Sanctioning Goliath?

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Take a roll call of the Russian companies sanctioned in the wake of the Ukraine crisis, and there’s a key name conspicuously absent: Gazprom, the billion-dollar oil and gas colossus that’s woven a web of subsidiary companies spanning the European continent.

“You’ve got this complex net running across Europe, which is why, I think, the Europeans were less willing to go along [with sanctions against Gazprom],” says J. Peter Pham, director of the Africa Center at the Atlantic Council. “They’re active in about roughly two dozen countries. They’re all over.” 

Gazprom ranks as one of the largest extractors of natural gas and one of the biggest companies in the world – and it’s mostly owned by the Kremlin. Widely seen as an arm of the Russian government, it’s played a pivotal role over the past decade in the “near abroad” of former Soviet satellites, severing gas supplies to Ukraine over pricing disputes in 2006 and 2009. Last month, Russia again threatened supply disruptions over Ukraine’s alleged billions in unpaid bills.

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“Gazprom is intimately connected with the Kremlin,” says Paul Sullivan, a professor of economics at National Defense University and an adjunct professor at Georgetown University. “It acts as a powerful arm of Russian foreign policy. In many ways it is often Russian foreign policy.”

The gas embargoes pose an especially serious problem for Europe: The continent gets about 30 percent of its natural gas from Russia, much of it piped through Ukraine, and – with the exception of some liquefied natural gas – all of it is supplied exclusively by Gazprom, the U.S. Energy Information Administration says. That poses a problem when it comes to imposing sanctions.

“The strong dependence on Russian oil and gas that our European allies have makes them understandably uncomfortable handicapping Russia’s ability to produce,” says Jason Bordoff, a former White House energy adviser and director of the Center on Global Energy Policy at Columbia University.

epa02904132 Russian Prime Minister Vladimir Putin (R) and Gazprom CEO Alexei Miller (L) attend a ceremony of launching the Sakhalin-Khabarovsk-Vladivostok gas pipeline, in Vladivostok, Russia, on 08 September 2011. The pipeline with a planned capacity of six billion cubic meters of gas per year will supply gas to Russia's Sakhalin region, Khabarovsk and Primorye territories and also pave the way for supplies to the Asia-Pacific region countries. EPA/ALEXEY DRUZHINYN MANDATORY CREDIT / RIA NOVOSTI /*** NO SALES NO ARCHIVES NOT FOR USE AFTER 08 OCTOBER 2011***

While other Russian businesses and barons have been penalized – including Igor Sechin, the head of Rosneft, a petroleum company largely held by the Kremlin – Gazprom has escaped unscathed, almost certainly due to its role as a supplier of European gas. Its chief executive officer, Alexey Miller – who worked with Russian President Vladimir Putin in the St. Petersburg mayor’s office, as did Sechin – also has avoided penalties leveled by the U.S. and EU on other Putin confidantes.

 

Both President Barack Obama and German Chancellor Angela Merkel, who discussed potential new sanctions against Russia in a joint appearance at the White House Friday, have pledged to take steps to ease the EU’s dependency on Moscow. Those steps could include speeding up the federal review process for new natural gas export terminals in the U.S. 

But there’s far more at play than energy. Even if Europe finds a way to get all its gas from the U.S. and other countries – such as Algeria, Nigeria and Mozambique – energy independence is far from a panacea. Gazprom’s name may combine the Russian words for “gas industry,” but its reach encompasses much more than gas and oil, spanning from a subsidiary it wholly owns in Amsterdam; to investment firms in Ireland, Austria and Vienna; to energy companies in Italy and Moldova; to media companies in Moscow.

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“Gazprom’s financial arms reach far into many businesses and banks in Europe and beyond,” Sullivan says. “It is not just the pipelines that give it leverage.”

Former German Chancellor Gerhard Schroder, in fact, serves as chairman of the board for Nord Stream AG, a Gazprom subsidiary based in Switzerland tasked with building natural gas pipelines from Russia to Germany through the Baltic Sea. 

“Even countries that are, shall we say, having quarrels going with the Russian Federation on various things, like Moldova, Gazprom, through a subsidiary, owns 50 percent of Moldovagaz,” says Pham, referring to Moldova’s main distributor of natural gas. “It makes things much more complicated.”

The list of subsidiaries on Gazprom’s website includes nearly 250 names, including at least one tied to a U.S. location: Gazprom Marketing & Trading Ltd. (GM&T), which has an office in Houston that opened in 2007.

A woman who answered the phone at the Houston office – the location of GM&T USA Inc. – described it as the “daughter company” to a GM&T “parent company” based in London. She said the firm is the only Gazprom company located in the U.S., and referred further questions to the London office, which did not return calls and emails for comment. The GM&T website says the company started as the U.K. office of Gazprom and that GM&T USA began trading and marketing natural gas in North America in 2009, marking the first entry of a Gazprom Group company in the U.S.

It’s an important connection: By likely taking “orders from the big bears in Moscow,” Sullivan says, the Houston office is “toast if we get real tough.”

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Other Gazprom companies, though, may be harder to find. The 250-odd subsidiaries listed on the Gazprom corporation website are merely those the company acknowledges publicly. Many more are hidden from view, experts say.

Gazprom itself did not respond to repeated inquiries.

“They have a lot of companies in physical commodities – oil and gas – which are hard to trace, and they have a lot of companies in the financial markets, which is even harder to trace,” says Eugene Nivorozhkin, an assistant professor of economics at University College London.  

Hence, sanctions against Gazprom would not merely inhibit natural gas imports for Europe, they also – potentially overnight – could make it illegal for hundreds or thousands of European and American businesses to work with the energy companies’ dozens of subsidiaries. That, in turn, could bite economies on both sides of the Atlantic, but with so many Gazprom subsidiaries in so many countries, exactly how remains unclear.

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“Gazprom has a lot of presence in a lot of economies – how any sanctions will jeopardize a lot of relationships is hard to predict,” Nivorozhkin says.

That makes sanctions unlikely – at least for now.  

“There’s not a credible way of introducing them,” Nivorozhkin says.

But that doesn’t mean previous rounds of sanctions, combined with the threat of further penalties, haven’t created an air of uncertainty around Russia-related commerce. Billionaire Gennady Timchenko, for example, recently sold his stake in the company he co-founded – Swiss commodities trader the Gunvor Group – a day before being hit with U.S. sanctions. The company said the sale was orchestrated in anticipation of the penalties.
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“You haven’t sanctioned Gazprom, you haven’t sanctioned Rosneft – what does that mean?” Bordoff tells U.S. News. “That isn’t exactly clear. And there are no doubt lawyers determining where the lines are that should not be crossed. And given the ambiguities of where those lines are, companies are going to be wary of doing business with companies like them.”
Nivorozhkin agrees. “The market economy will take care of penalizing Russia for its actions [in the Ukraine], even without formal sanctions,” he says.
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Gazprom Plans EU Antitrust Meeting Next Month Before Hearing (November 2015)

epa02904132 Russian Prime Minister Vladimir Putin (R) and Gazprom CEO Alexei Miller (L) attend a ceremony of launching the Sakhalin-Khabarovsk-Vladivostok gas pipeline, in Vladivostok, Russia, on 08 September 2011. The pipeline with a planned capacity of six billion cubic meters of gas per year will supply gas to Russia's Sakhalin region, Khabarovsk and Primorye territories and also pave the way for supplies to the Asia-Pacific region countries. EPA/ALEXEY DRUZHINYN MANDATORY CREDIT / RIA NOVOSTI /*** NO SALES NO ARCHIVES NOT FOR USE AFTER 08 OCTOBER 2011***

Gazprom PJSC is seeking a make-or-break meeting with the European Union’s antitrust chief next month in attempt to settle a case against the Russian state-run company, which supplies about 30 percent of Europe’s natural gas.

Gazprom Deputy Chief Executive Officer Alexander Medvedev plans to meet Margrethe Vestager in Brussels in December, the company’s spokesman Sergei Kupriyanov said by phone on Saturday without elaborating. The talks were set ahead of a Dec. 15 hearing on EU accusations of Gazprom’s unfair pricing and marketing policies in eastern Europe, Reuters reported Friday, citing unidentified people familiar with the issue.

Russia, reliant on energy for almost half of its budget earnings, is struggling with its first recession in six years amid a commodities price slump and sanctions over the crisis in Ukraine. Its government has been trying to end its international isolation by forging analliance with the U.S. and EU to counter Islamic State in Syria.

 ukraineGazprom proposed options for an antitrust settlement in September while refusing to admit any guilt, Medvedev said at the time. “We would very much like these issues not to be politicized,” he said.

The offer kick-started discussions at a technical level in October and November between Gazprom and EU officials. Companies can avert possible penalties by offering commitments that remove the bloc’s competition concerns.

Vestager said earlier this month it was too soon to say whether Gazprom’s remedies would solve the issue. While weaker oil has sent Gazprom’s gas prices in Europe, mostly linked to crude, to the lowest level in more than a decade, that doesn’t change the EU’s case because one of the questions is the way gas is priced, according to the EU’s antitrust commissioner.

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Gazprom Attempts to Settle EU Antitrust Case (Sept 21st 2015)

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BRUSSELS—OAO Gazprom on Monday said it has submitted proposals to the European Commission to settle accusations that the Russian energy giant hindered competition and charged unfair prices in several Eastern European countries.

If accepted, a settlement could help the company avoid billion-dollar fines, but would likely require it to fundamentally change the way it has done business in its former backyard since the collapse of the Soviet Union.

The commission in April filed formal charges against Gazprom, saying the state-controlled company broke European Union antitrust law in eight countries where it is the dominant gas supplier—Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland and Slovakia. The commission, which acts as the European Union’s antitrust watchdog, said restrictive terms in Gazprom contracts forced territorial constraints on customers, for instance by prohibiting them from re-exporting gas to another country.

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It also objected to Gazprom’s practice of tying the price of gas to that of oil, saying that had led to higher gas prices in Bulgaria, Estonia, Latvia, Lithuania and Poland than those charged in other markets. In addition, the commission said that in Bulgaria and Poland the company had also linked the supply of gas to government support for big pipeline projects such as the Yamal-Europe pipeline and the now-canceled South Stream project.

Gazprom has consistently rejected the charges as politically motivated; a claim the commission has denied. In recent months in particular the company has pointed out that customers whose contracts are tied to the price of oil are now enjoying exceptionally cheap gas because of the collapse in global oil prices.

While Gazprom has denied any wrongdoing, its management has said it was open to a settlement.

“We hope to discuss this proposal with the representatives of the commission in the near future in order to come to a settlement agreement,” it said Monday, without giving details on the content of its proposals.

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The commission confirmed that it received the proposal, but added it still expected a formal response from the company on its charges by Sept. 28 2015.

Monday’s offer isn’t the first attempt by the two sides to resolve the case. Talks between Gazprom and the commission on settling the two aspects of the investigations that don’t include the oil-price link had advanced quite far by early 2014, people familiar with the probe have said. However, settlement negotiations collapsed in the spring of last year as the conflict between Russia and Ukraine escalated.

A year later, the EU’s new Competition Commissioner Margrethe Vestager filed the charges.

Analysts said on Monday that it was too early to say whether settlement talks would be successful this time around.

Ms. Vestager “has shown a very strong determination to move some cases forward,” said Alec Burnside, an antitrust lawyer at Cadwalader, Wickersham & Taft LLP in Brussels who isn’t involved in the case.

Within six months of taking office last November, the former Danish economy minister had jump-started several long-dormant cases, notably by filing charges against Gazprom and Google Inc. in a single week in April.

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She has also taken a tough approach to mergers that might harm consumers, pushing Scandinavian telecom operators Telenor ASA and TeliaSonera AB to abandon the merger of their Danish operations this month.

The EU’s immediate response on Monday indicates that while the EU is willing to engage in settlement talks, regulators aren’t “taking their foot off the pedal,” Mr. Burnside said.

“This is a high-stakes game and it’s difficult to separate out antitrust from geopolitical elements, which are no doubt involved,” Mr. Burnside said.

Write to Gabriele Steinhauser at gabriele.steinhauser@wsj.com and Tom Fairless attom.fairless@wsj.com

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Brussels accuses Gazprom over stranglehold (April 2015)

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Brussels has confronted Gazprom over its stranglehold on gas supplies to eastern Europe, accusing the Russian government-controlled group of illegally overcharging its customers and muscling out rivals.

The decision on Wednesday to serve formal antitrust charges against Russia’s gas export monopoly is a serious escalation of a four-year probe that has provoked the Kremlin’s ire and threatens to upend Gazprom’s business model. It also comes against the backdrop of the ongoing war in Ukraine, which has raised EU-Russia tensions to levels not seen since the cold war.

Gazprom rejected the charges, saying the accusations were “unfounded” and insisting it adhered to “all the norms of international law and national legislation” where it does business. In a statement it said its pricing practices were the same as other gas suppliers to EU countries.

Significantly, Gazprom said it is considered a “strategic government-controlled business entity” within Russia, and reiterated the Kremlin’s position that a state-to-state solution should be found to the antitrust problem.

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Wednesday’s charges represent the opening salvo in the biggest antitrust case launched by the European Commission against a state-controlled company from outside the EU and come just a week after Margrethe Vestager, the EU’s competition commissioner, pulled the trigger on another highly contentious case, filing charges against US technology group Google.

“All companies that operate in the European market — no matter if they are European or not — have to play by our EU rules,” Ms Vestager said in a statement announcing the charges.

Investigators accuse Gazprom in their so-called “statement of objections” of abusing its dominant position in the upstream gas market in five eastern European countries by charging wholesalers “significantly higher” prices than its own costs or what can be bought on the open market.

The charges also allege Gazprom is illegally preventing wholesalers in eight central and eastern European countries from selling on their gas to other countries. The EU has tried to assist Ukraine by using such “reverse flows” to provide Kiev with gas sold by Gazprom to neighbouring countries, such as Poland and Slovakia.

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The commission said it was continuing to investigate whether Gazprom has attempted to strong-arm the Bulgarian and Polish governments into maintaining control over gas pipelines in their countries. It said it had found evidence Gazprom threatened not to supply gas unless the two governments either invested alongside Gazprom-backed pipeline projects, or allowed it to reinforce control over existing pipelines.

Under recently adopted EU law, energy companies cannot control both gas supplies and the distribution infrastructure.

Russia’s energy ministry on Wednesday expressed “surprise and regret” over what it said were unjustified charges against a non-EU company.

In a statement it described the charges as “an unfriendly act and an attempt to exert pressure on Russia in its energy policy.” It went on to describe the “political nature” of the case, linking it to the EU’s effort to put economic pressure on Russia over the Ukraine crisis.

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Although the charge sheet has been ready since last year, Brussels put the case on hold for fear it could antagonise an increasingly belligerent Moscow. Some senior EU officials have feared retaliation, such as a cut-off in gas supplies to Ukraine and Europe, that would do more damage than the antitrust problems the commission is trying to address.

Ms Vestager points to her decision to serve charges against California-based Google as evidence that nationality or politics plays no part in her antitrust enforcement decisions.

Since September 2011, when the EU launched its biggest antitrust raids against almost two dozen Gazprom partners and affiliates in eastern Europe, Moscow has refused to recognise the EU’s authority over Gazprom and wants the case settled at a state-to-state level.

The commission, the EU’s top antitrust authority, outlines three main complaints in a charge-sheet running to hundreds of pages. Gazprom is accused of imposing contractual terms that stop the resale of gas and illegally carve up the market to its own advantage.

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A second strand of allegations claims the Russian group broke competition rules by using its clout to block rival sources of supply. Specifically this relates to Gazprom linking its own pipeline projects to supply deals and prices, making it more costly to diversify.

Most significantly, Brussels also claims Gazprom overcharges customers in some EU countries through abusive terms in long-term contracts, which link the price of gas to oil. Prices in Lithuania, for instance, were found to have been at times more than a third higher than Germany’s more developed energy market

Gazprom has been given 12 weeks to respond to the statement of objections and can call an oral hearing to make its defence. It would still be able to settle the charges through abiding by legally binding commitments that address the commission concerns about its conduct.

Should the commission decide to issue an infringement decision, it has the power to fine Gazprom up to 10 per cent of its global turnover, a sum that in theory could exceed €10bn, although in practice the penalty would be much less. It can also impose far-reaching changes to Gazprom’s business model in Europe, is that checkmate?

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So…..What’s The Back Story On Yukos Oil?

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OJSC “Yukos Oil Company” was an oil and gas company based in Moscow,Russia. Yukos was acquired from the Russian government by Russian oligarch Mikhail Khodorkovsky‘s Bank Menatep during the controversial “loans for shares” auctions of the mid 1990s. Between 1996 and 2003 Yukos became one of the biggest and most successful Russian companies, producing 20% of Russia’s oil output, as much as Libya or Iraq, and Khodorkovsky became an advocate of democratization, international co-operation and Russian reform.

In October 2003 Khodorkovsky—by then the richest man in Russia and 16th richest man in the world—was arrested, and the company was forcibly broken up for alleged unpaid taxes shortly after and declared bankrupt in August 2006. Courts in several countries later ruled that the real intent was to destroy Yukos and obtain its assets for the government, and act politically against Khodorkovsky. In 2014 the largest arbitration award in history, $50 billion (€37,2 billion), was won by Yukos’ former owners against Russia. 

From 2003-04 onwards, the Russian government presented Yukos with a series of tax claims totaling US$27 billion (€20,1 billion). As the government froze Yukos’ assets at the same time, and alternative attempts to settle by Yukos were refused, the company was unable to pay these tax demands. Between 2004 and 2007, most of Yukos’s assets were seized and transferred for a fraction of their value to state-owned oil companies.

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The Parliamentary Assembly of the Council of Europe condemned Russia’s campaign against Yukos and its owners as manufactured for political reasons and a violation of human rights. Between 2011 and 2014 several court cases were won by the former company’s management and investors against Russia or against the companies that acquired Yukos assets.

The European Court of Human Rights ruled that there had been unfair use of the legal and tax system; the Arbitration Institute of the Stockholm Chamber of Commerce, an established neutral body used by Russia and the West since the 1970s for trade disputes, concluded that the government’s action was an “unlawful expropriation” using “illegitimate” tax bills, whose effect was intended to “destroy Yukos and gain control over its assets”; and the Permanent Court of Arbitration in The Hague ruled unanimously upon awarding compensation of $50 billion for the company’s assets, that Yukos was the target of a series of politically motivated attacks by Russian authorities that eventually led to its destruction, and that Russia had expropriated Yukos’ assets in breach of the Energy Charter Treaty, (The treaty does not stop governments seizing or nationalizing commercial assets, but requires the investors to be fairly compensated if this happens. Russia never ratified the full treaty but these clauses were still legally binding under both the treaty and Russian law until 2029).

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According to the Permanent Court of Arbitration’s ruling, the primary objective of the Russian Federation was not to collect taxes but rather to bankrupt Yukos, appropriate its assets for the sole benefit of the Russian state and state-owned companies Rosneft and Gazprom, and remove Khodorkovsky from the political arena.

Shearman flags potential conflict at White & Case as US rivals face off in $50bn Yukos arbitration

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Shearman & Sterling has raised a potential conflict of interest issue at White & Case (W&C) in its representation of Russia’s bid to annul the $50bn arbitration award against it over the collapse of oil giant Yukos.

In a motion to recuse or disqualify a US district judge on 19 November before the district court of Columbia, Yukos shareholders Hulley Enterprises, Yukos Universal and Veteran Petroleum alerted the court that they were ‘investigating prior attorney-client relationships’ between them, their affiliates, and W&C.

‘The facts underlying the prior relationships (which date back to at least 1999 and appear to involve matters raised by W&C in this proceeding) are being investigated as quickly as possible, but due to the passage of time and the intervening confiscation of most of the relevant documents by agents of the Russian Federation, petitioners may not be in a position to make a final determination whether to seek disqualification of W&C for several weeks,’ the court filing said.

Russia was ordered to pay $50bn to the majority shareholders in Yukos Oil Company, once Russia’s largest oil producer, by an arbitral tribunal sitting in The Hague in 2014. It was the largest arbitration award in history and 20 times larger than the previous record. Recognition and enforcement of the award in the courts, however, is expected to take about a decade and will generate millions of dollars in legal fees. Proceedings are taking place across various jurisdictions, including Belgium and the US.

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W&C was instructed by Russia to coordinate the country’s defence against enforcement and annulment proceedings across at least three jurisdictions on the case, while Cleary Gottlieb Steen & Hamilton and Baker Botts acted for Russia in the original tribunal where the award was made against it.

Shearman as well as local law firms assisting it in the recognition and enforcement of the award, are now investigating whether W&C has a conflict of interest in representing Russia. The firm is known to have represented Yukos around the time of the oil giant’s collapse a decade ago, with W&C chairman Hugh Verrier one of the company’s advisers.

W&C Washington DC-based arbitration partner Carolyn Lamm is leading Russia’s defence in the US, with David Goldberg leading proceedings in London and Markus Burianski heading the defence in Germany. Russia has also instructed Brussels-based Albert Jan van den Berg of Hanotiau & van den Berg in a bid to have the award set aside at the seat of arbitration, The Hague.

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Shearman’s team in the US, led by veteran litigator Henry Weisburg and the firm’s deputy head of litigation Richard Schwed, already successfully petitioned district judge Amy Berman Jackson to recuse herself from hearing a request to enforce the Yukos award against Russia in Washington DC over ‘cumulative connections’ with Lamm, as the pair were mothers to children at the same school.

Shearman head of international arbitration, Paris-based Emmanuel Gaillard, who alongside public international law chief Yas Banifatemi is coordinating the enforcement after securing the $50bn award for the majority shareholders in Yukos Oil Company in July 2014, has instructed Stephenson Harwood to enforce the award in the English courts and Dutch firm De Brauw Blackstone Westbroek for proceedings in the Netherlands.

A spokesperson for Stephenson Harwood told Legal Business: ‘The issues with regards to the potential conflict of interest in relation to W&C are currently being investigated by the claimants.’

Stephenson Harwood’s head of commercial litigation, John Fordham, is leading proceedings to seize assets in the UK with support from litigator Ros Prince. Stephenson Harwood has instructed David Foxton QC and Paul McGrath QC of Essex Court Chambers as counsel.

W&C would not comment on the matter.

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tom.moore@legalease.co.uk