Summary

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Case Report (free download)

Case Report by Viktoriia Korynevych, Editor Ignacio Torterola

Summary

Claimant, an English holding company, advanced claims on behalf of its Czech affiliated company, which purchased Skoda Export, alleging that Respondent, namely, the Czech Republic, breached the UK - Czech Republic BIT (BIT).

In the Award rendered on 22 February 2017, the Tribunal decided that it did not have jurisdiction in respect of the umbrella clause contained in the BIT because the Agreement for the sale and purchase of all shares in Skoda Export (SPA) did not constitute a specific agreement, as required by Article 2(3) of the BIT. The Tribunal found that the SPA was concluded between Claimant's Czech affiliated company and the Czech Republic and that there was no agreement between a Contracting Party and an investor of the other Contracting Party as contemplated in Article 2(3) of the BIT.

The Tribunal also rejected Claimant's alternative argument that jurisdiction can be established through the MFN clause, given that such clause was out of the scope of Tribunal's jurisdiction established by Article 8(1) of the BIT.

The Tribunal only had jurisdiction over the expropriation claim, as Respondent conceded so during its argument. However, the Tribunal did not find any breach of Article 5 of the BIT on the part of Respondent.

Main issues

jurisdiction - intra-EU BIT; umbrella clause; MFN clause; privity of contract; merits - expropriation claim; attribution of the conduct

WNC Factoring Ltd v. The Czech Republic (PCA Case No. 2014-34) - Award - 22 February 2017

Case report provided by International Arbitration Case Law (IACL)

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