|ARSIWA||Articles on Responsibility of States for Internationally Wrongful Acts of 2001|
|a.s.||akciová spolecnost (Public Limited)|
|Bankruptcy and Composition Act||Act No. 328/1991 on bankruptcy and composition|
|Bankruptcy and Settlement Act||Act No. 182/2006 on bankruptcy and settlement|
|BIT||Bilateral Investment Treaty|
|CJEU||Court of Justice of the European Union|
|ECHR||European Convention on Human Rights|
|Exh C-||Claimant's Factual Exhibit|
|Exh CL-||Claimant's Legal Authority|
|Exh R-||Respondent's Factual Exhibit|
|Exh RL-||Respondent's Legal Authority|
|Germany-Czech Republic BIT||Agreement on the Promotion and Reciprocal Protection of Investments between the Federal Republic of Germany and the Czech Republic, concluded on 2 October 1990 and entered into force on 2 August 1992|
|Gmbh & Co. KG||Gesellschaft mit beschränkter Haftung & Compagnie Kommanditgesellschaft|
|ICJ Statute||Statute of the International Court of Justice|
|IR 2000||Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings|
|PCA||Permanent Court of Arbitration|
|PILA||Swiss Federal Act on Private International Law enacted 18 December 1987|
|s.r.o.||spolocnost' s rucením obmedzeným (Limited)|
|TFEU||Treaty on the functioning of the European Union|
|UNCITRAL||United Nations Commission for International Trade Law|
|VCLT||Vienna Convention on the Law of the Treaties of 1969|
|RfA||Request for Arbitration||30 November 2016|
|SoC||Statement of Claim||30 September 2017|
|Respondent's Application||Application for Security for Costs||15 January 2018|
|Answer to the Application for Security for Costs||28 February 2018|
|Comments on Claimant's Answer to the Application for Security for Costs||8 March 2018|
|Response to Respondent's Comments on Claimant's Answer to the Application for Security for Costs||15 March 2018|
|Respondent's Request||Request for Bifurcation||11 April 2018|
|Reply to the Request for Bifurcation||26 April 2018|
|Comments to Claimant's Answer to the Request for Bifurcation||4 May 2018|
|SoD||Objections to Jurisdiction and Statement of Defence||29 June 2018|
|Reply||Answer to Objections to Jurisdiction and Statement of Reply||10 October 2018|
|Amicus Brief||European Commission's Amicus Curiae Brief||29 April 2019|
|Rejoinder||Request for Reconsideration and Security for Costs, Reply on Objections to Jurisdictions and Statement of Rejoinder||15 June 2019|
|Reply to Respondent's Request for Security for Costs||24 June 2019|
|Sur-Rejoinder||Sur-Rejoinder on Jurisdiction||16 July 2019|
|Mr Václav Fischer||A German businessman born in the Czech Republic. He is a limited partner of Claimant|
|Mr Stephan Meier||The second limited partner of Claimant|
|Mr Kárel Komárek||A Czech citizen who bought Fischer Air and Fischer Travel from Mr Fischer in 2003|
|Mr [REDACTED]||The first bankruptcy trustee in the Czech bankruptcy proceedings of Mr Fischer|
|Mr [REDACTED]||The second bankruptcy trustee in the Czech bankruptcy proceedings of Mr Fischer|
|Mr [REDACTED]||The bankruptcy trustee in the bankruptcy proceedings of Charter Air|
|Mr [REDACTED]||A judge at the Municipal Court in Prague, supervising the bankruptcy proceedings of Mr Fischer|
|Mr [REDACTED]||The legal representative of Mr Fischer and AMF|
|Mr [REDACTED]||The legal representative of Mr Fischer's creditors|
|Mr [REDACTED]||The legal representative of Charter Air|
|Mr [REDACTED]||The expert who assessed the aircraft on 9 and 10 September 2009.|
|Mr [REDACTED]||A preliminary trustee in Mr Fischer's bankruptcy proceedings, appointed to determine the existence of Mr Fischer's assets in the Czech Republic|
Claimant is represented in the present proceedings by Mr [REDACTED].
a) Mr Václav Fischer is a German businessman born in the Czech Republic. He is a limited partner of the majority capital share of Claimant.
b) Mr Karel Komárek is a Czech citizen who bought Fischer Air and Fischer Travel from Mr Fischer in 2003.
c) F ischer s.r.o. (hereinafter "Fischer Travel") is a travel agency founded by Mr Fischer. Mr Fischer was the company's sole shareholder until the sale to Mr Komárek in 2003.
d) Fischer Air s.r.o. (hereinafter "Fischer Air") is a limited liability company founded by Mr Fischer (an extract from the Commercial Registry has not been submitted on the record). In 2003, Mr Fischer sold Fischer Air to Mr Komárek, who later changed the name of the company to Charter Air s.r.o. (hereinafter "Charter Air").
e) A.V.F. Aircraftleasing Václav Fischer GmbH & Co. KG (hereinafter "AVF") is a company which bought an aircraft from Fischer Air and transferred its assets to AMF in 2004.
f) HSH Nordbank AG (hereinafter "HSH") is a German Bank based in Hamburg and Claimant's creditor with a pledge on the aircraft.
g) Atlantik IB s.r.o. (hereinafter "Atlanktik IB") is a company belonging to Mr Komárek. It filed a petition for involuntary bankruptcy against Mr Fischer.
(1) Disputes between either Contracting Party and an investor of the other Contracting Party should, as far as possible, be settled amicably between the parties in dispute.
(2) If the dispute cannot be settled within six months from the date on which it was officially raised by either party to the dispute, it shall at the request of the investors of the other Contracting Party, be submitted for arbitration. In the absence of any other arrangement between the parties to the dispute, the provisions of article 9, paragraphs 3 to 5 shall apply mutatis mutandis, subject to the proviso that the appointment of the members of the arbitral tribunal shall be appointed by the parties to the dispute in accordance with the provisions of article 9, paragraph 3, and that, if the time-limits provided for in article 9, paragraph 3, are not observed, either party to the dispute may, in the absence of any other arrangement request the Chairman of the Arbitration Institute of the Stockholm Chamber of Commerce to make the necessary appointments, unless parties in disputes have not agreed otherwise. The award shall be recognized and enforced under the Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. [United Nations, Treaty Series, vol. 330, p. 3]
(3) The Contracting Party which is a party to the dispute shall not in course of arbitration proceedings or the execution of the arbitral award raise an objection on the grounds that the investor who is the other party to the dispute has already received compensation for all or part of his losses under an insurance policy".
- The institution chosen to administer the present dispute and serve as registry is the Permanent Court of Arbitration (PO 2 para. 21).
- The seat of the arbitration is in Zurich, Switzerland (PO 2 para. 3.1).
- The language of the arbitration is English (PO 2 para. 6).
- The law applicable to the procedure is the UNCITRAL Rules in their 2010 version. If these provisions and rules do not address a specific procedural issue, the Arbitral Tribunal shall, after consultation with the Parties, determine the applicable procedure. In addition, the Arbitral Tribunal may seek guidance from, but shall not be bound by, the IBA Rules on the Taking of Evidence in International Commercial Arbitration (2010 version) (PO 2 para. 5).
- The law applicable to the merits will be decided in the present award (cf. paras 499-504 below).
[Claim. 1] The Arbitral Tribunal has jurisdiction over all claims submitted by Claimant;
[Claim. 2] All claims submitted by the Claimant are admissible;
[Claim. 3] Respondent has breached the standard of just and equitable treatment under Article 2 (1) BIT;
[Claim. 4] Respondent has breached the standard of full protection and full security under Article 2 (3) and 4 (1) BIT in conjunction with Article 2 (3) BIT;
[Claim. 5] Respondent has breached the standard of non-arbitrary or discriminatory measures under 2 (2) BIT;
[Claim. 6] Respondent has subjected the investments and investor to a measure with effects equivalent to expropriation under article 4 (2) in conjunction with article 4 (2) of the bilateral investment treaty valid between Czech Republic and Sweden, as well as Article 6 (4) bilateral investment treaty valid between Czech Republic and Kuwait;
[Claim. 7] For the above breaches of its international obligations under BIT, Respondent shall pay:
[Claim. 7.1] material damages in the amount of USD 375,328,861.00 (three hundred seventy five million three hundred twenty eight thousands eight hundred sixty one American dollars), of which the principal sum is USD 190,752,000.00 (one hundred ninety million seven hundred fifty two thousand American dollars) and interests in the mount of 184,576,861.00 (nine hundred);
[Claim. 7.2] Each Party shall bear its own costs of legal representation and the costs of the arbitrator appointed by it. Both Parties shall share the costs of the Chairman of the arbitration tribunal equally. While Claimant will accept to carry its own costs in case of an award in its favour, it won't agree to support Respondent's costs in case of an award in favour of the latter. Should the Arbitral Tribunal decide otherwise, the costs incurred to Claimant in the amount of 1,127,924.90 EUR should be borne by Respondent (Claimant's Statement of Cost of 25 September 2019).
In the second part of the Hearing, Claimant withdrew its claim for moral damages (Tr 122:24-25 and 123:1).
[Resp. 1] Declare that it has no jurisdiction over Claimant's claims;
[Resp. 2] Alternatively, declare that the Czech Republic has not breached the Treaty and dismiss all of Claimant's claims in their entirety; and
[Resp. 3] In any event, order Claimant to fully reimburse the Czech Republic for the costs it has incurred in defending its interests in this arbitration, plus interest on any costs at a rate to be determined by the Tribunal.
- It will first decide whether it has jurisdiction to hear the present dispute (below II) ;
- It will then determine whether Respondent breached the provisions of the Germany-Czech Republic BIT and whether it is liable for these breaches (below III) ;
- Finally, the Arbitral Tribunal will determine and allocate the costs of the present proceedings (below IV).
- The Arbitral Tribunal lacks jurisdiction over the dispute because, in accordance with the Slovak Republic v Achmea B.V. decision (hereinafter "Achmea decision" or "Achmea judgement") of the Court of Justice of the European Union (hereinafter "CJEU"), the arbitration agreement contained in the Germany-Czech Republic BIT is invalid (cf. below 2);
- the Arbitral Tribunal lacks jurisdiction ratione personae over Claimant's claims (cf. below 3);
- the Arbitral Tribunal lacks jurisdiction ratione materiae over Claimant's claims (cf. below 4);
- the Arbitral Tribunal lacks jurisdiction because Claimant brought its claims in bad faith (cf. below 5).
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:
(a) It appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or
(b) The provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.
On re-examining the article at the present session the Commission felt that, although the rules may have particular importance in cases of incompatibility, they should be stated more generally in term of the application of successive treaties to the same subject- matter. One advantage of this formulation of the rules, it thought, would be that it would avoid any risk of [the provision] being interpreted as sanctioning the conclusion of a treaty incompatible with obligations undertaken towards another State under another treaty. Consequently, while the substance of the article remains the same as in the 1964 text, its wording has been revised in the manner indicated. (Annex EC-24, p. 232, emphasis added).
The present Arbitral Tribunal is constituted under an international treaty, the Germany-Czech Republic BIT. As such, it operates on the plane of the international legal order and in a public international law context, not in a regional or national context (cf. in this sense Electrabel v Hungary, Exh RL-16, para. 4.112). The CJEU, as an institution belonging to the EU legal order, operates on the level of that order, and its judgments are binding within that legal order. The Report of the Study Group of the International Law Commission on the Fragmentation of International Law considers that "when conflicts emerge between treaty provisions that have their home in different regimes, care should be taken so as to guarantee that any settlement is not dictated by organs exclusively linked with one of the other of the conflicting regimes" (Annex EC-18, p. 252).
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
1. The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.
2. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.
Bezeichnet der Begriff "Investor" eine natürliche Person mit ständigem Wohnsitz oder eine juristische Person mit Sitz im jeweiligen Geltungsbereich dieses Vertrags, die berechtigt ist, Kapitalanlagen zu tätigen.
Pojem "investor"znamená fyzické osoby so stálym bydliskom alebo právnické osoby so sídlom v okruhu pôsobnosti tejto Dohody, ktoré sú oprávnené konať ako investori.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.