Dutch Court Denies Exequatur of Ukrainian Judgment against Gazprom under the Hague Judgments Convention
The author of this post is Pierfrancesco Rossi, tenured researcher of International Law at the University of Teramo.
On 5 June 2025, the Hague Court of Appeal declined to grant exequatur to a Ukrainian judgment holding Russian energy giant Gazprom jointly and severally liable for material damages incurred during Russia’s invasion of the country.
The Court relied on the 2019 Hague Judgments Convention, which was acceded to by the EU and ratified by Ukraine on 29 August 2022 (see Cuniberti in this blog) and entered into force for both parties, including all EU member States except Denmark, on 1 September 2023.
The ruling hinged on Article 2(5) Hague Convention, which leaves unaffected “privileges and immunities of States… in respect of themselves and of their property”. It held that, since Russia enjoyed immunity under international law for acts carried out in the exercise of sovereign authority, Dutch courts lacked jurisdiction to entertain exequatur proceedings.
Background
Syu Zhnyva, a Ukrainian agricultural company, operated grain silos in the Zaporizhzhia and Kherson regions. During Russia’s full-scale invasion and subsequent military occupation of those territories, the harvest stored in the silos was spoiled or looted – allegedly, by Russian troops. On 5 December 2022, Syu Zhnyva filed tort proceedings against the Russian Federation before the Commercial Court of Zaporizhzhia, seeking monetary compensation for the damages incurred. Russia failed to appear before the court.
Proceedings in Ukraine against Russia and Gazprom
On 2 February 2023, the Zaporizhzhia court upheld the plaintiff’s claims in full and awarded over 3.8 billion hryvnia in damages plus court expenses, amounting to approximately €85 million in total (the text of the judgment is here). While the court acknowledged that, in principle, foreign States enjoy immunity in claims relating to sovereign activities, it nevertheless held that a State forfeits immunity when it commits a war of aggression. This hardly came as a surprise. In fact, the court followed precedents set by the Supreme Court of Ukraine, which held that Russia’s immunity should be disregarded in individual claims relating to damages arising during the war (Third Civil Chamber, Judgment of 14 April 2022, on which see Badanova; see also Grand Chamber, Judgment of 12 May 2022, para. 49).
In a subsequent claim filed on 5 June 2024, Syu Zhnyva asked the same court to hold three companies of the Gazprom group jointly and severally liable with the Russian Federation for the payment of the damages. The plaintiff argued that Gazprom functioned as a mere alter ego of Russia, without alleging any direct involvement by Gazprom in the damage to its silos. In a judgment delivered on 27 August 2024 (the text is here), the court once again ruled fully in favor of the plaintiff and held Gazprom jointly and severally liable for the payment of the sums awarded by the 2 February 2023 judgment.
The Hague Court of Appeal Judgment
Syu Zhnyva asked the Hague Court of Appeal to recognize the judgment rendered against Gazprom. (No such request was made concerning the 2023 judgment against Russia: an important point to bear in mind). The application was based on Article 985 of the Dutch Code of Civil Procedure in conjunction with the 2019 Hague Judgments Convention.
The court first addressed the Convention’s applicability ratione temporis. Under Article 16, the Convention must be in force between the State of origin and the requested State “at the time the proceedings were instituted in the State of origin”. The court determined the operative date to be 5 June 2024, when proceedings against Gazprom were commenced, not 5 December 2022, when the plaintiff first sued Russia. This was a consequential finding: only the later date postdated the Convention’s entry into force for the EU and Ukraine. The court ruled that the close connection between the two judgments was immaterial, since each could in principle be recognized and enforced independently, and rejected Gazprom’s argument that the earlier date should be considered instead.
The Convention’s applicability ratione materiae, by contrast, was not definitively resolved. Gazprom invoked the Article 2(1)(n) carveout, whereby the Convention does not apply to “activities of armed forces…”. The court left the issue undecided, proceeding under the provisional assumption that the Ukrainian judgment did fall within the material scope of the Convention.
Finally, recalling that the Hague Convention does not affect State immunity (Article 2(5)), the court declined jurisdiction on the grounds that the proceedings concerned sovereign acts of a State (acta iure imperii). The immunity extended to Gazprom since it had been sued qua Russia’s alter ego. The court briefly considered whether immunity could be denied under the so-called “tort exception” enshrined in Article 12 of the 2004 UN Convention on State Immunity (UNCSI). The exception lifts immunity for “pecuniary compensation for death or injury to the person, or damage to or loss of tangible property… if the act or omission occurred in whole or in part in the territory of [the forum] State…”. The court doubted that Article 12 reflects customary international law (a key point, given that the UNCSI has not yet entered into force and its provisions are only relevant to the extent they codify custom). In any event, it held the tort exception inapplicable because it only applies before the courts of the State where the tort occurred.
Assessment
The Hague Court of Appeal was correct in denying exequatur, though not always for the most convincing reasons.
Applicability of the 2019 Hague Judgments Convention
For one thing, the applicability of the 2019 Hague Convention appears doubtful. The judgments against Russia and Gazprom were deemed to belong to different proceedings for the purposes of Article 16, even though they addressed the same subject matter, were issued by the same court and judge, and were docketed under the same case number (908/1100/22). One may wonder if a different conclusion would have been more appropriate. Admittedly, the Convention provides no guidance on how to determine the time of institution of proceedings, nor does it define the terms used in that provision (Brand, Coffee, Herrup, p. 178). Still, as this case shows, a downside of the court’s approach is that a post-judgment motion to extend liability to third parties could be used strategically to bring within the Convention’s temporal scope rulings that would otherwise fall outside. Permitting this tactic would disadvantage plaintiffs in jurisdictions where liability is extended through amendment of the original judgment or in the enforcement phase.
As to applicability ratione materiae, the case concerned activities of armed forces, which Article 2(1)(n) removes from the Convention’s scope. It is unclear why this point was left undecided. The court likely assumed that it was subsumed under the question of State immunity, which it addressed next, but in fact it was logically antecedent. Like any State organ, armed forces can act iure imperii or iure gestionis (see Lord Denning in I Congreso del Partido). State immunity applies only in the former case, while the Convention excludes both (Brand, Coffee, Herrup, p. 80).
State Immunity
Similarly, the outcome on State immunity was correct, but arguably not for the reasons given by the Court of Appeal. The court was right to recall that, in Jurisdictional Immunities, the ICJ held that exequatur proceedings involve the exercise of jurisdiction over foreign States and are therefore subject to State immunity. However, its finding that the tort exception could only potentially lift immunity before Ukrainian courts is at variance with Jurisdictional Immunities. There, the ICJ stated that “the Italian courts would have been obliged to grant immunity to Germany if they had been seised of the merits of a case identical to that which was the subject of the decisions of the Greek courts which it was sought to declare enforceable” (para. 131). Substituting the Netherlands, Russia and Ukraine into this reasoning, the court should have limited itself to verifying that State immunity had been respected in the State of origin.
The true reason why the tort exception did not apply is that, according to the ICJ (paras. 62-79), it does not cover armed activities (not everyone agrees, though: see Judge Gaja’s dissent). Also, the court did not engage with the Ukrainian courts’ argument that a State forfeits immunity when it commits serious breaches of international law. While this view directly contradicts Jurisdictional Immunities, Ukraine is not the first to deny immunity in the context of wartime reparations claims (in Italy, Constitutional Court Judgment No. 238/2014held Jurisdictional Immunities unconstitutional; and see similar outlier decisions in South Korea and Brazil). Whether this should be the case is a much debated issue in contemporary international law (see Franzina in this blog).
Piercing Gazprom’s Corporate Veil
Another interesting aspect of the judgment is its endorsement of piercing the corporate veil between Russia and Gazprom. The “alter ego” doctrine has frequently been invoked by Ukrainian parties in the hope of attaching the assets of Russian SOEs abroad (Alyoshin et al.).
In international law, the relationship between States and SOEs is most commonly examined in terms of attributing corporate acts to the State (see the ARSIWA) or determining whether corporate acts can attract State immunity (see Article 2(1)(b)(iii) UNCSI). SOE liability for wrongful state acts based solely on extensive control, without direct involvement in those acts, is less explored (Miles). While lifting the corporate veil in these circumstances is exceptional, it is not unheard of (see, in the US, Bancec and Crystallex). However, this issue has so far only arisen at the enforcement phase. This makes sense. State immunity from enforcement (which is distinct from immunity from adjudication: Jurisdictional Immunities, para. 113) turns on whether the property is in use for governmental purposes. Once an SOE is held liable for its State’s debts, its assets are typically fair game.
But, as this case shows, this strategy has inherent limitations at the adjudication stage, including in exequatur proceedings. Here the “alter ego” corporation will benefit from Russia’s immunity for acta iure imperii, plain and simple, no matter how commercial its activities or assets might seem. Invoking this doctrine in the context of enforcement proceedings against Russia is not likely to change the outcome. As the ICJ made clear in Jurisdictional Immunities (para. 124), enforcing a judgment issued in breach of State immunity from adjudication is a wrongful act in itself, even where the attached assets are earmarked for private purposes.
The only avenue that plaintiffs might reasonably explore leads to Italy. Following the controversial Judgment No. 238/2014, Italian courts have granted exequatur to foreign judgments that, in apparent violation of State immunity, held states liable for grave breaches of fundamental human rights (Stergiopoulos v. Iran; see Pavoni and Amoroso). Whether this route should remain available is, of course, a different matter (for further discussion, see here).