International Arbitration Newsletter - September 2021 | Regional Overview: Europe

BELGIUM

US pharma company wins a fraud case

The US pharmaceutical company Perrigo has been awarded approximately US$ 412 million in damages, interest and costs in relation to an CEPANI arbitration concerning its US$ 4.3 billion acquisition of Belgian health products provider Omega Pharma. According to Perrigo, Omega’s sellers (Belgian controlled Alychlo and Waterland subsidiary, Holdco) were found jointly and severally liable for having “deliberately concealed” relevant information.The found that the sellers were held liable for “incidental fraud”, meaning that they did not give enough information during the sale.

FRANCE

Council of State upholds €33 million ICC award

France’s supreme administrative court, the Council of State, has dismissed Italy’s Tecnimont and France’s TCM applications to set aside  the €33 million ICC award in favour of Engie’s subsidiary Fosmax, the owner of the Fos Cavaou LNG terminal on the French Mediterranean..

Tecnimont, Saipem and TCM formed a consortium (“TST”) which was awarded the construction contract to build the terminal by Fosmax, at the time a public entity. The contract had no applicable law clause but an amendment was introduced to include an ICC arbitration clause that instructed the tribunal to decide if French law applied.

After Fosmax alleged to have discovered major defects during the terminal’s construction, it decided to replace TST with other contractors. Fosmax launched a first ICC arbitration against TST seeking compensation for delays and cost overruns on the project and claiming that, under French administrative law, TST should bear the cost of the remedial works. This arbitration ended with the tribunal awarding TST €128 million, Fosmax approximately €70 million and concluding that private French law applied to the construction contract, preventing Fosmax from replacing TST and forcing it to bear the remedial costs.

Fosmax applied to the Council of State to set aside the award arguing that French administrative law applied. The Council of State agreed with Fosmax and found that the contract was administrative in nature and partially annulled the award in relation to the remedial works.

Fosmax filed a second ICC arbitration in 2017 requesting the remedial works’ costs in which the arbitral tribunal ordered TST to pay Fosmax €33 million plus interest, while dismissing all counterclaims. TST then sought to set aside the award. In this latest decision, the Council of State dismissed all of TST’s arguments and stated that a dismissal or rejection of an application to set aside an award is equivalent to an enforcement order.

MOLDOVA

The Court of Justice of the European Union rules against the use of intra-EU investment arbitration under the ECT

The Court of Justice of the European Union (CJUE) in its recent ruling in Komstroy v Moldova (Case -741/19) held that

it had jurisdiction to interpret the Energy Charter Treaty (ECT). It did so  on the basis that (i) the ECT being part of the EU legal order, as it was concluded by the EU itself, (ii) its competence to interprete the ECT regardless of whether its application falls in or outside the scope of EU law and (iii) French law being the lex fori as freely chosen by the parties to the dispute.

Having established its jurisdiction, the CJUE further held  that in line with the Achmea case on which we have reported previously intra-EU investment arbitration under the ECT as incompatible with the EU’s legal order.

SPAIN

Spain to compensate German energy company more than €30 million

An ICSID tribunal has found in favour of the German company Steag GmbH and ordered Spain to pay millions of euros in compensation. This is the latest in a series of claims brought by investors  against the Spanish state following the cuts made in 2013 to renewable energy incentives.

Steag GmbH sought  to claim €96.6 million, but the tribunal ordered compensation of €27.6 million, which together with fees and costs represents a cost to Spain of more than €30 million.

According to the latest report by the Independent Authority for Fiscal Responsibility (AIReF), Spain has awards of almost €10 billion against it.