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17 July 2019

New Approach to State Immunity in Ukraine

Source: ULF

Enforcement of investment treaty arbitral awards in Ukraine has taken a new turn. On 25 January 2019, the Supreme Court granted enforcement of an investment treaty arbitral award against the Russian Federation (the Everest Award) rendered on the basis of the Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine On Encouragement and Mutual Protection of Investment of 28 November 1998 (the BIT) in the Everest Estate LLC et al. v. The Russian Federation case.

In this case, the Supreme Court stripped the Russian Federation of its state immunity on the basis that the Russian Federation entered into the BIT, which constitutes a waiver of immunity in accordance with the case law of the European Court of Human Rights (ECHR) and customary international law.

Below we analyse the preconditions, reasoning and consequences of this decision by the Supreme Court on enforcement of investment treaty arbitral awards in Ukraine and against Ukraine.

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