On 13 June 2019, the NBU provided the court of first instance of the Republic and Canton of Geneva (Switzerland) with its arguments concerning a petition by Mr Kolomoisky, a former shareholder of PrivatBank, for a stay of proceedings.
On 21 May 2019, Mr Kolomoisky submitted to the Swiss court the petition for a stay of the proceedings initiated against him by the NBU. The petition was based on the operative part of the court decision announced by the Pechersk District Court of Kyiv on 20 April 2019. Previously the Pechersk court has satisfied the claims of Mr Kolomoisky, thus terminating seven surety agreements. Five of these surety agreements were referred to in the lawsuit filed by the NBU against Mr Kolomoisky in Switzerland. The above surety agreements were used to secure the refinancing loans provided by the NBU to PrivatBank before its nationalization. It should be noted that the decision by the Pechersk District Court has not yet come into effect.
Trying to substantiate his petition, the former shareholder indicated that, in his opinion, the decision of the Pechersk District Court was closely related to the proceedings in Switzerland and exerted a decisive influence on the judgement. Hence Mr Kolomoisky believes that these proceedings should be suspended before decisions are made on any appeals related to the mentioned court decision in Ukraine.
On 13 June 2019, reacting to the petition by Mr Kolomoisky, the NBU provided the Swiss court with its arguments.
The NBU response states that, contrary to the position of Mr Kolomoisky, the judgement by the Pechersk District Court of Kyiv has no bearing on the proceedings in Switzerland. In addition, according to the Swiss laws, there are no legal grounds for supporting the position on a stay of the proceedings in Switzerland.
Backing its first argument with an expert opinion on relevant aspects of Ukrainian laws, the NBU informs the Swiss court that even if the judgement by the Pechersk District Court on termination of the surety agreements comes into effect (which is not guaranteed), it can not cancel the liabilities of Mr Kolomoisky commenced before the termination of these agreements (the principle of estopppel). The NBU’s claims under the lawsuit in the Swiss court are related to his obligations that have already arisen under the relevant surety agreements. In view of this, the judgement by the Pechersk District Court shall not carry any legal implications for the proceedings in Switzerland. At the same time, Mr Kolomoisky, in his petition for the stay of the proceedings, provided no clear explanations as to the legal ground of his statement that the judgement by the Pechersk District Court infleunces the proceedings in the Swiss court, and provided no evidence to back his petition.
As regards the second argument, the NBU states that, in any case, the proceedings in the Swiss court cannot be stayed at its initial stage, as Mr Kolomoisky provided no explanations on the merits of the dispute in response to the lawsuit by the NBU, filed against him as long ago as 18 December 2018. In view of this, the Swiss court cannot evaluate the interests of the parties to make the decision on the petition for a stay of the proceedings. The NBU also believes that the petition for a stay of the proceedings fails to meet other criteria on the ground of which they can be stayed.
The NBU notes that, despite the judgement by the Pechersk District Court was made about a month ago, namely, on 20 April 2019, Judge Viacheslav Pidpalyi has not yet drawn up a full text of the judgement. Pursuant to the laws of Ukraine, the full text of a judgement shall be produced within 10 days from the date of the proceedings completion. The NBU has already submitted to the court office three petitions requesting the full text of the judgement, but received no answer. In view of the above, on 12 June 2019, a disciplinary complaint against the judge was submitted to the Supreme Council of Justice.
After receiving the full text of the judgement, the NBU will have 30 days to appeal it, and the NBU is determined to do this. In light of this, the judgement by the Pechersk District Court has not come into effect yet. Taking the above into account, the NBU believes that a stay of the proceedings in the Swiss court will also violate the principle of effective trail and infringe the right of the NBU to obtain the text of the judgement within a reasonable time.
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In 2015, Mr Kolomoisky, one of the owners of PrivatBank at that time, entered into personal surety agreements with the NBU, guranteeing the repayment of refinancing loans PrivatBank received in 2008–2014. In fact, he assumed personal obligations to repay PrivatBank's debts to the NBU, which at present equals UAH 9.2 billion. Mr Kolomoisky has not fulfilled any of these obligations to the NBU.
In 2018, the NBU filed four lawsuits to the Ukrainian courts and one lawsuit to the court of first instance of the Republic and Canton of Geneva (Switzerland) against Mr Kolomoisky with regard to repayment of PrivatBank's debts. On 19 March 2019, the Supreme Court allowed cassation appeals of the NBU and compelled the Commercial Court in Dnipropetrovsk oblast to consider the above appeals. The NBU continues taking legal steps with regard to repayment of the mentioned funds by Mr Kolomoisky.
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.