Having received $ 3 billion from Gazprom, Naftogaz again took up the history of Crimean assets. The amount of compensation required by Kiev for oil and gas assets of the peninsula is growing every year by 1-2 billion dollars. Why did the Crimean claims remain outside the zero of the mutual judicial claims of the Russian Federation and Ukraine when signing a new transit contract and will Naftogaz manage to get these billions from Russia?
Ukrainian Naftogaz is submitting updated lawsuits to the Russian Federation on Crimean assets to the International Tribunal at the Permanent Court of Arbitration in The Hague, said Yury Vitrenko, executive director of the company. “There is a large amount of claims – $ 5 billion excluding interest. But with interest, it’s already more than $ 7 billion, ”he said in an interview. Liga.net. The decision of the tribunal is expected “at the end of 2020 or 2021.”
The lawsuit against the Russian Federation, Naftogaz and six of its subsidiaries, was filed in October 2017. At the same time, the amount of losses from the loss of Crimean assets at Naftogaz is constantly growing. They were first counted in December 2015. Then Naftogaz estimated the loss in Russia at 1.15 billion dollars – this is 13.8 billion UAH of losses from the termination of work in the Crimea in 2014 plus 15.7 billion UAH – the value of lost assets. Two years later, when Naftogaz filed a lawsuit, the amount of compensation required doubled to $ 2.6 billion. Two years later, in the summer of 2019, the Ukrainian company again doubled the amount of claims – they amounted to 5.2 billion dollars. Now Naftogaz demands to pay him more than $ 7 billion.
The growth of damage exponentially is hardly justified. However, after the nullification of lawsuits in Stockholm and the antitrust investigation of Ukraine, it is more important for the Ukrainian company to demonstrate the next “help” to the Ukrainians.
“Ukraine needs to return to high numbers that would please voters. Moreover, Russia still owes a lot to Ukraine. Indeed, now that all claims under the gas agreement of 2009 have been nullified, Naftogaz can no longer appeal to $ 3 billion of debt under the Stockholm arbitration, plus to $ 12 billion, which Kiev supposedly could still win there, as well as $ 7.4 billion debt under the antitrust investigation of Ukraine. We need to come up with new high-profile stories about how Russia owes a lot of money to Ukraine, ”says Igor Yushkov, a leading expert at the National Energy Security Fund.
At the same time, the logic of calculations by Naftogaz of the amount of claims cannot be understood. “Asset revaluation from 2014 is illogical, since over time, equipment, on the contrary, becomes obsolete and more likely to depreciate than grow in value. In addition, an estimate of $ 5.2 billion in assets and damage is likely already overpriced. Naftogaz has clearly overestimated the ownership of Crimea as of 2014, ”says Yushkov.
The most expensive gas asset in Crimea is the company Chernomorneftegaz, which in 2012-2013 produced 1.2-1.6 billion cubic meters of gas.
“Perhaps Ukraine believes that Russia owes for every cubic meter of gas that has been extracted in Crimea and consumed by Crimeans since 2014.
However, if Ukraine considers Crimea to be Ukrainian, then Russia cannot be blamed for stealing Crimean gas. After all, the inhabitants of the peninsula, as they consumed their own gas, so they consume it, and nothing goes to Russia, ”says Yushkov.
In addition, the extent of the lost profits from the sale of gas could not so significantly affect the amount of the claim. If you count, then the gas produced by Chernomorneftegaz in the Crimea can be sold on the market at best for $ 250-300 million a year.
It is possible that Naftogaz every year counts everything that was produced in the Crimea in the oil and gas complex and adds this amount to the previous lawsuit, the expert does not exclude.
Against the background of the nullification of the claims of Naftogaz and Gazprom in the framework of signing a new transit contract, the next lawsuit of the Ukrainian company looks strange, but only at first glance. Why didn’t the Crimean claims also be canceled?
“Ukraine could not abandon its claims on Crimean assets, because in this way it would informally recognize Crimea as Russian territory. Russia and Europe also did not want to mention this story. Because it is politically painful for everyone, and the chances of an agreement on transit would be even less. It would be impossible to conclude a package agreement on gas if the parties would drag Crimea there. Therefore, the parties initially took the history of the Crimea out of the gas talks, ”the expert of the NESF explains.
In addition, the gas transit agreement and the nullification of judicial claims concerned only Naftogaz and Gazprom, two commercial companies. Whereas in Crimean history, claims are presented to Russia as a state, and not to Gazprom.
The Russian Ministry of Justice considers these claims unfounded. “Kiev believes that Crimea, being Ukrainian, became part of Russia. But Crimea first became independent and only then came to us. First, Crimea held a referendum on independence from Ukraine, and all property that was on its territory became the property of Crimea. And only when Crimea became independent, he applied for joining the Russian Federation in the form of two entities – Sevastopol and the rest of Crimea. Therefore, to make claims to Russia that it should be wrong for Crimean assets, ”Igor Yushkov explains.
In addition, Gazprom, even disagreeing with the decision of the Stockholm arbitration, was initially prepared to pay the fine imposed. Because it was Stockholm arbitration that was listed in contracts by a third party to resolve such conflicts between two commercial gas companies. Gazprom could not ignore the terms of the contract. He even reserved about $ 3 billion in his accounts to pay the debt to Naftogaz. It’s just that Gazprom was in no hurry to transfer this money, because it hoped to achieve justice by filing an appeal. Therefore, when the parties agreed to nullify the judicial claims at the end of 2019, Gazprom was able to very quickly send this money to Ukraine.
But in the case of Crimean assets, Naftogaz and other companies sue Russia as a state, but Moscow does not even take part in these courts. Russia’s position in such cases is unambiguous and does not change: Moscow does not recognize the jurisdiction of international arbitration tribunals in “Crimean” cases and is not going to pay.
The illegality of the court’s decision both in the case of Naftogaz and in the cases of other plaintiffs is justified by the fact that the arbitrators made a decision without establishing that the Crimea peninsula is the sovereign territory of Russia. Without this recognition, Russia cannot be held responsible under the norms of the bilateral agreement between Russia and Ukraine, to which the Ukrainian plaintiffs refer.
This is a 1998 agreement on mutual protection of investments between the Russian Federation and Ukraine. The essence of this agreement is that Russia undertakes to protect the investments of the Ukrainian company that are made on Russian territory (and vice versa). If Ukraine considers Crimea to be Ukrainian territory, then why is Russia obliged to bear responsibility for the loss of Ukrainian assets on Ukrainian territory? Ukrainian companies can demand compensation only if they officially register the recognition that Crimea is Russian territory.
But Naftogaz and other Ukrainian plaintiffs are not ready to accept recognition of Crimea as part of Russia. And the fact that this is not required by the international tribunal in the framework of these cases shows that all these processes are clearly politicized, as well as the judicial history with Yukos.
Recall that in the summer of 2014, a sensational decision was made in the Yukos case in favor of its former shareholders, demanding that Russia pay an incredible $ 50 billion. This happened in the midst of the onset of a hybrid war with Russia. The Hague Tribunal has never written out such an amount of compensation.
However, Russia did not recognize the decision of the court and paid nothing. As a result, former shareholders began to run around Europe and the United States in the hope of arresting property of the Russian Federation. The same can be done by Naftogaz. But even if the former shareholders of Yukos could not profit from anything, then Naftogaz is unlikely to succeed. After all, this is not about Gazprom’s assets, but about the assets of the Russian Federation.
As a result, the story with Yukos ended with the fact that in 2016, for the first time in 20 years, the decision of the international arbitration in The Hague to pay Russia $ 50 billion to the former shareholders of Yukos was canceled. Therefore, the Ukrainian company can painlessly increase the amount of claims for the Crimean assets lost for Russia, it is unlikely to be able to gain at least one ruble for them.
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