6.  The applicant company has its registered office in Istanbul.
7.  Its case before the Court concerns its unsuccessful efforts to have its claims against the Black Sea Shipping Company (“Blasco”), a Ukrainian State-owned company which is subject to bankruptcy proceedings, recognised and satisfied.
8.  Blasco is the successor of a Soviet State-owned company which until the late 1980s was one the largest shipping companies in the world and operated hundreds of commercial vessels. Throughout the late 1980s and early 1990s Blasco encountered serious legal and economic difficulties, which resulted in the loss of a large proportion of its assets.
9.  From October 1996 to April 1997 Blasco, as shipowners, and Columbus − a Liberian company − as charterers, signed time charters for four of Blasco’s ships. In August 1997 the applicant company also entered into a bareboat charter agreement with Blasco for one of its ships.
10.  On 13 November 1997 Columbus assigned all of its claims against Blasco, without specifying their origin or amount, to the applicant company. Blasco was informed of the assignment.
11.  On 2 December 1997 and 22 October 1998 the applicant company and Blasco signed agreements under which Blasco acknowledged owing certain debts to the applicant company related to services provided to Blasco’s vessels amounting to 3,466,754.93 United States dollars (USD). Of that amount, USD 33,557.29 related to a ship not covered by the above‑mentioned charter agreements and USD 257,531.36 was identified as expenses relating to the settlement of unspecified claims and agency costs. The remainder of the claims had apparently arisen in the context of the legal relationship created under the charterparties.
12.  On 20 June 2001 the parties signed another agreement, reducing the overall debt to USD 2,021,370.13, apparently to take into account the fact that one of the ships to which the debt related had in the meantime been transferred to the applicant company in partial settlement.
13.  On 25 December 1998 bankruptcy proceedings were initiated in respect of Blasco. They were suspended on 2 July 1999. It appears that they were then reinitiated and discontinued at some point in 2001.
14.  On 11 July 2003 a certain Mr P., Blasco’s creditor, initiated bankruptcy proceedings against Blasco in the Odessa Regional Commercial Court (“the Commercial Court”). The notice announcing the initiation of proceedings was published, as required by law, in September 2003.
15.  On 29 September 2003 the applicant company lodged an application with the Commercial Court seeking recognition of the debt owed to it by Blasco in the amount stipulated in the agreement of 20 June 2001 (see paragraph 12 above).
16.  On 18 November 2004 the Commercial Court rejected the applicant company’s claim without considering it on the merits. It held that it was unsubstantiated and considered that the agreements provided by the applicant company were insufficient proof that it had valid claims. In order to show the latter, the applicant company would need to provide the original documents showing the basis on which the debts had arisen.
17.  On 14 March 2005, in an appeal, the applicant company explained that the debt had arisen on the basis of charterparties between it and Blasco in respect of a number of ships. Although under the terms of the charterparties certain costs had to be borne by Blasco as the ship owner, the latter had asked the applicant company to bear those costs and those sums had accordingly become Blasco’s debt.
18.  On 15 March 2005 the Odessa Commercial Court of Appeal (“the Court of Appeal”) quashed the commercial court’s ruling, holding that − since the claim had been lodged within thirty days of publication of the bankruptcy proceedings notice − it could not be rejected without an examination of the merits but rather had to be examined on the merits and either allowed or dismissed. The case was remitted to the commercial court.
19.  On 7 February 2006 the applicant company made written submissions to the Commercial Court explaining the origin of the debt. It explained, in particular, that the claim had its basis in services provided to a number of vessels.
20.  On 24 February 2006 the Commercial Court rejected the applicant company’s claims as insufficiently substantiated. It held, in particular, that the actual charterparties on which the claims were supposedly based had not been submitted to the court.
21.  On the same day the court ordered the initiation of a financial rehabilitation procedure in respect of Blasco under a court-appointed receiver. Such procedures are governed by the Bankruptcy Act and are aimed at restoring a debtor’s solvency.
22.  The applicant company appealed against the rejection of its claim.
23.  On 12 August 2008 the Court of Appeal upheld the commercial court’s ruling of 24 February 2006 concerning the applicant company’s claims.
24.  On 10 September 2008 the applicant company appealed to the High Commercial Court (“the HCC”). Among other arguments the applicant company further submitted that the courts dealing with its case lacked impartiality. In that connection it referred to a number of letters from the president of the Commercial Court to various executive authorities:
(i)  A letter to the Ministry of the Economy of 19 January 2006 in which the court president asked the Ministry − which at the time was the body responsible for licensing bankruptcy receivers − for candidates to act as the receiver in the proceedings concerning Blasco. In that letter the court president referred to the instruction of the President to the Cabinet of Ministers, the Prosecutor General and the central bank concerning the audit of the debtor company;
(ii)  A letter to the Prime Minister of 26 April 2005 in which the court president stated that in the period prior to 2001, when the bankruptcy proceedings were suspended, a major part of the debtor’s assets had been transferred to the Ministry of Transport and certain State-owned and other companies. He complained that in the course of the bankruptcy proceedings the Ministry of Transport and Blasco’s management had failed to provide sufficient information about the debtor’s assets and obligations and that Blasco had been transferring assets to third parties outside of the bankruptcy proceedings. The court president went on to inform the Prime Minister that he had informed the law-enforcement authorities that there were indications that Blasco’s management was engaging in criminal activity, and in particular artificially driving the company into bankruptcy. Blasco’s management and their superiors at the Ministry of Transport were not interested in restoring the debtor’s solvency. The court president accordingly asked the Prime Minister for her intervention in order to compel those officials to comply with the law;
(iii)  A letter to the President of Ukraine of the same date and with similar content;
(iv)  A letter to the President of Ukraine of 3 March 2006. In that letter the court president pointed out that the President’s earlier instruction to the Cabinet of Ministers concerning the need to take steps to improve the Blasco situation had not been complied with and that the court had been unable to obtain information from the authorities about the debtor’s assets for more than seven years. In view of those facts the court president invited the President to create a “National Council for the Restoration of Ukraine’s Status as a Seafaring Nation”, which would be tasked with making proposals as to how to return vessels transferred by Blasco to foreign entities or to receive compensation for them. The President’s personal focus on this issue would permit the Ukrainian nation and State to restore their leading role as a seafaring nation among other countries of the world.
25.  For the applicant company, the statements in the above letters were evidence of the fact that the Commercial Court had failed to play an active role in protecting the creditors’ interests. The court was addressing the executive authorities as if it were their subordinate, merely reporting to them instead of exercising the function of a body with effective power over the process. The applicant company also pointed out that the decision of 24 February 2006 to initiate a rehabilitation procedure in respect of Blasco (see paragraph 21 above) referred to the instruction of the President of Ukraine in a way that suggested that it was a document that constituted guidance to be followed by the court.
26.  On the same day, 23 December 2008, the applicant company also lodged a separate application with the HCC asking it to discontinue the bankruptcy proceedings as they were unfair to the creditors and represented an inadequate tool for protecting their interests and, instead, to recognise the State’s direct responsibility for Blasco’s debts. The applicant company cited examples of transfers of the debtor’s assets prior to the initiation of the bankruptcy proceedings and the letters from the commercial court’s president indicating that similar activities could be continuing. The applicant company accordingly submitted that the State must bear full liability for the entire debt owed by Blasco to the creditors.
27.  On 21 January 2009 the HCC allowed the applicant company’s appeal in part, quashed the Court of Appeal’s decision of 12 August 2008, and remitted the case to the Court of Appeal on the grounds that the latter had essentially required the applicant company to comply with the requirements of domestic Ukrainian law concerning record-keeping and submit documentary proof to prove its claims, whereas it should have determined the applicable law and evaluated the claims in that light.
28.  The applicant company lodged an appeal with the Supreme Court, asking it to quash the HCC’s ruling, terminate the proceedings and hold the State fully liable for Blasco’s debts.
29.  On 2 April 2009 a panel of judges of the Supreme Court refused the applicant company leave to appeal to the full Commercial Chamber of that court.
30.  On 27 October 2009 the Court of Appeal allowed the applicant company’s application and recognised its claims against Blasco. However, at the same time it refused to include them in the register of creditors’ claims, holding that the latter had to be done in separate proceedings. The Ministry of Transport appealed, but on 10 November 2010 its appeal was dismissed by the HCC. The ruling of 27 October 2009 then became final.
31.  On 27 November 2009 the applicant company applied to have its claims included in the register of creditors’ claims. Following an initial rejection and appeals against that decision, on 11 January 2012 the Commercial Court included the claims in the register. On 8 August 2012 the Court of Appeal dismissed an appeal by the receiver and upheld that ruling.
32.  On 22 February 2013 the applicant company requested the withdrawal of Judge B., who was presiding over the bankruptcy proceedings at the time, and all the judges of the Commercial Court. It referred to the correspondence of the court president with the various executive authorities (see paragraph 24 above). In addition, the applicant company stated that the Commercial Court was operating in a building in Odessa that had previously belonged to Blasco. It referred to a newspaper article published in 2001. The article reported Blasco’s then CEO saying, at a press conference, that the company was transferring that building to the court in order to secure the court’s cooperation in accelerating the examination of the company’s cases (see paragraph 42 below). For the applicant company, those circumstances raised doubts as to the Commercial Court’s impartiality.
33.  On the same day Judge B. dismissed that request on the grounds that she had only taken over the case in July 2011 and so was not affected by the circumstances referred to by the applicant company, which dated back to 2006 and earlier. Moreover, the judge held that under domestic law it was not possible to request the withdrawal of all the judges of a court, only the judge sitting in the case.
34.  On 29 March 2013 the Court of Appeal’s registry received Blasco’s application requesting the court to set aside its ruling of 27 October 2009 to recognise the applicant company’s claims (see paragraph 30 above) in the light of “newly discovered circumstances”. In particular, according to Blasco, the documents sent to Blasco by the prosecutor’s office on 18 October 2012 showed that the claims presented by the applicant company were unfounded.
35.  On 15 May 2013 the applicant company requested the withdrawal of the panel of the Court of Appeal considering Blasco’s application for reopening. It mainly focussed on the allegation that the debtor had missed the three-year time-limit for lodging the application (see paragraph 49 below) and that, by examining such a belated request, the court was discriminating against it and favouring a State debtor over a foreign company.
36.  On 30 May 2013 the Court of Appeal quashed its own decision of 27 October 2009 in the light of the “newly discovered circumstances”. The court stated that the application had been lodged by Blasco within the statutory three-year time‑limit. On the substance, it found that the applicant company’s claims had been based only on agreements signed by Blasco’s managers between 1997 and 2001 acknowledging certain debts. However, the documents discovered by the prosecutor’s office in 2012 showed that there was no basis in fact for the alleged underlying debt: the applicant company had acquired its claims from Columbus. Columbus’s claims, in turn, had been based on charterparties for Blasco’s vessels (see paragraphs 9 and 10 above). The Court of Appeal found that charterers had presented unsubstantiated bills to Blasco for vessel operating costs which were the charterers’ responsibility to bear. The court concluded that the applicant company’s claims could not be recognised in the bankruptcy proceedings.
37.  On 17 June 2013 the applicant company appealed. It argued, in particular, that it had acquired only Columbus’s claims against Blasco and not its obligations vis‑à-vis Blasco. Moreover, the charterparties to which the Court of Appeal referred had been governed by English law and subject to London arbitration. However, the Court of Appeal had failed to establish that Blasco did in fact have valid claims against Columbus under those contracts and, if so, whether it had attempted to settle them through arbitration. Moreover, the circumstances on which the Court of Appeal had based its decision were not really “newly established” as the courts had been aware of them since at least 24 February 2006 (see paragraph 20 above).
38.  On 8 October 2013 the HCC dismissed the appeal and upheld the decision of 30 May 2013. The applicant company was served with the earlier decision on 12 November 2013.
39.  On 31 December 2013 the applicant company lodged an application for a review of the HCC ruling by the Supreme Court (see the relevant provisions of domestic law in paragraph 47 below). It argued that: (i) the lower courts’ assessment that there were “newly established” circumstances in the case justifying reopening had been erroneous, in particular because Blasco had failed to prove that it had been unaware of the circumstances it had cited as “newly established”; (ii) the courts had erred in their assessment of the evidence in finding that Blasco had not missed the three-year time-limit to request reopening; (iii) the courts’ conclusions concerning the nature and origin of its claims against Blasco had been erroneous as they had not been supported by the evidence in the file; (iv) the HCC had applied the general provisions of the Code of Commercial Procedure concerning evidence and the requirement that judicial decisions be lawful in a divergent manner; (v) the applicant company had been discriminated against in breach of international treaties.
40.  On 11 February 2014 an HCC panel declared the applicant company’s application for Supreme Court’s review inadmissible. It held that the HCC’s ruling concerned the question of whether it was appropriate to reopen proceedings in light of the newly established circumstances, which was a matter of procedural rather than substantive law. There were, therefore, no grounds to examine the petition by the Supreme Court (see paragraph 47 below for the relevant provisions of the domestic law).
41.  According to the applicant company, it only became aware of the ruling of 11 February 2014 on 15 July 2014.
42.  In May 2005 the Commercial Court and the Court of Appeal moved into an office building at 29 Shevchenko Boulevard in Odessa. According to the applicant company, that building used to belong to Blasco and remained on Blasco’s balance sheet. According to a clipping from an Odessa newspaper submitted by the application company, at a press conference in 2001 Blasco’s then CEO stated that, while the bankruptcy proceedings were pending against Blasco, the Commercial Court was looking for new premises. Accordingly, Blasco transferred that building to the court in order to secure the court’s cooperation in accelerating the examination of the company’s cases.