Suing State for damage by its supreme court before its administrative courts as an exhaustion condition, NML Capital Ltd v France, 23242/12

In 2000 Argentine issued bonds to be paid in 2020 and 2030, but the Republic became bankrupt already in 2001. Argentine signed a Fiscal Agency Agreement providing that it renounced its sovereign immunity as a State, and that in a case of its default at least 25 % of the total amount of debt were immediately payable. Under the Fiscal Agency Agreement the judicial competence was transferred to the United States District Court for the Southern District of New York.

Deptee company NML Capital from Caiman Islands obtained an order from the latter New York obliging Argentina to refund and compensate $ 284 184 632.30 (§ 7). After this, NML Capital addressed the French Courts in order to arrest the funds of Argentina’s diplomatic missions in Paris.

The French Cassation Court agreed with the validity of the New York judgment, however refused to order arrest of Argentina’s funds in France due to sovereign immunity.

It is quite natural to think that after the Cassation Court you have exhausted all internal remedies, and NML Capital attacked it before the European Court of Human Rights. However on 13/01/2015 the Strasbourg judges decided that NML Capital had to attack the French Republic before the French administrative courts for “breach of equality in terms of public burdens” (“rupture de l'égalité devant les charges publiques”, § 19).

“Breach of equality in terms of public burdens” is a procedure absolutely similar to the Köbler procedure of the EU Court of Justice. It is interesting to note that the European Court of Human Rights already several times interpreted that the Köbler procedure is not a requirement within any obligatory meaning of Strasbourg procedures.

After Strasbourg, there is an appeal open to the UN Human Rights Committee. This UN jurisdiction does not accept complaints from legal persons. It is interesting to know that many UN States do not recognize Caiman Islands companies as legal persons. Could NML Capital act as a natural person then?

ECHR: Interim measure of providing adequate medical treatment, Tymoshenko v Ukraine

Last week (15/03/2012) the European Court of Human Rights decided to indicate interim measures to the Ukrainian Government under Article 39 of the Convention in case Tymoshenko, 49872/11. The Court ordered to provide adequate medical treatment to twice former Ukrainian Prime Minister Yulia Tymoshenko. The facts of indicating interim measures and giving this case priority clearly before a formal exhaution of domestic remedies show the successful perspective of the application.

Twice former Prime Minister was in perfect health until arrest on 05/08/2011. On 15/08/2011 she fell ill. In October Tymoshenko lost capacity of walking. According to her defense, she was poisonned.

The charismatic female Prime Minister was found guilty in an illegal order for the signing of a contract concerning gas imports from Russia in 2009 that produced a damage of $ 189.5 million to the State company Naftogaz, and imprisonned for 7 years with a 3 year ban on holding public office by the Kiev Appellate Court on 23/12/2011. The defence of Tymoshenko maintains that the judicial attack was provoked by elimination of the intermediary Swiss company RosUkrEnergo from the Ukrainian-Russian gaz agreements.

In observing the legal strategy of Yulia Tymoshenko, one may observe however a number of mistakes similar to the case of Khodorkovsky.

Georgia loses not only the real war with Russia but also the judicial one

The Georgian-Russian war started on 08/08/2008, and on 12/08/2008 Georgia filed an application against Russia before the International Court of Justice (ICJ), accusing Russian armed forces of ethnic cleaning under the International Convention on Elimination of All Forms of Racial Discrimination. An interesting question is whether this application was prepared before the start of the war or in 3 working days after its start.

The ICJ dismissed the action on 01/04/2011 due to the fact that Georgia did not try to negotiate with Russia before suing its Government (§ 141).

Georgians argued that Article 22 of the Convention providing a possibility of seising the ICJ in respect of “any dispute <…> which is not settled by negotiation” is merely a statement of fact (§ 128), but the ICJ replied that a dispute which is settled is not a dispute anymore (§ 134). Therefore, this phrase must mean that Georgia had to try to negotiate with Moscow. The future perfect tense of the French version even more suggests the need to try negociating: “tout différend … qui n’aura pas été réglé par voie de négociation” (§ 135). The ICJ also added that this is the precondition for an application under a number of other international treaties as confirmed by case law (§§ 131, 137, 138).

No exception for the state of war.

It is strange that Georgia adopted the legal strategy of a direct action, did not take insurance, and did not preview the scenario that has happened. The Saakashvili Government hired 14 lawyers for this case and Russians had 23.