Samruk-Kazyna JSC v Anatolie Stati - Gabriel Stati - Ascom Group SA - Terra Raf Trans Traiding Ltd - Amsterdam District Court C/13/638381 / KG ZA 17-1217 FB/MB - Judgment in summary proceedings - English - 05 January 2018
2. The facts
2.1 Stati et al. have invested more than a billion American Dollars in (among other things) oil fields in Kazakhstan. Stati et al. are of the opinion that the state Kazakhstan (hereinafter: the Republic Kazakhstan, the state, or in short Kazahkstan) has appropriated these investments in an unlawful manner. In this respect they have initiated arbitration proceedings against Kazakhstan, based on the Energy Charter.
2.2 Samruk is a Joint Stock Company (JSC) under the laws of the Republic Kazakhstan. The Repulbic of Kazakhstan is the founder and sole shareholder of Samruk, a fund as referred to in the 'Kazakhstan Law on the National Welfare Fund'. This law states, among other things, that the shares in the capital of Samruk are exclusive state property and cannot be transferred.
2.3 Samruk holds shares in the company under Dutch law KMG Kashagan B.V. (KMGK).
2.4 By arbitral award dated 19 December 2013, as supplemented on 17 January 2014 (hereinafter: the arbitral award), on the application of Stati et al, Kazakhstan has been ordered to pay amounts of USD 497.685.101 and EUR 802.103,24 to Stati et al. There is no appeal against this award.
2.5 In a judgment dated 9 December 2016, the competent court in Stockholm, Sweden, has dis- missed Kazakhstan's claim to reverse the arbitral award.
2.6 Kazakhstan has not complied with the arbitral award.
2.7 On 30 August 2017, Stati et al. have submitted an application to the summary proceedings judge of this district court requesting leave to, among other things, levy prejudgment attachment against Kazakhstan and Samruk on the shares that Samruk holds in KMGK. Briefly put, it has been argued in the application for attachment that Samruk is part of Kazakhstan. The leave has been grant- ed in a decision dated 8 September 2017, whereby the size of Stati et al.'s claims has been budgeted at USD 557.656.650 and EUR 992.520 (including interest and costs).
2.8 On 14 September 2017, Stati et al. have levied prejudgment attachment against Samruk on all its shares in KMGK.
2.9 In the meantime, Stati et al. have submitted a request with the Amsterdam Court of Appeal, also addressed to Samruk, for recognition and enforcement of the arbitral award.
2.10 By letter of 3 November 2017, Kazakhstan has requested the Amsterdam Court of Appeal to stay the proceedings mentioned under 2.9 until the High Court of Justice has ruled in the exequatur procedure initiated by Stati et al. in England, which should be rejected according to Kazakhstan, among other things because the arbitral award would be the result of fraud on the side of Stati et al.
2.11 Samruk has submitted a 'legal opinion' by S.I. Klimkin, 'Candidate of Juridical Sciences, Pro- fessor of the Caspian University', as exhibit 9, in relation to the legal status, rights and obligations of a Joint-Stock Company (JSC) under the laws of Kazakhstan, on the basis of the Civil Code of the Re- public of Kazakhstan (hereinafter: the Civil Code). Among other things, the legal opinion contains the following passage:
"As a general principle, a legal entity is only liable to the full extent of its property (several proprie- tary liability). Since a legal entity constitutes a subject, with its separate property, which has rights and obligations, its founders, as a general principle, are not liable for its debts (equally as legal enti- ties are not liable for debts of the founders).
The legislation establishes separate liability of the legal entity and its founder (participant) in the article 44.2 of the Civil Code, according to which founder (participant) of a legal entity or an owner of its properties shall not be liable for obligations of its founder (participant) or the owner of its properties, unless otherwise provided by this Code, other legislative acts or constituent documents of the legal entity."