Summary

Source: icsid.worldbank.org

TABLE OF CONTENTS

I. INTRODUCTION
II. PROCEDURAL HISTORY
1. INITIATION OF THE ARBITRATION PROCEEDINGS AND CONSTITUTION OF THE ARBITRAL TRIBUNAL
2. FIRST CMC, TERMS OF APPOINTMENT AND PROCEDURAL ORDER NO. 1
3. SUBMISSION OF THE PARTIES AND POS OF THE TRIBUNAL IN THE BIFURCATED PROCEEDINGS
III. FACTUAL BACKGROUND TO THE DISPUTE
1. CLAIMANT
2. MR. ANSARY'S INCURSION INTO THE DUTCH CARIBBEAN BANKING AND INSURANCE SECTOR
3. THE ENNIA GROUP
3.1 The original structure of the Ennia Group
3.2 Central Bank's request for the change in the corporate structure
4. THE CENTRAL BANK'S CONCERNS REGARDING THE SOLVABILITY OF THE INSURERS
5. THE EMERGENCY DECLARATION
6. THE LIQUIDATION OF ASSETS OF THE ENNIA GROUP
7. THE CONSEQUENCES OF THE EMERGENCY DECLARATION REGARDING CLAIMANT
8. THE 2021 AND 2023 JUDGMENTS
IV. REQUEST FOR RELIEF
V. THE RATIONE MATERIAE JURISDICTIONAL OBJECTION
1. WHETHER CLAIMANT HAS A PROTECTED "INVESTMENT"
1.1 Respondent's Position
A. Claimant's alleged shareholding in Ennia does not qualify for protection under the BIT
B. Claimant's pension and salary rights do not qualify as protected investments
C. Respondent's argument regarding the application of the European Convention on Human Rights
1.2 Claimant's Position
A. Claimant's shareholding in Ennia qualifies for protection under the BIT
B. Claimant's pension and salary rights qualify as protected investments
C. Claimant's argument regarding the application of the European Convention on Human Rights
VI. TRIBUNAL'S DECISION
1. CLAIMANT'S SHARES IN PARMAN DO NOT QUALIFY AS AN INVESTMENT
1.1 Claimant has no contingent right to the Parman shares owned by
1.2 The alleged assignment of the founder's powers to Claimant does not confer him a contingent right to the Parman shares owned by ...
2. CLAIMANT'S CLAIM FOR SALARY AND PENSION DO NOT QUALIFY AS AN INVESTMENT
3. CLAIMANT'S ARGUMENT REGARDING THE APPLICATION OF THE ECHR
VII. COSTS
1. ARBITRATORS' FEES AND EXPENSES, THE TRIBUNAL'S OTHER COSTS AND THE ADMINISTERING AUTHORITY'S FEES
1.1 Arbitrators' Fees and Expenses and the Tribunal's Other Costs
1.2 The Tribunal's Other Costs
1.3 The Administering Authority's Fees
2. DEPOSITS MADE BY THE PARTIES
3. THE PARTIES' LEGAL AND OTHER COSTS
4. THE PARTIES' POSITIONS ON COSTS ALLOCATION
4.1 Claimant's Position
4.2 Respondent's Position
5. DECISION
VIII. THE TRIBUNAL'S DECISION

I. INTRODUCTION

1. This case concerns a dispute submitted under the Agreement on the Encouragement and Reciprocal Protection of Investments between the Lebanese Republic and the Kingdom of the Netherlands, signed on 2 May 2002, which entered into force on 1 March 2004 (the "Dutch-Lebanese BIT," the "BIT" or the "Treaty") and pursuant to the 1976 UNCITRAL Arbitration Rules ("UNCITRAL Rules") and the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the "UNCITRAL Transparency Rules").1

2. The case was brought by Mr. Abdallah Andraous ("Claimant") against the Kingdom of the Netherlands ("Respondent"). Claimant and Respondent are jointly referred to as the "Parties." The complete list of the Parties' representatives and their respective addresses have been provided on the cover sheet of this Award.

3. The dispute relates to Claimant's alleged investment in the Ennia Group, one of the largest insurance groups in Curaçao, a constituent country of Respondent. Claimant alleges that, in July 2018, the Central Bank of Curaçao and St. Maarten ("Central Bank") unlawfully intervened with the insurance companies of the Ennia Group, on the unsubstantiated grounds that the Group had fallen short of the solvency and liquidity requirements imposed by the banking and insurance regulations. According to Claimant, after the takeover, the Central Bank implemented a series of measures that depleted the Ennia Group of its value.2 The Curaçao courts later confirmed that the Central Bank's actions were lawful, which, in Claimant's view, definitively resulted in the expropriation of his investment.3

4. Claimant requests inter alia that the Tribunal declare that Respondent breached its Treaty obligations and order Respondent to compensate Claimant for its alleged losses arising from the alleged breaches.4

5. At the outset of these proceedings, Respondent stated that it would submit jurisdictional objections, and the Parties agreed to bifurcate the proceedings in order to first address these jurisdictional objections.5

6. In this phase of the proceedings, Respondent raised the following jurisdictional objections:6

7. First, Respondent argues that the Tribunal lacks jurisdiction ratione personae because Claimant is not a qualifying "investor" within the meaning of the BIT. It is undisputed that during the relevant time, Claimant was a Dutch-Lebanese national.7 To the extent the BIT protects dual nationals, Respondent argues that Claimant bears the burden of proving that his dominant and effective nationality was Lebanese, which he failed to do.

8. Second, in two ratione materiae objections, Respondent argues that:

a. Claimant's alleged shareholding (i) was allotted to him and thus involved no contribution from Claimant; (ii) Claimant has not held title to said shares since 2015, when he transferred them to a Curaçaoan entity; and (iii) in any event, Claimant's connection to the Ennia Insurance companies - the assets allegedly affected by the State's measures - is far too remote to be granted protection under the BIT;

b. Claimant's salary and pension rights do not qualify as protected investments under the BIT.

9. To proceed, therefore, Claimant must overcome both of Respondent's objections and satisfy its burden of proving both jurisdiction ratione personae and ratione materiae.

10. As discussed in more detail below, the Tribunal concludes that it lacks jurisdiction rationae materiae. Claimant alleges that his investment consists of his alleged shareholding, but he has not held title to said shares since 2015, and his alleged salary and pension rights do not qualify as protected investments. Given this conclusion, it is not necessary to address Respondent's ratione personae objection because even if Claimant could establish jurisdiction ratione personae, Claimant's claims could not proceed.

...

VIII. THE TRIBUNAL'S DECISION

244. For the foregoing reasons, the Tribunal decides to:

a. Dismiss all claims brought by Mr. Abdallah Andraous against the Kingdom of the Netherlands in this arbitration because the Tribunal lacks jurisdiction ratione materiae;

b. Order Mr. Abdallah Andraous to pay the Kingdom of the Netherlands 1,756,204.26 EUR and USD 183,633.60.

c. Reject all other claims.

Footnotes omitted