Friday, March 11, 2011

Ronald Lauder vs. the Czech Republic

The CME v. Czech Republic and Lauder v. Czech Republic were cases decided by two different tribunals in 2001. It is prime example of conflicting decisions in international arbitration and subject of many treatises, with some authors going as far as calling it "the ultimate fiasco in investment arbitration". In 1993, US national Ronald Lauder invested into Czech private television broadcaster TV nova by means of his German company (which was later succeeded by Dutch company Central European Media (CME)). Some 20 suits started in front of the Czech courts and international tribunals, including UNCITRAL arbitrations CME v. Czech Republic and Lauder v. Czech Republic, after his business partner, Czech citizen Vladimír Železný, effectively deprived CME of its investment by breaking off the deal between Lauder's and Železný's companies. CME and Lauder respectively sought damages for alleged interference of the Czech Media Council, a government entity granting broadcasting licences, into the business arrangements between Lauder's and Železný's companies, which supposedly eventually contributed to loss obtained by Lauder. Effectively dealing with the same facts , the tribunals handed down two contradictory arbitral awards: one dismissed the claim by Lauder, while the other awarded CME damages of $270 million and 10% interest.

Procedural issues

The tribunals had to deal with a number of procedural issues. Firstly it was the fact, that the same dispute was submitted to the Czech courts, to the other arbitration in Stockholm/London respectively, and also to ICC as a proceeding between Železný and CME. The London arbitration observed, that neither Lauder nor the Czech Republic are parties to any of the numerous proceedings, and that none of these courts would decide on the basis of USA-CZ treaty and that the concurrent Stockholm arbitration will base its decision on NL-CZ treaty. On the other hand the Stockholm arbitration stressed out that "a party may seek its legal protection under any scheme provided by the laws of the host country ... (and that the both bilateral investment treaties) are part of the laws of the Czech Republic and neither of the treaties supersedes the other. The London panel noted, that collecting damages by the Claimant in either of the processes may reduce the damage claimed in the present proceeding, and it further pointed out, that the Czech Republic refused de facto consolidation of the two proceedings by insisting on different arbitral tribunals in the cases, rather than having the same tribunal decide both, as proposed by Lauder and CME.

Merits

The London tribunal held that the Czech Republic "did not take any measure of, or tantamount to, expropriation of the Claimant's property rights within any of the time periods, since there was no direct or indirect interference by the Czech Republic in the use of Mr. Lauder's property or with the enjoyment of its benefits."
Source: http://en.wikipedia.org/wiki/CME/Lauder_v._Czech_Republic#Decisions

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