Summary

Source: icsid.worldbank.org

EXCERPTS

Arbitral Tribunal
Dr. Laurent Lévy, President of the Tribunal
Mr. Peter Rees KC, Arbitrator
Dr. Gabriel Bottini, Arbitrator

TABLE OF CONTENTS

INDEX OF ABBREVIATIONS
TABLE OF CASES
I. INTRODUCTION
A. THE PARTIES
B. THE ARBITRAL TRIBUNAL
C. ICSID SECRETARIAT
D. ASSISTANT TO THE TRIBUNAL
II. JURISDICTION
III. FACTUAL BACKGROUND
[redacted] IV. PROCEDURAL HISTORY
V. PRELIMINARY MATTERS
A. THE PARTIES' PRAYERS FOR RELIEF
1. The Claimant's prayers for relief
2. The Respondent's prayers for relief
B. LAW APPLICABLE TO THE MERITS
C. RELEVANCE OF PRIOR AWARDS
VI. OVERVIEW
VII. JURISDICTION AND ADMISSIBILITY
A. INTRA-EU OBJECTION
1. The Respondent's position
2. The Claimant's position
3. The European Commission's written submission
4. Analysis
4.1 Law applicable to jurisdiction
4.2 Interpretation and scope of Article 26 ECT
4.3 Conflict of treaties analysis
4.4 Modification under Article 41 VCLT
4.5 The relevance of prior awards and decisions
4.6 Conclusions on the Intra-EU Objection
B. THE TAX OBJECTION
1. The Respondent's position
2. The Claimant's position
3. Analysis
C. THE FORK-IN-THE-ROAD OBJECTION
1. The Respondent's position
2. The Claimant's position
3. Analysis
D. STANDING
1. The Respondent's position
2. The Claimant's position
3. Analysis
E. ABSENCE OF BREACH
1. The Respondent's position
2. The Claimant's position
3. Analysis
F. CONCLUSIONS ON JURISDICTION
VIII. LIABILITY
A. FAIR AND EQUITABLE TREATMENT
1. The Claimant's position
2. The Respondent's position
3. Analysis
3.1 General content of FET
3.2 FET's scope of protection
3.3 Conditions for HCOB and the Loan to receive FET
3.4 Obligation to compensate
3.5 Proportionality
3.6 Arbitrary and unreasonable treatment
3.7 Legitimate expectations
3.8 Conclusions on FET claim
B. FULL PROTECTION AND SECURITY
1. The Claimant's position
2. The Respondent's position
3. Analysis
C. MINIMUM STANDARD OF TREATMENT
1. The Claimant's position
2. The Respondent's position
3. Analysis
D. EFFECTIVE MEANS OF LEGAL RECOURSE
1. The Claimant's position
2. The Respondent's position
3. Analysis
E. INDIRECT EXPROPRIATION
1. The Claimant's position
2. The Respondent's position
3. Analysis
F. CONCLUSIONS ON LIABILITY
IX. QUANTUM
X. COSTS
XI. AWARD

I. INTRODUCTION

1. This case concerns a dispute submitted to the International Centre for Settlement of Investment Disputes (ICSID or the Centre) on the basis of the Energy Charter Treaty of 1994, which entered into force on 16 April 1998 (the ECT), and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 and became binding on Germany from 18 May 1969 and on Italy from 28 April 1971 (the ICSID Convention).

A. THE PARTIES

2. The Claimant is Hamburg Commercial Bank A.G. (HCOB), a private international commercial bank incorporated under the laws of the Federal Republic of Germany (Germany) and having its registered office in Hamburg, Germany. HCOB was formerly known as HSH Nordbank AG and was a Landesbank for the German federal State of Schleswig-Holstein and the Free and Hanseatic City of Hamburg. After being privatized in 2018, HSH Nordbank AG changed its name to HCOB. In this Award, unless stated otherwise, all references to HCOB shall be understood to include HSH Nordbank AG.

3. The Respondent is the Italian Republic (Italy), a sovereign State that is a member of the European Union (EU) as well as a Contracting Party to the ICSID Convention and the ECT.

4. HCOB and Italy are each referred to as a Party and collectively as the Parties. The Parties' representatives and their addresses are listed above on page (i).

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XI. AWARD

751. In light of the foregoing considerations and determinations, the Tribunal:

a. DECLARES that the Tribunal has jurisdiction over the entire dispute involving the Claimant and the Respondent;

b. DECLARES that Italy has not violated its obligation to accord fair and equitable treatment to the Claimant or its investment under Article 10(1) second sentence of the ECT;

c. DECLARES that Italy has not violated its obligation to grant full protection and security to the Claimant's investment under Article 10(1) third sentence of the ECT;

d. DECLARES that Italy has not violated its obligation to ensure minimum standard of treatment to the Claimant's investment under Article 10(1) fourth sentence of the ECT;

e. DECLARES that Italy has not violated its obligation to ensure effective means of legal recourse to the Claimant under Article 10(12) of the ECT;

f. DECLARES that Italy has not violated Article 13 of the ECT as the Measures did not result in an unlawful indirect expropriation of the Claimant's investment;

g. DECLARES that, consequently, Italy is not liable to compensate the Claimant;

h. DECLARES that each Party shall bear the costs of the arbitration in equal shares;

i. DECLARES that each Party shall bear its own legal fees and expenses incurred for the preparation and presentation of the case; and

j. DISMISSES all other claims and prayers for relief.

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