In this month’s Georgian vote, the billionaire Boris Ivanishvili was effectively elected as that nation’s next prime minister. The apparently peaceful transition from Rose revolutionary Mikheil Saakashvili might be likened to the historic transfer of power after the U.S. election of 1800. Except that Thomas Jefferson didn’t sue his country for $186 million three weeks before he was elected.
Last month Ivanishvili, a French citizen, filed a claim with the International Centre for Settlement of Investment Disputes (ICSID) under the Franco-Georgian investment treaty. The notice of dispute — written by lawyers at Skadden, Arps, Slate, Meagher & Flom — accuses the Saakashvili regime 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, which according to the claimant was never backed up or explained. Then Georgia really got creative. The next month, it gave tax liens priority over all other security interests. The prime minister-in-waiting claims that the state used this new law to systematically defraud his bank (and only his bank) in collusion with opportunistic customers. 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, whether factual or legal, cannot therefore be assessed.
What’s certain is that Saakashvili no longer smells like a rose. His regime stands accused of entrapping another Skadden client, who made the mistake of entering Georgia after winning his ICSID case. Of greater import, his downfall was sealed by secret videos that surfaced before the election, and appear to show state torture.
Legally, the next question is whether a head of state’s claim against that state can and should be maintained. I say: Why not? For Ivanishvili, maintaining the claim would provide a form of political insurance. He’ll be stuck in an awkward power-sharing arrangement with Saakashvili, who remains president, for at least a year, and the average length of an ICSID case surpasses the two years that Ivanishvili predicts he’ll need to save Georgia, before he retires like Cincinnatus to his dacha. The arbitrators should demand a firewall, to ensure that the political arms of the state cannot control the actions of the respondent, and ideally the prime minister should also place his claim in the hands of a blind trustee. But if the arbitrators have jurisdiction, then their work is not done until the alleged injustice is addressed.
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 Saakashvili — and may his case protect dissidents of more modest means.
Michael D. Goldhaber is senior international correspondent for ALM and The American Lawyer. E-mail: firstname.lastname@example.org.