ESQUIRES partner, attorney Opanas Karlin commented for the Mind. UA what information can be considered public, as well as how the current legislation interprets the concept of “public information manager”

ESQUIRES partner, attorney Opanas Karlin commented for the Mind. UA what information can be considered public, as well as how the current legislation interprets the concept of “public information manager” 150 150 Esquires

Naftogaz Group refused to provide a copy of the decision of the Arbitration Institute of the Stockholm Chamber of Commerce dated on December 22, 2017 as part of an information request from the media, in order not to give to Russian Gazprom a reason not to comply with it.

The specified reasoning is contained in the response of “Naftogaz of Ukraine” to the information request of “Ukrainian News”, the agency said.

So, the response says that the text of the decision of the Stockholm court contains detailed information about the gas purchase and sale contract with Gazprom and additional agreements. At the same time, the contract itself contains a rule on its confidentiality.

“In the world practice of international commercial arbitration, there have been cases where the party of the arbitration proceedings against which the decision was made tried to appeal or complicate the execution of the arbitrator’s decision on the grounds that the other party supposedly maliciously disclosed information in connection with the arbitration proceedings, that caused damage to the party against which the decision was made. Therefore, it is impossible to exclude the possibility of usage of a similar strategy in the future by Gazprom,” the response says.

At the same time, it is specified that in order to avoid complications with the implementation of the decision, the Ukrainian side refrains from sharing any documents that are contained in the materials of the relevant arbitration proceedings.
In addition, the agency sent relevant requests to the presidential administration, the Cabinet of Ministers of Ukraine and the relevant ministry, but state authorities said they did not have copies of the court decision.

As explained Partner of Mind партнер ESQUIRES, Opanas Karlin, attorney to Mind, Naftogaz Group, as a legal entity that is financed from the state budget (upon condition of such funding), is the information manager exclusively on the use of budget funds, and as a business entity that holds a dominant position on market – information manager solely on the conditions of supply of goods, services and prices.
“The requested information, as follows from the publication, also related to the commercial conditions of the economic contracts of PJSC Naftogaz of Ukraine, that means, that information with limited access that is not public, which excludes the obligation to provide it. This clearly follows from the Law of Ukraine “On Access to Public Information”. Since such information was not stated in the decision of the Ukrainian court, the norms of the Law of Ukraine “On access to court decisions” cannot be applied to it, ”the lawyer explained.
At the same time, according to the law “On access to court decisions”, all court decisions are open and must be made public in electronic form no later than the next day after their preparation and signing. Judicial decisions may also be published in printed media in compliance with the requirements of this law.
If the trial took place in a closed court session, the court decision is published with the exception of information that, by the decision of the court in regard of considering the case in a closed court session, should be protected from disclosure.
The term “classified” in the publication is not used in the legal sense, since it is only a refusal to provide information on request.
As Mind wrote, the arbitration proceedings of the dispute between Naftogaz Ukrain and Gazprom under a gas purchase and sale contract resulted in obligation of Naftogaz to pay $ 1.5-2 billion to Gazprom.

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