On 26 February 2016, an ICSID ad hoc committee issued its decision on annulment in the high profile dispute between the Micula brothers and Romania. While the annulment decision is not yet publicly available, it has been reported that the committee has upheld the award in which Romania was held to have breached the fair and equitable treatment obligation in the Sweden-Romania bilateral investment treaty (BIT) (see Legal update, Breach of fair and equitable treatment standard (ICSID).

A particular feature of this case is the European Commission's ongoing interest in it, based on the fact that it concerns a so-called intra-EU BIT, that is a BIT between two EU member states. The Commission filed an amicus curiae submission in respect of the annulment request, disputing the tribunal's jurisdiction to decide matters of EU law. This followed the Commission's 2015 order that Romania recover compensation paid to the Micula brothers pursuant to the award, on the basis that the compensation was incompatible with EU state aid rules (see Legal update, Commission orders Romania to recover incompatible state aid granted in compensation for abolished investment aid scheme). The Miculas' challenge to the Commission's decision is pending before the Court of Justice of the European Union.

Meanwhile, the claimants have sought enforcement of the award in the US. In New York, the District Court of the Southern District of New York (SDNY) recognised the award and subsequently refused to vacate its judgment, which Romania appealed. The Commission has also filed an amicus curiae brief in support of Romania's appeal in these enforcement proceedings pending before the US Court of Appeals for the Second Circuit (see Legal update, Commission orders Romania to recover incompatible state aid granted in compensation for abolished investment aid scheme).

Case: Ioan Micula, Viorel Micula and others v. Romania (ICSID Case No. ARB/05/20).