Practical Law Arbitration case note: Yukos opinion by former judge inappropriate

On 30 June 2017, the Dutch Supreme Court ruled that one of its former judges (Mr Hammerstein) had
acted inappropriately by providing an opinion on the possible success of setting aside the three awards
in favour of the former majority shareholders in Yukos against the Russian Federation worth over US
$50 billion (Yukos awards).

In January 2016, Mr Hammerstein, who was at that time a judge at the Dutch Supreme Court, provided
one of the Yukos investors his opinion on the chances of success of the Russian Federation's claim before
the District Court in The Hague to set aside the Yukos arbitral awards. He opined that he saw no evident
grounds for setting aside the awards. As Mr Hammerstein was aware, the investor used this opinion to
support its court application to enforce the awards in Belgium. On 13 April 2016, the Russian Federation
filed a complaint against Mr Hammerstein in the Dutch Supreme Court arguing that it was inappropriate
for him to have issued this opinion while still sitting as a judge at the Supreme Court. Subsequently, on
20 April 2016, the District Court of The Hague set aside the awards.

In this decision, the Dutch Supreme Court ruled that Mr Hammerstein had acted inappropriately. On
the facts of this case, the court found it conceivable that such an expert opinion could be viewed as an
indication of what the Supreme Court would actually rule on the matter.

The case demonstrates the invidious position a judge in the Netherlands could find themselves in when
asked to provide a legal opinion in an ongoing case, even if that opinion consists of an unreasoned general
assessment, rather than a reasoned judicial determination. (Russian Federation v Mr. A. Hammerstein
(ECLI:NL:PHR:2016:1529).)

 


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