An application was filed for revocation under Art 1519-1520 of the French Civil Procedure Code.3
An application for dismissal was filed on the ground that the arbitral tribunal had no material jurisdiction to hear the case.
Legal issue in the practice of revocation before the Court of Appeal: obtaining a claim as a result of a contract for the supply of electricity, in the absence of economic contribution to the territory of the host state (Republic of Moldova), and in the absence of capital transfers; Resources within the territory of the Republic of Moldova qualify as an investment within the meaning of the Energy Charter Agreement.
If such a transaction does not qualify as an investment, and is not duly protected by the Energy Charter Agreement, the arbitral tribunal shall have no material jurisdiction (ration material) to hear the case.
The Court of Appeal quashed the arbitral award, considering that the purchase of the claim was not an investment in terms of the ECT. Energetics have challenged the decision of the Court of Appeal in the Supreme Court of France.4
IV. Decision of the Supreme Court of France (Core de Cassation)
The Supreme Court overturned the decision of the Court of Appeal and sent the case to the Court of Appeal of Paris for reconsideration, which (in another panel) had to review the application for revocation of the arbitral award.
The Court of Appeals held that the lower court misunderstood the concept of investment provided by ECT because ECT does not compel the investor to make an economic contribution to the territory of the Republic of Moldova. In its argument, the Supreme Court stated:
ECD does not specify the criteria for classifying an investment, but only provides a complete list of assets that can be considered investments.
ECT does not provide for capital transfer or economic contribution requirement in the territory of the host state (Republic of Moldova).
Art 1 (6) ECT defines investment as any asset owned or controlled directly or indirectly by the investor. The definition does not include the need to transfer capital to part of the host state. Therefore, in accordance with this text, and in light of the provisions of Art. 31 and Art. 32 of the Vienna Convention on the Law of Agreements, any property is likely to be an investment within the meaning of the ECT.
Examples of assets listed in Art 1 (6) are wholly and uncontrolled. Therefore, the fact that the purchase of receivables is not listed as an example of investment within the meaning of Art 1 (6) does not imply that it cannot qualify as an “investment” within the meaning of ECT.
Acquisition of receivables, in the sense of ECD, creates an investment because it is an asset related to the investor’s economic activity in the territory of the Republic of Moldova. The Court of Appeals erred in saying that the arbitral tribunal had no jurisdiction to examine the dispute in question.
V. The case is pending in the District of Columbia District Court (File No. 1:14-CV-01921) regarding the recognition and recognition of the Foreign Arbitration Award against the Republic of Moldova.
– LLC SBS Stylex acquires claims of Energolians against the Republic of Moldova. Therefore, LLC SBS Stylex seeks to enforce the Arbitration Award against the Republic of Moldova
– [Situația factologică a fost descrisă suficient de Mold Street]
VI. Risks that could affect the Republic of Moldova
– The Republic of Moldova has limited reasons for further appeals;
– LLC SBS Stylex will often begin to pursue Moldova Republican enforceable assets in the United States. However, some items were confiscated and subsequently executed under the Foreign Sovereignty Prevention Act of 1976 (USFSIA) and the Vienna Convention on Diplomatic Relations (Vienna Conference) and the United Nations Conference on Immunization. Not responsible. Of the States (UNCSI).
Thus, embassies (Art. 22 Vienna Conference), military goods, and National Bank holdings on U.S. territory (Art. 21 UNCSI) cannot be seized and subsequently processed. On the other hand, business-oriented assets can be confiscated and then executed in favor of LLC SBS styluses.
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1. It does not analyze the bore of corporate veil theory and the liability of shareholders (in this case the state) for non-fulfillment of the obligations of state-owned enterprises.
2. Where the arbitrator is located in Paris, the arbitrator shall be governed by French law. Accordingly, applications for cancellation of arbitration awards are submitted to the competent court (Paris Court of Appeal).
3. Requests for revocation shall be made within 30 days from the date of award of the arbitral award in accordance with Art 1519 of the French Civil Procedure Code.
4. Temeiurile prevazute de Art.1520 (eng): (1) jurisdiction over which the arbitral tribunal wrongly supported or rejected; Or (2) the arbitral tribunal is not properly constituted; Or (3) ruled without following the order of the arbitral tribunal; Or (4) the relevant procedure has been violated; Or (5) the recognition or implementation of the award is contrary to international public policy.
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