PAO Tatneft v Ukraine - United States District Court for the District of Columbia Civil Action No 2017-0582 Memorandum opinion by Judge Colleen Kollar-Kotelly - 13 May 2020
This matter comes before the Court on Respondent Ukraine's  Motion for Leave for Supplemental Briefing relating to Ukraine's defenses to Pao Tatneft's pending  Petition to Confirm Arbitration Award ("Petition"). This Petition was fully briefed in mid-2018, but prior to this Court ruling on the Petition, Ukraine filed a motion to dismiss on jurisdictional grounds, and the case was stayed subsequently while Ukraine appealed from this Court's denial of its motion to dismiss. The stay was lifted after the Court of Appeals affirmed this Court's decision and issued its mandate, and as such, the Petition is again ripe for consideration by this Court.
Recently, this Court requested that the parties file a Joint Status Report indicating whether there are any new cases or law affecting the pending briefing on the Petition, or any new developments in the underlying arbitration proceeding.
The parties'  Joint Status Report indicates that Ukraine filed a motion for reinstatement of the French Court of Cassation proceeding, but Ukraine does not seek a further stay of this proceeding because of that motion, although it reserves its right to renew a motion for stay if and when the French Court of Cassation proceeding resumes. Jt. Status Rpt., ECF No. 43, at 1-2. The parties note that they are unaware of any new cases or law affecting the pending briefing. Id. at 2.
Finally, the parties notify this Court of a decision in a parallel proceeding in the United Kingdom (the "UK") High Court denying one of Ukraine's challenges to enforcement of the Final Award.
This challenge by Ukraine was brought under section 103(2)(e) of the UK Arbitration Act 1996, which implements Article V(1)(d) of the New York Convention. This UK ruling may be relevant to one of Ukraine's arguments against enforcement of the Petition in this case, i.e., that the Court should refuse to recognize and enforce the Final Award pursuant to Article V(1)(d). Also pending before the High Court is Ukraine's challenge to enforcement of the Final Award under section 103(2)(d) of the UK Arbitration Act 1996, which implements Article V(1)(c) of the New York Convention. While Ukraine made no argument pursuant to Article V(1)(c) in response to the Petition in this case, Ukraine asks this Court now for permission to provide supplemental briefing on that issue.
Ukraine asserts that "[s]supplemental briefing on this ground would permit [it] to introduce an expert report submitted on January 31, 2020 in the UK proceedings explaining the illegality of the purported investments, and permit Ukraine to explain why the illegality of the investments requires refusing recognition of the Award under Article V(1)(c) of the New York Convention." Ukraine's Motion, ECF No. 44, at 1. Pao Tatneft opposes Ukraine's request for additional briefing, noting that:
On March 30, 2017, PAO Tatneft filed its  Petition to Confirm Arbitral Award and to Enter Judgment in Favor of Petitioner. PAO Tatneft seeks recognition and enforcement of the Merits Award from OAO Tatneft v. Ukraine, an arbitration that was conducted under the auspices of the Permanent Court of Arbitration (“PCA”) pursuant to the 1976 Arbitration Rules of the United Nations Commission on International Trade Law (“1976 UNCITAL Arbitration Rules”) and the 1998 Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine on the Encouragement and Mutual Protection of Investments (“Ukraine- Russia BIT” or “BIT”) seated in Paris, France. PAO Tatneft seeks recognition and enforcement of the Award pursuant to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) and its implementing legislation, U.S.C. Sections 201-208.
Initially, Ukraine sought a blanket stay in favor of set-aside proceedings in France. See Ukraine’s  Motion to Stay the Recognition and Enforcement Proceeding During the Pendency of a Foreign Set-Aside Proceeding.