Well dear readers, Ukraine’s biggest foreign investor seem likely to go head to head with Ukraine over a contractual dispute and seem to be trying to steal the public opinion march……
The question here is whether there is a genuine case. A quick search would show a number of directors past and present of Mittal are no strangers to the inside of a courtroom.
As they are claiming “force majeure” as a reason for not keeping up with their investment promises as part of the deal when they bought the mill, much will depend on what is constituted in the contract of sale as the definition of “force majeure”.
Generally these are listed as things like international sanctions, war, marshall law or acts of god such as floods, earthquakes tsunamies…..but I have never seen a force majeure claus which stated “global financial crisis or stagnant capital, inability to get lines of credit or global drop in demand” as an accepted reason for dropping out of contractual obligations at this level of business or purchase. (That may have changed given events in over the past 2 years but probably would not have been an inclusion at the time of this particular aquisition.)
I would have my doubts that any subsquent changes in 2009 with those involved in the Ukrainian government happened without “adminstrative fees” to get their agreement to any changes……quietly.
When a law is written, it should be written in a way that cannot forsee future events over any one particular group of people (less it be arbituary or persecutionary), so if there is a case to answer, does it serve to quietly make it disappear for the “greater good” or a “national image” or does it serve to obey the letter of the law for Ukraine in the long run?
It is a difficult position for Ukraine to make and not really one that should be made politically to be honest, if we are to encourage the impartial rule of law. That said, every nation is guilty of political interference (or attempts there to do) in the rule of law when the national image may take a battering……the UK with BP, BAE Systems et al, being prime examples.
Of course, I accept there will undoubtedly be dark forces behind the investigation, but does that necessarily mean there should not be an investigation if an agreement has been broken?
What is definitely wrong, is that Ukraine seems to be chosing to ignore where any case should be heard. If the contract states an ICC then it should be an ICC……not Kyiv. If there is to be any political pressure put on this case, that is where the pressure should be, directing it to the agreed courts