Republic of Kazakhstan v Anatolie Stati - Gabriel Stati - Ascom Group SA - Terra Raf Trans Traiding Ltd - Supreme Courts of the Netherlands, Civil Division, Number 19/03142 and 19/03144 - Judgment - English - 18 December 2020
2. Starting points and facts
2.1 In cassation the following can be assumed.
(i) Stati et al have invested more than one billion American dollars in (among other things) oil fields in Kazakhstan and believe that Kazakhstan has unlawfully appropriated these investments. Stati et al have initiated arbitratral proceedings against Kazakhstan.
(ii) Samruk is a Joint Stock Company incorporated under the laws of Kazakhstan, of which Kazakhstan is founder and sole shareholder. Samruk is a fund referred to in the 'Kazakhstan Law on the National Welfare Fund'. This states, among other things, that the shares in Samruk are the exclusive property of Kazakhstan and cannot be disposed of.
(iii) Samruk holds shares in the Dutch company KMG Kashagan B.V. (hereinafter: KMGK).
(iv) By arbitral award of 19 December 2013, as supplemented on 17 January 2014, Kazakhstan has been ordered to pay Stati c.s. USD 497,685,101 and € 802.103,24. There is no right to appeal arbitral award. By judgment dated 9 December 2016, the competent court in Stockholm rejected Kazakhstan's claim to have the arbitral award set aside. Kazakhstan has not complied with the arbitral award.
(v) Stati et al applied to the Interim Relief Judge for leave to attach, at the expense of Kazakhstan and Samruk, the shares of Samruk in KMGK. In the request for leave for attachment, It has been argued that Samruk is part of the state Kazakhstan.
(vi) The judge in interim y relief proceedings granted the leave, estimating the claims of Stati et at USD 557,656,650 and € 992,520. On 14 September 2017, Stati et al have levied prejudgment attachment on Samruk's shares in KMGK.
2.2 In these summary proceedings, Samruk requested the lifting of the prejudgment attachment. Samruk has based this claim on the fact that Stati et al has no claims against Samruk, but only against Kazakhstan and that there are no grounds to equate Samruk with Kazakhstan.
2.3 The District Court in preliminary relief proceedings refused the requested injunction on the ground, in short, that Samruk lacks factual-economic independence in its relation to Kazakhstan and that Samruk abuses, in the sense of art. 8 of the Civil Code of Kazakhstan, its in principle existing power to invoke its legal independence vis-à-vis Stati et al (para. 4.7 and 4.9). 1 2.4 The Court of Appeal has allowed Kazakhstan on appeal to join Samruk on the basis of Article 217 DCCP.
2.5 The Court of Appeal has confirmed the judgment of the interim relief judge. 2 Insofar as relevant in cassation, the Court of Appeal has considered the following:
"The final preliminary question to be answered is whether Samruk is entitled to (partly) invoke the immunity from enforcement. According to Samruk, this claim is being made only in the event that Samruk is identified with Kazakhstan. Thus argued, this argument lacks any factual basis, because the court in preliminary relief proceedings, in whose considerations this view has apparently been inferred by Samruk, did not identify Samruk and Kazakhstan jointly, but, on the contrary, (for the time being) ruled that Samruk, as a separate legal entity, is abusing its - in principle - existing power to invoke its legal independence vis-à-vis Stati et al. To this the court of appeals would like to add, somewhat superfluously, that even if it is assumed (which by no means is that the case) that (the considerations of the provisions of the court must be understood in such a way that) Samruk and Kazakhstan must be identified jointly, the court of appeals does not agree with Samruk's argument that it may invoke immunity from enforcement. In doing so, the court of appeals has argued that the starting point in this respect should be that assets of foreign states are not subject to seizure and execution unless and insofar as it has been established that they have a purpose that is not incompatible with this, in which case it is always the creditor who has to provide information which can be used to determine that the goods are being used by the foreign state or are intended for, in short, something other than public purposes (cf. Supreme Court, September 30, 2016, NJ 2017/190). Leaving aside whether or not it is conceivable that, as in this case, Samruk, and not Kazakhstan, may invoke immunity from enforcement in this way, such an invocation would, in any case, (also) have to be considered as having been made on behalf of Kazakhstan. According to the court of appeals, it is then up to Stati et al. to make a plausible argument that, in short, not the final (ultimate), but the immediate purpose of the goods - in this case, the shares held by Samruk in KMGK - is a nonpublic purpose, if only because a different interpretation of the rules contained in the aforementioned basic principle would make it de facto impossible for individual parties imposing seizures, such as Stati et al. to assert their rights. Stati et al. have done this to a sufficient extent, also in view of what Samruk and Kazakhstan themselves already sufficiently addressed (defense on appeal under 170) Samruk's commercial purpose (...). This means that ground 14 also fails."