JSC BTA Bank v Ablyazov & Ors [2011] EWHC 202 (Comm) (10 February 2011)

JSC BTA Bank v Ablyazov & Ors [2011] EWHC 202 (Comm) (10 February 2011)

The Bank's claims are private law claims for fraud and breach of duty, not governmental in nature, and do not involve the indirect enforcement of foreign penal, revenue, or other public law. The act of state doctrine precludes the court from questioning the legality of the nationalisation of the Bank within...

Source-derived case information.

Citation
[2011] EWHC 202 (Comm)
Parties
Claimant: JSC BTA Bank; Defendant: Mukhtar Ablyazov; Defendant: Mr. Solodchenko; Defendant: Drey Associates Limited; Defendant: Mr. Zharimbetov
Jurisdiction
England and Wales
Judgment Date
10 February 2011
Procedural Posture
Commercial Court Civil Claim / Interlocutory Application to Dismiss Stay Applications
Outcome
Stay applications dismissed on grounds of non-justiciability and indirect enforcement of foreign public law; remaining issues to be considered at trial if necessary.
Legal Topics
Act of State Doctrine, Abuse of Process, Justiciability, Enforcement of Foreign Public Laws, Shareholder Rights, Fraud, Breach of Duty
Private International Law Commercial Law Company Law Act of State Doctrine Abuse of Process Justiciability Enforcement of Foreign Public Laws Shareholder Rights +2 more

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Parties

JSC BTA Bank

Claimant

Mukhtar Ablyazov

Defendant

Mr. Solodchenko

Defendant

Drey Associates Limited

Defendant

Mr. Zharimbetov

Defendant

Procedural Posture

Commercial Court Civil Claim / Interlocutory Application to Dismiss Stay Applications

Legal Issues

  1. 1 Whether the claims by JSC BTA Bank involve the indirect enforcement of a foreign penal, revenue or other public law
  2. 2 Whether the stay applications raise non-justiciable issues under the act of state doctrine
  3. 3 Whether the proceedings are an abuse of process due to alleged illegality, lack of authority, or impossibility of fair trial

Ratio Decidendi

The Bank's claims are private law claims for fraud and breach of duty, not governmental in nature, and do not involve the indirect enforcement of foreign penal, revenue, or other public law. The act of state doctrine precludes the court from questioning the legality of the nationalisation of the Bank within Kazakhstan. The allegations of a political scheme or collateral purpose do not render the claims non-justiciable or an abuse of process. There is no unsatisfied claim under Kazakh public law, and the Bank's interest is distinct from that of its shareholders. The stay applications, insofar as they rely on non-justiciable issues or indirect enforcement of foreign public law, must be...

Court Disposition

Stay applications dismissed on grounds of non-justiciability and indirect enforcement of foreign public law; remaining issues to be considered at trial if necessary.

Orders

  • The applications to stay the proceedings on grounds of non-justiciability and indirect enforcement of foreign public law are dismissed.
  • The issue of impossibility of fair trial is reserved for trial.