Enkev Beheer BV (of the Netherlands) v. Republic of Poland

Abstract

Procedure — Addition of a party — Conditional application — UNCITRAL Rules, Article 22 — UNCITRAL Rules, Article 17 — Whether the UNCITRAL Rules or lex loci arbitri allowed for applications to be made conditional on a tribunal’s future decision — Whether the application was consistent with the State’s procedural rights — Whether the amendment to a claim under Article 22 of the UNCITRAL Rules allowed for the addition of a third party as claimant

Jurisdiction — Investment — Shares — Whether an investor’s shares and rights derived from those shares were protected investments under the BIT

Jurisdiction — Investment — Assets of subsidiary — Whether profits, goodwill or know-how of a local subsidiary constituted investments of the investor protected by the BIT

Jurisdiction — Consent — Cooling-off period — Premature claims — Whether the investor had communicated its own claims rather than those of its local subsidiary — Whether the investor’s failure to comply with a waiting period of six months under the BIT required a tribunal to deny jurisdiction or admissibility — Whether the negotiation of a local subsidiary’s dispute in good faith was relevant to jurisdiction over a foreign investor’s claims

Interpretation — Cooling-off period — VCLT, Article 31 — Object and purpose — Whether the object and purpose of the BIT required a tribunal not to adopt a strict or formalistic interpretation of the waiting period of six months

Remedies — Declaratory award — Interpretation — Just compensation — Whether the tribunal had jurisdiction under the BIT to make a declaratory award on the interpretation and application of the term “just compensation”

Jurisdiction — Dispute — Whether the tribunal had jurisdiction under the BIT to advise the parties of an imminent dispute

Expropriation — Direct deprivation — Shares — Rights derived from shares — Whether the State directly deprived the investor of its rights as a shareholder in its local subsidiary

Expropriation — Indirect deprivation — Shares — Rights derived from shares — Whether the shares had lost all or almost all significant commercial value — Whether the measures were adopted in the public interest — Whether due process had been followed — Whether there were any undertakings by the State

Expropriation — Interpretation — “Just compensation” — Whether there was any difference between the terms of the BIT and general international law — Whether the meaning of just compensation could be determined in the abstract

Fair and equitable treatment — Whether the impending expropriation constituted a breach of the standard of fair and equitable treatment — Whether the claim concerned the investor’s rights derived from shares

Full protection and security — Whether the State failed to protect an investment from expropriation by local authorities — Whether the claim concerned the investor’s rights derived from shares

Umbrella clause — Whether there was any assurance directed at the investor that created any legal obligations — Whether the claim concerned the investor’s rights derived from shares

Costs — Arbitration costs — Variation by agreement — UNCITRAL Rules — Whether the terms of the BIT varied the default rules for the allocation of arbitration costs