La Corte Suprema de Suecia confirmó el 10 de julio de 2023 el criterio del tribunal de apelación de Svea (Suecia) de 13 de diciembre de 2022, que había acordado no ejecutar la decisión del tribunal de arbitraje de la Cámara de Comercio de Estocolmo (SCC). Dicho laudo arbitral consideró que la compañía demandante con sede en Luxemburgo debía ser indemnizada, al amparo del Tratado de la Carta de la Energía (ECT) -de la que recientemente la Comisión Europea ha anunciado su salida- y ordenó, en mayo de 2018, el pago de 53,3 millones de euros, más 1,5% de intereses y las costas del proceso.

De acuerdo con la Sentencia del Tribunal de Apelación de Svea de 13 de diciembre de 2022 resulta incontrovertido, a partir de la doctrina sentada por el TJUE, que los litigios originados en el ECT no pueden excluirse de los tribunales nacionales de los Estados miembros y que, por lo tanto, el art. 26.2º. c) del ECT no se aplica a los litigios entre un Estado miembro y un inversor de otro Estado miembro relativos a una inversión realizada por este último inversor en el primer Estado miembro.

Además, el Tribunal de Apelación determinó que lo expresado por el TJUE implica que las partes en este caso no podían, ni de antemano ni a posteriori, acordar que las cuestiones controvertidas se resolvieran mediante arbitraje. Dado que los impedimentos al arbitraje establecidos por el TJUE deben equipararse a los impedimentos del derecho sueco, el Tribunal de Apelación consideró que el Laudo incluía el examen de una cuestión que, según el Derecho sueco, no podía ser decidida por los árbitros. Por lo tanto, se dan las condiciones para invalidar el Laudo en virtud del art. 33, párrafo 1, punto 1 de la SAA.

Asimismo, el Tribunal de Apelación determinó que no se había quedao demostrado que una declaración de nulidad en el presente asunto pudiera acarrear tales consecuencias para el derecho al control jurisdiccional y a la protección de la propiedad como alegó Novenergia. En este contexto, el Tribunal de Apelación no encontró razón alguna para seguir abordando la cuestión de la proporcionalidad o de si una anulación del Laudo podría haber implicado en sí misma una violación de estos derechos. Por consiguiente, las consideraciones del Tribunal de Apelación apoyan la pretensión de España de que se declarase la nulidad del Laudo.

La Decisión de la Corte Suprema de Suecia de 10 de julio de 2023 confirmó el razonamiento anterior.

Judgment of the Svea Court of Appeal – 13 Dec 2022 (Novenergia II – Energy & Environment (SCA) / The Kingdom of Spain)

The decision was delivered by the judges at the Court of Appeal Ulrika Beergrehn, Annika Malm, Judge-Rapporteur, and Eva Edwardsson.

[…]

6.3 The question of whether an invalidation would be contrary to the European Convention on Human Rights or to the principle of proportionality?

6.3.1 Introduction

Novenergia has argued, among other things, that a repeal or annulment on the basis of the CJEU’s rulings in Achmea and Komstroy would involve the application of a retroactive amendment of the content of the ECT contrary to international law. According to Novenergia, setting aside or invalidating the Award would, for this reason, amount to a serious and unequivocal violation of the ECHR. Furthermore, Novenergia has stated that a declaration of invalidity would be contrary to the right to judicial review under Article 6 of the ECHR and to the protection of property according to Article 1 of the first additional protocol to the ECHR, as well as contrary to the principle of proportionality under EU law.

Spain has denied that setting aside the Award would constitute a violation of Novenergia’s rights under the ECHR. Spain has argued that there have been no such violations as referenced therein and that the protection under the ECHR and the Additional Protocol is not absolute. In the event that there is a question of an infringement of the rights under the ECHR, according to Spain it is legal and proportionate. Spain has further denied that the proportionality principle in EU law would constitute an obstacle to invalidate the Award.

6.3.2 Legal starting points

The ECHR is incorporated into Swedish law and applies as law in Sweden. Article 6 of the ECHR contains provisions on the right to a fair trial. These provisions state, among other things, that everyone is entitled to a fair and public hearing within a reasonable time and before an independent and impartial court, established by law.

From the first additional protocol to the ECHR, it appears that every natural or legal person shall have the right to respect for their property and that no one may be deprived of their property except in the public interest and under the conditions specified in law and in the general principles of international law.

The fundamental rights as they are guaranteed under the ECHR are included in EU law as general principles (see Article 6.3 of the TEU). The provisions of the Charter of Fundamental Rights of the European Union (EU Charter), which correspond to provisions in the ECHR, shall have the same meaning and scope as in the ECHR. No provision in the EU charter may be interpreted in such a way that it restricts or infringes on the human rights and fundamental freedoms recognized in the ECHR (Articles 52.3 and 53 of the EU charter).

Based on a ruling by the European Court of Human Rights (Grand Chamber) in 2005, i.e. before the introduction of the provisions now reported, it appears that the protection of human rights within the EU must be considered equivalent to the protection according to the Convention and that therefore there is a presumption that Union law respects the ECHR. The presumption can be rebutted if, in the individual case, there are circumstances which render the protection of ECHR rights manifestly deficient. (See Case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, no. 45036/98, judgment June 30, 2005, p. 165 with references). It follows from a later ruling by the European Court of Human Rights that the presumption is affected by whether or not the CJEU has commented on the compatibility between the current EU legislation and the ECHR (see Case of Michaud v. France, no. 12323/11, judgment December 6, 2012, p. 114 and 115).

The principle of proportionality is a general legal principle which, among other things, is part of EU law and means that the EU’s measures in content and form must not exceed what is necessary to achieve the goals in the treaties (see Articles 5.1 and 5.4 of the TEU).

The principle of the primacy of EU law means that Swedish courts and authorities are prevented from interpreting a provision that has been decided at EU level in a way that changes its content or effect and that they are bound by the CJEU’s interpretation of EU law. At the same time, Sweden has an obligation under international law and a responsibility to ensure that the rights according to the ECHR are not violated in individual cases (see NJA 2014 p. 79 p. 15).

A Swedish court may depart from what follows from the CJEU’s interpretation of an EU provision only if the application in the individual case would otherwise constitute a serious and unequivocal violation of the ECHR. The actual scope for such a deviation is thus extremely limited (see NJA 2014 p. 79 p. 17).

6.3.3 The Court of Appeal’s assessment

In Komstroy, as stated above, the CJEU has clearly interpreted EU law and stated the compatibility between, above all, on the one hand Articles 267 and 344 TFEU and, on the other hand, Article 26.2. c) of the ECT. This ruling is part of a uniform practice development (see Section 6.2.2).

Through the statements made by the court in PL Holdings, it is clear that the CJEU anticipated, and even assumed, that the arbitration in question there could not be upheld (PL Holdings, p. 55). The consequences of the CJEU’s positions were thus clear to the court. In its ruling, the CJEU then expressly stated that individual rights under EU law were something that the court systems of the Member States had to ensure, in this case the Polish court system where appropriate in cooperation with the CJEU within the scope of its jurisdiction (PL Holdings, p. 68). There is no reason to assume that the court anticipated any other outcome regarding the arbitration awards issued in connection with disputes within the framework of the ECT.

In these circumstances, the Court of Appeal starts from the presumption that the CJEU’s interpretation regarding the ECT is compatible with the ECHR (cf. NJA 2014 p. 79 p. 16). However, it should be noted that Sweden also has an obligation under international law and a responsibility to ensure that the rights according to the ECHR are not violated in individual cases (see NJA 2014 p. 79 p. 15).

Both the alleged violation of the right to protection of property and the alleged violation of the right to judicial review are based on the claim that in the event the Award is set aside, Novenergia has no alternative possibility to have a claim for damages against Spain tried in court. As noted, Spain has denied that Novenergia would lack an opportunity to have a claim tried in Spanish court.

The investigation presented by Novenergia are aimed at certain substantive and procedural provisions in Spanish law, for instance regarding time barring.

The investigation provides some support for the fact that a claim under the ECT, on the basis of these provisions, is now time-barred. Against Spain’s objection, however, it has not been shown that Novenergia, in the event of a claim for damages against Spain, would be denied judicial review. Under such circumstances, it has not been shown that an invalidation would have the effect claimed by Novenergia and that Novenergia’s rights according to the ECHR with its First Additional Protocol would be violated or would be disproportionate in relation to the EU interests. The Court of Appeal then finds no reason to further address the issue of proportionality or whether an invalidation of the Award in itself could have amounted to a violation of the right to judicial review or the protection of property.

6.4 Summary of conclusion and assessment

The Court of Appeal has found that it is clear, through the practice of the CJEU, that disputes originating in the ECT may not be excluded from the national courts of the Member States and that Article 26.2. c) of the ECT therefore does not apply to disputes between a Member State and an investor from another Member State concerning an investment made by the latter investor in the former Member State.

Furthermore, the Court of Appeal has determined that what the CJEU expressed implies that the parties in this case could not, neither in advance nor in retrospect, agree that the disputed issues should be resolved through arbitration. Since the impediments to arbitration set up by the CJEU must be equated with impediments in Swedish law, the Court of Appeal has found that the Award included examination of a matter which, under Swedish law, could not be decided by arbitrators. Thus the conditions exist to invalidate the Award under Section 33, Paragraph 1, Item 1 of the SAA.

Lastly, the Court of Appeal has determined that it has not been shown that a declaration of invalidity in this case could result in such consequences for the right to judicial review and the protection of property as claimed by Novenergia. Against that background, the Court of Appeal has found no reason to further address the issue of proportionality or whether an invalidation of the Award could in itself have involved a violation of these rights. Together, the determinations by the Court of Appeal support Spain’s claim being upheld in such a way that the Award shall be declared invalid.

6.5 Legal costs

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6.6 The question of whether the judgment may be appealed, etc.

 The Court of Appeal’s view is that the case contains questions where it is important for the administration of the law that an appeal be heard by the Supreme Court. The Court of Appeal therefore allows the judgment to be appealed (Section 43, Paragraph 2, SAA).

There are reasons, pending the judgment becoming final, to leave the Court of Appeal’s decision of May 17, 2018, regarding the inhibition of the Award to in place.

HOW TO APPEAL, see appendix A

Appeal no later than January 10, 2023

Decision of the Supreme Court of Sweden – 10 July 2023 (Novenergia II – Energy & Environment (SCA) / The Kingdom of Spain).

The Supreme Court does not grant leave to appeal. The decision of the Court of Appeal therefore stands.

GROUNDS

[10].

For the Supreme Court to hear an appeal of this kind, leave to appeal must be granted. Leave to appeal may be granted if it is important for the general application of the law that the appeal be reviewed by the Supreme Court. In addition, leave to appeal may be granted in exceptional cases, namely when there are exceptional reasons for review by the Supreme Court.

[11].

The Supreme Court has examined the material. No reason for granting a leave to appeal has been found.