The Czech Republic v Diag Human SE and Anor 2024 EWHC 503 Comm - 08 March 2024
Country
Year
2024
Summary
1. On 18 May 2022, a tribunal appointed under the Agreement between the Czech and Slovak Federal Republic and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments of 5 October 1990 ("the Investment Treaty") made an award in an arbitration commenced by Diag Human SE and Mr Stava ("the Claimants") against the Czech Republic ("the Award").
2. The Award:
i) rejected various jurisdictional objections raised by the Czech Republic, save that made in respect of events pre-dating the entry into force of the Investment Treaty on 7 August 1991;
ii) found that the Czech Republic had breached the "fair and equitable treatment" obligation arising under Article 4(2) of the Investment Treaty in certain respects; and
iii) ordered the Czech Republic to pay damages of US$350m and interest, and to pay 70% of the costs.
3. On 15 June 2022, the Czech Republic brought challenges to the Award under sections 67 and 68 of the Arbitration Act 1996 ("the 1996 Act"). The court made orders for the exchange of statements of case and the service of evidence, and the hearing of the entirety of the Czech Republic's challenge was fixed for a 7-day hearing, beginning with a solitary judicial reading day on 29 January 2024. However, issues arose in December 2023 and January 2024 from the service of further evidence by the Claimants and of an amended statement of case by the Czech Republic which made it impracticable to hold the entirety of the hearing on that date.
4. In those circumstances, on 16 January 2024 I adjourned aspects of the challenge, and ordered that this hearing would address the following issues:
i) whether the Czech Republic was barred under s.73 of the 1996 Act from advancing certain of its challenges;
ii) whether certain of the matters raised by the Czech Republic under s.67 of the 1996 Act are properly characterised as jurisdictional;
iii) the Czech Republic's challenge under s.68 of the 1996 Act; and
iv) certain procedural issues.
5. A very large number of issues have been put in play by the Czech Republic's various challenges. As is often the case, the merits of the points taken vary considerably. One consequence of the decision to run quite so many points is that the parties' advocacy efforts, and the court's time, have been spread thinly over a large area. Particularly on the Czech Republic's part, the 50-page skeleton limit was met by including lengthy, dense, footnotes, one of which cited 9 authorities (the court being taken to none of them in argument). However hard-fought the litigation, greater selectivity in the points run would have allowed more time and attention to be devoted to the points which really mattered, which raised a number of interesting points.
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