War reparations: can the alter ego doctrine help hold Russia accountable through its companies?

«War reparations: can the alter ego doctrine help hold Russia accountable through its companies?» This was the topic of the ninth episode of the NSSU podcast.

The prospects for war compensation and international practice were discussed by: Oleh Malinevskyi, managing partner at EQUITY; host Olena Fonova, and judge-speaker of the Commercial Court of Luhansk Region; as well as judge of the Supreme Court in the Commercial Court of Cassation, Doctor of Law Olena Kibenko. 

The episode raised important issues, the timecodes for which are provided below:

• Ukrainian courts' practice of applying the alter ego doctrine in cases against Russian companies (3:31).

• Problems with the enforcement of decisions outside Ukraine (10:30).

• Why the Hague court's decision in the case against Gazprom became a landmark for international practice (10:42).

• The balance between corporate liability and sovereign immunity (13:10). 

• Possible strategies for improving the effectiveness of lawsuits in European jurisdictions (21:45).  

In spring 2022, the EQUITYteam decided against using the alter ego concept to establish grounds for civil lawsuits against companies involved in aggression. This approach carries the same risks as direct lawsuits against the state related to sovereign immunity. Instead, we focused on the concept of complicity in tort, which we are developing in both practice and theory. However, we have not completely rejected the alter ego doctrine, as it may have certain prospects when enforcing decisions against the Russian Federation. In particular, it could broaden the scope of entities that can be recognized as the «alter ego» of the aggressor state.

The discussion revealed that achieving fair compensation for war crimes will be challenging, but each step in developing new approaches brings us closer to our goal.