Stans Energy Corp V.HRE.H

RE:RE:RE:RE:RE:My attempt to explain where Stans is in its litigation

[Kaliahk]

For what claim are you speaking? I will try to explain in detail how I came to the conclusion that I cannot determine from the disclosures by the company where we really stand in this litigation. This is what I can determine from the disclosures made. According to the opinion of Russian counsel, which I find poorly written (perhaps due to language barrier), it appears that Stans unilaterally submitted its arbitration claim to the MCCI. Jurisdiction was based upon the fact that Kyrg was a party to the Convention for Protection of Investor Rights, and that jurisdiction attached when the investor Stans filed a claim of arbitration in a tribunal with competency in international economic disputes such as MCCI. This was argued to be Stans acceptance of the Krygs offer to arbitrate resulting from its participation in the Convention, and the MCCI agreed apparently. This statement seems contrary to what the Russian court said in its advisory opinion. The advisory opinion states: "According to Article 11 of the Convention ..., disputes related to making investments under this Convention may be a subject-matter of examination in a specific international arbitration court provided that the competence of such court is stipulated by the national legislation of a state-party to the dispute, in a treaty to which the state-party to the dispute is a participant and/or in a separate agreement between the investor and the state-party to the dispute." It also states "The reference in Article 11 to the possibility of examination of investment disputes by international courts is not a sufficient ground for investors to refer to any international court." Reading between the lines in the Canadian opinion, it appears that Kyrg argued that the advisory opinion meant that they would win on jurisdiction issue in the remand to the MCCI. The Canadian court refused to speculate on that result, and decided that as long as the arbitration award had not been reversed, Stans met its prima facie case so that the injunction would be maintained. Stans press release following the advisory opinion "Kyrgyz Government Fails to Block Stans Damage Award in Russian Court" states "In essence the advisory opinion upholds the decision of the MCCI with regards to jurisdiction in the international arbitration between Stans and the Kyrgyz Republic." I am just not sure that is true from what I can read. To be clear, like the Canadian court, I have no idea how the issue will be resolved. Stans could prevail with their interpretation, and there may be additional grounds upon which jurisdiction could be based. For example, generally participation in a proceeding is sufficient to establish personal jurisdiction. I would really like a clearer understanding if there is a dispute about whether the advisory opinion upheld jurisdiction of the MCCI or if this statement was Stans interpretation of the Russian legal opinion it received. From what little I can gather, the Kyrgs appear to disagree with that opinion.