June 2019 - international litigation blog
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June 2019

June 27, 2019 In Arbitration agreement, Jurisdictional issues By Quentin Decleve

U.S. Supreme Court Rules on Threshold Issues of Arbitrability

Earlier this year, the U.S. Supreme Court (the Supreme Court or the Court) handed down two interesting decisions on the question of who, between a judge and an arbitrator, was properly positioned to answer the threshold question of whether a specific dispute is subject to arbitration and whether the parties are entitled to delegate that issue to arbitrators.READ MORE

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June 18, 2019 In Annulment of arbitral awards, Intra-EU BIT By Quentin Decleve

EU General Court Annuls Micula State Aid Decision

On 18 June 2019, the General Court of the European Union (the General Court) handed down its long-awaited judgment in the Micula case.

As we discussed before, this case finds its origins in the investment made by the Miculas, two investors of Swedish nationality, in the food production sector in Romania in the 1990s. At the time of investment they relied on numerous tax incentives regimes that Romania had put in place in order to attract foreign investment.

In 2005, as Romania prepared to accede to the European Union, the tax incentives were revoked in an effort to conform to EU law on State aid.

The Miculas then instituted ICSID proceedings against Romania based on the Romania-Sweden Bilateral Investment Treaty, arguing that the revocation of the tax incentives constituted a breach of their rights under that treaty. The arbitral tribunal issued its award in 2013, holding that by revoking the incentives, Romania had indeed failed to award the claimants fair and equitable treatment. The arbitral tribunal awarded the Miculas EUR 180 million.

In 2015, the European Commission handed down a decision (the 2015 EU decision) declaring that the ICSID award in favour of the Miculas amounted to State aid. The 2015 EU decision required Romania to refrain from paying the amount due under the award. The Commission also ordered Romania to recover any compensation already awarded to the Miculas.

The Miculas sought to challenge this 2015 EU decision before the General Court.READ MORE

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June 11, 2019 In Arbitration agreement, Class arbitration By Quentin Decleve

U.S. Courts Cannot Infer Class Arbitration from Ambiguous Arbitration Clause

The U.S. Supreme Court (the Supreme Court) has been historically wary of permitting class arbitration (see previous blog post), especially in the absence of clearly defined limits or of express language permitting it in an arbitration agreement. The Supreme Court affirmed this restraint in a recent 5–4 decision, Lamps Plus, Inc., v. Varela, in which it held that courts cannot infer parties’ consent to class arbitration from an ambiguous arbitration clause in an employment contract.READ MORE

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