JUDGMENT OF THE COURT OF APPEAL
- In the award, the Stockholm Tribunal carefully analysed the concepts that governed CME's right to demand arbitration, e.g. "investment dispute" and "investors".
- The Stockholm Tribunal investigated whether the Czech authorities had approved the legality of the original investment. The Stockholm Tribunal verified whether the split structure was legal in order to seek whether prior investors could have relied on the actual approval, which was an assessment that the Stockholm Tribunal conducted on the basis of international law.
- CME argued in the arbitration proceedings, inter alia, that a deprivation/ expropriation had taken place, which was a claim based on the provisions of the Treaty. CME claimed that there had been coercion and that the company had been deprived of its investment. In its assessment whether expropriation existed, the Stockholm Tribunal found that CME and its predecessor had been able to rely on the Media Council's approval of the split structure. The Tribunal further described when a public authority's behaviour might constitute deprivation and expropriation in accordance with international law. The Tribunal assessed that the Media Council's behaviour could be attributable to normal administrative law measures. In addition, the Tribunal described when an expropriation might pertain and that such might be the case even in the event of failure to act. The Tribunal subsequently referred to sources of international law with the regard to expropriation, such as various cases, before the Tribunal concluded that the Media Council's actions in 1996 and the actions and omissions in 1999 were to be deemed expropriation under the Treaty.
- In paragraphs 575-585 of the award, the Stockholm Tribunal carefully examined whether a breach of the Treaty had occasioned any injury. In this section, the Tribunal also addressed an objection raised by the Republic with respect to causality.
- In paragraphs 615-618, the Stockholm Tribunal addressed the principle governing the determination of damages and, also in this section, the Tribunal referred to sources of international law.
"The arbitral tribunal shall decide on the basis of the law, taking into account in particular though not exclusively:
- the law in force of the Contracting Party concerned;
- the provisions of this Agreement, and other relevant Agreements between the Contracting Parties;
- the provisions of special agreements relating to the investment;
- the general principles of international law".
A Swedish translation of the clause is as follows:
Skiljenämnden skall besluta på grundval av lagen och i synnerhet ehuru ej uteslutande ta hänsyn till
- gällande rätt i berörd avtalspart;
- stadgandena i detta avtal och andra relevanta avtal mellan avtalsparterna;
- stadgandena i särskilda avtal med avseende på investeringen;
- de allmänna principerna i folkrätten.
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