This complaint should never have been brought, said the representative of Germany. The Federal Republic had taken a measure "in good faith, fully within the defendant's right to protect the health of its citizens, as required by the German constitution".
Almost four years ago, attorney Sabine Konrad argued before the World Bank Arbitration Panel (ICSID) in Washington. It was about Vattenfall's lawsuit. Because Germany quit nuclear power after the Fukushima nuclear accident,for the decommissioning of two power plants. Interest is about a sum of more than six billion euros.
It was not least the concern about such demands that hundreds of thousands of years ago in Germany against the transatlantic trade agreementdrifted onto the street. TTIP has done away with the election of Donald Trump as president. But the system of private investor lawsuits continues.
Vattenfall and Germany have been arguing for eight years, the process is actually well advanced. But the Federal Republic seems to be trying to delay it. Recently, for the second time, she filed an application for bias against the judges, which should be decided in early June. If he is successful, the entire main hearing could be repeated, according to SPIEGEL information.
When Corona dries up the revenue
Similar to the Vattenfall case, states could soon be forced to defend measures in the corona crisis before an arbitration tribunal. Because in the fight against the pandemic, many countries have intervened deeply in economic activity. Companies write losses or even go bankrupt. If foreign companies consider such interventions to be disproportionate, many of them can rely on investment protection agreements and go to private arbitration tribunals.
"I believe that lawsuits against restrictions in the corona crisis are possible. One or the other attempt will certainly be started," says Klaus Sachs. He is an honorary professor for arbitration and was a judge at the ICSID until the beginning of the year. Sachs cites investor threats in Mexico as an example. There, the government decided in mid-May to limit the purchase of solar and wind power, which was due to the lower energy consumption in the pandemic.
However, lawsuits have long been discussed among lawyers that are directly directed against government measures to protect the population. For this, the non-governmental organization has Corporate Europe Observatory. For example, El Salvador and Bolivia decided that citizens do not have to pay their water bills, or only have to pay them in part, so that they can wash their hands enough during the pandemic.
"As a result, utilities, many of which are foreign-owned and have investor rights, saw their sources of income run dry," he saysthe law firm Hogan Lovells. The comment also mentions price controls for medicines and the state-mandated emergency production of medical equipment as possible impairments for investors. The big law firm "States" do not have a free hand in disregarding their investment protection obligations, regardless of the severity of the crisis they are facing ".
The likelihood of lawsuits increases because the cost of many investor lawsuits is now increasingbe worn. According to the lawsuit industry will "provide much-needed ammunition to clumsy litigants, fueling the waves of lawsuits and arbitration that follow the pandemic".
However, the hurdles for the success of such procedures are "quite high," says long-time referee Sachs. "After all, it is about the high-quality goods of life and health and the states follow recommendations, for example from the WHO." Defense is likely to be easier than with the German phase-out, for example. The federal government dared to do it alone after a few months before it had decided to extend the nuclear terms.
A judgment that cut a trail
In addition, there has been a lot of hesitation in the system of investor lawsuits. Two years ago, the European Court of Justice (ECJ) ruled in a lawsuit brought by the Dutch financial company Achmea against Slovakia that bilateral investment protection agreements between EU countries were not compatible with EU law. Such disputes should always be settled in Europe before regular courts. As a result, 23 out of 27 Member States committed to terminate these agreements in early May.
"Achmea has made a real mark," says Pia Eberhardt, trading expert at the Corporate Europe Observatory. Critics even hoped that the verdict could herald the end of the arbitration system. The federal government tried, citing the Achmea case as well. According to Eberhardt, it was "almost historical because Germany has been a fervent advocate of the old investment protection regime."
But the attempt failed. Because Vattenfall relies on the multilateral energy charter contract, for which the Achmea judgment does not apply according to the court. The Swedish state, to which Vattenfall belongs, has also not signed the agreement to end bilateral agreements.
Austria is also among the refusers, from where another lawsuit against Germany is pending: The Strabag construction group sees its investment in German offshore wind farms affected by an amendment to the EEG law. The three arbitrators for the proceedings have already been named, and Strabag has not yet made a request.
Break for all arbitration proceedings?
The fundamental dispute over the arbitral tribunals has not yet ended, and the Energy Charter Treaty could soon land before the ECJ. As a result, the Vattenfall process shows that procedures for balancing the tightrope become clear: The Federal Government considers the Achmea ruling still applicable here – it made it clear in early Mayclear. Accordingly, the arbitral tribunal in Washington would not have jurisdiction.
However, the officials of Minister of Economic Affairs Peter Altmaier (CDU) avoided the question of whether Germany should accept a possible compensation payment at all. The federal government does not consider "speculation about the response to hypothetical arbitral awards to be appropriate" and assumes that it will "fully prevail". So far, Germany does not seem to have pushed ahead with a possible dispute before the ECJ or through an infringement procedure against Sweden – the Ministry of Economic Affairs does not want to comment officially.
"Vattenfall will, of course, exploit this zigzag course in front of the arbitral tribunal," criticizes left-wing faction vice Fabio De Masi – and calls for a clear positioning. "If an arbitration award is made against Germany, the federal government must make it clear that it will not pay." De Masi refers to Italy that the Energy Charter Treaty had already withdrawn in 2016. "The Federal Government should take that as a model."
Such demands are likely to become louder if the corona pandemic actually leads to new billion-dollar lawsuits. A group of experts doesn't want to let it get that far. Published in early Maycalls for "an immediate moratorium on all arbitration lawsuits by private companies against governments." Signatories include the UN Special Rapporteur on Extreme Poverty and Human Rights, Olivier de Schutter and Harvard economist Dani Rodrik.
Of course, investors would lose their profits through the Corona requirements, the call says. But just as "every company in society faces an unprecedented situation". Governments should be able to protect their citizens without fear of processes. One appeals to all "people with conscience" – expressly also lawyers and referees – "to put human life in this gloomy moment for humanity above corporate interests".