On 24 December 2021, the Supreme Court of the Netherlands invalidated the decision to recognize the Statis’ arbitral award in the Netherlands issued in 2020 by the Amsterdam Court of Appeal. In the new proceedings, Kazakhstan will be able to introduce its full fraud case for the first time in the Netherlands. The evidence of fraud had emerged gradually and Kazakhstan had requested the Statis repeatedly to submit all evidence to the Dutch court and allow a proper assessment by the court. The Statis consistently refused thereby knowingly withholding relevant evidence from the court. In the new proceedings, Kazakhstan will be able to expose to the court how the Statis manipulated the record of the prior Amsterdam Court of Appeal proceedings to exclude the evidence of the fraud.
In its decision of 24 December 2021, the Dutch Supreme Court found that the Statis had initiated proceedings before the wrong court. The Supreme Court held that the issues of proper jurisdiction are a matter of public order and that only the District Court of Amsterdam has jurisdiction to hear and decide on Statis’ request for recognition and enforcement of the arbitral award. The Supreme Court referred the matter to the District Court of Amsterdam.
This decision comes shortly after the award was denied recognition in Belgium with the court finding that the Statis had deceived not only the arbitral tribunal but also the courts involved after the award was issued.
On 16 November 2021, the Brussels Court of Appeal concluded that the Statis committed fraudulent actions before, during and after the arbitration. Particularly, the Belgian court decided that the Statis’ investment in Kazakhstan was made in bad faith. The Court also concluded that the award relating to such bad faith investment was obtained by way of fraud. The reason why the award was not annulled at the seat of arbitration, stated the court, was because the Statis deliberately misled the Swedish courts. It was also confirmed that the Statis’ litigation pattern includes the systematic withholding of evidence, as well as providing misleading and false statements. As a result of the Belgian fraud judgment, the wrongful attachment of the National Bank’s assets for over USD 530 million was released. Kazakhstan has now initiated damages proceedings against the Statis requesting compensation for all damages suffered by the Statis’ fraudulent actions, including the costs of the arbitration.
Kazakhstan also recently prevailed against the Statis in Luxembourg. As reported before, on 2 December 2021, the Court of Appeal of the Duchy of Luxembourg rendered a decision to stay the proceedings directed at recognition and enforcement of the Statis’ award pending the outcome of the criminal investigations that the Luxembourg authorities initiated against the Statis.
Notably, such fraudulent patterns were visible and already exposed in the Netherlands before, when in January 2018 the President of the Amsterdam District Court rendered a judgment finding that the Statis’ had violated their duty to be truthful to the court. Subsequently, in the same judgment the court lifted the wrongful attachment of over USD 22 billion of the assets of the National Bank of Kazakhstan.
“We have proved the Statis to have committed fraud in Belgium, while the Luxembourg authorities initiated criminal investigations into the Statis’ conduct. Now in the Netherlands, the Supreme Court considers it important that another court examines Kazakhstan’s evidence of the Statis fraud. We look forward to proving to the new Dutch court what we just proved in Belgium — that the Statis committed fraud before, during and after the arbitration, and as a result, their arbitral award cannot be recognized or enforced,” says Marat Beketayev, the Minister of Justice of Kazakhstan.
