GPF GP S.à.r.l. v THE REPUBLIC OF POLAND

GPF GP S.à.r.l. v THE REPUBLIC OF POLAND

The tribunal erred in law in its interpretation of Article 9(1)(b) of the BIT. Properly construed under the Vienna Convention, Article 9(1)(b) confers jurisdiction on the tribunal over FET claims where state measures involving deprivation or restriction of property rights lead to consequences similar to expropriation, and over claims for indirect (including creeping) expropriation, including consideration of all prior measures. The existence of a specific act of expropriation does not preclude a creeping expropriation claim. The tribunal's jurisdiction is not limited as it found.

Parties
Claimant/applicant: GPF GP S.à.r.l.; Defendant/respondent: The Republic of Poland
Jurisdiction
England and Wales
Judgment Date
02 March 2018
Procedural Posture
Arbitration Claim (section 67 Arbitration Act 1996 Challenge) / Judgment on Jurisdictional Challenge to Arbitral Award
Outcome
Application allowed; paragraphs 187(ii) and (iii) of the Award set aside and replaced with declarations of tribunal jurisdiction over all FET and expropriation claims as pleaded.
Legal Topics
Jurisdiction of Arbitral Tribunal, Fair and Equitable Treatment (fet), Expropriation, Creeping Expropriation, Interpretation of Bits, Vienna Convention on the Law of Treaties, Section 67 Arbitration Act 1996
Arbitration International Investment Law Treaty Interpretation Jurisdiction of Arbitral Tribunal Fair and Equitable Treatment (fet) Expropriation Creeping Expropriation Interpretation of Bits +2 more

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Parties

GPF GP S.à.r.l.

Claimant/applicant

The Republic of Poland

Defendant/respondent

Procedural Posture

Arbitration Claim (section 67 Arbitration Act 1996 Challenge) / Judgment on Jurisdictional Challenge to Arbitral Award

Legal Issues

  1. 1 Whether the arbitral tribunal had jurisdiction over claims for breach of the Fair and Equitable Treatment (FET) standard under Article 3.1 of the BIT.
  2. 2 Whether the tribunal had jurisdiction to consider all prior measures as part of a claim for indirect (creeping) expropriation under Article 4.1 of the BIT.
  3. 3 Proper interpretation of Article 9(1)(b) of the BIT under international law and the Vienna Convention.

Ratio Decidendi

The tribunal erred in law in its interpretation of Article 9(1)(b) of the BIT. Properly construed under the Vienna Convention, Article 9(1)(b) confers jurisdiction on the tribunal over FET claims where state measures involving deprivation or restriction of property rights lead to consequences similar to expropriation, and over claims for indirect (including creeping) expropriation, including consideration of all prior measures. The existence of a specific act of expropriation does not preclude a creeping expropriation claim. The tribunal's jurisdiction is not limited as it found.

Court Disposition

Application allowed; paragraphs 187(ii) and (iii) of the Award set aside and replaced with declarations of tribunal jurisdiction over all FET and expropriation claims as pleaded.

Orders

  • Paragraphs 187(ii) and (iii) of the Award set aside.
  • Declaration that the tribunal has jurisdiction over all factual matters, actions, allegations and/or measures relied upon in support of Griffin’s claims for direct and/or indirect expropriation and breach of FET as pleaded.