Hospodárske noviny, 07.02.2013 EN

Hospodárske noviny, 7.2.2013


Interview. Attorney Jana Martinková assesses the chances of Achmea in the latest arbitration for Hospodárske noviny.

The owner of Union may succeed. There is lack of public interest


Does Achmea stand a chance to prevent the expropriation?

It needs to be said, that just as the domestic laws require proof of public interest for legitimate expropriation, also the bilateral treaty does contain this requirement. The condition of public interest may be considered fulfilled only if the purpose that is followed by the interference with the ownership rights cannot be achieved otherwise, by ways that interfere with the ownership rights less. I don't think the present published materials and statements have proven the existence of public interest and I fear that neither medial political statements will help support the legality of this step in regard with the planned agreement on sale of the insurance companies. Such statements as You can do anything to make someone do something if they don't cooperate. Under such conditions I fear that Achmea may succeed before the Tribunal. If not with a motion for suspension of the planned legislative changes, then with damages claim, should they be incurred.

Can an arbitration be commenced prior to the expropriation?

It is not really a standard approach for an investor to initiate an arbitration prior to the breach of the treaty itself, but it happens. In this case we furthermore already have the adopted government plan, statements regarding its invariance and the constellation in the Parliament is likely to also adopt these changes. It is prudent of the investor to be trying to prevent the impending damages. Personally, I would perceive this notice also as an endeavor of Achmes to reach a factual, not only a formal discussion regarding this austere plan of the government. As well as it does not frequently happen for an arbitration to be initiated prior to a breach of a treaty, it is also not common for an arbitration tribunal to prohibit or to order something to a state.

So then can it even prohibit the expropriation?

The tribunals tend to avoid such approach, but in extraordinary cases, mostly in cases where damages can be prevented, they choose a way of recommendations. Arbitration tribunal may recommend to Slovakia not to proceed with its presented aim to expropriate a private health insurance company until it has decided in regard to the compliance of these steps with the investment protection treaty. However, should the government not respect this, there are no impending direct sanctions. Should Achmea think that the legislative plan regarding the expropriation of the insurance companies is in collision with the European rules, e.g. with the Treaty on the Functioning of the European Union, it could submit a motion to the respective European authorities.

Will the government have to suspend the implementation of a single state-owned insurance company until the end of the dispute?

The government does not have to wait until the end of the arbitration proceedings to carry out its legislative plans, not even in the case the Tribunal should recommend to do so. However, it must be prepared to face the consequences in form of possible financial compensation to the behoof of Achmea, should the legislation not be in compliance with the bilateral treaty.

Vlastník Unionu môže uspieť, Verejný záujem chýba, Advokátka Jana Martinková, Advocatus Martinková s.r.o.