The case report in this very interesting judgment dealing with arbitration and State aid issues can be found here.
The High Court of Justice declined to set aside an order registering two Swedish investors’ (the claimants) ICSID arbitral award against Romania. However, the court did stay proceedings regarding the enforcement of the award until the resolution of claimants’ proceeding before the European Court to annul the European Commission’s Final Decision 2015/1470. Final Decision 2015/1470 declared that the award constituted new state aid under Article 107(1) of the TFEU and prohibited Romania from making any payments to the claimants. The Final Decision also demanded that Romania recover any sums it had already paid under the award to the claimants and declared that the claimants be jointly liable to repay any sums received from Romania. In granting a stay of enforcement of the award, the Court noted that enforcing the award would result in a conflict with a decision of the European Commission prohibiting Romania from paying the award, and a national court would be obligated to stay proceedings under these circumstances. Further, registering the award under the Arbitration (International Investment Disputes) Act 1966 did not create a conflict between the duties of the United Kingdom under the ICSID Convention because an ICSID award is equated to a final domestic judgment for enforcement purposes. The Court found the claimants’ request for an order requiring Romania to provide security persuasive because the proceedings related to an ICSID award which predated the decisions of the European Commission; the award was treated as a final judgment of the English court at the time of the award; and the award has remained unpaid for several years. However, the Court did not ultimately order Romania to pay security in this decision.