180 / 391
NEWS LETTER 2 0 1 0
166
Cementownia alleged that they came into ownership of shares
just prior to Turkey’s actions. In its decision of September
2009, the Arbitral Tribunal considered that the Claimant has
not produced any persuasive evidence that could prove either its
shareholding in CEAS and Kepez at the relevant time or that
it was an investor within the meaning of the ECT. The Arbitral
Tribunal is of the opinion that the Claimant had intentionally
and in bad faith abused the arbitration; it purported to be an
investor when it knew that this was not the case. This constitutes
indeed an abuse of process. In addition, the Tribunal decided
that the Claimant was guilty of procedural misconduct: once the
arbitration proceeding commenced, it caused excessive delays
and thereby increased the costs of the arbitration. The Claimant
was sentenced to pay the arbitration costs; however, Turkey’s
request for moral compensation was denied.
4.
Europe Cement Investment and Trade S.A. (Poland) v. Republic of
Turkey.
The Europe Cement case mirrors the Cementownia case.
Turkey says that there is no jurisdiction because the Claimant has
not shown, and indeed could not show, that it owned shares in
CEAS and Kepez. The evidence supporting ownership submitted
by the Claimant consisted of copies of share transfer agreements
dated 30 May 2003 and copies of bearer share certificates issued
on 10 January 2005 purporting to show that Europe Cement
was a shareholder in the Turkish companies CEAS and Kepez.
The authenticity of these documents was challenged by the
Respondent, and the Tribunal ordered the Claimant to produce
the originals of these documents and other documents that would
be relevant in proving their authenticity and in proving whether
the Claimant did own shares in CEAS and Kepez at the relevant
time. However, the Claimant did not produce the relevant
documents ordered by the Tribunal. This is enough to show that
the Claimant cannot prove that it had an investment in Turkey at
the relevant time. In short, it is an admission that the Claimant
cannot prove the jurisdictional basis required under Article 26(1)
of the Energy Charter Treaty. Thus, the Arbitral Tribunal denied
its jurisdiction in August 2009. The Claimant was sentenced to
pay the arbitration costs; however, Turkey’s request for moral
compensation was denied.