Tribunal rejects Slovakian view that BIT excludes indirect investments

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Tribunal compares ECHR property right with BIT rights

Investor sought unsuccessfully to invoke MFN clause, and to rely on dissent of Brower in prior case under the same treaty

Does the VCLT apply to EU law and the BIT?

Australia’s 2012 shift in BIT policy cited in interpreting treaty object and purpose

Tribunal finds no agreement to resolve dispute outside arbitration

Investor hit with €2 million bill for Slovakia’s costs and legal fees

Waiting period objection dismissed

Investor urges Greenwood-led tribunal to take a similar interpretation to the EMV v. Czech Republic case

Investor claims Slovakia delayed in raising new objections

Slovakia stressed that BIT’s offer of arbitration was available provided that parties had not “otherwise agreed” to resolve the dispute through another channel

Viewed through lens of lex arbitri, investor found to have waived right to arbitration

EC also wades in, at invitation of tribunal

Tribunal canvasses implied termination of BITs via EU accession

In weighing Slovak plea of implied termination, tribunal finds that EU treaties and BITs do not address ‘same subject matter’

No subjective or objective intention to terminate BITs found

Tribunal sees no cause for concern, and distinguishes MOX Plant ruling and Patent Court ruling from this present BIT arbitration

Discrimination objection of Slovakia and EC is also rejected

Tribunal says MFN clause can’t be used to detour around Article 8

Unanimous tribunal says arbitration window is narrow

EURAM had initially nominated dissenter from Austrian Airlines case

Tribunal rejects Slovak contention that intra-EU BITs are inoperative

Views taken on MFN question in Impregilo loom over EURAM case

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