lateko bank panama

Transcription

lateko bank panama

ICPP
INTERNATIONAL COMMERCIAL
ARBITRATION COURT
Cyprus
DECISION
Of the International Commercial Arbitration Court at
International Committee for Property Protection
on the case No. ICAC r-7/11/14
“shareholders of the company Dastin Handelshaus AG
and Aleksey Schmidt vs. the Russian Federation
and the Grand Duchy of Luxembourg”
On compensation for economic loss – the sum of compensation of expropriated direct
investments and lost profits.
issued of 08/03/2016,
ICAC office in ICPP,
20, Medousis Street, Larnaca, Cyprus
Arbitrator Sergey Avetisyan
EXPLANATORY NOTE:
Some names, abbreviations and explanations
Aleksei Iosifovich Schmidt – Schmidt A.I./A.I. Schmidt/Aleksei Schmidt - a citizen of the Russian
Federation - (director, co-shareholder of CJSC FDI Dastin Market, member of the board and a representative
of shareholders in Russia Dastin Handelshaus AG).
Franc Smidt – a German citizen, formerly till 2001 a citizen of the Russian Federation Franc Schmidt, coshareholder and a member of the board, chairman of the company – Dastin Handelshaus AG.
Vladislav Reger – a German citizen, formerly a citizen of the Republic of Kazakhstan Vladislav Reger
(Gorshkov), co-shareholder and member of the board of the company – Dastin Handelshaus AG.
APC RF – Arbitration Procedure Code of the Russian Federation dated 24.07.2002 No. 95-FL (with
amendments of 17.11.2005).
The Vienna Convention on Contracts for the International Sale of Goods signed on 11.04.1980 the (CCISG or the Convention) is an agreement or multilateral agreement which contains uniform legal norms
governing international sale of goods.
Dastin Handelshaus AG – the company Joint Stock Company Dastin Handelshaus AG, (DHH AG),
registered in the Grand Duchy of Luxembourg under No. 72 027. It is the parent company towards CJSC
“FDI Dastin Market” (99% of share interest) in Russia.
USRLE of the RF – the Unified State Register of Legal Entities – federal information resource, containing
general systematic information on legal entities engaged in business activity on the territory of the Russian
Federation. (Under the provisions of Federal Law on State Registration of Legal Entities and Individual
Entrepreneurs of 08.08.2001, No. 129-F3, with the last amendments and additions).
20, Medousis Str. 6302, Larnaca, Cyprus
Tel: +357 24633944
E-mail: [email protected] | www.worldarbitration.center
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ICPP
Cyprus
CJSC “EFI “DastinMarket” – Closed Joint-Stock Company, an “Enterprise with foreign investments
“Dastin Market”, CJSC “EFI “Dastin Market”, CJSC “DastinMarket”. It is a subsidiary of the Luxembourg
Company “Dastin Handelshaus AG”, JSC in Russia (99% of share interest), Tyumen. It was created by the
shareholders and registered in Russia of 25.06.1998 by the Department of Justice of the Administration of
Tyumen region. 1% of the shares is owned by the citizen of Russia Aleksei Schmidt who was appointed
Director by the shareholders of the company – the sole executive body, registered in the USRLE (Unified
State Register of Legal Entities).
ICAC at ICPP – International Commercial Arbitration Court at the International Committee for Property
Protection (Cyprus, ICAC – International Commercial Arbitration Court, ICPP – International Committee
for Property Protection, Reg. HE 330972).
JSC “Khanty-Mansiysk Bank” – Open Joint Stock Company “Khanty-Mansiysk Bank”, JSC “KMB”,
“KMB”, at present – Public Joint Stock Company “Khanty-Mansiysk Bank Otkrytie” – PJSC “KhantyMansiysk Bank Otkrytie”
RF – the Russian Federation, Russia.
RFPF – Russian Federal Property Fund.
SGCM – self-regulating organization – non-profitable partnership “Siberian Guild of Crisis Managers” – a
self-regulating organization of arbitration managing non-profitable partnership “Siberian Guild of crisis
managers” - NP “SGCM” established in accordance with the Resolution of the Board of Governors of
23.01.2003 No. 121/SG. The initiative to establish a guild was shown by the Governor of Tyumen region –
S.S. Sobyanin, Governor of Yamal-Nenets Autonomous District – U.V. Neyelov, Governor of KhantyMansiysk
Autonomous
Area
–
A.V.
Fillipenko
(abbreviated
name
NP
SGCM)
http://www.npsgau.ru/ru/gildia/index.html. Temporary arbitrator in the bankruptcy case of CJSC “Enterprise
with foreign investments DastinMarket – Yuliy Vasiliev-Chebotaryov, bankruptcy manager in the
bankruptcy case of CJSC “Enterprise with foreign investments DastinMarket – Yuriy Shabalin, both
represent the Guild of SGSM.
RO FSFR – Regional office of the Federal Service for Financial Recovery and Bankruptcy – is the federal
executive body exercising executive, control, licensing, regulatory and organizational functions established
by the legislation of the Russian Federation on financial recovery and insolvency (bankruptcy) of the
organizations. The Federal Service carried out its functions and powers directly and through its territorial
bodies and representatives in their respective territories (established in accordance with the Decree of the
Government of the Russian Federation of 04.04.2000 under No. 301 On approval of the Russian Federal
Service for Financial Recovery and Bankruptcy). Abbreviated name RO FSFR. The successor of FSFR
regarding all legal relations connected with the representation of interests of the Russian Federation in
bankruptcy cases under provisions of the Decree of the RF Government of 30.09.2004 No. 506 is the Federal
Tax Service and its territorial bodies.
Omsk RD of FCSM of RUSSIA – Omsk regional department of the Federal Commission for the Securities
Market. In accordance with the Art. 47 of the Law “On the Securities Market” the regional offices of the
FCSM are formed due to the decision of the FCSM on agreement with the executive authorities of the
constituent entities of the RF to ensure compliance with the established by the legislation rules, regulations
and conditions of the stock market, practical realization of the decisions taken by FCSM and control over the
activities of professional participants of Securities Market. Regional Office of the Federal Securities
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The Commission acts on the basis of regulations approved by the Federal Securities Commission. It is the
authority
which registers emissions of shares issued by CJSC “FDI “DastinMarket”.
FTS of Russia – Federal Tax Service of Russia, the legal successor of the Ministry of Taxes and Charges of
the Russian Federation.
IFTS – Inspectorate of the Federal Tax Service, Tax Inspectorate
Federal Law (FL) of the Russian Federation “On Insolvency (Bankruptcy)” – The Federal Law of
26.10.2002 No.127-FL “On insolvency (Bankruptcy)” as amended of 22.08.2004, 22.12.2004, 31.12.2004,
24.10.2005 in force at the time of consideration of the case of the Arbitration Court of Tyumen region A707994/3-2003.
Federal Law (FL), the Russian Federation of 07.07.1993 (No. 5338-1) “On International Commercial
Arbitration”.
Federal Law (FL) of the Russian Federation of 09.07.1999 (No. 160-FL) “On Foreign Investments in the
Russian Federation”.
UNCITRAL - United Nations Commission on International Trade Law (UNCITRAL), the principal judicial
body of the United Nations system in the field on international trade law. UNCITRAL model law –
UNCITRAL model law “On International Commercial Arbitration”, approved by the United Nations
Commission on international trade law of 21.06.1985 and recommended by the United Nations General
Assembly of 11.12.1985 (Resolution 40/72).
The source of law for the ICAC at ICPP in this case, the model law UNCITRAL and the UNCITRAL
Arbitration Rules (http://www.uncitral.org).
Precedents - http://www.uncitral.org/pdf/russian/clout/CISG-digest-2012-r.pdf.
The arbitration judge of ICAC at ICPP Sergey Avetisyan (Ukraine) replaced the arbitrator Igor
Buryak solely, in accordance with Articles 7 - 10, Art. 17 Articles 14-15 of the UNCITRAL Arbitration
Rules, considered the claims for compensation of direct economic damage in connection with the
expropriation of direct investment in the Russian Federation and the loss of profit on behalf of the
Claimants:
the company Dastin Handelsaus AG (address of the company from the extract from the register: 24,
avenue Monterey, L-2163 Luxembourg Grand Duchy) on behalf of:
− Director and co-shareholder V. Reger (German citizen passport of the of, page 231 volume 1); coshareholder of the company Dastin Handelsaus AG the German citizen Franc Smidt (German citizen
passport case sheet 321, volume No.1),
and the citizen of the Russian Federation Aleksei Iosifovich Schmidt, co-shareholder and director of
CJSC “EFI “DastinMarket” (Russian citizen passport case sheet 8, volume No. 2);
to the Defendants:
The Russian Federation
− On behalf of the Russian Federation Government, address: Russian Federation, 103274 Moscow,
Krasnopresnenskaya embankment Street, 2, building 2, and on behalf of the Ministry of Finance of
the Russian Federation, address: Russian Federation, 109097, Moscow, Ilyinka Street, 9;
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Self-regulating organization - non-profitable partnership “Siberian Guild of Crisis Managers”, address:
121059,
Russian Federation, Moscow, Berezhkovskaya embankment Street, building 10, offices 200 and
628001, the Russian Federation, Khanty-Mansiysk Autonomous district, Khanty-Mansiysk, Koneva Street,
build. 18;
Public Joint Stock Company “Khanty-Mansiysk Bank Otkrytie”, address (registration and office): the
Russian Federation, 119021, Moscow, Timur Frunze Street, Building 11, construction 13 and 628012, the
Russian Federation, Khanty-Mansiysk Autonomous district Yugra, Khanty-Mansiysk, Mira Street, 38.
Grand Duchy of Luxembourg represented by the Government and the Ministry of Economy and Trade of
the Grand Duchy of Luxembourg, 19-21, Boulevard Royale, L-2449, Luxembourg.
On behalf of:
The Claimants:
− shareholder and director of the company Dastin Handelshaus AG V. Reger (identity proven by the
passport);
− shareholder of the company Dastin Handelshaus AG Franc Smidt, member of the board, president,
chairman of the company Dastin Handelshaus AG (identity proven by the passport);
− Russian citizen Aleksei Schmidt, member of the board of the company Dastin Handelshaus AG,
Director of its subsidiary company in the city of Tyumen, the Russian Federation – CJSC “EFI
“DastinMarket” (identity proven by the passport). The rights of shareholders and posts of the
plaintiffs-claimants are proven by the arbitration judge according to the extracts from state registers
from the companies in Russia and the Grand Duchy of Luxembourg.
of the Defendants –
representatives were absent from the arbitration court; documents confirming respectful absence of the
representatives were not provided.
In accordance with Articles 2, 17 of the Regulation of ICAC, the parties were duly notified of incoming
claims, time and place of the arbitration.
1.
On the subject of action the stated claims:
As of 07.07.2014 Ref. No. r-7/11/14 to the attention of ICAC at ICPP a statement of claim was
received from the shareholder and director of the Grand Duchy of Luxembourg Dastin Handelshaus AG
Mr.V. Reger (V. Reger) of 06.08.2014, Ref. No. 6-08/14 to the attention of the Russian Federation for
compensation to the shareholders of the company Dastin Handelshaus AG caused direct economic losses on
the amount of 13 080 808.05 Euro (thirteen million, eighty thousand eight hundred and eight Euro and 0.5
euro cents). Requirements are intervened in the proceedings under the case No. ICAC r-7/11/14 by decision
of 11.08.2014.
17.10.2014 to the attention of ICAC at ICPP a statement of claim was received of the citizen of the
Russian Federation A.I. Schmidt Ref. No.1 on compensation of property damage in the amount of 88
000 000.00 (eighty eight million) of Russian roubles and 200 000.00 (two hundred thousand) of US dollars
to the Russian Federation. Requirements are intervened in the proceedings due to the case of 10/09-27/2014
of 24.10.2014. Statement of case to clarify the statement of claim of the Russian citizen A.I. Schmidt was
received by the court registry of 10.11.2014 Ref. No. 15/11-10/2014 with a request to consolidate
requirements
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with the requirements of the case ICAC r-7/11/14. The petition was satisfied and statement to
clarify the requirements was intervened in the proceedings due to the case No. ICAC r-7/11/14 by the
Decision of 10.11.2014 as the subject of the claim contains property claims to the same defendants based on
the violation of rights and interests of the plaintiffs in the procedure of bankruptcy of the company CJSC
“FDI” DastinMarket”, 99% of ordinary book-entry shares of which is owned by the investor – the company
Dastin Handelshaus AG, and 1% by the citizen of the Russian Federation A. Schmidt.
As of 10.11.2014 to the attention of ICAC at ICPP within the case 1SAS r-7/11/14 (additionally to
the claim of the shareholder and director of Dastin Handelshaus AG V. Reger to the Russian Federation) was
received the consolidated claim on behalf of the shareholder of the company Dastin Handelshaus AG Franc
Smidt (Franc Smidt) on recovering payment in favor of the shareholders of Dastin Handelshaus AG of the
amount of inflicted direct and indirect damages, loss of profits in accordance with the expert testimony and
the existing reports and assessments by independent appraisers.
10.11.2014 the arbitrator of the ICAC at ICPP I. Buryak delivered the procedural Decision to
consolidate the incoming stated claims in favor of shareholders of the company Dastin Handelshaus AG on
behalf of V. Reger and Franc Smidt to the Russian Federation in within the arbitration proceeding No. ICAC
r-7/11/14 for further consideration as the statement of the claims concerns property claims to the same
defendants, based on the violation of rights and interests of the plaintiffs in the process of bankruptcy of
CJSC “FDI “DastinMarket”, 99% of shares of which is owned by the investor – foreign to Russia company
DastinHandelshaus AG, and 1% - by the citizen of the Russian Federation A. Schmidt.
As of 26.03.2015 from the shareholders of the Company DastinHandelshaus AG V. Reger and F.
Smidt a petition was received with the application of additional evidence in the case (Ref.) No.16/0326/2015 concerning the involvement to the arbitration as a codefendant the Grand Duchy of Luxembourg,
represented by the Government of the Grand Duchy of Luxembourg, the Ministry of economy and foreign
trade of the Grand Duchy of Luxembourg. By the Decision of ICAC at ICPP of 26.03.2015 the petition to
prosecute as an adviser the Grand Duchy of Luxembourg was satisfied of which the codefendant was duly
notified on 01.06.2015.
2.
Establishment of arbitrability and competence of ICAC at ICPP:
As of 11.08.2014 ICAC at ICPP delivered the Decision on arbitrability and the case intervened in
the proceedings (case sheet 335 volume No. 1) due to the following:
2.1. The competence of ICAC at ICPP represents the complex of established by normative legal
acts tasks, functions, rights and duties (powers) in accordance with the Law of the Republic of Cyprus “On
International Commercial Arbitration” of 29.05.1987, the Statute of the International Committee for the
protection of property, Regulation on ICAC at ICPP, its own Regulations, the Convention “On recognition
and enforcement of foreign arbitral decisions” (New York, 10.06.1958), the UNCITRAL Model law “On
international Commercial arbitration” (as revised of 1985, with amendments of 2006).
2.2. Considering the fact that the objective arbitrability specifies the categories of disputes that
may be the subject of an arbitration agreement, considering paragraph 6 of the Article 1 of the Regulations of
ICAC, under the provisions of which, using the procedures established by the Regulations, ICAC has the
right to deal with disputes arising from the economic, commercial,
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economic and trade contracts and agreements, disputes arising from investment contracts and agreements,
including in accordance with the RF Law “On Foreign Investments in the Russian Federation” concluded of
09.02.1989 between the Governments of the USSR and the Governments of the Kingdom of Belgium and
the Grand Duchy of Luxembourg Agreement “On mutual promotion and mutual protection of investments”.
Subjective arbitrability determines the ability of the parties to enter into a valid arbitration
agreement, i.e. the opportunity to be the parties of arbitration agreement or contract. In the Agreement
between the Governments of the USSR and the Governments of the Kingdom of Belgium and the Grand
Duchy of Luxembourg “On mutual promotion and mutual protection of investments” in Art. 10 it is
explicitly provided the right of the investors to appeal to the arbitration, including ad hoc in accordance with
the Arbitration Rules of the Commission of the United Nations on International Trade Law (UNCITRAL).
Furthermore, between shareholders of the company Dastin Handelshaus AG there is a separate arbitration
agreement (sheet case No. 329 volume No.1).
2.3. The right to engage in the process and take part in the formation of the competent authority
for arbitration offered to defendants in strict accordance with the Model Law UNCITRAL, UNCITRAL
Arbitration Rules and the corresponding Regulations of ICAC at ICPP after proper notification the
defendants by the claimants and the arbitration court. The same right had Grand Duchy of Luxembourg after
proper notification regarding attraction as a codefendant in the arbitration. Although the defendants having
their rights deriving from the rules of the Arbitration Commission of the United Nations on International
Trade Law (UNCITRAL) did not exercise their right, subjectively the Russian Federation, the Grand Duchy
of Luxembourg and the entities in accordance with the concluded of 09.02.1989 Agreement between the
Governments of the USSR and the Governments of the Kingdom of Belgium and the Grand Duchy of
Luxembourg “On mutual promotion and mutual protection of investments”entered into the legal category of
the dispute (protection of investments and fair compensation to investors). Besides, existence of the relevant
Agreement between the countries in one of which the investor made investments, eliminates him (the
investor) from the need to separately obtain the consent of the country to the adjudgement in the commercial
arbitration.
2.4. Arbitrability of the dispute is also determined by the Law “On International trade (commercial)
courts of arbitration” which was adopted in the Republic of Cyprus where ICAC at ICPP is located
and where the present arbitration is executed. In this regard, the norms of Cypriot legislation
duplicate the Convention “On the Recognition and Enforcement of Foreign Arbitral Decisions”
(New York, 10.06.1958) which is correlated with both the RF Law of 07.07.1993 “On International
Commercial arbitration” as well as law provisions of the Grand Duchy of Luxembourg.
Requirements to the dispute nature assume a foreign element – in this dispute the parties represent
the Grand Duchy of Luxembourg and the Russian Federation, that is, they are foreign entities both in
relation to each other and to the Republic of Cyprus where the International commercial arbitration
court at ICPP is located and arbitral proceedings in this case are executed which corresponds to the
UNCITRAL arbitration Regulations and Regulations of ICAC at ICPP on arbitrability (Preamble
and Art. Art. 1 and 3 of the Regulations).
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2.5. At consideration of the question by the International Commercial Arbitration Court of its
arbitrability (competence) and adoption of the stated claims to its consideration the following was taken into
account:
As of 24.06.1994 by the Russian Federation, on the one hand, and the European Communities and
their member-countries, including the Grand Duchy of Luxembourg, on the other hand, signed the
“Agreement on partnership and cooperation”, additionally to the Agreement with the EU the Protocol was
signed, ratified in accordance with the Federal Law of 05.11.2004, No. 130-FL “On ratification of the
Protocol to the Partnership Agreement and Cooperation establishing a partnership between the Russian
Federation on the one hand and European Communities and their member-countries, on the other hand,
taking into account the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus,
the Republic of Hungary, The Republic of Latvia, the Republic of Lithuania, the Republic of Malta, the
Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union” adopted by
the State Duma of the Russian Federation of October 22nd, 2004 and approved by the Federation Council of
the Russian Federation of October 27th, 2004.
According to the Art. 98 of the Agreement with the EU: “In within framework of this Agreement
each Party shall provide free from discrimination, compared their own persons, access of natural and legal
persons of the other Party to the competent courts and administrative authorities of the Parties to defend their
individual rights and property rights, including those relating to intellectual property. Within the framework
of their respective competencies the Parties shall: “1) patronize arbitration for the settlement of disputes
arising in connection with commercial transactions and cooperation concluded by economic operators of
Russia and the Community; 2) agree that when a dispute is submitted to arbitration, each party to the dispute
can, unless otherwise provided by the rules of the arbitration center chosen by the parties, appoint its own
arbitrator, irrespective of his nationality, and that the presiding third arbitrator or the sole arbitrator can be a
citizen of a third country; 3) patronize the use of arbitration rules elaborated on International Trade Law of
the United Nations Commission (UNCITRAL) and the arbitration in any center of a member-country to the
Convention on the Recognition and Enforcement of Foreign Arbitral Decisions, adopted in New York on
10.06.1958”.
2.6. Under a separate legal act the Republic of Cyprus through the accession process which took
place of 29.12.1980 extended the “Convention on the Recognition and Enforcement of Foreign Arbitral
Decisions” adopted in New York on 10.06.1958 became effective on its territory of 29.03.1981.
2.7. Considering that the main demands of the claimants to compensate direct economic damages
and loss of profits as a result of the expropriation and other discriminatory enforcement of deprivation of
property rights to their capital investments (investments) and property in the Russian Federation, which was
illegally, in their opinion redistributed, as a result of unlawful actions of the state authorities of Russia with
the participation of government agencies in favor of the bank with state participation in the capital and in the
management of JSC “Khanty-Mansiysk Bank” which is confirmed by the materials of the case in the
Arbitration Court of the Tyumen region A70-7994/3-2003 and considering the repeated requests of the
Claimants in within 2002-2014 to the courts and authorities of the Russian Federation (which has already
been established by the Final decision of ICAC of 22.10.2014 on the case No.ru-07-04\2014) including in the
framework of the bankruptcy proceedings of JSC “EFI “DastinMarket” and executive proceedings under No.
982-8-03 and criminal case No. 200403835/14 in the Russian Federation, to restore their violated rights and
economic interests, including claims of
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the shareholders of Dastin Handelshaus AG to the Ministry of Justice in Luxembourg and the
Ministry of Economy and Trade of the Grand Duchy of Luxembourg, which did not bring just and lawful
legal consequences, ICAC at ICPP states that on behalf of the Claimants all necessary measures were taken
to protect their investments. And it gave the opportunity to the public authorities of Russia and the Grand
Duchy of Luxembourg to initiate formal legal procedures for the peaceful settlement of the question and for
conduction of negotiations to recover capital investments in the form of funds to the investors, of which the
both countries did not take advantage, and which in turn gives the claimants the right to appeal to the
International Commercial arbitration in accordance with the arbitration Rules of the United Nations
Commission on international trade law (UNCITRAL) and the Agreement between the Government of the
USSR and the Government of the Kingdom of Belgium and the Grand Duchy of Luxembourg “On mutual
promotion and mutual protection of investments” of 1989.
2.8. Additionally, the competence of ICAC in the dispute between the Claimant and the
Defendant is confirmed by the Law of the Republic of Cyprus of 29.05.1987 No. 101 “ON
INTERNATIONAL COMMERCIAL ARBITRATION” by virtue of the fact that this Law is applicable to
the international commercial arbitration on condition of compliance with any agreements in force between
the Republic of Cyprus and any other country or countries. That, in turn, corresponds to the above mentioned
international agreements to which the Republic of Cyprus is the party to. Thus, according to the Art. 2 of the
abovementioned Law: if the context does not specify otherwise, in this Law “arbitrary” means any
arbitration, regardless of whether it is carried out by the permanent arbitral institution or not, “arbitrary
court” means a single arbitrator or a panel of arbitrators.
Paragraph 2 of the Art. 2 of the Law stipulates that arbitration is “international” if:
(a) the parties to the arbitration agreement at the time of its conclusion are in different countries;
(b) one of the following places is situated outside the country in which the parties have their
commercial enterprises: the place of arbitration, if determined in the arbitration agreement or in accordance
with it.
Paragraph 4 of Article 2 of the Law defines the term “trade” which covers matters arising from all
relationships of a commercial nature.
2.9. ICAC also took into account that the party to the European Convention on International
Commercial Arbitration of 21.04.1961 is the Russian Federation (signed: 21.04.1961, ratified: 27.06.1962)
and the Grand Duchy of Luxembourg (joined: 26.03.1982).
2.10. In accordance with the Rules of ICAC at ICPP of 20.09.2014, the arbitrability and
jurisdiction of ICAC is considered the lawsuit initiated by the Claimant in accordance with the rights, arising
out of international Contracts and Conventions, if the Claimant is an individual or a legal entity signing these
Contracts and Conventions and if such Contracts and Conventions directly specify dispute resolution by the
entities in arbitration and international arbitration courts.
2.11. To the competence of ICAC at ICPP on the basis of its own regulations, based on the
UNCITRAL Arbitration Regulations , different nature of economic (commercial, economic, trade), civil and
labor disputes, intellectual property disputes are related, property disputes between residents of different
countries or residents of one country on the object and subject of the international law to be considered in
accordance with the Regulations UNCITRAL. The Regulations govern the arbitration executed by ICAC.
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ICAC at ICPP also adjudicated disputes arising from economic, commercial, economic and trade
agreements and contracts where at least one of the parties to the dispute is a non-resident of the Republic of
Cyprus – a legal entity of a foreign jurisdiction or an individual – a citizen of a foreign country.
Under these circumstances, the International Commercial Arbitration Court at the International
Committee of the protection of property (Cyprus) is competent to adjudicate the present dispute.
3.
On the procedure of the arbitrator appointment:
3.1. The procedure for appointing the arbitrator is governed by the Art. 7 of the Regulations of
ICAC at ICPP and Section II of the UNCITRAL according to which:
“if the parties did not previously agree on the number of arbitrators and if within 14 days after the
receipt by the Defendant of the notice of arbitration the parties did not agree that there will be the single
arbitrator, there shall be three arbitrators.
Notwithstanding paragraph 1, if other Parties did not respond to the proposal of any party to
appoint a single arbitrator within the period specified in paragraph 1 and the relevant party or parties failed to
appoint the second arbitrator in accordance with the Article 9 or Article 10 of the Regulation, the
International Arbitration Court can, at the request of any party, appoint a single arbitrator according to the
procedure provided in paragraph 2 of the Article 8, if it determines that is more appropriate in the
circumstances of the proceedings”.
3.2. By its notice of the commencement of arbitration proceedings from 02.10.2014 under No.
ru024, ICAC at ICPP, guided by the Art. 7, 8, 9, 10 of the Regulation, offered to the Defendants within thirty
days of receipt of this notice with attachments via DHL to choose an arbitrator from the list of arbitrators of
ICAC, placed on its website: www.worldarbitration.center or send notification to ICAC on a adjudication by
the single arbitrator and warned the Claimants of their right to apply for the consideration of the arbitration
proceedings by the single arbitrator, in case if on behalf of the Defendant, within the specified term, no offers
on the appointment of the second arbitrator was received and explained to the parties as well, that after the
appointment of the second arbitrator, the two arbitrators shall select the third – the Chairman of the
arbitration commission or he will be appointed by the Chairman of ICAC at ICPP.
3.3. Despite the fact that the Government and the Ministry of Finance of the Russian Federation
received the abovementioned notification on 06.10.2014, at (postal notification of DHL No.N006 RU MOWNKT NKT WAYBILL 85 6980 8391 – regarding the sent arbitration notice by ICAC of 03.10.2014
addressed to the Government of the Russian Federation on the commencement of arbitration proceedings as
of 02.10.2014, No. ru024 and the postal notice of the company DHL No. N006 RU-DME-DON DO76
WAYBILL 85 6980 8380 – regarding the sent arbitration notice by ICAC of 03.10.2014 addressed to the
Ministry of Finance of the Russian Federation on the commencement of arbitration proceedings as of
02.10.2014, No. ru-024) the latter did not exercise its right to choose the arbitrator and ignored the procedure
for appointing the arbitrator.
3.4. Through the registry office of ICAC of 06.11.2014 on behalf of the shareholders of the
company Dastin Handelshaus AG was received a petition for the appointment of a single arbitrator in the
case (Ref.No.13\11-06\2014) and due to the lack of proposals on the appointment of the second arbitrator by
the Defendant with a view to avoid additional costs of the arbitration and delay in adjudication of the
arbitration case on its merits.
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11.11.2014 by the decision of the Chairman of the Trial Chamber of ICAC the Acting Chairman of ICAC at
ICPP, the case No. ICAC r-7/11/14 the single arbitrator was appointed Igor Buryak (Ukraine), who in the
manner prescribed by UNCITRAL Arbitration Regulations carried out arbitration of the present case No.
ICAC r-7/11/14 (case sheet 334 volume No.1).
3.5. Before appointing an arbitrator in arbitration proceedings Igor Buryak had no legal and
business relations with the Claimants and the Defendants, had the appropriate qualifications, free from any
obligations in front of the parties of the proceedings, is a third country citizen with respect to the countries of
the parties to the arbitration proceedings which is a background for independence, fairness and impartiality.
3.6. At the stage of the adjudgement of arbitration decision of the case No. ICAC r-7/11/14 the
replacement of the arbitrator took place as had been requested by the plaintiffs. Judge I. Buryak by the panel
of arbitrators was removed from the execution of the final decision on the case for non-compliance with
procedural terms. By the decision of the Chairman of ICAC at ICPP on the case number ICAC r-7/11/14
appointed the arbitrator Sergey Avetisyan (Ukraine) which did not have any legal and business relations with
the claimants and the defendants, has the appropriate qualifications, free from any obligations in front of the
parties of the proceedings, is a citizen of a third country with respect to the countries of the parties to the
arbitration proceedings which is a background for independence, fairness and impartiality.
By the decision of the Chairman of ICAC the arbitrator Sergey Avetisyan, due to the exceptional
instance, was given a three-month period to study the case and the evidence base and an additional twomonth period to adjudge the Decision on the finished in the arbitration proceedings case of 30.06.2015 No.
ICAC r-7/11/14.
4.
On the chronology of the arbitral proceedings:
4.1. The arbitral proceedings of the dispute were carried out in the period from 11.08.2014 till
30.06.2015 in the office of ICAC at ICPP in Larnaca, Cyprus.
As of 30.06.2015 the arbitration was completed. The arbitrator Igor Buryak defined the term of the
Decision – within 4 months after the end of the arbitration proceedings under the Regulations of ICAC at
ICPP.
As of 30.10.2015 by the decision of the Managing Board of ICAC the powers of the arbitrator
ICAC I. Buryak was suspended by the request of the claimants on the replacement of the arbitrator in the
case.
As of 15.11.2015 the arbitrator I. Buryak was excluded from the list of recommended arbitrators of
the ICAC at ICPP by the order of the President.
As of 15.11.2015 familiarization with the case was proceeded by the arbitrator Sergey Avetisyan
with the purpose of adjudging the final decision. Chairman of ICPP determined the 3-month period to review
the case materials and an additional two-month term for the decision.
Based on Art. 17 of Section 1 of the UNCITRAL and guided by the Art. 14 the competent authority
– ICAC at ICPP identified as an exceptional instance and deprived the defendants of the right to appoint a
new arbitrator for ignoring the arbitration proceedings as well as due to the fact that the hearing of the case
was completed of 30.06.2015. The arbitrator S. Avetisyan was appointed
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by the Chairman of ICAC for the adjudging of the final decision in accordance with the Art. 15 of
UNCITRAL.
4.2. In the course of the arbitration proceedings to ensure the procedural rights of the Parties of
full, comprehensive and objective establishment of all circumstances of the case, in the arbitration sessions
were declared breaks, hearings were postponed, including of 10.11.2014, 25.11.2014, 28.02.2015,
26.03.2015, the judicial examination was conducted as well as the inquiry of participating in the proceedings
parties.
4.3. Of all the dates of the arbitration sessions, the parties were notified in advance by judicial
notices sent by post DHL, with consideration of receipt acknowledgements by the addressees of which the
relevant reports are present in the arbitration case No. ICAC r-7/11/14 as well as individual receipts of the
entities in the form of acknowledgements about receipts of notifications of the judicial documents (case sheet
330-333, volume No. 1, case sheet 207-219, volume No. 2, case sheet 221-225, volume No. 2, case sheet 117, volume No. 6, case sheet 23-38, volume No. 6, case sheet 345-360, volume No. 6, case sheet 361-374,
volume No.6).
4.4. Over the entire period of the arbitration proceedings No. ICAC r-7/11/14 from 11.08.2014 till
30.06.2015, to the address of ICAC at ICPP on behalf of the Defendants no claims were reported of nonconfidence of the arbitration panel and challenge of the arbitrator, his competence as well as claims
concerning lack of jurisdiction or the arbitrability of the dispute, any objections and comments to the subject.
4.5. As of 03.09.2014 the registry office of ICAC received a cover letter on behalf of the
shareholders of the company Dastin Handelshaus AG with a request to enter upon the record the
confirmation of the direction of the notification of arbitration proceedings against the Defendants (case sheet
308-319, volume No.1).
4.6. As of 17.09.2014 through the registry office of ICAC was sent an explanation of the Director
and the shareholder of the Company Dastin Handelshaus AG Vladislav Reger (Vladislav Reger) (case sheet
315-328, volume No.1).
4.7. When sending notification of commencing the arbitration proceedings from 02.10.2014 No. ru024 and the appointment of the arbitration session on the stated claims as of 10.11.2014, ICAC at ICPP
offered to the Defendants within thirty days of receipt of this notification with attachments via DHL to
choose an arbitrator from the list of arbitrators of ICAC, published on the website:
www.worldarbitration.center, or to send to ICAC a notification on the single arbitrary (case sheet 330-333,
volume No. 1).
4.8. As of 27.10.2014 through the Office of ICAC was received a petition on behalf of Schmidt
A.I. with a request to enter upon the record the confirmation of direction to the Ministry of Finance of the RF
a notification of arbitration from 17.10.2014 to confirm the postal direction (case sheet 165-167, volume
No.2).
4.9. Through the registry office of ICAC of 10.11.2014 the consolidated claim was received
regarding compensation of economic losses (in addition to the claim of the shareholder and director of the
company “Dastin Handelshaus AG” V. Reger) from the shareholder of this company F. Smidt (Franz Smidt)
as well as documents confirming sending of the consolidated claim and notification of the arbitration at the
addresses of the Defendants (case sheet 338-432, volume No. 1, case sheet 199-205, volume No.2).
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4.10. A petition was received from the shareholders of “Dastin Handelshaus AG” with the request
to enter upon the record the additional documents (case sheet 433-441, volume No.1).
4.11. In the arbitration session as of 10.11.2014 the plaintiff Schmidt A.I. gave the specification to
the statement of claim (Ref. No. 15\11-10\2014) and stated the petition for entering upon the record of his
claim in the manner prescribed by the Art. 17-1 of the Regulations of ICAC to the materials of the present
arbitration case and supported the petition of the Claimants’ representative about consideration of the claims
by the single arbitrator (case sheet 169-198, volume No.2).
4.12. After reviewing the arguments set out in the statement of claim of F. Smidt and the statement
of claim (with specifications) of A. Schmidt, the annexes thereto, the arbitrator of ICAC at ICPP came to the
conclusion to enter upon the record the materials of the present arbitration proceedings in essence of the
stated requirements, consolidation of the claims for further consideration of which it delivered the Decision
of 10.11.2014 on consolidation of the claims on the case ICAC r7/11/14 (case sheet 220, volume No. 2).
4.13. The arbitration session on Claimant’s claims was scheduled for 25.11.2014 of which all the
parties of the proceedings had been notified in advance.
4.14. As of 24.11.2014 the registry office of ICAC received a petition of Schmidt A.I. to enter the
materials upon the record to the materials of the arbitration case confirming directed specifications to the
claim in favour of the Defendants (case sheet 226-230, volume No.2).
4.15. In the official arbitration meeting of 25.11.2014, the petition was received on behalf of the
Plaintiffs to conduct expert testimony in order to confirm additionally and substantiate the stated claims
namely: determination of the market value of the property complex of CJSC “EFI “DastinMarket”,
determination of the value of the block of shares of CJSC “EFI “DastinMarket” and the size of the loss of
economic benefits for the period from 17.03.2004 till 25.11.2014 (case sheet 233-258, volume No.2).
In the arbitrary session the Claimants supported the foundation and the requirements set out in the
statement of claims and explained that at the date of the court hearing the stated claims were not satisfied.
4.16. The Claimant Schmidt A.I. of 25.11.2014 made a petition through the registry office of
ICAC to enter upon the record to the materials of the case the reports on assessment of the property complex
of CJSC “EFI “DastinMarket” and an assessment of the right to claim for reimbursement of compensatory
payments (case sheet 260, volume No. 2, case sheet 1-478, volume No.3).
4.17. The arbitrator in his Decision of 25/11/2014, taking into account the need for full,
comprehensive and objective consideration of all the circumstances of the arbitration proceedings and the
establishment of truth, satisfied the abovementioned petitions on entering upon the record of the materials of
the case (case sheet 1-3, volume No. 4) and the appointment of expert testimony in the manner prescribed by
the Art. 29 of ICAC Regulations, appointed expert testimony, the conduction of which shall be performed by
the expert organization from Russia: Limited Liability Company “VIP Group” (PNRN (Primary National
Registration Number) 1027200807644), location: the Russian Federation, 625035, Tyumen region, Tyumen,
50 years of VLKSM, building 91, let. “B”, office 134 (case sheet 4-5, volume No.4).
The following questions were addressed to the expert:
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determine the market value of the property complex of CJSC “EFI “Dastin Market", located at the
address: Russia, Tyumen region, Tyumen, Damiana Bednogo Street, build. 96, construction 14, put
into operation of 07.08.2001 on the date of 25.11.2014;
• determine the value of the block shares of CJSC “Enterprise with foreign investments”
“DastinMarket” as of 17.03.2004;
• determine the loss of economic benefits during the period from 17.03.2004 till 25.11.2014.
4.18. In the manner prescribed by the Section 2 of the Art. 29 of ICAC Regulations and Article 29
of the UNCITRAL Arbitration Regulations, it was offered to the Parties of the arbitration proceedings within
two calendar days of receipt of the notification by DHL to send to the address of ICAC, if any, valid
objections with supporting written evidence regarding impartiality, qualifications or the independence of the
appointed expert (case sheet 6-21, volume No. 4).
As of 30.06.2015 – by the end of the arbitration proceedings – no objections were received to the
address of ICAC regarding the expert candidacy of the expert organization.
•
4.19. As of 05.02.2015 to the address of ICAC an Expert opinion was received with supplements
of 13.01.2015 under the case No. ICAC r-7/11/14 (case sheet 1-441, volume No.5).
4.20. As of 11.02.2015 the registry office of ICAC received an Expert statement with the materials
on the merits of the raised questions (case sheet 442-443, volume No.5).
4.21. By the notification to the parties, ICAC of 12.02.2015 No. ru-03\02-11\2015 announced the
appointment of an arbitration hearing on 28.02.2015, and explained as well to the parties that according to
Section 4, of the Art. 29 of ICAC Regulations, each party has the right to express its own opinion regarding
the expert’s report (case sheet 1-12, volume No. 6). Additionally to the address of the public joint-stock
company “Khanty-Mansiysk Bank Otkrytie” at the address in Moscow the additional notification was sent
the Ref. No.ru-04/02-19/2015 of 19.02.2015 (case sheet 13-17, volume No. 6). At the date of the arbitration
hearing any objections regarding the expert report, addressed to ICAC by the parties of the arbitration
proceedings – were not reported.
4.22. As of 27.02.2015 on behalf of the Claimant – shareholder of the Company Dastin
Handelshaus AG was received a request to postpone the arbitration proceedings in connection with the
service trip (case sheet 21, volume No. 6). The arbitrator, taking into account the need for full,
comprehensive and objective consideration of all the circumstances of the arbitration proceedings and the
establishment of truth, satisfied the petition to postpone the session of the arbitration from 28.02.2015 to
26.03.2015.
4.23. In the arbitration session as of 26.03.2015 the Claimant Schmidt A.I. declared the following
petitions:
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No. b\n of 25.03.2015 for entering upon the record the copies of applications and appeals of
A. Schmidt concerning fictitious and illegal bankruptcy of CJSC “EFI “DastinMarket” with the active
participation and assistance of a group of government officials in collusion and applications for directions to
part and assistance of the President of the Russian Federation, the Committee on struggle against corruption
of the Russian Federation, Council of Federation of the RF, the Prosecutor General of the Russian Federation
(case sheets 39-82, volume No.6);
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No. 2 of 25.03.2015 of the entering upon record of the Final decision of ICAC at ICPP “on
establishment of the facts having legal value” under the case No. ICAC ru-07-04/2014 (case sheets 83-92,
volume No. 6);
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No. 3 of 25.03.2015 of the entering upon record of the response of the Department of
International Law and Cooperation of the Russian Ministry of Justice, received at the address of ICAC under
the arbitration case No. ICAC ru-07-04/2014 upon request of the citizen of the Russian Federation A.I.
Schmidt and Dastin Company Handelshaus AG on establishment of the facts having legal value (case sheets
1-339, volume No.7);
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No. 4 of 25.03.2015 of the entering upon record of the copies of the Report № 01-08 “On the
determination of the market value of promissory notes of CJSC “EFI “DastinMarket” and the conclusions of
the Expert Council of the Russian Community of Appraisers of 11.05.2007 due to the expertise of the Report
No. 01-08, performed by CJSC “EKO-N” (case sheets 340-519, volume No.7);
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No. 5 of 25.03.2015 of the entering upon record the documents regarding substantiation of
the claims under the case No. ICAC r-7/11/14 (case sheets 93-125, volume No. 6).
In the arbitration session of 26.03.2015 a written petition was brought by the representatives of the
company “Dastin Handelshaus AG” on behalf of the board member, a shareholder and director Vladislav
Reger and shareholder Franc Smidt to bring to arbitration as a co-respondent Grand Duchy of Luxembourg,
represented by the Government of the Grand Duchy Luxembourg and on behalf of the Ministry of Economy
(case sheets 127-274, volume No. 6).
As of 26.03.2015 ICAC arbitrator in the arbitration session satisfied the application of A. Schmidt
and shareholders of Dastin Handelshaus AG of 26.03.2015 (case sheets 275-278, volume No. 6).
4.24. As of 04.04.2015 by the registry office of ICAC was received a request of Schmidt A.I.
about entering upon record the of an arbitration case conclusions based on the results of the study of the
Materials of the arbitration case number A70-7994/3-2003 of the Arbitration Court of Tyumen region (102
volumes of photocopies), professor of the Russian State Academy of Intellectual property, a corresponding
member of the Academy of Social Sciences Myslovsky E.N. (case sheets 279-297, volume No.6).
The registry office of ICAC also received a petition of the Claimant Schmidt A.I. of entering upon
record of evidence of wrongful acts and lack of actions of the officials of state bodies and of the Russian
Federation and bodies of the subject of the Russian Federation (incoming No. 24\05-22/2015 of 22.05.2015)
(case sheets 298-323, volume No. 6) as well as a petition of the Claimant Schmidt A.I. for entering upon the
record of settlement of compensation in the amount of unpaid wages and interest payments and evidence in
the case (case sheets 324-344, volume No.6).
4.25. By the notification of 26.05.2015 No. 013-ru ICAC informed the parties of the appointment
of an arbitration hearing on the case on 30.06.2015 and explained to the parties as well that under the
Articles 17-29 of ICAC Regulations at ICPP each Party shall be entitled from the date of receipt of this
notification with supplements via DHL (by the courier or by mail) send to the address of ICAC and the
parties of the case comments on the case or other application, applications, evidence, explanations, as well as
to ensure the presence of their representatives with the duly completed Power of Attorney with the right to
participate in the arbitration of ICAC at ICPP (case sheets 345-360, volume No.6).
4.26. The Registry office of ICAC (Ref. No. 25/06-02/2015 of 02.06.2015) received the Claimant’s
petition – the shareholder and director of Dastin Handelshaus AG V. Reger of entering upon the record of the
documents, namely: the receipts of DHL 287999 7444 of 29.05.2015 regarding direction to the address of the
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Ministry of Economic Affairs of the Grand Duchy of Luxembourg on behalf of ICAC of the
notification made in Russian and translated into German, petition of the shareholders of the company Dastin
Handelshaus AG about engaging the Grand Duchy of Luxembourg in the person of the Government as a corespondent in the case and made in Russian and translated into German of the notification of ICAC of
26.05.2015 No. ru-013 on the date of the arbitration hearing scheduled for 30.06.2015 (case sheet 361-374,
volume No. 6).
4.27. In the arbitration session of 30.06.2015 the Claimant’s A. Schmidt explanations were
presented in the case with the petition for entering upon the record of the supporting documents to the
content of the present case as evidence and explanations of the company Dastin Handelshaus AG in the
person of the board member, shareholder and director Vladislav Reger and the shareholder Franc Smidt with
the petition for entering upon the record the supporting documents to the materials of the case as evidence
(case sheet 375-629 volume No. 6, case sheet 1-600, volume No. 8).
As of 30.06.2015 the shareholder of the company Dastin Handelshaus AG Franc Smidt declared a
separate petition for entering upon the record of the materials of the journalistic investigation of an
independent journalist Aleksandr Simakov published in the press and containing his appeals to the
authorities of the Russian Federation with the answers of these authorities and other supporting documents to
the materials of the case as evidence (case sheet 1-365, volume No.9).
On the same session as of the 30.06.2015 an oral petition of the shareholder of the company Dastin
Handelshaus AG Franc Smidt was received to separate the claims of the Claimant A. Schmidt and stated
claims regarding bills, compulsory withdrawn by the arbitrator of the Arbitration Court of Tyumen region
Vladimir Loskutov in a separate proceeding. Present at the session A. Schmidt did not object to the petition.
The arbitrator warned the parties that the separation into the separate proceeding of the part of the Claimants’
claims will be reflected in the Decision on the case and will lead to a new arbitration regarding this part from
the beginning, the notification of the parties and the new arbitral panel in accordance with the procedure of
ICAC at ICPP. The petition of the Claimant Franc Smidt (Franz Schmidt) was put into the arbitration
protocol.
As of 30.06.2015 the arbitrator in the arbitration session satisfied all previously applied petitions of
the Claimants for entering upon the record of the documents as of 04.04.2015, of 22.05.2015, of 02.06.2015
and of 30.06.2015 to the materials of the present arbitration case (case sheet 367-370, volume No. 9).
Claimant A. Schmidt does not object to the separation into separate proceeding of his claims as well
as all other Claimants do not object to the separation into a separate civil proceeding of the demands for
providing compensation in the value of the withdrawn bills by the arbitration judge of the Arbitration Court
of Tyumen region Vladimir Loskutov.
The Defendants again were absent from the court session, ignoring the notifications of ICAC and the
Claimants.
In the arbitration session of 30.06.2015 on behalf of the Claimant the oral petition was stated
concerning request for completion of the hearing of the case and making a final Decision on the basis of the
submitted evidence. The petition of the present Parties was satisfied by the arbitrator.
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4.28. The additional evidence of the facts of proper notification of the Parties regarding the
arbitration proceeding, direction of the documents to their address and address of ICAC are the following
receipts from DHL:
− WAYBILL 14 9893 3122 –concerning direction of 03.09.2014 to the Company Dastin
Handelshaus AG to the address of the RF Government notification of the arbitration as of
06.08.2014, under the No. 7-08/14 by the representative of the latter of 04.09.2014;
− WAYBILL 14 9893 3111 – concerning direction of 03.09.2014 to the Company Dastin
Handelshaus AG in the address of the Ministry of Finance of the Russian Federation the
notification of the arbitration of 06.08.2014, No. 7-08/14 received by the representative of
the latter of 04.09. 2014;
− WAYBILL 85 6980 8391 – concerning direction of 03.10.2014 by ICAC to the address of
the RF Government the notification of commencement of the arbitration from 02.10.2014,
No. 024-ru received by the representative of the latter of 06.10.2014;
− WAYBILL 85 6980 8380 – concerning direction of 03.10.2014 by ICAC to the Ministry of
Finance of RF notification of commencement of the arbitration of 02.10.2014 No. ru-024
received by the representative of the latter of 06.10.2014;
− WAYBILL 85 6981 0476 – concerning direction of 27.10.2015 by the citizen of the RF
Schmidt A.I. to the address of the Ministry of Finance notification of arbitration of
17.10.2014 No. 1;
− WAYBILL 85 6981 1633 – concerning direction of 12.11.2014 by the shareholder of the
Company Dastin Handelshaus AG F.Smidt to the address of the Government of the RF the
notification of arbitration of 10.11.2014;
− WAYBILL 85 6981 1655 – concerning direction of 12.11.2014 by the shareholder of the
Company Dastin Handelshaus AG F. Smidt to JSC “Khanty-Mansiysk Bank” notification of
the arbitration of 10.11.2014;
− WAYBILL 85 6981 1644 – concerning direction of 12.11.2014, by the shareholder of the
Company Dastin Handelshaus AG F. Smidt to the address of Non-Commercial Partnership
“Siberian Guild of Crisis Managers” notification of arbitration from the 10.11.2014;
− WAYBILL 85 6981 1832 – concerning direction 13.11.2014 by ICAC to the address of the
Government of the RF notification of the date of arbitration proceedings of 13.11.2014 No.
027-ru received by the representative of the latter of 17.11.2014;
− WAYBILL 85 6981 1821 – concerning direction of 13.11.2014 by ICAC to the Ministry of
Finance of the RF of notification of the date of arbitration proceedings of 13.11.2014 No.
027-ru received by the representative of the latter of 17.11.2014;
− WAYBILL 85 6981 1854 – concerning direction of 13.11.2014 by ICAC to JSC “KhantyMansiysk Bank” notification of the date of arbitration proceedings of 13.11.2014, No. ru027 received by the representative of the latter of 17.11.2014;
− WAYBILL 85 6981 1843 – concerning direction of 13.11.2014 by ICAC to non-commercial
partnership “Siberian Guild of Crisis Managers” notification of the date of arbitration
proceedings of 13.11.2014 No. 027-ru received by the representative of the latter of
21.11.2014;
− WAYBILL 85 6981 2392 – concerning direction of 19.11.2014 by ICAC to non-commercial
proceedings of 19.11.2014 No. 028-ru received by the representative of the latter of
20.11.2014;
− WAYBILL 85 6981 2661 – concerning direction of 24.11.2014 by the citizen of the RF
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Schmidt A.I. to the address of “Khanty-Mansiysk Bank” of specifications to the statement of
claim;
WAYBILL 85 6981 2635 – concerning direction of 24.11.2014 by the citizen of the RF Schmidt
A.I. notification to the address of the Ministry of Finance of the RF the notification of arbitration
with supplement of the stated claim;
A.I. notification to the address of non-commercial partnership “Siberian Guild of Crisis
Managers” specifications to the statement of claim;
A.I. notification to the address of the Government of the RF of specifications to the statement of
claim;
WAYBILL 85 6981 3254 – concerning direction of 28.11.2014 by ICAC to LLC “VIP Group”
notification of the appointment of the expert testimony of the case of 27.11.2014 No. 029-ru
WAYBILL 85 6981 3243 – concerning direction of 28.11.2014 by ICAC to JSC “KhantyMansiysk Bank” notification of the appointment of the expert testimony of the case of
27.11.2014 No. ru-029 received by the representative of the latter of 03.12.2014;
WAYBILL 85 6981 3210 – concerning direction of 28.11.2014 by ICAC to the Ministry of
Finance of the RF notification of the appointment of the expert testimony of the case of
WAYBILL 85 6981 3221 – concerning direction of 28.11.2014 by ICAC to non-commercial
partnership “Siberian Guild of Crisis Managers” notification of the appointment of the expert
testimony of the case of 27.11.2014 No. ru-029 received by the representative of the latter of
01.12.2014;
WAYBILL 85 6981 3232 – concerning direction of 28.11.2014 by ICAC to the Government of
the RF notification of the appointment of the expert testimony of the case of 27.11.2014 No. ru029 received by the representative of the latter of 01.12.2014;
Finance of the RF notification of the arbitration and a copy of the expert opinion of 13.01.2015
WAYBILL 50 1725 0346 – concerning direction of 12.02.2015 by ICAC to JSC “KhantyMansiysk Bank” notification of the arbitration and a copy of the expert opinion of 13.01.2015
partnership “Siberian Guild of Crisis Managers” notification of the arbitration and a copy of the
expert opinion of 13.01.2015 received by the representative of the latter of 13.02.2015;
WAYBILL 50 1725 0361 – concerning direction of 12.02.2015 by ICAC to the Government of
the RF notification of the arbitration and a copy of the expert opinion of 13.01.2015 received by
the representative of the latter of 13.02.2015;
WAYBILL 37 2199 2024 – concerning direction of 19.02.2015 by ICAC to the PJSC “Bank
Khanty-Mansiysk Otkrytie” notification of the arbitration of 19.02.2015 No. ru-04/02-19/2015
Khanty-Mansiysk Otkrytie” notification of the arbitration of 16.03.2015 No. ru-032 received by
Khanty-Mansiysk Otkrytie” notification of the arbitration of 16.03.2015 No. ru-032 received by
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WAYBILL 37 2199 3870 – concerning direction of 16.03.2015 by ICAC to the Government
of the RF notification of the date of arbitration proceedings of 16.03.2015 No. ru-032
Finance of the RF notification of the date of arbitration proceedings 16.03.2015 No. ru-032
proceedings of 16.03.2015 No. ru-032 received by the representative of the latter of
18.03.2015;
Khanty-Mansiysk Otkrytie” notification of the date of the arbitration proceedings of
Khanty-Mansiysk Otkrytie” notification of the date of the arbitration proceedings of
WAYBILL 28 7999 7175 – concerning direction of 27.05.2015 by ICAC to the address of
the Government of the RF notification of the date of the arbitration proceedings of
The waybill 28 7999 7164 – concerning direction of 27.05.2015 by ICAC to the Ministry of
Finance of the RF notification of the date of the arbitration proceedings of 26.05.2015 No.
ru-013 received by the representative of the latter of 29.05.2015;
WAYBILL 28 7999 7153 – concerning direction of 27.05.2015 by ICAC to the noncommercial partnership “Siberian Guild of Crisis Managers” notification of the date of the
arbitration proceedings of 26.05.2015 No. ru-013 received by the representative of the latter
of 29.05.2015;
WAYBILL 28 7999 7444 – concerning direction of 29.05.2015 on behalf of ICAC to the
Ministry of Economy of the Grand Duchy of Luxembourg notification of the date of the
arbitration proceedings of 26.05.2015 No. ru-013 with the petition of the Company Dastin
Handelshaus AG (Ref. number 16/03-26/2015 of 26.03.2015) in Russian and German.
4.29. Besides, the facts of informing the Parties of the dates of court hearings, the documents sent
to ICAC to be attached to the materials of the case are confirmed by the following documents:
• Notification that the citizen of the RF Schmidt A.I. received a notification of the arbitration, the
statement of claim and the explanatory letter of 03.09.2014;
• Notification of receipt of 04.10.2014 by the Company Dastin Handelshaus AG in the person of V.
Reger;
• Notification of receipt of 04.10.2014 by the citizen of the RF Schmidt A.I. notification of the date of
the arbitration proceedings;
• Notification of receipt of 12.11.2014 by the Company Dastin Handelshaus AG in the person of
V.Reger;
• Notification of receipt of 12.11.2014 by the citizen of the RF Schmidt A.I. notification of Franc
Smidt of the date of the arbitration proceeding and the consolidated claim and supplement to it of
11.10.2014;
• Notification of receipt of 13.11.2014 by Franc Smidt notification of the date of the arbitration
proceedings;
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Notification of receipt of 13.11.2014 by the director of the company Dastin Handelshaus AG V.
Reger and the citizen of the Russian Federation Schmidt A.I. the notification of the date of the
arbitration proceedings;
• Notification of receipt of 27.11.2014 by the citizen of the RF Schmidt A.I. of ICAC Ref. No. ru-029
of 27.11.2014 the notification on the appointment of the expert testimony on the case;
• Notification of receipt 27.11.2015 by the Director of the Company Dastin Handelshaus AG V.Reger
from ICAC Ref. No. ru-029 of 27.11.2014 the notification on the appointment of the expert
testimony of the case;
• Notification of receipt of 27.11.2014 by the citizen of the Federal Republic of Germany Franc Smidt
from ICAC Ref. No. ru-029 of 27.11.2014 the notification on the appointment of the expert
testimony of the case;
• Notification of receipt of 12.02.2015 by the citizen of the Russian Federation Schmidt A.I., the
director of the Company Dastin Handelshaus AG V.Reger and the citizen of Germany Franc Smidt
from ICAC Ref. No. ru-03/02-11/2015 of 12.02.2015 the notification of the date of the arbitration
proceedings;
• Notification of receipt of 19.02.2015 by the citizen of the RF Schmidt A.I. from ICAC Ref. No. ru04/02-19/2015 of 19.02.2015 the notification of the date of the arbitration proceedings;
• Notification of receipt of 20.02.2015 by the shareholder and director of the Company Dastin
Handelshaus AG V.Reger from ICAC Ref. No. ru-04/02-19/2015 of 19.02.2015 the notification of
the date of the arbitration proceedings;
from ICAC Ref. No ru-04/02-19/2015 of 19.02.2015 the notification of the date of the arbitration
proceedings;
• Notification of receipt of 16.03.2015 by the RF citizen Schmidt A.I. from ICAC Ref. No. ru-032 of
16.03.2015 the notification of the date of the arbitration proceedings;
• Notification of receipt 16.03.2015 by the shareholder and director of the Company Dastin
Handelshaus AG V. Reger from ICAC Ref. No. ru-032 of 16.03.2015 the notification of the date of
the arbitration proceedings;
• Notification of receipt 16.03.2015 by the citizen of the Federal Republic of Germany Franc Smidt
notification from ICAC Ref. No. ru-032 of 16.03.2015 the notification of the date of the arbitration
proceedings;
• Notification of receipt of 29.05.2015 by the citizen of the RF Schmidt A.I. notification from ICAC
Ref. No. ru-13 of 26.05.2015 of the date of the arbitration proceedings;
• Notification of Receipt of 29.05.2015 by the shareholder and director of the Company Dastin
Handelshaus AG V. Reger notification from ICAC Ref. No. ru-13 of 26.03.2015 of the date of the
arbitration proceedings;
notification from ICAC Ref. No. ru-13 of 26.05.2015 of the date of the arbitration proceedings;
4.30. According to the results of each session the arbitrator made trial protocols describing the
procedure, the hearing and the facts of the Parties to review the progress of the arbitration, including of
10.11.2014 (case sheet 206 volume No. 2), of 25.11.2014 (case sheet 259, volume No. 2), of 28.02.2015
(case sheet 22, volume No. 6), of 26.03.2015 (case sheet 126, volume No.6), of 30.06. 2015 (case sheet 366
volume No. 9).
4.31. Besides, as a result of the procedural review of the petitions of the Parties, the arbitrator of
ICAC made separate decisions of 10.11.2014 (case sheet 220, volume No, 2), of 25.11.2014 (case sheet 1-3,
4-5 volume No. 4), of 26.03.2015 (case sheet 275-278 volume No. 6) and of 30.06.2015 (case sheet 367-370
volume No. 9).
•
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4.32. Thus, during the arbitral proceedings all participants of the arbitration process were warned
about
the ongoing arbitration proceedings, had the opportunity to familiarize with the materials of the case of
arbitration, and with the purpose to ensure their procedural rights under the Regulations of UNCITRAL they
were given the opportunity to express their position.
The representatives of the Defendant were not present on the arbitration sessions, did not submit
explanations, petitions, evidence reviews and appeals to ICAC during the arbitration proceedings through the
procedure for submitting a comment or objection claims of the Claimants were not controverted, did not
submit counter claims against the competence of ICAC at ICPP and arbitrability, against the use of the
UNCITRAL Regulations and procedures of ICAC at ICPP, against the appointment procedure of the single
arbitrator, against the expert candidacy and his expert opinion, as well as law enforcement during the
arbitration from 11.08.2014 till 30.06.2015.
4.33. The Government of Grand Duchy of Luxembourg represented by the Ministry of Economy
was fairly notified in advance of the date of the case hearing (notification receipt from DHL 28 7999 7444 of
29.05.2015, to the address of the Ministry of Economy of the Grand Duchy of Luxembourg regarding
sending notification by ICAC of 26.05.2015 Ref. No. ru-013 on the appointment date of the arbitration
proceedings on 30.06.2015 and petition of the Company Dastin Handelshaus AG (Reg. No. of ICAC 16/0326/2015 of 26.03.2015) in the Russian and German languages on engaging into the process as a corespondent of the Government of Grand Duchy Luxembourg represented by the Ministry of Economy (case
sheet 361-373 volume No. 6).
According to the data provided by DHL 28 7999 7444 of 01.06.2015 the notification was received
by the addressee at 9 o’clock 15 minutes, as there is a corresponding mark in the form of the signature of the
responsible person (case sheet 374 volume No. 6).
The arbitrator stated that no appropriate procedural actions on behalf of the respondent the
Government of the Grand Duchy of Luxembourg were taken within the given 30-day period for this
notification.
The case was considered on its merits and the arbitration of the case is completed of 30.06.2015.
Therefore, all the risks on consequences for not committing the proceedings within the procedural deadline
bear the Parties not having used their procedural rights to perform certain procedural actions.
In connection with this circumstance, the arbitrator of ICAC leaves the letter without consideration
of the Government of the Grand Duchy of Luxembourg of 08.07.2015, received by ICAC of 23.07.2015
(Ref. No. of ICAC 29/07-23/2015) signed by Deputy Prime Minister and Minister of Economy Etienne
Schneider. A petition for restoration of the missed deadline and the process of renewal in the case of the by
the Defendant – the Government of the Grand Duchy of Luxembourg was not claimed.
4.34. The arbitrator of ICAC established and stated the fact that all representatives of all
defendants in court hearings were not present during the arbitration from 11.08.2014 till 30.06.2015 on the
case. They did not claim any explanations, petitions, opinions, statements and evidence. The stated claims of
the Claimants were not controverted and disputed, and counterclaims were not stated. There were no
objections to the competence of ICAC at ICPP, arbitrability, the use of the UNCITRAL Regulations, law
enforcement and procedures for the appointment of a single arbitrator, the expert candidates, expert opinion.
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5. ARBITRATOR OF ICAC at ICPP ESTABLISHED:
5.1. Initiative and investment relationship between Dastin GmbH, Dastin Handelshaus AG
and CJSC “EFI “DastinMarket”.
The Company Dastin GmbH (Reg. No. 70.202 B), registered in the Commonwealth of the
Bahamas at the address: SAFFREY SQUARE, SUITE 205, BANK LANE, P.O.BOX 8188, NASSAU,
BAHAMAS, which had account USD 6020009131, EUR 6100001598 in Lateko Bank (Riga, Latvia) (copy
of registration and constituent documents – case sheet 270-337 volume No. 9) on the shareholders’ decision
invested in Russia and created a modern shopping centre in the city of Tyumen. The main shareholders of the
company attracted co-investors and began to establish such a centre through specially registered company in
Russia – CJSC “Enterprises with foreign investments – “DastinMarket”.
The agreement between the founders on the establishment of the Closed Joint-Stock Company
“Enterprise with foreign investments “DastinMarket” in the Russian Federation was signed of 25.06.1998.
The company was registered by the Justice Department of the Administration of the Tyumen region of
09.07.1998 under the No.22.
As of 09.12.2002 about the company was made an entry in the USRLE (Unified State Register of
Legal Entities) as a legal entity, registered before 01.07.2002, under the main state registration number
1027200843328. The statute capital at the time of establishment of the company amounted to 84,000 roubles
(issue registration carried out by the Omsk regional branch of the Russian Federal Securities Commission
number 1-01-00630-N). With the increase in the authorized capital of CJSC “EFI “DastinMarket” the
registration of additional issue of shares was carried out by the State Registration Chamber of the Russian
Ministry of Justice as the level of foreign investment exceeded more than 100 000,00 roubles.
In July-August 1999 an additional issue of shares was carried out and the share capital was
increased by 10.5 million roubles at the expense of investors and shareholders funds, as well as by means of
inclusion of the supermarket equipment (registration of emission was conducted by Omsk regional branch of
the Federal Securities Commission of Russia No. 1-02-00630-N). In March - April 2000 the following
additional issue of shares was performed and the share capital was increased by another 36,036 000 by
means of investment, as well as by inclusion of the part of the building located at the address: Russia,
Tyumen, Demyana Bednogo Street, 96, 14/2 (stock issue registration carried out by the Omsk regional
branch of the Federal Securities Commission of Russia № 1-03-00630-N). (case sheets 34-74 volume No. 1,
case sheets 345-353 volume No.9).
Distribution of shares in JSC “FDI “DastinMarket” was as follows: 99% is owned by the Bahamian
company Dastin GmbH, and 1% by the Russian citizen Aleksei Schmidt. Aleksei Schmidt was appointed a
Director of CJSC “EDI “DastinMarket” as evidenced by extracts from the state registry USRLE, agreement
on a joint venture of the Closed Joint Stock Company “DastinMarket” of 25.06.1998, protocols of the
meeting of the founders of the joint stock company “DastinMarket” of 25.06.1998 (case sheet 546-550, 568584 volume No. 6, case sheet 338-344 volume No. 9).
After conduction by the shareholders of the legal analysis of the provisions of the applicable
Russian legislation regarding enforcement of rights of foreign investors and protection of foreign
investments as well as international contracts the parties of which are the RF and
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Grand Duchy of Luxembourg, shareholders of the company Dastin GmbH took decision to re-register the
ownership
of 99% shares of CJSC “DastinMarket” to the Luxembourg Company “Dastin Handelshaus AG”
in agreement with the latter, specifically for that purpose prepared by the shareholders which after taking all
rights and obligations, in its turn, continued investments in the economy of the RF through creation of a
major shopping centre in Tyumen “DastinMarket”.
Assignment of rights of the shareholders on 99% of the shares of CJSC “EFI “Dastin Market”
between the company – the seller “Dastin GmbH” (Bahamas) and the company – the buyer “Dastin
Handelshaus AG” was conducted by the Agreement of purchase and sale of 12.03.2002 No. 1 which is
confirmed by the Protocol of the General shareholders meeting of CJSC “EFI “DastinMarket” of 12.03.2002
No. 4 and the Agreement itself. (Case sheet 389-395, No. 6). Ownership of the shares of CJSC “EFI
“DastinMarket” by the company “Dastin Handelshaus AG” is confirmed by the extracts from the register of
shareholders of CJSC “EFI “DastinMarket” as of 20.03.2002, of 24.02.2003, of 19.07.2004 issued by the
registrar CJSC “Enterprise with foreign investments “DastinMarket” (case sheet 22-33, volume No. 1).
The arbitrator stated the fact having legal value that the owner of 99% shares in CJSC “EFI
“DastinMarket” (Russia) is the company “Dastin Handelshaus AG” on the basis of the will of the
shareholders, confirmed by the Protocol of the general meeting of “Dastin GmbH” and the Agreement of
purchase and sale of shares 12.03.2002 ( case sheet 389 volume No. 6) which do not contradict the laws of
the Bahamas and the Grand Duchy of Luxembourg and the powers of the shareholders and directors of
“Dastin GmbH” in accordance with the company Statute. Accordingly, the company “Dastin Handelshaus
AG” is an Investor who has been performing foreign investment in the form of capital investments in the
Russian Federation since 2002 through the establishment and putting into operation of the property complex
– the Shopping centre CJSC “EFI “DastinMarket” which consisted of:
1)
Capital building (construction), a set of equipment (storage, commercial, refrigeration,
cutting, loading, etc.) which were included in the payment of 99% of shares of CJSC “FDI
“DASTINMARKET” in Tyumen at the address Demiana Bednogo Str. 96/14, an area of about 4416.90
square meters with non-residential premises.
2)
Land on the right of permanent perpetual use with the area of 9679 sq.m. with the servitude
by ½ of two access roads to the building of the shopping centre.
The Company “Dastin Handelshaus AG” approved the appointment of the director of CJSC “EFI
“DastinMarket” of Aleksey Schmidt and gave him the Power of Attorney to represent foreign shareholder's
interests in the Russian Federation of 12.03.2002 (case sheet 354-355 volume No.9).
Since 2002 the commercial enterprise “DastinMarket” the acting property complex has become one
of the largest taxpayers in the city of Tyumen at the time, thanks to foreign investments, having provided
about 200 working places.
The building of shopping centre “DastinMarket” as the real property was registered in the
established order in Russia Tyumen Regional Chamber of State Registration of Rights on Real Estate and
Transactions with them (case sheet 225-230 volume No. 1).
According to independent appraisers as of 01.10.2003 the value of “DastinMarket” property
complex was 459 million roubles (case sheet 94 volume No. 6, case sheet 238 volume No. 5).
The Company “Dastin Handelshaus AG” (Luxemburg) has all the rights and obligations of
shareholders of CJSC “EFI “DastinMarket” (Russia), including acting in the framework of the Agreement on
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As of 09.02.1989 the Government of the USSR and the Government of the Kingdom of Belgium and the
Grand
Duchy of Luxembourg “On mutual encouragement and mutual protection of investments” and the
Agreement “On partnership and cooperation” between Russia and the EU of 24.06.1994.
The citizen of the Russian Federation Aleksey Schmidt according to the information from the
extract of USRLE of the RF No. 462182 of 03.12.2012 provided by LLC “Information service of legal
entities” was co-shareholder of “EFI “DastinMarket” (1%) and the sole executive body of CJSC “EFI
“DastinMarket” – Director (case sheet 22-33, 85-93 volume 1).
According to informational extract from the USRLE of the RF No. 462182 of 03.12.2012 provided
by LLC “Information service of legal entities”, the authorized capital of CJSC “EFI “DastinMarket” was of
01.03.2003 231 252 000,00 roubles (two hundred and thirty one million two hundred and fifty-two thousand
roubles) – (UAH 2037200595397) (case sheet 85-93, volume No. 1) on the basis of which ICAC arbitrator
concludes the absence of signs of bankruptcy as the assets and fixed assets is many times exceeded the
amount of tax arrears presented by FTAI (Federate Tax Agency Inspectorate) No. 4 in the city of Tyumen,
and in fact (de facto) repaid by the withdrawn goods by the Bailiff Service of Tyumen. Further concerted
actions of the government agencies of the RF and the Arbitration Court of the Tyumen region served as a
cover for the expropriation of the Claimants’ property in favor of the bank of state-owned part JSC “KhantyMansiysk Bank” and the subsequent liquidation of CJSC “EFI “DastinMarket” without the will of the
shareholders-owners. The criminal component the arbitrator reserves without consideration of the scope of
this arbitration by virtue of competence.
5.2. Chronology of the expropriation of the property of foreign investors in the Russian
Federation and its consequences.
The repayment of tax arrears of CJSC “EFI “DastinMarket” in the amount of 4,134,244.32 roubles due to
insufficient funds on the accounts of the taxpayer on the basis of decision of the tax authority FTAI (Federate
Tax Agency Inspectorate) of the RF No. 4 of Tyumen of 25.08.2003 No. 12-50/32 was initiated of
27.08.2003 the execution proceeding No. 982-8-03 (97-8-04).
As of 15.09.2003 the Bailiff Service of the RF seized the real estate property of the operating
enterprise (shopping center) CJSC “Enterprise with foreign investments “DastinMarket”: non-residential
building (total area of 4416.9 square meters, located at – Tyumen, D. Bednogo Street, build.96, construction
14, No. 72 building identification number: 01/01:01:99:96/C14:01 at the right of ownership) and land (an
area of 9679 square meters facility with the cadastral number 72:23:30:29:11:059 on the right of permanent
(perpetual) use).
As of October, 8th, 2003 based on the act of inventory and seizure by the Bailiff Service of Russia the
goods were seized amounting to 4 701 458.5 roubles.
After the sale of the goods in the amount of 97, 778.79 roubles the raised funds deliberately were not
transferred by the Bailiff Service at the expense of repayment of budgetary arrears as required by the
Regulations of the Russian Federation and the tax authority – FTAI (Federate Tax Agency Inspectorate) of
the Russian Federation No. 4 of Tyumen further appealed to the Federal Service of financial recovery
(FSFR) of the Tyumen region for the excitation of bankruptcy procedures (case sheet 500-534 volume No.
8).
Thus, of 19.11.2003 the territorial office of the FSFRB (Federal Service of Financial Recovery and
Bankruptcy) of the Tyumen region appealed to the Arbitration Court of the Tyumen region on the
recognition of insolvent (bankrupt) of the CJSC “Enterprise with foreign investments “DastinMarket”. The
amount of arrears sharply increased doubled from 4 134 244.32 roubles to 8 311 479. 02 roubles (case sheet
404-405 volume No. 8).
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And this despite having a partially filled at that time recovery amount of the tax arrears.
As of 20.11.2003 the judge of the Arbitration Court of the Tyumen region A.A. Koksharov
delivered a decision on the preparation of the bankruptcy case for the judicial proceeding of 08.12.2003 (case
A70-7994-3-2003) (case sheet 150-151 volume No. 1).
As of 10.12.2003 the judge of the Arbitration Court of the Tyumen region Vladimir Loskutov
introduced a surveillance procedure and appointed the temporary manager Y.A. Vasilyev-Chebotaryov of the
non-commercial partnership “Siberian Guild of Crisis Managers” (SGCM) (sheet case 400-403 volume No.
8).
After arresting the property by the Bailiff Service CJSC “EFI “DastinMarket” was unable to
independently pay off all debts of the enterprise. Thus, despite the positive balance, the authorized capital of
CJSC “EFI “DastinMarket” in the amount more than 221 million roubles, presence of high qualified
products, high cost of fixed assets and the strong financial position of CJSC “EFI “DastinMarket”, the
Russian state bodies initiate and carry out the procedure of unlawful forced bankruptcy. By the decision of
the Arbitration Court of the Tyumen region (arbitrator V. Loskutov) of 18.03.2004 the CJSC “EFI
“DastinMarket” was declared bankrupt. From the submitted by the Claimants evidence to ICAC it is clear
that the wrongful forced bankruptcy was organized with the purpose of expropriation of all the property
transferred to the balance by the Claimant on account of payment of 99% of the shares in the authorized
capital of CJSC “EFI “DastinMarket” as confirmed by the materials of the case of the Arbitration Court of
the Tyumen region No. A70-7994/3-2003 on bankruptcy of CJSC “Enterprise with foreign investments
“DastinMarket”.
Analyzing what happened at the time, the parent company “Dastin Handelshaus
AG” (Grand Duchy of Luxembourg) raised the question in front of the CJSC “EFI “DastinMarket” of
purchasing its participatory share of the enterprise by the enterprise itself CJSC “EFI “DastinMarket”.
CJSC “EFI “DastinMarket” bought out the share of Dastin Handelshaus AG (Grand Duchy of
Luxembourg) for 225 000 000, 00 roubles, having paid by the bills of CJSC “EFI “DastinMarket” issued
under the provision of the Statute capital. These bills (which were the property of the person concerned)
were subsequently withdrawn by the judge of the Arbitration Court of the Tyumen region Loskutov and in
violation of the law bound in the material of the arbitration proceedings A70-7994/3-2003 which deprived
Dastin Handelshaus AG of the rights of protection of their property interests.
Subsequently, the bankruptcy manager Shabalin Y.G. restored rights of the shareholder of “Dastin
Handelshaus AG” (Grand Duchy of Luxembourg) on shares of CJSC “EFI “DastinMarket” included it in the
register of shareholders (extract from the register of shareholders of CJSC “EFI “DastinMarket” of
19.07.2004, made by the bankruptcy manager Shabalin Y.G., case sheet 30-33 volume No.1) but did not
include in the register of creditors of CJSC “EFI “DastinMarket” as a creditor under the Agency Agreement
No. 1/00 of 01.08.2000 and on the basis of the Agreement between the USSR and the Government of the
Kingdom of Belgium and the Grand Duchy of Luxembourg “on mutual promotion and mutual protection of
investments” of 09.02.1989 as a foreign direct investor not having paid for direct investments on the territory
of the Russian Federation.
As of 05.01.2004 by the order of the Director A.I. Schmidt based on the report of LLC “RegionOtsenka” of 08.12.2003 on the market value of assets and liabilities of CJSC “EFI “DastinMarket” as of
01.10.2003 the property complex was put on the balance with the cost of more than 459 264 718, 80 roubles
(case sheet 94 volume No. 6).
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As of 06.02.2004 the judge of the Arbitration Court of the Tyumen region Vladimir Loskutov
established the creditor’s claim – JSC “Khanty-Mansiysk Bank” (case No. A70-7994/3-2003). The creditor
in the person of “Khanty-Mansiysk Bank” did not adhere to the provisions of the established by the Russian
Federation complaint procedure. As follows from the contents of the paragraph 4 of the declarative part of
the Decision of the Arbitration Court of the Tyumen region of 06.02.2004 on the case A70-7994/3-2003, as
well as the operative part of this Decision, the court did not exercise replacement of the person by means of
procedural succession in accordance with the Art. 48 APC of the RF (case sheet 169-171 volume No.1).
Besides this gross violation of the Federal Constitutional Law “On introduction of the Arbitration Procedure
Code of the RF” the registry office of the arbitral court also grossly violated the rules of procedure, taking
and entering in the case A70-7994/2003 the statement from JSC “Khanty-Mansiysk Bank” to be registered in
the registry office of the court and consideration according to the rules of the adversary proceedings (125 of
the Arbitration Procedure Code). That is, the court, in the person of the Judge V. Loskutov with the registry
office of the Court and representatives of the creditor committed improper acts in violation of paragraph 4 of
the Art. 163 of APC of the RF, thereby once again violated the rules of judicial procedure in the Russian
Federation, the Federal Constitutional Law “On introduction of APC of the RF”, on the enactment of the
Federal Constitutional Law “On the Judicial System in the Russian Federation”. In connection with the
commission of unlawful acts, for the Claimants under this case and for the enterprise CJSC “EFI
“DastinMarket” occurred major non-legal consequences, expressed in the adoption of the court hearing,
determined to establish requirements of LLC “HESLEASING”, of the decision in favour of the party not
being the party to the case – JSC “Khanty-Mansiysk bank”. In respect of the latter unjustified conclusion
was made about the presence of JSC “Khanty-Mansiysk Bank” the alleged “rights” of the pledge holder in
respect of immovable property of JSC “EFI “DastinMarket” in the pledge agreement of 31.08.2001. The
Arbitrator concludes that existence of the pledge holder rights under the pledge is a subject to Russian state
registration and is defined by an entry in the state register of real estate rights and is certified by an extract
from the register (Art. 131 of the Civil Code, the provisions of the Federal Law on State Registration of
Rights to Real property and transactions with them of 21.07.1997 No. 122-FL with latest amendments).
These proofs were not presented by JSC “Khanty-Mansiysk Bank” to the Arbitration Court and subsequently
requested and obtained by JSC “EFI “DastinMarket” extract from the State Register confirms that the entity
of JSC “Khanty-Mansiysk Bank” as the pledge holder is not registered in the register (an extract from the
Unified state register of rights to immovable property and transactions with them No. 30/2004-314 of
24.02.2004, case sheet 409-410 volume No. 8). Based on the above mentioned it should be concluded that
the presence of the rights of the pledge holder “Khanty-Mansiysk Bank” in respect of immovable property of
the debtor contradicts the provisions of the Art. 131 of the Civil Code and caused violation of the provisions
of the Art. 134, 138 of the RF Federal Law “On insolvency (bankruptcy)”.
Schmidt A.I. of 02.03.2004 appealed the cassational appeal to the Federal Arbitration Court of the
West Siberian District on the decision of the Arbitration Court of the Tyumen region of 06.02.2004
concerning establishment of requirements of JSC “Khanty-Mansiysk Bank”. Simultaneously with the
cassational appeal was initiated a petition to postpone the first meeting of creditors, which is, of course,
unauthorized. This petition was given to the registry office of the Arbitration Court of the Tyumen region of
02.03.2004 but was not considered by the court in violation of the Art. 159 of APC of the Russian Federation
(case sheet 396-399, 593 volume No. 8) having limited the possibilities of the entities involved in the case,
effectively and in full to represent and protect their rights and interests, by what procedural discrimination
was permitted, which is directly prohibited by the Procedural Law and part 3 of the Article 56 of the
Constitution of the RF.
As of 05.04.2004, the cassational appeal of CJSC “EFI “DastinMarket” initiated by the Director A.
Schmidt was considered by the Federal Arbitration Court of the West Siberian District.
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Determination of requirements of JSC “Khanty-Mansiysk Bank” was cancelled, the case A70-7994/3-2003
was
sent for another consideration to the court of the first instance – the Arbitration Court of the Tyumen
region with the replacement of the court panel (case sheet 19-21 volume No. 2).
In the Decision regarding clarification of the Judgement of cassation instance (under the case No.
F04 /1780-251/A70-2004) of 26.05.2004. Federal Arbitration Court of the West Siberian District indicated
that the bankruptcy manager shall proceed from lack of legal basis for occurrence of demands of JSC
“Khanty-Mansiysk Bank” in the register of creditors which was wrongly ignored the bankruptcy manager Y.
Shabalin during the bankruptcy proceedings of JSC “EFI “DastinMarket” as well as the judge of the
Arbitration Court of the Tyumen region Vladimir Loskutov.
Part 3 of the Art. 28, Art. 54, Art. 68 and 71 of the Federal Law of the Russian Federation “On
insolvency (bankruptcy)” and the Art. 186 of APC of the RF identifies compulsory procedure of publication
of the announcement regarding the debtor concerning supervision commencement stage within 14 days from
the issuance of the relevant decisions and bankruptcy creditors submit their claims to the debtor within 30
days from the date of publication of the announcement of supervision commencement. Considering the fact
that by the Decision of the Arbitration Court of the Tyumen region of 06.02.2004 in the case No. A707994/2003 was established the date of supervision procedures commencement in respect of CJSC “EFI
“DastinMarket” of 10.12.2003, the announcement had to be published not later than 24.12.2003 and the
request submitted not later than 24.01.2004. At the same time, by the Decision of the Arbitration Court of the
Tyumen region of 18.03.2004 was established that “the announcement of supervision commencement
procedure in respect of the debtor was published in “Rossiyskaya Gazeta” of 16.01.2004” (that is, in
violation of the terms of more than 20 days). JSC “Khanty-Mansiysk Bank” appealed to the court to establish
requirements of 06.02.2004 which is confirmed by the Arbitration Court of the Tyumen region of 06.02.2004
in the case No.A70-7994/2003.
All of the abovementioned confirms the violation of terms of publication of the announcement on
the commencement of supervision procedures by the bankruptcy manager, violation of the proceedings by
the Arbitration Court of the Tyumen Region of the statement of JSC “Khanty-Mansiysk Bank” as well as
rejection of legitimate judicial procedural acts on these violations.
The Arbitration Court of the Tyumen region in its Decision of 06.02.2004 in case No.A707994/2003 did not give a legal assessment of the statement of LLC “Leasing Company HESLEASING” to
replace it in the order of procedural legal succession by JSC “Khanty-Mansiysk Bank” and did not
substantiate legal procedural provision allowing carrying out of this procedure but in fact satisfied the
statement by its decision.
However, the procedural legal succession procedure is prescribed by the Art. 48 of the APC of the
RF under which:
1. “In the case of withdrawal of one of the parties in the disputed or established by the court decision of
the arbitral legal relationship (reorganization of a legal entity, assignment, transfer of debt, death of
the citizen and other cases of change of parties in the commitments) the Arbitration court shall
replace that party by its successor and indicates this in the judicial act. Succession is possible at any
stage of the arbitration process.
2. To replace the party by its successor or refusal in that by the court of arbitration is specified in the
relevant judicial act which can be appealed for.
3. For the successor all acts performed in the arbitration process prior to the successor’s intervention
are required to the extent that they are required for a person whom the successor replaced”.
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Based on the abovementioned during the procedure and procedural succession of the statement of
JSC
“Khanty-Mansiysk Bank” on recognition of it the bankruptcy creditor the Arbitration Court of the
Tyumen region committed procedural violations prescribed by the Chapter 28 of APC of the RF, part 3 of
the Art. 28, Art. 54, Art. 68 and 71 of the Federal Law of the Russian Federation “On insolvency
(bankruptcy)” because JSC “Khanty-Mansiysk Bank” is also a subject to these law requirements concerning
procedures for arbitration court application to recognize bankruptcy creditor in the bankruptcy case.
As of 05.05.2004 in the case under No. F04/1780-251/A70-2004 (in the first instance A70-7994/32003) the Federal Arbitration Court of the West Siberian District delivered the judgement concerning
cancellation of the Decision of the Arbitration Court of the Tyumen region of 06.02.2004 in which JSC
“Khanty-Mansiysk Bank” was recognized a bankruptcy creditor with the amount of creditors’ claims
123 288 101,00 roubles (case sheet 126-128 volume No.1). As a result, JSC “Khanty-Mansiysk Bank” had to
be excluded from the number of bankruptcy creditors in the case of CJSC “EFI “DastinMarket”. However,
the decision on introduction of bankruptcy proceedings and recognition of CJSC “EFI “DastinMarket”
pursuant to the Art. 12 of the Federal Law “On insolvency (bankruptcy)” bankrupt was made with the
participation of the creditor of JSC “Khanty-Mansiysk Bank” as having the right to vote in the amount of
94.99% (case sheet 79-58 volume No. 6) and was adopted by the judicial act of the Arbitration Court of the
Tyumen region of 18.03.2004 (case sheet A70-7994/2003).
Despite the measures taken by the management of CJSC “EFI “DastinMarket” of 03.03.2004 the
temporary manager of SGCM Y. Vasilyev-Chebotaryov held the first meeting of creditors of JSC
“Enterprise with foreign investments “DastinMarket”. On this meeting, the report of the temporary manager
was accepted and it was voted for the introduction of bankruptcy proceedings with regard to CJSC “EFI
“DastinMarket”. This decision was taken into account by the representatives of JSC “Khanty-Mansiysk
Bank” (including 94.99% of votes of creditors according to the protocol made by the temporary manager and
the registration book of participants in the meeting of creditors of CJSC “EFI “DastinMarket”) and TA
(Territorial Organ) of FSFR (Federal Service of Financial Recovery) of Russia in the Tyumen region (with
consideration of 4.94% creditors' votes). Participants of the meeting of creditors of these entities were the
following: Baskova S.V., who acted on the basis of the Power of Attorney of JSC “Khanty-Mansiysk Bank”
No. 76-06/04-03-1 of 26.01.2004 and a representative of the territorial authority of the FSFR of Russia in the
Tyumen region Degtyaryova N.N., who acted on the basis of the Power of Attorney of 12.01.2004 (case
Cassation appeal of A. Schmidt against the Decision of 06.02.2004 according to the provisions of
par. 1, 2 of the Article 275 of the Arbitration Procedure Code of the Russian Federation was sent to the
Federal Arbitration Court of the West Siberian District with the materials of the case A70-7994/3-2003. The
hearing of the cassation appeal was scheduled for 05.04.2004. Consequently, in accordance with the Russian
arbitration-procedural legislation all the materials of the case A70-7994/3-2003 had been sent and were in
the court of cassation. In addition, as of 12.03.2004 (from the date of publication in “Rossiyskaya Gazeta”
No. 50 of 12.03.2004) of the Decree of the President of Russia № 314 of 09.03.2004 “On the system and
structure of federal executive bodies” FSFR of the RF was abolished (par. 12 of the Decree). Functions of
the representation of interests of the RF in front of the creditors in the bankruptcy proceedings were
transferred to the Federal Tax Service (paragraph 14 of the Decree).
However, despite these circumstances and the absence of all materials of the case A70-7994/32003 in the court of first instance as of 18.03.2004 the Judge of the Arbitration Court of the Tyumen region
Vladimir Loskutov considered and delivered the Judgement on introduction of bankruptcy proceeding with
regard to CJSC “Enterprise with foreign investments “DastinMarket” and the appointment of the bankruptcy
manager Y. Shabalin from the guild SGCM relying solely on its own, not effective and illegal judicial act of
06.02.2004 conducted in favour of
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not a party to the bankruptcy proceedings, improper creditor – JSC “Khanty-Mansiysk Bank”, delivered with
serious
violations of the current legislation at that moment, including rules of procedural and substantive law
relating to the Claimants in this case and their property – the operating enterprise CJSC “EFI
“DastinMarket”. The Decision of 18.03.2004 delivered by the arbitrator V. Loskutov at the case A70-7994 /
3-2003 was the subject to immediate execution (case sheet 396-399 volume No.8) which was contrary to the
current at that moment Russian law in accordance with the Article 150 of the APC of the RF the case was the
subject to cessation of proceedings in connection with the liquidation of the FSFR of Russia (the applicant of
the initiation of bankruptcy proceedings) by the Decree of the President of Russia №No. 314 of 09.03.2004.
Petition of A. Schmidt on suspension of the case A70-7994/3-2003 was not satisfied by the court
(case sheet 396-399,408 volume No. 8). Despite the fact that the grounds for suspension of the petition of the
proceedings were the following:
−
Submission of CJSC “EFI “DastinMarket” of the application for holding invalid of the first
creditors' meeting of 03.03.2004;
−
The fact that the appeal court had the claims under consideration for the Decision as of
06.02.2004 (to establish requirements of the creditor of JSC “Khanty-Mansiysk Bank” which had a decisive
voice in the amount of 94.99% votes for introduction of bankruptcy proceedings) and for Decision of
19.02.2004 (refusal to meet the requirements of the creditor of LLC “TFK “Premyera” in the framework of
the proceedings under the requirements of which the bills had been withdrawn from CJSC “EFI
“DastinMarket”). Judicial acts on complaints were not yet delivered by the court but can further affect the
case as establish the facts that are essential for consideration on the merits (adopted judicial acts will
determine the panel of creditors entitled to take the decision at the meeting of creditors of CJSC “EFI
“DastinMarket”);
−
In connection with the abolition, in accordance with the Decree of the President of
09.03.2004 No. 314 (entered into force of 12.03.2004) of the Federal Service for Financial Recovery and
Bankruptcy of Russia (FSFR of Russia).
On the basis of the court decision of 18.03.2004 in the case A70-7994/3-2003 of 24.03.2004,
Director of the “Enterprise with foreign investments “DastinMarket” A. Schmidt was forced to transfer the
seal and all the property of the company to the court-appointed bankruptcy manager Y. Shabalin.
Further neither by the court nor by the bankruptcy manager Y. Shabalin A. Schmidt (as the
Director and the owner of 1% of the shares and the representative of foreign shareholders-investors) was
notified and involved in the inventory of the property business. Consent of the shareholders on major
transactions with the company property was not given. The property of CJSC “EFI “DastinMarket” was sold
without any public sales and without real market valuation. Besides, the shareholder, Director and
representative of the shareholders A. Schmidt was not allowed to familiarize with the materials of the case of
the Arbitration Court proceedings of the Tyumen region A70-7994/3-2003. All written claims and petitions
to the judge V. Loskutov concerning the illegal actions of the bankruptcy manager Y. Shabalin remained
without consideration by the court.
Based on the application of the lawyer S. Baskova (who is also the head of the legal department of
the Tyumen branch of JSC “Khanty-Mansiysk Bank” and the representative of the bankruptcy manager Y.
Shabalin under the Power of Attorney) A. Schmidt as the sole executive body of CJSC “EFI “DastinMarket”
was slandered and against him with the consent of the Prosecutor's Office of the Central administrative
District of the city of Tyumen the criminal case was opened No. 200403835 under the Articles 30, 159, 196
of the Criminal Code of the RF (case sheet
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10-14 volume No. 2) what made it difficult for A. Schmidt to act for protection of the property of foreign
shareholders
and own property.
The arbitrator of ICAC established on the basis of the supplied evidence that when exercising his
powers under the procedure of bankruptcy procedure the bankruptcy manager Y. Shabalin did not make an
entry in the USRLE that he took over the powers of the sole executive body of CJSC “EFI “DastinMarket”
as a competitive bankruptcy manager and that contradicts the Art. 129 of the Federal Law “On insolvency
(bankruptcy)”. In fact, in the state register there was information for public review that the sole executive
body of the enterprise is carried out by the Director A. Schmidt, in respect of which a criminal case was
opened on deliberate bankruptcy of CJSC “FDI “DastinMarket” and fraud.
By the Judgement of the judge of the Central District Court of Tyumen Belousova M.Y. as of
27.09.2004 the fact of opening against A.I. Schmidt the criminal case No. 200403835/14 under the Art. 30,
159, 196 of the Criminal Code of the Russian Federation was declared illegal. By the Judgement of the
primary investigator (the investigator), the Investigative Department at the Central Internal Affairs
Directorate of the Central AD of Tyumen Kolmakova S.A. as of 10.09.2004 the criminal proceedings/
criminal prosecution against A.I. Schmidt was terminated on the grounds stipulated by the Article. 24 part 1
of the par. 2, Part 1 of Article 27 of the Code of Criminal Procedure of the RF – due to the absence in the act
of corpus delicti and innocence of the suspect to commitment of the crime (par. 1 of the Judgement), as a
preventive measure (procedural coercion) – the subscription of recognizance not to leave and appropriate
behaviour in relation to A. Schmidt was abolished in the paragraph 2 of the Judgment (case sheet 8-9, 22-31
is №2). And Schmidt had been seeking in the courts for seven years of the apology from the Prosecutor's
office of the Russian Federation for the illegal criminal prosecution. In October 2011, the deputy Prosecutor
of the Central AD of Tyumen A.S. Mokhov Ref. No. 135-204 of 28.10.2011 A. Schmidt submitted a formal
apology in connection with unproven criminal responsibility in the criminal case No. 200403835/14 (case
sheet 10 volume No. 2).
At the same time, the application of the Director of CJSC “EFI “DastinMarket” A. Schmidt to the
Prosecutor of the Tyumen region Reg. No. of 04.03.2004 (case sheet 104-106 volume No. 9) under the fact
of fraud on behalf of the employees of JSC “Khanty-Mansiysk Bank” in violation of the law was not
considered in due terms and JSC “Enterprise with foreign investments “DastinMarket” in violation of the
Art. 2 of the Constitution of the Russian Federation was deprived of protection from raider attacks. Followed
by non-legal consequences, which led to the wrongful seizure (expropriation) of the property, were not
satisfied the major requirements of the Government (tax authorities), in the amount of tax arrears, because of
which, supposedly, CJSC “EFI “DastinMarket” began the process of bankruptcy of a large enterprise in
Tyumen. Later, under this statement was opened a criminal case No. 200500108/01 the proceedings of which
were repeatedly suspended and artificially delayed by the state law enforcement agencies which was never
investigated and thereupon terminated “on the expiration of period of limitations”.
In the procedure of bankruptcy of CJSC “EFI “DastinMarket” were permitted numerous violations
of the Russian legislation including: consideration of one of complaints of A. Schmidt on the acts of the
bankruptcy manager Y. Shabalin by the judge of the Region Arbitration Court of Tyumen Loskutov was
appointed on 08.02.2005. On the same day the judge appointed the hearing to consider the completion of the
bankruptcy proceedings in the case of bankruptcy of CJSC “Enterprise with foreign investments
“DastinMarket”, approval of the report of the bankruptcy manager Y. Shabalin without notifying in advance
A. Schmidt of the time and date of the court session, depriving him thus of the possibility of familiarizing
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with the report of the bankruptcy manager to prepare their objections to the report and questions to the
bankruptcy
manager. It should be noted that the report of the bankruptcy manager was not previously
submitted to the foreign shareholders of JSC “DastinMarket” as well as the profit and loss account; interim
and liquidation balance sheet approved by the auditor; results of the evaluations and public tender. That
means that the shareholders by the concerted actions of the judge Loskutov and bankruptcy manager were
deprived of the ability to prepare for the process and to familiarize with the materials of the case (case sheet
432-436 volume No. 6).
The arbitrator of ICAC stated that in violation of par. 6 of the Art. 16, Art. 134 of the Federal Law
“On Insolvency (Bankruptcy)” at establishing by the temporary bankruptcy manager Y. VasilyevChebotaryov from the Guild SGCM of the creditors’ claims the claims of the company's employees on
payment of wages were not included – requirements of the second priority, including wages demands
amount due to be paid to Schmidt A.I. the Director of CJSC “FDI “DastinMarket”.
As of 10.02.2005 the bankruptcy manager’s Y. Shabalin report was approved by the judge of the
Arbitration Court of the Tyumen region V. Loskutov, bankruptcy proceeding A70-7994/3 2003 was
completed (case sheet 433-435 is number 6).
The arbitrator of ICAC on the basis of submitted documents stated that the petition for early
consideration of the report of the bankruptcy proceedings of CJSC “FIE “DastinMarket” the bankruptcy
manager Y. Shabalin submitted to the Arbitration Court of the Tyumen region as of 18.01.2005 i.e. on the
day following the Decision by the judge of the Arbitration Court of the Tyumen Region V. Loskutov “on
preparation of the case for court hearing on the case A70-7994/3-2003 of 17.01.2005” (delivered after
consideration of the petition of the bankruptcy manager on approval of the report of the bankruptcy
proceedings and closure of the bankruptcy proceedings). This is evidenced by the stamp of the registry office
of the Tyumen Region Arbitration Court on the petition of the bankruptcy manager of 18.01.2005 the Ref.
No. 200 (Ref. No. of the Arbitration Court of the Tyumen region А70-Со3б-702 of 18.01.2005, the decision
of the Arbitration Court of Tyumen region on preparation of the case for court hearing on consideration of
the report of the bankruptcy manger of 17.01.2005 (case number 431-432 volume No. 6).
Schmidt A.I. of 10.02.2005 filed an appeal on the Decision concerning completion of the
bankruptcy proceedings A70-7994/3-2003 in the court of appeal of the Arbitration Court of the Tyumen
region and of 11.02.2005 was filed an appeal for adoption of interlocutory injunction: non-admittance to
exclude the enterprise CJSC “FIE “DastinMarket” from the register on the basis of the Decision of
10.02.2005 prior to consideration by the court of the appeal on the case.
The arbitrator of ICAC attached to the case the document evidencing that of 14.02.2005 based on
petition of Schmidt A.I. by the judicial act of the court of appeal of the Arbitration Court of the Tyumen
region under the case A70-79943/2003 were taken interlocutory injunctions prohibiting exclusion of CJSC
“Enterprise with foreign investments “DastinMarket” from the Unified State Register of Legal Entities
(USRLE) until consideration of the appeal petition (case sheet 473- 474 volume No. 6).
As of 15.02.2005 A. Schmidt received and delivered to the execution of the registering authority for
MIR (Ministry of Inland Revenue) in the city of Tyumen No. 3 the order of enforcement No. 081531
prohibiting exclusion of CJSC “Enterprise with foreign investments “DastinMarket” from the Unified State
Register of Legal Entities (USRLE) until consideration of the appeal petition (case sheet 477-478 volume
No. 6). Nevertheless, despite the injunction, the company was excluded from USRLE by the Tyumen state
registration tax authority already of 15.02.2005 (case sheet 480 volume No. 6) which resulted in termination
of consideration of all applied by the representative of the shareholders-investors A. Schmidt
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claims and complaints to the Arbitration Court of the Tyumen Region and the Federal Arbitration Court of
the
West Siberian District (case sheet 481-523 volume No. 6):
• As of 12.04.2005 in the case of the Arbitration Court of the Tyumen region A70-7994/3-2003 (a
claim of the representative of shareholders of CJSC “EFI “DastinMarket” A.I. Schmidt of
24.03.2005, on the invalidity of undervaluation of the property of CJSC “Enterprise with foreign
investments “DastinMarket” ordered by the bankruptcy manager on behalf of CJSC “Enterprise with
foreign investments “DastinMarket”, the complaint of the representative of the shareholders of CJSC
“EFI “DastinMarket” A.I. Schmidt on the validity of acts of the bankruptcy manager of 08.02.2005
and 10.02.2005);
claim of the representative of the shareholders of CJSC “EFI “DastinMarket” A.I. Schmidt on
recognition void of transactions between the bankruptcy manager and Shabalin Yuriy Gennadievich
LLC “Defo” concluded based on the results of trades on sale of property of CJSC “Enterprise with
foreign investments “DastinMarket” of 03.08.2004, the contract of sale of the property at auction of
03.08.2004);
claim of the representative of the shareholders of CJSC “FIE “DastinMarket” A.I. Schmidt to hold
invalid the void transaction of the enterprise pledge executed by means of feigned pledged contract
of immovable property No. 458 and certified by the mortgage deed of 31.08.2001) of feigned
pledged contract of immovable property of 31.08.2001;
• As of 26.12.2005 in the case of the Arbitration Court No. A70-12590/26-2005 of the Tyumen region
(a claim of the representative of the shareholders of CJSC “FIE “DastinMarket” A. Schmidt for
holding void of the contract on opening of credit lines and the application of consequences of
invalidity of a voidable transaction);
• As of 19.10.2006 in the case of the Arbitration Court of the Tyumen region A70-5921/26-2006
(claim of Dastin Handelshaus AG, represented by a representative due to the Power of Attorney as of
12.03.2002 A.I. Schmidt to hold invalid the void transaction of the enterprise mortgage, executed by
means of feigned pledged contract of immovable property No. 458 and certified by the mortgage of
31.08.2001 certified by the mortgage);
• As of 14.09.2009 in the case of the Arbitration Court A70-7162/18-2007 of the Tyumen region (the
claim of the representative of the shareholders of CJSC “FIE “DastinMarket” A. Schmidt to hold
non-concluded the transaction resulting after the public sale of property of CJSC “FIE
“DastinMarket” of 03.08.2004 by virtue of the Art. 554 of the Civil Code and application of the
consequences of non-concluded transaction).
The shareholders appealed the actions of public authority on illegal exclusion of CJSC from the
USRLE register in the court. By the Arbitration Court of the Tyumen region of 17.06.2005 the case A701693 / 8-05 of exclusion of CJSC “Enterprise with foreign investments “DastinMarket” from the USRLE
register was declared unlawful. The tax authorities were prescribed to restore full state registration of CJSC
“Enterprise with foreign investments “DastinMarket” (case sheet 129-133 volume No.1). Appeal and
cassation courts despite the claims of the bankruptcy manager Y. Shabalin and registration authority (the
Inspectorate of MIR of Russia's in the city of Tyumen No.3) upheld the decision of the Arbitration Court of
the Tyumen region of 17.06.2005 in the case A70-1693 / 8-05 (case sheet 134-148 volume No. 1).
As of 15.11.2005 the court of appeals of the Arbitration Court of the Tyumen region composed of
the presiding judge Koksharov A.A. judges Rozhenas and Sinko approved
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the judicial act of the judge of Tyumen Region Arbitration Court Loskutov of 10.02.2005 in the case A707994
/ 3-2003 of completion of the bankruptcy proceedings and the appeal of A. Schmidt left without
satisfaction. But this decision was delivered under improper composition of the court – the judge A.
Koksharov could not participate in this process on appeal, because it was he who took statement of the TA of
FSFR of the Tyumen region in November 2003 and delivered the Decision and on the preparation of the
bankruptcy proceedings of CJSC “Enterprise with foreign investments “DastinMarket” for the court trial of
the case A70-7994 / 3-2003 which directly contradicts to APC of the RF ( case sheet 554-561 volume No. 6).
As of 28.11.2005 the Federal Arbitration Court of the West Siberian District dismissed the appeal
of the registration authority and the bankruptcy manager Y. Shabalin and upheld the decision of the
Arbitration Court of the Tyumen region of 17.06.2005 on the case No. A70-1693 / 2005 (on restoration of
state registration of the CJSC “Enterprise with foreign investments “DastinMarket” in the register (case sheet
144-148 volume No. 1).
On the basis Decision of the Arbitration court of the Tyumen region of 17.06.2005 the on the case
No. A70-1693 / 2005, the court of appeal Decision of the Arbitration Court of the Tyumen region of
01.09.2005 on the case No. A70-1693/2005 and the court of cassation of the Federal Arbitration Court of the
West Siberian District of 28.11.2005 on the case No. F04-8463/2005 (17245-A70-37) (case number A701693 / 2005 in the first instance) considering the fact that the company must be restored in the USRLE
register, A. Schmidt, on behalf of the shareholders applied for revision of judicial acts on newly discovered
evidence in protection of interests of CJSC “EFI “DastinMarket”. As the representative of the shareholders
of CJSC “EFI “DastinMarket” A.I. Schmidt:
− Initiated an application for the review of newly discovered evidence under the Decision of the
Arbitration Court of the Tyumen region of 10.02.2005, on the complaint of the actions of the
bankruptcy manager and under the Decision of 12.04.2005 regarding complaints on the actions of
the bankruptcy manager on the case of insolvency of CJSC “EFI “DastinMarket” A70-7994 / 32003. The Arbitration Court of the Tyumen region composed of the presiding judge Vladimir
Loskutov, judges N. Maximova and L. Kryukova of 09.02.2006 dismissed satisfaction of these
statements (case sheet 587-588 volume No. 6);
− Initiated an application for the review of newly discovered evidence of the Decision of the
Arbitration Court of the Tyumen region of the completion of the bankruptcy proceedings of CJSC
“EFI “DastinMarket” on the case A70-7994 / 3-2003 of 10.02.2005. By the Decision of 09.02.2006,
the Arbitration Court of the Tyumen region composed of the presiding judge Vladimir Loskutov,
judges L. Kryukova and F. Skifskiy of 17.05.2007 under the case A70-7994 / 3-2003 dismissed the
application for review of the judicial act on newly discovered evidence and the proceeding of the
petition was terminated. By the Decision of the Federal Arbitration Court of the West Siberian
District of 15.01.2008 on the case F04-666 / 2008 (326-A70-36) the cassation appeal of the
representative of shareholders of CJSC “EFI “DastinMarket” A. Schmidt was returned (case sheet
627-629 volume No. 6);
− Initiated an application for the review of newly discovered evidence of the Decision of the
Arbitration Court of Tyumen region on the establishment of creditor's claims of JSC “KhantyMansiysk Bank” under the case A70-7994 / 3-2003 of 16.06.2004. By the Decision of the
Arbitration Court of the Tyumen region of 12.02.2007, the application was returned.
By the Decision of the court of appeal of the Arbitration Court of the Tyumen region of 26.10.2007
under the case A70-7994 / 3-2003 the appeal was dismissed and the Decision of the Arbitration Court of the
Tyumen region of 12.02.2007 remained without changes.
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By the Decision of the Federal Arbitration Court of the West Siberian District 14.01.2008 on the case F04666/2008
(20-A70-22) the cassation was returned. The Decision of the Federal Arbitration Court of the West
Siberian District of 28.01.2008 under the case F04-666/2008 (1064-A70-22) to satisfy the request for
clarification of the Decision of the Federal Arbitration Court of the West Siberian District of 14.01.2008 on
the case F04-666 / 2008 (20-A70-22) on the case of the Arbitration Court of the Tyumen region A70-7994/32003 (bankruptcy), CJSC “EFI “DastinMarket” was dismissed. By the Decision of the Federal Arbitration
Court of the West Siberian District of 11.02.2008 on the case F04-666/2008 (1625-A70-38) the appeal is
dismissed, the Decision of the Federal Arbitration Court of the West Siberian District of 14.01.2008 on the
case F04-666/2008 (20-A70-22) was upheld (case sheet 623-626 volume No. 6).
The satisfaction of these claims and complaints the judges dismissed and applications and
complaints were returned under the following reasons: according to courts’ opinions “CJSC “Enterprise with
foreign investments “DastinMarket” had already been excluded by the registering authority from the register,
and the case had to be dismissed”. The fact that the tax authority does not restore the registration of the CJSC
in the USRLE in violation of the court decisions and intentionally fails to comply with Decisions of the
courts, was the basis for denying review under newly discovered evidence.
None claimed actions (to invalidate the undervaluation of the property of CJSC “Enterprise with
foreign investments “DastinMarket” of holding public sale void, on holding void the mortgage, on holding
void the credit line, on holding void the arbitration contract, on the revision of the report the bankruptcy
manager and the completion of bankruptcy proceedings and due to the fact that the bailiff officers did not
transfer the funs in the amount of 97 778.79 roubles, earned from the sale of the confiscated goods of the
“DastinMarket” etc.) were considered by the courts on the merits of the application requirements (case sheets
481-523, 587-588 volume No. 6, case sheet 535-592 volume No. 8).
In December 2008 after the next (re) application for the order of enforcement, A. Schmidt achieved
the obtaining of the order of enforcement for the execution of the Decision of the Arbitration Court of the
Tyumen region of 17.06.2005 on the case A70-1693 / 8-2005. The obtained order of enforcement was
transferred to the Bailiff service under which was opened enforcement proceeding No. 71/6/27987/6/2009
(case sheet 536-542 volume No. 6).
Since 2008 the registering authority functions previously carried out by the Inspectorate of MIR of
Russia in Tyumen No.3, were transferred to the Interdistrict Inspectorate of the Federal Tax Service of
Russia No. 14 in the Tyumen region. As part of the proceedings of the Arbitration Court of the Tyumen
region No. A70-1693 / 8-2005 initiated by the shareholders of “DastinMarket” in Russia there was
succession of the registering authority obliged to execute the Decision of the Arbitration Court of the
Tyumen region of 17.06.2005 (case sheet 543-544 volume No. 6).
5.3.
Falsification in the state register USRLE.
Special attention is required to study the extract from the USRLE register issued by the Interdistrict
Inspectorate of the Federal Tax Service of Russia No. 14 of the Tyumen region regarding CJSC “EFI
“DastinMarket” No. 5295 of 24.03.2008 (case sheet 575-584 volume No. 6):
Under the terms of this extract it is confirmed that the company CJSC “EFI “DastinMarket” was
removed from the register in the branch No.1 of the State enterprise – Tumen regional department of the
Social Security Fund of the Russian Federation of 10.10.2007 (p. 121 of the extract) about which an entry
was made in the USRLE without specifying the person on the basis of an application of whom this record
had been written. That is, almost two years after the illegal liquidation of CJSC “DastinMarket”.
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Under provisions of the paragraphs 484-487of the Extract, the company was re-registered as an
insurer
in the executive body of the Social Insurance Fund of the Russian Federation of 17.10.2007 about
which an entry was made in the USRLE 2077203579209 without specifying the person on the basis of an
application of whom this record had been made.
Under provisions of the Extract p.488-492 of the company CJSC “EFI “DastinMarket” after its
elimination and exclusion from the register were re-registered as an insurer in the territorial authority of the
Russian Federation Pension Fund of which the entry was made 2087232104331 of 19.03.2008.
By the provisions of p. 376-379 of the Extract it is confirmed that of 02.12.2005 the entry was
made 2057200937869 of the enterprise registration as an insurer in the territorial fund of obligatory medical
insurance. That is, after 9.5 months after re-registration (p. 125 of the Extract) the liquidated and excluded
from the register, the company was re-registered as an insurer in the territorial fund of health insurance and
this entry was made in the USRLE without specifying the person on the basis of the application of whom this
entry had been made.
As of 22.03.2007 under the provisions of this Extract, a record was made under the No.
2077203151694 and 2077203151705 records of information on bank accounts of CJSC “EFI
“DastinMarket” (p.380-383 and p.390-393 of the Extract). Thus, the liquidated and re-registered company
CJSC “DastinMarket” opens accounts in any banks (or some banks), without specifying the name of the
bank and without the person on the basis of an application of whom this record had been made. Since the
Government of the Russian Federation refused to provide information to shareholders about the falsification
in the public register in the same way and refused to initiate criminal proceedings on the claims of
shareholders for falsification in the State Register, the shareholders were unable to defend themselves in
court.
Information about the bankruptcy manager Y. Shabalin, appointed by the Decision of the
Arbitration Court of the Tyumen region in extracts from USRLE was not displayed during the period of
bankruptcy. It was only after the liquidation of the company and after more than 3 years of the bankruptcy
the information on the bankruptcy manager Y. Shabalin as the liquidator of the company CJSC “EFI
“DastinMarket” was introduced by the registration authority of the Interdistrict Inspectorate of the Federal
Tax Service of Russia No. 14 of the Tyumen region according to an extract from the register of CJSC “EFI
“DastinMarket” No. 5295 of 24.03.2008 (p. 335-370 of the Extract).
Information concerning the removal of the Director A. Schmidt was not reflected in the USRLE
register which is confirmed by the Extracts of CJSC “EFI “DastinMarket” of 30.08.2005, of 24.06.2005, of
26.10.2005 and 24.03.2008 as in these Extracts the registering body Inspectorate of the Federal Tax Service
of Russia in the city of Tyumen No. 3 (and in 2008 the successor the Interdistrict Inspectorate of the Federal
Tax Service No. 14 of the Tyumen region) in the column “Information about individuals entitled to act
without Power of Attorney on behalf of the legal entity” was specified the Director Alexey I. Schmidt (case
sheet 568-584 volume No.6). Thus, by the state official information for the public use it was confirmed that
Schmidt A.I. is responsible for all activities of the enterprise, because it was indicated that he was the person
entitled to act without power of attorney on behalf of the enterprise.
According to the issued by the registering authority Extracts from the USRLE register concerning
CJSC “EFI “DastinMarket” of 24.06.2005, of 30.08.2005, of 26.10.2005, of 24.03.2008, of 03.12.2012 the
Court of Arbitration adopted interlocutory injunctions regarding prohibition to exclude CJSC “EFI
“DastinMarket” were not reflected in the Unified State Register of Legal Entities, despite provided by A.
Schmidt documents to the registering authority – Inspection of the Federal Tax Service of
Russia in Tyumen No. 3 (case sheet 568-584 volume No. 6, case sheet 85-93 volume No. 1):
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−
As of 14.02.2005 (Reg. No. of the Tax Service Inspectorate of Tyumen No. 3 7922 of
14.02.2005) the Decision of the Arbitration Court of the Tyumen region for interlocutory injunctions on the
case A70-7994 / 3-2003 of 14.02.2005, which the court defined “To prohibit the registration authority – the
Federal Tax Service Inspectorate of Russia in Tyumen No. 3 make the registry entry on the liquidation of
CJSC “EFI “DastinMarket” based on the Decision of the Arbitration Court of the Tyumen region of
10.02.2005 on the completion of bankruptcy proceedings against the Company “EFI “DastinMarket” until
the review by the court of appeal of the Arbitration Court of the Tyumen region the Decision of 10.02.2005
on the completion of bankruptcy proceedings against the Company “EFI “DastinMarket” on the case A707994 / 3-2003.
−
And of 15.02.2005 (Ref. No. of the Tax Service Inspectorate of Tyumen No. 3 8143 of
15.02.2005) a writ of execution of the Arbitration Court of the Tyumen region № 081531 of 15.02.2005.
For the case A70-1693 / 8-2005 by the registration authority after the request of the judge O.
Koryakovtseva was submitted the registration file of CJSC “EFI “DastinMarket” No. 14-82 843328. This file
contains only 35 pages (confirmed record of the hearing of the case A70-1693 / 8-05 of 15.06.2005, case
sheet 586 volume No. 6) whereas according to the response of the Office of the Federal Tax Service of
Russia in the Tyumen region Reg. No. 11-36 / 6026 of 25.05.2005 on the request for a representative of the
shareholders of A. Schmidt “registration file of CJSC “EFI “DastinMarket” was transferred to the Federal
Tax Service of Russia in Tyumen No. 3 on 395 pages (three hundred and ninety five) (registration No.
7742.16.4)” (case sheet 585 volume No. 6).
Multiple falsification of records in the state register USRLE without the knowledge of the true
owners of CJSC “EFI “DastinMarket” of the foreign shareholders, non-execution of Decisions of judicial
bodies of Russia regarding the restoration “in full” of registration of the company in the USRLE register,
directly evidence of the participation of the state registering body in preventing economic activity and
destruction of the company to hide actual expropriation of foreign property held on the territory of Russia.
Unlawful decisions of the Arbitration Court of the Tyumen region, in particular, by the arbitration
judge, Deputy Chairman of the Arbitral Court V. Loskutov were concealed by inconsistent to the law
component of fictitious bankruptcy of CJSC “Enterprise with foreign investments “DastinMarket” of the
Tyumen region.
Claimant A. Schmidt, on the basis of materials of the Arbitration proceedings A70-7994 / 3-2003
justified the illegal conduction of transactions by the bankruptcy manager from the guild SGCM Y. Shabalin
with the property of CJSC “DastinMarket” and the illegality of his actions, including:
•
not obtaining of the approval of the shareholders to enter into the major transaction with the
part of the building;
•
unreality of the transaction with the part of the building without the public sale as required
by law (non-payment to LLC “Defo” (the buyer) to CJSC “Enterprise with foreign investments
“DastinMarket” (the seller) of the cost of the part of the building at the address: Russia, Tyumen, Demyana
Bednogo Street, 96, build.14);
•
groundless and illegal write-off of the accounts receivables of the enterprise by the
bankruptcy manager who caused damage not only to the shareholders but also to the Government of Russia;
•
underestimation of the market value of the company's assets;
•
falsification of the report.
Claims of A. Schmidt submitted to the Arbitration Court of the Tyumen region in the course of the
bankruptcy proceedings were not considered by the Judge V. Loskutov on its merits. Consequently, the
legal acts adopted under the present case can’t be adjudicated in the course of the lawsuit of the Claimants in
ICAC at ICPP for compensation of the caused economic damages and can’t prejudge the guilt or not guilty
of the individuals legitimacy and legality
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of their actions concerning damage and expropriation of all property by the foreign shareholders by pseudolegal methods in the interests of the group of persons acting in collusion.
The arbitrator of ICAC emphasizes: the courts of the Russian Federation completely ignored the
Federal Law of 09.07.1999 No. 160-FL “On Foreign Investments in the Russian Federation” which provides
guarantees concerning the settlement of disputes arising in connection with the investments. They are
especially important as such legal guarantees are one of the most important means of implementation of all
other types of guarantees provided to foreign investors. The State of Russia under the provisions of Part 4 of
the Art. 15 of the Russian Constitution guarantees that “the commonly recognized principles and norms of
international law and the international contracts of the Russian Federation are an integral part of its legal
system. If by the international contract are stipulates other rules than those stipulated by the law of the
Russian Federation the rules of the international contract shall be applied”. Thus, the foreign investor dispute
arising in connection with the implementation of investment and business activity on the territory of the
Russian Federation is permitted in accordance with the international contracts signed by the Russian
Federation. Meanwhile, many trials in Russia of the claimants attempting to protect their rights as foreign
investors, the owners of CJSC “Enterprise with foreign investments “DastinMarket” did not meet in the
judicial authorities of Russia the application of the Agreement between the USSR Government and the
Government of the Kingdom of Belgium and the Grand Duchy of Luxembourg of 09.02.1989 “On the
mutual promotion and mutual protection of investments”.
5.4.
Damage.
As a result of violations by the Defendants of the applicable Russian legislation, international
contracts and conventions, the claimants suffered economic damages amounting to EUR 52 261 873,00
which is calculated in accordance with the expert opinion of 13.01.2015, as follows:
− The market value of the property complex of CJSC “Enterprise with foreign investments
“DastinMarket” of 25.11.2014 will be – 19 333 000 (nineteen million three hundred and thirty three
thousand) Euro.
− Cost (100% stock of shares) of CJSC “Enterprise with foreign investments “DastinMarket” of
17.03.2004 will amount to 4 210 000 (four million two hundred and ten thousand) Euro.
− Loss of economic benefit for the period from 17.03.2004 till 25.11.2014 will amount to 28 587 000
(twenty-eight million five hundred and eighty seven thousand) Euro.
In addition, between the company “Dastin Handelshaus AG” and JSC “Enterprise with foreign
investments “DastinMarket” was concluded the agency contract No. 1/00 international business contract of
01.08.2000 according to the terms of which the company Dastin Handelshaus AG delivered the goods for
realization to CJSC “EFI “DastinMarket” in the amount of 300.000,00 (three hundred thousand) of German
marks. The owner of the delivered goods under the agency agreement was the company “Dastin Handelshaus
AG”.
In the JSC “Khanty-Mansiysk Bank” was opened the passport of import transaction No.
2/33582247/000/0000000068 (amendments in the passport of import transaction of 23.10.2000 No.
2/33582247/001/0000000068,
No.
2/33582247/002/0000000068
of
04.05.2001,
No.
2/33582247/003/0000000068 of 16.05.2001) (case sheet 97-125 volume No.1).
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Meanwhile the payment from delivered and sold goods was made to the Claimant only partially:
26.01.2001 in the amount of 14 508.00 DM,
21.03.2001 in the amount of 3900.00 DM,
28.11.2001 in the amount of 7400.00 DM as evidenced by the marks of JSC “Khanty-Mansiysk
Bank” in the agency agreement (case sheet No. 108 volume No. 1).
All the above mentioned documents performed as the part of and pursuant to the agency agreement
No. 1/00-IBC of 01.08.2000 were kept in the accountants’ office of CJSC “EFI “DastinMarket” and later,
after the initiation of bankruptcy proceedings against the latter, were transferred to the bankruptcy manager
Y. Shabalin who did not make any settlements under the agency agreement according to the Act on the
transfer of property of CJSC “EFI “DastinMarket” which is available in the materials of the case A70-7994 /
3-2003 of the Tyumen region of the Arbitration Court which is available in the first volume of the
bankruptcy manager’s report confirming transfer of the documents concerning the accessory of the goods of
“Dastin Handelshaus AG” to the bankruptcy manager.
Thus, the amount of debt owed to the company “Dastin Handelshaus AG” under the agency
agreement No. 1/00-IBC of 01.08.2000 is 265 722,00 DM (two hundred and sixty-five thousand seven
hundred twenty-two DM) or at the rate of 1.95583 of DM to EURO = 135 861.50 Euro.
The arbitrator of ICAC on the basis of materials of the Arbitration proceedings A70-7994/3-2003
and A70-7162/18 submitted by the Claimants, established the illegality of conclusion by the bankruptcy
manager Y. G. Shabalin of the transactions with the property of CJSC “DastinMarket” and unlawfulness of
his actions, including:
• not obtaining consent of the shareholders to enter into major transactions with the part of the
building, as evidenced by the letter of the Federal Registration Service of the Tyumen region, the
Khanty-Mansiysk and Yamalo-Nenets Autonomous District, the Ref. No. 01-26-005332/08 of
19.03.2008 addressed to the judge of the Arbitration Court of the Tyumen region N. Trubitsyna A707162 / 18 (case sheet 460 volume No. 6);
• illegality of the transaction with the part of the building without public sales and market-value
appraisal cost as required by law (non-payment by LLC “Defo” (the buyer) to CJSC “DastinMarket”
(the seller) of the value of the building in the city of Tyumen, D. Bednogo Str.,96, construction 14);
• groundless and illegal write-off of the accounts receivable of the enterprise by the bankruptcy
manager who caused damage not only to the shareholders but also to the Russian Government (case
sheet 461-472 volume No.6);
• underestimation of the market value of the assets of the enterprise, illegal exclusion from the
turnover and valuation of the property of the servitude and rights for the leasehold of the land with
the preferential right for redemption.
−
−
−
−
−
−
5.5.
Initiation by the state authorities of Russia of illegal bankruptcy.
In December 2002 in the Russian Federation came into force the Federal Law “On insolvency
(bankruptcy)” No.127-FL (hereinafter – the Law on Bankruptcy). Bankruptcy procedures should have helped
to overcome the debt crisis, to stop the growth of the overdue indebtedness
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and prevent from the negative social consequences of the crisis processes. The law contained strict
requirements
to the liquidator who committed bankruptcy proceedings.
The Art. 29 of the Federal Law No. 127-FL provides for the competence of the federal authorities
of the executive power, authorities of the state power of entities of the Russian Federation and local
government authorities in the sphere of financial recovery and bankruptcy (FSFR).
Under the provisions of the Art. 7 of the Law on Insolvency (Bankruptcy) the right to appeal to the
arbitration court for declaring the debtor bankrupt has, as well, the authorized authority. This right arises
from an authorized authority to the taxpayer after the adoption of coercive measures for the recovery of
arrears – thirty days from the date of adoption of the decisions of tax authorities for the recovery of arrears of
due payments at the expense of the property.
Position of the Russian Federal Service for Financial Recovery and Bankruptcy was approved by
the Government Resolution of 04.04.2000 No. 301.
Based on the analysis of the balance sheet structure of the enterprise the territorial authority was
obliged to give a written opinion on the financial status of the company. In the case where the considered
company's balance sheet structure was recognized unsatisfactory and the company – insolvent, the territorial
authority of the FSFR had to draw an act of recognition it insolvent and notify the company of its insolvency
and having an unsatisfactory balance sheet structure. This act had to be approved in the established order by
the head of the territorial body of the FSFR and within three days from the date of its approval the copy of
the act together with the notification to be sent by the territorial authority to the Committee for Property
Management, authorized as the territorial authority of the State Committee of Russia on the location of the
insolvent company; executive authority of the Federation at the place of location of the insolvent company;
the head of the insolvent company; Federal Service for Financial Recovery and Bankruptcy (if the act is
approved by the director of the territorial authority).
Besides, the main purpose of creating the FSFR is to prevent the so-called “framed-up bankruptcy”.
With this purpose was introduced the institution of self-regulating organizations of arbitration managers
(SRO).
In the development of the practice of bankruptcy proceedings by the governmental order No. 218
of 15.04.2003 the Regulation was adopted “On the procedure for submitting claims on liabilities to the
Russian Federation in bankruptcy cases and bankruptcy procedures”. This document defined the procedure
for submission of claims on liabilities to the Russian Federation in bankruptcy cases and insolvency
procedures in order to ensure: a) submission by the authorized authority an application for declaring the
debtor bankrupt; b) combining and reporting requirements on the mandatory payments and the requirements
of the Russian Federation under liabilities (hereinafter – requirements of the Russian Federation); c)
coordinating the activities of representatives of the Federal executive authorities and state non-budgetary
funds; d) consideration of the opinion of the executive authorities of the Russian Federation and local
authorities in determining the position of the Federal authorities of the executive power as creditors under
mandatory payments during bankruptcy proceedings. The situation in paragraph 2, provided that in the event
of failure to comply with requirements by the debtor of the claims to perform mandatory payments in the
amount prescribed by the Federal Law “On insolvency (bankruptcy)” as the basis for applying for
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recognizing the bankruptcy, tax and customs authorities not later than 3 months from the date of the Bailiff
decision
of the tax or customs body on collecting the tax (gathering) at the expense of the debtor’s property
shall send to the address of the territorial authority of the FSFR the notification of the presence of
indebtedness of the mandatory payments.
According to paragraph 5 of the Regulation in respect of the debtors the amount of the capital
assets of whom as of the last reporting date is from 300 million to 1 billion roubles, and the decision to apply
for bankruptcy was adopted at the interregional level (hereinafter referred to as – the debtor of category C) as
well as other debtors non relating to of categories A, B and C (hereinafter – the debtor of category D) the
decision to apply for bankruptcy in accordance with the Regulation was adopted by the authorized body.
In within the week from the date of receipt of the notification of the availability of debt and
documents, the TA of FSFR determines the date of the meeting of the Interdepartmental Commission (interministerial meeting). Practicality of applying for bankruptcy is determined by the inter-ministerial meeting,
the composition of which is approved by the authorized body in coordination with the Ministry of Economic
Development and Trade (paragraph 9 of the Regulation). Sessions of the interdepartmental meetings are held
respectively by interregional territorial or territorial bodies of the authorized body and the form of protocols,
agreed with the executive authorities of the Russian Federation or local authorities by the debtor's place of
registration.
At the same time, on the basis of par. 1 of the Statute, at taking decision whether to apply for the
bankruptcy, it is foreseen to take into account the opinion of the executive authorities of the Russian
Federation and local authorities at the place of registration of the debtor. At consent of the decision on
applicability (inexpediency) of an application on adjudication of the bankruptcy of the debtor an order is
issued of interregional (territorial) authorized body.
In case of disagreement in the protocol of the meeting shall be reflected the agreement of a
conclusion of the approving authorities, on the basis of which inter-regional (territorial) authorized body
shall prepare a report and send it together with the report to the authorized body (its territorial inter-regional
body) for consideration by the higher inter-ministerial committee (inter-ministerial meeting). Orders and
protocols shall be drawn up by the interregional territorial or territorial body of the authorized body within
three days from the date of the committee meeting (the meeting).
According to the provisions of paragraph 17 of the Regulations, in order to provide consideration
the opinion of the executive authorities of subjects of the Russian Federation and local authorities in
determining the position of the federal executive bodies of the authorized body prior to participation in the
meeting of creditors, in the agenda of which is included the choice of bankruptcy proceedings, request of the
opinion of the relevant executive authority of the Russian Federation and local self-government regarding the
use of bankruptcy procedures and the course of bankruptcy proceedings.
The authorized body shall take into account the opinion of the relevant executive authority of the
Russian Federation and local self-government regarding the use of the bankruptcy procedure and the course
of the bankruptcy proceedings.
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In the present case, the arbitrator of ICAC stated that in the case of CJSC “Enterprise with foreign
investments “DastinMarket” did not complete the required actions according to the law.
Moreover, there is in the materials of the arbitral proceedings:
−
A reversion from the Director of the Department of External Relations and Trade
Administration of the Tyumen region in the person of the vice-governor of the Tyumen region of 03.11.2003
No. 1570/06 (including No.1 LD 94) that the CJSC “EFI “DastinMarket” was created at 99% of participation
of foreign investor of the company Dastin Handelshaus AG (Grand Duchy of Luxembourg) and had been
working for 5 years on the market with the implementation of foreign trade and the establishment of
international contacts with partners in Germany, France and Italy. Termination of the activity of CJSC “EFI
“DastinMarket” will lead to image decrease of the Tyumen region’s foreign economic cooperation and
investments in the companies of the Tyumen region. The opinion was expressed that it is “not appropriate to
initiate bankruptcy proceedings at the present time against CJSC “EFI “DastinMarket”.
−
Reversion of the Deputy Mayor of Tyumen to the head of the Territorial Authority of RF
FSFR in the Tyumen region of 03.11.2003 No. 1/2144 (case sheet 95-96 volume No.1) which draws
attention to the fact that CJSC “EFI “DastinMarket” provides employment for over 200 people, the amount
of current assets as of 01.10.2003 was 42 800 000,00 roubles and this company was a socially significant
enterprise for the economy of Tyumen so there is no expediency initiation of bankruptcy procedure against
it”.
Besides, in the materials of the case of the Arbitration Court of the Tyumen region of bankruptcy of
CJSC “EFI “DastinMarket” No. A-70-7994 / 3-2003 there was no information confirming the fact of appeal
to the local authorities and authority of the executive power with respect to their views on the bankruptcy of
CJSC “EFI “DastinMarket” and the use of a competitive procedure before the date of the creditors’ meeting
by the TA of FSFR of the Tyumen region. The judges of the Arbitration Court of the Tyumen region,
especially the judge V. Loskutov ignored the laws and regulations of the international law and contracts,
conventions and did not even bother to check the balance of CJSC “FDI “DastinMarket” consistency of
reports of the arbitration managers of ICAC Y. Vasilyev-Chebotaryov and Y. Shabalin did not demand
primarily prescribed standard documents from the FSFR, an extract from the USLRE, which shows the value
of the share fund and foreign shareholders, did not require the prescribed in such cases audit from the
shareholders and Act of TA of FSFR in the Tyumen region on the financial viability of the debtor.
Such actions of state bodies the arbitrator of ICAC regards as intentional, since they contradict
direct legislative and regulatory acts of Russia, prejudged and deliberate, not related to justice and most
importantly – which caused a lot of damage both to the Government of Russia and foreign investors and
owners of the CJSC “Enterprise with foreign investments “DastinMarket”.
According to the register of creditors’ claims of CJSC “EFI “DastinMarket” based on the
arbitration court of the Tyumen region of 10.12.2003 TA of FSFR of the RF in the Tyumen region had the
number of creditors’ claims in the amount of: 8 311 479.02 (eight million three hundred and eleven thousand
four hundred and seventy nine roubles two kopecks) roubles. On the other hand, according to the Decision of
the bailiff of Interdistrict division of bailiffs for execution of especially important enforcement proceedings
of the Service of the Ministry of Justice of the RF in the Tyumen region of 25.08.2003 No. 12-50/32 on the
case No. 982-8-03 before the Federal tax Service Inspectorate of the Russian Federation No. 4 of Tyumen
(tax authority
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there
was registered an indebtedness on the taxes payable in the amount of 4 134 244.32 (four million one
hundred and thirty-four thousand two hundred forty-four roubles thirty-two kopecks) roubles. Based on the
above mentioned taking into account the fact that the provisions of par. 2 of the Regulation “On the
procedure for submitting claims on liabilities to the Russian Federation in bankruptcy cases and bankruptcy
procedures” provide for a specific procedure of pre-trial settlement of tax indebtedness in within non more
than 3 months before applying to the court for initiating bankruptcy proceedings, then under the creditors’
claims in the amount of: 8311 479.02 roubles - 4134 244.32 roubles = 4 177 234.7 roubles were not fulfilled
the requirements of par. 2, 3 and 4 of the Regulations, and the Decision of the Tyumen region of 20.11.2003
in the case No. A-70-7994/3-2003 on the preparation of the bankruptcy case of the Arbitration Court for trial
proceedings was applied unreasonably in violation of the Art. 6, 7, 41 of the Federal Law of the Russian
Federation “On insolvency (bankruptcy)” and disregarding the rules of the Regulation “On the procedure for
submitting claims on liabilities to the RF in cases of bankruptcy and insolvency procedures”.
The text of the claim of TA of FSFR in the Tyumen region to the Tyumen Arbitration Court for
recognition insolvent (bankrupt) of CJSC “EFI “DastinMarket” was made not on the blanc sheet and was on
a normal sheet and bore no seal of the enterprise. The claim on behalf of TA of FSFR in the Tyumen region
was signed by the representative under the Power of Attorney – a specialist N.N. Degtyaryova and not the
head of the territorial authority.
As can be clear from the text of the claim of the Representative submitted on behalf of the TA of
FSFR to the Arbitration Court to the claim were not only attached but not even mentioned in the text of the
claim the following required documents:
1.
Notification of the State Tax Service of the presence of arrears of payments addressed to the
territorial body of the FSFR. It should be noted that there is no application of FTSI of Russia No. 4 in the
city of Tyumen neither to FSFR nor to any arbitration case or the case of the executive proceeding there;
2.
The protocol agreed with the executive authorities of the Russian Federation or local
authorities at the place of registration of the debtor;
3.
The conclusion of the interdepartmental commission of TA of FSFR on expediency of
recognition of the company bankrupt;
4.
The consent of the municipal/regional/interregional bodies for bankruptcy of CJSC “EFI
“DastinMarket”;
5.
The order of TA of FSFR to apply to the arbitration court.
The Arbitration Court of the Tyumen region in the person of the arbitrator V. Loskutov of
10.12.2003 without waiting for the consideration of the appeal hearing of A.I. Schmidt of 03.12.2003 on the
Decision of the Arbitration Court of the Tyumen region of 20.11.2003 dismissed satisfaction of the petition
of A.I. Schmidt to postpone the arbitration meeting for the examination of the petition, saying there was “not
presented evidence of the impossibility of this case to the consideration of the appeal” in the same Decision
he pointed out that: “... a possible violation of the order of presentation of the requirements established in
accordance with the decision of the Russian Government dated 15.04.2003 No. 218 “on the procedure for
making claims on liabilities to the Russian Federation in cases of bankruptcy and insolvency procedures”
according to the Federal law of the Russian Federation “On insolvency (bankruptcy)” does not create any
consequences when considering claims of the authorized body to declare the debtor bankrupt” (case sheet
400-403 No. 8).
Thus, the provisions of the regulations were ignored “On the procedure for submitting claims on
liabilities to the Russian Federation in bankruptcy cases, and in
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bankruptcy
proceedings” approved by the Decree of the RF Government of 15.04.2003 and the Article 13 of
the Arbitration Procedure Code of the Russian Federation.
Thus, of 10.12.2003 the Judge of the Arbitration Court of the Tyumen region Vladimir Loskutov
unreasonable and with a violation of the procedure introduced the stage of monitoring procedures in CJSC
“EFI “DastinMarket” and appointed the temporary administrator of the guild SGCM Yuliy VasilyevChebotaryov (case number A70-7994 / 3-2003).
In accordance with the Art. 63 of the Federal Law “On insolvency (bankruptcy)”, since the
introduction of surveillance procedures to suspend execution of writs of execution on property penalties,
including removing of attachment of property of the debtor and other restrictions on disposal of property of
the debtor imposed in the course of enforcement proceedings.
The reason for suspension of the execution of the writs of execution is the Decision of the Arbitral
Court on the introduction of surveillance which was adopted by Arbitration Court of the Tyumen region of
10.12.2003 and which implies the immediate execution of the above mentioned.
•
•
•
•
•
•
•
•
Analysis of the investigated documents, namely:
Resolution of the bailiff-executor of the Interdistrict court division of Bailiff subdivision for
execution of particularly important enforcement proceedings of I.V. Yeremchuk concerning seizure
of the debtor’s property of 15.09.2003 (case sheet 509 volume No. 8);
An act on judicial letter and seizure of property No. 982/21 of 08.10.2003, court Bailiff Interdistrict
Division of Bailiff subdivision for execution of particularly important enforcement proceedings of
I.V. Yeremchuk (case sheet 510-513 volume No. 8);
Withdrawal certificate of bailiff Interdistrict court division of Bailiff subdivision for execution of
particularly important enforcement proceedings of I.V. Yeremchuk of the seized property of
08.10.2003 (case sheet 514-515 volume No.8);
Withdrawal certificate of bailiff Interdistrict court division of Bailiff subdivision for execution of
particularly important enforcement proceedings of I.V. Yeremchuk of the seized property of
17.10.2003 (case sheet 516 volume No.8);
Complaints of CJSC “EFI “DastinMarket” Ref. No. 141 of 24.12.2003 on the actions of the bailiff
Interdistrict court division of Bailiff subdivision for execution of particularly important enforcement
proceedings of I.V. Yeremchuk at the address of the Chief Judicial police officer of the Ministry of
Justice of the Tyumen region (case sheet 517 volume No. 8);
Applications of CJSC “EFI “DastinMarket” Ref. No. 139 of 19.12.2003 at the address of the bailiffexecutor of the Ministry of Justice in the Tyumen region (case sheet No. 519 volume No.8);
Applications of CJSC “EFI “DastinMarket” Ref. No. 126 of 24.12.2003 at the address of the bailiff
Interdistrict court division of Bailiff subdivision for execution of particularly important enforcement
proceedings of Department of the Ministry of Justice of the RF in the Tyumen Region (case sheet
525 volume No. 8);
Letters of the bailiff Interdistrict court divisions of Bailiff Subdivision for execution of particularly
important enforcement proceedings of Bailiff Service of Department of the Ministry of Justice of the
RF in the Tyumen region of I.V. Yeremchuk.
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ref. No. 4689 of 18.02.2004 Ref. No. 717 of 15.04.2004 at the address of the Chief of Tyumen
Regional Branch of the RFPF (Russian Federal Property Fund) V.I. Malkov (case sheet 533-534
volume No. 8);
• Resolution of the bailiff-executor of the Interdistrict subdivision of bailiffs for execution of
particularly important enforcement proceedings of the Bailiff Service of the Ministry of Justice of
the Tyumen region of I.V. Yeremchuk on release from attachment of the debtor's property of
12.01.2004 (case sheet 523 volume No. 8);
• Resolution of the bailiffs-executor of the Interdistrict subdivision of bailiffs for execution of
particularly important enforcement proceedings of the Bailiff Service of the Ministry of Justice of
the Tyumen region I.V. Yeremchuk on release from attachment of the debtor's property of
13.01.2004 (case sheet 524 volume No. 8);
• act of acceptance and transfer of the attached unsold property of 18.02.2004 No. 982-8-03 (case
sheet 529 volume No. 8) – confirm the fact of presence of the attached property of CJSC “EFI
“DastinMarket”, its late withdrawal as well as breach of duty on transfer of the funds in the amount
of 97.788,79 roubles for the part of the unsold property in the period prior the introduction of
monitoring procedures and after.
Thus, the arbitrator of ICAC found that by violations of the Art. 63 of the Federal Law “On
insolvency (bankruptcy)” and Art. 60 of the Federal Law “On Enforcement Proceedings” by not suspending
the enforcement proceedings and removal of the attachment from the property of CJSC “EFI “DastinMarket”
as well as the actual non-transfer of funds by the state authorities for the sold property of CJSC “EFI
“DastinMarket” created a situation of artificial financial failure to carry out bankruptcy procedures of the
specified company.
The fact that the artificially created situation of the bankruptcy of CJSC “EFI “DastinMarket” is
confirmed by the Resolution on attachment of the debtor's property of 15.09.2003 of the bailiff-executor of
the Interdistrict Division of bailiffs for execution of practically important enforcement proceedings of the
Bailiff Service of the Ministry of Justice of the Tyumen region, according to which in order to ensure the
repayment of tax arrears in the amount of 4 134 244,32 roubles in front of FTSI of Russia No. 4 in the city of
Tyumen of the RF was arrested nonresidential building of the area of 4416.9 sq. m., the land area of 9679.00
sq.m. and the Act of inventory and attachment of property of 08.10.2003 No. 982/21 in according to which
products and consumer goods were withdrawn from the market in the warehouses of CJSC “EFI
“DastinMarket” (case sheets 501-506, 509- 516, 526-528, 530-532 volume No. 8) which violated the Art. 46
of the Federal Law “On Enforcement Proceedings” in part of order of priority of foreclosure and the
particular size and volume of the seized assets which are necessary for the execution of the executive
document.
Later the property was sold in the amount of 97 788.79 (ninety seven thousand seven hundred and
eighty-eight thousand and seventy-nine kopecks). But the funds received from the sale of property of CJSC
“EFI “DastinMarket” were not listed on the deposit account of the Interdistrict bailiff subdivision of for
execution of practically important enforcement proceedings (IBS (Interdistrict bailiff subdivision) on
execution of PIEP (particularly important enforcement procedures). The contract for sale of property of
CJSC “EFI “DastinMarket” was signed between the Office of the Ministry of Justice in the Tyumen region
in the person of Deputy Head of Department - Chief bailiff of the Tyumen region B.B. Pavlov and the
Russian Federal Property Fund, represented by the chief of the Tyumen regional branch of the Russian
Federal Property Fund V.I. Malkov who from the moment of signature of the acceptance and transfer of the
property is liable for property transferred for realization
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from the moment of its transfer to the buyer or the bailiff-executor. Under the contract terms the Fund is
obliged
to transfer the funds received from the sale of the property transferred to the deposit account of
Interdistrict subdivision bailiff service for the implementation of practically important enforcement
proceedings. That was not done.
The arbitrator of ICAC states that the State of Russia is responsible for the actions/inaction of its
governmental authorities.
Separate analysis also deserves a question of making judgments on behalf of the Tyumen region
arbitration judge V.V. Loskutov of the Arbitration Court.
By his Decision of 06.02.2004 in the case No. A-70-7994 / 3-2003 the judge of the Arbitration
Court of the Tyumen region Loskutov V.V. with the procedural violations of the rights of Dastin
Handelshaus AG approved creditors’ claims of JSC “Khanty-Mansiysk Bank” and the CJSC “EFI
“DastinMarket”.
By the Resolution of the Federal Arbitration Court of the West Siberian District of the Russian
Federation of 05.04.2004 the Decision of the Arbitration Court of the Tyumen region of 06.02.2004 in the
case No. A-70-7994 / 3-2003 was canceled and sent to the trial court for the trial in “a differently constituted
composition of the court”.
By the Resolution of the Federal Cassation corresponding with par. 1 of the Resolution of the
Plenum of the Supreme Arbitration Court of the RF of 31.10.1996 No. 13 “On the application of APC of the
RF at consideration of the cases before the Court of the first instance” (as amended of 09.07.1997) which
provides that in accordance with the Art. 18 of APC of the RF the repeated participation of the judge in the
proceedings in the court of one or the other instance is inadmissible, in cases where a judge who participated
in the decision / resolution can’t participate after cancellation of the decision / resolution to participate in the
consideration of this case.
Considering the content of the provisions of the Art. 15, 223 and the Arbitrary Procedure Code the
Art. 7 of the FCL “On arbitration courts in the Russian Federation” the Decision of 06.02.2004 of the judge
V. Loskutov in the case A70-7994 / 3-2003 is a procedural form of the judgment on the recognition of the
creditors’ claims rendered on the merits of such proceeding conduction.
However, as a result of the violation the judge of the Arbitration Court of the Tyumen region V.V.
Loskutov was a member of the court, including the presiding judge and delivered solely the following
Decisions of the case No. A70-7994 / 3-2003.
• Decision of 12.04.2005 of the termination of the proceedings;
• Decision of 21.07.2004 on the preparation of the case for court proceedings;
• Decision of 23.07.2004 on the preparation of the case for court proceedings;
• Decision of 02.08.2004 concerning the procedural succession;
• Decision of 02.11.2004 concerning leaving the complaint without consideration;
• Decision of 17.01.2005 concerning the appointment of the date of hearing of the report of the
bankruptcy manager in the bankruptcy procedure;
• Decision of 10.02.2005 on the completion of bankruptcy proceedings in the case of insolvency of
CJSC “EFI “DastinMarket”;
• Decision of 10.02.2005 on the complaint of the actions of the bankruptcy manager;
• Decision of 17.05.2007 on the refusal of satisfaction of an application for review of the judicial act
on newly discovered evidence and to terminate the proceeding on the claim.
In addition the Decisions of 21.07.2004, of 23.07.2004, of 02.08.2004 also evidence of violations
by the judge of the Arbitration Court of the Tyumen region V. Loskutov of the procedural rights of A.
Schmidt (shareholder-investor, director, representative of the shareholders
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of CJSC “EFI “DastinMarket”) of the company Dastin Handelasus AG and other parties involved in the
court
proceedings under the case A70-7994 / 3-2003 as the data concerning the Decision on preparation of
the case for court proceedings and the date of appointment of hearings of 21.07.2004, of 23.07.2004 were not
sent to the address of A. Schmidt and the company Dastin Handelasus AG. Besides, in the Decisions there
was not specified the need of notification of A. Schmidt and the company Dastin Handelasus AG about the
upcoming processes. And under the terms of the provisions of the Decisions of the judge V. Loskutov from
02.08.2004 under the case A70-7994 / 3-2003 on the procedural succession, A. Schmidt and the company
Dastin Handelasus AG (appointed by the Decisions of 21 and 23 July 2004) did not take part in the court
process and were not informed.
Besides, the judges V. Loskutov and N.V. Trubitsyna denied the representative of the shareholder,
representatives of Dastin Handelasus AG, shareholder, the head of CJSC “Enterprise with foreign
investments “DastinMarket” A. Schmidt getting familiarized with the case A70-7994 / 3-2003, imposing
written exemption resolution on statements of familiarization. First Deputy Chairman of the Arbitration
Court of the Tyumen region V. Shanaurin confirmed the refusal to familiarize A. Schmidt with material of
the case A70-7994/3-2003 (case sheet 630-637 volume No. 6) which is the violation of the procedural rights
of persons involved in the case. Denial to familiarize with the case caused an illegal result in the limitation of
rights for the provision of evidence and caused consequences of the impossibility of proving the
circumstances due to which A. Schmidt referred to the court.
The arbitration process is adversary according to the provisions of the Art. 9 of the Arbitration
Procedure Code of the RF, it is based on equality (Art. 8 of the APC of the RF) of principles, rule of law
(Art. 6 of the APC of the RF) and equality (Art. 7 of the APC of the RF) and the right of discovery of
documents which the party to the arbitration was deprived of and that is the unconditional implementation of
principles of the arbitration process. Moreover, due to the responses of the bankruptcy manager Y. Shabalin
to Aleksey Schmidt of denial to provide information and documents concerning the activities of CJSC “EFI
“DastinMarket” during the bankruptcy proceedings after his dismissal from the post and non-admission to
the company (case sheet 334-344 volume No. 6).
A. Schmidt sent a complaint to the Arbitration Court of the Tyumen region to invalidate the
assessment (Report on the assessment of the liquidation value of the non-residential building, owned by the
CJSC “EFI “DastinMarket” as of 01.06.2004, prepared by the LLC “Lex – Control systems”) and the illegal
actions of the bankruptcy manager Y. Shabalin having concluded the contract to carry out this assessment
with LLC “Lex – Control systems” (with non-independent appraiser to assess the property of the “Enterprise
with foreign investments “DastinMarket”). Self-regulating organization of arbitration managers, which
includes Y. Shabalin and LLC “Lex – Control Systems” are included in one holding. Address of the
bankruptcy manager Y. Shabalin from the guild SGCM and appraiser LLC “Lex – Control Systems”
coincide (Russia, Tyumen, Rosa Luxemburg Street, 12-B.). Thus, LLC “Lex – Control Systems” is a
company affiliated with respect to the self-regulatory organization of SGCM, where the bankruptcy manager
Y. Shabalin is involved. In such circumstances such dependence of the appraiser and the bankruptcy
manager is proved true. What constitutes of the violation of the Art. 16 of the Federal Law of 29.07.1998
No. 135-FL (ed. of 27.02.2003) “On appraisal activity in the Russian Federation”, p. 1 of the Art. 130 of the
Federal Law “On Insolvency (Bankruptcy)”. The complaint was not considered on its merits in the separate
proceeding due to the general rules of adversary justice by the Arbitration Court of the Tyumen region
(despite the payment of
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the state duty for. A. Schmidt) and was illegally consolidated into one case by the judge Loskutov under the
bankruptcy
case A70-7994 / 3-2003 de facto and the proceeding under which was of 12.04.2005 terminated
due to exclusion of the enterprise CJSC “EFI “DastinMarket” from the register.
According to part 1 of the Art. 105 of the Civil Code “A business company is a subsidiary if
another (principal) economic company or partnership by virtue of the prevailing share in its share capital or
in accordance with the concluded between them agreement or otherwise can determine the decisions made
by such company”.
However, as international practice shows, the most common basis of this dependence is the
predominant part of the main company in the authorized capital of the subsidiary. In most cases such
involvement is recognized for the company which owns more than half the shares of another company or a
share exceeding 50 percent of its share capital.
Due to the meaning of provisions of the Art. 40 of the Arbitration Procedure Code of the RF the
interested person – is the person having a legal interest involved under the cases of special proceedings, the
insolvency (bankruptcy) and cases arising from administrative and other public relations. The term “the
interested person” is used by the legislator to refer to persons whose interest in the particular case is
supposed but who are not yet involved to take part in is.
All of the above mentioned corresponds with the European Convention on Human Rights, Article
36 of which provides that in the interests of the proper administration of justice, Chairman of the Court can
invite ... any person interested who is not the claimant to submit written comments or take part in hearings”.
Thus, persons or organizations that are not parties to the case can, by the discretion of the Chairman of the
Court, take part in the proceedings as a third party. This is usually done by submitting under the case
comments amicus curie with providing additional arguments in support of one of the parties.
Thus, considering the fact of belonging to the company Dastin Handelshaus AG of the share capital
in the amount of 99% of the authorized capital of CJSC “EFI “DastinMarket” which means majority interest
in the share capital of the latter and the legal interest in the positive financial results of its subsidiary
company, in its successful development, management, and protection of violated or disputed rights, freedoms
and legal interests that are directly related to the conduct of bankruptcy proceedings on the case No. A-7079994 / 3-2003 regarding the subsidiary CJSC “EFI “DastinMarket” it was stated that the company Dastin
Handelshaus AG unreasonably and unlawfully was not been granted the status of the interested person under
the specified case, which violated its procedural rights under the Art. 41 of APC of the RF and Art. 19 of the
Federal Law “On Insolvency (Bankruptcy)”. The enterprise was declared bankrupt, liquidated and excluded
from the register without the consent of foreign shareholders which is contrary to the explanations of the
Supreme Arbitration Court of the Russian Federation in the INFORMATION LETTER No. 58 of
18.01.2001.
By the Decision of the Arbitration Court of the Tyumen region of 17.06.2005 under the case A701693 / 8-05 exclusion from the USLRE register of CJSC “EFI “DastinMarket” was declared unlawful. Tax
authorities were prescribed to restore full state registration of CJSC “FDI “DastinMarket”. Appeal and
cassation instances after revision of the Decision of the Arbitration Court of the Tyumen region of
17.06.2005 under the case A70-1693 / 8-05 due to complaints of the bankruptcy manager and the tax
authorities in Tyumen to these instances upheld the Decision of the Arbitration Court of the Tyumen region
of 17.06.2005.
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The writ of execution No. 126438 pursuant to Decision of the Arbitration Court of the Tyumen
region
of 17.06.2005 on the case A70-1693 / 8-2005 due to the fact that the tax authorities do not perform
themselves the above mentioned Decision of 17.06.2005 on the case A70-1693/8-2005 was granted by the
Claimants to the Bailiff Service of the Kalininskiy administration district of the city of Tyumen (on the
territory of which the tax authority is located conducting the register of legal entities). CJSC “EFI
“DastinMarket” was not restored so far, and the Decision on the case and the judicial acts of appellation and
cassation instances were not been met in violation of the Article 16 and Part 2 of the Art. 182 of APC of the
RF.
As a result of actions committed by non-execution of the Decision of the Arbitration Court of the
Tyumen region of 17.06.2005, confirmed by the judicial acts of appellation and cassation instance on the
case No. A70-1693 / 8-05 by the Russian tax authorities, this gross violation of law led to the creation of
(offensive) serious consequences and resulted in the termination of consideration of provided by the
Complainant claims and complaints in the Arbitration court of the Tyumen region and the Federal
Arbitration court of the West Siberian District about the following (case sheet 447-459, 481-523 volume No.
6):
• A70-7994 / 3-2003 (invalidity of assessment of property of CJSC “Enterprise with foreign
investments “DastinMarket” ordered by the bankruptcy manager on behalf of CJSC “Enterprise
with foreign investments “DastinMarket”;
• A70-3078 / 6-2005 (on recognition void of transactions between the bankruptcy manager Shabalin
Yuriy Gennadievich and LLC “Defo” concluded due to the results of public sale of the property of
CJSC “Enterprise with foreign investments “DastinMarket” of 03.08.2004, the contract of sale and
purchase of the property at auction of 03.08.2004);
• A70-7243 / 26-2005 (on recognition void of the property pledge agreement of CJSC “EFI
“DastinMarket” No. 458 and feigned property pledge agreement of real estate property of
31.08.2001 certified by the mortgage of 31.08.2001);
• A70-12590 / 26-2005 (on recognition void of the agreement on opening of the credit lines and
application of consequences of invalidity of a voidable transaction);
• A70-5921 / 26-2006 (a claim on behalf of the company Dastin Handelshaus AG on recognition
void of the pledge agreement of real estate property of CJSC “EFI “DastinMarket” № 458 and
feigned of pledge agreement of real estate property of 31.08.2001, certified by the mortgage of
31.08.2001).;
• A70-7162 / 18-2007 (on recognition of the transaction non concluded in virtue of the Art. 554 of
the Civil Code) (case sheet 623-627 volume No. 6).
According to the arbitrator of ICAC, termination of the judicial proceedings in the above
mentioned cases, deprive the Claimants of possibility of considering the entire volume of violations which
the Claimants referred to in their statements of claim and defend their violated rights and protect legitimate
interests in the arbitration court, which not only complicated the procedure of recovery of their legal status
but also led to the irresponsible actions of the defendant in the future. Cumulative actions of governmental
authorities of Russia confirm the fact of expropriation of the property of foreign investor, no matter what
form of conceal such expropriation bore.
5.6.
Illegal activities of arbitration managers from the guild SGCM.
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In the framework of the case of Arbitration Court of the Tyumen region A70-7994 / 3-2003 were
appointed the following arbitration managers of CJSC “Enterprise with foreign investments “DastinMarket”:
•
Y. Vasilyev-Chebotaryov was appointed by the Decision of the Arbitration Court of the
Tyumen region of 10.12.2003 the temporary manager.
•
Y. Shabalin was appointed by the Decision of the Arbitration Court of the Tyumen region of
18.03.2003 the bankruptcy manager.
In violation of the Art. 24 and Art. Of the 70 Federal Law “On insolvency (bankruptcy)” the
arbitration manager ignored his following duties:
−
Take measures to protect the debtor's property;
−
Analyze financial condition of the debtor;
−
Analyze financial, economic and investment activities of the debtor, his position on the
commodities and other markets;
−
Identify signs of deliberate and fraudulent bankruptcy as well as the circumstances,
responsibility for which is provided in paragraphs 3 and 4 of the Article 10 of the Federal Law “On
insolvency (bankruptcy)”.
Non-performing properly of his responsibilities to detect signs of deliberate and fraudulent
bankruptcy by the temporary manager Y. Vasilyev-Chebotaryov led to recognition of CJSC “EFI
“DastinMarket” bankrupt.
Non-conduction by the arbitration manager Y. Shabalin of financial analysis of CJSC
“DastinMarket” crudely violates the RF Government Decree of 25.06.2003 No. 367 “On approval of the
rules of conduction by the arbitration manager of financial analysis”.
Moreover, reports of the court-appointed managers of the guild SGCM Y Vasilyev-Chebotaryov
and Y. Shabalin did not meet the requirements of the Order of the RF Ministry of Justice of 14.08.2003 No.
195 “On approval of standard forms of reports (opinions) of arbitration manager” as well as the Decision of
the Government of the RF of 22.05.2003 No. 299 “On approval of General rules of preparation of reports
(opinions) of the arbitration manager” and were formal in fact.
When the procedure of bankruptcy of CJSC “EFI “DastinMarket” the bankruptcy manager Yuriy
Shabalin from the guild SGCM did not take any measures for enforced collection of debts receivable in the
amount of 19.529.221,00 roubles with the following violations of the regulatory acts:
In the Article 12 of the Federal Law of 21.11.1996 No. 129-FL “On Accounting Law” provides for
mandatory inventory of assets and liabilities in commercial organizations, which is not only an important
measure of economic activity of the organization but also a part of its accounting policy. Order of conduction
of the inventory is defined in the Guidelines on inventory of property and financial obligations, approved by
Order of the Russian Ministry of Finance of 13.06.1995 No 49. For carrying out of an inventory in your
organization there should be created a permanent inventory commission. Before the inventory the head
issues an order which specifies the terms of inventory, property and verifiable commitments as well as the
personal composition of the inventory commission. (Unified blank form of the order – N INV No. 22,
approved by the State Statistics Committee of Russia of 18.08.1998 N 88 “On approval of the unified forms
of the primary registration documentation on the account of cash operations regarding accounting of the
inventory results”).
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Inventory of calculations is carried out for the purpose of documenting the presence of receivables
and
liabilities, establishing the terms of their origin of their appearance and payment, clarification
assessment. During inventory of the calculations the status of settlements on each debtor and the creditor is
verified (for each buyer, customer, vendor, contractor) for each contract, each employee, accountable person
for each tax and budget in which it is paid. Before the beginning of the inventory with debtors it is necessary
to issue an act of debt reconciliation between organizations. Act of debt reconciliation is issued by each
debtor in duplicate. The first copy remains in the accounting department and the other is sent to the debtor,
with whom the reconciliation had been conducted.
When the inventory of receivables the inventory commission should set the amount of accounts
receivable, including confirmed and unconfirmed by the debtors.
For presentation of the inventory results of calculations with buyers, other debtors the act made on
form – N INV No. 17 is applied. It is formed on the basis of certificate, compiled by type of debt in the
context of contract accounts. The act shall specify:
−
Name of the debtor;
−
Accounts of accounting records, under which the arrears arise;
−
The amount of debt, agreed and not agreed upon with the debtors;
−
The amount of debt for which the limitation period has expired.
As a result of the inventory the receivables on each obligation, taking into account the maturity and
based on the conditions of the concluded contracts can be classified as debt under which the term of
repayment has expired or has not yet come.
Signature by the debtor of the reconciliation act of mutual payments interrupts the validity period
of limitations on debt recognized by him. Bad debts according to paragraph 2 of the Art. 66 of the Tax Code
are recognized the debts:
−
With expired limitation period, Art. 196 of the Civil Code;
−
Under which according to the civil law obligation was terminated:
−
Due to the impossibility of its execution under the Art. 416 of the Civil Code. The irresistible
circumstances leading to impossibility of performance of the obligation include such as natural disasters,
wars, etc.;
−
On the basis of public authority act the Art. 417 of the Civil Code);
−
In connection with the liquidation of the organization the Art. 419 of the Civil Code).
Debt amortization is based on the data of the inventory, a written justification and the order
(instruction) of the head of the organization.
The first step of work with debtors is presentation of a claim (pre-trial claim settlement) followed
by negotiations performed by advocates with the debtor on the procedure for pre-trial settlement of the debt.
If the pre-trial stage does not bring the desired results the next step is an appeal of the creditor with
a claim to the arbitration court.
When making a claim the creditor must provide documentary substantiation of the claim (certified
copies are attached to the claim and then to the hearing the original documents are presented confirming the
existence of the debt: invoices, certificates of acceptance of works, etc.; presence of the act of reconciliation
only and relevant invoice does not guarantee the establishment of the indebtedness).
Bankruptcy manager of non-profit Partnership “Siberian Guild of Crisis Managers” (SGCM) Yuriy
Shabalin took the decision of debt amortization
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of the receivables in the amount of 19 529 221,00 roubles based on the conclusion by an outside organization
regarding
and based on “lack of primary documentation and the inability to determine the identity of the
debtor”. In this case, the officer and the Arbitration Court of the Tyumen region did not take adequate
measures for the actual collection of documents, investigation of debtors and debt collection in the manner
prescribed by the current legislation of the RF by which violated the Art. 129 of the Federal Law “On
However, the Act of transfer of property of CJSC “EFI “DastinMarket” in parts 20,21,22 and 23
indicated the transfer of contracts of economic activity in 1998, 1999, 2000, 2001, 2002 and 2003,
confirming the existence of accounts receivable (case sheet 589-592 volume No. 6).
Illegal debt amortization by the bankruptcy manager Y. Shabalin of the receivables amounting to
more than twice exceeding the initial inspection requirements of MIR No. 4 in the city of Tyumen on tax
arrears at the initiation of insolvency proceedings, prove the deliberate creation of the situation of artificial /
imaginary/fictitious bankruptcy of CJSC “EFI “DastinMarket” and cause of economic loss to the Claimants
and the State of Russia in terms of non-payment of value added tax to the Russian budget.
The procedure for organizing and conducting the auction, created by the bankruptcy manager from
the guild SGCM Y. Shabalin, contradicted the Art. 448 of the Civil Code.
According to paragraph 6 of Article. 24 of the Federal Law “On Insolvency (Bankruptcy)” the
arbitration manager Y. Shabalin (member of the SGCM) during the bankruptcy proceedings shall act in good
faith and reasonably in the interests of debtors, creditors and society.
In accordance with the Report of the bankruptcy manager under the case A70-7994 / 3-2003 the
property of CJSC “EFI “DastinMarket” was sold for the total cost of 130 354 812, 00 roubles, among which
there is:
−
Building, supporting equipment and movable property in the form of commercial equipment – 127
500 000,00 roubles;
−
Transformer substation – 80 000.00 roubles;
−
The right to claim – 50 000.00 roubles;
−
Furniture and office equipment – 190 689,00 roubles;
−
Goods – 2534 123.00 roubles.
Besides, of 03.08.2004 the contract of sale without a number was concluded between CJSC “EFI
“DastinMarket” and LLC “Defo” for purchase of non-residential building in the amount of 127 500 000, 00
roubles. Of which 25.000.000, 00 roubles were transferred by the payment order No. 1 of 02.08.2004 and
102.500.000, 00 roubles had to be transferred not later than 13.08.2004 (case sheet 69-71 volume No. 14).
Meanwhile, the bankruptcy manager’s report does not contain information about the funds arriving in the
account of CJSC “EFI “DastinMarket” and there is no such information in the case No. A70-7994 / 2003.
In accordance with par. 1.5. of the mentioned contract the land on which the building was sold (not
indicated that this building is a shopping center, put into operation, being a part of the property complex)
CJSC “EFI “DastinMarket” is the subject to renewal for subsequent use by the buyer (in violation of the Art.
35, 36 of the Land Code of the Russian Federation). Land lot as an independent property, located in the
property maintenance managed by CJSC “EFI “DastinMarket” on the right of permanent perpetual use and
without any encumbrance. Boundary marks of the land lot were stored by the Director A. Schmidt and were
not transferred to anyone under the act, what indicates non-conduction of transactions between LLC “Defo”
and Y. Shabalin (Art. 554 of Civil Code of the RF).
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Thus, the bankruptcy manager of Non-profitable partnership “Siberian Guild of Crisis Managers”
also
took no measures to acquisition of land in the property of CJSC “EFI “DastinMarket” pursuant to the
duties entrusted to him by par. 2 of the Art. 3 of the Federal Law of October 25th, 2001 No. 137-FL “On
introduction of the Land Code of the Russian Federation” and did not include it in the future in the
bankruptcy case, by which violated the requirements of paragraph 6 of the Art. 24 and paragraph 3 of the
Art. 110 of the Federal Law “On insolvency (bankruptcy)” violated the rights and legitimate interests of both
the debtor and legitimate creditors.
In its turn, in accordance with the Protocol of the meeting of the creditors of CJSC “EFI
“DastinMarket” No. 2 of 17.06.2004 the bankruptcy manager of Non-profitable partnership “Siberian Guild
of Crisis Managers” offered to sell the building of CJSC “EFI “DastinMarket” together with the trading
equipment in order to “enhance the value of the property complex” thereby recognizing that this is a property
complex but without indicating the balance sheet value of the shopping center equipment and without asking
the consent of the shareholders for a major transaction, thereby committing acts in violation of the Art. 128
of the Civil Code and Part 1 of the Art. 34 of the Constitution. At the same time, the question of cost of an
independent type of property – the land lot, of its market value in the property complex and the subsequent
purchase on favorable terms of land by the CJSC “DastinMarket” would increase the price of the property.
This protocol directly indicates of illegal acts to the detriment of the debtor and shareholders as the property
complexes are sold consisting of:
•
Capital and supporting buildings;
•
All equipment included in the property complex namely, trade, storage, handling, cooling
and supporting (cutting, packaging etc.). As well as licenses of the warehouse of temporary storage,
other licenses and equipment associated with providing activities of the shopping center, including
office equipment indicating the carrying value of its balance sheet value;
•
Land in the property complex, its identifying complete data, boundary signs, provided by a
specialized organization, the building allocation on the land plot plan, performed by an expert and
applied for submission to the Federal Service of Public Registration and registration of transfer of
ownership of the building with the application of evidence of ownership and only with the
subsequent registration of the land lot to the new owner.
The Arbitrator of ICAC states that the described non-legal bankruptcy proceedings undertaken by
the state authorities, arbitration judge V. Loskutov and arbitration managing directors of the guild SGCM
bear the highly demonstrated nature of action against property and against justice with the purpose of
liquidation of CJSC “EFI “DastinMarket” and property expropriation and have nothing to do with the Law.
Re-registration of rights occurred without the consent of the shareholders of CJSC “EFI
“DastinMarket” as evidenced by the response of the Federal Service of Public Registration of the Tyumen
region Ref. No. 01-26-005332 / 08 of 19.03.2008 (case sheet 460 volume No. 6).
Moreover, the bankruptcy manager Y. Shabalin used his powers, causing harm to the company
entrusted to him CJSC “EFI “DastinMarket”:
−
Thus, the case of the Arbitration Court of the Tyumen region No. A70-7779 / 24-2003 under
the statement of claim of CJSC “EFI “DastinMarket” “On acknowledgement void the nominal registered
certificate (mortgage of 31.08.2001 performed by the CJSC “EFI “Dastin-Market” with the purpose to
identity rights of the pledge holder –Tyumen branch of the Khanty-Mansiysk Bank)”, presented by the
director A. Schmidt, the bankruptcy manager Y. Shabalin of 17.08.2004 illegally
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stated rejection of the claim of CJSC “EFI “DastinMarket” what led to the termination of the proceedings
and
not considering the requirements of the enterprise on its the merits and inability to influence the course
of the bankruptcy proceedings of CJSC “EFI “DastinMarket” A70-7994 / 3-2003.
−
in the Arbitration Court of the Tyumen region No. A70-7283 / 24-2003 on the claim of CJSC
“EFI “DastinMarket” on considering void the transaction of the enterprise pledge executed by means of
feigned contract of pledge of movable property No. 458 and feigned pledge property of 31.08.2001 certified
by the mortgage of 31.08.2001” presented as well by the director A. Schmidt, the bankruptcy manager Y.
Shabalin stated objections regarding the proceedings in the court of arbitration, concluded with the
representatives of the JSC “Khanty-Mansiysk Bank” and LLC Leasing company “HESLEASING” the
arbitration agreement of 29.03.2004 on transfer of the dispute to the Arbitration Court of the Chamber of
Commerce of the Tyumen region. What led to the failure to satisfy the claim of the enterprise requirements
and inability to influence the course of the bankruptcy proceedings of CJSC “EFI “DastinMarket” A707994/3-2003.
Provisions of the Art. 22 of the Federal Law of the Russian Federation “On insolvency
(bankruptcy)” (as in force at the time of bankruptcy of CJSC “EFI “DastinMarket”) the obligations of selfregulatory organizations are fixed including the obligation “to control the professional activities of its
members in terms for compliance with the requirements of this Federal Law and established by the selfregulatory organization rules of professional activity of the arbitration manager”.
Thus, as a result of not performing the assigned to Non-profitable partnership “Siberian Guild of
Crisis Managers” (whose members were Y. Vasilyev-Chebotaryov and Y. Shabalin) obligations, the
arbitration managers committed violations established by the arbitrator of ICAC at ICPP during this
arbitration. Besides, the guild admitted the candidacy of Y. Shabalin as a bankruptcy manager, concealing
from the court a lack of competence and lack of adequate insurance amount of arbitration manager for the
bankruptcy process of the company with a statutory fund and assets of more than 400 000 000 roubles.
Separate analysis requires protocol of the first creditors’ meeting of the “EFI “DastinMarket” of
03.03.2004. While examining of this document ICAC stated the following:
−
At the meeting the representative of the labor collective of CJSC “EFI “DastinMarket”
Shopina N.V., was present, who in the manner prescribed by the Article 12 of the Federal Law “On
insolvency (bankruptcy)” was not given the right to speak on the agenda of the creditors’ meeting;
−
At consideration of the first agenda item the bankruptcy manager Y. Chebotaryov-Vasilyev
did not specify what kind of financial analysis of CJSC “EFI “DastinMarket” had been performed, did not
provide a list of the debtor's employees to be included in the second priority of the creditors, including the
director A. Schmidt, accountant E. Baydak, legal adviser of the enterprise E. Malyshkina as well as
concealed the fact of the chosen at a general meeting of employees of their representative – a legal adviser N.
Shopina, did not inform what documents had been received from the BTI, Federal Service of Public
Registration, USRLE register, extract from the register of shareholders on the composition founding
members, agreements with JSC “Khanty-Mansiysk Bank”, the validity of which had been over long before
and claims on the arrears were not made. He did not study and therefore in violation of the law did not
present and study the balance and contractual relations of the enterprise and arising from them the rights to
claim and filed and considered in the Arbitration court claims on the basis of which they are filed, under
which court decision and on what case, with whose participation in the process and what information they
contained to which
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conclusions he came after studying them. There were not disclosed the responses of the law enforcement
authorities
on the question of presence of signs of bringing the company into bankruptcy by deliberate
actions of third (interested parties), what amount of insurance payments was carried out by the pledge-holder
(s) of the building, in the period of the credit line contract validity and pledge of the building of trading
center from May 2001 till August 2003. All these factors had the manager to know in detail and inform the
parties of the first meeting of creditors in accordance with the normative acts of the Russian Federation.
The above mentioned actions and lack of actions of the temporary manager of SGCM Y. VasilyevChebotaryov bear distinct signs of bad faith, abuse of his powers, improper performance of his duties with
the connivance of the arbitrator of the Arbitration Court of the Tyumen region, what created conditions for
misappropriation of property and other property rights of the owners-shareholders of CJSC “EFI
“DastinMarket” in the interests of JSC “Khanty-Mansiysk Bank”.
At formation of the composition of the creditors’ committee, the offer of the head and debtor of
CJSC “EFI “DastinMarket” A.I. Schmidt was rejected regarding suspension on the grounds that the Decision
of the arbitration court of the Tyumen region of 06.02.2004 under which JSC “Khanty-Mansiysk Bank” was
recognized bankruptcy creditor was on cassational hearing. Thereafter into the part of the creditors'
committee were includes two representatives of JSC “Khanty-Mansiysk Bank” and by the decision of the
Federal arbitration Court of West Siberian Federal District of 05.04.2004 under the case No. F04 / 1780 -251
/ A70-2004 was cancelled the Decision of the arbitration court of the Tyumen region on the case No. A707994 / 3-2003 on recognition of JSC “Khanty-Mansiysk Bank” bankruptcy creditor.
Thus, the haste and pre-planned scenario of the meeting, which was shown by the representatives
of creditors, having considered such a significant and important for the enterprise with foreign investments
“DastinMarket” questions in within one hour (from 11-00 to 12-00) confirms the formal nature of the
meetings with the superficial consideration of issues on the agenda without a detailed study of the financial
situation of CJSC “EFI “DastinMarket” and without development of concrete measures to restore its paying
capacity, retention of working places and repayment of a minor, based on the balance of the enterprise,
indebtedness.
In the course of the arbitration proceedings in ICAC at ICPP were analyzed the protocols of the
meeting of the creditors' committee No. b/n and 1-3, respectively, of 03.03.04 and 17.04.04, of 07.10.04, the
Regulation on the Committee and creditors of CJSC “EFI “DastinMarket”. The arbitrator emphasizes that the
bankruptcy creditor was previously recognized by the courts in the RF JSC “Khanty-Mansiysk Bank” what
was stated by the arbitrator of ICAC.
As recorded in the protocol No. 1 of 03.03.2004 the meeting of the creditors’ committee was
attended by two people: a representative of JSC “Khanty-Mansiysk Bank” Baskova S.V. and a representative
of LLC “Trade House “Alanta” Kuznetsov V.M.
At this meeting there was absent one more representative of JSC “Khanty-Mansiysk Bank”
Nikonov S.A. elected the third member of the committee, according to the protocol of the creditors’ meeting
of CJSC “EFI “DastinMarket” of 03.03.2004.
As provided for by the part 2 of the Art. 12 and part 4 of the Art. 17 of the Federal Law “On
insolvency (bankruptcy)” the number of members is determined by the creditors' committee meeting of
creditors and can’t be less than 3 people and more than 11 people.
ICAC believes that an odd number of members of the creditors’ committee in the 3 persons is
intended to promote compliance with the adversarial principle (Article 9 of the APC of the RF) when making
procedural decisions during which each member of the creditor committee has the opportunity to
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express his opinion and the decision is taken by the majority vote over the minority proposals.
However, in violation of these regulations, which contradict the decision of the creditors’
committee on number of creditors’ meetings of 3 participants, on the meeting by the two representatives it
was decided that there was a quorum.
There were also violated the rights of the representative of JSC “Khanty-Mansiysk Bank” Nikonov
S.A. on his election of chairman or secretary of the committee of creditors as well as the right to take part in
the meetings of the creditors’ committee and vote as part 6. of the Article 17 of the Federal Law “On
insolvency (bankruptcy)” provides that the decisions of the creditors’ committee are taken by the majority
vote of the total number of members of the committee of creditors.
In addition, in accordance with part 1 of the Art. 17 of the Federal Law “On insolvency
(bankruptcy)” the creditors’ committee exercises its powers in accordance with the Federal Law “On
When considering the 2-nd issue of the agenda concerning approval of the Regulations of the
Committee of creditors of CJSC “EFI “DastinMarket” this document was approved with paragraph 6 of the
Regulation, according to which the meeting of the committee shall be considered valid if attended by more
than half of its members, i.e.2 persons.
Thus, the number of illegitimate members of the creditors’ committee in the number of 2 people in
the Regulations of the committee of creditors in violation of part 2 of the Art. 12 and part 4 of the Art. 17 of
the Federal Law “On insolvency (bankruptcy)” established a quorum of two members for taking decision at
the meetings of the committee of creditors, giving the appearance of “legitimate” majority of its composition.
Moreover, par. 9 of the committee of creditors provides that, in the event that the voting opinions
are equally divided, the Chairman of the committee of creditors acquires the right of a decisive vote which is
directly contrary to the Art. 8 of APC of the RF (equality of the parties) and was not provided by a special
norm – part 5 of the Art. 17 of the Federal Law “On insolvency (bankruptcy)”.
Also, in the Protocol No. 2 of 17.06.2004 the bankruptcy manger in his report on the progress of
the bankruptcy proceedings pointed out about the presence of CJSC “DastinMarket” of accounts receivable
in the amount of 6 528 350,00 roubles. However, the Protocol No. 3 of 07.10.2004 with the consideration of
the third issue, the bankruptcy manager said that as of 01.01.2004 the balance sheet of CJSC “EFI
“DastinMarket” accounted for receivables in the amount of 19 529 221, 00 roubles.
Considering the conflicting evidence on the balance sheet information of CJSC “EFI
“DastinMarket” presented by the bankruptcy manager, ICAC comes to the conclusion that improper control
of the arbitration manager on behalf of the creditors’ committee which is confirmed by the lack of mention
of these reports, familiarize the members of the committee with the documents confirming information
declared by the bankruptcy manager at the meetings of the creditors’ committee.
Thus, at considering the issue No. 3 in the Protocol No. 3 of 07.10.2004, concerning writing-off of
accounts receivable of CJSC “DastinMarket” in the amount of 19.529.221, 00 roubles, no one from the
representatives of the creditors’ committee was interested in and was not familiar with the documents
regarding the work of the bankruptcy manager Shabalin, which he had conducted to identify debtors of CJSC
“EFI “DastinMarket” and collection from them of the accounts receivable.
The arbitrator of ICAC comes to the conclusion on major violation by the creditors’ committee of
its obligations in accordance with the Art. 17 of the Federal Law “On insolvency (bankruptcy)” and the
Regulations of the committee of creditors of CJSC “EFI “DastinMarket” concerning the control over
activities
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of the bankruptcy manager, as well as part 2 of the Art. 12 and part 4 of the Art. 17 of the Federal Law “On
insolvency
(bankruptcy)” in the procedure of the creditors’ committee meetings and vote on agenda issues.
Under part 2 of the Art. 126 of the Federal Law “On insolvency (bankruptcy)” “from the date of
the arbitration court’s decision to declare the debtor bankrupt and on opening bankruptcy proceedings the
powers of the head and the debtor are terminated and other debtor’s management bodies and the owner of
property and the debtor – the unitary enterprise, except for the powers of the debtor’s management bodies,
authorized in accordance with the constitutive documents to make decisions on major transactions, make
decisions on conclusion of agreements on conditions of provision of cash resources by a third party or third
parties for performance of the liabilities of the debtor”.
That is, the powers of the debtor’s management bodies, authorized in accordance with the
constitutive documents to make decisions on major transactions – remain in force during the bankruptcy
proceedings.
According to the Art. 78, Art. 79 of the Federal Law of the RF “On Joint Stock Companies” (as
amended by Federal Law of 07.08.2001 N 120-FL) “A major transaction is a transaction (including loan,
credit, mortgage, guarantee) or several interconnected transactions related to acquisition, disposal or
possibility of alienation by the society, directly or indirectly of the property the cost of which is 25 and more
percent of the balance value of the company’s assets.
The decision on approval of the major transaction the subject of which is the property that costs
more than 50 percent of the balance value of assets of the company is taken on the general meeting of
shareholders by the three-fourths majority vote of the shareholders-owners of voting shares participating in
the general meeting of shareholders. The decision on approval of the major transaction shall indicate the
person (s) being its party (parties), beneficiary (beneficiaries), cost, subject of the transaction and other
essential conditions.
As was stated by the arbitrator of ICAC in accordance with the Report of the bankruptcy manager,
the property of CJSC “EFI “DastinMarket” was sold for a total cost of 130 354 812 roubles.
Thus, during the procedure of bankruptcy of CJSC “EFI “DastinMarket” the arbitration manager Y.
Shabalin flagrantly violated: the procedure of alienation of the assets of the latter and rights of shareholders –
the company Dastin Handelshaus AG and the Citizen of the RF Schmidt A.I. on taking decision on the
amount and the sale of property of the enterprise.
5.7.
Regarding the actions of the authorities of the Grand Duchy of Luxembourg.
ICAC states that neither by the Application of the shareholder of the company Dastin Handelshaus
AG Franc Smidt and director, shareholder of the company Vladislav Reger of 30.08.2012, addressed to the
Minister of Justice of the Grand Duchy of Luxembourg with a request for protection of legitimate interests,
in accordance with the procedure provided for by the Agreement between the Government of the USSR and
Governments of the Kingdom of Belgium and the Grand Duchy of Luxembourg of 09.02.1989 “On the
mutual promotion and mutual protection of investments” and which was transferred by the Minister of
Justice of the Grand Duchy of Luxembourg by Mr. François Biltgenom of 14.09.2012 at the address of the
Ministry of economy and foreign trade of the Grand Duchy of Luxembourg, Post address: L 19-21,
Luxembourg, Post address: L 2914 Luxembourg (Grand Duchy of Luxembourg) and on the repeatedly
directed applications of the shareholder of the company Dastin Handelshaus AG,
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director and shareholder of the company Vladislav Reger of 15.11.2012 and 21.11.2012 addressed directly to
the
Minister of Economy and Foreign Trade of the Grand Duchy of Luxembourg Mr. Etienne Schneider –
were not held the proper examinations, not studied the facts and circumstances, referred to by the Claimants
and legal assessment was not given to them as well as proper procedure was not carried out to restore the
violated rights and interests of the applicants. The above mentioned petitions of the Claimants were ignored
and left without even a formal response on the results of verification of the facts relied on by the applicants.
At the same time the arbitrator of ICAC states that the Agreement relied on by the Claimants
provides mutual protection and promotion of investments, which is directly provided by the meaning of the
Agreement and its contents.
Grand Duchy of Luxembourg on behalf of which the “Agreement on mutual encouragement and
mutual protection of investments” is signed by the Government of that State as a direct participant and party
of the document, had the right to demand strict compliance with the Articles 2 - 6 of the Agreement, by
which a certain amount of guarantees is provided for granting of favorable conditions of nations,
encouraging of guarantees, provision for investments of fair and equitable conditions excluding any
unjustified and discriminatory measures that could interfere with the investment management, their content,
their use or their liquidation as well as guarantees concerning that the investments made by the investors of
the Contracting Party on the territory of the other Contracting Party shall not be expropriated, nationalized or
subjected to any other measures having similar effects, except in cases where such measures are taken in the
public interest in accordance with the procedure established by law and are not discriminatory.
Besides, they shall be accompanied by taking provisions providing the payment of compensation,
the amount of which should correspond to the real value of the affected investments on the day before the
adoption or promulgation of these measures and guarantees to the investors of the other Contracting Party for
free transfer of funds in freely convertible currency in connection with the investments.
Also, the competent public authorities of the Grand Duchy of Luxembourg and the Ministry of
Economy and Foreign Trade of the Grand Duchy of Luxembourg, in particular, had the opportunity and were
obliged under the Article 9 of the Agreement, through diplomatic and other mediation procedures to fulfill its
obligation of the state and to protect the interests and rights of the company Dastin Handelshaus AG and its
shareholders with respect to their investments on the territory of the RF. Of 30.06.2015 such actions were not
taken by the Grand Duchy of Luxembourg, thus violating the Agreement and shareholders’ rights.
The mentioned judgment of infringement of rights of the shareholders of the company Dastin
Handelshaus AG confirmed by the Art. 6, 7, 8, 17, 22, 28 of the Universal Declaration of Human Rights,
adopted of 10.12.1948 by the resolution 217 A (III) of the General Assembly of UNO according to which:
“Every person, wherever he may be, has the right of recognition of his legal personality, all persons are equal
before the law and are entitled without any discrimination to equal protection of the law, all persons are
entitled to equal protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination, everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted to him by the constitution or by law, everyone has
the right to own property by himself as well as in association with others, no one shall be arbitrarily deprived
of his property, every person, as a member of society, has the right for
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social security and to carry out essential for his dignity and free development of his personality rights in the
economic,
social and cultural fields through national effort and international cooperation and in accordance
with the organization and resources of each State, each person has right for social and international order
under which the rights and freedoms, specified in this Declaration can be fully realized”.
Besides, on the basis of submitted by the Claimants documents on the procedure of insolvency in
respect of Dastin Handelshaus AG, correspondence and extracts from the state register of companies of the
Grand Duchy of Luxembourg, the bankruptcy manager stated the discrepancy and illegality of actions of
bankruptcy managers Mr. Dollendorf and Mr. Wagner regarding the laws of Luxembourg, who did not
examine the financial condition of the debtor, structure of the shareholders, did not demand balances and
reports from the Commissioner of society – the company Abakus Services S.A. and an accountant Mr. Paul
Nelke, having the official status and an office in Luxembourg, in within whole period of time and the data of
whom were entered in the register of companies. The shareholders’ rights were also violated of the company
“Dastin Handelshaus AG” who had not even been informed properly about the conducted measures and the
courts, the details of which and their home addresses also were specified in the register of companies. The
arbitrator of ICAC with all certainty was convinced from the presented by the Claimants documents provided
for the review that the Claimant, a German citizen Franc Smidt of 09.04.2004 was registered and lived in the
commune GREVENMACHER on RUE DE MUNSCHECKER, Luxembourg. These documents are duly
sealed and signed by the administration of the commune and signature of the burghermaster (case sheet 268 269 volume No. 9).
Insolvency of the company Dastin Handelshaus AG efficiently came (as confirmed by the
Claimants in the arbitration proceedings in ICAC) in connection with the fact that the actions of the
defendants aimed at the expropriation of property in Russia, left the company without assets and the
shareholders directed all their forces to fight in the RF for their property and the restoration of rights.
According to the application of the shareholders in 2001 addressed to P. Nelka was requested the application
to “freeze” the activity of the company Dastin Handelshaus AG to restore the property and all rights in
Russia. But this does not mean that rights to property disappeared and the rights of shareholders in
accordance with the legislation of the Grand Duchy. The manager Mr. Dollendorf misled the High Court of
Luxembourg by giving false information about absence of shareholders and property of the company “Dastin
Handelshaus AG”. During the period of validity of bankruptcy managers from 2003 to 2006 and 2009, as can
be clear from the case, none of the owners of the company (nominal shares) and accountant of the company
even have never been notified of the agenda. Non notification properly of the owners of the company by the
judicial instance and the bankruptcy manager grossly violated their rights, which contradicts the laws of the
Grand Duchy of Luxembourg. With these actions the defendants in the case violated the rights of the
shareholders under the disposition, management, ownership of the property and its protection in a fair court.
An entry in the state register of companies after a long period of inactivity of the bankruptcy managers
“backdating” is also a direct violation of the law (case sheets pp.358-363 volume No. 9, 230-273 volume No.
6).
Based on the abovementioned, the arbitrator of ICAC concluded of bringing the Grand Duchy of
Luxembourg as a co-respondent at the request of the Claimants with full responsibility for the division of the
suffered property damages to the shareholders of the company Dastin Handelshaus AG.
5.8.
Established in ICAC at ICPP prejudice of judicial acts in the RF.
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By the Decree of the Federal Arbitration Court of the West Siberian Federal District of
05.04.2004
on case number F04 / 1780-251 / A70-2004 was cancelled the Decision of the Arbitration Court
of the Tyumen region in the case number A70-7994 / 3-2003 on recognition of JSC “Khanty-Mansiysk
Bank” the bankruptcy creditor and established violations of the arbitration Court of the Tyumen region of
law provisions of the Federal Law of the RF “On insolvency (bankruptcy)” regulating the procedure for the
consideration of the claims of creditors and the rights of CJSC “EFI “DastinMarket” to object to creditors’
claims in accordance with the Art. 71 of the mentioned Federal law.
By the Decision of the Federal Arbitration Court of the West Siberian District concerning
clarification of the decision of the cassation instance of 26.05.2004 on the case F04 / 1780-251 / A70-2004
delivered on the basis of the statement of the bankruptcy manager Y. Shabalin concerning clarification of the
Resolution of 05.04.2004 on the case F04 / 1780-251 / A70-2004 which established that as a result of the
cancellation in the cassation instance of the judicial decision (Decisions of the Arbitration Court of the
Tyumen region of 06.02.2004 on the case A70-7994 / 3-2003 to establish the requirements of the creditor of
JSC “Khanty-Mansiysk Bank”) was remedied the legal basis for inclusion in the register of this requirement.
By the Decision of the Arbitration Court of the Tyumen region of 17.06.2005 on the case No. A70-1693 / 8-05 were recognized as not corresponding to the current legislation and illegal in full measure
actions of the FTSI of Russia in Tyumen No. 3 of entry in the register of USRLE of liquidation registration
of CJSC “EFI “DastinMarket” as well as the FTSI of Russia in Tyumen No. 3 was obliged to restore the state
registration of CJSC “EFI “DastinMarket”, further established the fact of rights violation of the Russian
citizen Schmidt A.I., acting as a representative of the shareholders of CJSC “EFI “DastinMarket” – the
company Dastin Handelshaus AG and the citizen of the RF Schmidt A.I. and violations of the current
legislation on behalf of FTSI of Russia in the city of Tyumen No. 3. The decision of the first instance court
was upheld on the basis of the appeal court Decision of 08.09.2005 No.A-70-1693 / 8-2005 and the
Resolution of the cassation instance – the Federal arbitration Court of the West Siberian District of
28.11.2005 No.F04-8463 / 2005 (17245-A70-37).
Thus, the Arbitration Court of the Tyumen region found violations of the rights and legitimate
interests of shareholders of CJSC “EFI “DastinMarket” – the company Dastin Handelshaus AG and the
Russian citizen Schmidt A.I., as well as norms of the Russian legislation on bankruptcy and appellation and
cassation instances confirmed the validity and legality of the conclusions of the court of the first instance.
According to the conclusions of the appellation instance illegal actions of the tax authority and
arbitration manager, pursued the aim to speed up the completion of the bankruptcy proceedings and
liquidation of CJSC “EFI “DastinMarket” with the record in the USRLE for further “discontinuation of the
proceeding on appeal complaints of the shareholders of CJSC “EFI “DastinMarket” on judicial acts, adopted
within the framework of the bankruptcy case than to deprive the shareholders of CJSC “EFI “DastinMarket”
– the company Dastin Handelshaus AG and the Russian citizen Schmidt A.I. of constitutional right under the
Article 46 of the Constitution of the Russian Federation to judicial protection”.
According to the opinion of the arbitrator of ICAC the conclusion made in the reasoning part of the
Decree of the Appeal instance of 08.09.2005 in the case No. A-70-1693 / 8-2005 discloses the cause in
which the defendants from Russia were disadvantageous to carry out financial recovery and rehabilitation of
the pre-trial procedure provided for by the Art. 2, 30, 31 of the Federal Law “On insolvency (bankruptcy)”
and corresponding to the Art. 112, p. 2 of the part 1, part 3 of Article 135, Chapter 15 of the APC of the RF
what was indicated in paragraph 13 of the Resolution of the Plenum of the Supreme Arbitration
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court of Russia of 31.10.1996 No. 12 “On the application of APC of the RF in hearing of cases of the court
of the first instance” (as amended of 09.07.1997).
By the Decree of the Eighth Arbitration Appellate Court of 23.01.2008 in the case No. A70-5394 / 82007 was established the fact of violations by the arbitration court of the Tyumen region of the rights of the
representative of shareholders of the Russian citizen Schmidt A.I. in the appeal against actions of tax body the Federal Tax Service Inspectorate of the city of Tyumen No. 4 in order to protect the rights and legitimate
interests of the shareholders of CJSC “EFI “DastinMarket”. In its decision the appellation instance stated that
the Court of the first instance did not consider the application on its merits of the representative of the
shareholders of CJSC “EFI “DastinMarket” Schmidt A.I. and did not state the circumstances relevant for the
proper resolution of the dispute.
By the Decree of the Federal Arbitration Court of the West Siberian District of 29.11.2005 No. F048492 / 2005 (17300-A70-13) were established violations of the Arbitration Procedure Code of the RF by the
Arbitration Court of the Tyumen region in consideration of the claim of the citizen of the Russian Federation
Schmidt A.I. in the person of a representative of the shareholders of JSC “Khanty-Mansiysk Bank” to
consider void the transaction of the pledge of the company CJSC “DastinMarket”.
These legal acts of the Russian judicial authorities bear prejudicial character, establish the legal facts
and are relevant for the resolution of the arbitration case in ICAC and are not the subject of the repeated
proving due to the fact that they have the facts of violations of law on behalf of the Defendants from Russia,
which led to the unlawful deprivation of property of foreign investors and liquidation of the enterprise with
foreign investments compulsorily without consent of the foreign investors – the company “Dastin
Handelshaus AG”.
5.9. Additional circumstances.
At conduction of the arbitration proceeding in ICAC were established the facts proving to put
pressure on the Claimant on the territory of Russia, through the organization of illegal prosecution of the
director of the company and a representative of the shareholders of A.Schmidt on the basis of the following
documents:
By the Decree of the Central District Court of Tyumen of 27.09.2004 the Decision was considered
unlawful of initiation of a criminal case No. 200403835/14 on grounds of the crimes provided for by the part
3 of Art. 30, part 4 of the Art. 159 (fraudulence) and Art. 196 (intentional bankruptcy) of the Criminal Code
against the citizen of the RF A. Schmidt, delivered of 31.05.2004 by the special investigative agent of the
Department for fighting against Economic crimes of Internal Affairs of the Central AD (Autonomous
District) of Tyumen by Reshetnikova. At consideration of complaints of Schmidt A.I. the court established
numerous violations of the law of criminal procedure in opening against him the criminal case, absence of
grounds for such a decision and the infringement of procedure of constitutional and procedural rights of A.I.
Schmidt.
The court noted that: “Analysis of the position of A.I. Schmidt in numerous court proceedings in the
order of arbitration proceedings bears clear evidence of his desire to maintain paying capacity of the
enterprise headed by him and perform of the obligations in favour of the bank”.
The fact of the illegal opening of the criminal case No. 200403835/14 on grounds of the crimes
provided for by part 3 of the Art. 30, part 4 of the Art. 159 (fraudulence) and the Art. 196 (intentional
bankruptcy) of the Criminal Code against the citizen of the Russian Federation A. I. Schmidt, delivered of
31.05.2004 by the special investigative agent of the Department for fighting against Economic crimes of
Internal Affairs of the Central TA of Tyumen is additionally supported by the following documents:
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•
Cassational Decision of the Judicial panel in criminal cases of the Tyumen Regional Court of
25.11.2004;
•
Decree of the prosecutor’s office of the Central AD of Tyumen of 08.02.2007 on
cancellation of the decision to institute criminal proceedings and on cancellation of the decision to
discontinue the criminal case;
•
Decision of the replacement of a third party and suspension of the proceedings of the court
on the case of Nizhnevartovsk city court of Khanty-Mansiysk Autonomous district – of Yugra Tyumen
region of the RF of 06.03.2007 on the case No. 2-841/07 on compensation of moral harm to the rehabilitated
Schmidt A.I. on the stated claim to the Ministry of Finance;
•
Resolution of the Central District Court of Tyumen of 28.10.2011 under the materials of the
case No. 3/10-376/2011;
•
Official apology of the Deputy Prosecutor of the Central AD of Tyumen of 28.10.2011 No.
155-204, submitted to the citizen A. Schmidt in connection with the unjustified involvement of him to
criminal liability;
•
Decision of the Nizhnevartovsk city court of Khanty-Mansiysk Autonomous district – of
Yugra Tyumen Region of the RF of 30.10.2007 for recovery in favour of the citizen of the RF Shmidt A.I. of
the compensation for moral harm in the amount of 30,000.00 roubles for illegal criminal prosecution.
The circumstances of illegal initiation of criminal proceedings No. 200403835/14 is further
complicated by the unwillingness of the state authorities of the Russian Federation to apply effective
measures to restore the rights and legitimate interests of shareholders of CJSC “EFI “DastinMarket” – the
Russian citizen Schmidt A.I. and the company Dastin Handelshaus AG, which is confirmed by the answers
bearing formal nature, numerous complaints of the Claimants, namely (case sheet 117-125 volume No. 6):
•
Response to the Prosecutor General of the RF of 25.10.2013 No. 69 / 1-495-2013 /
Ow15566-13;
•
Response of the Investigating Committee of the RF on 23.12.2013, № 242/3-P-13;
•
Response to the RF Administration of the President on work with citizens and organizations
of 30.12.2013 No. A26-16-And-3557771;
•
Response of the Investigating Committee of the RF of 31.12.2013 No. 242/3-P-13;
•
Response of the Office of Investigations of IC(Investigating Committee) of the RF in the
Tyumen region of 14.01.2014 No. 217 / 2- 17-2014;
•
Response of the Office of Investigations of IC of the RF in the Tyumen region of the RF of
17.01.2014 No. 217 / 2-17-2014;
•
Response of the regional department of FSS of Russia in the Tyumen region of 29.01.2014
No. 126 / III-46;
•
Response of the General Prosecutor’s Office of the RF of 12.02.2014 No. 69/1-4952013/On6345-14.
Were also left without proper verification and response on behalf of the President of the RF, the
Committee on fighting against corruption, the Council of Federation of the RF and the General Prosecutor of
the RF of the appeal of the citizen of the RF Schmidt A.I. of fictitious bankruptcy of 03.05.2010.
Besides, the appeal of the citizen of Germany Franc Smidt addressed to the President of the RF of
20.09.2012 and delivered to the Russian President’s Office on work with citizens and organizations of
26.09.2012 which contained the request to check the illegal actions of the state members of the governmental
authorities with respect to the expropriation of the property of CJSC “EFI “DastinMarket” was left without
consideration and substantive and reasonable response (case sheet 221-229 volume No. 6).
The arbitrator of ICAC took into consideration entered into record Conclusion made by the results of
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the studied materials of the arbitration case No. A70-7994/3-2003 (102 volumes of photocopies) by the
professor of the Russian State Academy of Intellectual Property, a corresponding member of the Academy of
Social
Sciences Myslovskiy E.N. during the period from 29.03.2015 till 03.04.2015 as an additional
confirmation of the validity of the claims to the defendants and their responsibility for the claim of the
Claimants (case sheet 280 -287 volume No. 6).
The arbitrator of ICAC concludes that the facts and circumstances set forth in the articles of the
international observer, the journalist A. Simakov called “Expropriation” of 05.10.2012 and “Persecution.
Part 2” of 25.10.2012 as well as other publications in the list (case sheets 98-164 volume No. 2, 4-83 volume
No. 9) additionally confirm the validity of the conclusions of violations of statutory regulations of the RF
legislation, established in the court proceedings in the RF under the bankruptcy case of “EFI
“DastinMarket”. The information in the articles and provided evidence from the time of their publication in
the open press was not denied or challenged in courts on behalf of the corrupt Russian government
authorities and state members.
6.
The total damage and the goods under the Agency Agreement.
6.1. From the documents provided to ICAC it follows that the value of the property complex of
CJSC “EFI “DastinMarket” during its creation and future business activity, it underwent a number of
significant changes increasingly.
Closed Joint Stock Company “Enterprise with foreign investments “DastinMarket” was registered
in the Department of Justice at the Administration of the Tyumen region of 25.07.1998 under No. 22 and
entered in the State Register of the commercial organizations by the State Registration Chamber at the
Ministry of Justice of the RF of 17.08.1999 under No.P-7742.16 with the statutory capital of 46 620 000,00
of the Russian roubles, divided into 55 500 of ordinary shares with nominal value of 840 Russian roubles
each, issued in the following order:
1. In accordance with the Decision on securities issue of 12.05.1999 under No.1-01-00630-N and
Report on the results of the securities issue registered by the Omsk regional department of the
FCSM (Federal Commission on Securities Market) of the RF there was located 100 of ordinary
registered shares with a value of 840 Russian roubles on the total value of 84 000.00 roubles, of
which a citizen of the Russian Federation Schmidt A.I. owned 1 share of the value 840,00 Russian
roubles which made in the authorized capital of the company a share in the amount of 1% and 99%
of the shares on the total value of 83160.00 Russian roubles, which made in the authorized capital
of the company a share in the amount of 99% owned by the company Dastin GmbH.
2. According to the Decision on securities issue of 25.07.1999 No. 1-02-00630-N and Report on the
results of securities issue of 20.08.1999 registered by the Omsk regional department of the FCSM
of the RF there was located 12500 of ordinary registered shares with a value of 840 Russian
roubles, with the total amount of 10 500 000, 00 Russian roubles of which the citizen of the
Russian Federation Schmidt A.I. owned 125 shares, with the total value of 840,00 Russian roubles,
which made in the authorized capital of the company a share in the amount of 1% and 12 375 of
shares with the total value of 10 395 000,00 Russian roubles which made in the authorized capital
of the company a share in the amount of 99% owned by the company Dastin GmbH.
3. According to the Decision on securities issue of 04.02.2000 under No. 1-03-00630-N and Report
on the results of issue of securities of 30.03.2000 registered by the Omsk regional department of
the FCSM of the RF there was located 42900 of
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ordinary registered shares with a value of 840 Russian roubles, of the total value of 36 036 000,00
Russian roubles of which the citizen of the Russian Federation Schmidt A.I. owned 429 shares, of
the total value 360 360,00 Russian roubles which made in the authorized capital of the company a
share in the amount of 1% and 42 471 of shares of the total value 35 675 640,00 Russian roubles,
which made in the authorized capital of the company a share in the amount of 99% of the company
owned by the company Dastin GmbH.
All the above mentioned issues of securities of CJSC “EFI “DastinMarket” were properly
registered as confirmed by the reports on the results of securities registered by the Omsk regional department
of the FCSM of the RF of 12.05.1999 (institution) of 26.08.1999 (additional issue) of 10.04.2000 (additional
issue) and confirmed by the extract from the register of the shareholders of 18.05.2001, of 20.03.2002, of
24.02.2003 and of 19.07.2004.
According to the letter received from the Department of Economics of the Administration of the
Tyumen region of 17.05.1999 Ref No.385-01 at the address of the State Registration Chamber at the
Ministry of Justice of the RF were expressly agreed the amendments of the Statutory documents of CJSC
“EFI “DastinMarket” related to the increase of the authorized capital which resulted in “.... the amount of
foreign investment exceeded 100 thousand roubles, that is why the Company is the subject to state
registration by the State Registration Chamber of the RF Ministry of Justice”.
Thereafter, based on the Protocol of the Extraordinary General Meeting of Shareholders of
24.03.2004 No. 1 to the Statute of CJSC “DastinMarket” were made amendments stating that the Company
announced an increase in the authorized capital by the third additional issue of uncertificated registered
ordinary shares in the amount of 219 800 840 shares with nominal value of: 184 632 000,00 Russian roubles
and placed them among the shareholders in proportion to their percentage shares in the authorized capital.
According to Information extract from the USRLE of 03.12.2012 No. 462182 (on the basis of the
information contained in the database of USRLE of interregional inspection of FTS of Russia for a
centralized data processing), the amount of the authorized capital of CJSC “EFI “DastinMarket” as of
31.03.2003 was: 231 252 000,00 Russian roubles. Thus, the Company announced the additional issue of the
company’s shares.
From established in the arbitration proceedings it is clear that shareholders repeatedly took
measures to increase the amount of the share capital and foreign investments in order to increase economic
activity of CJSC “EFI “DastinMarket”.
The arbitrator of ICAC stated that the increase in the authorized capital of CJSC “EFI
“DastinMarket” and direction of additional financial resources for its development was one of the factors of
growth of the market value of the enterprise itself and its property complex, based on the following
assessment materials:
1. Report of CJSC “Audit-Consulting” of 15.03.2001 – the market value of the property complex of the
Company was: 146.507.154, 00 Russian roubles; (case sheet 204-217 volume No. 5).
2. The report of LLC “Region-Otsenka” of 01.11.2000 – the market value of the property complex of
CJSC “DastinMarket” was: 228.191.892,80 Russian roubles; (case sheet 218-220 volume No. 5);
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3. The report of LLC “Region-Otsenka” as of 01.10.2003 – the market value of CJSC “EFI
“DastinMarket” or 100% of ownership share in this enterprise is: 354.919.500,00 Russian roubles
(case sheet 221 -239 volume No. 5);
4. Report of LLC “VIP Group” No. 01/05-10 as of 17.04.2010 – the market value of the property
complex owned by CJSC “EFI “DastinMarket” was 297.811.000,00 Russian roubles and the market
value of the rental payment of commercial premises with the total area of 4416.90 sq. m. in the
period from 01.01.2002 till 31.03.2010 was 524.860.000,00 Russian roubles; (case sheet 1-159
volume No. 3);
5. Report of LLC “VIP Group” No. 04/10-12 as of 01.10.2012 – the market value of the property
complex owned by CJSC “EFI “DastinMarket” was 308.114.000, 00 roubles and the market value of
the rental payment for commercial premises with the total area of 4416.90 sq. m. in the period from
01.01.2002 till 31.03.2010 was 583.757.000, 00 Russian roubles (case sheet 160-293 volume No.3).
Furthermore, the arbitrator of ICAC takes into account that according to the Report of LLC “VIP-Group”
No. 04/10-12 on the assessment of the market value of the right to demand of the citizen of the RF Schmidt
A.I. on repayment of the compensation payment as of 01.10.2012 with the total value of 1.556.900,00
roubles (case sheet 294-478 volume No. 3).
6.2. At conduction of the arbitration in the period from 10.11.2014 till 13.01.2015 at the request
of the Claimant and under instructions of ICAC on behalf of the expert organization LLC “VIP-Group” was
conducted forensic examination on the following issues:
• determination of the market value of the property complex, located at the address: Russia, Tyumen
region, Tyumen, Demyana Bednogo Street, build. 96, construction 14, put into operation of
07.08.2001 on the date of 25.11.2014;
• determination of the value of shares of CJSC “Enterprise with foreign investments “DastinMarket”
of 17.03.2004;
• determination of loss of economic benefits during the period from 17.03.2004 till 25.11.2014 (case
In accordance with paragraph 8.2 of the Expert opinion of 13.01.2015 performed by an expert
Kirillov O.A., the Claimants had suffered economic damage in the total amount of EUR 52 261 873,00
which is grounded in the following order:
−
The market value of the property complex of CJSC “Enterprise with foreign investments
“DastinMarket” as of 25.11.2014 would be – 19 333 000, 00 (nineteen million three hundred and thirty three
thousand Euro).
−
Cost (100% block of shares) of CJSC “Enterprise with foreign investments “DastinMarket”
of 17.03.2004 would be – 4 210 000, 00 (four million two hundred and ten thousand Euro).
−
Loss of economic benefit for the period from 17.03.2004 till 25.11.2014 in the amount of
28587 000, 00 (twenty-eight million five hundred and eighty seven thousand) Euro.
Also, the expert opinion of 13.01.2015 was further substantiated by the expert’s conclusion on the
case No. ICAC r-7/11/14 of 11.02.2015 received at the disposal of ICAC in the manner prescribed by the
Art. 27, Art.29 of the Regulations.
As a result of violation by the defendant of the applicable legislation of the RF, international
contracts and conventions, the Claimants had suffered economic damages amounting to EUR 52 261 873,00,
which is calculated in accordance with the expert opinion of 13.01.2015, as follows:
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The market value of the property complex of CJSC “Enterprise with foreign investments “Dastin
Market” of 25.11.2014 would be – 19 333 000, 00 (nineteen million three hundred and thirty three
thousand Euro).
The cost (100% block of shares) of CJSC “Enterprise with foreign investments “DastinMarket” of
17.03.2004 would be 4210 000, 00 (four million two hundred and ten thousand Euro).
Loss of economic benefit for the period from 17.03.2004 till 25.11.2014 in the amount of
28587000, 00 (twenty-eight million five hundred and eighty seven thousand) Euro.
−
6.3.
Regarding A.I. Schmidt.
As a result of wrongful acts of the Defendants in the RF with respect to CJSC “EFI “DastinMarket”
and illegal liquidation of CJSC “EFI “DastinMarket” and ensuing of all of the above mentioned heavy illegal
consequences, the citizen of the RF A.I. Schmidt had lost the right to own 1% of the share capital of CJSC
“EFI “DastinMarket” that caused him economic damages.
The arbitrator of ICAC states that that judges have specialized knowledge other than the Russian
citizens, therefore it is applicable to them within the meaning of the definition, clearly indicating a
presumption of knowledge of the laws by the judges. The arguments and the circumstances under which
were committed violations of rights of A. Schmidt, conclusively, evidence of his procedural discrimination
and abuse in connection with the Arbitration Procedure Code, the Art. 2, 18, 19, 45, part 1, part 2 of the Art.
46, part 3 of the Article 56 of the Constitution of the RF. Committed violations of the current legislation of
the RF (Article 8, part 1, part 4 of the Art. 15 of the Constitution of the RF) by the defendants, actions and
inaction on the protection and restoration of violated rights and freedoms of the complainant by the
competent authorities of Russia caused economic harm to him (damage). The arbitrator of ICAC separated a
part of the Claimant A. Schmidt claims to the Russian Federation in a separate proceeding in another
arbitration panel of ICAC at ICPP with the consent of the Claimant and guided by the Regulations of ICAC
at ICPP.
6.4.
“Khanty-Mansiysk Bank” and responsibility of the state.
ICAC in the court proceeding stated that the JSC “Khanty-Mansiysk Bank” was registered in 1992
in the form of joint-stock company of the closed type with a capital of 20 mln. roubles, entitled “KhantyMansiysk Bank of revival and development of the peoples of the North”. From 1996, the bank was renamed
to JSC “Khanty-Mansiysk Bank”. Until 1999 the main shareholder of the bank was a local regional office of
the Pension Fund. From 1999 until December 2010, more than 50% of the share capital was distributed
between the state enterprises and institutions of the Khanty-Mansiysk Autonomous District, a territorial
entity of the RF.
So among the largest shareholders of the Bank there were: Executive Directorate of the Regional
State Generations Fund of the Khanty-Mansiysk Autonomous District – Yugra with the amount of the share
capital of – 35.5%, Unitary Enterprise of the Khanty-Mansiysk Autonomous District – of Yugra “State
Insurance Company “Yugoria” with the ownership interest of shares – 26.52% of the Khanty-Mansiysk
district Regional Development Fund with the ownership interest of shares – 10%;
Moreover, according to the financial statements approved by the Managing Board of 26.06.2005 as
of 31.12.2004 the Department of State Property of Khanty-Mansiysk Autonomous District – Yugra had in
the authorized capital of the Bank a share in the amount of 81.861456%.
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In December 2010 the control block of shares of JSC “Khanty-Mansiysk Bank” in the amount of
51.21%
acquired NOMOS-Bank.
The Board of Directors “Khanty-Mansiysk Bank” also consisted of the following state authorities of
the RF:
1. A.V. Filipenko – Governor, Chairman of the Government of the Khanty-Mansiysk Autonomous
District – Yugra;
2. Amirov G.A. – Deputy Chairman of the Khanty-Mansiysk Autonomous District – Yugra;
3. Bets V.A. – Deputy Chairman of the Khanty-Mansiysk Autonomous District – Yugra;
4. Dyudina V.A. – Deputy Chairman of the Khanty-Mansiysk Autonomous District – Yugra;
5. Morozov K.L. – Vice-Chairman of the Khanty-Mansiysk Autonomous District – Yugra;
6. Novitskiy V.F. – First Deputy Chairman of the Khanty-Mansiysk Autonomous District – Yugra;
7. Shubin S.V. – Advisor to the Governor of the Khanty-Mansiysk Autonomous District – Yugra.
Based on the abovementioned, ICAC states that during the procedure of bankruptcy of CJSC “EFI
“DastinMarket” in the period from 2003-2005 the RF government through the Government of the KhantyMansiysk Autonomous District, state enterprises and institutions, had controlling block of shares of JSC
“Khanty-Mansiysk Bank” as well as the ability to influence the decisions taken by the officials and
employees of JSC “Khanty-Mansiysk Bank”, including the position which took JSC “Khanty-Mansiysk
Bank” in violation of the rights and legitimate interests of the citizen of the RF A.I. Schmidt and the
company Dastin Handelshaus AG under the following circumstances:
•
in violation of the procedure of application to JSC “Khanty-Mansiysk Bank” in Arbitration
Court of the Tyumen region with the application for recognition of a bankruptcy creditor in the case of
bankruptcy of CJSC “EFI “DastinMarket” on the case No. A70-7994 / 3-2003;
•
while the participation of JSC “Khanty-Mansiysk Bank” in the meeting of committee of
creditors of 03.03.2004 and the meeting of creditors of 03.03.2004, of 17.06.2004 and 07.10.2004;
•
at participation of representatives of JSC “Khanty-Mansiysk Bank” in court proceedings on
the case No. A70-7994/3-2003 under procedure of bankruptcy of CJSC “DastinMarket” as well as the
performing of inadequate monitoring as a major creditor and a member of the committee of creditors (with
two representatives) over the activities of the bankruptcy manager under the court case;
•
The unlawful initiation of opening and subsequent criminal procedure in criminal cases No.
200403835/14 and No. 201124559/74;
•
After re-registration of ownership of CJSC “EFI “DastinMarket” of the property of its
structures.
Moreover, the representative of JSC “Khanty-Mansiysk Bank” in accordance with the Protocol of
the creditors’ committee meeting No. 1 of 03.03.2004 was elected as Chairman of the committee of creditors
in accordance with the Art. 17, Art.18 of the Federal Law “On insolvency (bankruptcy)” and the Regulations
of the committee of creditors of CJSC “EFI “DastinMarket” and he bears responsibility to exercise control
over the activities of the bankruptcy manager and represent
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interests
of the creditors in the bankruptcy proceeding. Moreover, based on the Decisions of the courts in
Russia, mentioned above, the bank was the improper creditor.
The provided to ICAC documents by the Claimants bear evidence of the numerous manipulations
of JSC “Khanty-Mansiysk Bank”, arbitration managers from the guild SGCM, arbitrator Loskutov and with
the assistance of the state registry authorities the main assets – the building of Trade center “DastinMarket”
became the property of the subsidiary of “Khanty-Mansiysk Bank” LLC Leasing Company “Yugra-Leasing”
(case sheet 127 volume No. 9, 600 volume No. 8) despite the judicial restraint and seizure on transactions
with real estate, brought to the state register concerning real estate transactions (sheet case 406-407 volume
No.8, 409-410 volume No.8).
Thus, the administrative resource of the state officials and corruption among officials of state
authorities of Russia brought major damage to the economic interests of foreign investors as well as Russia
itself.
The arbitrator of ICAC took into consideration the submissions of publications in the open press
with supported evidence of bad faith of the managers of JSC “Khanty-Mansiysk Bank” in particular in the
person of the president of the bank D. Mizgulin. Besides, the Claimants provided documents evidencing of
money laundering in the “Khanty-Mansiysk Bank” on an especially large amount by the group of persons in
collusion with the use of an official position of what they had claimed since 2004 to all law enforcement
agencies and the Prosecutor’s office. A criminal case was open under No. 200500108/01 against unidentified
persons of the “Khanty-Mansiysk Bank”, which was not investigated and was terminated “for the
prescription of” manipulation of the Prosecutor's office of the Tyumen region, headed by the prosecutor V.
Vladimirov and law enforcement authorities of Tyumen. The central bank – the Bank of Russia – many
times over the years fined and brought to liability the JSC “Khanty-Mansiysk Bank” for “non-fulfillment of
legal requirements on counteraction to legalization (laundering) of the revenue from acquired by illegal
means and financing of terrorism”.
Additionally, the above mentioned conclusions of responsibility of the State for the actions of
public officials and controlled structures, supported by the relevant judgments in the Articles 1465 and 1466
of the Final decision of 18.07.2014 on the Arbitration case before the Court, established in accordance with
the Art. 26 of THE ENERGY CHARTER TREATY AND ARBITRATION REGULATIONS OF
UNCITRAL of 1976, under the claim of the company YUKOS UNIVERSAL LIMITED (Isle of Man) to the
Russian Federation, PCA Case No. AA 227 (hereinafter – the YUKOS case) Chapter II of “Imputation of
behavior of the State”: in its opening comment: “the general rule is that identified with the state on the
international level are its only government authorities, or other authorities which acted under the guidance of,
motivation or control of these authorities, i.e. as the agents of the state”. Article 8 “Behavior under the
direction or control of the State” provides that the “behavior of a person or group of persons is regarded as
the act of a State under international law if the person or group of persons was in fact acting on the
instructions or under the direction and control of that State in performing such behavior”.
The arbitrator of ICAC states of the importance for this arbitration case of conclusions made in the
Articles 1476 and 1479 of the Final decision on the case of YUKOS according to which: “The defendant
noted in his Objection that “in most European legal systems the liquidator or manager in bankruptcy is not a
public body” and that the bankruptcy managers and managers “usually do not exercise public authority
functions or do not act in accordance with the instructions, guidance or control of the state”.
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The
respondent cited the appropriate court Decisions on investment agreements, including the Plama 1910
and Oostergeel against the Slovak Republic of 1911 as well as the decision of the Great Chamber of the
European Court of Human Rights in Kotov against Russia 1912 in support of this conclusion. These
solutions do support these arguments.
The above mentioned line of argumentation is applied to the provisions of the Article 4 and Article
31 of the Annex to General Assembly Resolution of UNO No. 56/83 of 12.12.2001 with amendments under
No. A/56/49 “On the responsibility of States for internationally illegal actions” which provide that “the
behavior of any state authority is considered an act of that state under international law, not depending
whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds
in the organization of the state ...”. The commentary to this article states that “it does not matter for the
purpose of assumption that the behavior of the public authority can be classified as “commercial” or “Acta
jure gestionis (actions of control) and that “the responsible State is under an obligation to make full
compensation for damages”.
Thus, the violation on behalf of the Defendants of Russia of the provisions of the Federal Law “On
Joint Stock Companies”, FL of the RF “On Enforcement Proceedings”, FL of the RF “On insolvency
(Bankruptcy)”, part 2 of the Art.180 and part 2 of the Art.182 of the Arbitration Procedure Code of the RF
part 1, part 4 of the Art.15, part 1, part 2 of the Art. 17, part 3 of the Art. 56, Art. 35, part 2 of the Art. 4, Art.
10 of the Constitution of the RF, Decrees of the Government of the RF of 15.04.2003 No. 218 “On the
procedure for making claims on liabilities to the Russian Federation in bankruptcy cases and bankruptcy
procedures”, the regulations of the Criminal procedure Code of the RF consisting in the improper
performance of assigned functions, tasks, responsibilities of the Russian state and resulting in unjustified
conduction of bankruptcy procedure of CJSC “EFI “DastinMarket”, termination of its economic activity and
liquidation, illegal criminal prosecution of the citizen of the RF Schmidt A.I., the shareholder, director and
representative of the shareholders, including the foreign shareholder-investor of the mentioned enterprise,
leading to non-compliance with the regulations of:
The Federal Law of the RF “On Foreign Investments in the Russian Federation”;
The Federal Law of the RF “On Investment Activity in the Russian Federation in the form of capital
investments”;
The Federal Law of the RF “On international treaties of the Russian Federation” and prevented the freedom
of business, as well as entrepreneur activities of the Claimants under this case;
as well as the following international treaties:
of 27.07.1971 between the Government of the USSR and the Government of the Kingdom of Belgium, the
Grand Duchy of Luxembourg and the Kingdom of the Netherlands, members of the Benelux Economic
Union under No. 02117-1 /172 “On Trade”;
between the Government of the USSR and the Government of the Kingdom of Belgium and the Grand
Duchy of Luxembourg of 09.02.1989 “Agreement on the mutual promotion and mutual protection of
investments”;
between the Russian Federation and the European Communities and their Member States – members of the
“Agreement on Partnership and Cooperation” of 24.06.1994;
other violations of the international law by the Defendants which was the cause of significant material
damage to the company Dastin Handelshaus AG.
However, ICAC is based on the principle of Pacta sunt servanda under the Art. 26 of the Vienna
Convention of the Law of Treaties of 23.05.1969 (entered into force for the USSR of 29.05.1986 on the basis
of part 2 of the Art. 84) the essence of which is that “Every agreement in force is binding for its members
and must be faithfully executed” and
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the
content of the Article 27, which stipulates that “A party can’t refer to the provisions of its internal law as
justification for failure to perform the treaty. This regulation is in force without harm to the Article 46 “and
Article 31, which is widely recognized as a reflection of customary international law and stipulates in the
first paragraph that “the treaty shall be interpreted in good faith in accordance with the ordinary meaning to
be given to its terms in their context and in the light of its object and purpose”.
Also, in its decision of 05.02.1970 under “the bankruptcy case of BARCELONA TRACTION,
LIGHT AND POWER LIMITED” International Court of Justice of OUN “stated that when the government
allows foreign investment or foreign nationals on its territory, it is obliged to provide them with law
protection and assumes obligations concerning their conditions of residence in this country”.
ICAC shall take into consideration that by virtue of the provisions of international law and
correlating with it provisions of the Article 1080 of the Civil Code of the RF the persons who jointly caused
harm shall be liable jointly in front of the injured. According to the Article 323 of the Civil Code of the RF
with the joint responsibility of the debtors the creditor shall demand performance of the right from all the
debtors jointly or by either of them alone, in whole or in a part of the debt.
Since by virtue of the Article 1069 of the Civil Code of the RF the Russian Federation is
responsible for the damage caused by the officials of the tax authorities, the Claimants are entitled to demand
compensation for harm from the Russian Federation in full.
That is further supported by the conclusions of the Constitutional Court of the RF in its Decision of
20.02.2002 No. 22-O “On the claim of JSC “Bolshevik” in violation of constitutional rights and freedoms of
the provisions of Articles 15, 16 and 1069 of the Civil Code of the RF” on the following:
“Article 45 of the Constitution of the RF establishes the state guarantees of protection of rights and
freedoms (part 1) and the right of everyone to defend their rights by all means not prohibited by the law (part
2)”.
Such methods of protection of civil rights concerns compensation (Article 12 of the Civil Code of
the RF). Paragraph 1 of the Article 15 of the Civil Code of the RF provides that a person whose right was
violated can demand full compensation for losses caused to him, unless the law or the contract provides
compensation in a smaller size, and the Article 16 – the obligation of the Russian Federation of
compensation by the corresponding entity of the Russian Federation or a municipal entity for losses caused
to a citizen or legal person as a result of illegal actions (inaction) of state authorities, local self-government
authorities or their officials, as well as resulting in the issuance of not according to the law or other legal act
of a state authority or local self-government.
Thus, the civil legislation of the Russian Federation establishes additional guarantees to protect the
rights of citizens and legal persons from illegal actions (inaction) of state authorities aimed at implementing
provisions of the Articles 52 and 53 of the Constitution of the Russian Federation, according to which
everyone has right for state compensation for damage caused by unlawful actions (or inaction) of state
authorities or their officials, including implementation of actions for abuse of power.
Besides, ICAC considers that the Article 6 of the Convention for the Protection of Human Rights
and Fundamental Freedoms guarantees everyone the right for applying to court in cases of argument of his
civil rights and obligations – right for the court.
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In accordance with the legal position of the European Court of Human Rights the right for the
court, provided by the Article 6 of the Convention is illusory, if the national legal system allows a court
decision, entered into legal force and binding, to remain unenforced. Execution of decisions, therefore, is an
integral part of the court proceedings for the purposes of the Article 6 of the Convention.
According to the legal position formulated by the Constitutional Court of the Russian Federation of
25.01.2001 No. 1-P, inordinate delay of execution of the judgment requires a fair monetary compensation to
the person in favor of whom the judicial act was accepted but not executed.
Considering the above mentioned and in order to improve the deliverability of the Decision, ICAC
takes into account that paragraph 1 of Article 395 of the Civil Code of the Russian Federation is applicable to
any monetary claims regardless of the basis of its origin (including legal disbursements). Thus, the
legislation of the RF does not prevent from the recovery of interest as the consequences of non-performance
of the judicial act on adjudgement of awards.
Adjudgement of interest in case of non-performance of the judicial act does not prevent from the
recovery of interest as a fee for the use of funds (article 809 of the Civil Code of the RF) or measures of
responsibility: losses (Article 15 of the Civil Code of the RF), penalties (Article 330 of the Civil Code of the
RF), interest on borrowed funds (Article 395 of the Civil Code of the RF); indexation of adjudged awarded
funds (Article 183 of the Arbitration Procedure Code of the Russian Federation, hereinafter – APC of the
RF); recover compensation for the violation of the right for execution of the act within a reasonable time by
an authority (Article 222.1 of the APC of the RF), as well as imposition of a fine on the debtor in accordance
with Article 332 of the APC of the RF for non-performance of the judicial act or the penalty for nonexecution of a resolution of the bailiff-executor under the Articles 17.14, 17.15 of the Code of
Administrative Offences.
Besides, the arbitrator of ICAC employs provisions of the Article 40 (1) of the UNCITRAL
Regulations: except as provided in paragraph 2, disbursements of arbitration mainly bears the losing party.
However, the arbitral tribunal can distribute each of such costs between the parties if it determines that the
distribution is reasonable, taking into account the circumstances of the case. Costs must therefore be awarded
to the winning side at the expense of the losing side, if the facts of the case do not justify a different
approach. In the present proceedings, it is clear that the Claimants prevailed and were effective on both
issues both on jurisdiction and on the merits of argument. The arbitrator sees no reason why the Defendants,
the losing party, shall not bear the costs of arbitration in the amount of 127 000, 00 EUR and therefore orders
the Defendants to bear such costs and compensate the contribution of:
1. I. Buryak – arbitrator fees (3 000 Euro per month) from 11.08.2014 till 30.06.2015, the total amount
is 31 500 Euro.
2. S. Avetisyan – arbitrator fee (2 000 Euro per month), the total amount of 8,000 Euro.
3. Travel expenses are 9 000 Euro.
4. Payment of the expert is 15 000 Euro.
5. The costs of the Claimants: Advance payment is 3 000 Euro and additional costs 2,800 Euro, making
a total amount of 5800 Euro.
6. Costs of the competent authority of ICAC at ICPP is 35 000 Euro.
7. Fees and expenses of the Chairman of ICAC at ICPP and President of ICPP are 22 700 Euro.
The total amount of all expenses amounted to 127 000 Euro.
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7.
On application of the rules of substantive and procedural law and justification of the
operative part of the Decision:
7.1. ICAC at ICPP when considering the claims and justification of its decision on them, applied
the regulations of the international legal character, convention, agreement, party to which is the Grand
Duchy of Luxembourg, the Republic of Cyprus and the Russian Federation, due to the territorial jurisdiction
of the court and the parties to these states, practice of the relevant UNO departments, the precedents and
other sources of international law.
ICAC shall take into account that the Art. 65 of APC of the RF imposes the obligation of proving
the circumstances that gave rise to the adoption by the state authorities, local authorities, other authorities,
officials of the disputed acts, decisions, actions (or inaction) on the relevant authority or official.
7.2. At conduction of the arbitration the arbitrator of ICAC at ICPP is guided by the Regulations
of ICAC at ICPP and the UNCITRAL Arbitration Regulations, which corresponds with Chapter V of the
UNCITRAL Model Law on International Commercial Arbitration as amended of 1985 with amendments of
2006.
7.3. Under the terms of part 4 of the Art. 1 of the UNCITRAL Arbitration Regulations (as
amended of 2013) ICAC applies the UNCITRAL Regulations on transparency in the context of arbitration
proceedings between investors and states on the basis of international agreements (“Regulations on
transparency”) with consideration of provisions of the Art. 1 of the Regulation on transparency.
7.4. Having examined the materials of the case and after hearing the parties, the arbitrator
concludes that as against the Claimants were applied discriminatory forms of expropriation on the territory of
Russia through violation of the current at that time legislation of the RF and the both countries – Russia and
the Grand Duchy of Luxembourg – did not take necessary in such cases actions directly specified in the
Agreement of 1989 “On the mutual support and mutual protection of investments” under the legislation of
the both countries, international agreements, namely: payment to the investors of direct and effective
compensation of market value of the lost property, property rights and direct investments. ICAC comes to
the conclusion of necessity to pay such compensation to the Claimants under this case and the claim of the
Claimants of should be satisfied in full due to the following reasons:
7.5. According to the preamble to the Federal Law “On international agreements of the Russian
Federation” (hereinafter – the Law) international agreements form the legal basis of interstate relations.
International agreements of the Russian Federation together with the generally recognized
principles and regulations of the international law are, in accordance with the Constitution of Russian
Federation, an integral part of its legal system. International agreements form an essential element of the
international legal order and the stability of relations of Russia with foreign countries, functioning of the
constitutional state. The Russian Federation calls for the strict adherence of contractual and customary
regulations, confirms its adherence to the fundamental principle of international law – the principle
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of
conscientious fulfilment of international obligations. In accordance with part 3 of the Art. 1 of the Act,
this federal law is applicable to international agreements to which the Russian Federation is a party as a state
– successor to the Soviet Union.
The Art. 5 of the Act provides that “international agreements of the Russian Federation along with
the generally recognized principles and regulations of international law in accordance with the Constitution
of the Russian Federation and are an integral part of its legal system. If an international agreement of the
Russian Federation stipulates other rules than those stipulated by the law of the RF, the regulations of the
international agreement shall prevail. Provisions of the officially published international agreements of the
Russian Federation not requiring domestic Act for their use, act in the Russian Federation directly. For the
implementation of other provisions of the international agreements the Russian Federation is adopting the
necessary legal acts”.
7.6. As of 27.07.1971 between the Government of the USSR and the Government of the
Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, the members
of the Benelux Economic Union an Agreement was signed No. 02117-1 / 172 “On Trade”, ratified of
09.03.1973 by the Presidium of the USSR Supreme Soviet (hereinafter – the Agreement).
Under the terms of the Agreement, the Government of the Union of Soviet Socialist Republics, on
the one hand, and the Kingdom of Belgium to the Government of the Grand Duchy of Luxembourg and the
Kingdom of the Netherlands, acting jointly by virtue of the Agreement establishing the Benelux Economic
Union, signed at The Hague of 03.02.1958 year, on the other hand, inspired by the desire to strengthen their
traditional economic relations, agreed of the following:
“Article 1
The Contracting Parties shall mutually ensure to each other the most-favourable-nation treatment in
all matters of trade.
... Article 9
The Belgian, Luxembourg and Dutch merchants and industrialists, natural or legal persons formed
in accordance with their laws, including non-profitable organizations the purpose of which is to facilitate
trade between the Union of Soviet Socialist Republics and the Belgium-Luxembourg Economic Union or the
Netherlands, shall use in respect of their persons and property treatment as favourable as the citizens and
legal entities of the most favourable nation in carrying out either directly or through their chosen
representatives of economic activity on the territory of the Union of Soviet Socialist Republics in the
conditions under which such activities are permitted by the laws of the Union of Soviet Socialist Republics.
The Soviet State economic organizations and other legal entities organized under the Soviet law as
well as Soviet citizens in respect of their persons and property will enjoy treatment as favourable as the
citizens and legal persons of the most favourable nation, while exercising by them or through their chosen
representatives of the economic activity on the territory of Belgium, the Grand Duchy of Luxembourg and
the Netherlands in conditions under which such activities are permitted by the legislation of these countries.
Citizens and legal entities of each Contracting State may seek in the courts, and will enjoy free and easy
access to the courts of the other Contracting Party.
Article 10
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Settlement of disputes which may arise in connection with the execution of contracts related to trade
turnover between the Contracting Parties can be solved by means of arbitration”.
7.7. Besides, of 09.02.1989, between the Government of the USSR and the Government of the
Kingdom of Belgium and the Grand Duchy of Luxembourg was signed an “Agreement on mutual support
and mutual protection of investments” (hereinafter – the Agreement).
By the Resolution of the Supreme Soviet of the USSR of 29.05.1991 No. 2200-1 the mentioned
Agreement was ratified and entered into force of 18.08.1991.
In accordance with the Art. 2 of the Convention “Each Contracting Party shall ensure the
application to the investors of the other Contracting Party of the most-favored-nation treatment in all matters
referred to in this Agreement, and in particular the Articles 4, 5 and 6, with the exception, however, of the
advantages provided by one of the Contracting Parties on the basis of a third country investors:
its participation in the customs union or in various international economic organizations;
Agreements on avoidance of double taxation or other agreements on taxation”.
According to the Article 4, Article 5 of the Agreement:... “Each Contracting Party shall ensure on
its territory for the capital investments made by the investors of the other Contracting Party fair and equitable
treatment, excluding any unjustified or discriminatory measures which could interfere with management of
the investments, their content, their use or their liquidation. Except for the need to take measures to maintain
public order, such investments are under persistent security and protection.
Investments made by the investors of one of the contracting Parties on the territory of the other
Contracting Party shall not be expropriated, nationalized or subjected to any other measures having similar
effects, except in the cases where such measures are taken based on the public interest in accordance with the
procedure established by law and are not discriminatory.
Besides, they must be accompanied by provisions providing the payment of compensation, the
amount of which should be corresponding to the real value of the affected investments on the day prior to the
day of the adoption or promulgation of these measures.
Such compensation shall be paid without delay to investors in freely convertible currency and
transferred freely”.
7.8. Besides of 24.06.1994 by the Russian Federation on the one hand and the European
Communities and their Member States – members from the other side was signed an “Agreement on
cooperation and partnership” the participant of which is a Grand Duchy of Luxembourg.
To the decision of the arbitrator ICAC were applied the Art. 1,28,52,56,58,76,84 of this agreement.
7.9. According to the Art. 26, 27 of the Vienna Convention on the Law of Treaties, adopted of
23.05.1969 to which on the basis of the Decree of Supreme Soviet Presidium of USSR of 04.04.1986 No.
4407-XI, joined the Soviet Union:
“Every treaty in force is binding upon the parties to and should be faithfully performed by them.
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A party can’t refer to the provisions of its domestic law as justification for failure to perform the agreement”.
7.10. Moreover, the Art. 4, 5, 8-10, 23 of the Federal Law of 09.07.1999 No 160-FL “On Foreign
Investments in the Russian Federation” (as amended of 08.12.2003, at the date of the bankruptcy
proceedings of JSC “EFI “DastinMarket” and amended of 05.05.2014 on the date of the delivery of
Decision) provides that:
“A foreign investor, commercial organization with foreign investment founded on the territory of
the Russian Federation, in which the foreign investor (foreign investors) owns (own) not less than 10 percent
of shares participatory share (contribution) in the authorized (joint-stock) capital of this organization under
the exercise of reinvestment enjoy full legal protection, guarantees and privileges established the present
FederalLaw.
A Russian commercial organization acquires the status of a commercial organization with foreign
investments from the date of involvement and incorporation of the foreign investor. From that day the
commercial organization with foreign investments and foreign investors enjoy the legal protection,
guarantees and privileges established by the present Federal Law.
Foreign investors in the Russian Federation are given full and unconditional protection of rights
and interests, which is provided by the present Federal Law, other federal laws and other normative legal acts
of the Russian Federation, as well as international agreements of the Russian Federation.
A foreign investor has right for compensation of damages caused to him as a result of illegal
actions (inaction) of state authorities, local self-government bodies or their officials in accordance with civil
legislation.
The property of a foreign investor or a commercial organization with foreign investments is not a
subject to compulsory seizure, including nationalization, requisition, except the cases and on the grounds
established by the federal law or international agreement of the Russian Federation.
At requisition the foreign investor or a commercial organization with foreign investment shall be
paid the cost of requisitioned property.
At nationalization of the foreign investor or a commercial organization with foreign investment the
cost of the nationalized property and other losses shall be reimbursed. Disputes on compensation of losses
shall be settled in accordance with the procedure provided for in the Article 10 thereof.
Stability for a foreign investor, implementing an investment project, of conditions and treatment is
guaranteed within the term of the investment project but not more than seven years from the date of
commencement of this project financing due to foreign investments.
An argument of the foreign investor which arose in connection with the implementation of the
investment and business activity on the territory of the Russian Federation is permitted in accordance with
the international agreements of the Russian Federation and federal laws in arbitration court or international
arbitration (tribunal court)”.
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7.11. In accordance with the Federal Constitutional Law “On the Government of the Russian
Federation” the Russian government develops and implements the state policy in the sphere of international
investment cooperation. Government of the RF:
− Develops and ensures the implementation of federal programs for attracting foreign investments;
− Performs preparation and conclusion of international agreements of the Russian Federation on
support and mutual protection of investments”.
7.12. In addition, the Art. 5, 6, 11 of the Federal Law of 25.02.1999 No 39-FL “On investment
activity in the Russian Federation in the form of capital investments” provides that:
“The relations connected with investment activities carried out in the form of capital investment by
foreign investors on the territory of the Russian Federation are regulated by international agreements of the
Russian Federation, the Civil Code of the Russian Federation, the present Federal Law, other federal laws
and other normative legal acts of the Russian Federation. If an international agreement of the Russian
Federation stipulates other rules than those stipulated by this Federal Law, the rules of the international
agreement are applied.
Investors have equal rights on:
•
implementation of investment activity in the form of capital investments, with the exceptions
established by federal laws;
•
possession, use and disposal of the objects and results of performed capital investments.
State regulation of investment activity in the form of capital investments, is performed by the state
authorities of the Russian Federation and public authorities of the Russian Federation”.
7.13. Thus, at the international level of the state the Russian Federation and Grand Duchy of
Luxembourg signed multilateral and bilateral agreements, under which the States-parties should follow the
international law principles of legal regulation of foreign investments: Convention Establishing the
Multilateral Investment Guarantee Agency signed in Seoul in 1985 (the Seoul Convention), the Convention
on the Settlement of investment disputes between the state and the party of another state which was signed in
Washington in 1965 (the Washington Convention), the Agreement between the USSR and Belgium, the
Netherlands and Luxembourg of 1989.
7.14. In the field of international law acts the Model Law UNCITRAL on Cross-Border
Insolvency. This Law establishes effective mechanisms of settlement of cross-border insolvency in order to:
a)
establish cooperation between the courts and other competent authorities of this state and
foreign states engaged in cross-border insolvency;
b)
greater legal certainty for trade and investment;
c)
fair and efficient administration of cross-border insolvency protecting the interests of all
creditors and other interested parties, including the debtor;
d)
protection and increasing of the value of the debtor's assets;
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e)
assistance of keeping of hard financially troubled enterprises, thereby protecting investment
and preserving employment.
If this Law is in collision with an obligation of this State arising out of any contract or any other agreement
to which it is the party together with one or more other States, the provisions of such contract or agreement
shall prevail.
7.15. The arbitrator of ICAC also considered the fact that, according to the Civil Procedure Code
of the Grand Duchy of Luxembourg (Nouveau Code de Procédure Civile) the rules of arbitration are
established in the Articles 1224 as follows:
“The parties can always resolve any disputes through arbitration, as long as they are free to dispose
of the rights they possess in this matter (article 1224 et seq. Nouveau Codede Procédure Civile)”.
As Luxembourg is a party to the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 06.10.1958, the decisions accepted in International commercial arbitration courts
in foreign countries, shall be performed in the Grand Duchy of Luxembourg. After the adoption of the
principle decision by the State Council in 1951 “an international agreement that is adopted by the relevant
law into national law, is the law of higher legal force as it comes from a higher source of law than the will of
a national institution. This implies that in case of a conflict between the provisions of the international
agreement and the provisions of Adoption of national legislation, international law takes precedence over the
national law”. (Council of State, 28.07.1951 Pa. Lux. T. XV, P. 263).
7.16. Regarding the Agency Agreement.
Convention of the United Nations Organization on Agreements for the International Sale of Goods
(CISG or the Convention of 11.04.1980) is an agreement or multilateral agreement which contains uniform
legal norms regulating the international sale of goods. Grand Duchy of Luxembourg and Russia signed this
Convention.
Questions concerning the issues of regulation of the Convention of the United Nations
Organization on Agreements for the International Sale of Goods (1980, United Nations Treaty Series, vol.
1498, p. 3) which are not settled in it directly in accordance with the general principles on which it is based
and in the absence of such principles – in accordance with the law applicable by virtue of the rules of private
international law”.
The Article 9 of CISG: “1) The parties are bound by any custom to which they agreed and by any
practices which they established between themselves. 2) In the absence of agreement of the contrary it is
considered that the parties meant application to their agreement or conclusion of the custom of which they
knew or ought to have known and which in international trade is widely known and regularly observed by
the parties in the agreements of this kind in the corresponding trade sphere”.
This provision served as a model for similar provisions in other uniform legislative documents.
See, for example, paragraph 1 of the Article 7 of the Convention of the United Nations
Organization on the Assignment of Receivables in International Trade (“at interpreting of this Convention it
its international character should be considered...”); the Article 3 of the UNCITRAL Model Law on
Electronic Commerce (“at interpreting of this Law its international origin should be considered”);
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the Article 8 of the UNCITRAL Model Law on Cross-Border Insolvency (“at interpreting of this Law its
international origin should be considered”).
The Convention is applied to agreements of sale of goods, regardless of how the agreement is
referred to by the parties who concluded it. Although the Convention does not contain any definition of this
type of agreement, its description can be independently made on the basis of the Articles 30 and 5368. Thus,
the agreement of sale of goods under which the provisions of the Convention extend, can be defined as an
agreement under which one party (seller) is obliged to deliver the goods and transfer the proprietary right on
the goods sold and the other party (the buyer) is obliged to pay the price for the goods and take delivery of
the goods.
Provisions of the Article 45 of the United Nations Convention on Agreements for the International
Sale of Goods (concluded in Vienna of 11.04.1980) provide that:
“1. If the seller fails to perform any of his obligations under the Agreement or this Convention, the buyer
can:
a) exercise the rights provided for in the Articles 46-52;
b) claim damages as provided for in the Articles 74-77;
2. Performance by the buyer of his right on other remedies doesn’t deprive him of the right to claim for
damages”.
In accordance with the above mentioned, the arbitrator of ICAC stated that the Agency Agreement
No. 1/00 of 01.08.2000 is an agreement of purchase and sale with deferred payment of commission
remuneration to the agent, the terms of which were violated by the bankruptcy manager of the guild SGCM
Yuriy Shabalin in accordance with which it shall be compensated together with the loss of benefit of the
seller.
7.17. On liability.
In accordance with the provisions of the Art. 4, 21 of the Federal Constitutional Law “On the
Government of Russia” the Government of the Russian Federation within its authorities organizes the
execution of the Russian Federation Constitution, federal constitutional laws, federal laws of the Russian
Federation, decrees of the President, international agreements of the Russian Federation, provides systematic
monitoring of their implementation by the federal executive authorities and executive authorities of subjects
of the Russian Federation, takes measures to eliminate violations of the Russian Federation.
The Government of the Russian Federation:
•
within its competence concludes international agreements of the Russian Federation,
provides performance of the Russian Federation’s obligations under international agreements as well as
monitors the implementation by the other members of the specified agreements and their obligations;
•
regulates and states control in the sphere of foreign economic activity, in the sphere of
international scientific-technical and cultural cooperation.
Thus, the responsibility for failure of the Agreement of 09.02.1989 between the Government of the
USSR and the Government of the Kingdom of Belgium and the Grand Duchy of Luxembourg “On mutual
support and mutual protection of the investments” and the Agreement “On
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Partnership and cooperation” between Russia and the EU of 24.06.1994 as well as improper statutory
compliance with the legislation of the RF on behalf of TA FSFR of the Tyumen region, the MTCTI
(Ministry of Taxes and Charges Tax Inspectorate) № 4 of Tyumen and Inter-district subdivision of bailiffs
for execution of especially important enforcement proceedings of the Bailiff Service of the Ministry of
Justice of the Tyumen region –performs the government of the RF.
The Article 1069 of the Civil Code provides that the damage caused to a citizen or legal person as a
result of illegal actions (inaction) of state authorities, local self-government or officials of these authorities,
including by publication of non-corresponding with law or other legal act of the state act of the state
authority or local self-government shall be reimbursed. The damage shall be compensated at the expense of
the treasury of the Russian Federation respectively, treasury of the subject of the Russian Federation or the
treasury of the municipal community.
Moreover, on the basis of the Art. 1071 of the Civil Code, in cases where, in accordance with this
Code or other laws, the damage shall be compensated by the Treasury of the Russian Federation, treasury of
the subject of the Russian Federation or the treasury of the municipal community, on behalf of the treasury
act the relevant financial agencies, if in accordance with paragraph 3 of the Article 125 of this Code this
obligation is assigned to the other body, entity or citizen.
In accordance with the Art. 242.2 of the Budget Code of the Russian Federation of 31.07.1998 No
145-FL (as amended of 26.12.2014) execution of Decisions under the claims to the treasury of the Russian
Federation is entrusted to the Ministry of Finance and this norm corresponds with the practice which has
developed since 2001 (Art. 110 of the Federal law of 27.12.2000 No 150-FL “on the Federal budget for
2001”) concerning application of writs obligations under the claims to the treasury of the RF for execution in
the Ministry of Finance of the RF.
Thus, on behalf of the Treasury of the Russian Federation acts the Ministry of Finance of the
Russian Federation.
7.18. In accordance with the Constitution of the Grand Duchy of Luxembourg (Article 16) “No
one shall be deprived of his possessions except in the public interest in the cases and in the manner
prescribed by the law and under fair and prior compensation”. Chapter fifth of the Constitution provides in
the Art. 78 the responsibility of the Government members.
One of the grounds for legal and procedural base of investors’ protection and the investments is
international agreements and conventions. Moreover, the Luxembourg legislation provides for the primacy
of international law over domestic law in case of conflict. Fundamental in this regard are:
“National regulations” (Inländergleichbehandlung), “regulations of most favored treatment”
(Meistbegünstigung), protection from gratuitous expropriation, fair and equitable treatment (fair and
equitable treatment), full protection and security (full protection and security), and the right to transfer
capital and profits. By signing the Agreement between the Government of the USSR and the Government of
the Grand Duchy of Luxembourg of 09.02.1989 the “Agreement on mutual support and mutual protection of
investments”, the Grand Duchy took the responsibility to protect its investors without any discrimination.
Failure to fulfill obligations under an international agreement bears the responsibility of the State in the
person of its executive authorities.
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8.
Resolutive part of Decision.
Based on the above mentioned, guided by international agreements of 27.07.1971 between the
Government of the USSR and the Government of the Kingdom of Belgium, the Grand Duchy of
Luxembourg and the Kingdom of the Netherlands, members of the Benelux Economic Union No 02117-1
/172 “On Trade”; between the Government of the USSR and the Government of the Kingdom of Belgium
and the Grand Duchy of Luxembourg of 09.02.1989 the “Agreement on the mutual support and mutual
protection of investments” and between the Russian Federation and the European Communities and their
member states – members of the “Agreement on partnership and cooperation” of 24.06.1994, the Articles
45, 47, 49, 74 of the United Nations Convention on Contracts for the International Sale of Goods (Concluded
in Vienna on 11.04.1980), the Art. 26 of the Vienna Convention on the Law of Contracts of 23.05.1969, the
Arbitration Regulations of the United Nations – UNCITRAL (approved by the General Assembly of UNO of
15.12.1976), the Art. 17, 33, 34, 42 of the Regulations of ICAC, the UNCITRAL Model Law on
International Commercial Arbitration as amended of 1985, with amendments of 2006, the International
Commercial Arbitration Court at ICPP, on the grounds set forth hereinabove, orders:
1.
This dispute is a subject to review of ICAC jurisdiction of ICPP and the dispute is of
arbitrability of ICAC at ICPP and is competent to consider it on the basis of applicable law UNCITRAL.
2.
Specifies that the Defendants violated their obligations provided for in accordance with the
Agreement of 27.07.1971 between the Government of the USSR and the Government of the Kingdom of
Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, members of the Economic
Union of the Benelux No 02117-1/172 “On Trade”, Agreement of 09.02.1989, between the Government of
the USSR and the Government of the Kingdom of Belgium and the Grand Duchy of Luxembourg “On
mutual support and mutual protection of investments” and the Agreement “On partnership and cooperation”
between Russia and the EU of 24.06.1994.
3.
Orders the Defendants – the Russian Federation and the Grand Duchy of Luxembourg jointly
and solidarily to pay the Claimants – shareholders of the company Dastin Handelshaus AG collectively
caused economic damage in the amount of 51 876 434, 00 (fifty one million eight hundred and seventy-six
thousand four hundred thirty-four Euro) as the fair compensation of expropriated investments of the RF and
lost profits.
4.
Orders the Defendant – the Russian Federation to pay the Claimants as compensation for
direct damages caused to Russia and compulsorily and illegally alienated goods under the Agency
Agreement № 1/00-FEA of 01.08.2000 and profits in the total amount of 351 747.70 Euro (three hundred
and fifty-one-one thousand and seven hundred forty-seven Euro 70 cents), in connection with the failure to
comply with the conditions of prior and fair compensation on behalf of the defendants.
5.
Orders the Defendants – the Russian Federation and the Grand Duchy of Luxembourg jointly
and solidarily to pay in favor of ICAC at ICPP 127 000, 00 (one hundred and twenty seven thousand) Euro
of arbitration costs to compensate for the costs for arbitration of the Claimants.
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6.
The Court orders the Defendants to transfer these amounts to the account of the escrow of
the International Property Protection Committee for distribution among the Claimants by the mediator of
ICAC at ICPP appointed by the Claimants.
Requisites of ICAC at ICPP:
ICPP
20, Medousis Str. 6302 Larnaca, Cyprus
IBAN EUR: CY92126000000000000028301001
RCB Bank Ltd., Nicosia Branch, Cyprus, SWIFT Code: RCBLCY2
7. This arbitration Decision of ICAC at ICPP becomes effective immediately, is not a subject to
appeal and should be mandatory in all countries which joined the Convention of the United Nations
Organization on Recognition and Enforcement of Foreign Arbitral Decisions (New York, 1958).
8. If within 30 days from the date of delivery of this Decision the Defendants didn’t pay
voluntarily and in full the amount set out in paragraph 3 of this Decision, to impose penalties on the
Defendants in the form of daily penalty charges in the amount of average rate of decennial Treasury
obligations of the USA in the amount of 2.13 per cent per annum and additionally for the use of borrowed
funds of 8.25% per annum for each day of delay, until the entire collection of the adjudicated amount.
9. If the amount of arbitration costs, set out in paragraph 5 is not paid by the Defendants
immediately upon receipt of the Arbitration Decision, to impose penalties on the Defendants in the form of
daily penalty charges on the amount of in the amount of average rate of decennial Treasury obligations of the
USA in the amount of 2.13 per cent per annum and additionally for the use of borrowed funds of 8.25% per
annum for each day of delay, until the entire collection of the adjudicated amount.
10. ICAC at ICPP orders the state authorities, banking and other financial institutions under the
jurisdiction or authority under the competence of which the implementation of this Decision falls to collect
jointly with the RUSSIAN FEDERATION, on behalf of the Government of the Russian Federation, the
Ministry of Finance of the Russian Federation, Self-Regulatory Organization Non-commercial Partnership
“Siberian Guild of Crisis Managers”, Public JSC “Khanty-Mansiysk Bank Otkrytie” and the Grand Duchy of
Luxembourg, represented by the Government and the Ministry of Economy and Trade in favor of the
shareholders of the Company Dastin Handelshaus AG the economic losses in the amount of 51 876 434,00
(fifty-one one million eight hundred and seventy-six thousand and four hundred thirty-four Euro).
11. In accordance with the Article 26 the UNCITRAL provides for and orders the Russian
Federation to keep the arbitration cases No. A70-7994 / 2003, No. F04 / 1780-251 / A70-2004, No. A-70
1693/8-2005, No. F04-8463/2005 (17245-A70-37), No. A70-7283/24-2003, No. F04-666/2008 (20-A70-22),
No. F04-666/2008 (1064-A70-22), No. F04-666/2008 (1625-A70-38), No. F04-666/2008 (326-A7036), No.
F04-5540/2004 (A703624-36), No. F04-6916/2004 (5083-A7024), No. A70-7162/18-2007, No. A705921/262006, No. A70-12590/26-2005, No. 11420/06, No. A70-7243/26-2005, No. A70-3078/6-2005, No.
F04/1780-278/A70-2004, No. F04-8492/2005 (17300-A70-13), No. A70-7779/24-2003. Which are essential
for the arbitration case No. ICAC r-7/11/14 till the complete fulfillment of this Decision by the Defendants.
Tel: +357 24633944
79
ICPP
Cyprus
ICAC at ICPP introduces an interlocutory injunction on all possible and free from immunity movable and
immovable property, including shares, bonds, monetary funds and other assets of the Defendants – the
Russian Federation, JSC “Khanty-Mansiysk Bank Otkrytie” and the Grand Duchy of Luxembourg on the
amounts of 51 876 434,00 (fifty one million eight hundred and seventy-six thousand four hundred and thirtyfour) Euro under the claim and 127 000,00 (one hundred and twenty seven thousand) Euro of the arbitration
costs located on the territory of the countries members of the New York Convention of 1958 until full
repayment of the sums of recovery under this Decision. This interlocutory injunction should be immediately
performed by all authorities, commercial and government organizations, banks and associations on the basis
of submission of the decision of ICAC at ICPP by the authorized representatives of the Claimants.
12. ICAC at ICPP brings to the attention of the parties, that considering international practilegal
precedents, including court decisions of ECHR (European Court of Human Rights) under the cases: “Ates
Mimarlic A.S. v. Turkey” (Case of Ates Mimarlic A.S. v. Turkey, Application no 33275/05) and “Regent
Company v. Ukraine” (CASE OF REGENT COMPANY v. UKRAINE, Application no. 773/03,
29/09/2008), decree of the Presidium of the Supreme Arbitration Court of the RF of 30.03.2004 No.
15359/03 regarding the delivered arbitration Decision of 22.02.2002 of the International commercial
arbitration “ad hoc” in Stockholm (Sweden) on the dispute between the Austrian company “Mabetex Project
Engineering Industrianlagenplanung und Errihtungs GmbH (of 26.06.2003 with “Interconstruction Project
Management S.A.”) and the Russian open Joint Stock company “Stoylenskiy mining and concentration
company”, Decision of the Federal arbitration Court of West Siberian District of 26 October 2012 on the
case No. A27-781/2011, Decision of the 3-d Appellation court of the USA under the case “Panza vs. amco
Steel Corporation” (Orest PANZA, Frank Smith, Frank Panza, Stanley Halovanic, Joseph Mali, Sam La
Cava, and Ralph Zoerb, Plaintiffs, v. ARMCO STEEL CORPORATION, Defendant”, Civ. A. No. 62-284,
013, United States District Court W.D. Pennsylvania, August 22, 1962), Decision of the Court of the
Southern District of New York under the case “Oinoussian Steamship Corporation of Panama v. Sabre
Shipping Corporation” (In the Matter of the Arbitration between OINOUSSIAN STEAMSHIP CORP. OF
PANAMA, Owners of the M.V. OINOUSSIOS, Petitioner, and SABRESHIPPING CORPORATION,
Respondent”, United States District Court S.D. New York. December 18, 1963) as well as regulations of
international law, including the Art. 3 of the UNO Convention “On Recognition and Enforcement of foreign
arbitral Decisions” (New York, 10.06.1958) and Article 6 of the Convention for protection of human rights
and fundamental freedoms (Rome, November, 4th, with amendments of 21.09.1970, 20.12.1971 of
01.01.1990, 06.11.1990, 11.05.1994) ETS N 005, this Decision and the facts set out in this Decision by
virtue of its prejudicialness are binding for the Parties under other disputes between them.
The present Decision to send to the addresses of the Parties foe execution.
Arbitrator if ICAC
/Signature/
Sergei Avetisyan
Seal: INTERNATIONAL COMMERCIAL ARBITRATION COURT, ICPP, Cyprus
Tel: +357 24633944
80
ICPP
Cyprus
Contents
1.
2.
3.
4.
5.
6.
7.
8.
9.
On the subject of action the stated claims – Page 4.
Establishment of arbitrability and competence of ICAC at ICPP – Page 5.
On the procedure of the arbitrator appointment – Page 9.
On the chronology of the arbitral proceedings – Page 10.
ARBITRATOR OF ICAC at ICPP ESTABLISHED – Page 21.
5.1. Initiative and investment relationship between Dastin GmbH, Dastin Handelshaus
AG and CJSC “EFI “DastinMarket” – Page 21.
5.2. Chronology of the expropriation of the property of foreign investors in the Russian
Federation and its consequences – Page 23.
5.3. Falsification in the state register USRLE – Page 33.
5.4. Damage – Page 36.
5.5. Initiation by the state authorities of Russia of illegal bankruptcy – Page 37.
5.6. Illegal activities of arbitration managers from the guild SGCM – Page 47.
5.7. Regarding the actions of the authorities of the Grand Duchy of Luxembourg – Page
55.
5.8. Established in ICAC at ICPP prejudice of judicial acts in the RF – Page 58.
5.9. Additional circumstances – Page 59.
The total damage and the goods under the Agency Agreement – Page 61.
On application of the rules of substantive and procedural law and justification of the operative
part of the Decision – Page 70.
Resolutive part of Decision – Page 78.
Contents – Page 81.
Tel: +357 24633944
81
Total numbered, bound and sealed 81 pages
Arbitrator of ICAC
S. Avetisyan
Seal: INTERNATIONAL COMMERCIAL ARBITRATION COURT, ICPP, Cyprus

lateko bank panama

Transcription

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