Revue - Les Cahiers de l'Arbitrage N°1-2023 - 120

CASE LAW
There is a conceivable risk that investors (or whichever party is considered as
such by the courts) may no longer rely on the benefits of arbitration in a contract
with the Greek State, if their dispute concerns (or, importantly, could potentially
concern) EU law. Given the prevalence of EU law in the legal order of Member
States, one can think of countless types of disputes that will raise such issues; or,
rather, very few that would not.
An important point to note is that the Conseil d'État, although it considered
that the arbitrators exceeded their jurisdiction, did not actually declare that the
award would be set aside or entail the (direct) non-enforcement of the arbitral
award. The power to set aside or to refuse to recognise and enforce arbitral
awards, as the case may be, falls within the civil court system and is subject to
the ultimate jurisdiction of the Supreme Court of Greece in civil matters (in Greek,
the 'Areios Pagos'). The case law of the Conseil d'État, although persuasive, does
not bind the Supreme Court. It is thus conceivable that, if and when the issue
arises before it, the Supreme Court will reach a different conclusion, applying
the distinction between commercial and investment arbitration as per the original
ruling in Achmea.
However, the fact that the Conseil d'État judgment may not bind civil courts in
Greece was, in the present case, legally meaningless. The result remains the same
in practice: the administrative act imposing VAT on AIA was not annulled by the
Conseil d'État and the arbitral tribunal's findings are to be disregarded. The Conseil
d'État also mandated the lower courts to re-open the dispute, no longer bound by
the findings of the award.
Some interesting food for thought with regard to the possible recourse for
investors in light of the above not-so-favourable line of developments came
recently from the European Court of Human Rights ( " ECtHR " ). In its decision
of BTS Holding v. Slovakia, 38
the ECtHR concluded that Slovakia's refusal to
enforce BTS Holding's Paris-seated ICC commercial arbitration award was
not justified under Article 1 of Protocol 1 of the European Convention on
Human Rights ( " ECHR " ). In other words, it found that the refusal to enforce the
arbitration award was a violation of the investor's fundamental human rights
under the ECHR. 39
This ECtHR decision serves as a reminder that there are several rights and
responsibilities allocated both to Member States and private parties in the EU,
38. BTS Holding, A.S. v. Slovakia, 55617/17, ECtHR, 30 September 2022 (referred to as " BTS
Holding, A.S. v. Slovakia " ).
39. In answering the question of whether it was an unjustified interference with property rights,
the ECtHR confirmed that: an award can constitute a " possession " ; the non-enforcement of the award
was " an interference " with the applicant's possession; therefore, its " lawfulness " and whether it was
" justified " (i.e., whether the non-enforcement struck a fair balance between the general interest of the
community and the protection of the individual's fundamental right) had to be assessed.
The ECtHR concluded that the interference was not lawful, because the grounds relied on by
the domestic courts to refuse enforcement went beyond the framework established by local law and
the New York Convention. It then found that it was also not justified because the domestic courts
had taken no account of the requirements of the protection of the applicant company's fundamental
rights and the need for a fair balance to be struck between them and the general interest of the
community. Accordingly, even if the refusal to enforce the award had served a general interest, it
had not been demonstrated that it was proportionate to that aim. (See BTS Holding, A.S. v. Slovakia,
paras. 62-73).
118
The Paris Journal of International Arbitration 2023‑1

Revue - Les Cahiers de l'Arbitrage N°1-2023

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