Monthly Archives: June 2006

06ASTANA51, 2006 REPORT ON INVESTMENT DISPUTES AND EXPROPRIATION CLAIMS

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Reference ID Created Released Classification Origin
06ASTANA51 2006-06-15 14:48 2011-08-30 01:44 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Astana

VZCZCXRO0352
RR RUEHAST
DE RUEHAST #0051/01 1661448
ZNR UUUUU ZZH
R 151448Z JUN 06
FM USOFFICE ASTANA
TO RUEHC/SECSTATE WASHDC 0136
INFO RUEHAST/USOFFICE ASTANA 0138
RUCPDOC/USDOC WASHDC

UNCLAS SECTION 01 OF 03 ASTANA 000051 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
SCA/CEN - MUDGE 
 
E.O. 12958: N/A 
TAGS: EINV EFIN PGOV KIDE OPIC KZ
SUBJECT: 2006 REPORT ON INVESTMENT DISPUTES AND EXPROPRIATION CLAIMS 
- POST INPUT 
 
 
1.  (SBU) This cable is Sensitive But Unclassified and contains 
business-sensitive information.  Not for Internet distribution. 
Please handle accordingly. 
 
2.  (U) This cable responds to Reftel request for input to the 
2006 report on investment disputes and expropriation claims. 
 
3.  (SBU) Post knows of three claims by United States citizens 
outstanding against the Government of Kazakhstan (GOK).  The 
claimants are identified at the end of this cable.  One of 
the three cases (Case 2 / Claimant B) has been resolved. 
 
 
 
 
 
Case 1 
------ 
 
a. Claimant A 
 
b.  1996 
 
 
 
c.  In the summer of 1996, when the Kazakhstani government sold 
Claimant A a large power station in northern Kazakhstan, the 
government agreed that its state power company, 
Kazakhstanenergo, would pay a specified amount for power 
deliveries.  However, Kazakhstanenergo fell far behind in making 
payments, and as of June 1998, Claimant A calculated its arrears 
at approximately $150 million.  Claimant A offered the 
government a wide range of remedies to cover its debt.  Claimant 
A also filed for international arbitration as provided for in 
its contract.  Ahead of an expected June 23, 1999, arbitration 
decision in London, the GOK and Claimant A signed a memorandum 
of understanding (MOU) calling for a negotiated solution, and 
subsequently negotiated a 
second MOU on how the dispute would be resolved. 
 
At first, the GOK made progress in fulfilling its obligations, 
completing four of six contracts called for by the settlement, 
under which debt was swapped for management rights in the 
electricity distribution business in Eastern Kazakhstan.  The 
GOK's performance under the other two contracts, however, 
continues to be an issue. 
 
One of the two problematic contracts, signed by Claimant A and 
the Ministry of Energy, provided for preferential deliveries of 
power (at 10% discount off the standard rate) to Russia on the 
Omsk line.  In fall 2005, KEGOC, a state-owned power 
transmission company and a co-party to the contract, refused to 
deliver electricity on the line.  In response, Claimant A has 
commenced an arbitration action with the London Court of 
International Arbitration (LCIA).  The GOK has tried to resolve 
the issue in a local court in Pavlodar.  The Pavlodar court has 
refused to hear the case.  At issue for Claimant A is the 
principle of contract sanctity - the notion that KEGOC cannot 
stop power transmission at will.  Notably, the Ministry of 
Energy is supportive of the claimant and encouraging KEGOC to 
settle. 
 
The second source of contention is the contract for completion 
of power and hydroelectric plants. Negotiations continued until 
summer of 2002, and then broke down. In December 2002, the GOK 
attempted to invalidate the underlying contract in Kazakhstani 
court, but the court dismissed the suit, since the contract 
provided solely for international arbitration with the LCIA to 
resolve disputes.  The GOK refused to submit to arbitration, and 
in April 2003, initiated a new suit in Kazakhstani court, this 
time seeking to revoke only the arbitration clause of the 
contract.  According to the claimant, the GOK stated to the 
court that it was "not aware of such an institution" in 
reference to the LCIA, London.  In January 2004, the Kazakhstani 
Supreme Court ruled that the international arbitration clause, 
as written, was invalid (the written summary of the decision 
states that a re-worded clause might be acceptable.) 
 
At the moment, a key issue for Claimant A is what it views as 
"creeping expropriation" by the GOK through the royalty 
mechanism.  Claimant A is charged royalties by the Finance 
Ministry's State Property Committee for concessions - 
specifically, for the right to use (for 20 years up to 2017) two 
hydro-electric plants on the Irtysh River in Eastern Kazakhstan. 
 The Committee, however, is charging the claimant a rate 50% 
higher than what the claimant sees as warranted by the contract. 
 The Committee refuses to provide the claimant with an 
explanation of its calculation method. 
 
 
ASTANA 00000051  002 OF 003 
 
 
Recently, the Financial Police, which operates under the 
umbrella of the Finance Ministry, initiated criminal prosecution 
against the two plants' accountants and general directors.  The 
charges currently focus on four to six people, all of them 
Kazakhstani nationals.  Claimant A, however, has expressed the 
concern that prosecution could spread to include U.S. citizens. 
Claimant A sees the criminal prosecution as a way to force 
settlement.  Claimant A, however, reports that it is close to 
reaching a settlement with the Ministry of Finance on the 
substantive issues. 
 
The Embassy's support of Claimant A in its difficulties with the 
Kazakhstani government began in 1999 and continues to this day, 
as Claimant A is continuously subjected to various types of 
harassment.  In July of 2005, two of its local em
ployees were 
convicted of accounting improprieties in a trial that even the 
presiding judge admitted was dubious.  Both avoided prison terms 
by benefiting from a pardon under the Presidential Amnesty Act. 
One of the two convictions has subsequently been overturned; the 
other, with an identical set of facts, is on appeal. 
 
In a separate dispute, Claimant A purchased a bankrupt coal mine 
in 2001 to ensure fuel supplies for its primary generation 
facilities, spending over $30 million to discharge debts and 
improve facilities.  From the same year, Kazakhstani parties 
claiming to be owners of the mine filed a series of actions in 
regional courts.  In many cases, neither Claimant A nor its 
counsel were advised of hearings or proceedings until days, or 
even hours, before they were to take place, making it extremely 
difficult to make travel arrangements to attend such 
proceedings.  In October 2003, the Pavlodar Oblast court ruled 
that a Kazakhstani company was rightful owner of the mine, and 
thus entitled to dispose of its assets and require Claimant A to 
vacate the site.  At Claimant A's request the Secretary of 
Commerce raised the dispute with President Nazarbayev. 
Subsequently, a higher court reversed the Pavlodar Oblast 
court's decision, and reestablished Claimant A's ownership of 
the mine. 
 
However, in June 2005, armed agents of the Kazakhstani tax 
authorities raided Claimant A's offices at the Maikuben mine. 
They ejected Claimant A's employees from the building, took over 
the telephone switchboard and computer server room and demanded 
documents.  This raid was ostensibly done in connection with an 
ongoing tax enforcement case, although the agents were seeking 
documents from a time period outside the scope of the inquiry. 
 
 
Claimant A reports that, based on the documents forcibly seized 
from it in the June 2005 raid, it is being pressured by a 
regional environmental protection agency to pay an unofficial 
fine. 
 
 
 
 
 
Case 2 
------ 
 
a. Claimant B 
 
b. 2000 
 
 
 
c. In December 1998, Claimant B approved an $18 million 
investment in a 75-unit residential compound in Almaty.  The 
claimant invested in a joint venture with a local real estate 
development firm and lawfully acquired the land needed for the 
compound.  In February 2000, the GOK announced a plan to 
establish a national arboretum on land that overlapped the 
boundaries of the claimant's.  In July 2000, the claimant 
requested that the GOK convene a special working group to settle 
the dispute, as provided for by the law.  The GOK continued to 
assert its right to take the claimant's land and started 
construction of the arboretum in February 2001.  Subsequently, 
the police prevented the claimant's workers from entering the 
claimant's entire plot of land.  The GOK failed to offer the 
claimant satisfactory compensation for the taking. 
 
In 2002, the case went to arbitration at the International Court 
for the Settlement of Investment Disputes (ICSID).  In October 
2003, ICSID found for the claimant and awarded damages in excess 
of $10 million. 
 
Post actively supported Claimant B.  The Ambassador and senior 
officials of the State and Commerce Departments frequently and 
forcefully reminded the highest GOK officials of Kazakhstan's 
 
ASTANA 00000051  003 OF 003 
 
 
obligation under the U.S.-Kazakhstan Bilateral Investment Treaty 
to honor the arbitral award and warned of negative consequences 
for Kazakhstan's investment and debt ratings if the GOK failed 
to pay. 
 
 
 
Following extensive USG encouragement, the GOK reached a 
settlement with Claimant B consistent with the arbitration 
decision and made a requisite payment in late April 2006. 
 
 
 
 
 
Case 3 
 
------ 
 
 
 
a.  Claimant C 
 
 
 
b.  2001 
 
 
 
c.  In July 2001, the Kazakhstan Ministry of State Revenue (MSR) 
performed an audit and assessed a $29 million tax claim on 
claimant, a subsidiary of a U.S. parent company.   The 
assessment was based on MSR's finding that $100 million received 
by claimant from a customer (the operating consortium of the 
offshore Kashagan oil field), as reimbursement for capital 
expenditures incurred by claimant in modifying a barge rig, was 
taxable income.   Claimant C challenged the decision in Astana 
City Court, which ruled in the claimant's favor, holding that 
the reimbursements were not, in fact, taxable income.  Following 
an appeal by the MSR, Kazakhstan's Supreme Court ruled in favor 
of claimant in March 2002. 
 
 
 
The Kazakhstani tax authorities have persisted in appealing the 
case in subsequent years, bringing the case to the Supreme Court 
a total of four times.  In May 2006, the Supreme Court ruled in 
favor of the Kazakhstani tax authorities.  Claimant subsequently 
contacted the USG, though to date has not requested or 
recommended any specific Embassy intervention.  By early June 
the claimant's attorneys had successfully filed a stay of the 
collection process triggered by the Supreme Court decision, and 
were planning an appeal. 
 
 
 
--------------------------------------------- ------------------- 
 
 
 
4. For Department information only: 
 
 
 
Claimant A: AES Silk Road Corporation 
 
 
 
Claimant B: AIG Silk Road Capital Management 
 
 
 
Claimant C: Parker Drilling Company 
TRACY

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06ASTANA50, KAZAKHSTAN: LIKELY TO SUPPORT RE-ELECTION OF UNHRC

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To understand the justification used for the classification of each cable, please use this WikiSource article as reference.
Discussing cables
If you find meaningful or important information in a cable, please link directly to its unique reference number. Linking to a specific paragraph in the body of a cable is also possible by copying the appropriate link (to be found at theparagraph symbol).Please mark messages for social networking services like Twitter with the hash tags #cablegate and a hash containing the reference ID e.g. #06ASTANA50.
Reference ID Created Released Classification Origin
06ASTANA50 2006-06-05 09:31 2011-08-30 01:44 UNCLASSIFIED Embassy Astana

VZCZCXRO7548
RR RUEHAST
DE RUEHAST #0050 1560931
ZNR UUUUU ZZH
R 050931Z JUN 06
FM USOFFICE ASTANA
TO RUEHC/SECSTATE WASHDC 0135
INFO RUEHTA/AMEMBASSY ALMATY 0125
RUCNDT/USMISSION USUN NEW YORK 0012
RUEHAST/USOFFICE ASTANA 0137

UNCLAS ASTANA 000050 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR SCA/CEN (J. MUDGE) 
 
E.O. 12958: N/A 
TAGS: PREL UNGA KZ PHUM
SUBJECT: KAZAKHSTAN: LIKELY TO SUPPORT RE-ELECTION OF UNHRC 
CANDIDATE 
 
REF: STATE 85758 
 
On June 1, Poloff delivered reftel demarche and a copy of 
Professor Wedgwood's curriculum vitae to Almabek Demessinov, 
Head of the UN Section, Department of International 
Organizations and Security Issues of the Ministry of Foreign 
Affairs.  Demessinov said that it was highly likely that the GOK 
would support the U.S. candidate for re-election to the UN Human 
Rights Committee. 
 
TRACY

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