Supreme Court to hand down judgment in ICSID Convention case

This is the issue in Micula and others (Respondents/Cross-Appellants) v Romania (Appellant/Cross-Respondent) – judgment for which will be handed down by the Supreme Court next Wednesday.

The dispute between the parties began with an arbitration commenced pursuant to a bilateral investment treaty that Romania had entered into with Sweden. On 11 December 2013, an ICSID Tribunal issued an award in favour of the investors against Romania.

The European Commission, which also intervened in the arbitration and each stage of the present proceedings, issued a decision on 30 March 2015 that, amongst other things, declared that the payment of the award would constitute new state aid contrary to Article 107(1) of the Treaty on Functioning of the European Union and prohibited Romania from making any payment under the award.

At the time, the award had already been registered by the English High Court. Romania thus applied to set aside the order registering the award or, in the alternative, for a stay of its enforcement. The investors cross-applied for security.

The High Court granted Romania a stay of enforcement and dismissed the investors’ cross-application. The investors appealed both the grant of the stay and the dismissal of their application for security.

The Court of Appeal dismissed the stay appeal but upheld the security appeal and ordered Romania to provide security of £150 million. Romania has already been granted permission to appeal the security appeal.

The investors are now seeking permission to cross-appeal on the stay appeal.