Numerous countries have faced investor-State arbitrations, including Serbia. This snapshot of reported investor-State arbitrations against Serbia to date is intended to give a quick overview of the dominant issues arising in the investor-State arbitrations against Serbia. The reported cases of investor-State arbitrations against Serbia are briefly discussed below.
Mera Investment Fund Limited v. Republic of Serbia, ICSID Case No. ARB/17/2
One of the latest Awards in the investor-State arbitrations against Serbia is Mera Investment v. Serbia. The claimant was a Cypriot company, Mera Investment Fund Limited, owner of Mera Invest d.o.o., an investment fund incorporated in Serbia that held shares of a construction company, as well as in local banks. The claims stem from the Government's purported detrimental actions and retaliatory campaign against Mera Invest d.o.o. as a result of the actions undertaken by the ultimate owner. These actions include freezing its assets, creating false tax claims, and blocking the bank accounts of both Mera Invest and related entities.1 In its Decision on Jurisdiction dated 30 November 2018, the tribunal concluded that having a Serbian citizen associated with a Cypriot company does not hinder the company from being considered a foreign investor.2 Thus, the company should receive protection under the Cyprus-Serbia BIT.
Although it remains undisclosed, the Award was rendered on 10 March 2021. However, Serbia started annulment proceedings against the Award, and on 24 April 2023, an ICSID ad hoc committee issued its Decision on Annulment.
Zelena N.V. and Energo-Zelena d.o.o Inđija v. Republic of Serbia, ICSID Case No. ARB/14/27
In this matter, the claimants, who were operating an animal-rendering facility, processed hazardous animal by-products and generated energy as a result. Their claims were based on the Government's purported failure to enforce environmental laws uniformly, resulting in a cost advantage for local competitors' operations.3 The non-public Award was rendered on 9 November 2018, finding that Serbia breached the BLEU (Belgium-Luxembourg Economic Union)-Serbia BIT.
Rand Investments Ltd. and others v. Republic of Serbia, ICSID Case No. ARB/18/8
This dispute concerning a beneficial owner arose after a Serbian privatization agency terminated an agreement for the acquisition of 70% of BD Agro, a Serbian dairy farm. The privatization contract itself was concluded between Serbia and a dual Canadian and Serbian national.4 The tribunal, in its Award dated 29 June 2023, held that Serbia breached the Canada-Serbia BIT, awarding EUR 14,572,730 to William Rand. However, the claimants' request to suspend criminal investigations into one of their witnesses was dismissed.
Coropi Holdings Limited, Kalemegdan Investments Limited and Erinn Bernard Broshko v. Republic of Serbia, ICSID Case No. ARB/22/14
In May 2022, Coropi Holdings and Kalemegdan Investments, two companies based in Cyprus, and Erinn Bernard Broshko, a Canadian individual, filed a request for arbitration, invoking the Canada-Serbia and Cyprus-Serbia BITs.5 The claimants allege that the City of Belgrade wrongly refused a request for compensation for land that was effectively expropriated. The case is still pending.
APG SGA SA and D.O.O. za promet i usluge Alma Quattro Beograd v. Republic of Serbia, ICSID Case No. ARB/21/13
The case concerns the purported violation by Belgrade local authorities of Alma Quattro's extended exclusive contract for outdoor advertising services within the city. The claimants assert that the city breached the contract by awarding a concession for digital advertising panels to a competitor in 2020.6 The case commenced in March 2021, and it invokes the Serbia-Switzerland BIT.
United Group B.V., Adria Serbia Holdco B.V., and Serbia Broadband–srpske kablovske mre~e d.o.o. Beograd v. Republic of Serbia, ICSID Case No. ARB/21/5
Under the Netherlands-Serbia BIT, two Dutch telecom companies (United Group B.V. and Holdco B.V.) along with their domestic subsidiary, commenced arbitration proceedings against Serbia in February 2021.7 The claimants allege that they have been subjected to unfounded and discriminatory measures implemented by Serbian authorities, further alleging that institutions aimed to diminish SBB's market share and promote the interests of a State-owned company. The case is pending.
BRIF TRES d.o.o. Beograd and BRIF-TC d.o.o. Beograd v. Republic of Serbia, ICSID Case No. ARB/20/12
In this case, under the BLEU (Belgium-Luxembourg Economic Union)-Serbia BIT, the claims resulted from alleged actions and oversights by Serbian authorities regarding a conflict concerning the ownership of land leased to the claimants through a tender process. The investments aimed to build a shopping mall in Belgrade on long-term leased land, which was impacted by an ownership issue between third parties and the City of Belgrade, according to the claimants.8
Due to a finding of the claimant's abuse of process through corporate restructuring, in the Award rendered in January 2023, the tribunal majority sided with Serbia. Thereafter, the claimant filed a bid to annul the Award and, in July 2023, an ICSID ad hoc committee was constituted.
Kornikom EOOD v. Serbia, ICSID Case No. ARB/19/12
Kornikom v. Serbia is another investor-State arbitration against Serbia where the Award was rendered this year. In 2007, through a privatization contract, a Bulgarian company Kornikom EOOD, acquired a 70% stake in Rudnik Kovin, the company operating the Kovin underwater coal mine on the Danube riverbank. The Government of Serbia terminated the contract three years later.9 Kornikom EOOD filed a request for arbitration in 2019, calming breaches of the Bulgaria-Serbia BIT. However, in the Award dated 20 September 2023, the arbitral tribunal unanimously dismissed all claims on the merits, awarding Serbia USD 5.8 million in costs.10
Mytilineos Holdings SA v. The State Union of Serbia & Montenegro and Republic of Serbia (I), UNCITRAL
The claimant, Greek company Mytilineos Holdings SA, concluded several agreements with RTB-BOR, a Yugoslavian company, for cooperation in the mineral extraction and metallurgy business operated by RTB-BOR. Government-enacted laws and administrative measures are claimed to have dismantled the investment, including the coerced bankruptcy of a State-owned bank by the respondent, which had guaranteed the claimant's investment. The claims also included breach of fair and equitable treatment, arbitrary, unreasonable and/or discriminatory measures, and indirect expropriation.11 In the Final Award, the tribunal rejected all claims for breach of the Greece-Serbia BIT; however, it noted that potential future claims might emerge based on certain ongoing domestic legal proceedings. 12
Mytilineos Holdings SA v. Republic of Serbia (II), UNCITRAL
Greek company Mytilineos Holdings SA filed a second request for arbitration in September 2013, asserting that it was entitled to both monetary compensation and raw materials. The claimant pointed out that a moratorium had impeded it from pursuing these claims for several years. However, this moratorium allegedly shielded RTB-BOR from creditors while the state-owned company underwent restructuring in preparation for potential privatization.13
The tribunal rendered an Award in August 2017, finding that Serbia breached the Greece-Serbia BIT and ordering it to pay approximately USD 40,000,000 to the claimant. In the Award, the tribunal especially analyzed the res judicata effects of the prior Award.14 Serbia initiated proceedings to set aside the Award before the Swiss Federal Tribunal. However, these proceedings were terminated following a settlement reached between the parties.
Kunsttrans Holding GmbH and Kunsttrans d.o.o. Beograd v. Republic of Serbia (ICSID Case No. ARB/16/10)
Austrian company Kunsttrans Holding GmbH and its Serbian subsidiary Kunsttrans d.o.o. Beograd concluded a contract with the Serbian Government. They were in charge of the construction and overseeing operations of a storage facility for the National Museum in Belgrade, intended to store the museum's collection during renovation works. The claimants asserted that the museum neglected to remit rental fees exceeding EUR 500,000 for the utilization of the art storage facility. Additionally, they claimed that the standard of fair and equitable treatment was breached, invoking the Austria-Serbia BIT.15 An Award from November 2018 confirmed that the BIT had indeed been breached and ordered Serbia to pay compensation to the claimants, albeit a small fraction of the amount claimed.
Conclusion
It can be seen that in investor-State arbitrations against Serbia over recent years, the outcomes were not highly favourable for Serbia. In fact, Serbia was found to have breached its bilateral investment treaties on several occasions. However, some of the abovementioned cases are still pending, and the compensation that Serbia has been ordered to pay is relatively minor.16
Footnotes
1 See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/790/mera-investment-v-serbia.
2 Decision on Jurisdiction dated 30 November 2018, available at https://www.italaw.com/sites/default/files/case-documents/italaw10133.pdf.
3 See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/582/zelena-v-serbia.
5 Claimant's Memorial dated 31 Mach 2023, available at https://www.italaw.com/sites/default/files/case-documents/180142.pdf; see also https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/1214/coropi-and-others-v-serbia.
8 See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/1042/brif-v-serbia.
9 See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/963/kornikom-v-serbia.
10 Award dated 20 September 2023, available at https://www.italaw.com/sites/default/files/case-documents/180342.pdf.
11 See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/200/mytilineos-v-serbia-i-.
12 L. Johnson, In Final UNCITRAL Award, Door left open for Greek company Mytilineos Holdings, to bring another BIT claim against Serbia (26 April 2013), available at https://www.iareporter.com/articles/in-final-uncitral-award-door-left-open-for-greek-company-to-bring-another-bit-claim-against-serbia/.
13 See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/560/mytilineos-v-serbia-ii-.
14 D. Charlotin, Mytilineos v. Serbia: Previously-unseen 485 page award reveals how Sachs, Bishop and Vaseljevic dealt with res judicata effect of prior award, collateral estoppel, difference between counsel and agent, and weight of a "no-prejudice" attempt at settlement (30 September 2019), available at https://www.iareporter.com/articles/mytilineos-v-serbia-previously-unseen-485-page-award-reveals-how-sachs-bishop-and-vaseljevic-dealt-with-res-judicata-effect-of-prior-award-collateral-estoppel-difference-between-counsel-and-agent/.
15 See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/709/kunsttrans-v-serbia.
16 See Coropi Holdings Limited, Kalemegdan Investments Limited and Erinn Bernard Broshko v. Republic of Serbia, ICSID Case No. ARB/22/14; APG SGA SA and D.O.O. za promet i usluge Alma Quattro Beograd v. Republic of Serbia, ICSID Case No. ARB/21/13; and United Group B.V., Adria Serbia Holdco B.V., and Serbia Broadband–srpske kablovske mre~e d.o.o. Beograd v. Republic of Serbia, ICSID Case No. ARB/21/5.
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