Professor Loukas Mistelis was among a group of eminent international law scholars urging the D.C. Circuit not to overturn a ruling enforcing a $330 million arbitral award against Romania, despite EU’s highest court arguing otherwise. He also participated in a second amici curiae brief relating to arbitration against Spain rendered in Energy Charter Treaty arbitrations.
The scholars argue in a proposed amicus brief that granting Romania's appeal challenging the ruling would put the United States in breach of its international law obligations and "seriously undermine" the investor-state dispute settlement framework established by the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).
The Miculas brothers built a series of large-scale and modern food-and-drinks facilities in an impoverished and remote region of Romania under economic incentives included in the Sweden Romania Bilateral Investment Treaty (2002). These incentives were withdrawn by Romania because of its ascension to the European Union.
However, a 2013 ICSID tribunal concluded that Romania had acted improperly and ruled in favour of Miculas. Since then, Romania and the European Commission argue that the award cannot be enforced. A 2022 ruling from European Court of Justice concluded that Romania's consent to arbitrate matters under its treaty with Sweden "lacked any force" after it joined the EU.
The scholars argue that because the US has signed the ICSID Convention, US courts must enforce the award, as it is part of the Convention’s fundamental framework. If Romania is facing a conflict between its ICSID and EU obligations, it is Romania’s responsibility to resolve these. It is not for the US to breach “its own obligation on account of Romania's allegedly conflicting obligations under other treaties to which the United States is not a party.” Read the full Miculas v Romania amicus curiae brief [PDF 404KB].
In the second case, a different group submitted an amicus brief on 6 July in the US Court of Appeals for the District of Columbia Circuit, where Spain is appealing the DC District Court’s decision to uphold jurisdiction over enforcement petitions lodged by Luxembourg-registered 9REN Holding and two Dutch subsidiaries of Florida-based NextEra.
In their brief, the group says the district court correctly held that rulings by the (CJEU) retroactively clarifying EU law on investment arbitration did not deprive it of jurisdiction under the US Foreign Sovereign Immunities Act. The group argues that any alleged conflicts between EU law and Spain’s obligations to arbitrate investor-state disputes before ICSID pursuant to the ECT were properly resolved within the ICSID framework; and that the US, as a signatory to the ICSID convention, has a “straightforward obligation” to enforce awards owed to other ICSID contracting states.
An amicus curiae typically assists a court by providing information or expert advice regarding question of law or fact. An amicus is not a part to the proceedings and normally may not participate except by leave of the court, and most courts seldom permit persons to appear in such a capacity. Private persons may appear as amici curiae in the Supreme Court, either if both parties consent or if the court grants permission.
Loukas Mistelis, Clive M Schmitthoff Professor of Transnational Commercial Law and Arbitration at Queen Mary University of London, was part of the two amici groups, who were all experts and practitioners of public international law and investor-state dispute settlement.