Free Affidavit - District Court of Delaware - Delaware

----------- --- ---- ------ ---- --------- ---- --- ------- --- --- ---- ------ ---- ---

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
---- ---------------- ------ -x

DAVIS INTERNATIONAL , LLC , HOLDEX LLC , FOSTON MANAGEMENT , LTD , and OMNI TRUSTHOUSE , LTD
Plaintiffs
Case No. 04- 1482- GMS

NEW START GROUP CORP. , VENITOM CORP. , PAN-AMERICAN CORP. , MDM BANK, URAL- GORNO METALURAGICAL COMPANY , EVRAZ HOLDING , MIKHAIL CHERNOI , OLEG DERIP ASKA , ARNOLD KISLIN , MIKHAIL NEKRICH , and ISKANDER MAKMUDOV
Defendants.
------------- ------- x

Declaration of Professor Sergei Nikolaevich Lebedev

, Sergei Nikolaevich Lebedev , of Staroalekseevskaya st. ,
declare:

16 app. 49 ,

Moscow, 129626 , Russia

Personal details

I am a citizen of the Russian Federation.

I have the following qualifications and experience: I graduated from the Law School of the

Institute of Foreign Trade in Moscow in 1957.

In 1961/62 ,

I studied at the University of

Michigan School of Law. I

received the degree of Candidate of Legal Sciences (ph.D.

equivalent) in 1963 at the Moscow Institute for International Relations (" MGIMO"), where

I currently work as a Professor of Law. In 1985 , I received the degree of Law Professor.
1994 , I was awarded the title of the "Distinguished Jurist of the Russian Federation.

For thirty years , until December of last year , I was the Head of the Private International and
Civil Law Department at the Law School of MGIMO. In Russia , as in the United States , the

(OOO186sq

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 2 of 33

subject matter of civil law encompasses , inter alia , the areas of contracts , delicts (torts), and
more generally, remedies for violation of civil- law rights , including economic harm. Among
other things , I have

translated many foreign laws

into Russian ,

including the

Uniform

Commercial Code.

I have taught these subjects for many years as part of courses on private

international law.

I have also been qualified and served as an " arbitrazh juror" in court proceedings on civil
disputes in Russia.

In the Russian commercial courts

, known as "Arbitrazh

Courts

(described below), each party to the dispute may nominate one arbitrazh juror , who serves

alongside the presiding judge. These jurors perform a function more akin to a judge in a

bench trial in the United States

than to that of an

American juror. Indeed , the procedural

rules for the Arbitrazh Courts provide that the two arbitrazh jurors have essentially the same
powers and duties as the presiding judge.

(See The Arbitrazh Procedural Code

adopted in 2002

APC"), Article 19). Therefore ,

like the presiding judge , the jurors are entitled to ask

questions of the parties and witnesses , examine presented evidence ,
reached unanimously or by two out of three majority of the jurors and the judge.

and the verdict is
(See

APC

Article 20. ) I have acted in the capacity of

arbitrazh juror in more than 10 civil commercial

cases.

I have been a member of the President's Council for Development of Justice since 1996.
This council is comprised of members of the various segments of the legal community in
Russia , including members of the judiciary, academicians and practicing attorneys. It
is

charged with advising with respect to the functioning and reformation of the courts

improvement of procedural rules and commenting upon draft legislation relating to the
judiciary.

(OOO186sq

- 2-

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 3 of 33

I have also acted as an arbitrator in over 600 international arbitration cases in Russia and

abroad , including Paris , Stockholm , London , I(iev , Beijing, Geneva , and Warsaw. Since
1972 , I have been the President of the Maritime Arbitration Commission , as well as a

member of the Presidium and an arbitrator of the International Commercial Arbitration

Court of the Chamber of Commerce and Industry of the Russian Federation , Moscow. I
serve as an expert for many international organizations including UNCITRAL , UN
Compensation Commission , International Council for Commercial Arbitration , and

participated in a number of diplomatic conferences for the adoption of conventions
including international sale of goods , sea carriage , arbitration. I am one of two Vice

Presidents in two Russian law associations: the Association of International Law and the

Association of Maritime Law. I have authored several books and more than 150 other
publications on the legal issues of international commerce and arbitration. (A concise list of

these publications is attached hereto as Exhibit A.

In connection with my work in the fields of International and Civil Law, I have -- for the
last 40 years -- monitored and reviewed the decisions of Russian courts concerning disputes

involving foreign litigants. For the most part ,
Russian party and one or more foreign parties.

of course ,

such cases involve at least one

II.

Russian Law Issues Relevant to the Present Case
I have reviewed the Complaint ,

which plaintiffs Davis International , LLC , Holdex , LLC
referred to as " Plaintiffs

Foston Management , LTD , Omni Trusthouse Ltd. (hereinafter

filed against the defendants New Start Group Corp. , Venit om Corp. , Pan-American Corp.
MDM- Bank ,
Evraz Holding, Mikhail Chernoi , Oleg Deripaska ,

Arnold I(islin ,

Mikhail

Nekrich and Iskander Makhmudov to this court (hereinafter

referred to as " Defendants

(OOO186sq

-3-

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 4 of 33

Also I was provided with several other documents in connection with forming my opinion.
(A list of these documents is attached hereto as Exhibit B.)

I understand from the Complaint
alleging conversion of their

that Plaintiffs assert the following claims:

(1) claims

shares in Kachkanarsky GOK

(hereinafter referred to as

GOK")

by Defendants ' acts of fraud ,

bribery, and extortion , including their claims for

equitable relief; and (2) claims alleging the violations by Defendants of the US RICO Act

including, among other things , acts of extortion , fraud and bribery.

10.

On behalf

of Defendants , I have been asked to provide an expert

OpllllOn addressing

whether courts of the Russian Federation (sometimes referred to herein as " RF") would be

an adequate alternate forum for examination of Plaintiffs ' claims , in particular:
\V'hether Russian law provides adequate remedies for the types of claims asserted by

Plaintiffs?

Whether Russian procedural law contains adequate provisions , regulating matters of
court procedure and collecting of evidence?

Whether the Russian judiciary is independent and can be expected to decide cases
fairly based on the facts and the law?

Whether Russia has a significant interest in having this dispute resolved by Russian
courts?

11.

I have read the Declarations of Professor Igor Petrukhin submitted in connection with the
lawsuit that Plaintiffs filed in the US Federal Court for the Southern District of New York

against many of the same Defendants , titled Base Metal Trading v. Russian Aluminum.

opinion does not differ in substance from Prof. Petrukhin' s opinion with regard to the
subjects he covered.

(00018651)

- 4-

...

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 5 of 33

III.

Russian Law
Plaintiffs

Provides Adequate Remedies for

The

Types of Claims Asserted By

Brief Description of Russian Court System
12.

The judicial system of the Russian Federation is made up of several types of courts: these are

. the Constitutional Court , Courts of General Jurisdiction (dealing with both civil and criminal
matters), Arbitrazh"

courts , justices of the peace , and military tribunals.

13.

If Plaintiffs

were to bring claims

in Russia for the types of

harm they allege

in the

Complaint , they, depending on the nature of particular claim and persons involved , may

choose to pursue those claims

in Courts of General Jurisdiction (in civil or in

criminal

proceedings , if such were initiated) or Arbitrazh Courts. The matter of civil proceedings in

Courts of General Jurisdiction is regulated by the Civil Procedural Code (hereinafter " CPC"

or " CPC RF"),

the proceedings in the Arbitrazh Courts are regulated by the Arbitrazh

Procedural Code (hereinafter "APC" or "APC RF"), and criminal proceedings in Russia are

governed by the Criminal Procedural Code of the Russian Federation (hereinafter " CrC" or
CrC RF").
I will briefly outline

the types of disputes that fall within the jurisdiction of the

Courts of General Jurisdiction and the Arbitrazh Courts.

14.

Article 22.

1 of the CPC provides that the Courts of General Jurisdiction shall consider and

resolve:

contentious cases with the participation oj citizens

and organizations, oj state power bodies and oj local

se!fgovernment bodies on the protection oj the violated or the disputed rights, freedoms and lmiful interests, in

the disputes arisingfrom civi~fami!y, labour, housing, land, ecological

and other legal relations...

(00018651)

- 5 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 6 of 33

15.

Article 22. 2

of the CPC provides that:

The murts shall mnsider and resolve the t"ases with the participation oj foreign citizens, oj stateless persons,

foreign organizations and oj
organizations.

organizations with foreign investments,

as well as oj international

16.

Article 22.

3 of the CPC provides that the Courts of General Jurisdiction shall determine
and 22.

cases falling within Articles 22. 1

with the exception oj economic disputes and oj
and ry

the other cases, riferred

ry

the federal constitutional law

the federal law to the jurisdiction

oj the arbitration (Arbitrazh) courts.

17.

The word

arbitrazh"

translates into English as

arbitration.

Despite being so named for

historical reasons dating back to the Soviet Union , Arbitrazh Courts are civil courts having
nothing to do with

arbitration. They are courts that hear commercial disputes between

companies and individual entrepreneurs , both Russian and foreign.

18.

The Arbitrazh Courts were recently re-structured as a four- tiered system. The activity of
Arbitrazh Courts is

currently regulated by the 1995 Federal Constitutional Law

Arbitrazh Courts in the Russian Federation (with latest amendments of March 25 , 2004) and the

APc.

19.

According to the above-mentioned law the fIrst tier of Arbitrazh Courts are 81

Arbitrazh

Courts of regions of RF. These are the courts of first instance. The second tier are the 20
appellate Arbitrazh Courts , which review both the factual and legal bases of decisions made
by courts in the fIrst tier (which have not yet come into legal force). A second appeal of
legal issues , called " cassation review "
(00018651)

may be had to one of 10

Federal Circuit Arbitrazh

-6-

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 7 of 33

Courts , and the Supreme Arbitrazh Court , heading the system of Arbitrazh Courts in the

Russian Federation , may, among other things , review acts of the other Arbitrazh Courts as
well (in the course of so-called " supervisory review ). All courts may reconsider its previous
decisions on the basis of newly discovered circumstances

(provided the requirements for

such reconsideration are met).

20.

Jurisdiction of Arbitrazh Courts is set forth in Articles 27 and 28 of the APC:

Article

27.

Cases within the Smpe oj jurisdiction oj Arbitrazh Courts

1.

The smpe oJjurisdiction oj an arbitrazh court shall extend to cases on economic disputes and to other cases

conneded with the exercise oj business and other emnomic activities.

2.

Arbitrazh courts shall settle emnomic disputes and shall try other cases with the participation oj

organizations which are legal entities, oj titizens engaged in business activities without forming a legal entiry

and having the status oj an individual businessman obtained in the procedure established qy laws (hereincifter
riferred to as "individual businessmen
), and in the instances

provided for qy this Code and other federal

laws, with the participation oj the Russian Federation, the suijeds oj the Russian Federation, municipal
formations, state bodies,

bodies oj local se!f-government, other bodies, officials, and formations which do not

have the status oj a legal entiry, and citizens which do not have the status oj an individual businessman
(hereincifter riferred to as "organizations

and citizens

3.

Other cases mqy be likewise riferred qy federal law to the scope

oJjurisdiction oj

arbitrazh courts.

4.

An application taken over

ry

an arbitrazh court suo/cct to the jurisdiction

rules has to be considered

ry

on its merits, even though in future there will be drawn to the participation in the t"ase

a citizen

without the

status oj an individual businessman as a third person who does not put
suo/cct matter oj the dispute.

in individual claims concerning the

(00018651)

-7-

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 8 of 33

5.

Arbitrazh courts shall try cases within the scope oj their jurisdidion with the participation oJRussian

organizations, titizens oj the Russian Federation, as well as oj foreign organizations, international

organizations, foreign titizens and stateless persons engaged in business activities, or organizations with
foreign investments,

if not otherwise provided for

ry

an international treary oj the Russian Federation.

Article

28.

jurisdiction oj Emnomic Disputes and Other Cases Arisingfrom Civil Legal Relations

Arbitrazh courts shall try in action ("based on statement oj claim

translator's note)

proceedings economic

disputes and other cases arisingfrom civil legal relations which are connected with the exercise oj business and
other economic activities ry legal entities and individual businessmen, and in the instances provided for

ry

this

Code and other federal laws

ry

other organizations and citizens.

21.

Article 22.4 of the CPC provides that when the Courts

of General Jurisdiction receIve

applications , some parts of which fall within the jurisdiction the court and others within the

jurisdiction of the Arbitrazh Court , and it is not possible
Courts of General

to separate the claims

, then the

Jurisdiction shall take jurisdiction over all of the claims. Where it is

possible to separate the claims , then the Courts of General Jurisdiction shall decline

jurisdiction in respect of those claims which fall within the jurisdiction of the Arbitrazh
Courts.

General Description of Russian Civil and Procedural Law

22.

The basis of the current system of laws in the Russian Federation is the Constitution of 1993
(hereinafter " Constitution

RF"). The civil law legislation consists of the Civil Code RF

(hereinafter

CC"

or

CC

RF")

and federal laws enacted in accordance

with it. Civil- law

relationships may also be regulated by the under- law acts (which may not contradict the

Constitution ,

Civil

Code or federal laws), such as

Presidential edicts ,

Governmental

resolutions , acts of ministries and other federal executive bodies. All the references in the
(00018651)

-8-

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 9 of 33

present Declaration to the Russian law provisions

shall be references to the provIsIOns

currently in force.

23.

Article 15 of the Constitution

RF also provides that generally recognized principles of

international law and international treaties of the Russian Federation are an integral part of
the Russian legal system , and if the international treaty of the Russian Federation prescribes

other rules than the ones set by law, the rules of the international treaty prevails.

24.

Article 1 of the Civil Code RF provides that the basic principles of Russian civil law are
based on the recognition of the equality of the participants , the inviolability of ownership,

freedom of contract,

the impermissibility of

arbitrary interference by anyone in private

affairs , necessity of unhindered exercise of civil law rights , the restoration of violated rights
and their judicial protection.

25.

The civil and arbitrazh procedural legislation contains detailed provisions guaranteeing the
rights of the parties involved in any litigation. Those rights , inter alia , include:

the principle that all parties are equal before the law and the court; the existence of an
adversarial system and the equality
of the

parties (Article 19 and 123 of the

Constitution of the Russian Federation ,

Article 7 of the Federal Constitutional Law

On the Judicial System of the Russian Federation " Article 7 of the APC RF and

Article 6 of the CPC RF);
the court

s obligation to notify the parties about the time and place of the hearing

(Article 121 of the APC RF and Article 113 of the CPC RF), and the prohibition for
any court to resolve a dispute in the absence of the party that was not duly notified

about the time and place of the hearing (par. 1 Article 153 , par. 1 of Article 158 , par 4

(2) of Article 270 of the APC RF; Article 167 , par. 2(2) of Article 364 of the CPC RF);
(00018651)

- 9-

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 10 of 33

the obligation of the parties to prove all allegations they make and the right of

the

parties to provide evidence
Articles 35 ,

to the court (Articles 41 , 65

, 66 of the APC RF and

56 , 57 of the CPC RF);

the obligation of the witnesses and experts to appear in court upon request and to
testify or to provide expert opinions (Articles 55 and 56 of the APC RF and Articles
70 and 85 of the CPC RF);

criminal liability of witnesses (including those summoned at the court's own initiative)
for refusal to

testify, evasion of testimony, and perjury (par. 4 of Article 56 of the
of the

APC RF , Par. 2 of Article 70 of the CPC RF , and Articles 307 and 308
Criminal Code of the RF); and

availability of several instances of appellate review of cases by higher courts and the

possibility to review cases due to newly discovered circumstances.

26.

The Russian CPC and APC also have provlslOns concerrung deadlines

for completing

judicial proceedings. In general , the law requires that the case in arbitrazh court to be tried
within 3 months after filing (Articles 134 , 152 APC), (or 4 months , if court issues resolution

on stay of proceedings , according to Article 158 APC) and in court of general jurisdiction within 2 months (Article 154 CPC). If a case is reviewed by the appellate or cassation or
supervisory instance (i. e. court), the period for completing the proceedings shall be longer.

27.

The Russian Federation courts ' decisions , which entered into legal force , are binding on all

federal and local governmental agencies ,

as well as on other agencies ,

non- governmental

organizations , civil servants , all legal entities and persons , and are to be rigorously complied

with everywhere in the Russian Federation (Article 6 of the Federal Constitutional Law "

the Judicial System of the Russian Federation
court decisions ,

). Russian laws provide for enforcement of

and liability for non-compliance with Russian court decisions (Article 182

(00018651)

- 10 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 11 of 33

Chapter VII of the APC RF , Articles 210 , Chapter VII CPC RF , and the Federal Law "
Enforcement Process "
No. 119- cD3 of July 27 , 1997).

The Remedial Powers of Russian Courts

28.

Russian legislation in article 12 CC RF provides for a wide range of protections of civil- law
rights (remedies).

These remedies include: (1)

recognition of right; (2) reinstating the

situation that existed before the violation of the right and stopping the activities that violated

the right or created a threat of its violation; (3) declaration of an avoidable transaction as
invalid and applying the consequences of its invalidity or applying the consequences of the
invalidity of a void transaction; (4) declaration of invalidity of state agency or municipality
acts; (5) self- protection of a right; (6) judgment for specific performance of an obligation; (7)

compensation for damages; (8) recovery of penalties , and compensation of moral harm; (9)
termination or alteration of a legal relation; (10) non- application by court of state agency or
municipality act which contradicts law; (11) other means prescribed by law.

29.

Russian Courts have broad powers in connection with such remedies.
respect to damages ,

For example ,

with

according to article 15 CC RF , a person whose right is violated is

entitled to claim full compensation for the damages caused to it, unless an applicable law or

contract between the parties provides for compensation of damages in a lesser amount. It is

important to note that , according to the same article of the CC , damages are regarded as
expenses that a person whose right has been violated made or shall have to make in order to
restore the violated right, loss or damage to the property (actual losses), as well as the lost

income that would have been received in ordinary course of business if the right had not
been violated (lost profit).

(00018651)

- 11 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 12 of 33

30.

The general rules of articles 12 and 15 of the CC RF are particularized by special provisions
dedicated to the

liability for the breaches of particular types

of contractual

obligations

(located in conforming section of the Civil Code), liability for causing harm and provisions
on unjust enrichment. For example ,

there are remedies for wrongfully taking the property

of a person , whether directly or indirectly, for injuries due to fraud, and for causing damage
to company by culpable acts.

31.

Taking into consideration principles of jurisdiction of courts of General Jurisdiction and
Arbitrazh Courts described in par. 14-21 hereto over particular types of disputes , and very

broad provisions of the CC regarding

the

available means of protection ,

it is clear that

Russian legislation provides broad and adequate opportunities for

the plaintiffs (including

the Plaintiffs in the present case) to protect their rights and legitimate interests by applying
to Russian courts.

The remedies afforded by Russian law for the specific claims asserted by

Plaintiffs are addressed in the following sections.

Claims Related to Alleged Conversion of Plaintiffs' Assets
32.

According to the Complaint , one of Plaintiffs ' claims is for the " conversion " of their shares

of GOK by the Defendants through acts of fraud , bribery, and extortion , and , accordingly,
the loss of Plaintiffs

' control over GOK

33.

Russian civil law adheres to the doctrine of general delict (without separation on particular
types of torts , as in common law). The CC RF provisions on non-contractual (delict) liability

may be applied to this claim. According to article 1064 CC RF of the Code , damage caused
to the property of a

legal entity should be compensated in full by the person who caused

such damage , whether directly or indirectly. A law or an agreement may place an obligation

on a person who caused damage to pay the compensation to the aggrieved person above
compensation of damages.
(00018651)
- 12 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 13 of 33

34.

When claiming damages for the loss caused , a plaintiff must prove (art. 1064 CC): (1) the
illegitimacy of activity of the

person who caused

the losses (acts or inaction); (2) the

existence of plaintiff's losses; (3) causation between the illegitimate activity of the person
causing the harm and the plaintiff's losses. The last ,
fourth element of general delict -

the

fault of the person causing harm - is presumed , but a person who allegedly caused losses
would be released from paying the damages if he proves that the losses were not caused by
him (par. 2 art. 1064 CC).

35.

Unjust enrichment , as stated in article 1102 CC RF , provides another important category of
non-contractual obligations. According to this article , a person who acquired or maintained

property at the expense of another person and without proper grounds must return to the

latter all property unduly acquired or maintained (unjust enrichment) or pay its price if
returning the property is impossible.

36.

In addition ,

according to article 1103 of the CC RF provisions on unjust enrichment are
damages out of causing harm , including
inter alia

also applied to the claims for

by the bad

faith activity of a person enriched.

37.

The claims of the Plaintiffs arising out of so-called " conversion "

of property by fraudulent

and other illegitimate acts of legal entities and natural persons is covered by Russian doctrine

of general delict , provided the Plaintiffs would prove all the necessary elements of delict
described above. The Defendants would be obliged to compensate the proprietary and other
types of damages (including moral or business reputational damages) caused to the Plaintiffs.
If unjust enrichment of the Defendants at the Plaintiffs ' expense also took place then they

would have to return to the Plaintiffs unduly acquired property or compensate its price.

(00018651)

- 13 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 14 of 33

38.

According to the Complaint the cause of proprietary damage to the Plaintiffs , inter alia , was
the acts of fraud , bribery and extortion done by the Defendants. According to the Criminal
Code of the Russian Federation the said acts are criminally punishable crimes under Russian

law and conform with the following felonies under Criminal Code RF: fraud (art. 159 CrC
RF); extortion (art. 163 CrC RF); giving a bribe (art. 291 CrC RF).

39.

As a result, from the procedural viewpoint, Plaintiffs would be entitled to either file their
claims in court in accordance with civil or Arbitrazh Court procedure , or employ alternative
mechanism of filing a civil claim in the context of criminal case. For this matter they would
need to refer to Russian law enforcement agencies with complaint concerning a crime and , if
the criminal case would be initiated , to file a civil claim in the criminal case.

40.

Finally, based upon their " conversion "

claim ,

Plaintiffs seek the " equitable relief" of either

having the shares returned to them or

having the " corporate veil" of some companies
liable for any judgment of those companies.

pierced in order to hold individuals personally

As stated above , it is possible for Russian courts to grant a remedy of returning shares to a
party that proves the elements of a delict or unjust enrichment claim. In addition , several

articles in the CC RF provide that one or more persons may be secondarily liable for the
debts of a legal person (corporation) where that legal person does not have sufficient funds

itself. For example , par. 3 article 56 provides , in relevant part , as follows:

If the insolvenry (bankruptry) oj a legal person is caused

ry

the founders (or partitipants),

ry

the owner oj the
this legal

propertY oj the legal person,

or

ry

other persons that have the right to give instructions obligatory for

person or otherwise have the possibiliry to determine its actions, then subsidiary liabilitY for its obligations mqy
be placed upon such persons in case oj insujjicienry oj the propertY oj the legal person.

(00018651)

- 14 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 15 of 33

Articles 65 and 105 of the CC RF likewise provide for third person liability where a legal

person is unable to satisfy its creditors. And , to the extent that Delaware law applies
question of piercing the corporate

to the

veil of companies

incorporated in Delaware ,

Russian
to the

courts pursuant to Russian conflict of law rules , will apply that law. Accordingly,

extent that Plaintiffs can prove the elements of their claims , Russian courts could permit the

type of equitable relief that the Plaintiffs are seeking in the Complaint.

Claims Based on the Violation of RICO Act
41.

The Complaint indicates that one of Plaintiffs ' principal claims is for the violation by

Defendants of the US RICO statute (predicated on alleged acts of extortion , fraud , bribery
etc. ), which allegedly caused substantial damage to the Plaintiffs.

42.

While Russia has no

single legislative act analogous to RICO , but the acts that Plaintiffs

complain of

(bribery, fraud , extortion etc. ) are criminally penalized on the basis of other

Russian legislation.

43.

As described above , Russian law is based on the doctrine of general

delict (see par. 33

above). Moreover , Russian criminal code provides criminal liability for all above-mentioned

acts (see par. 38 above). As a result ,

Plaintiffs are entitled either to file a

claim on

compensation of damage caused to them directly to the Courts of General Jurisdiction or to
the Arbitrazh Court or to file a civil claim in the criminal proceedings (in case of initiation of

the criminal case).

44.

Therefore , Plaintiffs seeking relief from a competent Russian court would have procedural
law and material law provisions for compensation of damages in the same proven amount as

(00018651)

- 15 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 16 of 33

before the present Court. The only exception , of course , would be RICO Act provision on
triple damages which has no analogue in Russian law.

A vailahle Methods of Challenging Adverse Judicial Acts

45.

Although Plaintiffs generally claim that their shares in GOK were transferred from them as

a result of fraud or corrupted court proceedings or other type of misjudgment , it is unclear
from Plaintiffs ' Complaint what steps they have taken to contest that fraud , corruption or

misjudgment. Russian legislation provides many avenues for plaintiffs (and , therefore , the
Plaintiffs in the current case) and other participants of proceedings to challenge the judicial
acts of Russian courts. There are numerous procedures at Plaintiffs ' disposal. The

paragraphs below will highlight the most important avenues of redress which are relevant to
the situation described in the Complaint.

46.

If plaintiffs or any other participant of arbirtazh proceedings are not satisfied with Arbitrazh
Court decision they (before the court decision entered into legal force, that is one month
after the decision is issued) may appeal it to the appellate Arbitrazh Court (art. 257 APC).

47.

The Resolutions of the appellate court and the fIrst instance Arbitrazh Court decisions

which entered into legal force may be appealed to the Circuit Arbitrazh Courts for the
cassation review (Article 273 APC). Both appellate review and cassation review are ordinary

reviews and are available for all participants of Arbitrazh Court proceedings as of right , do

not require any approval of authorities.

48.

Supreme Arbitrazh Court RF is empowered to conduct supervisory review of all acts of Arbitrazh Courts which entered into legal force.
Persons

participating in the proceedings

are entitled to challenge an Arbitrazh Court act in the course of supervisory review if they

(00018651)

- 16 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 17 of 33

believe that the act has considerably violated their rights and legitimate interests in the

sphere of commercial and other economic activity as a result of violation or misapplication
by Arbitrazh Court of material law and procedural law provisions (Article 292 APC). The

redress to the Supreme Arbitrazh Court is possible when all other means of appeal are
exhausted.

49.

Another important avenue of redress is review due to newly discovered circumstances
(Article 309 APC RF). The motion of this type is to be filed to the arbitrazh court which

issued the original decision. Article 311 lists grounds for review on the basis of newly
discovered circumstances:

The following shall be seen as grounds for revising judicial
newlY discovered"

acts in accordance with the newlY revealed

translator note) circumstances:

1)

circumstances, essential for the case, which have not been and could not have been known to the

applicant;
2)

falsification oj prooJ or a deliberatelY wrong conclusion oj the expert,
or a deliberatelY incorrect translation

or a deliberatelY falsified

testimorry oj the witness,

, which has entailed the adoption oj an illegal or

unsubstantiated judicial act in the given case, established

ry

the court sentence that has come into legal force;

3)

criminal actions oj the person taking part

in the case,

or oj his representative, or the criminal actions
ry

oj the judge committed in considering the given

case, established

the court sentence that has come into legal

force;
4)

the repeal oj the judicial act

oj the arbitrazh court or oj the court oj general jurisdiction, or oj the

resolution oj another boc!J, which has served as a ground for the adoption oj the judicial
5) a transaction, recognized as invalid

act on the given case;

ry

the judicial

ad oj the arbitrazh court or oj the court oj general

jurisdiction,

which has come into

legal force, and which has entailed the adoption oj an illegal or oj an

unsubstantiated judicial act on the given case;

(00018651)

- 17 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 18 of 33

6)

recognition qy the Constitutional Court oj the Russian Federation as not corresponding to the

Constitution oj the Russian Federation the law applied

ry

the arbitrazh court in the particular case, in

connedion with the adoption oj the decision

on which the applicant has applied to the Constitutional Court oj

the Russian Federation;
7)

a violation,

established

ry

the European Court for Human Rights,

oj the provisions oj the

Convention on the Protedion oj Human Rights and oj Basit' Freedoms when considering

a concrete case

the arbitration court, in connedion with the adoption oj the dedsion on which the applicant has applied to the
European Court for Human Rights.

50.

As seen from above , one of the grounds for reopening the case on the basis of newly
discovered circumstances is that a judge committed a crime when hearing the case and has

been sentenced for it. If the aggrieved party (the Plaintiffs in the case) believes a certain
judge committed a crime while deciding their case (accepted bribes , intentionally misapplied
the law etc. ), the party has a full right to refer to law enforcement body asking for a criminal

liability of the judge , which , in turn , if the judge is found guilty by court , might result in

ultimate reexamination of the original case in the course of newly- discovered circumstances
revIew.

51.

Further in this respect, article 1070 of the CC RF permits damages if a person has been
harmed due to the illegal conduct of a judge (the damages in such case shall be paid by the
Treasury of the RF).

52.

Another additional and subsidiary means of opposing the improper actions of a judge is
through the provisions on disciplinary liability of judges. Apart from a criminal sentence

against a judge (which serves as a basis for termination of his status as a judge), the judge
may be subjected to disciplinary liability,

inter alia

in the form of termination of his status as

a judge for the violation of the Law " On the Status of Judges in RF" and of the " Ethical
(00018651)
- 18 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 19 of 33

Code of Judiciary . The aggrieved party may apply to chairman of the court at question or

the chairman of the higher court or judicial community official body. If the application
proves to be justified , then the said persons would me a motion on termination of judge
status to the competent judges ' qualification committee , which is empowered to take such

decision.

53.

There is nothing in Plaintiffs ' Complaint to suggest that Plaintiffs used any of these or other

avenues of judicial redress in Russia.

IV.

Parties May Expect To Have Their Cases Fairly Adjudicated In the Russian Courts
By Law, The Russian Court System is Independent

54.

According to article 10 of the Constitution RF , the State power of the Russian Federation is
divided onto legislative , executive and judicial branches. The bodies of
legislative ,

executive

and judicial branches are independent.

55.

The Constitution of the RF states the principal guarantees of court system independence:
judges are independent (art. 120); judges are irremovable (art. 121); judges are immune (art.
122); proceedings in all courts are open for public (art. 123).

56.

These Constitutional provisions are particularized in the Russian Federation Law " On the
Status of Judges in the Russian Federation " of June 26 , 1992 with further amendments and

by the Federal Constitutional Law " On the Judicial System of the Russian Federation " of
December 31 , 1996 with further amendments. In particular:

it is prohibited under the penalty of law to obstruct justice in any way (Articles 9 and
10 of the Law " On the Status of Judges in the Russian Federation

(00018651)

- 19 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 20 of 33

judges are appointed for life (Article 14 of the Federal Constitutional Law " On the
Judicial System of the Russian Federation ); and
judges ' powers may only be terminated on grounds specified by law and only by the

judiciary, but not by governmental agencies (Articles 9 , 12. , 13 , 14 of the Law "

the Status of Judges in the Russian Federation

57.

According to Art. 123 of the Constitution RF the adjudication is effectuated on the
principles of competitiveness and equality of the parties. The above-mentioned Laws "
the Status of Judges in the Russian Federation " and APC , CPC contain detailed provisions

guaranteeing the procedural rights of the parties. Some of the most important and relevant
guarantees are described in brief in par. 25 above.

In Practice, the Russian Court System Functions Fairly
58.

Not only does the law provide that the judiciary is to be independent , free from obstruction
of justice and the parties equal , these principles are generally true in practice as well. While

no court system of which I am aware functions perfectly and without any corruption , it is
my opinion that parties may reasonably expect their cases to be decided fairly on the basis of

the law and facts and not due to corruption or improper influence.

59.

More specifically, I disagree with assertions by plaintiffs ' experts in similar cases that small

foreign plaintiffs cannot receive impartial treatment from the Russian courts in cases against
companies owned or controlled by wealthy Russian business magnates. I know about

publications , inter alia , in mass media , containing criticism against Russian judges. However
I am aware of no persuasive evidence that leads me to believe that to be the case. On the

contrary, based on my interactions with attorneys , judges , academicians and others involved
in the Russian legal system , as well as review of very substantial number of
(00018651)
court decisions

- 20 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 21 of 33

involving foreign parties , I believe that , as a whole , the Russian legal system provides a fair

forum , regardless

of

the identity

of

the parties.

60.

Finally, although I have not reviewed the court decisions in Russia related

to

plaintiffs

allegations concerning GOK. (which I understand to be the province

of

a different

Defendants ' expert), I have been informed that there were approximately 87 such decisions
rendered by numerous different judges , in several different courts , throughout the Russian
judicial system. I have been further informed that of

these 87 decisions , approximately 17
of

were favorable

to

the Plaintiffs. First ,

the fact that a substantial number

courts ruled in

Plaintiffs ' favor belies the notion that an unknown foreign plaintiff can not get a fair hearing

in a Russian court. Second , and more importantly, it is
of

my

opinion , based on

my

many years

experience , that it is simply not credible that all , most , or even a substantial number

the 70 separate court decisions that Plaintiffs lost concerning GOK were procured through
corruption or undue influence.

Russia Has A Substantial Interest In Having This Dispute Decided By Russian Courts
61.

In the Complaint, the Plaintiffs directly and indirectly raise number

of

allegations

of

fraud

corruption , bribery not only in relation to the Defendants , but also certain Russian judges
state authority representatives (including high rank state officials , for example ,
Governor

Sverdlovsk region). Also they raise general allegations that Russian judiciary is corrupt and
inefficient.

62.

Plaintiffs ' complaint contains sweeping allegations concerning litigation and bankruptcy
proceedings in Russia. These allegations include the claims that:
the takeover of

GOK was initiated by a " sham " bankruptcy petition by a Russian
and such petition was approved by a Russian court

company (Compl. par. 79- 87)
(00018651)

(Id);

- 21 -

,"

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 22 of 33

a Russian individual was appointed external manager of GOK and his appointment

was approved by another Russian court allegedly under the influence of governor
Sverdlovsk region (Id);

of

and

the defendants were then allegedly able to transfer the shares to defendant-controlled
companies , which according the Complaint
is a relatively common method

in Russia
(Compl.

by which organized crime groups seize control of economic enterprises. "
88) (emphasis added).

par.

63.

Ensuring rule of law and public order are among the most important functions of state
bodies of the Russian Federation , and therefore , Russian state is directly interested that all

persons , guilty of illegal activities described in the Complaint (provided it is true), inter alia
judges , state officials , arbitrazh managers , were brought to liability (civil- law liability,

administrative , disciplinary and criminal liability).

64.

Russia has substantial interest to have the present case adjudicated in Russia also due to the

fact that Kachkanarsky GOK is a very important link of mining industry which is of
strategic importance for Russian economy.

65.

If the Plaintiffs filed their claims to Russian judicial and enforcement authorities , they would

not only obtain a possibility to remedy the damages inflicted upon them, but also assisted
the elimination of instances violation of law and bringing those at fault to liability.

66.

In this regard it is important to note important power of Russian courts , stated in art. 226
CPC , according to which in the instances of violation law rules , the court has the right to

issue a special ruling and to forward it to the corresponding organizations or to the
corresponding official persons , which (who) are obliged to inform it of the measures they

have taken in the course of one month. If no information about the taken measures comes
(0001865q

- 22-

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 23 of 33

, upon the guilty official persons may be imposed a fine in the amount of up to ten
minimum monthly wages established by federal law. The imposition of a fine does not

relieve the corresponding official persons of their duty to report on the measures taken in
accordance with the special ruling of the court.

67.

Part 3 of the said article is of the most importance , according to which if the court reveals

the signs of a crime in the actions of a party of the other participants in the case , of the
official or another person , while considering the case , it shall inform the public prosecutor
to this effect. In this manner Russian court when deciding private dispute may assist fighting
crime and ensuring public order in the Russian Federation.

68.

Accordingly, Russia has a significant interest in having this case resolved by Russian courts.

Conclusion

On the basis of the above in response to the question posed to me in par. 10 , it is my

opinion that state courts of the Russian Federation (either courts of general jurisdictions or
arbitrazh courts) provide an adequate alternative forum for Plaintiffs ' claims.

Moscow, Russian Federation
25 March 2005
Lebedev S.

(00018651)

- 23 -

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 24 of 33

EXHIBIT A

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 25 of 33

CONCISE LIST OF PROF. S. N. LEBEDEV' S PUBLICATIONS

1.

Me:JICoYHapooHblU mop20eblu ap6umpa:JIC

M. 1965 (219 c. ) (International trade

arbitration , Moscow 1965 (p.2l9)J. (Russian)
2.

rpa:JICOaHCKOe u mop20eoe npaeo KanUmaJlUCmU1JeCKUX 20cyoapcme. (Civil

and

trade law of capitalist states), Chapters on work and labor contracts (p. 298307); and insurance (p. 336- 349). Textbook. Moscow 1966. (Russian)
3.

Review of English Court's Decisions on the Application of the "Doctrine

of

Frustration

in

Cpnnection with Closure of the

Suez

Canal

in 1956. CMEA
to

Bureau for Coordination
4.

of Chartering Vessels , Annex

Information

Bulletin , Moscow August 1967 (80 p. ).

(Russian and English)

3KcnopmHo-UMnopmHble onepal1uu. IIpaeoeoe pe2YflupoeaHue.

(Export- import

operations. Legal regulation.

Chapters on insurance (p. 236- 252) and

settlement of disputes involving Soviet foreign trade organizations (p. 297-

317). Manual. Moscow 1970. (Russian)
5. The Law of the Union of Soviet Socialist Republics (as applied to relations

foreign
6.

trade).

(co-author). In the Digest of Commercial Laws of the World.

Oceana Publications , New York 1970 (63 p.

The Law of the Union of Soviet Socialist Republics (as applied to Civil Law
and Procedure
Relations in

Foreign

Trade).

(co-author). In the

Digest of
Moscow

Commercial Laws ofthe World. Oceana Publications , New York 1980 (78 p.
7.

Maritime Arbitration
1972 (43 p. ).

Commission (Organizations and Procedure).

(Russian and English)

8.

Me:JICoYHapooHoe compyoHU1JeCmeo e 06flacmu KOMMep1JeCK020 ap6umpa:JICa
(Me:JICoYHapooHble KOHeeHl1UU

CO2JlaWeHU51 u

opY2ue OOKYMeHmbl no
other

eonpocaM

ap6umpa:JICa).

M. 1980 (215 c. ) (International cooperation in area of
(International conventions , agreements and

commercial arbitration

documents concerning arbitration). Moscow 1980 (p. 215)). (Russian)

(00018736)

*** Case 1:04-cv-01482-GMS Document 48-6 Filed 03/31/2005 Page 26 of 33

9.

International Commercial Arbitration in the Socialist Countries-Members of
the CMEA
in Extract from " Recueil des cours

. The Hague Academy of
of Arbitrators and

International Law , v. 158 , 1981 (90 p.

10.International Commercial Arbitration: Competence
Agreement of the Parties.

Moscow 1988 (124 p.
the CMEA Member Countries

l1.Guide on Foreign Trade Arbitration in
and co-author). Moscow 1983 (115 p. ).
12. Uniform Commercial Code in the
USA.

(editor

(Russian ,

English and Spanish)

Translation into Russian (co-author),

Moscow 1969.
13. Uniform Commercial Code in the
USA.

Translation into Russian (editorship,
of Goods: 10

introduction , co-author). Moscow 1996.
14. 1980 Vienna Convention on the Contracts of International Sale

Years of its Application in Russia (Turning over the Pages of History (p. 4- 8)).
Moscow 2001.

1. Contemporary Jurisprudence in Capitalist Countries Concerning Immunity of
State-owned Ships

Maritime Law and Practice ZNIIMF , 1958 , No. 3 (p. 59-

65).

2. a npHMeHemIH rJIaBbI IX KO,lJ;eKCa ToproBoro MOpenJIaBamUl CCCP
Bo3Harpa)K)J;eHHH 3a OKa3aHHe nOMOIIJ;H

MopcKoe npaeo u npaKmuKa

1959 (c. 6- 14). (On application of the chapter IX of the Merchant Marine Code

of USSR " On salvage money
(Russian)
3. PaC1JeT cnUIHMHoro BpeMeHH
(c. 14- 22).

Maritime Law and Practice

1959 (p. 6- 14)).

MopcKoe npaeo u npaKmuKa , N210

1960

(Calculation of lay time

Maritime Law and Practice

, N210 1960

(p. 14- 22)). (Russian)

4. BonpocbI npH3HaHwI H npHBe,lJ;eHH5I B HCnOJIHeHHe ap6wrpa)J(HbIx perneHHM B

COrJIarneHH5IX CCCP

c HHocTpaHHbIMH rocY,lJ;apCTBaMH

YtteHble 3anucKu

CepH5I IOpH,lJ;H1JeCKa5l , BbIII.3

, MrHMO ,

M. 1961 (c. 229-246). (Issues of

(00018736)

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 27 of 33

recognition and enforcement of arbitral awards in agreements of USSR with
foreign states
Scholarly notes
(Russian)
juridical series , issue 3

, MGIMO , Moscow

1961 (p. 229- 246)).
5. Contemporary

Jurisprudence in Capitalist Countries Regarding Immunity of
Soviet Yearbook of International Law

States from Foreign Jurisdiction
1960" Moscow 1961 (p. 290- 307).

6. IIpoporaQHoHHble YCJIOBWI c,n;eJIOK B Me~YHapo,n;HOH: TOprOBJIe
eJlCe200HUK MeJICoYHapooH020 npaea,

CoeemCKUU

1963 2. ",

M. 1965 (c. 420- 440).
Soviet annual digest of

(Prorogation terms of bargains in international trade
international law, 1960" Moscow 1965 (p. 420- 440).

(Russian)

7. HeKoTopble BonpocbI KaHQeJIJIHpOBaHH5I ,n;oroBopa (jJpaxTOBaHH5I ,

(Some items

about cancellation
31- 45)).

of contract of affreightment ,
Information Bulletin

CMEA , Bureau for
, No. 9/27 , M. 1966

Coordination of Chartering Vessels
(Russian and English)

8. 113 COBeTCKOH: cy,n;e6HOH: npaKTHKH no
MOpenJIaeaHUe u MopCKoe npaeo
M. 1972 ,

MOpCKHM ,n;eJIaM
BbITI.

Top20eoe

6 (c. 31- 38). (From soviet

admiralty judicial practice
1972 , issue 6 (p. 31- 38)).
9. Developing

Merchant shipping and Maritime law

Moscow

(Russian)

Effective International Commercial Arbitration , Fifth International

Arbitration Congress
in The Arbitration Journal"

Proceedings New- Delhi 1975 (B II ,

p. 1-

12). Reprint

(American Arbitration Association N.

) vol. 30

No. I , 1975 (p. 59- 73).
10. Arbitration in Soviet- American Trade Relations

Denver Journal of
Georgia

International Law and Policy
11. Application of

vol. 5

, Special Issue , 1975 (p. 337- 356).

Law by the
Arbitration

Maritime

Arbitration Commission

Journal of International and Comparative Law
528). Reprint in

1976 , vol. 6 , Issue 2 (p. 519-

(The Journal of the Institute of Arbitrators

London), 1977 ,

vol. 44 , No. I (p. 18- 24).

(00018736)

111

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 28 of 33

l2. Know- how

and Arbitration (co-author), Schiedsgerichtsbarkeit und
(English and

geverblicher Rechtsschutz , Wien , 1977 (s. 87- 92).

Gennan)

l3. The Foreign Trade Arbitration Commission at
Commerce and Industry,

the USSR Chamber of

Handbook of Institutional Arbitration in International

Trade North- Holland Publishing Company, Amsterdam- New- York- Oxford
1977 (p. 273- 296).

l4. The 1977 Optional Clause for Soviet- American Contracts l5. YHH~HKaI(JUI

The American

Journal of Comparative Law v. XXVII , Nos. 2- , 1979 (p. 469- 478).
npaBoBoro perYJIHpOBaHH5I Me)l()J;YHapO,lJ;HbIX XO351HCTBeHHbIX

oTHollIeHHH lOpuouliecKue acneKmbl ocYUfeCmeJleHU51 eHeume3KOHOMUlieCKUX
ce513eu.

MfI1MO ,

M. 1979 (c. 15- 43).

(Unification of legal regulation of

international economic relations
economic relations.

Juridical aspects of exercise of foreign
(Russian)

MGIMO , Moscow 1979 (p. 15- 43)).

l6. Unification des nonns juridiques dans les rapports econorniques internationaux
(Quelques observations generales), in " Revue de droit unifonne , t.198l (II), UNIDROIT , Rome (pp. 1- 36).

l7. HeKoTopble " nOrpaHHQHble " Bonpocbl ,lJ;OrOBOpoB KynJIH-npO,lJ;a)l(l:I H MOpCKOH
nepeBo3KH rpY3oB B npaKTHKe BHelliHeToproBoH ap6HTpa)l(HOH KOMHCCHH
Top20eoe MOpenJIaeaHUe u MopCKoe npaeo

1980 ,

BbllI.

9 (c. 21- 25) (Some

frontier issues of purchase-sale agreements and maritime freight shipment in

practice of Foreign trade arbitration commission
Maritime law

Merchant shipping and
CoeemcKuu e:JICe200HUK

1980 , issue 9 , (p. 21- 25)).

(Russian)

18.

npHpO,lJ;e Me)l(,lJ;YHapO,lJ;HOrO QaCTHOro npaBa
Me:JICoYHapooH020 npaea

1979 2. ",
(Russian)

M. 1980 (c. 61- 79). (On nature of
International Law

international private law
Moscow 1980 (p. 61- 79)).

Soviet Yearbook of

1979"

19. How Long Does a Foreign Award Stay Enforceable? , in

The Art of Arbitration

Kluwer , Antwerp- Boston- London- Frankfurt 1982 (p. 213- 221).

(00018736)

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 29 of 33

20. BonpocbI 3 aKJIIOQ emul ,L(OrOBOpoB B KOHBeHIJ;JHI OOH
Me)J(,L(YHapO,L(HOH KynJIH-npO,L(a)l(M

,L(OrOBOpax

ToBapoB 1980 r. MamepUaJlbl ceMuHapa no

KoHeeHtjUU 06 UCKoeou oaeHocmu U KoHeeHtjuu 0 o020eopax MeJICoYHapooHou

K)/nJlu-npooaJICu, pmpa60maHl-tblx e paMKaX JOHCJ1TP All

CeKpeTapHaT

CMEA ,

M. 1983 (c. 54- 69).

(Issues of execution of the

contracts in UN
the

Convention on the International sale of goods 1980 Materials of the seminar

on the

Convention of Limitation of Actions

and Convention

on

International Sale-

Purchase Agreements,

prepared under
(Russian)
, in

UNCITRAL

Secretariat SMEA , Moscow 1983 (p. 54- 69).
2 1. Towards

Revision of the 1955 Hague Convention

Legal Aspects of Foreign

Economic Relations

, MGIMO , 1985 (p. 55- 68).

22. New Hague Convention on the Law Applicable to Contracts of International

Sale of Goods

, in

Foreign Trade

1987 , No. I (p. 42- 46).

(Russian ,

English

French and Spanish)

23. Me)l(,L(YHapO,L(HbIH ap6wrpa)l(
B c6.

H np06JIeMbI 3aII(HTbI HHOCTpaHHblX HHBeCTHlt;HH
UHocmpaHHblX uHeecmutjuu

llpaeoeble np06JleMbl

):(e-lOpe , M. , 1991
security of foreign

(c. 87- 98). (International arbitration and the problems of
investments in the digest

Legal problems of foreign investments

De-jure

Moscow 1991 , (p. 87- 98)) (in Russian).
24. Search for
arbitration in

Stockholm (Russian- American Optional Clause),

Izvestia

1993 , Nos.l03 and 112.
Arbitrations

25. Russia: New Laws on International

Rivista dell 'Arbitrato

Roma , 1994 , No. 3 (p. 589- 595).
26. Court assistance with interim measures , in Enforcing Arbitral Awards under
New York Convention.

The Colloquium " New York Convention Day , United

Nations , N. Y. 1999 (p. 24- 26).
27. Me)l(,L(YHapO,L(HbIH KOMMepQeCKHH ap6HTpa)l( H 06eCneQHTeJIbHble
MepbI

MocKoecKuu JlCypHaJl MeJICoYHapooH020 npaea

1999 ,

N2l (c. 60- 68).

(00018736)

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 30 of 33

(International commercial arbitration and provisional
journal of international law 1999 , N!d (p. 60- 68)J.
28. New Russian Legislation on Private International Law , in

measures

Moscow

(Russian)

Yearbook of Private

International Law Kluwer & Swiss Institute of Comparative Law , 2002 , v. IV

(p. 117- 143) (With attached Extracts from Russian Civil Code, Family Code

Merchant Shipping Code).
29. HopManIBHble aKTbI POCCHHCKOH $e)J;epaI(HH Ha 6a3e THIIOBbIX
pa3pa60TaHHbIX
M e:IK)J;YHapo )J;HbIMH

3aKOHOB

opraHH3aI(H5IMH.

YqeT 3apy6e:IKHoH
O6U1enpU3HaHHble

IIpaKTHKH IIpHMeHeHlI5I Me:IK)J;YHapO)J;HbIX KOHBeHI(HH

npUHljunbl u HOpMbl MeJICoYHapooH020 npaea u MeJICoYHapooHble o020eopbl e

npaKmuKe

KoHcmumYljuoHH020

npaeocyoU5l

2004

(c. 383- 386).

(Legislation of the Russian Federation on the basis of model laws , developed

by international

organizations. List of foreign practice of

application of

international conventions

General recognized principles and rules of
treaties in the practice of constitutional

international law and international

justice Moscow 2004 (p. 383- 386)).

(Russian)

(00018736)

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 31 of 33

EXHIBIT B

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 32 of 33

Documents Reviewed By Professor S. N. Lebedev

Davis International, LLC, et al. Court of Chancer

New Start Group Corp., et al. of the State of Delaware No: 04-1482- GMS
v.

1. Complaint;

Base Metal Tradim!

SA,

et aL

v.

Russian Aluminum, et al.

Southern District of New York No: OO-cv- 9627
2. Decision ,

dated March 27 , 2003;

3. Declaration

of Prof. Petrukhin (defendants ' expert), dated January 26 2002 (in English

and Russian);

4. Declaration of Prof. Stephan (defendants ' expert), dated January 28
5. Declaration of

2002;

Ethan S. Burger (plaintiffs ' expert), dated September 15 , 2002 , and

Exhibits;
6. Declaration of

Marina Telyukina (plaintiffs ' expert), dated September 15 , 2002 (English and Russian), and Exhibits;
of Anatoly Kleyrnenov (plaintiffs ' expert), dated September 16 , 2002 , and

7. Declaration

Exhibits;
8. Supplemental

Declaration of Prof. Stephan (defendants ' expert), dated February 19

2003;
9. Third Declaration

of Prof. Petrukhin (defendants ' expert), dated February 19 , 2003 (English and Russian), and Appendix;

10. Declaration ofSergey B. Zaitsev (plaintiffs ' expert), dated February 19 2003 (English and Russian), and Exhibits;
11. Supplemental Declaration of Prof. Stephan (defendants' expert), dated February 24 2003; 12. Second Declaration of Sergey B. Zaitsev (plaintiffs ' expert), dated February 25 2003 (English and Russian), and Exhibits;
13. Second Declaration of Victor Golubev (plaintiffs ' expert), dated February 25 2003 (English and Russian), and Exhibits;
fOOO18734)

Case 1:04-cv-01482-GMS

Document 48-6

Filed 03/31/2005

Page 33 of 33

14. Third Declaration ofSergey B. Zaitsev (plaintiffs ' expert), dated March 21 2003 , and Exhibits;
15. Fourth Declaration of Sergey B. Zaitsev (plaintiffs ' expert), dated March 24 , 2003 , and Exhibits; 16. Appellate Declaration of Sergei B. Zaitsev (plaintiffs ' expert), dated September 26 , 2003
(English and Russian), and Exhibits;

Archamtel Diamond Corp. v. Lukoil and Arkhamtelsk1!eoldobvcha District Court. Citv and Countv of Denver No: 01cv6514
17. Order , dated October 15 , 2002;

18. Declaration of Prof. Stephan (defendants ' expert), dated May 8 2002;

19. Declaration of Ethan S. Burger (plaintiffs ' expert), dated May 31 2002;
20. Reply Declaration of Prof. Stephan (defendants ' expert), dated June 21 2002;

Norex Petroleum v. Access Industries. et aL
Southern District of New York No: 02-cv- O1499

21. Decision , dated February 18 , 2004; 22. Declaration of Prof. Stephan (defendants ' expert), dated October 31 , 2002;

23. Declaration of Alexey Alexandrovich Kostin (defendants ' expert), dated November 1 2002; 24. Declaration of Bemard Black (plaintiffs ' expert), dated June 30 , 2003;
25. Declaration of Sergei B. Zaitsev (plaintiffs ' expert), dated June 27 , 2003;
26. Declaration of Sergei Pashin (plaintiffs ' expert), dated June 30 , 2003 (English and Russian);

27. Reply Declaration of Prof. Stephan (defendants ' expert), dated September 9 2003;

28. Reply Declaration of Alexey Alexandrovich Kostin (defendants ' expert), dated September 9 2003.

~OOO18734)