The claimant submitted to an ad hoc arbitration a dispute arising from the privatisation of a Polish insurance company and the related alleged breaches of the 1992 Netherlands-Poland BIT. Eureko sought protection for its investment in Poland which allegedly consisted not only of PZU 20% shareholding, but also of the rights derived from those shares, namely corporate governance rights and the right under certain conditions to acquire additional shares in the company. To establish whether the claimant made an investment entitled to protection, the tribunal noted that the term investment used in Article 1 of the Dutch-Polish BIT is very broad: covered investments include inter alia […] ii) rights derived from shares, bonds and other kind of interests in companies and joint ventures; (iii) title to money and other assets and to any performance having an economic value; […]
(v) right to conduct economic activity […] granted under contract […]. The tribunal examined in turn the different rights, which Eureko derived from its shareholding in PZU and considered whether they amounted to investments entitled to protection under the treaty. The tribunal held that the grant to Eureko to its corporate governance rights derived from the shareholding as a key element of the investment had some economic value and are thus entitled to protection as well as the right to an international public offer.
The Tribunal found that the Republic of Poland contracted obligations and Eureko acquired rights derived from its shareholding in PZU which were an investment entitled to protection under the Treaty.
Source:
INTERNATIONAL INVESTMENT LAW: UNDERSTANDING CONCEPTS AND TRACKING INNOVATIONS – ISBN 978-92-64-04202-5 – © OECD 2008
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