these tend to limit tribunal jurisdiction to disputes over compensation.
46 This limits
investors’ capacity to initiate substantive claims against Russia.
47 In arbitrations
registered in the Permanent Court of Arbitration, on the other hand, Russia consistently does not appoint representatives, stating that it ‘does not recognize the
jurisdiction of an international tribunal at the Permanent Court of Arbitration’.
48
A considerable number of cases have been brought against Russia under the
European Convention on Human Rights.
49 In response, Russia has opposed its
jurisprudence and alleged an ‘anti-Russian bias’.
50 Indeed, its parliament has passed
legislation,
51 and its courts handed down judgments,
52 permitting Russia’s
non-compliance with otherwise binding judgments of the European Court of
Human Rights (‘ECtHR’) where these are contrary to the Russian Constitution.
53
In cases still pending, Russia has complied with ordered measures in only 28% of the
112 cases brought against it,
54 although compensation is often paid.
55 Notably,
Russia is just as compliant as other States.
56 However, Russia’s willingness to
appear compliant—here, through paying compensation—while refraining from
changing its behaviour, is a recurrent theme. Moreover, it is increasingly ambivalent
towards the ECtHR.
57 Notably, in its 2017 judgment,
58 the Russian Constitutional
Court held that Russia was not required to comply with the order in the Yukos case.
59
46 Gadelshina (2011).
47 See, e.g., Arbitral Tribunal, SCC Case No V079/2005 RosInvestCo UK Ltd v. Russia, Award on
Jurisdiction of October 2007.
48 See, e.g., Arbitral Tribunal, PCA Case No 2015-36 Everest Estate LLC et al v. Russia; Arbitral
Tribunal, PCA Case No 2015-34 PJSC Ukrnafta v. Russia.
49 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November
1950, in force 3 September 1953) 213 UNTS 221 (‘ECHR’). See European Court of Human Rights,
‘Case-law References’ (31 January 2019): https://www.echr.coe.int/Documents/Case_law_refer
ences_ENG.pdf.
50 Mälksoo (2012), p. 365.
51 Federal Law No 7-FKZ (Russian Federation), 14 December 2015.
52 Konstitucionnyj Sud Rossijskoj Federacii, No 21-П/2015, 14 July 2015.
53 See, e.g., Konstitucionnyj Sud Rossijskoj Federacii, No 1-П/2017, 19 January 2017, p. 24:
‘. . .[following the judgment] would mean, in essence, not only suspension of the effect of Article
57 of the Constitution of the Russian Federation, but also violation of the principles of equality and
justice following from its Articles.’
54 See Hillebrecht (2014), p. 1111.
55 Mälksoo (2012), p. 362.
56 Benedek (2017), p. 398.
57 Id., p. 389.
58 Konstitucionnyj Sud Rossijskoj Federacii, No 1-П/2017, 19 January 2017.
59 ECtHR, Case of Oao Neftyanaya Kompaniya Yukos v. Russia, Award on Just Satisfaction of
15 December 2014.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
293
46 This limits
investors’ capacity to initiate substantive claims against Russia.
47 In arbitrations
registered in the Permanent Court of Arbitration, on the other hand, Russia consistently does not appoint representatives, stating that it ‘does not recognize the
jurisdiction of an international tribunal at the Permanent Court of Arbitration’.
48
A considerable number of cases have been brought against Russia under the
European Convention on Human Rights.
49 In response, Russia has opposed its
jurisprudence and alleged an ‘anti-Russian bias’.
50 Indeed, its parliament has passed
legislation,
51 and its courts handed down judgments,
52 permitting Russia’s
non-compliance with otherwise binding judgments of the European Court of
Human Rights (‘ECtHR’) where these are contrary to the Russian Constitution.
53
In cases still pending, Russia has complied with ordered measures in only 28% of the
112 cases brought against it,
54 although compensation is often paid.
55 Notably,
Russia is just as compliant as other States.
56 However, Russia’s willingness to
appear compliant—here, through paying compensation—while refraining from
changing its behaviour, is a recurrent theme. Moreover, it is increasingly ambivalent
towards the ECtHR.
57 Notably, in its 2017 judgment,
58 the Russian Constitutional
Court held that Russia was not required to comply with the order in the Yukos case.
59
46 Gadelshina (2011).
47 See, e.g., Arbitral Tribunal, SCC Case No V079/2005 RosInvestCo UK Ltd v. Russia, Award on
Jurisdiction of October 2007.
48 See, e.g., Arbitral Tribunal, PCA Case No 2015-36 Everest Estate LLC et al v. Russia; Arbitral
Tribunal, PCA Case No 2015-34 PJSC Ukrnafta v. Russia.
49 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November
1950, in force 3 September 1953) 213 UNTS 221 (‘ECHR’). See European Court of Human Rights,
‘Case-law References’ (31 January 2019): https://www.echr.coe.int/Documents/Case_law_refer
ences_ENG.pdf.
50 Mälksoo (2012), p. 365.
51 Federal Law No 7-FKZ (Russian Federation), 14 December 2015.
52 Konstitucionnyj Sud Rossijskoj Federacii, No 21-П/2015, 14 July 2015.
53 See, e.g., Konstitucionnyj Sud Rossijskoj Federacii, No 1-П/2017, 19 January 2017, p. 24:
‘. . .[following the judgment] would mean, in essence, not only suspension of the effect of Article
57 of the Constitution of the Russian Federation, but also violation of the principles of equality and
justice following from its Articles.’
54 See Hillebrecht (2014), p. 1111.
55 Mälksoo (2012), p. 362.
56 Benedek (2017), p. 398.
57 Id., p. 389.
58 Konstitucionnyj Sud Rossijskoj Federacii, No 1-П/2017, 19 January 2017.
59 ECtHR, Case of Oao Neftyanaya Kompaniya Yukos v. Russia, Award on Just Satisfaction of
15 December 2014.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
293