Kyiv Commercial Court, on 31 May 2019, will hear a case brought by Ihor Kolomoiskyi against the National Bank of Ukraine and PrivatBank, seeking the revocation of five refinance loan agreements and five guarantee agreements under which Kolomoiskyi undertook to act as a guarantor in relation to the said refinance loan agreements.
The NBU would like to draw attention to the fact that this lawsuit and related claims are an attempt by Kolomoiskyi to suspend the lawsuits filed by the NBU, and to make it impossible for Swiss courts to hear them in future. This shows that Kolomoiskyi is unwilling to discharge the obligations he assumed under the relevant guarantee agreements.
In December 2018, the NBU filed a lawsuit at a court of first instance of the Republic and Canton of Geneva, where Kolomoiskyi is a resident, in order to recover the money Kolomoiskyi owes the NBU as a financial guarantee provider.
In 2016, Kolomoiskyi, who at that time was a qualifying co-holder of PrivatBank, entered into guarantee agreements with the NBU, and of his own accord undertook to discharge PrivatBank’s obligations to repay to the NBU the refinance loans PrivatBank received in 2008 – 2014. Both de facto and de jure Kolomoiskyi remains in debt to the NBU, as he owes UAH 9.2 billion in loans that were granted to PrivatBank.
However, instead of discharging his obligations in good faith, the former PrivatBank shareholder Kolomoiskyi is taking legal action with a view to blocking the hearing of the lawsuits the NBU filed at Swiss and Ukrainian courts in order to recover the money owed to it.
Similar claims were satisfied by Kyiv Pechersk District Court on 20 April 2019, despite the legal precedent established by the Supreme Court being unambiguously contrary to the decision taken.
The NBU would like to draw attention to the fact that if the loan and guarantee agreements are declared invalid in breach of the estoppel principle (which is widely used by the Supreme Court), Kyiv Commercial Court will effectively allow Kolomoiskyi to evade the responsibility he assumed under the guarantee agreements.
In addition, this will make it more difficult both for the NBU and the state to defend their interests in legal proceedings that were, or may be, initiated in other jurisdictions to recover the losses PrivatBank’s former owners caused to the state.
For reference: the Merriam Webster dictionary defines ‘estoppel’ as a bar to the use of contradictory words or acts in asserting a claim or right against another. In international law, estoppel prevents a person from adopting a new position that contradicts a previous position in order to declare an agreement invalid, to terminate an agreement, withdraw from an agreement, or to suspend an agreement. This term came from English law, where it means a doctrine that expressly prevents a party from taking a position that is contrary to a position the party took in an earlier legal proceeding.