DC court reaches pro-investor decision for enforcement of intra-EU arbitration awards in the United States
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This blog post addresses a December 2022 decision of the District Court for the District of Columbia (District Court) dismissing Romania's application to overturn its decision to enforce the Micula v Romania award. The District Court’s decision evinces a pro-investor stance towards the enforcement of intra-EU awards in the US:
The Micula award
In 2002, Romania entered into a bilateral investment treaty (BIT) with Sweden. In July 2005, the Micula brothers brought arbitration proceedings against Romania under the BIT. Romania later acceded to the EU on 1 January 2007.
In December 2013, a tribunal found in favour of the Micula brothers and awarded them approximately EUR 178 million. The Miculas then sought to enforce the award in the US.
Meanwhile, the European Commission (EC) investigated the award as possible unlawful State aid. In March 2015, the EC found that the award was State aid and prohibited Romania from complying with it. On appeal, in June 2019 the EU General Court overturned the EC's decision for lack of competence.
In the meantime, in March 2018 the Court of Justice of the European Union (CJEU) handed down the decision in Achmea v Slovak Republic (Achmea), holding that the arbitration provisions in BITs between EU Member States were contrary to EU law. In September 2021, the CJEU held in Komstroy v Moldova (Komstroy) that the same applied to arbitrations between EU Member States under the Energy Charter Treaty (ECT).
In the US, the District Court confirmed the Micula award on 11 September 2019. It noted that a federal court's rule in enforcing ICSID awards was limited only to examining the award's authenticity and enforcing the obligations imposed by it, and that it was not permitted to examine the award's merits, nor the tribunal's jurisdiction. It dismissed Romania's claim that the District Court lacked jurisdiction as a result of the Achmea decision.
In 2022, the CJEU issued two further decisions on the Micula case. First, it overturned the General Court's 2019 decision, holding that the EC was competent to find that the award was unlawful State aid. In consequence, it then held that the Miculas could not enforce the award within the EU.
District Court rejects attempts to reverse its 2019 decision
In March 2022, Romania applied to the District Court for relief from its prior judgments, pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b) provides that in limited circumstances, a party may seek exemption from complying with a judgment and request to reopen its case. Romania argued that:
- the District Court’s previous findings relied on the General Court’s judgment, which had since been overturned by the CJEU;
- the CJEU found that there was no valid arbitration agreement under the Romania-Sweden BIT;
- the lack of a valid arbitration agreement meant that the arbitration exception in the Federal Sovereign Immunities Act did not apply; and
- the District Court therefore lacked jurisdiction.
The District Court denied Romania’s petition. Two points in the judgment are particularly important for enforcement purposes.
First, the District Court stated that the CJEU's decisions did not affect its findings that the Achmea judgment did not apply. In its first decision, it held that Achmea did not apply primarily because the facts were different to the Micula case. The District Court had only subsidiarily referred to the General Court's 2019 decision for support. The fact that the CJEU had overturned the EU General Court decision did not change the District Court’s position.
The court further noted that the CJEU decision “says little” about the arbitration agreement. Although the CJEU found that the arbitration agreement “lacked any force” from the time Romania acceded to the EU, that holding did not affect the District Court’s analysis of the agreement’s validity. This was because Romania's consent was perfected prior to accession: “The CJEU Decision did not invalidate or nullify Romania’s consent to arbitrate at the time it entered the treaty with Sweden or when Petitioners filed for arbitration” (p. 14).
The District Court thus upheld its jurisdiction to enforce intra-EU ICSID awards even following the CJEU's decisions in Achmea, Micula and Komstroy.
Second – and most notably – the District Court noted that the CJEU decision "held only that, under EU law, a court of a Member State could not enforce the Award" (p. 14), which did not affect the District Court's jurisdiction. Neither did the EC's State aid decision affect the court's jurisdiction: "The fact that EU law, as interpreted by the ECJ, bars EU Member State courts from enforcing the Award because payment by Romania would violate the EU's state aid rules is not a ruling that strips a United States federal court of jurisdiction" (p. 19).
The District Court's approach suggests that where investors seek to enforce an intra-EU award in the US, the District Court is likely to find that it has jurisdiction to enforce the award irrespective of any finding that the award is unlawful State aid as a matter of EU law. The court’s order represents yet another development in favour of investors seeking to enforce intra-EU awards in the US. In other words, it suggests that investors will have the opportunity to recover under such awards even where they are not enforceable within the EU.
This understanding of the District Court’s posture finds further support in its recent Next Era v Spain and 9REN v Spain decisions, in which it enjoined Spain from pursuing anti-suit injunctions in Europe to halt US enforcement proceedings related to the two intra EU awards.
Judgment: Micula v Romania