The High Court of Justice sets aside an investment arbitration award as the tribunal interpreted an underlying investment treaty too narrowly when it declined jurisdiction over certain claims.

The award on jurisdiction dated 15 February 2017 was rendered in SCC arbitration seated in London, under the Treaty between Poland, Belgium and Luxembourg (the “BIT”).

The BIT provides for arbitration over “…disputes relating to expropriation, nationalization or any other similar measures affecting investments, and notably the transfer of an investment into public property, placing it under public supervision as well as any other deprivation or restriction of property rights by state measures that lead to consequences similar to expropriation.”

Griffin, a Luxembourg-based private equity group, invested in real estate in Poland. In interpreting the BIT arbitration agreement, the Tribunal’s jurisdiction was limited to considering whether the decision of the Warsaw Court of Appeal of 19 December 2014 had effects similar to an expropriation. The decision in this case ended Griffin’s real property rights on the basis of the delay in construction caused by the impediments of construction by Poland. Thus, the Tribunal excluded from its appreciation the claim for the breach of fair and equitable treatment and other aspects of indirect expropriation (measures prior to the court’s decision).

Justice Bryan sets aside the award and decides that the Tribunal has jurisdiction over all the claims pursuant to investment arbitration practice.

The issues of conformity of the BIT with EU law were not addressed.