Flemingo DutyFree Shop Private Limited v. Republic of Poland

Abstract

Jurisdiction – Investment – Indirect investment – Shares – Contract – Concession – Whether an indirect investment in shares constituted a protected investment – Whether lease agreements entered into by a local subsidiary qualified as protected contractual rights or concessions

Jurisdiction – Foreign investor – Indirect investment – Made in the territory – Remoteness – Whether the investor made an investment in the State’s territory by acquiring shares in an investment that had previously been made – Whether the investor was not protected because it was not the ultimate beneficiary of the investment – Whether the investor was too remote from the original investment

Admissibility – Forum shopping – Parallel proceeding – Municipal law – Whether the claims were inadmissible because the investor had engaged in forum shopping – Whether the claims were inadmissible because the impugned acts were still being litigated in the domestic courts

State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 4 – De facto State organ – Whether an airport operator was a State organ under customary international law

State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 5 – Governmental authority – Whether an airport operator exercised governmental authority regarding the impugned termination of lease agreements

Evidence – Adverse inferences – Document production – Attribution – Whether adverse inferences on the attribution of conduct should be drawn from the State’s refusal to comply with the tribunal’s document production orders

Fair and equitable treatment – Contract – Bad faith – Evidence – Municipal law – Whether lease agreements were terminated in bad faith – Whether judicial findings of abuse of right under municipal law were relevant to the standard of fair and equitable treatment

Expropriation – Contract – Whether the termination of lease agreements expropriated the investment without compensation

Remedies – Compensation – ILC Articles on State Responsibility, Article 31(1) – Full reparation – Lost profits – One-time expenses – Valuation date – Discounted cash flow – Whether full reparation included loss of profits – Whether there was any material difference between operating costs and lost profits – Whether the investor was entitled to recover one-time expenses arising from termination of the lease agreements – Whether the investor had established a realistic scenario of lost profits but for the termination of the lease agreements – Whether discounted cash flow was the best method to determine the lost profits of an income-producing investment – Whether subsequent reduction of shareholding was relevant to the assessment of compensation

Costs – UNCITRAL Rules, Article 40(1) – Costs follow the event – Circumstances of the case – Whether the circumstances allowed the tribunal to depart from the principle that costs should follow the event