Jurisdiction(s):
United Kingdom

US DC Circuit appeal: Russia contests FSIA jurisdiction and existence of arbitration agreement under 1998 Russia-Ukraine BIT; challenges New York Convention enforcement of Crimea-related DTEK Krymenergo award

Published on: 08 August 2025

Published by a Law360 reporter

Legal News

Article summary

The Russian Federation lodged its appellate brief on 4 August 2025 against JSC DTEK Krymenergo, a subsidiary of one of Ukraine’s largest privately owned power distributors, after a lower court concluded Russia had not persuasively shown it never consented to arbitrate a dispute over the alleged 2015 expropriation of the utility’s assets. The appeal, Russia says, stems from a ruling that it did not convincingly demonstrate a lack of consent to arbitrate. Russia’s filing contends US District Judge Carl J Nichols erred both in finding Russia lacked sovereign immunity and in asserting subject matter jurisdiction under the Foreign Sovereign Immunities Act. The submission argues the FSIA arbitration exception does not reach DTEK Krymenergo’s claim to confirm the arbitral award, because the 1998 Russia–Ukraine bilateral investment treaty contains no arbitration agreement applicable to DTEK. The brief states DTEK’s investments were made in territory that was indisputably Ukrainian when the treaty was concluded and when those investments occurred, and that nothing that happened later altered what counts as Russian territory under the treaty. Consequently, Russia says DTEK does not fall within the class of private investors that can lawfully accept Russia’s offer to arbitrate made in that treaty...

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