Coropi Holdings Limited, Kalemegdan Investments Limited and Erinn Bernard Broshko v. Republic of Serbia

Case summary

At a glance

Parties: Coropi Holdings Limited and Kalemegdan Investments Limited (the "Cypriot Claimants"), and Erinn Bernard Broshko, v. the Republic of Serbia
Case no.: ICSID Case No. ARB/22/14
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules 2006; seat Washington, D.C.
Treaty: Cyprus–Serbia BIT (Cypriot Claimants); Canada–Serbia BIT (Mr Broshko)
Tribunal: Sir Daniel Bethlehem KC (President), Andrés Jana, Zachary Douglas KC
Sector: Real estate; urban planning (Belgrade)
Outcome: Pending. The published documents are procedural orders only. The Tribunal split liability from damages (PO4) and ruled on document production (PO5).

The dispute

The claimants hold, directly or indirectly, shares in Obnova, a Serbian company that has used premises at Dunavska 17-19 and Dunavska 23 in Belgrade for decades. They say the City of Belgrade's 2013 Detailed Regulation Plan (2013 DRP) zoned these premises for public use as a trolleybus/bus loop. They say this took away Obnova's buildings and its right of use over the land, which could have been converted into ownership, and that no compensation was paid. The Cypriot Claimants rely on the Cyprus–Serbia BIT and Mr Broshko on the Canada–Serbia BIT. They allege expropriation, breach of fair and equitable treatment, unreasonable or discriminatory measures and breach of an umbrella clause. Serbia denies that Obnova had property rights: it says Obnova only leased the land from the City or Luka Beograd and that the buildings existed before Obnova was established in 1948. Serbia also objects to jurisdiction and admissibility. It argues that the Cypriot Claimants have no \"seat\" in Cyprus and made no \"investment\", and that the April 2012 restructuring and Mr Broshko's November 2017 investment were made when the dispute was already foreseeable, which it says is an abuse of process and lack of good faith.

Key holdings

The Tribunal has competence to split the liability and damages phases. This power rests on Article 44 of the ICSID Convention and on its inherent case-management powers. Nothing in the Convention or the Rules forbids such a split, even though it is not the norm. PO4 ¶¶ 16, 18
The Tribunal rejected the claimants' "compelling reasons" test, drawn from Siag v. Egypt, as inapplicable. Whether to split damages from liability is a case-by-case case-management decision. The order states no principle of general application. PO4 ¶¶ 18, 21, 26
Liability and damages were split. Two points decided it. The case is not about the adequacy of compensation paid but about whether compensation was owed at all. And the finding on liability for fair and equitable treatment, discrimination and the umbrella clause may affect the quantum. Alternative Schedule 3 of PO2 now governs jurisdiction and liability only. If liability is found, an expedited damages phase will follow, with a revised or supplementary report from the claimants' quantum expert. PO4 ¶¶ 24–25, 27
A document is in the public domain only if the requesting party can readily get it through its own enquiries and efforts, without help from the opposing party, in time for the arbitral schedule. A fee for access, or relative ease of access, does not decide the question. PO5 ¶ 19
Documents held by an organ, agency or instrumentality of the State are presumed, rebuttably, to be in the State's possession, custody or control. A careful proportionality assessment is still required so that production does not become unreasonably burdensome. PO5 ¶ 20
Most of the claimants' 60 requests were refused on grounds of specificity, proportionality, burden and materiality. These included the broad requests for historical cadastral and planning files. The Tribunal granted, in whole or in part, requests for specific documents: the 1964 court decision, Serbia's request to the cadastre underlying exhibit R-043 (the privilege objection did not prevail), complete versions of the sketches in R-043, Planning Commission minutes for six named sessions, 24 named letters on the 2013 DRP, and documents on the legalisation of Obnova's buildings. Serbia's requests 2, 3 and 7 were upheld; these concern management and control of Coropi and Kalemegdan and Mr Broshko's knowledge before he invested. Production was due by 22 December 2023, failing which adverse inferences may be drawn. PO5 ¶¶ 24, 28; Annexes 1–2