Summary

Introduction

Over the course of two days I have heard the trial of two preliminary issues arising out of a longstanding and complex dispute between the Defendant (the Russian Federation: "RF") and the Claimants, who are the former majority shareholders in OAO Yukos Oil Company ("Yukos"). The manifestation of that dispute which concerns this court is enforcement of arbitral awards of some US$50 billion plus compound interest accruing at some US$2.5 million dollars a day ("the Awards").

These Awards resulted from determinations of a Tribunal of well known international arbitrators that (i) they had jurisdiction to hear a claim brought by the Claimants for breach of the RF's obligations under Article 13(1) of a treaty called the Energy Charter Treaty ("the ECT"); (b) the Claimants' allegations of breach (via unlawful expropriation via tax demands and bankruptcy proceedings) were well-founded; and (c) the RF was liable to pay the Claimants more than US$50 billion in damages.

Those preliminary issues were defined as:

i) Issue 1: Whether and to what extent the RF is, by reason of certain judgments of the Dutch courts, precluded from re-arguing the question of whether it has agreed in writing to submit to arbitration the disputes that are subject of the Awards;

ii) Issue 2: Whether, if the answer to Issue 1 is that the RF is so precluded from re-arguing the relevant question, the Jurisdiction Application ought to be dismissed forthwith.

Those issues arise against a procedural background which has already been summarised at length in two judgments of this court. The parties know the facts intimately. ...

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Question 1: Are the Dutch Courts' determinations Res Judicata as a matter of Dutch Law?

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Question 2: Does the question of fraud in the arbitration affect finality?

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Question 3: Do determinations on Set Aside Ground 2,3 and 5 remain subject to a potential referral to the CJEU?

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Conclusion

For the reasons given I conclude that the conditions required to be satisfied for the finding of an issue estoppel are met.

One final question remains. That is the question of special circumstances. There are cases in which the court will say that despite the meeting of the relevant conditions it would not be appropriate to uphold a plea of issue estoppel. While this was not a point explicitly ventilated for the RF it did appear to me that the nature of those points and the combination in which they were deployed tended to suggest that this was an argument which the RF was at least tacitly pursuing.

The point can be conveniently introduced by reference to The Good Challenger where Clarke LJ at [79] notes that "the correct approach is to apply the principles …. unless there are special circumstances such that it would be unjust to do so."

There has been very little qualification or elaboration to this short statement of principle. The RF drew my attention to Yukos v Rosneft (No 2) [2014] QB 458 at [158] and following:

"159 The trouble with the "discretionary in special circumstances" exception is that it is so amorphous. In Arnold v National Westminster Bank plc [1991] 2 AC 93 the exercise of discretion depended on further material becoming available since the original decision. That is not the position in this case.

160 Nevertheless, if we had decided that there was an issue estoppel in this case on the basis that in truth the issue in the Dutch proceedings was the same as the issue in these English proceedings, we would be inclined to invoke the exception for ... It must ultimately be for the English court to decide whether the recognition of a foreign judgment should be withheld on the grounds that that foreign judgment is a partial and dependent judgment in favour of the state where it was pronounced. That is a question so central to the respect and comity normally due from one court to another that to accept the decision of a court of a third country on the matter would be an abdication of responsibility on the part of the English court. On matters of this kind, we should accept our own responsibilities just as we would expect courts of other countries to accept theirs."

While the submission was made that this is an analogous case, that submission is not well founded. The Yukos case was one where the decision was about the content of public policy, and hence identity of issue was not established.

The fullest consideration of the exception is in Arnold v National Westminster Bank plc [1991] 2 AC 93, where the House of Lords was faced with a combination of newly discovered facts and an eccentric decision from which there had been no right of appeal. The exception is controversial, having been doubted in Australia (O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 258), and (as Spencer Bower and Handley Res Judicata (5th ed 2019) notes at 8.32, applied inconsistently in other jurisdictions). It has not been much used in this jurisdiction, and the fact that the words "special" and "exceptional" are used in this context indicates the soundness of Handley's proposition that "The exception should be kept within narrow limits to avoid undermining the general rule and provoking increased litigation and uncertainty."

In my judgment the present case is not analogous to any of the cases where the exception has been successfully invoked, and nor are the circumstances of the same order. The presence of a novel point (issue estoppel based on a foreign judgment against a State) and the involvement of a multilateral treaty are not enough. Each of those elements can be grappled with and a clear path discerned. Nor is there any real basis upon which it could be said that the recognition of an issue estoppel would work injustice (the fundamental underpinning of the exception). The continuing existence of the fraud ground does not go to jurisdiction and can (as the Claimants urged me to do) be dealt with via case management of the enforcement proceedings. The controversy to which allusion was made as to the correct construction of Article 45 is one which is live "at large" and not in this case; it therefore works no injustice. I therefore conclude that the "special circumstances" exception does not apply.

Accordingly, the answer to Issue 1 is that the RF is, by reason the judgments of the Dutch courts, precluded from re-arguing the question of whether it has agreed in writing to submit to arbitration the disputes that are subject of the Awards.

That leaves the question of whether the Jurisdiction Application should be dismissed forthwith.

As to this, one circles back to the question of State Immunity. Although the RF contended that there is a freestanding duty under the SIA to decide state immunity, as discussed above, it follows from the approach taken to issue estoppel that the present case falls within the exception to State immunity under s. 9 of the SIA 1978. Although the RF disputed the appropriateness of the determination of the jurisdiction application, it did not address the question of how it could be that if the questions were answered as I have answered them, the answer did not follow that s. 9 was engaged. The question it says must be posed is whether the RF has agreed in writing to submit to arbitration the disputes that are the subject of the arbitrations which resulted in the Awards. That is answered by the outcome of the Dutch proceedings and is a question as to which I have determined that an issue estoppel arises. That means that the RF's assertion of immunity under s. 1 of the SIA 1978, falls to be rejected.

The answer in relation to Issue 2 is therefore "yes": the Jurisdiction Application ought to be dismissed forthwith.