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The Prime Minister's SuitWhat happens when a billionaire politician files an arbitration against his country?
What happens when a billionaire politician files an arbitration against his country?
Focus Europe2013-01-01 12:00:00 AM
When Georgias's voters went to the polls in October, billionaire Boris Ivanishvili was effectively elected as that nation's next prime minister. Just three weeks earlier, he had sued his country for $186 million.
In September, Ivanishvili, who had received French citizenship in 2010, filed an arbitration with the International Centre for Settlement of Investment Disputes under the Franco-Georgian investment treaty, targeting the regime of President Mikheil Saakashvili. The notice of disputewritten by David Herlihy, Karyl Nairn, and Gregory Craig of Skadden, Arps, Slate, Meagher & Flomaccuses Saakashvili's government of a shamelessly inventive campaign of political intimidation.
Ivanishvili was stripped of Georgian citizenship within days of entering politics in October 2011. A week later, armed officers with video cameras staged a made-for-TV-news raid to inaugurate a money laundering investigation of Ivanishvili's Cartu Bank, an inquiry that according to the claimant was never supported or explained.
The next month, Ivanishvili claims, the state used a new tax law to systematically defraud his bank (and only his bank). The government allegedly used sham tax liens to seize the assets securing a Cartu loan, and then sold the assets back to the original owner unencumbered. In the few months this law was on the books, Georgia allegedly stripped Cartu Bank of its interest in nearly 200 assets.
Government of Georgia counsel Louise Roman Bernstein of Dechert did not respond to an email inviting comment. Georgia's defenses cannot therefore be assessed.
It's been a long time since Saakashvili was a source of pride for Columbia Law School, where he obtained his LL.M. Among other things, his regime stands accused of entrapping and imprisoning for a year another Skadden client, Rony Fuchs, who made the mistake of entering Georgia after winning his ICSID case against that nation. Of greater import, secret videos that surfaced before the 2012 election appear to show state tortureand helped seal Saakashvili's downfall.
If it's any comfort to Columbia, Saakashvili lacks the ruthlessness to make his alleged Putin impersonations effective. Persecuting a billionaire as he enters politics doesn't work if you let him roam free, and must limit your expropriation to mere millions. Ivanishvili keeps the bulk of his $6.4 billion fortune safely out of Georgia's reach in the Russian stock market, with the notable exception of a Picasso that he picked up for $95 million. Its potential loss will probably not deter him from remaining in politics.
As this magazine went to press in late November, Ivanishvili had not withdrawn his action. If he wishes to maintain it, should the arbitrators let him? Why not? The arbitrators should demand a firewall, to ensure that the political arms of the state cannot control the defense; and the prime minister should place his claim in the hands of a blind trustee. But if the arbitrators find that they have the power to hear the claim, then their work is not done until they address the alleged injustice.
Even if the prime minister's suit is withdrawn, it will be remembered as a legal curiosity that sorely tested the principles of those who root for the underdog. Can a nation's richest and most powerful man be a victim? We live in an age when wealthy investors (individual or corporate) enjoy special advantages in both law and politics. Still, nothing trumps the power of the state. When an oligarch is persecuted, I'm on the side of the oligarch. If a persecuted oligarch has temporarily taken the reins of state, then I'm still for checking the permanent power of the state. May Ivanishvili fulfill his promise more fully than Saakashviliand may his case protect dissidents of more modest means.