COMPENSATION FOR DAMAGES CAUSED BY THE STATE: IMMUNITY OF THE STATE AND LEGAL ENTITIES UNDER ITS CONTROL (ALTER EGO) IN THE JUDICIAL PRACTICE OF THE KINGDOM OF THE NETHERLANDS

Abstract

The article examines the jurisdictional immunity of a State and legal entities controlled by it in the context of recognition and enforcement of judgments of Ukrainian courts awarding compensation for damage caused by the armed aggression of the Russian Federation against Ukraine. The relevance of the topic stems from the fact that, although Ukrainian courts have developed a consistent approach to denying Russia jurisdictional immunity in this category of cases, the actual recovery of awarded damages often depends on access to foreign jurisdictions where assets of Russia or Russia-related entities may be located. The article analyses the case law of the courts of the Kingdom of the Netherlands concerning applications for recognition and enforcement of judgments of Ukrainian courts rendered both directly against Russia and against legal entities characterised by Ukrainian courts as Russia’s alter ego. Particular attention is paid to the approaches of the District Court of The Hague and the Court of Appeal of The Hague to the relationship between State immunity, the tort exception, the right of access to a court, and the legal status of State-controlled companies. The article argues that Dutch courts do not automatically transpose the approach of Ukrainian courts to the non-application of Russia’s immunity at the stage of recognition and enforcement abroad, but conduct an independent assessment of jurisdictional immunity under international law and their own case law. At the same time, the case law of the Court of Appeal of The Hague on the applications of PrJSC “AMC Slavutych-Invest” and Farm Enterprise “SY Zhnyva” demonstrates an important distinction between a State’s economic interest in a controlled legal entity and the State’s legal title to that entity’s assets. The article concludes that enforcement of judgments against legal entities identified as a State’s alter ego may represent a potentially promising avenue for crossborder recovery of damage caused by a State; however, it does not eliminate the need for further judicial assessment of the conditions for recognition and enforcement of such judgments.