Investor-State arbitration—USA/Poland— exclusion clauses—tax-most-favourednation— Vienna Convention (SCC v Poland)

Arbitration analysis: US investors brought an ICSID claim against Poland for unfair tax treatment. The Tribunal declined jurisdiction on the basis that tax matters were excluded under the relevant bilateral investment treaty (BIT). The investors applied to set aside the Award to the Paris Court of Appeal who rejected the appeal on the basis that arguments not previously ventilated before the Tribunal could not be relied on before the court. The Court of Cassation quashed this ruling and the investors applied again to the Paris CA to set aside the Tribunal's ruling. The investors argued that the application of the tax rules had been discriminatory and the refusal of jurisdiction by the Tribunal was contrary to the interpretation of the BIT under Vienna Convention principles. The Paris CA refused to set aside the Tribunal's award. Written by Andrew Rigden Green, partner, head of International Arbitration Greater China at Stephenson Harwood, Hong Kong.