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Yukos European Shareholder: The Route to Compensation
By Michael Hunter
Introduction
In the mid 1990’s, Yukos Oil Company (“Yukos”) became Russia’s first privatised oil and gas company. Beginning in mid-2003, the Russian Federation began to disrupt Yukos’s business affairs. Actions undertaken included the seizure of 51% of the shares in Yukos, the disruption of the planned Yukos Sibneft merger, the creation of unfounded tax liabilities, the prevention of Yukos from using assets to satisfy alleged tax liabilities, the confiscation of Yukos owned property worth $25 billion and the auctioning of Yukos assets at below market value to state friendly entities.
As a result of these actions, the price of Yukos American Depositary Receipts (“ADRs”) collapsed from over $40 to around $1. Yukos ADR’s are now trading at around $2.5.
The international law firm Covington & Burling is advising in respect of an action commenced in the US courts against various parties, including the Russian Federation, on behalf of certain holders of ADRs in the United States. The action is being pursued in the US courts because remedy through the bilateral investment treaty that exists between the US and Russia for the reciprocal protection of investments is not possible as the treaty is still to be ratified. The US action is not a class action.
European Actions
The Yukos European Shareholder Coalition (the “Coalition”) is now facilitating the commencement of possible claims in European jurisdictions on behalf of European based investors. It is proposed that any claim would be made under the appropriate national agreement for the protection and reciprocal protection of investments (“Treaty”). These Treaties provide a mechanism by which investors may obtain compensation for investments which have been expropriated or nationalised in Russia without the payment of compensation. In order to be eligible to claim under the relevant Treaty, it is necessary to hold ‘investments’ as a national of the relevant state.
Compensation is determined by reference to the real value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier.
Once a claim is brought, the parties have a short period, usually between three and six months, in which to amicably settle the claim. If an amicable settlement is not reached, the matter may be referred to arbitration at either the Institute of Arbitration of the Chamber of Commerce of Stockholm or the United Nations Commission on International Trade Law. The Coalition envisages that the proceedings could last for between eighteen months and two years.
The principal advantages of proceeding under the Treaty are that:
a. the action will not proceed in a public forum (such as the High Court in London) and the identity of the plaintiffs will only be known to the parties to the action;
b. the claim will be made on the facts of the case i.e., that either the expropriation did or did not take place (rather than a claim in the courts which would need to also establish a cause of action);
c. it
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will be considerably easier to bring the claim under the Treaties rather than through the courts as legal hurdles, such as sovereign immunity, will not arise.
As a result, there is understood to be a reasonable prospect of a successful recovery under the Treaties.
The Coalition is hoping to facilitate the commencement of actions throughout Europe, under the bilateral investment treaties which exist between the Russian Federation and many European countries, including Belgium, Finland, France, Germany, Italy, Luxembourg, Sweden and the United Kingdom. To date, the Coalition has commenced, on behalf of seven Spanish based funds, bilateral investment treaty claims. All of these are currently progressing through the ‘amicable discussions’ period and in the event that these discussions are not successful, the Coalition intends to request arbitral hearings as provided for under the Spanish-Russian Treaty.
Instruction and Involvement
The Coalition is seeking to identify plaintiffs to join actions under various bilateral investment treaties throughout Europe. The nationality of each plaintiff will determine the jurisdiction in which they are joined to an action.
The Coalition has identified and spoken with a number of funds and individual investors who have lost substantial amounts through their shareholdings of Yukos Stock and who have expressed an interest in joining actions under the relevant Treaty. Any possible claim can be made either by the investor or the financial institution who made the investment on behalf of the investor.
If you are interested in joining an action or finding out more, please visit www.yesc.eu.
In order to progress potential claims, the Coalition will require the following information: (i) the nationality of the acquirer; (ii) the exchange on which the Stocks were purchased and sold; (iii) all dates and prices of each purchase and disposal; and (iv) the beneficial owner of the Stocks (for example, whether the purchase was on behalf of a fund, pension fund or private client).
The Yukos European Shareholders Coalition (YESC) is an informal grouping of individuals and institutions in Europe who have decided to pursue the legal options that are available to them to obtain compensation from the Russian Federation for the losses they have suffered as a result of the renationalization of Yukos.
visit www.yukoseuropeanshareholderscoalition.com or email article@yukoseuropeanshareholderscoalition.com
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