Jurisdiction(s):
United Kingdom

BIT jurisdiction clarified: English Commercial Court dismisses s67 challenges (investment, investor, ratione temporis), addresses s68, and contrasts supervisory approach for treaty v commercial awards (Czech Republic v Diag Human SE)

Published on: 22 November 2024

Published by a LexisNexis Arbitration expert

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Article summary

The Czech Republic v Diag Human Se and another [2024] EWHC 2102 (Comm), [2024] EWHC 503 (Comm)

What are the practical implications of this case?

The ruling brings to a close a dispute spanning decades between Diag Human SE, a Lichtenstein entity, and Mr Stava, a Swiss citizen (together, the ‘Investors’), on the one hand, and the Czech Republic (and, before it, Czechoslovakia) on the other, and turns on remarkable facts, events and surrounding circumstances. To grasp the factual matrix in full, one must first consider the March Judgment, since the present decision does not rehearse the narrative or the chronology of the many and varied proceedings between the parties. This decision is noteworthy for its careful and expansive treatment of what constitutes an ‘investment’ and an ‘investor’ in public international law—an issue not previously explored by the Commercial Court in such depth. It will repay attention for practitioners of investment treaty arbitration, offering a cogent, detailed examination of the principal and leading treaty awards on these questions, together with practical pointers for opposing challenges to London-seated investment treaty awards. Strikingly, Mr Justice Foxton also identified a difference in the court’s methodology when addressing jurisdictional objections within commercial arbitration generally...

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