Mytilineos Holdings, a €2 billion-turnover energy and engineering group, originally brought a claim against the Republic of Serbia in 2004 alleging that debts owed by RTB Bor, Serbia’s “socially-owned” company, constituted an investment under the Greece-Yugoslavia BIT. In this first arbitration, led by a Three Crowns partner at their former firm, the tribunal agreed RTB’s debts constituted an investment (dismissing Serbia’s jurisdictional objection), but in 2009, held that Serbia’s measures had not yet ripened into a breach of the BIT. Three Crowns lawyers commenced a second arbitration in 2013 as a result of further measures taken by Serbia and successfully argued that Serbia enforced a moratorium preventing creditors from pursuing claims, which affected Mytilineos’ rights. The tribunal further agreed that the successive amendments to Serbia’s law on privatisation resulted in a lasting removal of the creditors’ rights, and were therefore expropriatory. It ruled, in effect, that Serbia would never have allowed RTB to be bankrupted by a creditor, and therefore Serbia – as the de facto owner of RTB – had to bear the cost of keeping the company as a going concern, including paying creditors. The tribunal awarded Mytilineos approximately $40 million, an amount consistent with both sides’ expectations, which was promptly satisfied.
12 March 2020