Pravda, 10.12.2012 EN

Attorney at Law Jana Martinkova, Foto: Peter Frolo
Slovak Newspaper Pravda, 10.12.2012

Attorney-at-law: Slovakia delayed resolving the dispute for too long

Slovakia's chances to reverse the lost arbitration are minimal, says attorney-at-law Jana Martinková, who has been investigating the issues of health insurance company profits.

How do you evaluate the ruling of the international arbitration tribunal in the dispute with the owners of the health insurance company Union?

I believe the verdict is final, and the only chance left is to request a suspension or revocation at the Frankfurt Supreme Court.

It may even be possible to take advantage of an appeal procedure to challenge the tribunal's jurisdiction at the German Federal Court. However, it is important to remember that the Frankfurt Supreme Court previously ruled against us on this issue.

My opinion is that Slovakia did not address the subject of jurisdiction soon enough. Main arguments were not used until the appeal, by which time they could no longer affect the outcome.

These arguments should have been expressed at the beginning of the proceedings. Unfortunately they were not, likely because the merits of the case were being addressed at that time.

There is an ongoing judicial review regarding the jurisdiction of the arbitration tribunal. If it is determined that the tribunal stepped outside its jurisdiction, will Friday's ruling against Slovakia become void?

I believe this dilemma can only be solved by the German Federal Court of Justice. If the court decides the matter to be tried under community law, it will seek a ruling by the European Court of Justice.

However, the European Court can only decide on matters of public economics, so the question of whether this case is relevant remains.

If the Federal Court can demonstrate procedural irregularities in the arbitration, this may help challenge the tribunal's jurisdiction and possibly suspend or revoke its verdict. But realistically, chances are minimal.

If the German Federal Court of Justice grants our plea, will the dispute reach the European Court of Justice?

In my opinion, we cannot affect whether the case will reach the European Court of Justice. It is the responsibility of the Federal Court of Justice of Germany to decide whether or not to seek the opinion of the European Court of Justice. The Slovak Republic has no influence on this decision.

Slovakia can file for suspension or revocation of the tribunal ruling at the Frankfurt Supreme Court. Such a request would contain our complete reasoning and address the jurisdiction of the tribunal.

This process would then consist of two parallel proceedings. The first of which has already been initiated by the Slovak Republic when it appealed to the German Federal Court against the verdict of the Frankfurt Supreme Court, which had previously ruled on jurisdiction to our detriment.

The second would concern the suspension of revocation of the tribunal's verdict. In the end, the outcome depends on whether the Federal Court of Germany will consult the European Court of Justice, acknowledge the jurisdiction of the tribunal, or reverse its verdict.

Slovakia's ability to affect the result ends with the request for suspension of the tribunal's verdict.

Should Slovakia aim to copy the successful procedure of the past arbitration dispute with the shareholders of the insurance company Dovera?

In that particular case, the state won for two different reasons. Firstly the American lawyers objected on the incompatibility between EU and American law immediately, and did not wait until 'after the fact' as was done here.

In the HICEE case, the tribunal expressed its opinion not only concerning its jurisdiction, but also claims made by the investment group Penta. The tribunal stated that its investment did not originate entirely in the Netherlands, and was therefore not covered by the agreement.

This is why I would not compare these cases and most certainly do not see any precedent to copy the proceedings of the Dovera case.