22.06.2015

On 17 June 2015, it became public that Huissiers de Justice Marc Sacré, Stefan Sacré & Piet De Smet [Bailiffs] served writs on a number of undisclosed entities residing in Belgium. The writs are reported to concern attachment of assets owned by the Russian Federation, and served in anticipation of enforcement of the so-called Yukos Awards rendered almost a year ago. The news caused a sudden flood of news articles and commentaries that inevitably contained minor and significant inaccuracies. This brief note seeks to provide a summary of available information and a short description of the attachment of assets system in Belgium.

Summary

It must be noted at the outset that it seems that the request for assets attachment in Belgium is initiated by Yukos Universal Limited (Isle of Man) [Yukos] in respect of the Final Award of 18 July 2014 rendered by an arbitral tribunal established under the UNCITRAL Arbitration Rules.¹ Thus, and as confirmed by the ECHR, the judgment of 31 July 2014 in case of OAO Neftyanaya Kompaniya Yukos v. Russia delivered by the ECHR Court is of no relevance to the current assets attachment request filed in Belgium.² There is, of course, an explanation for such confusion but it falls outside the scope of this summary.

It has also been reported in the media that:

• The number of Russian entities subject to attachment of assets is 47

• The entities have 15 days to report any assets of the Russian Federation in their possession [consistent with Article 1452 of the Belgian Judicial Code]

• The amount quoted in the writ is EUR 1.6 bn [the amount awarded to Yukos in the relevant award is over USD 1.8 bn]

• The measure was implemented due to a concern (which the judge considered to be justified) related to Russia’s systematic refusal to enforce rulings against itself and in light of the negative attitude by the Russian Government towards the Yukos Awards

• Similar attachment of assets proceedings have been initiated in France and Austria, and are expected to be initiated in the UK and the US in the near future.

On 18 June 2015, the Russian Foreign Ministry summoned the Ambassador of Belgium “to hand him a letter of protest over freezing the accounts of the Russian Embassy in Belgium, Russia’s permanent mission to the EU and NATO in Brussels, as well as several other Russian organisations in Belgium.”³ Therefore, the list of entities submitted to the Bailiffs by Yukos includes entities and assets enjoying diplomatic and state immunity.⁴ The Belgian authorities now recognised their blunder and are presently “de-blocking” bank accounts of the Russian Embassy and its permanent mission to the EU and NATO.⁵

An apparent confusion in some of the media news reports must be clarified here: attachment of an asset is not the same as enforcement of a judgment or an arbitral award. Attachment of an asset is a mere conservatory measure aimed at ensuring the ability to collect against a respondent (or third party) when such a need occurs. Mr Obsorne of GML was quite clear on this: “We still have to convince a legal court [in these countries] that our arbitration award should be recognised as the equivalent of a judgment in their court, so they can enforce it.”⁶

Attachment of Assets in Belgium

The following bullet-points provide a brief overview of the Belgian law concerning attachment of assets. This summary is based entirely on the invaluable contribution by Professor Dr. Piet Taelman (last updated in 2009) to the looseleaf volumes Attachment of Assets edited by Lawrence W. Newman:⁷

• “According to Belgian civil procedural law, a distinction has to be made between conservatory attachments (bewarend beslag, saisie conservatoire/seizure for security) and attachments in execution (uitvoereng beslag, saisie exécutoire/enforcement of judgments). Both are regulated by the Belgian Judicial Code (Gerechteijk Wetboek, Code Judiciaire, art. 1413-1493 (conservatory attachments) and 1494-1675 (attachments in execution)).” From the publicly available information, it is clear that the affected entities have been subject to the latter measure. Thus, the entities’ authority to dispose of the assets has been limited.

• “A conservatory attachment is made by means of a bailiff’s writ (gerechtsdeurwaarderseploot, exploit de huissier de justice), in which the bailiff gives services to the debtor (or a third party) that an attachment is made on his assets (or on those of the debtor). An informal attachment, on the mere basis of a letter, is not allowed by law.”

• “A copy of the writ is delivered to the debtor at the time of the attachment. If such a delivery is not possible, the writ is serviced to the debtor within eight days, under penalty of nullity.”

• Yukos has obtained an ex parte attachment, which is possible under the Belgian Judicial Code: “If the plaintiff is in possession of […] an arbitral award […], a conservatory attachment can be made without prior notice to the debtor.”

• “As a principle, the plaintiff has to file a petition for attachment before the judge of seizure.”

• “[…] the basis of a conservatory attachment according to Belgium [sic] civil procedural law, is either a leave of the judge of seizure, or a judgment in the procedure on the merits, an arbitration award, a notarial act or any other authentic deed.”

• “The creditor wishing to seize the assets must prove that the case is very urgent. It is required that the solvability of the debtor is questionable to the extent that the recovery of the claim is in jeopardy, i.e. if the financial position of the debtor is, by objective standards, in danger. However, this does not necessarily imply that the creditor has to prove that the debtor is deliberately organizing, or trying to organize, his insolvency. It is sufficient that the solvency of the debtor is feeble, so that the future execution is in danger. Mere vague rumours do not suffice to warrant a seizure for security. The creditor must be able to show that his fear is justified.”

• “As a rule, the Belgian Judicial Code does not require an undertaking of any kind in order to obtain an attachment. The only exception to this rule is the conservatory attachment of sea-going vessels and river crafts.”

• “As a rule, […] an attachment remains in effect for a period of 3 years.”

• “A conservatory attachment can be transformed quite easily into an attachment in execution.”

• “If a conservatory attachment is made without leave of the judge of seizure and if it does not meet the requirements for attachment […], the debtor can challenge the attachment by means of a bailiff’s writ, in which he summons the plaintiff to appear before the judge of seizure, in lifting of the attachment (art. 1420 BJC). There is no legal time limit for challenging the attachment if it is not based on a leave of the judge of seizure.”

Conclusion

The attachment of assets initiated in Belgium (and other states) by GML was undeniably a well-prepared operation that caused a stir and added another layer of animosity between the Russian Federation and the West. As any other politically sensitive event, these actions have generated a vast amount of comments and opinions: some pragmatic, some simply populist. One thing is clear – it is only the beginning of a cat and mouse game with extraordinarily high-stakes.

For more information on the Energy Charter Treaty, please see Series of Notes on the ECT

Sergejs Dilevka*

MENA Chambers, Brussels/London

s.dilevka@menachambers.com

*Sergejs Dilevka is a member of MENA Chambers specialising in international arbitration and all aspects of international dispute settlement.

The views expressed in this note are of the author’s and do not necessarily represent the views of MENA Chambers or any of its members. The author takes full responsibility for any errors or omissions.

1) http://www.pca-cpa.org/showpage.asp?pag_id=1599