4A_492/2021 (24 August 2022)
In a recently published French-language decision that has been slated for publication in the Official Journal of the
European Union, the Swiss Supreme Court rejected Russia's petition to set aside a USD5 billion award in favour
of Yukos Capital, a finance company of the Yukos group, under the Energy Charter Treaty (ECT).
The Swiss Supreme Court upheld the arbitral tribunal's jurisdiction under a provisional application of the ECT,
which Russia had signed but never ratified, considering that it was not incompatible with Russian law. It found that
the loans granted by Yukos Capital to its parent company Yukos Oil qualified as protected investments within the
meaning of the ECT and did not constitute an abuse of rights. The Supreme Court also rejected Russia's argument
that the investment was illegal, as well as the argument that the damages awarded to Yukos Capital enriched the
injured party and therefore violated Swiss international public policy.
The decision addresses several issues of Swiss procedural and public international law that may prove relevant in
future proceedings before the Swiss Supreme Court and elsewhere, and gives clear guidance as to the admissibility
of new evidence in set-aside proceedings before the Supreme Court. (Decision 4A_492/2021 (24 August 2022).)
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