Five Examples of Disinformation spread by Kazakhstan’s Ministry of Justice about Tristangate

In December 2013, a Swedish arbitration tribunal ordered Kazakhstan to pay approximately US$ 500 million to the owners of Tristan Oil under the Energy Charter Treaty as compensation for the illegal nationalization of assets associated with Tristan Oil in July 2010. The Swedish Supreme Court subsequently rejected Kazakhstan’s appeals against the award in October 2017 and May 2020. The total value of the award, including all accrued interest and costs, today stands at approximately US$ 545 million. Kazakhstan has exhausted its legal remedies but refuses to comply with the decision of the Swedish court. The award is final and non-appealable. Despite these setbacks, the Ministry of Justice continues to present its defeats in court as successes while ‘spinning’ wins on technicalities into substantial victories. Here are five examples showing how the Ministry creates a narrative far removed from reality.

1) The Ministry of Justice refers to fraud allegations the court was not considering

On 18 December 2020, the Supreme Court of the Netherlands referred the decision of a lower court on the attachment of a Dutch registered asset held via Kazakhstan’s sovereign wealth fund Samruk-Kazyna back to the Hague Court of Appeal for re-examination. Two days later, the Ministry of Justice issued a press statement, implying that the Dutch Supreme Court was currently hearing an appeal in relation to fraud allegations against the Stati Parties. The Ministry of Justice devoted ten paragraphs in their press release to describing fraud allegations which were simply irrelevant to what had just happened in court. In reality, the Dutch Supreme Court was not considering fraud allegations in this case at all. It was instead scrutinising the legitimacy of attaching assets of Kazakhstan’s sovereign wealth fund. In fact, the fraud allegations had been heard by a Dutch appeals court already, and in July 2020 had been ruled irrelevant to the validity of the award.

View the Ministry of Justice Press Statement here.

2) The Ministry of Justice claims that the High Court in London concluded that the Statis procured the award by fraud.

In 2017, an English High Court judge ruled that a trial could proceed on the basis that there was “a prima facie case of fraud”. Prima facie (meaning “at face value” or “at first sight”) is a low threshold and not at all the same as a case being proven in a court of law. It means only that the judge believes that a reasonable dispute exists between parties over the facts, and that each side should have the opportunity to prove or disprove each other’s assertions at a future date in court. The Stati Parties withdrawal from the English proceedings was later unanimously permitted by the English Court of Appeal.

View the Ministry of Justice Press Statements here and here.

3) The Ministry of Justice ignores a rebuke by US judge

Kazakhstan’s Ministry of Justice issued a press statement on 13 August 2020 headlined “Kazakhstan Secures Partial Victory against Statis in Hard-Fought Washington, DC Discovery Dispute. Three days earlier the U.S. District Court of Columbia had in reality strongly rebuked Kazakhstan for ignoring previous court orders. “Don’t get me wrong,” Judge Jackson said, “the Republic of Kazakhstan had every right to litigate the petition to confirm the arbitral award, and they had every right to appeal my decision. But those proceedings are over. These are post-judgment proceedings. And the Republic of Kazakhstan and its counsel needs to get that into their heads because the level of intransigence that we’ve seen to date is not acceptable and it officially ends today.”

View the Ministry of Justice Press Statement here.

4) The Ministry of Justice celebrate a procedural win as a solid victory

On 26 November 2020, the Ministry of Justice issued a statement headlined “New Fraud Evidence to be Examined by Belgian Court” in which it is argued that the Court of Appeal of Brussels in Belgium granted permission to Kazakhstan to advance in full the case relating to the fraud committed by the Stati Parties. In fact, the Brussels Court of Appeal did not address Kazakhstan’s fraud allegations at all. It only considered whether it was the competent court to hear Kazakhstan’s appeal, in other words a very narrow and technical piece of Belgian procedural law.

View the Ministry of Justice Press Statement here.

5) The Ministry of Justice claims that the Swedish Tribunal issuing the original Award was not aware of the fraud allegations

The Ministry of Justice frequently refers to “newly obtained” evidence that the Stati Parties obtained the Award by fraud. It also claims that this evidence was not available to the Swedish Arbitral Tribunal in December 2013, which would have significantly impacted the original award ruling.  Kazakhstan has used these arguments in multiple jurisdictions, including before the Swedish courts which have supervisory jurisdiction over the award, but in October 2017 and May 2020 – the Swedish Supreme Court rejected Kazakhstan’s arguments and upheld the award in full stating that Kazakhstan had not shown any facts that can give rise to a review of the case. In December 2016, the Svea Court of Appeal also ruled that the fraud allegations were irrelevant. Similar claims made by the Kazakh authorities have also failed in the United States and all other jurisdictions so far.

View the Ministry of Justice Press Statement here.