International Arbitration Newsletter July - 2018 | Regional Overview: Europe

BELGIUM

Belgian Agfa-Gevaert wins ICC dispute against bankruptcy receivers for AgfaPhoto fall

In an ICC tribunal award issued recently, Belgian multinational Agfa-Gevaert has defeated an ICC claim for €410 million brought by the bankruptcy receiver the insolvency of AgfaPhoto, a former division of its business.The tribunal rejected claims that Agfa-Gevaert had intentionally and wrongfully caused the insolvency of AgfaPhoto or overstated its value when it was sold to an investor in 2004.The award may potentially bring an end to a decade-old dispute involving multiple arbitrations and court proceedings.

CYPRUS

District Court of Nicosia lifts freezing order against Ukrainian Akhmetov’s SCM Group

In a judgment of early June 2018, the District Court of Nicosia  has lifted an ex parte freezing order it granted over assets held by Ukraine's richest oligarch Rinat Akhmetov in light of claims that he and his companies are deliberately evading payment of a US$820 million LCIA award.The Cyprus court ruled that as the dispute has been ongoing since September 2016 there was no urgency which required the court to issue an injunction without notice, concluding that both parties should be heard before any injunction is awarded.

CZECH REPUBLIC

Dutch Supreme Court dismisses enforcement attempt against the Czech Republic  

In a judgment dated 15 June 2018 the Dutch Supreme Court dismissed the application made by Liechtenstein-registered Diag Human (representing a blood plasma supplier) to enforce a US$650 million award against the Czech Republic.In its latest decision, the Dutch Supreme Court ruled that the award lost its binding effect as a result of an unusual “review process” and upheld a finding of the Amsterdam Court of Appeal that the review process meant that the award had not yet become “binding on the parties”.

England

Ukranian Naftogaz obtains London Commercial Court freezing order against Gazprom

Ukrainian state entity Naftogaz recently announced it has obtained an freezing order from the Commercial Court in London ordering to freeze assets of Russian energy company Gazprom following enforcement of an SCC award worth US$2.6 billion.

The award was issued in early 2018 and followed an arbitration brought by Naftogaz under a 2009 contract with Gazprom governing the transit of Russian gas across Ukraine to consumers in Europe..

THE NETHERLANDS

Dutch Supreme Court upholds Siemens´ ICC Turkish metro award

In a judgment dated 15 June 2018 the Dutch Supreme Court has upheld an ICC award in favour of a Turkish-German consortium (including Turkish companies Güriş and Tüvasas and Germany’s giant Siemens) against the city of Bursa in Turkey over the construction of a city metro system. The court ruled that the application by the Bursa Metropolitan Municipality to set aside the €17 million award was time-barred under the Dutch Code of Civil Procedure, dismissing Bursa’s argument that a set-aside proceeding can be filed prior to the service of an enforcement order provided it is clear that the award will be enforced.

POLAND

Poland granted stay from treaty claim enforcement by Sweden’s appeal court

On 13 June 2018, the Svea Court of Appeal decided to stay an enforcement order requested by Luxembourgish PL Holdings against Poland of a €176 million investment treaty award pending the outcome of a set-aside application based on the Court of Justice of the European Union’s ruling in Achmea, which held that certain investor-state arbitration clauses of intra-EU treaties fall foul of EU law.

While the Swedish appeal court does not set out further grounds for its decision, it understands that there was “sufficient reason” to order the stay.This decision replicates an earlier decision taken by the same court some weeks ago, which stayed enforcement of an Energy Charter Treaty award against Spain on the same basis.

ROMANIA

Romania hit by Energy Charter Treaty ICSID claim

On 12 June 2018 an Energy Charter Treaty claim brought by a group of European energy investors against Romania was registered before ICSID.The claim, which is understood to exceed US$250 million, relates to the state’s cuts to a renewable energy incentive scheme created in October 2011 and which included a requirement that energy distributors purchase “green certificates” for every megawatt hour of power that they sold.. According to the investors, Romania has done a number of things that have effectively destroyed the demand for green certificates.

SPAIN

Spain hit by another intra-EU Energy Charter Treaty arbitration loss

In a recent award dated 15 June 2018 an ICSID tribunal ordered Spain to pay €112 million in compensation to a pair of European solar investors in one of the multiple Energy Charter Treaty arbitrations it faces over reforms to its renewable energy subsidy regime.The Antin companies argued that the 7% levy on electricity production revenues that Spain introduced in 2012 was discriminatory, and that some of the other measures imposed by the Spanish government had violated the legitimate expectations of the investors. While the arbitral tribunal rejected the first argument, it did accept the latter.

The award marks Spain’s fourth loss in more than 30 ECT claims filed against the state over reforms to its renewable energy subsidy regime.

Spanish tribunal sets aside windfarm award  

A judgment of the Superior Court of Justice of Madrid upheld an application by Spain’s Engasa Eólica to set aside an October 2016 SCC award in favour of Danish-owned wind energy contractor Vestas on public policy grounds.The court ruled that the award had the “appearance of arbitrariness” because of the tribunal majority’s failure to address certain evidence that contradicted its interpretation of the parties’ construction contract as excluding Vestas from liability for work undertaken by a subcontractor.