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• The Russian court choices complained of usually do not on their own total to measures tantamount to expropriation, and in any function, did not result in a total or significant deprivation of Claimant’s shareholding, nor have been any of your tax assessments or similar enforcement steps or individual bankruptcy proceedings, all of which were upheld by Russian court docket selections, expropriatory. [].
Claimant (¶ 132 CPHB-I) 201. Claimant refers the Tribunal to its answer to this dilemma as expressed in closing arguments, and submits the following extra observations: (a) : Shares of Russian joint stock companies are recorded inside the sign up of shareholders taken care of either by the corporation alone or by an impartial "Registrar.
RosInvestCo and its financial investment are entitled to your protections afforded by Report 5 with the IPPA against the expropriation of its financial commitment.
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3. The record in this case is replete with "pink flags." RoslnvestCo has rebutted any presumption of legitimacy to which the Respondent’s steps could fairly be entitled.
Participation Agreements - Ideal to sell the shares 376. Respondent reiterates in RPHB-II that Claimant didn't maintain a "protected financial commitment" when it comes to the IPPA and that Claimant’s posture that the Participation Agreements transferred to Elliott Intercontinental only "contractual" and "economic rights" is Erroneous for a minimum of 3 related factors. Firstly the only real ownership rights Claimant had ended up contractual in origin. These legal rights could in theory give rise to in rem legal rights, nevertheless Claimant transferred all its Yukos similar rights beneath the Participation Agreements. Next, Claimant did no transfer to Elliott Worldwide one thing in addition to Everything of its interest during the Yukos shares. Claimant transferred The whole lot of its desire (and retained no legal rights whatsoever) in relation into the Yukos shares. Because of this, before March 2007, Elliott Intercontinental was the only real operator of your Yukos shares and Claimant was a mere selection agent without any extra legal rights than an uncompensated custodian. Third, The point that the Participation Agreements might have constituted individual securities for applications of your US securities regulations isn't https://rosinvest.com going to necessarily mean the Participation Agreements didn't also transfer all of Claimant’s desire while in the Yukos shares. (¶¶10 - 14 RPHB-II) 377. Claimant’s argument that very little in the Participation Agreements or in Big apple legislation prevented it from advertising or pledging the shares is basically Mistaken. Claimant transferred a hundred% of its desire to Elliott, agreed to not consider any action other than in accordance with Elliott Intercontinental’s Guidelines https://rosinvest.com and work out treatment in regard with the shares as if it ended up the useful owner. It truly is abundantly very clear for a subject of Big apple regulation that Claimant didn't have the appropriate to market or pledge the Yukos shares for As long as the Participation Agreements remained in outcome. The critical correct of ownership - to transfer assets - was Elliott Global’s proper. This was unaffected by its settlement never to work out its right to transfer without RosInvestCo’s consent. (¶¶15 - 16 RPHB-Ii) 378.
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The Russian tax assessments only enter into the picture because the Respondent seeks to disguise its using as a reputable physical exercise of its tax energy.
215. Article five of the IPPA protects "investments of buyers of both Contracting Occasion." As stated in EnCana v. Ecuador, "for there to are already an expropriation of the investment decision [...J the legal rights affected need to exist beneath the regulation which makes them." (pp. 33-34, RM-116) 216. Neither basic Worldwide legislation nor the IPPA produces residence legal rights. The rights associated with the Yukos shares which might be safeguarded beneath the IPPA are as a substitute developed from the regulations of Russia, Yukos’ location of incorporation. Russian regulation for that reason determines the existence and scope of your rights connected to the Yukos shares. 217. Russian non-public international legislation permits the events to the contract to select the law which will govern their contractual legal rights and responsibilities. Since The big apple legislation is definitely the law selected by Elliott International and Claimant to manipulate the Participation Agreements, Big apple law establishes Claimant’s related legal rights and responsibilities. 218. The rights linked to the Yukos shares created underneath Russian and The big apple law are secured under the IPPA only if they are an "asset" of the British isles Trader for purposes of Posting 1(a), i.e., "some thing of worth" to some United kingdom Trader. In a minimum amount, Claimant will have to clearly show that under the legal place developed by Russian and The big apple legislation it "would put up with economical decline If your residence have been destroyed and destroyed." (Azurix v. Argentina, RLA-181) 219. The record demonstrates that Claimant was by no means the lawful proprietor on the Yukos shares at difficulty, transferred the financial fascination in the Yukos shares to Elliott Intercontinental even in advance of it acquired the shares, and will not have experienced any injury from an expropriation from the Yukos shares. Issue three.8 220. Taking into consideration the language, context and governing regulation with the Participation Agreements, was it permissible for Claimant to promote the Yukos shares with no consent of Elliott, and irrespective thereof When the Claimant would indeed have bought them, what would have been the lawful outcomes for the problems applicable from the current circumstance?