International Arbitration Newsletter - January 2019 | Regional Overview: Europe
The most relevant European updates from the global International Arbitration and ADR practice group at Garrigues.
Bulgaria hit by ICSID claim on investment of gated community
On 27 December 2018 ICSID registered a case brought against Bulgaria by Israeli entrepreneurs Moti Ramot and Rami Levy under the 2011 Israel-Bulgaria bilateral investment treaty, seeking US$60 million claim from the state for its alleged use of courts to seize a luxury gated community in Sofia.
The claim relates to Ramot´s and Levy´s investment in the gated community Vitosha Village, through a Bulgarian limited liability company. Shortly before the first property sales, a court in Sofia attached the whole village as part of bankruptcy proceedings relating to a contractor who had worked on the project.
Italy receives first solar claim award against it
A Stockholm Chamber of Commerce tribunal has found Italy liable for breaching the Energy Charter Treaty and issued an award in favour of Denmark's Athena Investments and Luxembourg fund Novenergia, which have already won similar ECT claims against Spain.
The dispute relates to the Italian government’s decision to cut tariff incentives for some solar power projects, following similar measures adopted by Spain, the Czech Republic, Greece, Bulgaria, Romania and Germany in the wake of the global financial crisis. Under a 2014 Italian parliamentary decree, investors were ordered to accept one of three measures: a cut to feed-in tariffs of between 6% and 8% under 20-year agreements; the spreading of subsidies over a longer period of 24 years or a new agreement providing a reduced tariff incentive for an initial period and a higher incentive in a later period.All three proposals were challenged before Italy’s constitutional court, which in December 2016 rejected the challenge as “groundless” and held that the decree was constitutional. Italy also withdrew from the ECT in 2016.
Romania hit by ECJ action over Micula brothers ICSID award enforcement
The European Commission will refer Romania to the European Court of Justice over the state’s failure to recover up to €92 million in illegal state aid allegedly granted to the Micula brothers- Swedish nationals of Romanian origin- to comply with an ICSID award.The Commission said that Romania had failed to fully implement a Commission decision from 2015 which had found that compensation paid under the ICSID award worth €178 million, in an ICSID claim concerning the state’s early withdrawal of certain economic incentives that had benefited their food production businesses, would constitute illegal state aid. Already in 2015, the European Commission directed Romania not to pay the award on the basis that it amounted to a de facto reinstatement of the incentives and would constitute illegal state aid under EU law.
ICSID tribunal accepts jurisdiction to hear round-trip claim against Serbia
An ICSID tribunal recently issued an award accepting jurisdiction over what was alleged to be a “round-trip” claim against the state, brought by a Serbian investor Marko Miskovic via Cypriot-incorporated investment holding company Mera Investment Fund under the Cyprus-Serbia bilateral investment treaty. It is Mera’s case that from 2013 onwards Serbia adopted a series of measures against this company that effectively destroyed its investments in the Balkan state, including freezing its assets, slapping it with bogus tax claims and blocking its bank accounts.
In its objections to jurisdiction, Serbia alleged that Mera was in reality nothing more than a “conduit” for Miskovic and his father to “gain access to a dispute settlement mechanism reserved for investment and investors of foreign character”.
Spain faces ECT claim brought by European Solar Farms
On 21 December 2018 ICSID registered an new ECT claim against Spain, which has been brought by European Solar Farms, a Danish subsidiary of Denmark’s European Energy.The dispute relates to relates to the Spanish government’s decision to cut tariff incentives for some solar power projects, following similar measures adopted by other EU countries.
Turkey hit with new ICSID claim in uranium mining dispute
US company Westwater Resources and its CEO Christopher Jones have filed a claim against Turkey at ICSID under the US-Turkey bilateral investment treaty over the seizure of uranium mines in 2018.The dispute relates to Westwater’s Turkish subsidiary Adur Madencilik LimitedSirketi´s exclusive rights for the exploration and development of uranium mines at Temrezli and Sefaatli. Westwater says that in June 2018, the government cancelled all seven licences with retroactive effect, rendering its investment in the company effectively worthless.