JSC BTA Bank v Ablyazov & Ors

JSC BTA Bank v Ablyazov & Ors

The Bank's claims do not involve the indirect enforcement of a foreign penal, revenue or other public law or sovereign interest; the act of state doctrine precludes the court from adjudicating on the legality of the nationalisation of the Bank in Kazakhstan, and the public policy exception is not engaged as the claims are private law claims for pre-nationalisation conduct, pursued for the benefit of creditors. Only the collateral purpose and fair trial arguments remain justiciable; all other grounds for the stay applications are non-justiciable and must be struck out.

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
Civil (commercial) / Interlocutory Application—determination of Justiciability and Indirect Enforcement of Foreign Public Law in Context of Stay Applications
Outcome
Stay applications dismissed in part; allegations based on indirect enforcement of foreign public law, illegality, and public policy struck out as non-justiciable; only collateral purpose and fair trial arguments remain for further consideration.
Legal Topics
Act of State Doctrine, Justiciability, Indirect Enforcement of Foreign Public Law, Abuse of Process, Collateral Purpose, Human Rights, International Law
Conflict of Laws Commercial Law Company Law Act of State Doctrine Justiciability Indirect Enforcement of Foreign Public Law Abuse of Process Collateral Purpose +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

Civil (commercial) / Interlocutory Application—determination of Justiciability and Indirect Enforcement of Foreign Public Law in Context of Stay Applications

Legal Issues

  1. 1 Whether the actions involve the indirect enforcement of a foreign penal, revenue or other public law or sovereign interest
  2. 2 Whether the stay applications raise non-justiciable issues under the act of state doctrine
  3. 3 Whether the claims are an abuse of process due to collateral purpose or illegality

Ratio Decidendi

The Bank's claims do not involve the indirect enforcement of a foreign penal, revenue or other public law or sovereign interest; the act of state doctrine precludes the court from adjudicating on the legality of the nationalisation of the Bank in Kazakhstan, and the public policy exception is not engaged as the claims are private law claims for pre-nationalisation conduct, pursued for the benefit of creditors. Only the collateral purpose and fair trial arguments remain justiciable; all other grounds for the stay applications are non-justiciable and must be struck out.

Court Disposition

Stay applications dismissed in part; allegations based on indirect enforcement of foreign public law, illegality, and public policy struck out as non-justiciable; only collateral purpose and fair trial arguments remain for further consideration.

Orders

  • Allegations in the stay applications based on indirect enforcement of foreign public law, illegality, and public policy are struck out as non-justiciable.
  • Collateral purpose and fair trial arguments may proceed to be determined at trial if pursued.