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Neither Partial Award nor Final Award violated Czechia’s right to be heard
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Right to be heard entails minimum obligation to address main issues, but no obligation to examine every single argument
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2021 decision dismissing Achmea objection as inadmissible should have been challenged separately
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Czech Republic can challenge Partial Award based on alleged denial of right to be heard regarding merits determinations
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Court declines to rule on alleged conflict of interest stemming from counsel’s previous work with the PCA
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Background: Czech Republic applies for annulment of 15-million-USD Final Award and previous Partial Award
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State is ordered to bear arbitration costs and pay 75% of claimants’ legal costs
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Pre-award and post-award interest added, at different rates
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Tax gross-up rejected; no precedent and no clear evidence that award would be taxed
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Tribunal sets 9.4% as hypothetical reasonable rate of return that European Commission would have determined, and awards compensation for plants achieving lower returns due to solar levy
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Separate causation arguments dismissed
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EU state aid rules play central role in tribunal’s damages analysis
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Contributory fault principle also not applicable
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No grounds for finding that claimants caused their own loss by “provoking” the solar levy
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Tribunal rejects state view that alternative measure would have caused same losses, even if solar levy had not been enacted
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No concerns over parallel claim by parent and subsidiary for same loss, except to avoid double recovery
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Tribunal permits one claimant to be replaced by new Cypriot entity following merger
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Newly-raised Achmea objection is found to be inadmissible, coming four years after merits award
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Proceedings saw numerous arbitrator movements
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Declarations by EU Member States constitute an authentic interpretation of the treaties
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EU treaties and the BIT cover the same subject matter and are incompatible, dissenter holds
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Dissenter considers that EU treaties provide for conflict rules that disapply BIT’s arbitration clause
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Alleged unenforceability of the award cannot deprive the tribunal of jurisdiction
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Comity cannot trip the case, since it is inapplicable in the circumstances
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