Enkev Beheer B.V. v. Republic of Poland
PCA · Investment (ICSID and treaty) · Poland · 29 Apr 2014
Why it matters
This case is notable for its detailed analysis of the threshold for expropriation claims under the Netherlands-Poland BIT, particularly the requirement that a dispute must be 'ripe' before a tribunal can decide on compensation. The Tribunal declined to interpret the compensation clause prematurely, emphasizing that it cannot act as a legal adviser. It also clarified that mere threats or difficult negotiations do not amount to a breach of fair and equitable treatment or full security and protection.
Summary
Enkev Beheer B.V., a Dutch company, owned shares in Enkev Polska S.A., which held a perpetual usufruct right to industrial premises in Łódź, Poland. The City of Łódź planned to expropriate part of the premises for a road project. Enkev alleged that Poland, through its local authorities, threatened expropriation without adequate compensation, violating the Netherlands-Poland BIT. The Tribunal first upheld jurisdiction, finding that Enkev was an investor and had made an investment. On the merits, the Tribunal rejected all claims. It held that the expropriation process was still at an early stage and no actual deprivation had occurred; thus, the claim under Article 5 was premature. The Tribunal also found no breach of fair and equitable treatment, full security and protection, or the umbrella clause, as the City's conduct did not amount to threats or arbitrary treatment. The Tribunal dismissed the claims and indicated that costs would likely be awarded against the Claimant.
The detail
Parties: Enkev Beheer B.V. v. Republic of Poland
Case number: PCA Case No. 2013-01
Outcome: The Tribunal dismissed all of the Claimant's substantive claims under Articles 5 and 3 of the Treaty, and indicated it was minded to allocate costs against the Claimant.
Applicable law: Netherlands-Poland BIT (1992); UNCITRAL Arbitration Rules (2010); Polish law
Issues in play: The case involved the interpretation of the expropriation clause (Article 5) and fair and equitable treatment (Article 3) of the BIT, particularly whether threats of expropriation and administrative delays constituted a breach.
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