Summary

Introduction

This judgment seeks to determine a question which has been "referred" to the English Court by the Belgian Court.

The immediate context in which that unusual, perhaps unprecedented, referral took place was a step taken in Belgium by "the Stati Parties", the Second-Fifth Defendants who are individuals and companies from Moldova and Gibraltar, in the case of the Fifth Defendant, to enforce a Swedish arbitration award made in their favour against the Republic of Kazakhstan in the sum of about US$506 million. I have been told that the award was in respect of breaches by the Republic of its obligations under the Energy Charter Treaty which "led to the destruction of the Stati Parties' investments". The step taken to enforce the award was an attachment or garnishment order issued by the Belgian Court in October 2017 in respect of securities or cash held by The Bank of New York Mellon SA/NV, the First Defendant, a Belgian bank ("BNYM"). Those assets formed part of the National Fund of the Republic of Kazakhstan. The assets were held by the London branch of BNYM subject to the terms of an agreement with the National Bank of Kazakhstan (the "NBK") governed by English law. Pursuant to the attachment or garnishment order BNYM declared that it could not "fully exclude" that the Republic of Kazakhstan had claims on BNYM or that BNYM held assets for the Republic of Kazakhstan and accordingly BNYM "froze" certain cash and securities valued at about US$ 22.6 billion. In November 2017 the attachment or garnishment order was challenged in Belgium by the Republic of Kazakhstan but the order was upheld in May 2018, save that its amount was reduced to the value of the award (including interest), namely US$530 million. Since then the only assets "frozen" have been cash sums totalling US$530 million. The securities which had been frozen have been "released" with the consent of the Stati Parties. One of the grounds upon which the attachment or garnishment order was challenged by the Republic of Kazakhstan was that BNYM had no "attachable obligation" to the Republic of Kazakhstan. The Belgian Court stated that that challenge "must be referred to the trial court in the proceedings on the merits, under article 1456 [of the Belgian Judicial Code]. The competent trial court is, as stated by Kazakhstan itself, the English Court who must apply its own national substantive law". As a result of that "referral" an action was commenced by the NBK and the Republic of Kazakhstan in this Court on 28 May 2018 seeking certain declarations which were intended to answer the question referred to this Court by the Belgian Court.

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