In
OKO Pankki v. Estonia[1] a
Loan and a Loan Agreement were the original investments. The question arose
whether the invalidation of a Payment Agreement for the repayment of the Loan
had also invalidated the legality of the Loan and the Loan Agreement. Only investments
in accordance with the laws and regulations of the host country were protected
by the applicable BITs.[2] The
Tribunal denied that an invalidation of the Payment Agreement would invalidate
the original investment and deprive it of its jurisdiction. It found that it is
not disputed that both [the Loan and the Loan Agreement] were made in
accordance with the law and regulations then prevailing in Estonian territory. …
[T]he fact that the Payment Agreement was eventually declared invalid by the
Estonian Supreme Court cannot here decide the Tribunal's jurisdiction. That decision,
…, leaves intact the Bank's investment, i.e. the Loan Agreement and the
Loan as originally made … [3]
Source:
Ursula Kriebaum, Chapter V: Investment artbitration – Illegal Investment
in Christian Klausegger , Peter Klein , et al. (eds), Austrian Arbitration
Yearbook 2010, (C.H. Beck, Stämpfli & Manz 2010) pp. 307 – 335, available at http://www.law.yale.edu/documents/pdf/sela/Kriebaum_Illegal_Investments.pdf
[1] OKO Pankki Oyj, VTB Bank
(Deutschland) AG and Sampo Bank Plc v. Estonia, ICSID Case No. ARB/04/6, Award,
19 November 2007, 22 ICSID Review – FILJ 466–501 (2007).
(1) This
Agreement shall only apply to investments made in accordance with the laws, regulations
and procedures of the host country.
Article 2 of the
Estonia – Germany BIT:
(1) Jede
Vertragspartei wird in ihrem Hoheitsgebiet Kapitalanlagen von Staatsangehörigen
oder Gesellschaften der anderen Vertragspartei nach Möglichkeit fördern und
diese Kapitalanlagen in Übereinstimmung mit ihren Rechtsvorschriften zulassen.
Sie wird Kapitalanlagen in jedem Fall gerecht und billig behandeln.
[3] Id. at paras. 189–190
No comments:
Post a Comment