In two judgments on the Yukos case it was published last week. On Monday, the International Arbitration Arbitration in The Hague awarded the three Yukos shareholders $ 50 billion, and on Thursday the European Court of Human Rights (ECHR) ruled to compensate the damage to all shareholders in the amount of 1.866 billion euros.
ECHR decision concerned the violation of the rights of Yukos to respect for property companies in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms: Yukos fined for tax evasion in 2000 and partially in 2001, outside the statute of limitations to prosecute for this violation. Fines Court declared illegal executive duties - partially unlawful and partially - high.
Hague also arbitration studied various aspects of the Yukos affair - from the schemes of tax optimization and justification of the tax claims to issues such as the possible presence of political motivation in state actions and selective application of justice, the provision of Yukos opportunities for the settlement of tax claims, the sale of "Yuganskneftegaz", a review of the audit concludeeniya company PricewaterhouseCoopers (PwC), bankruptcy, initiated at the proposal of "Rosneft" banks. The court ruled that Russia violated its obligations under Article 13 of the Energy Charter, which protects foreign investment in the energy sector by banning their nationalization and expropriation. Arbitration has decided in 2009 that registered in Gibraltar GML (formerly - Group Menatep Limited, the main owner of Yukos), and it controls three companies filed a lawsuit under the protection of the Charter.
The purpose - not taxes, and assets
According to the plaintiffs, Russia's actions against Yukos and related individuals and organizations led to its expropriation in the public interest and state-owned companies, thereby destroying their investments. Yukos evaded taxes, and the methods of collection of arrears were legitimate, the representatives of Russia retorted. The emphasis they did that applied Yukos tax optimization methods were illegal, and the shareholders of such actions themselves have led the company to a sad end.
The main conclusion of the arbitration court: the main goal of Russia was unable to collect the taxes, and obankrotit Yukos and seize its assets. This arbitration assessed the damage to the plaintiffs by the actions of Russia in the $ 66.694 billion, but has made a discount of 25%, saying. Some trading Yukos company abused using vnutriofshornyh zones with tax benefits and the Russian-Cyprus agreement on avoidance of double taxation, which to a large extent contributed to the damage, that the plaintiffs subsequently suffered from the unjust actions of Russia.
However, trading firms in regions with tax incentives used by other leading oil companies, said the court. But the authorities have not shown them tax claims in the least comparable with Yukos. Therefore, the arbitrators determined that the state decided to "use these vulnerabilities to deploy a full-scale attack on Yukos and its beneficial owners with a view to bankrupt Yukos and confiscated its assets, at the same time removing Khodorkovsky the political arena."
Arbitration noted that it is not the prerogative included assessment of the legality of Yukos' tax schemes, and the analysis of the validity of the claims of tax authorities. "With eProcedure of the Russian Federation legislation on tax incentives, Yukos benefited from [their trading] structures in accordance with the laws of Mordovia, a region, which accounted for about 78% of claims related to the revision of Yukos paid taxes in 2000-2004. ", stated in the decision. Meanwhile, in the structure of the closed administrative-territorial formations (CATF) "Forest" and "Trehgornyi", which in the YUKOS considered the most risky in terms of possible violations of tax laws, it accounted for less than 3% of claims. Himself the defendant in the court pointed out that taxes in Mordovia Yukos optimized not to a greater extent than those in the Closed. "In the array of the evidence, the court also found no evidence that would support the respondent's position that were the base of the Russian authorities to conclude, if the structure of [Yukos], for example, in Mordovia, were dummies," ie. E. Used only for tax evasion .
For example, in the act of fielding a tax audit, published in September 2003 (t. E. Just when Lebedev was arrested and conducted searches in the offices of Yukos), saidaxis that registered in Mordovia trading company "Fargoil" "legally use benefits all considered tax" in 2001-2002. But then she 130.24 billion rubles were assessed additional. ($ 4.43 billion) of taxes for 2001-2003. - The highest amount among all the trading firms YUKOS.
If the true goal of Russia was the collection of taxes, with the "Yukos and its managers and employees, property, and did not apply to funds as applied", he stated the Court. "Among other cases, <...> within the purview of the court, there are two: the recognition of Yukos obliged to pay more than $ 13 billion of VAT on export deliveries of oil, which carried out its trading companies and which were to be exempt from VAT and from the corresponding penalties, and sale of "Yuganskneftegaz" at a price below its value. If not for these two cases <...> Yukos could pay off the tax claims, regardless of whether they are justified or not; he would not have gone bankrupt and has not been eliminated, "- says the decision.
Authorities did not leave the possibility of pay. So, April 14, 2004presented Yukos tax claims for 2000, as well as penalties and interest totaling $ 3.48 billion and demanded to make it until 16 April. In this April 15 to the decision of the Moscow Arbitration Court was arrested all the assets of the company in Russia with the exception of cash, oil and oil products. Similarly, the tax authorities, courts and bailiffs acting in the future, said the court. According to him, "yet another confirmation of expropriation intentions of the Russian Federation serves as a systematic refusal to consider the numerous proposals on the settlement of the Yukos tax debt." Court lists five such proposals, including the letter raised by former Canadian Prime Minister Jean Chrétien, President Vladimir Putin and Prime Minister Mikhail Fradkov on the settlement of the case and the payment of $ 8 billion over two years and offer to pay $ 21 billion in October 2004, in including shares of "Sibneft" and by selling non-core assets. But the government decided to sell the main asset of YUKOS - "Yuganskneftegaz", and bailed out only $ 9.35 billion for it.
"SouthNSC "was sold much cheaper than its real value, and rigged auction, the court stated. Besides "Yugansk" put up for auction to repay the tax debt of Yukos for 2000, but at the time of the auction, Yukos has already paid them. It seems that "Yuganskneftegaz" special tax claims of $ 4.6 billion have been put forward before the auction to bring down the price, considered the arbitrators, and the abolition of the courts more of it after the transition to the company "Rosneft" illustrates this point. In addition, the authorities deliberately ignored the opinion of Dresdner Bank (he estimated "Yuganskneftegaz" of $ 18,6-21,1 billion) that the rush to the auction may lead to price reduction. But the purchase of "Yuganskneftegaz" obscure "Baikal" (BFG) arbitration called "one of the darkest chapters" in the history of the auction. The defendant argued that BFG was established in the interest of "Surgutneftegaz", which, by making a deposit, due to unexpected financial problems was not able to pay the full amount, and "Rosneft" only "took advantage of the commercial opportunity" and bought by BFG.
Strange court RepresentatS THE and history with Western banks - Yukos creditors (syndicate led by Societe Generale). After the sale of "Yuganskneftegaz", which was the guarantor on the loan of $ 1 billion, Yukos stopped paying for it. In December 2005, "Rosneft" has signed with banks confidential agreement under which undertook to pay off the balance of $ 455 million, and they - to initiate bankruptcy of Yukos. The Court considered that the creditors "actively encouraged" to enter into this agreement if they want to return the money, because "no reasonable explanation for the commercial" include the requirement for the initiation of the bankruptcy court does not find it.
Considering the Yukos bankruptcy, arbitration has come to the conclusion that it was wrong and unfair to the creditor committee to reject recovery plan, the Court - to declare Yukos bankrupt and then quickly sell its remaining assets. Like the previous actions of the state against Yukos, these can not be explained by the desire to collect taxes, the court found. He sided with the plaintiffs: "It was the final act of destruction by the Russian Federation and the expropriation of the company and itsassets in favor of the Russian state and state-owned companies "Rosneft" and "Gazprom".
The Court examined, and another case in which, in his view, Western companies were forced to put pressure on Yukos and its owners. This review PwC in June 2007, when began the second trial of Khodorkovsky and Lebedev, audit reports on Yukos reports from 1995 to 2004 in connection with the new circumstances that established that YuKOCa leaders deceived auditor on several issues.
PwC in April 2004 refused to work with Yukos, but even after the arrest of Lebedev's Moscow office partner Michael Kubena assured the board that Yukos had never violated the tax laws and the authorities have no reason to complain. In 2006, the government presented a tax claim itself PwC. In 2007, in the company were searched, it was fined in connection with the audit of Yukos and sued on charges of conspiracy, employees and threatened prosecution. The media wrote about a possible withdrawal of the license ( "Gazprom" was among PwC clients, for example). As evidence ofowners published Wikileaks State Department records cited by the court, Kubena complained to the US Embassy that during the March raids employees "humiliated". On another occasion, he called the embassy case of collusion with Yukos and tax claims against PwC «politically motivated».
The prosecutor's office has invited for questioning PwC partner Doug Miller, where he learned new information that formed the justification for revocation of auditor PwC findings. Then Miller and several other PwC employees brought in as witnesses in the second trial against Khodorkovsky and Lebedev. In court documents is an email from 28 March 2009 the prosecutor's office employee Sergey Mikhailov Miller, where the question of the latter, on what issues need to dwell witnesses, Mikhailov wrote: "Indications of each witness from among your company employees shall be uniform, ie. . speak the same, in the same sense, and style (offensive and aggressive towards protection). "
However, Miller always, including in testimony to the US under oath, strongly denied thatRussian law enforcement agencies had on PwC pressure to withdraw the audits. On this evidence the defendant is particularly pointed Hague arbitrators. They are, however, drew attention to the fact that soon after the speech PwC employees on trial against Khodorkovsky and Lebedev, the company won its case in court and paid fines was returned to her.
Reasons for revocation PwC called that Yukos executives deceived her on four issues, in particular argued that the company Behles Petroleum, Baltic Petroleum Trading Limited and South Petroleum Limited (company BBS), which sold part of the exported Yukos oil and oil products, are not related to him . In reality, he said PwC's, they were controlled by shareholders of Group Menatep. The plaintiffs also claimed that if PwC would need to find out the real beneficiaries of these companies, it could at the time to request the necessary information from Yukos. But she did not and signed the audit reports.
The court found that the issue of Yukos management could not provide complete information PwC. But he did not agree that the information that Miller was interrogated in the procurationUr and that justify a review, become "new" for the auditor. Also, before you withdraw the conclusion, PwC's not bother to contact the former managers of Yukos, to seek clarification as required by Russian and international auditing standards.
The Court emphasized that the pressure exerted by the Russian authorities on PwC's, in his view, shows that the "Yukos was the target of a series of politically motivated attacks on the part of the Russian authorities, which led eventually to his destruction."
Why I lost Russia
Strange but true - Russia defended very passive during the process in The Hague. GML was able to provide the performance at The Hague 11 witnesses, among them were top managers of YUKOS Leonid Nevzlin, Jacques Kosyusko-Morizet, Frank Rieger, Bruce Misamore, Steven Theede and former Russian presidential aide Andrei Illarionov. From the declared 12 people refused to come to the hearing only former Prime Minister Mikhail Kasyanov. The Court considered the application of the plaintiffs and their witnesses credible and noted that Russia did not provide their own witnesses, which could opnegate or question the evidence.
Make it could, for example, ex-Finance Minister Alexei Kudrin, the Minister of Taxes and Duties Alexander Pochinok, the governor of Mordovia Nikolai Merkushkin, as well as several other tax officials, who, according to the applicants, to a certain point had no complaints about the tax schemes Yukos. For example, co-owner of Yukos, Vladimir Dubov claimed in court that Kudrin reported on the use of Yukos legal loopholes to minimize taxes, and met objections. But none of the officials in The Hague and has not appeared. Instead, Russia's position advocated mainly experts, proving the legitimacy of the tax claims against Yukos, while Russia accused of illegal expropriation of the company, carried out with the use of tax claims.
The court also expressed regret that the defendant submitted incomplete documents pertaining to this time.
"I do not discuss the matter in detail, but there are several public legal aspects that were wrong - and it is clear", - says deputy chairman of the Committee on Consrestorative Legislation and State Building of the Federation Council Konstantin Dobrynin. He was sure that a mistake was the recognition of the Hague court competent for the dispute, although it is obvious that it is not. After bankruptcy questions - it is a public-law relationship, and not private-law, respectively, the court was not competent to consider the dispute. Now Russia will be much more difficult to form a legal position against the execution of this decision, because refusing at the time of this position, we have recognized the jurisdiction. Nevertheless, it should be done. "Our position can consist in the fact that we gave waived only in part of the case. And not in terms of execution of the decision. Accordingly, it is impossible to fulfill, "- argues Dobrynin.
The former head of the legal department of Yukos, a professor of the University of Westminster Dmitry Gololobov sure that Russia has lost the dispute because it has done almost nothing to win. Relying on random, he says: "I'm very well imagine how it was, gave money to lawyers, and said workyte. And what work? The tax documents are not found, because the people who are doing this have already retired, the investigators almost all the secret investigation. " As a result, Russia will not put up witnesses, and documentary evidence in the gaping obvious failures. The problem of the lack of "political will" to win, that does not bring direct financial benefits as opposed to "pereprivatizatsii" Yukos said Gololobov.
Choosing a law firm representing Russia in this process (Cleary Gotlieb and Baker Botts), also predetermined the outcome of the proceedings, says a lawyer familiar with his swing. The first - the best M & A, the second works in the oil industry, but none of them specializes in international arbitration. I'm sorry, and a client that is not serious attitude to the case, and apparently just decided to take advantage of established relationships with industry lawyers, says the source "Vedomosti".
The main mistake was one sums up Dobrynin: "When working with such a legal project to be understood that this project is not a linear law, and Military LawFirst, with completely different rules and approaches to the organization of work. But in order to use them, these rules need to know. "