Kazakhstan continues to frustrate payment of a Swedish arbitration award for more than US$540 million over illegal nationalisation, with American and international investors growing wary of Kazakh investment climate
Argentem Creek Partners , Dec 18, 2020, 12:09 ET
The Supreme Court ruled that the appellate court’s assessment of immunity was based on an incorrect standard. The Supreme Court has therefore set aside the lower court’s judgment and referred the case back to the Hague Court of Appeal for further consideration.
In July 2010, the Government of Kazakhstan nationalised assets associated with Tristan Oil, a company which had been set up primarily to fund oil and gas projects in Kazakhstan. In December 2013, an arbitration tribunal in Sweden found that the nationalisation took place in violation of international law and that the investors had suffered significant monetary losses following “a string of measures of coordinated harassment by various institutions of Kazakhstan.” 
The arbitration tribunal awarded approximately US$500 million to the owners of Tristan Oil under the auspices of the Energy Charter Treaty (ECT), which is designed to protect foreign investors in energy sectors of signatory countries including Kazakhstan. To date, no payments have been made to discharge the award and more than US$540 million is now due. In 2017, the Supreme Court of Sweden upheld the award, making it final and non-appealable. The award has also been recognised in number of jurisdictions, including the U.S., Luxembourg, Belgium, Sweden, Italy, France, and the Netherlands. Under a sharing arrangement with the owners of Tristan Oil, US and international bondholders are due to receive approximately 70% of the award.
Since 2013, Kazakhstan has refused to pay the award in what has become known as the “Tristangate” dispute. This has led to the freezing of sovereign Kazakhstani assets worth a total of US$6.27 billion worldwide including the aforementioned US$5.2 billion Kashagan shares attachment.
A spokesperson for Argentem Creek Partners, the largest bondholder of Tristan Oil, said that: “Today’s decision does not alter the fact that Kazakhstan is obliged to pay the award. The Kashagan attachment also remains in place. The Swedish Supreme Court’s decision upholding the award is final and non-appealable. By continuing to invoke spurious reasons for not paying, the Kazakh authorities are fighting a battle they lost years ago. We expect the Kazakh authorities to pay the award as soon as possible and stop the diversionary litigation that damages the image of Kazakhstan as an investment destination and in the process antagonizes foreign investors. As foreign investors, we call on the leadership of Kazakhstan to intervene and resolve this dispute. We stand ready to work with them to do so.”
Argentem Creek Partners is an independent emerging market credit specialist managing funds for institutional investors. We are headquartered in New York, with offices in Minneapolis and London.
Argentem Creek Partners is a bondholder in Tristan Oil bonds. 70% of the award is due to the bondholders. Because we owe a duty of care to our own Investors, which include large US pension funds, we are and have been defending our investment and asserting our rights as bondholders. We are determined to see that the fully adjudicated award is paid.
Argentem Creek Partners believes that the country offers great investment opportunities, provided that it respects the rule of law. A resolution of the Tristan Oil dispute would send positive message to all international investors and would create favourable conditions for enhanced economic prosperity for Kazakhstan.