English Court rejects Ukraine’s attempt to set aside enforcement order on grounds of state immunity

The English Court (the “Court“) has dismissed an application by Ukraine to set aside a court order permitting Russian investor, PAO Tatneft, to enforce an arbitral award against Ukraine.  Ukraine argued that it was immune from the Court’s jurisdiction by virtue of the State Immunity Act 1978. The Court found that Ukraine had not waived its right to rely on state immunity arguments, despite not having raising them in the arbitration. However, it found that Ukraine had agreed to submit the disputes in question to arbitration under the Russia-Ukraine Bilateral Investment Treaty (the “BIT“) and was therefore not immune from proceedings in connection with the arbitration by virtue of s9(1) of the State Immunity Act 1978 (“SIA“).

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EU sanctions update: EU extends sanctions against Syria and amends sanctions against Libya and Somalia; further developments relating to Ukraine/Russia

Herbert Smith Freehills has published the latest edition of its Sanctions Update e-bulletin on recent developments in various international sanctions regimes. At EU level these are relatively limited:

  • The EU has announced additional sanctions in respect of the situation in Syria, extending the designated persons list and announcing an imminent restriction on the export of jet fuel to Syria;
  • Minor amendments have also been made to the EU sanctions against Libya and Somalia; and
  • The EU has published two new sets of conclusions on the situation in Ukraine, but these do not discuss possible changes to the sanctions regime.

In the UK, a new Overseas Territories Order extends the current EU sanctions relating to Russia/Ukraine to the British Overseas Territories including the Cayman and British Virgin Islands. Updated guidance on the Russia trade sanctions has been issued by the Export Control Organisation.

To read the full briefing, please click here.

For further information, please contact Rod Fletcher, Partner, Susannah Cogman, Partner, Daniel Hudson, Partner, Elizabeth Head, Associate, or your usual Herbert Smith Freehills contact.

Rod Fletcher
Rod Fletcher
Partner
+44 20 7466 2411
Susannah Cogman
Susannah Cogman
Partner
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner
+44 20 7466 2470
Elizabeth Head
Elizabeth Head
Associate
+44 20 7466 7555

Upcoming Webinar: Sanctions Update: Ukraine and Russia

Monday 22 September 2014, 2.00pm – 3.00pm BST

The international sanctions landscape has continued to develop in response to the situation in Ukraine.

On 12 September, the EU and US both published details of expansions to their existing sanctions against Russia, including in relation to the restrictions on certain Russian companies’ ability to access the EU/US capital markets. Both the EU and US have also designated additional individuals and entities under their respective asset freeze regimes.

In this webinar we will provide:

  • An overview of the current sanctions, including the amendments to the EU and US sectoral sanctions
  • An overview of relevant EU institutions and decision-making processes in relation to sanctions
  • An update on any further EU and US developments during the course of this week
  • An opportunity to pose your questions to our expert team.

Speakers:

If you would like to register for this event please click here. We will then send you an email with the event details and confirmation of your log-in address. If you have queries about the webinars or the registration process please contact: Prudence Heidemans, Webinar co-ordinator, London.

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EU expands sectorial sanctions against Russia

The EU has published new legislation expanding its existing sanctions against Russia. The latest edition of Herbert Smith Freehills’ Sanctions Update briefing provides an overview of the new measures, namely:

  • an expansion of the restrictions on dealing in transferable securities issued by listed Russian banks;
  • the application of these restrictions to listed Russian companies in the military and oil sectors;
  • additional trade restrictions, including in relation to dual use goods and certain services necessary for particular oil projects; and
  • an expansion of the existing asset freeze.

Our briefing also summarises recent UK legislation criminalising breach of certain EU trade sanctions against Russia and provides an overview of recent developments in Australia. Finally, we consider possible future developments in this area.

For further information, please contact Susannah Cogman, Partner, Daniel Hudson, Partner, Oleg Konnov, Partner, Rod Fletcher, Partner, Elizabeth Head, Associate, or your usual Herbert Smith Freehills contact.

Susannah Cogman
Susannah Cogman
Partner
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner
+44 20 7466 2470
Oleg Konnov
Oleg Konnov
Partner
+7 495 363 6531
Rod Fletcher
Rod Fletcher
Partner
+44 20 7466 2411
Elizabeth Head
Elizabeth Head
Associate
+44 20 7466 7555

EU publishes legislation imposing sectoral sanctions on Russia

Herbert Smith Freehills has issued the latest edition of its Sanctions Update e-bulletin on new EU regulations, published on 30 and 31 July 2014, that expand sanctions against Russia in response to the situation in Ukraine. These regulations enact the measures announced by the EU on 29 July 2014.

This briefing provides a summary of the legislation, in particular providing further detail in respect of the following:

  • Restrictions on certain Russian banks’ access to EU capital markets;
  • Trade restrictions relating to the Russian energy and defence industries;
  • Trade restrictions on Crimea and Sevastopol; and
  • Additional individuals and entities designated under the EU asset freezing provisions.

For further information, please contact Rod Fletcher, Partner, Susannah Cogman, Partner, Daniel Hudson, Partner, Elizabeth Head, Associate, or your usual Herbert Smith Freehills contact.

Rod Fletcher
Rod Fletcher
Partner
+44 20 7466 2411
Susannah Cogman
Susannah Cogman
Partner
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner
+44 20 7466 2470
Elizabeth Head
Elizabeth Head
Associate
+44 20 7466 7555

US issues new Ukraine-related sanctions and additional guidance

Herbert Smith Freehills has published the latest issue of its Corporate Crime e-bulletin. This edition covers the new sanctions designations issued by the US Office of Foreign Assets Control (OFAC) in response to the situation in Ukraine, as well as OFAC’s additional guidance regarding the scope of US Ukraine related sanctions.

For further information, please contact Scott Balber, Partner, Susannah Cogman, Partner, Jonathan Cross, Counsel, or your usual Herbert Smith Freehills contact.

Scott Balber
Scott Balber
Partner, US head of investigations and financial services litigation
+1 917 542 7810
Susannah Cogman
Susannah Cogman
Partner
+44 20 7466 2580
Jonathan Cross
Jonathan Cross
Counsel
+1 917 542 7824

Sanctions Update: EU and US introduce further sanctions in response to the situation in Ukraine; EU amends sanctions against Libya, Central African Republic and Syria

Herbert Smith Freehills has published its latest Sanctions Update e-bulletin, on the latest developments in sanctions regimes in Ukraine, Libya, Central African Republic and Syria.

Both the EU and US have introduced limited additional sanctions in light of the current situation in Ukraine, and Australia has announced its list of Ukraine-related designated persons.  The EU has also announced amendments to its sanctions against Libya, the Central African Republic and Syria.  Of these developments, the most significant is a ban on the import into the EU of goods from Crimea and Sevastopol, and any associated financing or re/insurance by EU persons.

For further information, please contact Susannah Cogman, Partner, Elizabeth Head, Associate, or your usual Herbert Smith Freehills contact.

Susannah Cogman
Susannah Cogman
Partner
+44 20 7466 2580
Elizabeth Head
Elizabeth Head
Associate
+44 20 7466 7555

Ukraine – EU imposes asset freeze and travel ban on 21 Russian individuals; US introduces additional Executive Order and imposes asset freeze and visa ban on 11 Ukrainian and Russian individuals

Herbert Smith Freehills has published its latest Sanctions Update e-bulletin, on the imposition targeted sanctions by the EU and US in response to the recent Crimea referendum.

On 17 March 2014, the EU introduced an asset freeze and travel ban applying to 21 Russian individuals. On the same day, the US introduced a second Executive Order, allowing it to sanction Russian individuals and released a list of 11 Russian and Ukrainian individuals subject to an asset freeze and visa ban under its Executive Orders.

For further information, please contact Rod Fletcher, Partner, Susannah Cogman, Partner, Daniel Hudson, Partner, or your usual Herbert Smith Freehills contact.

Rod Fletcher
Rod Fletcher
Partner
+44 20 7466 2411
Susannah Cogman
Susannah Cogman
Partner
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner
+44 20 7466 2470

Ukraine – EU imposes asset freeze on members of former government and issues a statement in relation to Russia; US introduces Executive Order permitting the blocking of assets

Herbert Smith Freehills has issued its latest Sanctions Update e-bulletin, concerning the EU and US response to recent events in Ukraine.

On 5 March 2014, the EU introduced an asset freeze applying to former President Yanukovych and other former government officials and persons associated with the former government. The UK has introduced domestic legislation criminalising breaches of this asset freeze. The EU also held an emergency Heads of State meeting on 6 March. The conclusions from that meeting indicate that there is a possibility of EU sanctions being imposed on Russia in the absence of negotiations between Russia and Ukraine which produce results within a limited timeframe. Also on 6 March the US introduced an Executive Order which would permit the imposition of an asset freeze and visa bans although no companies or individuals have yet been designated.

For further information, please contact Rod Fletcher, Partner, Susannah Cogman, Partner, Daniel Hudson, Partner, or your usual Herbert Smith Freehills contact.

Rod Fletcher
Rod Fletcher
Partner
+44 20 7466 2411
Susannah Cogman
Susannah Cogman
Partner
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner
+44 20 7466 2470

The Law of State Responsibility: University’s conduct not attributable to Ukraine

In an Award on jurisdiction and liability published on 25 October 2012, an ICSID Tribunal dismissed the claims brought by US investors Bosh International, Inc and B&P Ltd Foreign Investments Enterprise (“Bosh International“) for breach of the US-Ukraine BIT (the “BIT“). The claims against Ukraine were based on the Taras Shevchenko National University of Kiev (the “University“)’s decision to terminate a contract for the redevelopment and operation of a property belonging to the University (the “Science-Hotel Complex“).  Bosh attempted to claim under the BIT for breach of contract using the umbrella clause in the BIT which elevated contractual breaches to the level of breaches of treaty. The Tribunal dismissed the claims relating to the conduct of the University on the basis that the the University, not Ukraine, was party to the contract and the conduct of the University was not attributable to Ukraine under the law of State responsibility.

The University was not a “State organ” within the meaning of Article 4 of the Articles on State Responsibility of the International Law Commission (“ILC Articles“), nor was its conduct attributable to Ukraine under Article 5 of the ILC Articles.

The Tribunal’s analysis of the ILC Articles confirms that an investor very often has more than just the jurisdiction and admissibility hurdles to overcome before the Tribunal will address its claims on the merits. In order to establish liability, the investor must show that the conduct complained of is attributable to the State. The Tribunal’s ruling also confirms the two limbs of Article 5 of the ILC Articles: the investor has to show both that the entity in question is empowered to exercise governmental authority, and that the entity actually exercised such authority vis-a-vis the investor.

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