On 29 June 2018, an arbitral tribunal, set in Paris and administratively supported by ICSID, issued a final award in favour of Czech Republic, defendant in the A11Y Ltd v. Czech Republic case brought by a UK investor. These proceedings were governed by the UNCITRAL Rules.
The dispute arose from the Statement made by the Ministry of Labour with regard to the Act on Providing Allowances to Persons with Health Impairment, whereby Respondent defined relevant criteria set out in that Act. Claimant, a developer of assistive technology solutions, alleged that Respondent targeted its business and finally destroyed its investment and initiated arbitral proceedings against Respondent.
The arbitral tribunal examines first a ratione materiae jurisdictional objection raised by Respondent and joint to the merits due to the necessity to assess the Claimant’s business as a whole. Having observed that the relevant provision of the applicable BIT refers to “every kind of asset belonging” to an investor and that there are no definitions or limitations of the terms used, the arbitral tribunal rejects the fact that the other criteria on which Respondent has relied are relevant to define investments. It also notes that in the present case, the UNCITRAL Rules do not have the same scope of application and requirements that the ICSID Convention impose in qualifying an economic operation as an investment. The assets in the form of know-how and goodwill are thus recognised as investments under the applicable BIT.
Second, the arbitral tribunal recalls that according to its findings in the Decision on Jurisdiction issued in 2017, it has jurisdiction only with regard to the claim on indirect and creeping expropriation of the Claimant’s investments. In this respect, the arbitral tribunal notes that the language of the Statement is neutral and does not target Claimant. With regard to other acts of the Ministry of Labour, it finds that Claimant does not meet the required burden of proof and hence, concludes that this claim fails.
As a result, Claimant bears the combined Tribunal costs and each Party bears its respective legal costs.