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Viewing cable 09MOSCOW1565, 2009 REPORT FOR RUSSIA ON INVESTMENT DISPUTES AND
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Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
09MOSCOW1565 | 2009-06-15 13:37 | 2011-08-24 01:00 | UNCLASSIFIED//FOR OFFICIAL USE ONLY | Embassy Moscow |
VZCZCXYZ0008
PP RUEHWEB
DE RUEHMO #1565/01 1661337
ZNR UUUUU ZZH
P 151337Z JUN 09
FM AMEMBASSY MOSCOW
TO RUEHC/SECSTATE WASHDC PRIORITY 3797
INFO RUCPDOC/USDOC WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RHEHNSC/NSC WASHDC
UNCLAS MOSCOW 001565
SENSITIVE
SIPDIS
DEPARTMENT FOR EUR/RUS, EEB/IFD/OIA (GOETHERT, BUTLER), L/CID
(PEARSALL)
E.O. 12958: N/A
TAGS: EINV KIDE ETRD ECON RS
SUBJECT: 2009 REPORT FOR RUSSIA ON INVESTMENT DISPUTES AND
EXPROPRIATION CLAIMS
REF: STATE 49477
PORTIONS OF THIS CABLE ARE SENSITIVE BUT UNCLASSIFIED. PLEASE
PROTECT ACCORDINGLY.
¶1. (U) Per reftel request, attached is post's draft 2009 Report for
Russia on Investment Disputes and Expropriation Claims. We have
also e-mailed to EUR/RUS and EEB/OIA the draft report as a Word
document marked to show changes from the 2008 Report for Russia.
Begin text of draft report:
¶2. (U) The United States Government is generally aware that many
United States persons have outstanding Soviet-era or pre-Soviet-era
claims against the Government of the Russian Federation. These
claims are outside the reporting scope of the Act. While such
claims are not included in this report, the Department of State
provides appropriate assistance to all United States persons with
claims against Russia.
¶3. (U) The United States Government is aware of six (6) reportable
claims of United States persons against the Government of the
Russian Federation. Only one of the Claimants (Claimant F) has
contacted the Embassy and Consulates during the past year. There
has been one new reportable case in the past year (Claimant F).
----------
CLAIMANT A
----------
¶4. (U) A. Claimant A. B. Year 1995. C. Claimant A is a U.S.
corporation that holds a contract for a sport fishing enterprise.
According to the Claimant, in 1993 it obtained exclusive fishing
rights to the Varzina River on the Kola Peninsula in a contract with
the Lovozero District Administration (the local authorities for that
part of the Kola Peninsula). In January 1995, these authorities
alleged that Claimant A failed to fulfill certain obligations and
abruptly cancelled the contract. Armed police forcibly shut down
Claimant's fishing camp.
¶5. (U) The authorities held a new tender and awarded the local
fishing rights to a competing Finnish-Russian joint venture. A
Russian court ruled that the dispute should be resolved by
arbitration in Stockholm as stipulated in the original contract. An
arbitration hearing was held in June and an October 1996 decision
awarded Claimant A USD 940,000. Neither the district nor the Oblast
(region) complied with the award, so in 1997 and 1998 Claimant A
undertook a number of court actions seeking enforcement of the
award. In December 1997, the Murmansk Oblast Arbitration Court
ruled in favor of Claimant A and dismissed the Murmansk authorities'
claim that Claimant A's business activities were illegal. In
February 1998, the Murmansk Oblast Court ordered the recognition and
enforcement of the Stockholm award. In March 1998, the Murmansk
Authorities appealed to a higher Federal Arbitration Court in St.
Petersburg and the decision by the Murmansk Arbitration Court was
overturned. The case was returned to the Murmansk Arbitration
Court, which issued a writ of execution of the Stockholm Award. When
local authorities again appealed, the Supreme Court of Russia
rejected the appeal.
¶6. (U) The Murmansk administration then argued that the arbitration
award was against the Lovozero administration and, because the
Murmansk Oblast was not a party to the contract, it was not
responsible for settling the award. In December 1998, Claimant A
petitioned the Murmansk court to direct the Oblast to pay the writ
of execution against Lovozero. The presiding judge refused to hear
the petition. In February 1999 an appeal was filed with the Supreme
Court, which returned the appeal without action on the basis that it
had already ruled on the case and it was the responsibility of the
court bailiffs to take the necessary steps for execution. On June 2
and again on November 24, 1999, the Lovozero District Court
instructed the bailiffs to execute the judgment against both the
Lovozero District and the Murmansk Oblast.
¶7. (U) Consulate General and Embassy personnel raised this issue at
increasingly higher levels between 1998 and 2004. On September 29,
1999, the U.S. Ambassador and St. Petersburg Consul General raised
the issue directly with Murmansk Governor Yevdokimov. The St.
Petersburg Consul General also wrote to Governor Yevdokimov
regarding the case on December 21, 1999. The Ambassador wrote twice
to then Minister of Justice Chaika (on October 12, 1999, and June 7,
2000) to protest the lack of action by Russian bailiffs in enforcing
the courts' judgments. The Charg d'Affaires also wrote to the
Minister of Justice on December 29, 1999. The Ministry of Justice
responded that bailiffs attempted to enforce the judgment against
Lovozero District, but were able to impound only 463,152 rubles of
property (approximately USD 18,526 according to July, 2006 exchange
rate).
¶8. (U) In the first half of 2001, Claimant A, supported by the USG,
made progress in extracting assurances that the Chief of the Moscow
bailiffs would pursue complete and thorough local enforcement of all
the previous rulings in Claimant A's favor. Preliminary rulings in
2000 and 2001 from local courts that challenged Claimant A's award
were successfully overturned by the Russian Supreme Court in June
¶2001. Embassy personnel met with the Bailiffs' Service in December
2001, and were told enforcement was being held up by new court
actions filed by the Lovozero District. The Russian Supreme Court
again on January 22, 2002 ruled that there should be no more appeals
and the judgment should be executed. In February 2002 Embassy
personnel accompanied Claimant A to a meeting at the Federal
Bailiffs' Service, where it was agreed that representatives of the
Moscow Bailiffs' Service would travel to the Murmansk Oblast to
instruct local bailiffs to execute the court actions. Further
appeals by Murmansk Oblast to the Russian Supreme Court were denied
in March 2002. In May 2002, the court actions still had not been
enforced against Lovozero District, and the Bailiffs' Service
reported that two other creditors of the district were ahead of
Claimant A, and also that the Chief Bailiff of Murmansk Oblast had
been dismissed. In June 2002, the St. Petersburg Consul General
again raised the case with the Governor of Murmansk Oblast,
stressing the need to resolve the case soon.
¶9. (U) The Ambassador met with the Minister of Justice in December
2002 to once again raise the lack of enforcement in this case. The
Minister claimed that the Bailiffs' Service was unable to enforce
the judgment because other appeals were ongoing at the time.
Subsequent to that meeting, the local creditors allegedly in line
ahead of Claimant A withdrew their claims in December 2002, opening
the door for enforcement by the bailiffs of Claimant A's claims.
After another letter from the Ambassador to the Minister of Justice
in February 2003, and a meeting between the St. Petersburg Consulate
General and the Deputy Regional Presidential Representative in April
2003, Claimant A reported that the local administration had finally
decided to allow recovery of the award and the local bailiffs were
in the process of recovery; however, this did not occur.
¶10. (U) In January 2004 the local bailiff system unilaterally
dismissed the case. Claimant A has not appealed this decision. Given
the poor financial situation of the local administration, it was
unlikely that Claimant A would be able to recover the entire amount
of its award from the Lovozero District.
¶11. (U) The Ambassador wrote again to the Murmansk Governor in
September 2004, and subsequently received a reply that provided new
justifications for not enforcing the decision and which made no
effort to resolve the case. While the Embassy and Consulate General
St. Petersburg continue to monitor the case, they have not been
contacted by Claimant A since 2004.
----------
CLAIMANT B
----------
¶12. (U) A. Claimant B. B. Year 2000. C. Claimant B is a U.S.
manufacturer of piezo quartz glass, used in electronic applications.
In 1994, Claimant B purchased part ownership in a quartz glass
production facility in Gus-Khrustalniy in Vladimir Oblast. The
quartz glass company subsequently went into bankruptcy. According
to the Claimant, it secured a long-term lease on the company's
equipment in 1997 and invested a significant amount of money (by
some accounts as much as USD 7 million) in renovating the plant and
re-starting production. In May 2000, the Vladimir Oblast
prosecutor, acting for the Russian partners of Claimant B, filed a
case challenging the validity of Claimant B's lease, for which
Claimant B had completed its payments. On February 9, 2001, a
Vladimir court ruled Claimant B's lease was invalid, and ordered the
bankrupt glass company to repay USD 1.68 million to Claimant B. The
other partners in the bankrupt enterprise used the court's orders to
evict Claimant B from the quartz glass production facility in June
2001 and seized USD 1.2 million in inventory and work in progress.
Claimant B appealed and subsequently lost two cases before the
Nizhniy Novgorod appeals court, but won one case in June 2002.
These decisions have let stand the invalidation of the lease and
have invalidated the order for the bankrupt glass company to repay
Claimant B for the lease, but have reaffirmed Claimant B's rights to
inventory, equipment, and improvements in the disputed plant. One
aspect of concern to Claimant B is that although local bailiffs have
enforced rulings unfavorable to Claimant B, they have been unwilling
to enforce rulings that reaffirm Claimant B's property rights.
¶13. (U) The Ambassador and other Embassy officials have raised this
issue with the Ministry of Economic Development and Trade, the Prime
Minister's Chief of Staff and Ombudsman, the office of the
Presidential Representative for the Central District, and other
senior Russian government officials. The Ambassador also
highlighted this issue in a May 2002 article for a leading Russian
business publication. USG officials have also raised this issue
with President Putin. The Ambassador traveled to Vladimir region in
June 2002 to encourage a negotiated resolution.
¶14. (U) In June 2003, the Ambassador met with the Vice Governor of
Vladimir Oblast, who promised to help broker a solution. The Oblast
Government contacted a Swedish businessman to investigate the
dispute, but did not succeed in resolving it. In October 2004,
Claimant B's Russian assets were transferred to a new U.S. legal
entity established by the firm's president when he left in June
¶2004. The new entity continued to pursue settlement of this
dispute, and Claimant B informed the Embassy that there had been no
progress toward resolution. Claimant B has not contacted the
Embassy in more than two years, but the Embassy will continue to
monitor the case and provide all appropriate assistance to Claimant
¶B.
----------
CLAIMANT C
----------
¶15. (U) A. Claimant C. B. Year 2001. C. Claimant C is a venture
capital firm that in April 2000 entered into a joint venture with a
state-owned coal producer in Primorye Kray to produce germanium by
burning special coals. According to the Claimant, it invested USD
5.5 million in equipment, improvements, and working capital in the
venture. In November 2001, the Ministry of Energy informed Claimant
C's joint venture partner that they should abrogate their contract
with Claimant C and return the investment. Subsequently, Claimant
C's joint venture partner lost its mining license and stated it was
unable to repay the invested funds. Meanwhile, another company had
been given the mining license for the special coal deposit.
Claimant C attempted to re-start the joint venture with the new
company, but this new licensee did not show interest in negotiation
and demanded an extremely large sum from Claimant C for transfer of
the license. Because of the location and type of equipment,
Claimant C believed it was unlikely that it could recover any
significant portion of its investment through salvage.
¶16. (U) The Embassy and Department of Commerce officials have raised
this issue in bilateral consultations with the Ministry of Economic
Development and Trade, and have requested explanations from the
Ministry of Energy. However, the Embassy has not heard from the GOR
on this issue since November 2001, and the investor has not
requested further assistance from the Embassy.
----------
CLAIMANT D
----------
¶17. (U) A. Claimant D. B. Year 2000. C. Claimant D is an investment
company that originally bought a 20 percent minority share in a
grain-processing company in the Russian Far East for USD 2 million.
Claimant D also exported grain to the Russian firm in which it was a
shareholder. According to the Claimant, following the 1998 financial
crisis in Russia, the Russian firm was unable to pay Claimant D for
the grain exports. In 2000, Claimant D found that it had been
removed from the company board, was unable to access the company
books, and the grain exports, held as collateral, were illegally
removed from their silos. Claimant D in 2001 obtained two
international arbitration awards totaling USD 3.7 million against
the Russian company. In early 2002, Claimant D informed the
Consulate General in Vladivostok that it had reached a compromise to
recover its investment; however, the Russian company failed to make
the agreed-upon payments. One of the Russian company's other
creditors petitioned for bankruptcy in March 2002. Claimant D
obtained a court order to freeze the Russian company's assets.
However, during a brief interim when the parties had completed a
negotiated settlement, the Russian company was able to sell its
largest asset, a flour mill in Ussuriysk. Subsequently, the local
representative of Claimant D had her automobile windows smashed and
was threatened with physical violence. Claimant D pursued court
action to reverse these asset sales, but in mid-June 2002 local
courts refused to overturn the Russian company's asset sales.
¶18. (U) In August 2002 Claimant D received favorable court judgments
freezing the sale of remaining assets of the grain-processing
company and reaffirming the legitimacy of its arbitration award.
Bankruptcy proceedings were initiated in November 2002 to determine
the grain-processing company's liabilities and assets. At the
request of the Vladivostok Consulate General and the Embassy, the
Primorye Administration met with Claimant D in November and December
¶2002. The Ambassador wrote the Primoriye Governor in February 2003
urging resolution of this dispute. To date, the Governor has not
responded. Another meeting between the two sides was scheduled for
spring 2003, but did not occur. The DCM also raised the dispute
directly with the local administration during a trip to Vladivostok
in spring 2003. The Economic Minister Counselor met with local
officials in April 2004. The investor has not requested further
specific Embassy assistance within the past three years.
----------
CLAIMANT E
----------
¶19. (U) A. Claimant E. B. Year 2003. C. Claimants E are American
citizens who held share-related rights in a major Russian
corporation. They have filed suit in U.S. federal court against the
Russian government and others, alleging that defendants expropriated
their interests. Claimants approached the Department with a request
for USG support of their case during the summer of 2008. The suit
is pending, and the Department continues to monitor developments.
----------
CLAIMANT F
----------
¶20. (U) A. Claimant F. B. Year 2008. C. Claimant F is a partner in a
closed Russian joint stock company that was established in 1994 as a
50-50 Russian-American joint venture. Each side separately
contributed approximately $1 million in fixed assets, equipment and
working capital in order to commence initial operations of the port
of SovGavan, which is located in the Khabarovskiy Kray region of the
Russian Far East. Between 1994 and 2007, virtually all of the joint
venture's earnings were reinvested in the corporate entity and used
to improve the site's infrastructure, including adding rail spurs,
paving storage areas, and improving the facility's electrical
supply. As the volume of cargoes shipped through the facility
increased, approximately $1.5 million of additional operating
equipment (cranes, frontend wheeled loaders, and hydraulic logs
loaders) were added, most of which was either financed by or leased
from Claimant F. In the summer of 2007, the joint stock company
received a firm offer of $1.1 million for its fixed assets. Clamant
F considered that offer to be unacceptably low.
¶21. (U) Since its founding in 1994, the joint stock company had
exclusive operating rights at the ten-hectare port facility, which
it had continually leased from another open Russian joint stock
company (hereinafter referred to as the "Lessor"). In 2000,
Claimant F acquired 36% of the Lessor's publically traded stock.
Subsequently, the original joint stock company and the Lessor signed
a 20-year long term lease agreement for the entire site. Claimant F
maintains that the long-term lease is the Lessor's sole asset.
¶22. (U) In early 2008, the Lessor forcefully took over all of the
original company's assets and began operating the facility
independently itself. Initially, the takeover did not involve any
court or other legal procedure. Instead, overnight, the original
company's security forces were replaced; proceeds from the original
company's operations (e.g., the accumulated accounts receivable)
were diverted to the Lessor's bank account; and the original
company's employees were hired by the Lessor; the original company's
fixed assets and operating equipment at the port were seized, along
with all of the original company's operating supplies, spare parts
and pre-paid expenses. In addition, according to Claimant F, as the
Lessor lacked any authority or legal status necessary to legally
operate the port, the Lessor also misappropriated the original
company's official stamps and, by forging the original company's
signature authority, utilized the stamps to illegally operate under
the original company's permits, licenses and contracts with the
Russian Federal Customs Service, the Russian Maritime Security
Service, and with railroad and electrical utility service
providers.
¶23. (U) The regional government administration of Khabarovskiy Kray
(the administrative region of the Russian Far East where the port is
located), as well as regional and local prosecutors, police and
court officials, were informed of the takeover by Claimant F and its
Russian lawyers through official filings, written updates and
numerous meetings. However, none of these regional and local
officials took any action or intervened to stop the takeover of the
port. Claimant F also informed Russian Customs and the Russian
Maritime Security Services of the takeover.
¶24. (U) Since the takeover, the U.S. Consul General in Vladivostok
has been very actively involved in advocating for the claimant's
rights with regional and local officials, but those efforts have
also been ignored.
¶25. (U) In August 2008, the Lessor forced the original company into
bankruptcy, and the original company is now in the final liquidation
stages of the official bankruptcy process. During the period when
the Lessor freely used the port's equipment, most of it was
destroyed, and its value today is minimal, according to Claimant F.
It also appears that the bankruptcy trustee, who was nominated by
the Lessor, will avoid filing a $1.5 million civil damages claim
against the Lessor for the misappropriated port assets and equipment
despite strong evidence of the theft. Claimant F has no legal
standing or status in the bankruptcy proceeding.
¶26. (U) The bankruptcy proceeding has also placed Claimant F's 36%
ownership position in the Lessor in serious jeopardy. The Lessor
has closed the port facility and plans to lay off all but two
employees. The Lessor is now financially viable only because of
loans from its majority owner, none of which have been reviewed or
approved by the board of directors or shareholders. Claimant F
believes that the replacement value of the port facility is over $10
million but, in the current depressed economic conditions in the
Russian Far East, it might sell for approximately $4 million. The
Embassy and Consulate General in Vladivostok will continue to
monitor the case and provide all appropriate assistance to Claimant
¶F.
---------------------
IDENTITY OF CLAIMANTS
---------------------
¶27. (SBU) The Claimants are identified as follows:
Claimant A: Kola Salmon Marketing Inc.
U.S. Citizen
No Privacy Act Waiver
Claimant B: Russian Quartz, Ltd. (Formerly Sawyer Research
Products)
U.S. Citizen
No Privacy Act Waiver
Claimant C: Pennwood Industrial Products
U.S. Citizen
No Privacy Act Waiver
Claimant D: Euro Asian Investment Holding, Inc.
U.S. Citizen
No Privacy Act Waiver
Claimant E: U.S. Investors in the Yukos Oil Company
U.S. Citizens
No Privacy Act Waiver
Claimant F: Global Forestry Management Group
U.S. Citizen
No Privacy Act Waiver
BEYRLE