English High Court rejects Micula’s application for security as a condition of the stay of enforcement of an ICSID award

shutterstock_500397829The proceedings in the English courts arise out of an ICSID award, in which the tribunal ordered that Romania pay the claimants compensation for Romania’s violations of the Sweden-Romania BIT.  On 17 October 2014, the award was registered in the English High Court pursuant to the Arbitration (International Investment Disputes) Act 1966.

The European Commission intervened as amicus during the arbitral proceedings, notifying the tribunal that awarding the claimants damages for Romania’s abolition of investment incentives would amount to the granting of new state aid by Romania to the claimants.  Such new state aid could only be granted with the Commission’s approval. On 30 March 2015, the European Commission rendered a Final Decision pursuant to Article 108(2) of TFEU on the compatibility of the award with European Union law.  The European Commission decided, inter alia, that the execution of the award by Romania would constitute new, unlawful State aid.  It prohibited Romania from making any payment under the award.  The claimants subsequently initiated proceedings before the GCEU seeking annulment of the Final Decision.

On 20 January 2017, the High Court stayed enforcement of the award, pending resolution of the proceedings in the GCEU.  On 15 June 2017, the High Court rejected the claimants’ application for security from Romania as a condition of the stay of enforcement of the award.  It was of “some significance” to the High Court’s decision that “the prejudice [suffered by the claimants] does not extend to the risk of the diminution of Romania’s assets in the same way as might be the case with a non-state party.”

For the English High Court decision,  click here.  For the Final Decision of the European Commission,  click here.