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Micula and Others v Romania   ∙ [2017] EWHC 31 (Comm) ∙ Annotation by Kai Struckmann, Genevra Forwood, Aqeel Kadri and Adam Wallin journal article

Annotation on the Judgment of the High Court of England and Wales of 20 January 2017 in Micula and Others v Romania [2017] EWHC 31 (Comm)

Kai Struckmann, Genevra Forwood, Aqeel Kadri, Adam Wallin

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 316 - 321

While the General Court considers the validity of the European Commission’s decision in the Micula case finding that “the payment of the compensation awarded by” an ICSID arbitral tribunal constitutes incompatible State aid, national courts in the EU (and the US) are also wrestling with different, but related, issues in proceedings to enforce the underlying arbitral award. The key question in these proceedings is whether the Commission Decision stands in the way of enforcement in a (Member) State which is not the addressee of the decision. In the judgment discussed here, the High Court found that the arbitral award constituted res judicata and that it had not been satisfied. However, the High Court also considered that it could not decide a number of issues (including the interpretation of the CJEU’s jurisprudence in Kapferer, the application of Article 351 TFEU and the concept of imputability) without risking a conflict with questions currently pending before the General Court. Consequently the High Court decided to stay the enforcement proceedings, pending the outcome of annulment action before the General Court. The High Court reached few firm conclusions. Underlying this case is the tension between international obligations owed under the multilateral ICSID Convention and the EU Treaties, and which take precedence. One of the most striking features of the High Court judgment is its acceptance of the contentions of Romania and the Commission that essentially any substantive finding of EU law would give rise to a significant risk of conflict with ongoing proceedings in the EU Courts to annul the Final Decision. Keywords: State Aid and Arbitration; Article 351 TFEU; Res Judicata; Article 4 TEU – Duty of Sincere Cooperation.

Investor-State Arbitrations and EU State Aid Rules: Conflict or Co-existence? journal article

Kai Struckmann, Genevra Forwood, Aqeel Kadri

European State Aid Law Quarterly, Volume 15 (2016), Issue 2, Page 258 - 269

This article explores the relationship between, on the one hand, EU State aid rules and, on the other hand, international investment protection treaties. The topic has attracted attention because of the Micula case, in which the European Commission deployed State aid rules to make an unprecedented incursion into the realm of investor-State arbitrations. The article explores three interfaces between the two regimes. First, and perhaps least controversially, EU State aid rules can shape the substantive obligations of the State under the investment treaty. Second, should an arbitral tribunal find that a Member State has failed in its obligations under an investment treaty, and award damages against that State, there is a theory – as yet untested – that EU State aid rules limit the State’s ability to abide by (and the investor’s ability to enforce) such an award. This is the nub of the Micula case. Third, there is an ongoing debate about the compatibility of investment protection treaties between two Member States with the obligations of those Member States under EU law. The question arises how (if at all) this is relevant to the application of State aid rules. Overall, the article proposes that the perceived conflict between the two regimes is overstated: they can, and indeed should, be able to co-exist. Keywords: Article 107(1) TFEU; Imputability; Advantage; Investor-State Arbitration; International Investment Protection Treaties; Primacy of EU Law.

If You Have Just One Shot – Aim Well: How to Make an Effective Complaint journal article

Kai Struckmann, Genevra Forwood

European State Aid Law Quarterly, Volume 11 (2012), Issue 1, Page 291 - 292

I. Introduction Ryanair is no stranger to the European Commission and the EU Courts, and has been involved in numerous State aid cases, both as aid beneficiary and as complainant. The possibility for “interested parties” to make complaints to the Commission about contraventions of State aid is an important tool for private companies to safeguard fair competition in the market place. However, as this case1 illustrates, the formal requirements for makin

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