UK: HSF Team Play Key Role In Significant ICSID Award Dealing With An Intra-EU BIT Case

Members of the HSF Paris disputes team have played a key role in obtaining a successful ICSID award for Chèque Déjeuner (“CD“), the French meal voucher issuer. The claim related to tax reforms introduced by the Orban government which effectively excluded CD (and other foreign voucher-issuers) from the Hungarian market. As a result, CD commenced ICSID proceedings under the France-Hungary bilateral investment treaty (“BIT“) in December 2013, alleging that Hungary had breached its obligations in respect of expropriation and fair and equitable treatment (“FET“).

Arguments raised

The arbitration provision in the BIT limited arbitral jurisdiction to claims in respect of expropriation. However, CD argued that the tribunal had jurisdiction over its FET claims by virtue of the BIT’s most-favoured-nation provision and the broader consent to arbitration which Hungary had granted to investors of other states in subsequent treaties. Hungary objected to the Tribunal’s jurisdiction over CD’s FET claims, and a hearing on jurisdiction was held in January 2016 before a tribunal constituted of Yves Fortier QC, Sir Daniel Bethlehem QC and Professor Karl-Heinz Böckstiegel (president). In a decision issued in March 2016, the tribunal found that it had jurisdiction over CD’s claims in relation to both expropriation and FET. This was a great success, being the first time an ICSID arbitration Tribunal decided that it has jurisdiction to hear an FET claim based on the MFN provision.

A hearing on the merits, which was originally due to take place in December 2016, was held in London in May 2017. HSF acted as co-counsel alongside Isabelle Michou (now at Quinn Emanuel) and Larry Shore (now at Bonelli Erede). This was followed by post-hearing briefs and submissions on the relevance of the CJEU's much-discussed decision in the Achmea case.

The tribunal’s findings

In an award issued last week, the tribunal found that Hungary had unlawfully expropriated CD’s investment, awarding CD approximately EUR 23 million (CD’s claim amount was 27 million) and ordering Hungary to bear 75% of CD’s costs.

Having made a finding of unlawful expropriation, the tribunal did not rule on CD’s FET claims.

The Tribunal also made a number of important observations on the relevance of the Achmea decision, finding that it did not affect its March 2016 decision on jurisdiction and emphasising the importance of the fact that, unlike the tribunal in Achmea, its jurisdiction was based on the ICSID Convention.

Impact

The award has already attracted significant comment, and is an excellent result for the client.

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