Resumen de PL Holdings case: The Investor Ordered to Pay the Expropriating State's Costs, a New Consequence of Achmea
In the Swedish Supreme Court's epilogue to the PL Holdings case, the expropriated company lost all its claims against Poland, which had expropriated it. Applying the case law of the Court of Justice of the European Union (CJEU) on intra-European investment arbitration, the Supreme Court did not merely invalidate the ad hoc arbitration clause that served as the basis for the awards against Poland in 2017. Dismissing the argument of denial of justice and the weakness of the rights guarantees offered by the Polish court system to which the investor was referred, the Supreme Court also annulled the arbitration awards on the grounds of Swedish procedural public policy and ordered the investor to pay Poland's full costs. This ruling, not surprisingly, is far from the end of the PL Holdings case. By overturning the 2017 arbitration awards by applying CJEU case law, the Swedish Supreme Court shifts the problem by creating a denial of justice. Investors whose favourable awards are thus set aside will have to turn to the courts of the investment's host state, which is precisely what they sought to avoid by claiming arbitration based on an intra-European BIT or, as in this case, an ad hoc arbitration agreement. There is every reason to believe that new questions will be put to the CJEU and, in the future, to the European Court of Human Rights.
