Strabag SE, Raiffeisen Centrobank AG and Syrena Immobilien Holding AG v. Republic of Poland, ICSID Case No. ADHOC/15/1
ICSID · Investment (ICSID and treaty) · Poland · 4 Mar 2020
Why it matters
This case is a landmark in the ongoing debate over the compatibility of intra-EU investment treaties with EU law. The Tribunal rejected the Achmea judgment's impact on the BIT, asserting that EU law does not automatically invalidate pre-existing BIT arbitration agreements. It reinforced the principle that treaty interpretation under the VCLT requires clear evidence of intent to terminate, which was absent. The decision contributes to the jurisprudential consistency that intra-EU BITs remain valid under public international law despite EU law developments.
Summary
Three Austrian companies (Strabag SE, Raiffeisen Centrobank AG, and Syrena Immobilien Holding AG) initiated arbitration against Poland under the 1988 Austria-Poland BIT, claiming that Poland's administrative decisions and court rulings regarding the ownership of Hotel Polonia and Hotel Metropol in Warsaw violated the BIT's protections. The dispute arose from a complex history of property rights under the 1945 Warsaw Decree, which expropriated land. After Poland's transition from communism, the City of Warsaw acquired the hotel properties and later privatized them. The claimants' predecessor purchased shares in the hotel company, but subsequent administrative decisions annulled earlier property rights, leading to claims of expropriation and unfair treatment. Poland raised multiple jurisdictional objections, including that the claimants had not exhausted local remedies, that the claims were an abuse of process, that the claimants lacked standing as investors, and that the BIT's arbitration clause was invalid under EU law following the CJEU's Achmea judgment. The Tribunal rejected most objections. It found that the claimants had made a prima facie case under most BIT provisions, except for claims under Articles 5 (most-favored-nation), 7(1) (transfer of payments), and 8 (other obligations), which were dismissed. The Tribunal held that the Achmea judgment did not affect the BIT's validity under public international law, as the TFEU and the BIT do not deal with the same subject matter under VCLT Articles 30 and 59. The Tribunal also rejected the abuse of process and standing objections. It joined to the merits certain objections regarding the second and third claimants' standing to assert claims related to the Share Purchase Agreement and bank guarantee. The Tribunal reserved costs. The award is significant for affirming the continued validity of intra-EU BITs post-Achmea.
The detail
Parties: Strabag SE, Raiffeisen Centrobank AG and Syrena Immobilien Holding AG v. Republic of Poland, ICSID Case No. ADHOC/15/1
Case number: italaw/cases/8403
Outcome: Tribunal upheld jurisdiction over most claims, dismissed claims under Articles 5, 7(1) and 8 of the Treaty for lack of prima facie case, and joined certain objections to the merits.
Applicable law: Austria-Poland BIT (1988), VCLT, EU law (TFEU, Achmea judgment), Polish Code of Administrative Procedure
Issues in play: The collision was between the Austria-Poland BIT's arbitration clause and EU law, specifically the CJEU's Achmea judgment which held that intra-EU BIT arbitration clauses are incompatible with EU law. The Tribunal had to decide whether EU law overrode the BIT under VCLT Articles 30 and 59.
Read the full decision at italaw ↗
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