Data privacy of third parties is not for the tribunal to decide

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Tribunal decides that interest rate should be determined based on application to Polish authorities, rather than loan agreement – accepting Poland’s alternative calculation of damages owed

Lack of enforcement of the claimant’s rights was non-transparent, inconsistent, and arbitrary, in violation of the FET standard

FET standard calls for fact-specific inquiry

Undue delay in domestic proceedings, and absence of guarantee of a final outcome of the domestic proceedings in the future, evidence a breach of the effective means standard

Even if other civil and administrative remedies may have been available, claimant could not have been reasonably expected to pursue them considering that it already prevailed in three rounds of court proceedings

No strict exhaustion of local remedies rule applies to effective means standard

Effective means standard extends to compliance by administrative authorities with rulings of domestic courts

ECT’s effective means standard is independent from traditional denial of justice standard

No need to decide if clean hands doctrine is applicable, since no violation of Polish law has been established

Argument that dispute is not ripe for adjudication is moot in light of recent cassation decision

Risk of double recovery is insufficient to establish abuse of process in this case, and can be mitigated

Fork-in-the-road objection is rejected based on distinction between Polish court proceedings and ECT arbitration

Denial of benefits objection is dismissed as claimant has substantial business activities in Cyprus and is not owned and controlled by nationals from a third state

Tribunal doubts that objective definition of investment should be read into the ECT, but Salini test is in any event satisfied

Loan Agreement qualifies as protected investment under the ECT, and is associated with an economic activity in the energy sector

Tribunal finds no origin of capital requirement in the ECT

Considerations regarding the Award’s enforcement are not relevant to the tribunal’s jurisdiction

Tribunal sees no conflict between EU law and intra-EU ECT arbitration – but any conflict would be resolved in favour of the ECT

No inter se modification of the ECT by EU member states

Subsequent instruments relating to the ECT, including modernization negotiations, do not change the tribunal’s conclusion on the intra-EU objection

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