Revue - Les Cahiers de l'Arbitrage N°1-2023 - 82

ARTICLES - DEBATES
of the TFEU, governing state aids, and referred the case back to the General Court for
a judgment thereon. 99
In an interesting twist, the Commission has now brought an
infringement action against the UK for its impermissible enforcement of the Micula
award, which is currently pending. 100
The Commission did so, Brexit notwithstanding,
because the UK court's enforcement of the award took place during the transition
period during which the UK was still subject to EU law. 101
Leaving the UK aside, it became apparent that EU Member State courts would,
at the insistence of the CJEU, give priority to the EU's state aid policy over their
enforcement obligations under the ICSID Convention. This comes as no surprise.
(ii) Enforcement of the Micula award in the U.S.
Courts in the U.S. are obviously situated differently vis-à-vis the Commission
and the CJEU than the courts of the EU Member States. When the Miculas initially
brought their award to two different federal courts, they received contradictory
results. The federal district court for the southern district of New York granted
enforcement in keeping with its ICSID Convention obligations, 102
while the federal
district court for the District of Columbia denied enforcement for failure to comply
with the requirements of the Foreign Sovereign Immunities Act (FSIA). 103
When that
failure was later cured, the latter court eventually enforced the award in the amount
of USD 356 million. 104
under the FSIA thanks to the FSIA's arbitration exception to immunity. 105
First, it asserted subject matter and personal jurisdiction
It then
held that the CJEU's Achmea judgment was inapplicable since all the events giving
rise to the dispute had, as the General Court had found, 106
occurred before Romania
had acceded to the EU and become subject to the EU's state aid prohibition. 107
More significantly, it ruled that its reviewing role under the ICSID Convention
and the U.S. implementing legislation 108
was limited to examining the award's
authenticity, and therefore rejected the arguments of Romania, supported by the
European Commission as amicus curiae, that enforcement was precluded by the act
of state and foreign sovereign compulsion doctrines under U.S. law. 109
Appeals for the District of Columbia summarily affirmed. 110
That was not the end
99. Id. ¶¶ 154-55.
100. Sincere cooperation and primacy of EU law: Commission refers UK to EU Court of
Justice over a UK Judgment allowing enforcement of an arbitral award granting illegal State aid,
Eur. Comm'n (Feb. 9, 2022), https://ec.europa.eu/commission/presscorner/detail/en/ip_22_802 (last
visited Mar. 9, 2023).
101. See Jack Ballantyne, EU targets UK over Micula award, Glob. Arb. Rev. (Feb. 10, 2022),
https://globalarbitrationreview.com/article/eu-targets-uk-over-micula-award (last visited Mar. 9, 2023).
102. Micula v. Government of Romania, 2015 WL 4643180 (S.D.N.Y. Aug. 5, 2015).
103. Micula v. Government of Romania, 104 F. Supp. 3d 42 (D.D.C. 2015).
104. Micula v. Government of Romania, 404 F. Supp. 3d 265 (D.D.C. 2019).
105. Id., p. 279.
106. Id., p. 275.
107. Id., pp. 279-80. The Court took comfort from the fact that the EU's lower court, the
General Court had, for the same reason, invalidated the Commission's injunctions barring Romania
from paying the award. Id., p. 275. In fact, the General Court's judgment was later overruled by the
CJEU itself. See Case C-638/19 P, supra note 98.
108. 22 U.S.C. §1650a.
109. Micula v. Government of Romania, 404 F. Supp. 3d 265 (D.D.C. 2019), pp. 280-83.
110. Micula v. Government of Romania, 805 Fed. Appx. 1 (D.C. Cir. 2020).
80
The Paris Journal of International Arbitration 2023‑1
The Court of

https://ec.europa.eu/commission/presscorner/detail/en/ip_22_802 https://globalarbitrationreview.com/article/eu-targets-uk-over-micula-award

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

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