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$3.7 million sanction upheld against Moldovan businessmen in UK court battle with Kazakhstan and National Bank of Kazakhstan

Colin Stevens

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An English High Court decision has dealt a decisive blow to Moldovan businessmen Anatolie and Gabriel Stati. Previously, a different judge in the same court said there was evidence the businessmen won an arbitration through fraud. The English High Court ordered, on Thursday 11 March, the Stati business group to pay the Republic of Kazakhstan and National Bank of Kazakhstan $3.7 million in legal fees, rejecting an effort by the Moldovan businessmen to overturn the award of fees, writes Colin Stevens.

This concludes proceedings before the English High Court in which the Stati Parties were unsuccessful in all stages and which relate to the Stati Parties’ ongoing attempts to enforce an arbitral award obtained against Kazakhstan (the “Award”).

In 2014, the Stati Parties obtained an ex parte order from the English High Court giving them permission to enforce the Award subject any defences raised by Kazakhstan. On 6 June 2017 Mr Justice Knowles at the English High Court found that “there is a sufficient prima facie case that the Award was obtained by fraud”. Mr Justice Knowles ordered a full 2-week trial of the fraud issue, which the Stati Parties avoided by terminating the English proceedings. In doing so, the Stati Parties told the English court that they lacked the funds to participate in the fraud trial.

Paradoxically, the Stati Parties then started numerous new court proceedings in six other jurisdictions for which they instructed a number of local counsel and incurred significant legal expenses. In the end, the Stati Parties were allowed to terminate their attempted enforcement proceedings in England on appeal, but only on harsh conditions:  they had to agree to have their prior enforcement order set aside, undertake never to seek to enforce the Award in England again, and accept liability to compensate Kazakhstan for its litigation costs.

The Stati Parties turned to other jurisdictions where, coordinated by King & Spalding International LLP (King & Spalding), they initiated enforcement proceedings and obtained attachments. In Belgium the Stati Parties obtained a freeze of the assets of NBK held by Bank of New York Mellon (BNYM) by alleging that Kazakhstan and not NBK had a claim against BNYM in respect of such assets. The Stati Parties’ counsel wrote to BNYM that “…information available to us shows that BNY Mellon has entered into a Global Custody Agreement with the Republic of Kazakhstan…”. The Global Custody Agreement (the GCA) referred to by the Stati Parties is a contract entered into between BNYM and NBK relating to assets held on custody by BNYM London branch, governed by English law and providing for the English courts to resolve any dispute.

The Belgian court therefore referred the question of who has a claim against BNYM in respect of the assets held pursuant to the GCA to the English court, which in turn led to the proceedings that are now concluded by the default cost order. The Stati Parties lost their challenge to the jurisdiction of the English Court in December 2018.

In April 2020, the Stati Parties lost on the merits when Mr Justice Teare inter alia found that “[t]he obligations owed by BNYM London under the GCA are owed solely to NBK (and not Kazakhstan)”. As today’s decision states: “The Stati parties sought to challenge the jurisdiction of the High Court but were unsuccessful in doing so and this led to the order made on 4 December 2018. The Stati parties were also unsuccessful in the High Court proceedings themselves and were required to pay the claimants’ [Kazakhstan and NBK] costs….”

Having lost the English proceedings, the Stati Parties were ordered to pay the costs but failed to do so. They also failed to react when their counsel King & Spalding was notified in December 2020 that, following the Stati Parties’ failure to engage with Kazakhstan and NBK, ROK and NBK were initiating detailed assessment proceedings of their costs, resulting in the default costs order being made on 6 January 2021 after their 21 days for responding had elapsed. They have now also lost on their attempt to set aside the default cost order.

Marat Beketayev, the justice minister of Kazakhstan, welcomed this decision: “We will continue to take all steps necessary to enforce the costs orders issued by the English Court and we will continue to oppose the Statis’ enforcement proceedings in other jurisdictions. Leading experts have analyzed the facts and come to the conclusion that the Award was procured by fraud and the enforcement campaign of the Statis is unlawful and unethical.”

'It does not make good reading'

In his witness statement King & Spalding partner Egishe Dzhazoyan describes that it took him two weeks to instruct cost lawyers and a further two weeks to transfer the full file: “It took my firm two weeks or so to arrange for a transfer of a copy of the entire electronic data set/file in the required .pst format (…) which was shared with [the cost lawyers] on 4 February 2021. The reason behind the slight delay was to do with the need to seek and obtain certain internal approvals from my firm’s Director of Records & Information Governance concerning collating and sharing this type of data in light of my firm’s data privacy protection policies and procedures.”

In his judgment, Costs Judge Rowley reproduced this part of the witness statement and found that “It does not make good reading”. He goes on to say: “Taking a (further) fortnight to produce a data file in what is a common format for emails in Outlook is surprising. Describing it as “a slight delay” is euphemistic and the reason given for the delay of there being an internal governance issue is both surprising and unconvincing. In circumstances where some criticism of [King & Spalding] might be levied – since that is always a possibility where a default judgment has been entered – it might be thought that priority would be given to any necessary internal approvals being obtained.” He further finds: “In my judgment, the Stati parties have failed to act with sufficient promptness…”. Applying the legal test leads Costs Judge Rowley to find that “[t]here is no doubt in my mind that the failure to comply with the time limit for serving points of dispute is a serious breach of the rules…” and that “[t]here is no good explanation for the breach.”

Fiona Gillett, the partner with conduct of the claim for ROK and NBK said: “As was recognized by Mr Justice Teare in his costs order made following his judgment on the merits dated 22 April 2020 and as was recognised by the Court of Appeal in refusing the Stati’s application for permission to appeal against the costs order, my clients were the overall successful parties and the Stati’s the unsuccessful. The default costs certificate for a sum in excess of US$3.7m stands and my clients will continue to pursue all their rights to recover their significant legal costs from the Statis.”

Another loss for the Statis

The attachment of assets of NBK in the form of cash held by BNYM on an account in London is currently under review in two Belgian proceedings. On 17 November 2020, Kazakhstan’s appeal against the Belgian exequatur decision was also upheld by the Brussel Court of Appeal, which effectively means that Kazakhstan’s fraud case will be re-opened in full. 

As reported previously, on 11 February 2021, the Luxembourg Court of Cassation annulled the Luxembourg Court of Appeal’s decision to confirm the award against Kazakhstan in its entirety. The Court of Cassation decided that the judgment of the appeal court violated due process, as it did not allow the admission of crucial evidence from KPMG, while still relying on it in its judgment. The case will now be heard again by a different chamber of the Luxembourg Court of Appeal.

Moreover, through another landmark decision dated 8 January 2021, the Luxembourg district court recognised the seriousness of the criminal complaint filed by the Republic of Kazakhstan against the Stati Parties with the Luxembourg law enforcement authorities, and stayed the validation of the Stati Parties’ title under the award until the criminal procedure comes to an end. After reviewing the evidence of the Stati Parties’ fraud and the various expert opinions submitted by Kazakhstan, the district court found that there is a sufficient nexus between Kazakhstan’s fraud case and the Stati Parties’ purported civil claims under the arbitral award against Kazakhstan. With the above discussed judgment of the Luxembourg Court of Cassation, the Stati Parties’ alleged title under the award in Luxembourg is without basis altogether.

Furthermore, on 12 December 2020, the Dutch Supreme Court nullified the judgment of the Amsterdam Court of Appeal in the summary proceedings relating to the attachment of the assets of Samruk-Kazyna Sovereign Wealth Fund in the Netherlands. The Supreme Court based its decision on the United Nations Convention on Jurisdictional Immunities of States and Their Property, finding that the sovereign immunity of Samruk-Kazyna's assets has not been disproven.

Earlier last year, the Swedish Svea Court of Appeal also based its decision on the UN Convention while finding that the attachment of NBK’s assets by the Stati Parties is not compliant with public international law obligations relating to affording immunity from execution to central banks' property.

Expert opinion

The Stati Parties’ illicit conduct and fraudulent schemes have also been confirmed by independent legal opinions of two leading experts in international arbitration, Professor George Bermann and Professor Catherine Rogers.

Professor George Bermann provided an independent opinion, analyzing the whole factual background and determining the legal implications of the parties’ conduct in the Stati dispute. Professor Bermann came to a number of conclusions, including finding that the Stati Parties operated their fraudulent machinery through a “deceptive corporate structure” and “sham companies”, by means of which the Statis were able to “enrich themselves at the expense of others”. The expert also determined that “[t]he Statis’ misconduct thus thoroughly compromised the legitimacy of the Arbitration and resulting Award, both as to liability and damages,” making the Award in question “a product of gross deceit [which] is unworthy of recognition or enforcement under the New York Convention”. In Professor Bermann’s opinion, the Statis’ “fraud did not end with the Kazakh operations, the Arbitration or the post-Award Proceedings. It is continuing today by ongoing misrepresentations in the actions pending in various courts.”

Professor Catherine Rogers also reviewed the operative facts, focusing principally on the ramifications of KPMG in August 2019 taking the extraordinary step of withdrawing all of their audit reports for the financial statements relied upon by the Stati Parties. Professor Rogers found that “the tribunal’s decision‐making would have been affected by a determination by the Stati Parties’ own independent professional auditors that their financials were completely unreliable and had been procured through material misstatements or omissions.” The expert is also of the opinion that “this new evidence would have raised independent concerns that the Stati Parties had engaged in underlying fraud and corruption that should preclude them altogether from bringing claims in investment arbitration.”

Kazakhstan

Kazakhstan to work with the EU on climate conference in Nur-Sultan

Catherine Feore

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Following the meeting of the EU-Kazakhstan Cooperation Council (10 May), Portuguese Minister for Foreign Affairs Augusto Santos Silva and Kazakhstan’s Minister for Foreign Affairs Mukhtar Tleuberdi confirmed the mutual commitment in further strengthening bilateral relations. 

The Cooperation Council reviewed the progress made in the implementation of the EU-Kazakhstan Enhanced Partnership and Co-operation Agreement (EPCA), which entered into force on 1 March 2020. Bilateral co-operation between Kazakhstan and the European Union has progressed steadily, even in these challenging times, through continued exchanges in the Co-operation Committee, Subcommittees and dialogues, and today’s Co-operation Council.

Santos Silva said: “Bilateral co-operation between Kazakhstan and the European Union has progressed steadily in relation to trade. Even in a year as difficult as last year, the EU has consolidated its position as Kazakhstan’s main trade partner and first foreign investor and Kazakhstan remains the main trade partner of the EU in Central Asia.”

Abolition of the death penalty

The Co-operation Council also provided an opportunity for reinforced political dialogue and addressed issues of good governance, the promotion and protection of human rights, and engagement with civil society. Santos Silva congratulated Kazakhstan for the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights concerning the abolition of the death penalty. The EU strongly supports Kazakhstan’s further democratization. 

Climate neutrality

Tleuberdi said: “Kazakhstan, like the EU, plans to achieve carbon neutrality by 2060. In this regard we expressed our interest in finding new areas for co-operation under the Paris Agreement and the European green deal.” The EU looks forward to the EU-Kazakhstan Climate Conference on 3 June, in Nur-Sultan, and joint work towards the COP26 on climate.

The Co-operation Council discussed recent developments as regards Central Asian regional co-operation and the EU side thanked Kazakhstan for its active role in promoting peace, stability and security in the wider region, including with Afghanistan. 

Visas

Tleuberdi also raised the issue of visas for Kazakh citizens to facilitate person-to-person contacts, making it easier to visit EU countries. He said the issue remained high on his agenda and that he looked forward to launching negotiations with European colleagues on this issue.

The EU looked forward to the first official visit of President Tokayev to Brussels when conditions allow.

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Kazakhstan to deliver humanitarian assistance to India

Astana Times

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Kazakhstan will provide humanitarian assistance to India due to the sharp deterioration of the epidemiological situation in this country, reported the Akorda Press, writes Zhanna Shayakhmetova.

President Tokayev instructed the government to provide humanitarian aid to India during the meeting with Prime Minister Askar Mamin on 7 May.

This was announced at the meeting of Kazakh President Kassym-Jomart Tokayev and Prime Minister Askar Mamin on May 7.

President Tokayev instructed the government to dispatch 6 million medical masks, 400,000 respirators, 50,000 anti-plague suits, and 105 portable artificial lung ventilation devices made in Kazakhstan.

India observed a record daily rise in coronavirus cases on Friday, bringing total new cases for the week to 1.57 million, according to Reuters.

India is now the second most corona-affected country with the overall cases standing at 21.49 million. 

On May 4, Tokayev delivered a message to Indian Prime Minister Narendra Modi to express “deep solidarity with the Indian nation over the devastating COVID-19 surge in their country.”

The President noted that Kazakhstan is ready “to unite efforts with our Indian friends to contain the spread of the pandemic and provide every possible assistance in the spirit of enduring friendship and mutual support between our states.”

Earlier, it was reported that Kazakhstan will provide humanitarian aid that consists of 10,000 tons of flour to Kyrgyzstan. 

“Guided by the principles of friendship, alliance and strategic partnership with Kyrgyzstan, President Kassym-Jomart Tokayev decided to provide humanitarian assistance to the fraternal Kyrgyz people on behalf of the Kazakh people,”  President’s spokesperson Berik Uali wrote  on his Facebook on May 6. 

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Kazakhstan

Kazakhstan has entered an interesting and critical new stage in its development.

Colin Stevens

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This is one of the conclusions of a major analysis of the early stages of the presidency of Kassym-Jomart Tokayev.

A report authored by political scientist Andrey Chebotarev outlines social, political and economic reforms already undertaken by the president, all initiated despite the country also grappling with the ongoing health pandemic.

Chebotarev stresses that the report is an objective assessment of the political and socio-economic changes taking place in Kazakhstan.

The study concludes that the president’s zeal and commitment for reform “fully resonates with the population.”

The report was commissioned by the respected Kazakhstan Council on International Relations (КCIR).

KCIR is an influential foreign policy think tank established in 2017 and the president is its honorary chairman.

Entitled, “Political Reforms in Kazakhstan: New Course of President Tokayev”, the findings were published in March.

It states that the change of national leadership in Kazakhstan in March 2019 marked the end of the “first crucial political chapter” – nearly three decades long – of the nation’s history and was a timely chance to provide a critique of what has been achieved so far.

The first two years of the presidency of Tokayev’s presidency have posed “serious tests of strength” for him, the government, and for the country, says the report, with the most far-reaching test being the crisis.

 The author, a lecturer in political science, argues that the President should, therefore, be credited with “continuity and consistency" in the implementing reforms.

In 2019, Kazakhstan’s first ever president, Nursultan Nazarbayev, stepped down was replaced by the then-Speaker of the Senate, Kassym-Jomart Tokayev.

Chebotarev says, “This change in the leadership opened the way for certain changes. Under the leadership of President Tokayev, a rather interesting and critical new stage in its development was reached that combines at once elements of evolution, fundamental reform, and crisis response.”

Tokayev, says the report, has “quickly mastered the modus operandi” of a president and has demonstrated the ability to respond promptly to various processes and events and “make quick but well-thought-out and adequate decisions.”

President Tokayev himself has emphasised three key principles – continuity, justice and progress. He says that the main plank of his reforms are pragmatism and quality, universality, continuity and gradualism, a strong presidency, an influential Parliament and accountable government, different opinions and the protection of the rights of the people. 

The report assesses the new National Council of Public Trust with Chebotarev noting, “The unique nature of the council lies in the fact that it is a mechanism for establishing a dialogue between the authorities and society. As its work and reputation grow, this agency will help the head of state position himself as an ombudsman for the national interest and those of the entire Kazakh community in all its diversity, rather than small parties or groups’ interests.”

The council, the report adds, “has strengthened the discourse on political liberalization, encouraged good-faith dialogue between the government and society.”

Its membership reflects various views, ideas, and positions, social and political interests and public dialogue initiated by Tokayev and the NCPT “is intended as a tool for political modernization and the creation of truly democratic institutions, as well as progressive social and economic reforms.”

Despite the pandemic, more than 200 measures are, notes the report, being adopted for the implementation of political, administrative, and socio-economic reforms. 

An example of political reform, says the report, is strengthening the fight against the "shadow" economy, with the aim to reduce its level to 15% by 2025.

Social reform includes the adoption of measures to reduce the debt burden of citizens. The category includes 629,000 people, including large families, families with disabled children or those who have lost their sole breadwinner.

On the economic reform front, Tokayev says that the “creation of a truly diversified, technological economy is not just a necessity for us, but a scenario where there is no other alternative. At the same time, the economy must work to improve the well-being of the people.”

The report also cites him saying, “We must find a positive answer to the growing public demand for a fairer distribution of benefits arising from the growth of national income.”

Accountability has also been improved, says the report, by expanding the role of the Kazakh Parliament in state decision-making and increasing the government’s accountability to the Parliament and people. 

Six of newly created agencies are accountable to the President, an indicator, according to the report, of his “sense of personal responsibility for the country’s overall situation and in certain areas in particular.”

Such efforts have met with public approval and Tokayev has consistently held the first position in all major indicators such as credibility, efficiency, and prospects since assuming power in 2019. Tokayev’s rating increased from 5.4 points to 5.26 points today.

Five institutions headed by the President also received a high level of public trust, it says.

The 36-page report concludes, “The country is experiencing, under the new leadership a rather interesting and critical new stage in its development.

“In 2020, Kazakhstan's leadership had to focus heavily on anti-crisis work. At the same time Tokayev managed to maintain his political course, focused on implementing new political, administrative, and socio-economic reforms. All the results achieved so far under extremely challenging conditions form a sound basis for further progress as the country recovers from the pandemic.”

But it also warns, “According to the international financial institutions, economic recovery will be slow and difficult. Full recovery and simultaneous progress in political, administrative, and socio-economic reforms will take time and continued effort by all concerned.”

Polish MEP Ryszard Czarnecki, who chairs the EU-Kazakhstan Friendship group in the European parliament, welcomes the fact that Tokayev, is paying “special attention” to reducing inequalities while Axel Goethals, CEO, of the European Institute for Asian Studies, also told this site, “Kazakhstan under President Tokayev has also made very positive inroads into increasing general representation and civil society participation in its democratic process.”

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