Dutch Supreme Court criticises former justice for advising Yukos oligarchs
The Court criticised one of its former members, Mr Hammerstein, for acting improperly by writing a legal opinion at the request of the oligarchs whilst he was still a member of the Supreme Court in a case that was closely connected to a procedure in the Dutch court.
(The Hague, 30 June 2017): The International Centre for Legal Protection (ICLP), which was formed by the Russian Federation to defend the Yukos case, is pleased to note that the Dutch Supreme Court in The Hague has criticised the behaviour of one of its former members, Mr A. Hammerstein. In a ruling published today, the highest court in the Netherlands decided Mr Hammerstein acted improper by writing a legal opinion at the request of the Yukos oligarchs at the time that he was still a member of the Supreme Court in a case that was closely connected to a procedure in the Dutch court. The Russian Federation welcomes the ruling by the Supreme Court.
The Russian Federation filed the complaint against Mr Hammerstein early April 2016. The complaint concerned the opinion Mr Hammerstein prepared for a fee at the request of the Yukos oligarchs and which was filed by them in January 2016 during legal proceedings in Belgium in 2016. In this opinion Mr. Hammerstein discussed the chances of success of a legal action brought by the Russian Federation against the Yukos oligarchs in the Netherlands. At the time he prepared the opinion he was still a member of the highest court of justice in the Netherlands.
In the Dutch case the Russian Federation sought the setting aside of a USD 50 billion arbitral award the Russian Federation was ordered to pay the Yukos oligarchs. In Mr. Hammerstein’s view, the Russian Federation’s suit stood little chance of success. On 20 April 2016 the District Court in The Hague ruled in favour of the Russian Federation and set aside the arbitral award.
Mr. Hammerstein refused to withdraw his opinion although the Hague court already proved him wrong. The Dutch Supreme Court confirmed in today’s ruling that incumbent justices are not allowed to communicate with litigants or their lawyers on matters that are still before the court, nor express an opinion thereon, other than in private. These codes of conduct are meant to minimise the risk of weakening the independence and standing of the judiciary.
Mr. Hammerstein was well aware of this. At the hearing of the complaint he admitted that for this very reason he had previously refused to prepare a similar opinion. It is peculiar that he felt at liberty to do so after he had tendered his resignation, given that he stayed on as a member of the Dutch Supreme Court for another four months. Nor was Mr. Hammerstein entitled, in the Russian Federation’s opinion, to present himself as an ‘impartial and independent expert’, since he wrote his opinion at the request of only one of the parties, whose instructions he followed and who paid him for his services. Moreover, at his client’s request he did not bother to support his opinion in any way, and without any substantiation, no opinion may be considered ‘expert’.