incurred due to the invasion. The study explores each mechanism’s capacity to adjudicate and enforce rulings in the context of international disputes involving asset execution.

The primary objective of this research is to equip Mușat & Asociații with a detailed legal analysis and strategic framework for advising clients on asset execution and reparations within the context of international law. By mapping the capabilities of the ICJ, ECtHR, and Arbitration in handling cases of asset execution for reparations, the study aims to enhance the firm’s expertise in advising clients affected by international conflicts, particularly in scenarios similar to the Ukraine-Russia situation. The outcome of this study has implications for understanding and utilizing international adjudication mechanisms in the pursuit of justice and reparations in global geopolitical conflicts.

I. INTRODUCTION

1. Background and Context of the Research

In February 2022, Russia launched a full-scale invasion of Ukraine, a significant event that has reshaped the global legal order. Russia justified its actions under the pretext of self-defense, claiming to protect communities in Donbas from alleged Ukrainian government atrocities. This legal stance, based on an innovative reading of the right to self-defense, was overwhelmingly rejected internationally, upholding the prohibition of the use of force in international relations.[1]

Responding to the invasion, Ukraine turned to the ICJ, refuting Russia’s genocide allegations and highlighting the absence of human rights violations in Ukraine as reported by the UN Human Rights Investigative Office. Ukraine’s legal actions sought various reliefs, including declarations against Russia’s military actions and demands for reparations for damages caused[2].

The ECHR also played a pivotal role. In January 2023, it declared admissible the claims in Ukraine and the Netherlands v. Russia, concerning human rights violations in eastern Ukraine since 2014 and the downing of Malaysia Airlines flight MH17. The ECHR’s conclusion that Russia had effective control over territories held by separatists in eastern Ukraine carries significant implications for legal claims against Russia[3].

The invasion’s impact goes beyond the immediate conflict, challenging the core principles of contemporary international law, including the prohibition of force, state territorial integrity, and peoples’ rights to political self-determination. This context sets the stage for this research, which aims to explore legal avenues for Ukraine to seek reparations, particularly focusing on executing Russian State-Owned Commercial Enterprises’ assets[4].

2. Clients Practice Problem and Purpose of the Research

Mușat & Associates, a renowned Romanian law firm, is confronted with a significant legal challenge arising from the 2022 invasion of Ukraine by the Russian Federation. The firm’s primary objective is to provide legal assistance in securing reparations for Ukraine and Ukrainian private entities for losses incurred due to the invasion. This focuses on compensation for destroyed or expropriated assets, properties, or businesses belonging to Ukrainian state and individual actors.

The issue of Mușat & Associates’ practice problem lies in navigating the complex realm of Public International Law  and Arbitration to execute Russian foreign assets, specifically State-Owned Commercial Enterprises. This is an important step in obtaining reparations for the losses suffered by Ukraine following the annexation of Crimea and the 2022 invasion. The legal intricacies of this problem are amplified by the presence of the 1998 Bilateral Investment Treaty between Russia and Ukraine, international arbitration protocols, and the potential defense of sovereign immunity by the Russian Federation, as evidenced in cases like the Yukos case in the UK Court.

This research breaks down these legal complexities and develops a comprehensive understanding of the legal avenues available under PIL for asset execution and reparations. The research aims to analyze the enforcement dynamics of bilateral treaties, international legal mechanisms for asset execution, and potential Russian defenses against such actions. This includes examining the roles and precedents set by the International Court of Justice, the European Court of Human Rights, and various international arbitral tribunals.

The professional product envisaged by Mușat & Associates is a detailed analytical report that synthesizes these findings to offer strategic legal insights. This report will not only aid Mușat & Associates in advising their clients effectively but also empower them to navigate similar asset recovery challenges in future international legal landscapes. The legal solutions and recommendations derived from this research will contribute significantly to ensuring the proper execution of international legal awards against Russian assets, thereby facilitating Ukraine’s efforts to secure due reparations.

The ultimate goal of this research is to equip Mușat & Associates with a profound legal understanding and a clear roadmap for navigating the legal challenges associated with the execution of foreign State-Owned Commercial Enterprises. By addressing both the practical and theoretical dimensions of this complex legal issue, the firm aims to strengthen its capacity to protect and advocate for the interests of its clients under international law, especially in matters of expropriation and the enforcement of international judgments.

3. Legal Research Problem and Topic

This research undertaken in the aftermath of the Russian Federation’s 2022 invasion, tackles the formidable challenge faced by Ukraine and the client law firm Mușat & Asociații: the execution of Russian foreign State-Owned Commercial Enterprises to secure reparations for expropriated Ukrainian assets. The project critically investigates the extent to which Ukraine can harness the provisions of Public International Law and Arbitration, especially under the 1998 Bilateral Investment Treaty, to enforce such reparations.

The investigation specifically targets the legal intricacies that permit asset execution and circumvent the Russian Federation’s sovereign immunity defense. Moreover, it examines the strategic legal actions Ukraine must adopt to ensure compliance with these international legal frameworks, drawing upon the foundational cases of the Yukos case’s examination of sovereign immunity and the Genocide allegations case at the ICJ for jurisdictional challenges.

In parallel, the research also delves into the ECHR jurisprudence, which is pivotal to understanding the potential for enforcing human rights obligations against state actors. The Loizidou v. Turkey case provides a significant precedent for property rights violations and reparation obligations, which could inform the strategy against Russia for asset expropriation. Similarly, the Al-Adsani v. United Kingdom case sheds light on the complexities of state immunity in the face of serious human rights violations, offering critical insights into how such precedents could be navigated by Ukraine in the ECHR.

This research is not only an academic endeavor but also addresses the urgent need of Mușat & Asociații to construct a solid legal argumentation for Ukraine’s pursuit of justice. The firm’s approach to potential international litigation, informed by this research, aims to rebalance the scales in a scenario deeply concerned by the invasion and to advocate for the rights and sovereignty of Ukrainian nationals and their assets.

The professional product of this ARP will provide Mușat & Asociații with the necessary legal backup to navigate and potentially overcome the multifaceted barriers within the international legal landscape. By utilizing the legal doctrines from ICJ, ECHR, and international arbitration practices, the firm is poised to develop legal strategies that effectively challenge the status quo and contribute to the reparation and restoration efforts of Ukraine and Ukrainian Nationals who have suffered damages as a consequence of the armed conflict.

4. Interest of Stakeholders

Foremost, the primary client organization, Mușat & Asociații, has a vested interest in comprehensively understanding the legal avenues for executing Russian State-Owned Commercial Enterprises. Their goal is to assist Ukraine and Ukrainian citizens in navigating the international legal system to claim reparations for assets expropriated during the conflict. They seek to establish legal precedents that not only adhere to the current international laws but also pave the way for future legal recourse in similar geopolitical situations.

For the state of Ukraine, the main aim is to obtain justice and fair compensation for the losses sustained from the Russian invasion. The government and its legal representatives are focused on utilizing every available legal mechanism to enforce reparations and hold the Russian Federation accountable under international law. This includes ensuring that the pursuit of justice is in compliance with bilateral treaties, such as the 1998 Bilateral Investment Treaty, and is recognized by international adjudicating bodies.

Ukrainian private actors, including businesses and individuals who have suffered due to asset expropriation, are also critical stakeholders. Their interests lie in the effective documentation and legal acknowledgment of their losses, facilitating a pathway to recovery and restitution. They demand transparent and equitable legal processes that respect their rights and provide a legal remedy for the injustices they have endured.

Healthcare providers, human rights organizations, and refugee support groups are deeply invested in the outcome of this research. They advocate for the protection of Ukrainian refugees’ rights and support efforts to secure reparations that contribute to the welfare and rehabilitation of affected individuals.

Lastly, the broader international legal community, including international courts, arbitration tribunals, and human rights advocates, has a significant interest in the findings of this research. The jurisprudence and legal strategies developed through this project will inform future cases of state conflict and reparations, impacting the global enforcement of sovereign immunity and the execution of state-owned assets in international disputes.

This research aims to align the interests of all these stakeholders, proposing legal solutions that respect the complexities of international law while striving for justice and reparations for Ukraine.

5. RESEARCH QUESTION AND SUB-QUESTIONS

The Main Research Question for this Applied Research Project is:

“To what extent can the Ukrainian State and Ukrainian legal persons, following the 2022 invasion by the Russian Federation, enforce court decisions and arbitral awards on Russian State Owned Enterprises to secure reparations for expropriated assets, considering the relevant treaties, and the case law of the International Court of Justice, the European Court of Human Rights, and international arbitral awards?”

Ukrainian State: This refers to Ukraine as a sovereign entity recognized under international law. In legal proceedings, particularly those involving international courts or tribunals, the Ukrainian State would represent the country itself, encompassing its government and all its departments. When actions are brought by or against the Ukrainian State, they concern the rights, responsibilities, and obligations of Ukraine as a sovereign nation. In the context of the document, the Ukrainian State would be the party involved in disputes or claims related to violations of international treaties or conventions to which it is a signatory.

Ukrainian Legal Persons: This term refers to entities (such as corporations, organizations, or other legal entities) that are created under the law of Ukraine and possess legal rights and obligations independent of the natural persons who manage them or the state itself. Ukrainian Legal Persons can own property, enter into contracts, and sue or be sued in their own name. In international legal contexts, these entities might be involved in claims related to commercial disputes, investment arbitration, or other matters where the legal person’s rights under international or domestic law are at issue. However, they do not represent the Ukrainian State itself but rather the interests of private or public entities established within Ukraine.

In furtherance of the main question, this research will address the following sub-questions:

a) Sub-question 1

What legal precedents from the International Court of Justice could justify the seizure of state assets in scenarios of illegal annexation and invasion?

b) Sub-question 2

What legal precedents from the European Court of Human Rights could justify the seizure of state assets in scenarios of illegal annexation and invasion?

c) Sub-question 3

What strategies under public international law can Ukraine and private entities employ to navigate Russian claims of sovereign immunity and contest the jurisdiction of international courts?

d) Sub-question 4

To what extent do bilateral treaties between Ukraine and Russia delineate the scope for asset expropriation and compensation?

6. Literature Review

The 1998 Bilateral Investment Treaty between Ukraine and Russia establishes a legal framework that addresses asset expropriation and delineates the conditions under which compensation is warranted. This treaty, foundational to understanding investment protections, offers mechanisms for dispute resolution that could be pivotal for Ukraine’s efforts to secure reparations.

Legal scholars argue that the provisions within such treaties provide a basis for claims against unlawful expropriation, suggesting a pathway for Ukraine to seek compensation for assets seized by Russia. For instance, the Columbia Journal of Transnational Law[5] discusses the potential of using BIT provisions to challenge asset seizures, emphasizing the treaty’s role in international arbitration settings. Similarly, insights from the American Review of International Arbitration[6] highlight how arbitration awards have historically enforced compensation mechanisms, even in complex geopolitical contexts.

Furthermore, the practical challenges of enforcing these treaties, especially in situations involving state immunity, are scrutinized. Legal analyses, such as those found in Lawfare[7] and the Global Arbitration Review[8], examine the intricacies of bypassing sovereign immunity to enforce judgments, suggesting that Ukraine’s strategy may involve leveraging international legal precedents and arbitration awards to substantiate its claims.

By synthesizing these perspectives, it becomes clear that bilateral treaties like the BIT between Ukraine and Russia are instrumental in framing the legal discourse on asset expropriation and compensation. Ukraine’s pursuit of reparations will likely necessitate navigating the arbitration mechanisms outlined in the BIT, alongside a careful examination of international law precedents that could influence the interpretation and enforcement of treaty provisions.

As Ukraine and Ukrainian legal persons seek redress for the extensive economic and human rights violations resulting from the conflict, the issue of sovereign immunity emerges as a central obstacle in the path towards achieving meaningful restitution. Sovereign immunity, can shield states from legal proceedings in foreign courts, complicating efforts to hold responsible parties accountable for their actions. In the case of Ukraine, the execution of foreign assets belonging to Russia emerges as a potential avenue for securing compensation for damages incurred.  In navigating Russian claims of sovereign immunity and contesting the jurisdiction of international courts to achieve justice for Ukraine through foreign asset execution, several strategies under PIL can be considered.

Drawing insights from the commentary of case Jurisdictional Immunities of the State by Hermann Blanke and Lara Falkenberg, alongside the context of the Russian invasion of Ukraine in 2022, the court ruled that state immunity protects states against compensation claims even in cases of extreme violations of human rights. They also emphasized the court’s decision that the sovereign equality of all states and the prohibition on measures of constraint against the properties of a foreign state used for sovereign purposes and that the grant of state immunity does not determine the legality of a state’s conduct because that cannot be subjected to the jurisdiction of another state. However, in their analysis of the case, it was also clarified what are the exceptions to bypass the claims of sovereign immunity which are commercial property or assets[9].

Sovereign immunity can be waived with regards to commercial properties or assets owned by a state, especially when they serve commercial rather than sovereign purposes. Exceptions also arise in instances of the use of force or aggressive state acts, potentially limiting state immunity claims. At the ECtHR, debates continue on overcoming sovereign immunity challenges. In the Al Adsani[10], Jones[11], and McElhinney[12] cases, the ECtHR articulated that invoking state immunity in serious human rights violation cases under the European Convention on Human Rights does not exempt states from accountability[13][14].

In the context of arbitration, Russia’s engagement in arbitration tribunals and courts, especially post-Crimea annexation in the UK, US, and Dutch jurisdictions, highlights a nuanced aspect of sovereign immunity. Ukraine and private entities argue that Russia, by actively participating in arbitration processes or contesting awards in foreign jurisdictions, has implicitly waived its sovereign immunity. This argument finds support in international law’s concept of implied waiver, where voluntary submission to an international tribunal’s jurisdiction signifies a waiver of immunity. This principle suggests that Russia’s participation in the arbitral process and any attempt to invoke sovereign immunity to evade arbitration awards’ enforcement contradict its prior actions. Furthermore, the explicit consent through treaty clauses in the BIT and NY Convention is to be noted. By consenting to arbitration, Russia commits to adhering to arbitration rulings, upheld by the principle of Pacta sunt servanda, which mandates states to honor their treaty commitments. This precludes Russia from asserting sovereign immunity to block arbitration award enforcement, by evidence of Russia’s express consent. Additionally, Ukraine and Ukrainian legal persons parties can utilize the doctrine of issue estoppel to sidestep Russian sovereign immunity claims, reinforcing the legal strategy against non-compliance with arbitration outcomes

CHAPTER I : THE INTERNATIONAL COURT OF JUSTICE 

INTRODUCTION

The ICJ, as the principal judicial organ of the United Nations, holds a mandate to adjudicate disputes between states and provide advisory opinions on questions of international law. Within the ambit of Ukraine’s legal strategies against Russia, particularly concerning the 2022 invasion, the ICJ’s jurisdiction emerges as a critical mechanism for exploring avenues of reparations. This chapter will explain how the ICJ’s adjudicative processes, through the lens of cases like the 2022 Genocide allegations and the 2017 application of the Terrorism Financing Convention, are instrumental in Ukraine’s pursuit of legal redress and compensation from Russia. These proceedings underscore the potential of international legal frameworks to address and potentially redress grievances stemming from state aggression, aligning closely with the overarching research question of securing reparations for Ukraine.

BRIEF BACKGROUND

Before delving into the building of the legal roadmap to obtaining reparations through the ICJ, it is important to understand the cases’ backgrounds  and the ICJ’s decisions and judgements so far with regard to jurisdiction and mandate of the Court in cases like this.

2022 Genocide Allegations Case:

In this case, Ukraine challenged Russia’s justifications for its invasion, specifically disputing claims of genocide in the Donetsk and Luhansk regions. The ICJ’s provisional measures, requested by Ukraine, centered on the immediate suspension of Russia’s military operations. The court found Ukraine’s rights plausible under the Genocide Convention, emphasizing that the unilateral use of force based on alleged genocide was not supported by evidence and questionable under the convention. Despite some judges expressing doubts about the court’s jurisdiction and the applicability of the Genocide Convention to the case, the ICJ’s decision underscored the urgency and the grave risk of irreparable prejudice to the rights of Ukraine and its civilian population. ICJ took provisional measures, indicating its jurisdiction to hear the case at least in the preliminary stage. The Court ordered Russia to suspend military operations in Ukraine, recognizing the urgency and potential for irreparable harm, suggesting that the ICJ saw grounds to assert its jurisdiction under the Genocide Convention.[15]

2017 Application Concerning the Terrorism Financing Convention:

The 2017 case brought by Ukraine against Russia at the ICJ revolves around serious allegations under CERD. Ukraine accuses Russia of supporting terrorist groups and engaging in discriminatory practices against ethnic groups, notably the Crimean Tatars, following the illegal annexation of Crimea. The accusations include supplying arms and funds to separatist movements in Eastern Ukraine and a systematic campaign against ethnic Ukrainians and Tatars in Crimea, including political and cultural suppression, as well as more grave acts such as disappearances and killings[16].

In its legal actions, Ukraine seeks various forms of redress from the ICJ, including orders for Russia to cease its support to armed groups and to cooperate with investigations into acts of terrorism. Ukraine’s claims are predicated on documented instances of violence against civilians and specific events like the downing of MH17, attributed to pro-Russian separatists with alleged ties to Russian military support[17].

The ICJ’s decision to proceed with the case, particularly the issuance of provisional measures, suggests that the Court found a prima facie basis for its jurisdiction at least for the purpose of those measures. This indicates the Court’s acknowledgment of the seriousness of the allegations and its potential jurisdiction to hear the substantive matters of the case. The procedural requirements and Russia’s response, which pointed to a lack of sufficient negotiation or arbitration prior to ICJ submission, were key factors in the jurisdictional consideration[18].

These cases illustrate the ICJ’s critical role in addressing disputes under international law, offering a judicial avenue for Ukraine to seek redress and highlight the legal and humanitarian issues arising from Russia’s actions. The proceedings and decisions in these cases, including the debates over jurisdiction and the principles at stake, are directly relevant to exploring reparations for Ukraine, demonstrating the complexity and potential of international legal mechanisms in resolving state conflicts[19].

CHORZOW FACTORY CASE PERMANENT COURT OF INTERNATIONAL JUSTICE

The Chorzów Factory[20] case, a landmark decision delivered by the Permanent Court of International Justice  in 1928, involved a dispute between Germany and Poland concerning the expropriation of a coal mine and related facilities located in Upper Silesia, known as the Chorzów Factory. Germany alleged that Poland’s expropriation violated international law and sought compensation for the expropriated property.

The case subject revolved around the expropriation of the Chorzów Factory by Poland in 1924, which occurred within the context of ongoing territorial disputes in the region. Germany, as the owner of the factory, argued that Poland’s expropriation constituted a breach of international law, particularly principles governing the protection of foreign property rights.

LEGAL ARGUMENT ANALYSIS

2017 Application Concerning the Terrorism Financing Convention:

Ukraine’s legal arguments in the case encompass allegations against Russia for violations under the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. Ukraine accuses Russia of actively sponsoring terrorism by supplying weapons, financing, and training to proxies in eastern Ukraine, resulting in numerous attacks against civilians, including the downing of Malaysia Airlines Flight MH17 and shelling in Mariupol and Volnovakha. Furthermore, Ukraine alleges that Russia has engaged in a campaign of cultural erasure and discrimination in Crimea, targeting the Crimean Tatar and ethnic Ukrainian communities through political and cultural suppression, enforced disappearances, arbitrary detentions, and restrictions on media and education in minority languages. These actions, Ukraine asserts, violate the aforementioned conventions by promoting terrorism and racial discrimination. Ukraine’s appeal to the ICJ seeks to establish Russia’s violations of international law, requesting the Court’s intervention based on the jurisdictions provided by the compromissory clauses of both conventions, given the failure of negotiation and arbitration efforts to resolve these disputes.

Russia contested the jurisdiction of the ICJ. Specifically, Russia rejected the Court’s jurisdiction over the case, arguing against the allegations made by Ukraine. The ICJ’s findings, however, indicated a lack of evidence supporting Russia’s allegations of genocide within Ukraine, which Russia used to justify its military actions. The Court expressed doubts about the convention’s authorization for a contracting party to unilaterally use force within another state’s territory for the purpose of preventing or punishing alleged genocide. Despite these proceedings, Russia’s response was to dismiss the ICJ’s decision, with Russian presidential press secretary stating that Russia could not “take this decision into account” due to the absence of consent from both sides, implying the decision was not valid.

The ICJ’s arguments in the case brought by Ukraine against Russia focused primarily on the legal examination of Ukraine’s claims under the CERD[21]. The Court determined that Ukraine had “a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide” in its territory. This decision was based on the absence of evidence to substantiate Russia’s allegations of genocide in Ukraine. Furthermore, the Court found it “doubtful” that the Genocide Convention allowed for a contracting party’s unilateral use of force within another state’s territory to prevent or punish alleged genocide. The ICJ also noted the urgent need for provisional measures to prevent irreparable prejudice to Ukraine’s rights due to the ongoing conflict and its severe impact on the civilian population, leading to the decision to order Russia to suspend military operations immediately.

2022 Genocide Allegations Case

In the 2022 ICJ case, Ukraine’s arguments were focused on disputing Russia’s justification for its military operations in Ukraine. Ukraine contended that Russia falsely claimed acts of genocide in the Luhansk and Donetsk oblasts to justify these operations. Ukraine sought the ICJ’s intervention to declare that no genocide, as defined by the Genocide Convention, had occurred in these areas and that Russia’s actions, including its military operations and the recognition of the independence of the so-called Donetsk People’s Republic and Luhansk People’s Republic, were based on false claims of genocide and therefore lacked any basis under the Genocide Convention. Ukraine requested provisional measures to suspend Russia’s military operations and additional measures to prevent the situation from worsening, alongside assurances from Russia against repeating such actions.

Russia’s response to Ukraine’s application and the Court’s subsequent proceedings was to challenge the jurisdiction of the ICJ over the case. Russia argued that the ICJ did not have the authority to adjudicate on the matter, implying that the allegations and the basis of the case did not fall within the purview of the Genocide Convention’s provisions for dispute resolution. This stance was a fundamental aspect of Russia’s legal strategy, focusing on the procedural and jurisdictional aspects of international law to counter Ukraine’s substantive claims.

The ICJ addressed Ukraine’s requests for provisional measures. The ICJ found that Ukraine had a plausible right not to be subjected to military operations by Russia based on the alleged prevention and punishment of genocide within its territory. The Court highlighted the absence of evidence substantiating Russia’s allegations of genocide and expressed doubts about the Genocide Convention authorizing unilateral use of force for such purposes.

The ICJ determined there was a plausible link between Ukraine’s asserted rights under the Genocide Convention and the main provisional relief it sought the suspension of Russia’s military operations. However, the Court found this link lacking for other forms of relief requested by Ukraine. The ICJ underscored the urgency of the situation, noting the real and imminent risk of irreparable prejudice to Ukraine’s rights, and ordered provisional measures directing Russia to suspend its military operations.

CHORZOW FACTORY CASE

Germany, as the plaintiff, argued that Poland’s expropriation of the Chorzów Factory violated established international legal norms safeguarding foreign property rights. Germany contended that Poland’s actions contravened bilateral treaties and customary international law principles.

Poland, as the defendant, contested the PCIJ’s jurisdiction, asserting that the dispute was essentially domestic and fell outside the scope of international legal oversight. Poland maintained that its expropriation of the Chorzów Factory was justified under sovereign authority and should be addressed solely through domestic legal channels.

In response, the PCIJ ruled that the dispute did indeed fall within its jurisdictional scope. The Court determined that the expropriation raised significant questions of international law, particularly concerning the treatment of foreign property and the obligations of states toward foreign nationals. Importantly, the PCIJ emphasized the principle that regardless of whether expropriation occurs during peace or conflict, the affected party is entitled to prompt, adequate, and effective compensation. By invoking prima facie jurisdiction ratione materiae, the PCIJ asserted its authority to adjudicate cases involving breaches of international legal obligations.

Furthermore, the PCIJ underscored that the rights of foreign nationals and the responsibilities of states toward them are subject to international law, irrespective of domestic legal frameworks. By establishing jurisdiction in the Chorzów Factory case, the PCIJ affirmed the justiciability of disputes involving the treatment of foreign property under international law.

Jurisdiction

In the 2017 case, the Court found that it had prima facie jurisdiction under the CERD but required further evidence regarding jurisdiction under the Terrorism Financing Convention. In the 2022 Genocide Allegations case, the ICJ, again, found that it had prima facie jurisdiction to order provisional measures, emphasizing the plausibility of Ukraine’s rights under the Genocide Convention not to be subjected to military operations under false allegations of genocide. The Court’s decision to grant provisional measures based on the interpretation of the Genocide Convention underscores its jurisdiction to intervene in urgent situations where there is a significant risk of irreparable harm, pending a full determination on the merits of the case. With regards to the Chorzow Factory case, the Permanent Court of International Justice  claimed jurisdiction under the category of prima facie jurisdiction ratione materiae, asserting its authority based on the subject matter of the dispute falling within the realm of international law

Legal Strategies for Ukraine’s Pursuit of Reparations from Russia via ICJ

In the first approach, according to New York Law Journal[22]  it is pertinent  that a case be launched at the ICJ which has already been launched in 2022. The important factor is that the ICJ establishes its jurisdiction to hear the case and therefore beginning the process of strategic litigation[23], source elaborates on the ICJ’s jurisdiction and Ukraine’s innovative legal strategy, specifically using the Genocide Convention to initiate proceedings against Russia following the 2022 invasion. Such an approach underlines the creative legal avenues Ukraine is exploring to establish jurisdiction at the ICJ, reinforcing the discussions on strategic litigation and evidence presentation in the context of securing reparations and holding Russia accountable

Ukraine’s pursuit of reparations from the Russian Federation for damages incurred during the conflict is underpinned by a legal framework that draws inspiration from the United Nations Compensation Commission model. This approach, detailed in “Putin’s Matryoshka: A War Reparations Facility for Rebuilding Ukraine,” suggests the establishment of a dedicated reparations facility aimed at managing and enforcing compensation from Russian assets, circumventing the need for direct Russian involvement. By adopting this model, Ukraine strategically avoids potential diplomatic and legal impediments, highlighting the efficacy of international legal and financial sanctions in compelling state compliance.[24]

The reparations facility is proposed as a mechanism to leverage international legal precedents and sanctions to ensure Ukraine can claim and secure reparations effectively. This model facilitates a direct targeting of Russian assets for the purpose of funding reparations, underscoring the potential of international legal frameworks to address state liability and compensation in international disputes. The initiative reflects Ukraine’s innovative use of international law to navigate the complexities of state accountability and reparations for unlawful acts, setting a significant precedent in the application of international legal norms.

Central to Ukraine’s strategy is the innovative employment of international law and financial sanctions to overcome traditional barriers to enforcing state accountability. The conceptualization of the reparations facility requires a meticulous examination of legal principles, including state responsibility and the enforcement of international judgments, creating a viable pathway for Ukraine to assert its claims without necessitating Russian cooperation.

The establishment of this facility marks a pivotal advancement in the application of international legal practices, embodying a proactive approach to uphold justice, accountability, and reparation principles. It serves not only Ukraine’s immediate goal of compensation but also enriches the discourse on international legal practices concerning state responsibility and reparations for unlawful acts. Ukraine’s approach illustrates a commitment to legal avenues for justice, reinforcing the role of legal institutions in maintaining international peace and security.[25]

In conclusion, Ukraine’s approach, inspired by the UNCC model and detailed in the Columbia Journal of Transnational Law, exemplifies a strategic and innovative use of international legal mechanisms to secure reparations. This initiative not only demonstrates the potential of legal and financial sanctions to compel state compliance but also highlights Ukraine’s adeptness in navigating the international legal landscape to mitigate conflict impacts. The reparations facility initiative is a testament to advancing state accountability, justice, and reparation principles within the international legal framework, setting a precedent for future international legal endeavors.

In the intricate landscape of international legal proceedings concerning reparations for mass human rights violations, the jurisprudence of the ICJ offers a compelling framework for states seeking redress. The analysis by Veronika Fikfak on the ICJ’s Reparations Judgment in the case of the Democratic Republic of the Congo v. Uganda provides invaluable insights into the court’s methodologies and the implications for countries like Ukraine in the aftermath of the 2022 invasion by the Russian Federation. This examination sheds light on the strategic use of the “global sum” approach in quantifying damages, a method that stands as a pragmatic solution for addressing the complexities of assigning monetary value to mass human rights infringements.[26]

The “global sum” method, as articulated by Fikfak, represents a judicial mechanism employed by the ICJ to determine compensatory reparations in scenarios where precise quantification of damages is encumbered by the enormity of the violations or the passage of time. This approach involves the court awarding a lump sum of compensation that is deemed to fall within an equitable range, reflecting the court’s best estimate of the damages incurred. It is a method invoked under exceptional circumstances, particularly when evidentiary challenges prevent a detailed accounting of each specific harm suffered. The ICJ’s adoption of this method underscores its recognition of the inherent difficulties in meticulously documenting the full scope of injuries and losses in the context of widespread conflict and human rights abuses.[27]

Fikfak’s critique highlights the ICJ’s flexible stance on evidentiary standards, a crucial aspect for Ukraine as it navigates its legal pursuit of reparations. The court’s openness to accepting a “global sum” acknowledges the practical realities of proving exact damages years after the occurrences, offering a pathway for states to advocate for reparations based on a comprehensive evaluation of available evidence, albeit with inherent limitations. This evidentiary flexibility underscores the importance of compiling and presenting credible documentation from authoritative international entities, as the ICJ has shown a propensity to rely on reports and documents from United Nations organs in its assessment of damages.[28]

For Ukraine, the application of the “global sum” approach signifies an opportunity to frame its reparations claims within a context that balances the need for concrete evidence with the recognition of the challenges inherent in quantifying the totality of damages resulting from the Russian Federation’s actions. It suggests that success in securing reparations may depend on the ability to present a compelling narrative of loss and damage, supported by the most authoritative evidence available. The emphasis on credible, internationally recognized documentation is paramount, as the ICJ’s decision-making process in awarding reparations hinges on the reliability and persuasiveness of the evidence presented.[29]

Moreover, the nuanced application of proof standards and causal nexus requirements by the ICJ, as discussed by Vernonica Fikfak, delineates the intricate legal terrain that Ukraine must navigate. The court’s approach, differentiating between various contexts of the conflict (such as actions within occupied territories versus support for non-state actors), highlights the layered and complex nature of establishing liability and causation for human rights violations. This differentiation emphasizes the necessity for Ukraine to meticulously document and argue the specific circumstances and impacts of the Russian Federation’s actions, in alignment with the ICJ’s jurisprudential standards and precedents.

Fikfak’s analysis serves as a crucial guide for Ukraine in crafting a legal strategy that is both informed by the ICJ’s prior rulings and attuned to the evidentiary and methodological challenges of pursuing reparations for mass human rights violations. It underscores the strategic importance of leveraging the “global sum[30]” approach as a means to overcome the evidentiary hurdles associated with documenting widespread abuses and the resultant damages. By aligning its legal arguments with the ICJ’s established practices and demonstrating the extensive nature of the harm through credible, internationally sanctioned evidence, Ukraine can enhance the legitimacy and persuasiveness of its claims for reparations on the international stage.

In essence, the “global sum[31]” methodology, as elucidated through Fikfak’s critical analysis, offers Ukraine a viable legal avenue for addressing the multifaceted challenges of seeking reparations for the extensive human rights violations experienced. It presents a framework within which Ukraine can articulate its claims for redress, navigating the evidentiary complexities and leveraging international legal norms to advocate for equitable compensation. Through a meticulous application of this approach, informed by a deep understanding of the ICJ’s jurisprudence and evidentiary preferences, Ukraine can strengthen its case for reparations, contributing to the broader discourse on accountability and redress in international law.

In the Vanderbilt Journal of Transnational Law, the Michael Ramsden elaborates on strategic litigation against Russia by Ukraine, focusing on the utilization of the ICJ and specific international conventions to enhance Ukraine’s legal standing and support its claims of expropriation and damages. This approach, deeply rooted in international law, underscores Ukraine’s commitment to seeking reparations and holding Russia accountable through meticulously crafted legal strategies.[32]

The document suggests a methodical approach to evidence presentation and the strategic use of litigation, emphasizing the importance of leveraging international legal mechanisms to substantiate Ukraine’s claims. For instance, the author discusses the potential of utilizing frozen Russian assets as a novel mechanism for securing reparations. This strategy, while innovative, is acknowledged to carry complex legal and international ramifications, requiring a thorough understanding of international law and sanctions regimes.[33]

Applying these strategies to the research question at hand, it becomes clear that Ukraine’s efforts to navigate the international legal landscape involve a combination of strategic litigation, evidence collection, and the innovative use of legal precedents. The document advocates for a comprehensive approach, integrating these elements to form a robust legal strategy aimed at achieving reparations and accountability.

To enhance the depth and clarity of the legal argument based on the insights from the two law articles, a more detailed draft incorporating specific citations and elaborations can be provided as follows:

“In the quest for reparations from the Russian Federation, Ukraine’s legal strategy can be significantly informed by the jurisprudential principles established in the International Court of Justice’s landmark decision in the Chorzów Factory case. As articulated in the Journal of International Economic Law[34], the Chorzów Factory ruling underscored the necessity of ‘reparation in full, so far as possible,’ setting a precedent for the comprehensive redress of unlawful acts[35]. This precedent is pivotal for Ukraine, advocating for restitution, compensation, and satisfaction to rectify the multifaceted damages inflicted by Russia’s actions.

Drawing on the analysis presented in the Nordic Journal of International Law[36], the Chorzów Factory case’s approach to reparations serves as a critical roadmap for Ukraine, emphasizing the importance of quantifying both tangible and intangible losses, and securing compensation that covers the full extent of the harm suffered[37]. The scholarly discourse further elucidates the potential avenues for the execution of judgments against sovereign states, highlighting the challenges posed by doctrines of state immunity, yet underscoring the evolving legal landscape that could facilitate the seizure of state-owned assets abroad as a means of enforcing reparations.[38]

Moreover, the articles advocate for leveraging the synergies between diplomatic efforts and legal actions within international forums, thereby enhancing the enforceability of international legal judgments. In this vein, Ukraine’s strategy could encompass seeking interim measures to safeguard assets for potential reparations, alongside building a broad coalition of international support to pressure for voluntary compliance with the court’s decisions.

Therefore, informed by the foundational principles established by the ICJ and the scholarly insights from the aforementioned articles, Ukraine’s path to securing reparations from Russia involves a multifaceted approach. This encompasses meticulous documentation of damages, strategic legal advocacy within international courts, and leveraging international diplomacy to reinforce the legal arguments for the execution of a judgment that fully addresses the spectrum of harm incurred.”

CHAPTER II: THE EUROPEAN COURT OF HUMAN RIGHTS

Introduction

This chapter begins by outlining the fundamental role of the ECtHR in the legal landscape of Europe, given the importance of the Court in advancing human rights jurisprudence. The European Convention on Human Rights, which was founded in accordance with it, is a crucial body for resolving disputes pertaining to human rights and represents a pledge to protect fundamental liberties and rights for all members of the Council of Europe. The purpose of this introduction is to place the ECHR in the larger context of international human rights law, highlighting the ECHR’s distinctive role in interpreting and upholding the Convention’s provisions. The Court’s jurisdiction and authority stem from its capacity to hear applications from people, states, and organizations that claim their rights have been violated in violation of the Convention. This mechanism establishes a precedent in international law that stresses the significance of individual rights while balancing state sovereignty, thereby underscoring the principle of direct access to justice for individuals.

The methodological framework of the ECHR for inter-state litigation is structured to address disputes between states over alleged violations of the European Convention on Human Rights. Unlike individual applications, inter-state cases bypass the admissibility criterion requiring the exhaustion of domestic remedies, reflecting the nature of disputes that concern broader issues of state compliance with human rights obligations.

In this context, the admissibility criteria focus on the formal aspects of the application, such as the dispute’s relevance to the Convention rights and the standing of the states involved. The process is designed to ensure that only disputes of significant legal and public interest proceed to judgment, emphasizing the ECHR’s role in maintaining the collective enforcement of human rights standards among Council of Europe members.

For Ukraine, bringing a successful claim against Russia involves articulating a clear basis for alleging violations of the Convention rights that have implications beyond individual grievances. This includes demonstrating the systemic nature of the alleged violations and their impact on the general obligation of states to uphold the principles enshrined in the Convention. The strategic utilization of inter-state applications by Ukraine aims not only at obtaining judicial remedies but also at reinforcing the importance of adherence to human rights norms within the international community.

BRIEF BACKGROUND

Loizidou v. Turkey 1996

In the Loizidou v. Turkey[39] case, the ECHR established jurisdiction based on Turkey’s responsibility for violations occurring within Northern Cyprus, under its control since 1974. The Court held that by exercising effective control over the area, Turkey was subject to the Convention’s obligations. The judgment focused on Article 1 of Protocol No. 1[40]  and Article 8[41]. The Court concluded that Turkey’s denial of access to the applicant’s property constituted a continuous violation of these rights. It awarded compensation for non-pecuniary damage, marking a significant application of the Convention’s extraterritorial jurisdiction and emphasizing state accountability for human rights violations within territories under their control.

Cyprus v. Turkey

In the landmark case Cyprus v. Turkey[42], ECHR dealt with extensive human rights violations following Turkey’s 1974 invasion of Cyprus. Jurisdiction was established under the European Convention on Human Rights, specifically invoking Turkey’s responsibility due to its effective control over Northern Cyprus, as outlined in Article 1 of the Convention. This principle of effective control became a crucial basis for assessing jurisdiction over extraterritorial actions. The Court examined allegations of violations across a broad spectrum, including the right to property under Protocol No. 1, Article 1, highlighting the ongoing impact of Turkey’s military presence on the rights of Greek Cypriots. This case underscored the ECHR’s commitment to upholding human rights standards, emphasizing state accountability for actions within territories under their control, and setting a precedent for the application of the Convention in similar contexts.

Azerbaijan v. Armenia

The Azerbaijan v. Armenia case before the ECHR centers on allegations of extensive property rights violations amid the ongoing conflict over Nagorno-Karabakh. Initiated by Azerbaijan against Armenia, the case aims to address and seek reparations for the displacement and loss of property experienced by thousands due to the conflict. It underscores the broader implications of war on civilian life and property, highlighting the crucial role of international legal mechanisms in resolving such human rights issues.[43]

 Legal Strategy for Ukraine’s Pursuit of Reparations from Russia via ECtHR

To begin with, in order for Ukraine or Ukrainian individuals to bring cases to the ECtHR, jurisdiction should be established by the Court. An advantageous method would be to establish jurisdiction on the basis of effective control. To establish jurisdiction through effective control for reparations via the ECHR, Ukraine can draw from the principles illustrated in the Loizidou v. Turkey and Cyprus v. Turkey cases, alongside the insights provided by Mustafayev.[44] These cases emphasize that jurisdiction hinges on a state’s effective control over a territory, irrespective of formal recognition. This precedent underscores the need for Ukraine to demonstrate Russia’s control over the contested regions to hold it accountable for human rights violations under the European Convention on Human Rights[45].

Ukraine can meticulously align its arguments with the European Convention on Human Rights, particularly focusing on Articles 2, 3, 8, and Article 1 of Protocol No. 1.[46] These provisions cover the spectrum of violations likely encountered in the Ukraine-Russia conflict, including loss of life, inhumane treatment, disruptions to family life, and expropriation of property. The precedents set by the ECHR in Loizidou v. Turkey and Cyprus v. Turkey offer a legal roadmap, demonstrating that effective control by a state over a territory imposes obligations to uphold Convention rights, thereby providing Ukraine a basis to claim Russia’s accountability for breaches within occupied areas. This approach not only underscores the legal mechanisms available for addressing human rights violations but also emphasizes the broader implications for international law and state conduct during conflicts.

Firstly, Dr. Felix E. Torres, in “On Deserving Victims and the Undeserving Poor,” highlights the significance of addressing socio-economic harms in transitional justice, suggesting that the ECHR can play a crucial role in post-conflict recovery by focusing on distributive justice​​. For Ukraine, this perspective underscores the need to articulate the direct negative impacts of Russian aggression, including the expropriation of assets by Russia such as the Naftogaz Company and Everest Real Estate, destruction of infrastructure, and the resulting socio-economic destabilization. By doing so, Ukraine can make a an argument that these actions constitute violations of the European Convention on Human Rights, particularly concerning the right to property[47] and the right to a standard of living adequate for health and well-being[48]  relying also on the precedent established in the Loizidou v Turkey[49] case before the Court[50].

Ivan V. Yakoviyk and Anna Yu. Turenko’s work on “Confiscation of Russian Assets for the Restoration of Ukraine” dives into the legal intricacies and challenges associated with asset confiscation as a mechanism for securing reparations. Their analysis, although not solely focused on the ECtHR provides a compelling blueprint for Ukraine in the context of seeking justice and reparations for the aggression and violations experienced[51].

The significance of their analysis for Ukraine’s case through the ECtHR lies in the detailed exploration of international legal principles that could support the argument for asset confiscation. By meticulously documenting the violations and connecting them to the broader framework of international law and human rights protections, Ukraine can make a strong case for the necessity of reparations. This approach aligns with the evolving practice of the ECHR in addressing systemic issues and ensuring compliance with the European Convention on Human Rights.

Yakoviyk and Turenko’s discussion on the challenges of implementing asset confiscation underscores the need for a strategic legal approach that navigates the complexities of international law. Ukraine can leverage this insight by presenting a well-founded argument to the ECHR that emphasizes the direct link between confiscated assets and the restoration of rights and properties violated by the aggression. This could involve a detailed presentation of the economic impact of the conflict, the specific assets in question, and how their confiscation aligns with the principles of justice and restoration under international law[52].

Furthermore, their analysis highlights the potential for utilizing international legal mechanisms and precedents as a basis for arguing the case before the ECHR. By drawing on similar cases and legal doctrines, Ukraine can strengthen its position, advocating for reparations that go beyond mere compensation to include measures that address the root causes of the violations and prevent future occurrences[53].

Veronika Fikfak’s analysis in “Changing State Behaviour: Damages before the European Court of Human Rights” highlights the intricate relationship between the imposition of damages by the ECtHR and state compliance with its judgments. Fikfak argues that despite various reforms aimed at enhancing compliance, non-compliance remains a significant challenge within the Council of Europe. She explores the potential of aggravated or punitive damages as a mechanism to encourage state compliance and prevent future violations, offering an innovative perspective on the role of financial penalties in international human rights law.[54]

Applying Fikfak’s insights to the case of Ukraine, it’s evident that the ECtHR faces substantial challenges in ensuring compliance with its judgments, particularly in complex interstate disputes involving significant human rights violations. Ukraine, seeking reparations for alleged violations by Russia, could find Fikfak’s analysis particularly relevant. The imposition of punitive damages could serve as a deterrent against future violations by Russia and encourage compliance with the Court’s judgments. However, Fikfak also acknowledges the obstacles to the introduction of such damages, including the Court’s current jurisprudence and the voluntary nature of compliance within the ECtHR system[55].

Fikfak’s argument suggests that a strategic approach focusing on the potential for punitive damages under Article 41 European Convention on Human Rights, could highlight the financial and reputational costs of non-compliance, potentially incentivizing Russia to adhere to the Court’s rulings. However, this strategy also requires careful consideration of the ECtHR’s limitations and the broader context of international law and state sovereignty[56].

Based on Alice Donald’s analysis, the ECtHR has demonstrated an increased willingness to mandate specific, actionable remedies for states found in violation of human rights, moving beyond mere financial compensation. This progressive approach includes directives for legal and policy reforms tailored to rectify systemic issues underlying human rights abuses. In the Ukraine-Russia context, such prescriptive remedies could exert considerable pressure on Russia to align with the ECHR’s rulings. The public visibility of any non-compliance, particularly in high-profile cases, may lead to international scrutiny, potentially impacting Russia’s global standing and diplomatic relations. This strategy reflects a broader ambition of the ECHR to utilize international legal frameworks and the court of public opinion to promote adherence to human rights standards, emphasizing the court’s role in fostering state accountability and compliance, even in the face of enforcement challenges. This nuanced application of remedies by the ECHR underscores the importance of legal mechanisms in enforcing human rights and the potential of international judicial decisions to influence state behavior through both legal mandates and moral suasion[57].

The Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine research report outlines the international legal frameworks and possibilities regarding the confiscation of Russian state assets to support Ukraine’s reconstruction. This includes examining the potential for bypassing traditional defenses of state immunity in the context of egregious violations of international law, such as those committed by Russia against Ukraine. It is important to note that this report is not specifically and entirely legal in nature, however it contains relevant information that could influence a judicial solution and it is worth exploring to diversify the avenues for Ukraine and Ukrainian legal persons to seek reparations by answering the research question[58].

Legal Avenues and Justifications for Asset Confiscation

State Immunity and Its Limitations: Traditionally, state immunity protects a state’s assets from judicial seizure in foreign jurisdictions. However, the evolving nature of international law and state practices suggest pathways to bypass such immunity in cases involving serious international wrongdoings. For example, the document discusses the principle that state immunity does not bar executive or legislative acts from confiscating assets, citing instances where legislative bodies have taken actions to freeze or seize assets as a response to sanctions without facing significant legal challenges.[59]

Avoidance, Justification, Evolution, and Exception: Four key avenues are identified for overcoming state immunity barriers according to the report:

Avoidance: involves non-judicial processes for asset confiscation, leveraging executive and legislative measures that do not directly contravene state immunity principles.

Justification: for breaching immunity can be supported by invoking countermeasures in response to internationally wrongful acts, offering a legal framework for asset seizure.

Evolution: points to the potential for international norms to adapt, allowing for new exceptions to state immunity, especially in cases of severe breaches of international law.

Exception: hinges on existing legal frameworks that already provide for exceptions to immunity, particularly when an international or supranational entity mandates asset seizure based on prior judgements.

Legal Precedents and International Recognition: The research reinforces the argument by citing legal precedents such as the Jurisdictional immunities of the State[60], Chorzow Factory[61] and UNSC Resolution 687[62] where international courts and bodies have recognized the need for reparations in instances of unlawful acts. Such precedents provide a legal basis for arguing that Russia’s actions could similarly trigger obligations for reparations, potentially through the confiscation of assets[63].

The report also suggests  potential frameworks that would pose as reasonable to approach the research question of the thesis:

Framework Under Private International Law

The document delves into the enforcement of ECtHR judgments domestically, referencing the legal theory developed by Sir Gerald Fitzmaurice[64] during the Monetary Gold[65] proceedings. It advocates for domestic courts’ authority to enforce international court judgments against Russian state assets. This perspective aligns with the broader principle that the judgments of international courts should command respect and execution by all members of the international community, aiming to uphold global legal order and accountability​​.

Recognition and Enforcement of International Judgments

The discussion expands on the comparability of international judgments to foreign judgments, using precedents from Greece and South Africa to demonstrate instances where international judgments have been domestically enforced. This section underlines the potential for utilizing established international legal principles and the domestic legal framework to enforce ECtHR judgments against Russian assets, highlighting a proactive approach to achieving justice and reparation for Ukraine​​.

Sovereign Immunity and Enforcement

The document tackles the intricate issue of sovereign immunity, especially in the context of enforcing international judgments. By examining cases like Corfu Channel[66] and Socobel v Greece[67], it articulates how international and domestic legal systems have navigated the immunity barrier to enforce judgments against state assets. This examination provides a foundational argument for overcoming Russian state immunity in the enforcement of ECtHR judgments, suggesting a nuanced legal strategy to support Ukraine’s claims​​.[68]

Application to ECtHR Judgments

The enforcement of ECtHR judgments against Russian state assets could benefit from the precedents set in the Corfu Channel[69] and Socobel[70] cases. The report suggests these examples underscore the possibility of bypassing traditional state immunity to enforce international court judgments domestically, reinforcing the argument for leveraging ECtHR judgments against Russian assets for Ukraine’s reconstruction. The document posits that the adherence to international legal standards and the collective responsibility of the international community are pivotal in ensuring the execution of such judgments​​.[71]

International Treaty for Compensation Commission

The proposal for an international treaty establishing a compensation mechanism draws on historical precedents and the existing international legal framework to suggest a structured approach to reparations. By comparing with the UN Compensation Commission and post-World War II agreements, the document outlines a potential legal and organizational framework for pooling, managing, and distributing confiscated Russian assets for Ukraine’s benefit. This approach aims at circumventing the complexities of state immunity while adhering to the principles of international cooperation and legal accountability​​.[72]

Detailed Insights and Proposals

The detailed analysis and proposals presented in the document offer a comprehensive legal strategy for the confiscation and reallocation of Russian state assets to support Ukraine’s reconstruction. By integrating international law principles, historical precedents, and practical mechanisms for enforcement, the document provides a robust foundation for pursuing reparations from Russia. It underscores the necessity of a coordinated international response, grounded in a solid legal framework and a commitment to upholding international justice and accountability.[73]

Windfall Contributions

The European Commission’s initiative for utilizing windfall contributions from the frozen assets of the Russian Central Bank  serves as an approach to finance Ukraine’s recovery without altering asset ownership, thereby avoiding potential violations of international law regarding state immunity and non-intervention. Belgium, acting on this proposal, seized profits from RCB’s frozen reserves, earmarking a significant portion of the collected taxes to assist Ukraine. This method, endorsed by several EU leaders, leverages EU restrictive measures that immobilize financial assets held by entities like Central Securities Depositories, generating windfall profits through the investment of these assets. Euroclear, a Brussels-based clearinghouse, exemplifies this by holding almost €200 billion in Russian-sanctioned assets, which have generated considerable interest and management fees. The Commission’s plan aims to consolidate these interest gains and direct them to Kyiv, representing a legal and financial maneuver designed to support Ukraine while maintaining the technical ownership of the assets with Russia​​.[74]

Use of Escrow Accounts

A proposal from former officials of the Biden administration suggests placing immobilized Russian state assets into an escrow account, enabling Ukraine to use these assets as collateral for issuing new bonds. This approach would utilize RCB assets as security for future Ukrainian loans, effectively leveraging the immobilized assets for Ukraine’s benefit without altering their ownership status. The IMF’s loan package to Ukraine, which represents a significant portion of the country’s GDP, illustrates the potential of such secured loans to aid Ukraine’s reconstruction efforts. The proposal aligns with international law as a countermeasure by being temporary and reversible, offering a legally sound mechanism for utilizing Russian assets to support Ukraine without permanent confiscation[75]​​.

Identifying Russia as Financing Terrorism

Exploring the possibility of classifying Russia’s actions as financing terrorism under the Warsaw Convention presents a legal pathway for confiscating Russian assets. Despite the participation of several countries in the Convention, key asset holders like Luxembourg, France, Germany, and the UK have not ratified it, complicating its application. The Convention obligates parties to seize assets linked to terrorism financing, potentially allowing for the confiscation of Russian assets supporting terrorist activities. However, the application of this Convention to state assets, especially in relation to state immunity and the specific requirements for linking assets to terrorism financing, introduces significant legal challenges. The distinction between individuals and states in the Convention’s text and domestic legal barriers concerning state immunity may hinder the effective application of this approach to Russian state assets.[76]

Conclusion

The chapter comprehensively outlines the ECtHR instrumental role within the European legal framework, specifically its critical contribution to advancing human rights jurisprudence. It articulates the Court’s authority to adjudicate on applications from individuals, states, and organizations, alleging violations of the European Convention on Human Rights, and underscores the ECtHR’s unique mechanism for facilitating direct access to justice. Through the examination of landmark cases such as Loizidou v. Turkey[77] and Cyprus v. Turkey[78], the chapter delineates the ECtHR’s jurisdictional reach, particularly its application of the “effective control” principle in addressing territorial disputes and human rights violations.

Furthermore, it highlights Ukraine’s strategic legal positioning in its conflict with Russia, drawing parallels with established precedents to underscore the potential for Ukraine to seek reparations for violations under the Convention. The analysis extends to the exploration of specific, actionable remedies that the ECtHR can prescribe, beyond financial compensation, to enforce compliance and rectify systemic issues underlying human rights abuses. This includes the innovative suggestion of utilizing punitive damages as a mechanism to deter future violations and ensure adherence to human rights standards[79].

In addition the detailed exploration of legal avenues and justifications for the confiscation of Russian state assets to support Ukraine’s reconstruction, as delineated in the report, it shows a multifaceted approach grounded in international law principles, historical precedents, and legal frameworks. By addressing the limitations of state immunity and highlighting mechanisms like windfall contributions, the use of escrow accounts, and the potential application of conventions against terrorism financing, the document proposes pragmatic yet legally sound strategies to navigate the complexities of asset confiscation. These strategies are not only aimed at ensuring accountability for Russia’s actions but also at fostering a coordinated international effort to aid Ukraine’s recovery and uphold the principles of justice and international cooperation.[80]

In conclusion, the chapter not only emphasizes the ECtHR’s pivotal role in upholding human rights within Europe but also provides a nuanced legal roadmap for Ukraine in its pursuit of justice and reparations from Russia. It reflects a profound understanding of the complexities involved in navigating international law to address and redress human rights violations, showcasing the ECtHR’s evolving approach to ensuring state compliance and fostering a culture of respect for human rights.

Individual Applications

It is possible for Ukrainian Legal persons to bring cases before the ECtHR seeking damages and reparations from Russia for expropriated property. However, the admissibility criteria is slightly different compared to inter-state applications. The criteria for legal persons to bring a case to ECtHR that needs to be met is:

– Victim Status

– Domestic Remedies – Applicants must have exhausted all available domestic remedies

– Six-Month Rule – Applications must be made within six months of the final domestic decision

– Not Substantially the Same as a Matter Already Examined – The Court will not consider cases that are substantially the same as a matter that has already been examined by the Court.

– Compatibility with the Provisions of the Convention – The allegations made in the application must fall within the ambit of the rights and freedoms protected by the Convention and its Protocols

– Absence of Anonymity – Applications cannot be made anonymously

– Abuse of the Right of Application – The application must not be considered inadmissible on the grounds of being manifestly ill-founded, or an abuse of the right of individual application.[81][82]

Ukrainian legal persons who seek to bring a claim against the Russian Federation before the ECtHR for the expropriation of assets following the 2022 invasion, a comprehensive legal argument can be constructed by leveraging the European Convention on Human Rights, specifically Article 1 of Protocol No. 1[83] and Article 6[84], and drawing on pertinent case law such as the Yukos v. Russia[85] and other relevant judgments that elucidate the application of these provisions.

The main focus of the legal defense for Ukrainian legal entities is the claimed infringement upon their right to the enjoyment of their property, which is protected by Protocol No. 1’s Article 1.1 of the Convention[86] in addition to a possible infringement on Article 6’s guarantee of a fair trial. These fundamental rights are directly violated by the Russian Federation’s illegal expropriation of assets without just compensation or due process. This assertion is supported by citation to the Yukos v. Russia the ECHR determined that Russia had violated Article 1 of Protocol No. 1. by seizing the business’s assets without providing just compensation or following the proper procedures.

Breach of Protocol No. 1’s Article 1[87]: The legal entities in Ukraine would contend that the Russian Federation’s actions infringed upon their right to enjoy their property in peace. Adhering to the guidelines set forth in the Yukos v. In the Russia case, it could be argued that the expropriation, or any kind of control exercised over their assets that amounted to de facto expropriation, was carried out without a justification based on the public interest, as required by law, or in conjunction with conditions that were necessary to strike a fair balance between the need to protect people’s fundamental rights and the general interest. The applicants would contend that the jurisprudential violation is made worse by the fact that they were not compensated for the expropriation or taking of their assets.

Application of Article 6[88]: Ensuring legal redress and accountability requires the right to a fair trial, which is guaranteed by Article 6 of the Convention. Legal entities from Ukraine would argue that this right has been violated because they are unable to successfully contest the expropriation in the Russian legal system. “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” is a principle that supports this claim. “In Yukos v. Russia, the ECHR highlighted the significance of due process and access to justice in Russia. This includes a company’s right to challenge the legality of the expropriation and the determination of any associated penalties. The Ukrainian legal entities can emphasize the violation of their right to a fair trial, highlighting the absence of an impartial tribunal and the unjustifiable delay or ineffectiveness of the proceedings they faced, by proving that comparable legal and procedural barriers prevented them from seeking redress.

Fundamentals and Use in the Yukos v. Case of Russia[89], the Russian Federation’s expropriation of the assets of Yukos Oil Company was scrutinized by the European Court of Human Rights. The case was marked by notable irregularities in the procedure, inequitable compensation, and the imposition of a retroactive penalty that ultimately resulted in the company’s bankruptcy. The Court determined that this was against Protocol No. 1’s Article 1[90].  As a result of the lack of a valid public interest defense, the arbitrary nature of the punishment, and the inability to establish a “fair balance” between the needs of the community as a whole and the need to uphold each person’s fundamental rights. The Yukos case establishes a crucial precedent for Ukrainian legal entities to challenge the illegitimate seizure of property. The Court’s emphasis on the following issues should be noted: the necessity of a legal basis and procedure for the expropriation of assets; the significance of compensation as a necessary component of the protection of property rights; and the requirement that any actions taken against companies be rational and not excessive.

Drawing a Parallel, Ukrainian Legal Persons’ Case, by proving that the expropriation of their assets was procedurally unfair, devoid of a legitimate public interest, and unaccompanied by any kind of just compensation, Ukrainian legal persons can directly parallel the violations of Yukos in a potential case against Russia before the ECtHR.[91]

Important Takeaways from Agrotexim and Others v. In the case of inheritance property that the Greek government had taken without paying compensation to the rightful heirs, the ECHR addressed the question of property rights in Greece. The Court determined that Greece had violated Protocol No. 1’s Article 1[92]. Stressing the need to uphold property rights and that any interference must be justified by the law, serve a legitimate public interest, and be subject to certain restrictions. The case emphasizes the significance of: Ensuring legal procedures that uphold ownership rights; The state’s duty to make amends for property taken; and Adhering to the legality principle when taking property. The principles emphasized in the case of Agrotexim and Others v. are applicable to the Ukrainian Legal Persons’ case. Greece is a crucial example for the situation of legal persons in Ukraine. They can contend that, similar to the Greek government’s actions in Agrotexim, the Russian Federation’s seizure of their assets lacked a justifiable public purpose, was not authorized by law in a way that was consistent with the fundamental rules of international law, and was carried out without providing fair compensation or satisfaction. This analogy strengthens the case against the willful taking of property and emphasizes the need for legal procedures that provide protection from such violations.[93]

Although Agrotexim was mainly concerned with property rights, there are important ramifications for Article 6’s[94] right to a fair trial. Legal entities in Ukraine may contend that, like the applicants in Agrotexim, they were deprived of a legitimate chance to contest the confiscation of their property, thereby violating their entitlement to a just and impartial legal procedure. The Yukos case raised concerns about the impartiality and effectiveness of the legal system, and these arguments would be strengthened by providing examples of cases where access to justice was denied, proceedings were excessively drawn out, or the parties involved were biased. By applying the ideas from Agrotexim and Others v. Legal entities in Ukraine may add Greece into their ECHR claim to give their complaints a more comprehensive background and highlight the Court’s ongoing defense of property rights against arbitrary state intervention. The applicants can bolster their argument regarding the breach of Article 1 of Protocol No. 1[95] by emphasizing the parallels between their case and Agrotexim, such as the absence of payment and the disregard for legal procedures. Moreover, the Ukrainian legal entities can emphasize the connection between property rights and the right to a fair trial by referencing Article 6[96] implications from both Agrotexim and Yukos, supporting the claim that the denial of one frequently implicates the other.[97][98]

CHAPTER 3: INTERNATIONAL ARBITRATION

Introduction

In this chapter, we embark on a focused examination of international arbitration’s pivotal role in resolving disputes related to international investment, specifically addressing the enforcement of arbitral awards against state assets. This discourse is anchored in the analysis of the legal frameworks that underpin arbitration, prominently featuring the New York Convention[99], which significantly influences the enforcement process across jurisdictions. A critical aspect of our exploration includes the identification of challenges and strategies pertinent to the enforcement against sovereign states, drawing on the illustrative case study of Crystallex v. Venezuela[100]. This case serves as a cornerstone, highlighting the nuanced interplay between investor rights and state sovereignty, and sets the stage for a broader discussion on the effectiveness of arbitration as a dispute resolution mechanism.

The NY Convention  serves as an important document in  international arbitration, including investment arbitration, by providing a legal framework for the recognition and enforcement of arbitral awards across borders. In the context of investment arbitration, which often involves disputes between foreign investors and sovereign states or state entities. According to the principles articulated in the treatise on international arbitration by Professor Gary Born, the Convention underpins the enforceability of investment arbitration awards, ensuring that such awards are recognized and enforced in over 160 contracting states. This wide acceptance is important for the predictability and security of the international investment landscape, providing investors with the assurance that their rights and remedies, as determined by arbitral tribunals, will be respected and implemented across various jurisdictions. The Convention’s limited and precise grounds for refusing the recognition or enforcement of an arbitration award—such as procedural irregularities, issues with the arbitration agreement, matters beyond the scope of arbitration, and violations of public policy—serve to reinforce the finality and effectiveness of investment arbitration awards. This aspect is particularly important in maintaining the balance between respecting the sovereignty of states and protecting the rights of investors in the international legal order. Furthermore, the interaction between the NY Convention and  BITs, as well as other international investment agreements, highlights the integrated nature of modern international investment law. Many BITs include arbitration as a mechanism for resolving disputes, and the New York Convention ensures that awards resulting from such arbitration are binding.

Moreover, the chapter extends into the domain of BITs, specifically through the lens of the arbitration cases emanating from the 1998 Russia-Ukraine BIT[101]. This analysis aims to unravel how BITs and pivotal arbitration cases under these treaties shape the landscape of international arbitration, influencing both the enforcement of awards and the broader implications for international investment law. Through this comprehensive examination, the chapter endeavors to provide a cohesive understanding of the current legal paradigms, challenges, and strategic considerations that define the enforcement of arbitral awards against state assets, thereby offering a nuanced perspective on the evolving dynamics of international arbitration.

Legal Framework for Enforcement of Arbitral Awards

The relevant legal framework for enforcement of Arbitral Awards will be based on the treaties which both countries are party to, including having them ratified. The relevant treaties are the BIT 1998 between Russia and Ukraine, and the New York Convention and a brief aspect of the ECT. The EXIT treaty has not been ratified by the Russian Federation therefore has limitations as to the possibility of an enforcement of an award on the basis of those specific treaties.

The BIT[102] between Russia and Ukraine establishes a legal framework for the protection of investments, including provisions for the resolution of disputes through arbitration. It outlines conditions under which investments cannot be expropriated except for public purposes, in a non-discriminatory manner, and with prompt, adequate, and effective compensation. The treaty emphasizes fair and equitable treatment of investments and provides mechanisms for investors to seek remedies through international arbitration, thereby offering a layer of security and predictability for cross-border investments between the two countries. The BIT explicitly states that investments shall not be subjected to expropriation, nationalization, or equivalent measures unless such actions are taken for a public purpose, on a non-discriminatory basis, and under due process of law. Moreover, it mandates that these actions must be accompanied by prompt, adequate, and effective compensation.

The New York Convention[103] outlines criteria for the enforcement of foreign arbitral awards to ensure a uniform and effective approach across contracting states. It requires awards to be recognized and enforced unless specific exceptions apply. These exceptions include instances where a party to the arbitration agreement was under some incapacity, the agreement is not valid under the law to which the parties have subjected it, or the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or the arbitration proceedings, or was otherwise unable to present their case. Additionally, enforcement can be refused if the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions beyond the scope of the submission to arbitration. Violations of public policy also constitute grounds for refusal, ensuring that the enforcement of foreign arbitral awards does not contravene the fundamental principles of the forum state’s legal system.

Furthermore, we will also refer to the Compliance with Investment Treaty Arbitration Awards 2022 report which provides a comprehensive analysis of the global compliance rate of countries with obligations to pay arbitration awards. It specifically identifies which states are notably non-compliant in fulfilling these international law obligations, focusing on the top 20 delinquent countries. This analysis is crucial as it highlights the challenges in enforcing arbitration awards, especially in cases involving significant economic sectors and how these challenges affect international investment relations. The report’s findings on compliance rates between ICSID and non-ICSID awards further contribute to understanding the effectiveness of these arbitration mechanisms in resolving international disputes[104].

Despite Russia not ratifying the ECT and formally terminating its provisional application in 2009, its relevance to investment disputes involving Russia, such as those arising under the 1998 Russia-Ukraine BIT, remains significant. This is especially pertinent in the context of Russia’s aggression against Ukraine and the annexation of Crimea. Ukrainian investors have successfully utilized the 1998 Russia-Ukraine BIT to seek compensation for losses after Russia’s annexation of Crimea. These cases suggest that investment treaties continue to apply during armed conflict and can be a basis for claims even when one party has not ratified a treaty like the ECT [105].

The continuity of investment treaties during armed conflicts is supported by modern international law, which tends to presume the continuation of treaties rather than their automatic termination due to war. This perspective is rooted in the notion that investment treaties aim to provide stable protection to foreign investments irrespective of political and diplomatic tensions. Investment treaties often include provisions that specifically address issues arising in contexts of armed conflict, indicating the intention of state parties for these treaties to remain applicable under such circumstances[106] .

Furthermore, recent arbitration cases against Russia, including those concerning the annexation of Crimea and the ongoing conflict in Ukraine, demonstrate the practical application of these principles. For example, in cases such as Oschadbank v. Russian Federation[107] and Naftogaz v. Russian Federation[108], tribunals have affirmed that investment treaties can apply to actions taken by a state on territory it controls, even if such control is contested or not formally recognized internationally. These decisions reflect a broader understanding that the effective control of territory, rather than formal sovereignty or recognition, can be sufficient for the application of investment treaty obligations[109] .

Both the New York Convention[110] , ECT and the BIT[111] provide a legal basis for the arbitration of disputes arising from investments and facilitate the enforcement of arbitral awards. Specifically, they ensure that awards are recognized and enforceable in each other’s jurisdictions, promoting a stable environment for investors. These treaties underscore the commitment of Russia and Ukraine to uphold international arbitration norms and offer mechanisms for resolving investment disputes, crucial for protecting investments and fostering cross-border economic cooperation.

Legal Challenges with regards to Awards Enforcement and Solution

In reassessing the issues of enforcing arbitration awards between states, the challenges pivot around sovereign immunity, which complicates the seizure of state assets by covering them in legal protection. The intricacy of discerning commercial assets, subject to seizure, from those shielded by immunity is a nuanced jurisdictional matter. Furthermore, locating and cataloguing a state’s sizeable assets within a jurisdiction presents its own set of hurdles, especially when assets are intentionally obscured[112]. Active resistance from the state subjected to the award magnifies these challenges, as it may deploy legal defenses to delay or invalidate enforcement efforts.[113]

Significantly, four Ukrainian-initiated arbitration cases against Russia have concluded, favoring Ukraine, with Dutch and Swiss courts validating enforceability for two. These cases, arising from asset expropriation post-Crimea annexation, underscore the ongoing legal fray in international arbitration forums. Additionally, unresolved cases, including the prominent Yukos, highlight the persistent legal tussle over asset recovery and reparations.[114]

The enforcement of arbitration awards against the Russian Federation, particularly those arising from disputes with Ukrainian entities, presents significant legal and practical challenges. In cases like Everest Estate, Ukrainian courts have taken steps towards enforcement against Russian state-owned entities by attempting to attach assets deemed indirectly owned by the Russian Federation. However, the effectiveness of these efforts is limited by international law, including the special immunity regime under the Vienna Convention on Diplomatic Relations[115], which protects properties used to perform government functions, such as embassy properties. The Supreme Court of Ukraine has indicated that enforcement can proceed against properties owned directly by the Russian Federation within Ukraine, but this does not extend to properties owned by separate legal entities, even if they are state-owned enterprises acting under the control of the Russian government[116].

This situation underscores the complexity of collecting on arbitration awards against sovereign states, especially when those states are unwilling to comply voluntarily with the awards. The legal principle known as the “alter ego theory” has been explored as a means to pierce the corporate veil of state-owned enterprises to enforce against their assets as if they were the state’s assets. This approach, however, requires proving that these enterprises are not operationally or institutionally independent of the state, a challenging legal hurdle​​[117].

Internationally, there are precedents, such as the Bancec case[118] and Crystallex v Venezuela[119] in the United States, where courts have allowed creditors to reach the commercial assets of state-owned enterprises by treating them as alter egos of the state. This principle has been applied to allow creditors to satisfy their claims against a state by targeting the assets of its state-owned enterprises that are not protected by sovereign immunity. Yet, the application of such principles varies by jurisdiction and is subject to complex legal arguments and evidentiary standards[120].

Possible Solution

For the possible avenue for asset execution via Arbitral Awards, I will rely on a recent and successful case of Crystallex v Venezuela. The Crystallex v. Venezuela case revolves around the indirect expropriation of Crystallex’s investment in Venezuela, specifically the Las Cristinas gold mine, Venezuela due to the fact that it is among the only if not the only successful arbitral award enforcement where the belligerent state refused to comply with an award and the plaintiff sought to enforce the award and did so successfully. There are a few cases in which Ukrainian legal persons have been granted awards under the BIT however, the Russian Federation has not honored those awards such as in the Yukos case and Naftogaz.

Crystallex, a Canadian mining company, faced a series of actions by the Venezuelan government that started with the denial of an environmental permit in 2008, followed by public statements indicating Venezuela’s intention to nationalize Las Cristinas, and culminated in the rescission of the Mining Operation Contract. This series of acts led to the deprivation of Crystallex’s investment, which the arbitral tribunal concluded as a creeping expropriation which awarded Crystallex an award in the value of 1 billion dollars.

The tribunal found that Venezuela acted in its sovereign capacity when rescinding the contract, which was aimed at giving effect to policy decisions dictated by higher governmental spheres. It concluded that the state’s measure constituted a creeping expropriation and that Venezuela illegally expropriated Crystallex’s investment, breaching the BIT due to the lack of prompt, adequate, and effective compensation[121]​​.

For the valuation of compensation, the tribunal applied the “full reparation” standard under customary international law, aiming to restore the investor to the position as if the breach had not occurred. It used the “fair market value” methodology for determining the damages[122]​​.

Following the arbitration award in favor of Crystallex[123], the case proceeded through various legal challenges, including attempts to enforce the award in the United States. The U.S. District Court’s involvement began with the recognition of the arbitral award and continued with Crystallex’s efforts to attach assets belonging to PDVSA, the Venezuelan state-owned oil company, arguing that PDVSA acted as an alter ego of the Venezuelan state. This legal argument was pivotal as it aimed to bypass the sovereign immunity typically afforded to foreign states under the FSIA.

The U.S. courts had to determine whether exceptions to FSIA’s presumption of immunity applied, specifically the “commercial activity” exceptions. Crystallex successfully argued that PDVSA’s activities met the criteria for these exceptions, indicating that PDVSA’s conduct was “commercial activity” as defined by the FSIA. The courts found that Crystallex had met its burden of establishing that one of the FSIA’s exceptions to immunity was satisfied, allowing the case to proceed against PDVSA. This approach centered on proving that PDVSA was an “agency or instrumentality” of the Venezuelan government, thus its assets in the United States, specifically shares in its subsidiary PDV Holding, Inc., which in turn owned CITGO, could be subject to attachment and execution to satisfy the arbitration award Crystallex won[124][125].

The execution of the assets, specifically regarding CITGO, was a complex process influenced by several factors, including sanctions against Venezuela, changes in U.S. policy, and the need for a license from the Office of Foreign Assets Control  for the sale to proceed. Crystallex’s efforts to attach and sell shares of PDVH, the parent company of CITGO, faced challenges such as the potential impact on CITGO’s value and operations, as well as the broader implications for U.S. foreign policy and humanitarian concerns in Venezuela[126]​​.

The court eventually allowed the attachment of PDVSA’s shares in PDVH as a means to enforce the arbitration award. This decision was significant because it pierced the veil of PDVSA’s corporate structure to reach assets in the United States, setting a precedent for how foreign state-owned enterprises could be treated under U.S. law in similar cases. The successful attachment and potential sale of these shares were seen as a key step in Crystallex’s efforts to recover the damages awarded by the arbitration tribunal​[127].

On October 23, 2023, the US District Court of Delaware initiated the sale process of Citgo’s three refineries, which are owned by PDV Holdings, a subsidiary of Venezuela’s state-owned oil company PdVSA. Further information regarding the sale, is not yet available to the public[128]. This case could perhaps be considered a cornerstone of enforcement of arbitral awards, outlining a treacherous road map, yet successful one, to obtaining compensation for expropriation of assets by a state.

CHAPTER 4: SOVEREIGN IMMUNITY ISSUE

Throughout this research, the most common and difficult issue encountered when it comes to obtaining reparations for the expropriation of assets during or after a conflict, is the invocation of sovereign immunity when the belligerent state is facing an international tribunal such as the ICJ, ECtHR and Arbitral Tribunals in order to protect their assets and avoid paying reparations or awarding compensation for damages caused. In the final chapter, I will discuss if it is possible to revoke sovereign immunity claim by the Russian Federation in order to establish Court jurisdiction if not already provided for in a treaty such as in Arbitration chapter where Russia and Ukraine have agreed in their BIT to dispute settlements, and award reparations for damages caused.

ICJ

With regards to sovereign immunity at the ICJ, it is most common used to deny jurisdiction of the Court rather than shielding from direct reparations judgement. To effectively counter Russia’s sovereign immunity argument at the ICJ, particularly in the context of alleged war crimes, it’s essential to leverage established exceptions to sovereign immunity recognized in international law and judicial practice. The foundational premise is that sovereign immunity cannot shield states from accountability for grave breaches of international law, including war crimes and other jus cogens violations[129].

Firstly, the Jurisdictional Immunities of the State case[130], while affirming the principle of state immunity, also underscores that the rule is not absolute and evolves in response to the demands of international law​​. This evolving nature suggests that the doctrine of sovereign immunity might not apply to acts that constitute egregious violations of international humanitarian law, thus providing a legal pathway to contest Russia’s immunity claim.

Secondly, the principle that no state can claim immunity for violations of peremptory norms of international law is crucial. Scholarly analysis, such as those found in the Journal of International Criminal Justice[131][132], supports the argument that immunity should not shield states from jurisdiction in cases involving serious international crimes​​. This legal scholarship can be used to argue that the ICJ should adopt a similar stance when adjudicating cases involving allegations of war crimes against a state.

ECtHR

 With regards to the ECtHR sovereign immunity claim, Sovereign immunity is less often invoked here because the ECtHR deals with human rights violations where states have already consented to the court’s jurisdiction by ratifying the European Convention on Human Rights[133]. However, it can still be claimed despite the rarity of it.

In Loizidou v. Turkey[134], the ECtHR made a landmark decision regarding sovereign immunity and jurisdiction, particularly in the context of human rights violations and territorial disputes. The Court found that Turkey could not claim sovereign immunity to avoid responsibility for human rights violations in Northern Cyprus. This case is significant for its emphasis on human rights over the traditional privileges of state immunity, especially in situations involving territorial control. Meaning that Ukraine and Ukrainian individuals need to establish effective control over the area where the assets were located prior to Russian occupation. Applying Loizidou[135] principles to Ukraine and Russia, the focus would be on the extent of control and the responsibility for human rights within that territory, potentially challenging Russia’s claims of immunity in the context of actions in Ukraine. The ECtHR’s judgment in Loizidou[136] indicates that violations of human rights and international law, especially in the context of territorial control, can override claims of state immunity. The ECtHR found that Turkey’s actions, which involved the denial of access to the applicant’s property in Northern Cyprus, constituted a continuing violation of her rights under Article 1 of Protocol No. 1 of the European Convention on Human Rights[137]. This case sets a precedent that property rights are protected under human rights law, suggesting that expropriation and destruction of property could be viewed as violations of human rights.

International Arbitration

In an attempt to enforce arbitral awards, sovereign immunity has posed a significant challenge especially with Russia, hence the well-known Yukos case[138] and Hulley[139] case where sovereign immunity has been contested in foreign jurisdictions such as United Kingdom, United States and The Netherlands. It is important to observe the NY Convention[140] as well as the BIT[141] between Russia and Ukraine as implicitly, the ratification of such treaties, implies a significant if not total waiver of sovereign immunity in arbitral proceedings. However, more will be analyzed in precedents and legal scholarship. Signing international treaties like the New York Convention[142] can act as a waiver of sovereign immunity, particularly in the context of arbitration proceedings. The New York Convention[143] facilitates the recognition and enforcement of foreign arbitral awards, and by ratifying it, states implicitly agree to a limited waiver of their sovereign immunity for disputes that fall under the Convention’s scope. This is aligned with the principles outlined in the United Nations Convention on Jurisdictional Immunities of States and Their Property[144], although it has not yet been ratified by the Russian Federation but only signed. Specifically, Article 17 of UNCSI[145], which deals with arbitration, does not extend the waiver of state immunity to the execution stage unless there is express consent by the state in the arbitration agreement or in a written contract​​.

The English High Court’s decision in Hulley Enterprises Limited and others v. Russian Federation[146] dismissed Russia’s jurisdictional challenge, establishing that a state cannot invoke sovereign immunity to resist enforcement of arbitral awards issued in favor of Yukos shareholders[147][148]. This case highlights that issue estoppel can apply against a state in foreign judgment contexts, challenging the traditional application of sovereign immunity under the State Immunity Act 1978[149]. This ruling is pivotal for enforcement proceedings against states, illustrating that courts may prevent a state from relitigating issues already decided in foreign courts, provided the conditions for issue estoppel are met. This development could significantly impact similar cases, including those involving Ukraine and Russia, by potentially limiting the scope of sovereign immunity in arbitration enforcement actions.[150]

In the Yukos case, the issue of immunity has been a significant point of contention, especially in the enforcement of a $60 billion arbitration award against Russia. London’s High Court ruled that Russia could not claim state immunity to avoid enforcement of this arbitration award[151], which was a result of Russia’s expropriation of Yukos, a defunct oil group. This decision is considered a setback for Russia, which had argued that it had not agreed to submit to the jurisdiction of the arbitration and that the matter had not been conclusively decided by the Dutch courts[152]. The lifting of a pause on the case in London, which had been imposed while Russia challenged the award in the Netherlands, marked a pivotal moment after a 2021 Dutch Supreme Court ruling[153]. Despite Russia’s contention, Judge Sara Cockerill concluded that the issue before the Dutch courts did not relate to jurisdiction and rejected Russia’s assertion of immunity​​.The English High Court’s consideration of the interplay between issue estoppel and state immunity in the Yukos ruling further complicates Russia’s position. The court rejected Russia’s attempt to re-try jurisdictional questions already settled by the Dutch courts in related set-aside proceedings. This approach underscores the challenges states face in invoking immunity as a defense against enforcement of arbitration awards, especially when the underlying disputes have been subjected to arbitration they agreed to submit to. The court found that the Dutch judgments had reached a ‘final and conclusive’ determination on the matter, reinforcing the enforceability of the arbitration awards against Russia under SIA[154], given the specific exceptions that apply to court proceedings relating to arbitration​.

Conclusion

In conclusion, the analysis within this thesis provides a comprehensive framework for Ukraine and Ukrainian legal entities to navigate the complex landscape of international law for the execution of Russian State-Owned Commercial Enterprises’ assets as reparations for the 2022 invasion. It underscores the critical roles of bilateral treaties, particularly the 1998 Bilateral Investment Treaty, international arbitration, and courts such as the ICJ and ECHR. The research highlights the challenges of sovereign immunity and jurisdictional hurdles but also illuminates viable legal avenues for securing reparations. Ultimately, this thesis equips Mușat & Associates with the necessary legal insights to advise their clients effectively, advocating for a strategic approach to asset execution and compensation within the ambit of public international law. It paves the way for leveraging international legal mechanisms to uphold justice and secure reparations, reinforcing the rule of law on an international scale. Through international legal mechanisms such as ICJ and ECtHR, I have observed that more than a judgement imposing reparations on the belligerent state, it is not common for an international tribunal such as those, that can order the execution of State Owned Commercial enterprises for the purpose of fulfilling a reparations judgement in favor of the plaintiff. However, by means of arbitration, the enforcement of an arbitral award in a foreign jurisdiction where assets of the belligerent state are operating in a commercial capacity, it is much more likely to be able to enforce an award against set entities as we have observed in the Crystallex v Venezuela case before the Delaware District Court which concluded in the successful execution of Venezuelan oil refining company in the United States for the purpose of awarding fair compensation to the plaintiff for the illegal expropriation of their gold mine by the Venezuelan government. It paves the way for holding accountable belligerent actions by a state and fairly compensating the damaged party. It is a long way, a treacherous way, however it has been proved to work and be effective.\

Advice for Client

Based on the examination of legal avenues for Ukraine to secure reparations for expropriated assets post the 2022 invasion by the Russian Federation, the advice to Mușat & Associates centers on a multifaceted legal strategy. Firstly, the firm could consider leveraging the precedents and legal frameworks identified within the International Court of Justice , the European Court of Human Rights, and international arbitration tribunals to guide Ukrainian legal persons or the State in enforcing court and arbitral decisions against Russian State-Owned Enterprises in foreign jurisdictions should Russia fail to comply with judgements or awards.

Mușat & Associates can advise their clients to present a well-documented case that aligns with the procedural and substantive requirements of these 3 international legal frameworks. This involves substantiating claims with evidence, invoking relevant treaties and case law, and preparing for potential defenses by the Russian Federation, particularly sovereign immunity claims.  The method I advise towards is after a successful judgement in favor of the plaintiffs, should the Russian Federation fail to comply with the judgement or the award, seek to enforce the award in foreign jurisdictions, where Russian State-Owned Commercial enterprises operate and attempt to enforce the awards or judgements upon those entities considering the criteria for determination of a state owned commercial enterprise and providing significant evidence that would justify the Court to pierce the corporate veil and order the execution of those Russian assets like was done in the Crystallex v Venezuela case.

Reflection on Competences

Analyzing

In my ARP, I demonstrated the competence of analyzing by formulating and answering the legal questions regarding situation of Ukraine’s efforts to secure reparations for expropriated assets following the Russian invasion. I engaged in an analysis of practical and legal facts, and a wide array of legal sources including international treaties, case law from the International Court of Justice, the European Court of Human Rights, and international arbitral awards and legal scholarship. By assessing these sources, I formulated relevant legal questions, selected and interpreted applicable legal rules, and applied these rules to the main research question and the sub-questions. My analysis culminated in drawing legal conclusions that directly responded to the research question, showcasing my ability to perform comprehensive legal analysis required to deliver a professional product.

Advising

My thesis accomplished the advising competence through the showcasing of a strategic legal framework aimed at assisting Ukraine and Ukrainian legal entities in securing reparations for expropriated assets. By identifying Mușat & Associates’ interest and needs and considering the interests of other parties involved, I created an overview of possible legal solutions, their feasibility, and the likelihood of success. My advice was presented in a clear, professionally formulated manner that took into account the practicality and effectiveness of the recommendations, demonstrating my ability to provide actionable legal advice based on a thorough legal analysis.

Representation

Through my thesis, I represented the legal interests of Musat&Associates by advocating for the enforcement of court decisions and arbitral awards on Russian State-Owned Enterprises. This involved mapping the legal positions and interests of my client, showcasing all relevant information about every legal method that Ukrainian legal persons and the State can use to enforce judgements in either international tribunal, to obtain compensation for expropriation of their assets following the Russian invasion in 2022.

Decision-Making

The thesis involved decision-making, where I justified and established the legal positions of Ukraine and Ukrainian legal persons after carefully considering all legal arguments and social aspects. This process required assessing and weighing relevant interests, deciding on the legal position based on a legal analysis, and formulating these decisions in a manner that adhered to legal standards. The recommendation to establish a reparations facility and the strategic legal framework developed in my thesis exemplify my ability to make informed decisions that encompass both legal arguments and broader social considerations.

Organization

My thesis required efficient organization of a complex legal research project, demonstrating my capability in managing legal information and processes. The research and analysis entailed organizing vast amounts of legal scholarship, case law, treaties and reports, assessing legal service provision processes, and proposing strategy in the legal approach to securing reparations. This competency was further evidenced by my ability to collaborate with my client, ensuring the thesis was completed in a timely and organized manner.

Global Awareness & Cross-cultural Skills

Throughout my thesis, I displayed global awareness and cross-cultural skills by addressing a highly international legal issue, considering the implications of international law, bilateral treaties, and the decisions of international courts and tribunals. This subject regarding the Russia-Ukraine conflict, is a very novel issue, where extensive scholarship has not yet been debated thoroughly and explicitly, more specifically coming towards asset freezing, seizure and execution. It tackles one of the most significant issues in International Law today.

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[40] European Convention on Human Rights, Protocol No. 1, Article 1 (Protection of Property).
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[44] N Mustafayev, ‘Azerbaijan v. Armenia before the European Court of Human Rights: The Protection of Property Rights in Occupied Territories’ (Opinio Juris, 6 August 2021) https://opiniojuris.org/2021/08/06/azerbaijan-v-armenia-before-the-european-court-of-human-rights-the-protection-of-property-rights-in-occupied-territories/
[45] N Mustafayev, ‘Azerbaijan v. Armenia before the European Court of Human Rights: The Protection of Property Rights in Occupied Territories’ (Opinio Juris, 6 August 2021) https://opiniojuris.org/2021/08/06/azerbaijan-v-armenia-before-the-european-court-of-human-rights-the-protection-of-property-rights-in-occupied-territories/
[46] European Convention on Human Rights, Protocol No. 1, Article 1 (Protection of Property).
European Convention on Human Rights, Article 2 (Right to Life), Article 3 (Prohibition of Torture), and Article 8 (Right to Respect for Private and Family Life), interpreted to imply a right to a standard of living adequate for health and well-being.
[47] European Convention on Human Rights, Protocol No. 1, Article 1 (Protection of Property).
[48] European Convention on Human Rights, Article 2 (Right to Life), Article 3 (Prohibition of Torture), and Article 8 (Right to Respect for Private and Family Life), interpreted to imply a right to a standard of living adequate for health and well-being.
[49] Loizidou v Turkey (Merits) [1996] ECHR 23, (1997) 23 EHRR 513
[50] Felix E. Torres, “Human Rights Quarterly Volume 45 Number 2 May 2023,” published by Johns Hopkins University Press, pages 306-334
[51] I V Yakoviyk and A Y Turenko, ‘Confiscation of Russian Assets for the Restoration of Ukraine: Legal Problems of Implementation’ (2023) 161 Problems of Legality 7
[52] I V Yakoviyk and A Y Turenko, ‘Confiscation of Russian Assets for the Restoration of Ukraine: Legal Problems of Implementation’ (2023) 161 Problems of Legality 7
[53] I V Yakoviyk and A Y Turenko, ‘Confiscation of Russian Assets for the Restoration of Ukraine: Legal Problems of Implementation’ (2023) 161 Problems of Legality 7
[54] Veronika Fikfak, ‘Changing State Behaviour: Damages before the European Court of Human Rights’ in European Journal of International Law (2018) Vol. 29 No. 4, pp. 1091–1125, doi:10.1093/ejil/chy064
[55] Veronika Fikfak, ‘Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state’ in Leiden Journal of International Law (2020) 33, pp. 335–369, doi:10.1017/S0922156520000035
[56] Veronika Fikfak, ‘Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state’ in Leiden Journal of International Law (2020) 33, pp. 335–369, doi:10.1017/S0922156520000035
[57] A Donald and AK Speck, ‘The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments’ (2019) 19 Human Rights Law Review 83-117.
[58] “Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine” by Philippa Webb, published by the European Parliamentary Research Service in February 2024.
[59] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[60] Germany v Italy: Greece intervening (Jurisdictional Immunities of the State) [2012] ICJ Rep 99
[61] Factory at Chorzów (Germany v Poland), Merits, [1928] PCIJ Ser A No 17
[62] SC Res 687 (1991) UN SCOR, 2981st mtg, UN Doc S/RES/687 (3 April 1991)
[63] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[64] J I Charney, ‘Third State Remedies in International Law’ (1989) 10 Michigan Journal of International Law 57.
[65] Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question) [1954] ICJ Rep 19.
[66] Corfu Channel (United Kingdom v Albania) [1949] ICJ Rep 4 (9 April 1949).
[67] Société Commerciale de Belgique (Socobel) v Greece (1939) PCIJ (Ser A/B) No 77.
[68] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[69] Corfu Channel (United Kingdom v Albania) [1949] ICJ Rep 4 (9 April 1949).
[70] Société Commerciale de Belgique (Socobel) v Greece (1939) PCIJ (Ser A/B) No 77.
[71] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[72] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[73] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[74] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[75] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[76] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[77] Loizidou v Turkey (Merits) [1996] ECHR 23, (1997) 23 EHRR 513
[78] Cyprus v Turkey [2001] ECHR 25781/94 (10 May 2001)
[79] A Donald and AK Speck, ‘The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments’ (2019) 19 Human Rights Law Review 83-117.
[80] P Webb, ‘Legal options for confiscation of Russian state assets to support the reconstruction of Ukraine’ (European Parliamentary Research Service, February 2024) PE 759.602, DOI:10
[81] European Convention on Human Rights, art. 35(1). European Convention on Human Rights, art. 34.
[82] European Convention on Human Rights, art. 35(1).
European Convention on Human Rights, art. 34.
[83] European Convention on Human Rights, art 1 of Protocol No 1.
[84] European Convention on Human Rights, art. 6.
[85] Yukos v Russia App no 14902/04 (ECtHR, 20 September 2011).
[86] European Convention on Human Rights, art. 1 of Protocol No 1.
[87] European Convention on Human Rights, art. 1 of Protocol No 1.
[88] European Convention on Human Rights, art. 6.
[89] Yukos v Russia App no 14902/04 (ECtHR, 20 September 2011).
[90] European Convention on Human Rights, art 1 of Protocol No 1.
[91] Yukos v Russia App no 14902/04 (ECtHR, 20 September 2011).
[92] European Convention on Human Rights, art 1 of Protocol No 1.
[93] Agrotexim and Others v Greece App no 14807/89 (ECtHR, 24 October 1995)
[94] European Convention on Human Rights, art. 6.
[95] European Convention on Human Rights, art. 1 of Protocol No 1.
[96] European Convention on Human Rights, art. 6.
[97]Yukos v Russia App no 14902/04 (ECtHR, 20 September 2011).
[98] Agrotexim and Others v Greece App no 14807/89 (ECtHR, 24 October 1995)
[99] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) 330 UNTS 3 (New York Convention)
[100] Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 April 2016) https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/403/crystallex-v-venezuela.
[101] Agreement between the Government of the Russian Federation and the Government of Ukraine on the Promotion and Reciprocal Protection of Investments (signed 27 November 1998, entered into force 27 April 2000).
[102] Agreement between the Government of the Russian Federation and the Government of Ukraine on the Promotion and Reciprocal Protection of Investments (signed 27 November 1998, entered into force 27 April 2000).
[103] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) 330 UNTS 3 (New York Convention)
[104] N Lavranos, ‘Compliance with Investment Treaty Arbitration Awards 2022’ (NL Investment Consulting, October 2022)
[105] Investment Treaty Arbitration – Russia,” Global Arbitration Review, available at https://globalarbitrationreview.com/insight/know-how/investment-treaty-arbitration/report/russia.
[106] Applicability of Investment Treaties in the Context of Russia’s Aggression,” ICSID, available at https://icsid.worldbank.org/news-and-events/speeches-articles/applicability-investment-treaties-context-russias-aggression
[107] Oschadbank v Russian Federation, PCA Case No. 2016-14 (26 November 2018) https://www.italaw.com/cases/7491
[108] NJSC Naftogaz of Ukraine, PJSC State Joint Stock Company Chornomornaftogaz, PJSC Ukrgasvydobuvannya and others v The Russian Federation, PCA Case No. 2017-16
[109] Applicability of Investment Treaties in the Context of Russia’s Aggression,” ICSID, available at https://icsid.worldbank.org/news-and-events/speeches-articles/applicability-investment-treaties-context-russias-aggression
[110] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) 330 UNTS 3 (New York Convention)
[111]   Agreement between the Government of the Russian Federation and the Government of Ukraine on the Promotion and Reciprocal Protection of Investments (signed 27 November 1998, entered into force 27 April 2000).
[112] Lawfare Editorial Board, ‘The REPO Act: Confiscating Russian State Assets and Ukrainian Reparations”, https://www.lawfaremedia.org/article/the-repo-act-confiscating-russian-state-assets-and-ukrainian-reparations.
[113] Lawfare Editorial Board, ‘The Legal Challenges Presented by Seizing Frozen Russian Assets’ (Lawfare, 27 February 2024) https://www.lawfaremedia.org/article/legal-challenges-presented-seizing-frozen-russian-assets accessed 27/02/24
[114] Lawfare Editorial Board, ‘The Legal Challenges Presented by Seizing Frozen Russian Assets’ (Lawfare, 27 February 2024) https://www.lawfaremedia.org/article/legal-challenges-presented-seizing-frozen-russian-assets accessed 27/02/24
[115] Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95
[116] https://globalarbitrationreview.com/review/the-european-arbitration-review/2021/article/ukraine
[117] https://globalarbitrationreview.com/review/the-european-arbitration-review/2021/article/ukraine
[118] First National City Bank v. Banco Para el Comercio Exterior de Cuba (Bancec), 462 U.S. 611 (1983) https://supreme.justia.com/cases/federal/us/462/611/
[119] Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 April 2016) https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/403/crystallex-v-venezuela.
[120] https://arbitrationblog.kluwerarbitration.com/2023/02/14/the-enforcement-of-awards-against-sanctioned-parties-mission-impossible/
[121] Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 April 2016), available at UNCTAD Investment Dispute Settlement Navigator https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/403/crystallex-v-venezuela.
[122] Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 April 2016), available at UNCTAD Investment Dispute Settlement Navigator https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/403/crystallex-v-venezuela.
[123] Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 April 2016)
[124] Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, (Award 4 April 2016) https://www.italaw.com/cases/1530.
[125] Crystallex International Corp v. Bolivarian Republic of Venezuela, No. 21-1276 (3d Cir. 18 January 2022) https://law.justia.com/cases/federal/appellate-courts/ca3/21-1276/21-1276-2022-01-18.html.
[126] Crystallex Int’l Corp. v. PDV Holding Inc., C.A. No. 15-cv-1082-LPS
[127] Crystallex Int’l Corp. v. PDV Holding Inc., C.A. No. 15-cv-1082-LPS (D. Del. 12 December 2019) https://casetext.com/case/crystallex-intl-corp-v-pdv-holding-inc.
[128] P Clements, ‘EIA: Citgo auction process begins’ (Hydrocarbon Engineering, 2 November 2023) https://www.hydrocarbonengineering.com/refining/02112023/eia-citgo-auction-process-begins/.
[129] T Yamashita, ‘Do Jus Cogens Norms Invalidate State Immunity? International Restorative Justice and Japanese War Compensation Cases’ (2013) 31 Chinese (Taiwan) Yearbook of International Law and Affairs 160
[130] Germany v Italy: Greece intervening (Jurisdictional Immunities of the State) [2012] ICJ Rep 99.
[131] L McGregor, ‘State Immunity and Human Rights: Is There a Future after Germany v. Italy?’ (2013) 11 Journal of International Criminal Justice 125 https://doi.org/10.1093/jicj/mqs081.
[132] T Yamashita, ‘Do Jus Cogens Norms Invalidate State Immunity? International Restorative Justice and Japanese War Compensation Cases’ (2013) 31 Chinese (Taiwan) Yearbook of International Law and Affairs 160
[133] European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 ETS No. 5.
[134] Loizidou v Turkey (Merits) [1996] ECHR 23, (1997) 23 EHRR 513.
[135] Loizidou v Turkey (Merits) [1996] ECHR 23, (1997) 23 EHRR 513.
[136] Loizidou v Turkey (Merits) [1996] ECHR 23, (1997) 23 EHRR 513.
[137] Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Protection of Property, ETS No. 9, art 1.
[138] Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. AA 227 (Permanent Court of Arbitration, 18 July 2014).
[139] Hulley Enterprises Limited and others v Russian Federation [2023] EWHC 2704 (Comm) (High Court of Justice, Commercial Court, 1 November 2023).
[140] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) 330 UNTS 3 (New York Convention)
[141] Agreement between the Government of the Russian Federation and the Government of Ukraine on the Promotion and Reciprocal Protection of Investments (signed 27 November 1998, entered into force 27 April 2000).
[142] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) 330 UNTS 3 (New York Convention)
[143] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) 330 UNTS 3 (New York Convention)
[144] United Nations Convention on Jurisdictional Immunities of States and Their Property (adopted 2 December 2004, not yet in force) UN Doc A/RES/59/38, art 17.
[145] United Nations Convention on Jurisdictional Immunities of States and Their Property (adopted 2 December 2004, not yet in force) UN Doc A/RES/59/38, art 17.
[146] Hulley Enterprises Limited and others v Russian Federation [2023] EWHC 2704 (Comm) (High Court of Justice, Commercial Court, 1 November 2023).
[147] T Jones, ‘UK court rejects Russia’s immunity defence in Yukos case’ (Global Arbitration Review, 1 November 2023) https://globalarbitrationreview.com/article/uk-court-rejects-russias-immunity-defence-in-yukos-case.
[148] H Ambrose and E Fox, ‘ENGLISH HIGH COURT DISMISSES RUSSIA’S JURISDICTIONAL CHALLENGE ON BASIS OF STATE IMMUNITY IN YUKOS CASE’ (Herbert Smith Freehills Arbitration Notes, 9 November 2023) https://hsfnotes.com/arbitration/2023/11/09/english-high-court-dismisses-russias-jurisdictional-challenge-on-basis-of-state-immunity-in-yukos-case/
[149] State Immunity Act 1978
[150] A Marwah, ‘Sovereign Immunity and Issue Estoppel: English High Court’s Latest Decision in the Longstanding Yukos v. Russia Enforcement Saga’ (Kluwer Arbitration Blog, 28 December 2023) https://arbitrationblog.kluwerarbitration.com/2023/12/28/sovereign-immunity-and-issue-estoppel-english-high-courts-latest-decision-in-the-longstanding-yukos-v-russia-enforcement-saga/
[151] H Ambrose and E Fox, ‘ENGLISH HIGH COURT DISMISSES RUSSIA’S JURISDICTIONAL CHALLENGE ON BASIS OF STATE IMMUNITY IN YUKOS CASE’ (Herbert Smith Freehills Arbitration Notes, 9 November 2023) https://hsfnotes.com/arbitration/2023/11/09/english-high-court-dismisses-russias-jurisdictional-challenge-on-basis-of-state-immunity-in-yukos-case/
[152] The Russian Federation v Veteran Petroleum Limited, Yukos Universal Limited, and Hulley Enterprises Limited, Supreme Court of the Netherlands, Case No. 20/01595, ECLI:NL:HR:2021:1879 (5 November 2021).
[153] The Russian Federation v Veteran Petroleum Limited, Yukos Universal Limited, and Hulley Enterprises Limited, Supreme Court of the Netherlands, Case No. 20/01595, ECLI:NL:HR:2021:1879 (5 November 2021).
[154] State Immunity Act 1978

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Filip Ionescu

* This document represents the thesis of Filip Ionescu, which was defended on April 4, 2024, at the Law Faculty of The Hague University of Applied Sciences. The thesis was a component of the “Applied Research Project” course, necessitating completion within a corporate environment. The project was supervised academically by Dr. Artemis Maillaroupoulou and from a professional standpoint by Attorney at Law Mr. Răzvan Stoicescu, who acted as the company supervisor. This thesis focused on the enforceability of court and arbitral decisions against Russian State-Owned Enterprises following the 2022 invasion of Ukraine, with an exploration of the relevant treaties, case law, and international jurisprudence. Upon the successful defense of the thesis, Filip Ionescu was awarded a final grade of 9.7 out of 10 for this comprehensive legal analysis.