Yukos Universal Limited (Isle of Man) v. The Russian Federation

Abstract

Jurisdiction — Provisional application — Energy Charter Treaty, Article 45 — Whether the State was required to make prior declarations to benefit from limitations on the treaty’s provisional application — Whether the limitation clause required analysis of the treaty’s overall consistency with domestic law or of the consistency of each treaty provision

Jurisdiction — Foreign investor — Energy Charter Treaty, Article 1(7) — Origin of capital — Whether an investor must have an effective link with the home State

Jurisdiction — Investment — Energy Charter Treaty, Article 1(6) — Definition of protected investment — Whether the ultimate source of investment must be foreign

Jurisdiction — Denial of benefits — Energy Charter Treaty, Article 17 — Whether the State exercised its right to deny the treaty’s benefits — Whether the investors were owned or controlled by citizens of a third State

Jurisdiction — Fork-in-the-road clause — Energy Charter Treaty, Article 26(3)(b)(i) — Whether domestic and international human rights proceedings covered the same parties, facts and cause of action as the investment treaty claims

Defence — Unclean hands — Whether the doctrine of unclean hands constituted a general principle of law — Whether the doctrine applied to how the investor obtained an investment — Whether the doctrine of unclean hands applied to the investors’ performance of the investment

Defence — Exclusions and reservations — Energy Charter Treaty, Article 21 — Taxation measures — Expropriation — Good faith — Whether the carve-out applied only to bona fide taxation measures — Whether the measures could be clawed back as expropriative taxes

State responsibility — Attribution — State-owned entity — ILC Articles on State Responsibility — Whether the State can be held liable for the actions of a State-owned entity — Whether the State can be held liable for the actions of a bankruptcy administrator

Expropriation — Energy Charter Treaty, Article 13 — Whether the State’s actions had an effect equivalent to nationalisation or expropriation — Whether the expropriation was lawful

Remedies — Contributory fault — Mitigation — ILC Articles on State Responsibility, Article 31 — ILC Articles on State Responsibility, Article 39 — Whether the investors’ use of tax avoidance arrangements contributed in a material and significant way to their loss — Whether the investors could have mitigated their loss

Remedies — Quantum — Whether the investors’ loss should be valued at the date of expropriation or the date of award — Whether there was any risk of double recovery