The judgment of the Court of Justice of the European Union in the Achmea case called into question the compatibility of investment treaties concluded between Member States with EU law.
As a result, Poland has taken steps to exclude treaties concluded with other EU Member States from international legal transactions, which has led to a one-third reduction in the number of investment treaties binding on Poland.
In this context, the following question arises:
Which investors can still count on treaty protection for their investments in Poland?
Marek Jeżewski and Krzysztof Walczyk have prepared a practical guide to Polish investment law for Global Arbitration Review.
The aim of the publication is to help foreign investors make informed decisions when planning to invest in Poland.
The authors analysed nearly 40 investment treaties still in force, presenting investor protection standards and investment dispute resolution mechanisms.
The issues analysed include:
- Fair and equitable treatment standard
- Investment protection and security standard
- Expropriation rules
- Most-favoured-nation clause
- Umbrella clause
- Length of the ‘cooling-off’ period
- Access to ordinary courts
- Possibility of initiating arbitration proceedings
Distinguishing features of investment treaties signed by Poland
In addition to elements found in virtually all treaties, such as the most-favoured-nation clause, the guide identifies several – sometimes non-obvious – exceptions that stand out against the background of established treaty practice.
The publication also covers the practical aspects of conducting investment disputes against Poland and the key legal regulations concerning the enforcement of arbitral awards.
Importantly, Poland is not a party to the Washington Convention and therefore Article 54 of the Convention, which provides for a mechanism of ‘automatic’ recognition and enforcement of arbitral awards made under the Convention, does not apply to it.
Despite the almost complete disappearance of intra-EU treaties, can foreign investors secure protection for their Polish investments under other treaties? The answer lies in the careful and considered structuring of investments to ensure their adequate protection.
Source: Global Arbitration Review
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