International Arbitration Newsletter - March 2019 | Regional Overview: Europe

Albania

ICSID tribunal declines jurisdiction over voucher treaty claim against Albania

An ICSID tribunal declined to hear claims brought by UK-registered Anglo-Adriatic Group under a 1993 law on foreign investment as amended in 2010 against Albania.

The case concerns privatisation vouchers issued to the public in the 1990s in the legal form of bearer bonds. The vouchers were issued with the promise that they could be used to acquire shares in, or assets of, companies formerly owned by the state. The vouchers could also be sold on the open market.

According to claimants, Albania refused to honour its promise that the vouchers would be used in the country’s privatisation process and denied the fund any possibility to exchange the vouchers. Their validity expired at the end of 2016, causing the claimant a “considerable loss”.

Czech Republic

Czech Republic threatened with treaty claim from Huawei

Chinese telecom company Huawei has announced on the media a letter addressed to the director of the Czech National Cyber and Information Security Agency (NCISA) and the country’s prime minister, Andrej Babiš, threatening the Czech Republic with international arbitration after this agency warned that its technology poses a threat to cybersecurity.

Huawei argues that the NCISA’s allegations have significantly damaged its public image and is demanding a response by the Czech government. If this does not happen, Huawei warns it is prepared to defend its rights through legal action in the courts and through arbitration under relevant bilateral investment treaties. The Czech Republic has a BIT with China concluded in 2005, which provides for ICSID and UNCITRAL arbitration.

Europe

EU approves FTA with Singapore

The European Parliament has voted to approve free trade and investment protection agreements (IPA) between the EU and Singapore.

The IPA and partnership and cooperation agreement must be ratified by EU member states before they can enter into force and will replace 12 bilateral investment treaties that currently exist between EU member states and Singapore – and provides for an investment court system instead of the investor-state arbitration provisions in those BITs

Spain

Swiss Supreme Court rejects application of TP Ferro to set-aside award

In a decision dated 19 January 2019, the Swiss Federal Supreme Court rejected an application by insolvent Spanish company TP Ferro to set aside a partial award issued in June 2017 in a Geneva-seated ad hoc arbitration between the governments of France and Spain.

The dispute relates to the Madrid Agreement of 1995, in which the French and Spanish governments agreed to develop a 44-kilometre high-speed rail link through the Pyrenees, linking the cities of Perpignan in France and Figueras in Spain. The agreement provided that concessionaires for the project would be able to submit disputes with the two states to arbitration before a four-member tribunal. Each of the three parties would appoint a co-arbitrator, who would in turn agree on a chair.

The concession for the rail link was eventually awarded in 2004 to TP Ferro, a specially formed joint venture between construction groups ACS of Spain and Eiffage of France. The concession contract provided for disputes to be submitted for arbitration in accordance with the provisions of the Madrid Agreement, while fixing Brussels as the seat of arbitration. After losing two prior arbitrations relating to the project, TP Ferro submitted a request for arbitration in January 2016, claiming €293 million in damages.

Switzerland

Swiss billionaire settles family buyout dispute

Swiss billionaire Margarita Louis-Dreyfus has settled a buyout of her interests in one of the world’s largest traders in agricultural commodities, LDH, the Dutch holding company that controls commodities trading group Louis Dreyfus.

The Russian-born businesswoman’s family trust Akira completed a buyout of other family members’ minority interests in LDH, a transaction that was reportedly valued at US$900 million. The settlement agreement relates to an ICC dispute arising from a 2007 agreement between LDH’s shareholders, which contained a put-option clause giving the minority shareholders the right to sell their stakes to Robert Dreyfus at a time of their choosing.

Ukraine

Russian court enforces Treaty award against Ukraine in favour of Tatneft

The (Russian) Arbitrazh Court for the Stavropol Region issued a judgment in favour of Russian oil and gas producer Tatneft to enforce a US$112 million investment treaty award against Ukrainian state assets in Russia. The Court recognized the UNCITRAL 2014 award granting Tatneft US$112 million plus interest over the seizure against Ukraine for the loss of its investment in Ukrtatnafa, a joint venture with the Ukrainian government that owned Ukraine’s largest oil refinery.

The refinery was seized by Ukrainian bailiffs in 2007 and a series of court decisions stripped Tatneft and other investors of their shares in Ukrtatnafta, which was eventually acquired by Ukrainian oligarch Igor Kolomoisky’s Privat Group.