Background: Lien for unpaid taxes prompted treaty-based claims

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Poland started participating in the proceeding after a majority ordered the state to pay its advances for costs

Tribunal applied legal notion of tax residency under Spanish law

Majority dismissed the rest of the claimants’ claims for lack of causation

Poland could only be held liable for damages caused by the lien, according to the majority

Tribunal unanimously rejected the claimants’ claim for discriminatory measures for lack of evidence

Majority found Polish court decision to be evidence of Poland’s breach of the BIT’s non-impairment obligation

Costs were split evenly between the parties

Majority rejected the claimants’ claims for lost profit

Claimants were not required to post security for costs, as Poland failed to prove exceptional circumstances

Exhaustion of local remedies was not a condition of admissibility

Majority rejected Poland’s fork-in-the-road objection as belated

Claimants could not rely on MFN clause to avoid the BIT’s residency requirement

Buried in Enkev award is evidence that arbitrators in earlier Eureko v. Poland case were also constrained by a BIT clause directing each side to pay its own arbitrator – leading to unnoticed reversal of initial costs ruling

Eureko’s claims partly ruled out by waiver clause

‘About face’ on privatisation underpins BIT breach

Costs follow the event

Omissions count as measures

Contractual breaches elevated to treaty breaches via umbrella clause

Dissenter fears ‘privileged class of foreign parties’

Tribunal rejects Poland’s views on attribution, relying on work of Poland’s own counsel

Dissenter saw only a private, commercial dispute, with no firm right to an IPO

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