In Micula v. Romania, Case No. 17-cv-02332 (D.D.C. Sept. 11, 2019), a D.C. district court judge recently enforced an investor-state arbitration award in a case brought by nationals of a European Union (EU) state against another EU state. This is the first decision by a U.S. court concerning enforcement of an “intra-EU” investment treaty award since the European Court of Justice’s decision in Slovak Republic v. Achmea BV, 2018 E.C.R. 158 last year, which held that such awards are not enforceable. Several cases seeking enforcement of intra-EU treaty awards are currently pending in U.S. courts. However, because of the particular circumstances of the case, the Micula decision may provide little guidance as to whether such awards generally will be enforced in U.S. courts.

Background

In 1998, the Micula brothers, Swedish nationals of Romanian origin, began to take advantage of Romanian state incentives to invest in the food and beverage industry in that country. Micula, at 4. In 2004, Romania repealed the incentives as part of its accession to EU membership. In 2005, the Micula brothers and their entities brought an arbitration under the Sweden-Romania bilateral investment treaty, alleging damages to their businesses resulting from repeal of the incentives. In December 2013, the arbitral tribunal convened under the rules of the International Center for the Settlement of Investment Disputes (ICSID) issued an award in favor of the Miculas in the amount of about $116 million, plus interest. See generally Ioan Micula, et al. v. Romania, ICSID Case No. ARB/05/20, Award, Dec. 11, 2013.