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Ukraine loses gas dispute to Russia; ordered to pay $2 billion to Gazprom

Contrary to Ukrainian claims Stockholm Arbitration Court finds in Gazprom’s favour in dispute about gas sales and prices

On Friday 21st December 2017 the Stockholm Arbitration Court made a ruling in the legal dispute between Ukraine’s state owned gas monopoly Naftogaz and Russia’s largely state owned gas monopoly Gazprom.

In the hours after the decision – which like all decisions of the Stockholm Arbitration Court – is not published, Naftogaz claimed victory in a short statement.  However over the course of the hours which followed Gazprom provided details of the decision which suggests that the truth is the diametric opposite.

Here is how the Financial Times reports the competing claims

Both Ukraine’s Naftogaz and Russia’s Gazprom both on Friday claimed victory as a Stockholm arbitration tribunal issued the final award ruling in the first of two cases in a three-year legal battle between the state-controlled energy companies, where total claims stand at some $80bn.

An emailed statement from the Ukrainian company was titled:

“Naftogaz wins the gas sales arbitration case against Gazprom on all issues in dispute.”

The Stockholm arbitration tribunal — in its final award ruling in a dispute over gas supplies from prior years — had, according to Naftogaz, struck down Gazprom’s claim to receive $56bn for gas contracted but not supplied through controversial “take-or-pay” clauses. They were included in a supply contract Ukraine signed in 2009 after Gazprom dented supplies to the EU by cutting all flow amid a price dispute— including transit through the country’s vast pipeline systems. In a tweet Ukraine’s foreign minister

Pavlo Klimkin wrote: “The victory of Naftogaz in the Stockholm arbitration: It’s not a knockout, but three knockdowns with obvious advantage.”

But later Gazprom countered that arbitors “acknowledged the main points of the contract were in effect and upheld the majority of Gazprom’s demands for payment for gas supplies”, worth over $2bn. A Naftogaz official responded that the company never refused to pay for gas supplied, but challenged price and conditions.

Given the tribunal does not make its decisions public, doubt loomed over which side was the ultimate winner. Anticipation also grew over the second and final tribunal award expected early next year over disputes both have concerning past gas transit obligations.

Friday’s final Stockholm arbitration ruling follows a preliminary decision from last May after which both sides were given time to settle monetary claims outside of the tribunal but failed to reach agreement.

Here is the full Naftogaz statement:

“Today, the Tribunal at the Arbitration Institute of the Stockholm Chamber of Commerce has completely rejected Gazprom take-or-pay claims to Naftogaz amounting to USD 56 billion for 2009-2017.

– Naftogaz succeeded at reducing future contract volume obligations by more than 10 times and made them relevant to its actual import needs.

– Price for gas off-taken by Naftogaz in 2Q 2014 reduced 27% from USD 485/tcm to USD 352/tcm. – Naftogaz saved USD 1.8 billion on gas purchased in 2014-2015 due to revision of the contract price.

– Destination clause and other discriminatory provisions were declared invalid to bring the contract in line with current European market standards.

– Naftogaz estimates the total positive financial effect of the arbitration over the lifetime of the supply contract at over USD 75 billion.

– Naftogaz claims up to USD 16 billion in transit contract arbitration against Gazprom; decision expected on 28 February 2018.”

Gazprom said that in a separate decision on May 31 of this year, the tribunal denied Naftogaz’s application to review prices from May 2011 to April 2014, ordered it to pay $14bn for gas supplies during that period, and said that the take-or-pay conditions applied for the duration of the contract. Gazprom claimed that Naftogaz would have to pay it $2.18bn plus interest of 0.03 per cent for every day the payments were late, and then pay for 5bn cm of gas annually starting next year.

When the different sides give opposite accounts of the same decision it obviously becomes difficult to say what the real decision actually is.  However Gazprom says that the court upheld (1) the main provisions of the contract; (2) the contract’s take-or-pay provisions, these being a particularly contentious issue in the contract; and (3) that Naftogaz has been ordered to pay Gazprom $2 billion, presumably immediately, with interest for every day the amount is unpaid.

By contrast the reduction in the gas price Naftogaz refers to from $485/tcm to $352 tcm which Naftogaz makes much of in its statement appears to apply only to gas supplied to Ukraine by Gazprom in the second quarter of 2014 and still sets the price of gas supplied to Ukraine by Gazprom higher than was demanded by Ukraine during this period.

The key point here is that Russia agreed to reduce the price of gas supplied to Ukraine by an agreement Russia’s President Putin reached with Ukraine’s President Yanukovich in December 2013.  After the Maidan coup the new Ukrainian government went back on the agreement causing the Russians to demand payment of the original price.  However over the course of 2014, as energy prices began first to slide and then crashed, and as it became clear that Ukraine was simply not paying for its gas, Russia again reduced the price of the gas Ukraine had to pay.

What seems to have happened is that the Stockholm Arbitration Court decided to smooth out the price of gas payable by Ukraine throughout 2014, which is the sort of thing arbitration tribunals are regularly known to do, whilst leaving the essentials of the contract unchanged.

If so then this is not a victory by Ukraine but a clearcut defeat, which Naftogaz and the Ukrainian government have tried to spin into a victory by citing the reduction in the gas price in the second quarter of 2014 and the reduction in future gas import volumes, neither of which were contentious issues.  By contrast it is clear that Ukraine and Naftogaz must pay the full contractual price and abide by the contract’s take-or-pay provisions for the whole of the period of the contract prior to the second quarter of 2014.

What this means in terms of hard cash is that Ukraine must now pay Russia a further $2 billion on top of the $3 billion it was recently ordered to pay by the High Court in London.  Just as it is holding back on paying the $3 billion it was ordered to pay by the High Court until the appeal process in London is finished, so it will try to hold off paying the $2 billion it has just been ordered to pay to Gazprom until the final decision of the Stockholm Arbitration Court (thus the brave talk of Naftogaz’s claims of “up to $16 billion transit contract arbitration against Gazprom”) but thereafter payment of the $2 billion will fall due.  I say this because the claim Gazprom owes Naftogaz “up to” $16 billion in transit fees looks like it has been plucked out of the air.

What this means is that over the course of 2018 Ukraine will have to pay Russia $5 billion ($3 billion awarded by the High Court in London and $2 billion awarded by the Stockholm Arbitration Court).  Since the $2 billion awarded by the Stockholm Arbitration Court is technically an arbitration award, Gazprom will need to convert it into a court Judgment before it can enforce it, but that is merely a formality.  At that point this debt will become not merely due but legally enforceable as well.

Ukraine recently borrowed $3 billion on the international financial markets at very high interest almost certainly in order to pay the $3 billion the High Court in London has ordered it to pay Russia. Whilst the $2 billion is technically a debt owed by Naftogaz not Ukraine and its non-payment would does not place Ukraine in a state of sovereign default, Gazprom is in a position to enforce the debt against Naftogaz’s assets (including gas it buys) in the European Economic Area.  It is difficult to see how Naftogaz and Ukraine can avoid payment of this debt.

Has Ukraine actually gained anything from its long running gas dispute with Russia?

Naftogaz brags that Ukraine has saved up to $75 billion because it is no longer buying gas from    Russia.  However this begs the question of whether the gas Ukraine is now importing from Europe really is significantly cheaper than the gas Ukraine was buying from Russia?   This is debatable and with energy prices rising it is likely to become even less likely over time.

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