Komaksavia Airport Invest Ltd. v. Republic of Moldova

Case summary

At a glance

Parties: Komaksavia Airport Invest Ltd (Cyprus) v. Republic of Moldova
Case no.: SCC EA 2020/130
Forum and rules: SCC emergency arbitration under Appendix II of the 2017 SCC Arbitration Rules; seat Stockholm, Sweden
Treaty: The bilateral investment treaty referred to in the award as "the BIT" (Article 10 provides for SCC arbitration)
Tribunal: Bernardo M. Cremades (Emergency Arbitrator)
Sector: Airport concession; aviation infrastructure
Outcome: Interim measures granted in part (2 August 2020): Moldova was ordered to stay and refrain from terminating the Chisinau Airport concession. Requests against the special airport tax and a broad request against non-interference were denied.
Amount: No damages at this stage. Background figures: shares bought for 80,852,030 Moldovan lei (EUR 3,658,247); at least EUR 30 million invested at the Airport. Costs of the emergency proceedings split equally; each side bears its own legal costs.

The dispute

Komaksavia Airport Invest Ltd is a Cypriot company. On 6 September 2016 it bought 95% of Avia Invest, the Moldovan company that holds the concession for Chisinau International Airport under a Concession Agreement of 30 August 2013 with Moldova's Agency of Public Property (PPA). The Claimant alleged that, from August 2019, Moldovan authorities followed a coordinated plan to take back the Airport. The alleged steps were Security Council meetings, government resolutions, criminal investigations, a 50% \"special airport tax\" on airport modernization fees (Resolution No. 213 and Law No. 60), an insolvency petition and obstruction of a performance guarantee. They ended in the PPA's Notification of Termination of 8 July 2020, which demanded the return of all concession assets within 180 days. The Claimant applied for emergency interim measures under the BIT and the SCC Rules. Moldova filed a late response. It argued that the requests were tied to the merits and speculative, and that the Claimant faced no irrevocable loss.

Key holdings

The Emergency Arbitrator has jurisdiction. The BIT refers to the SCC, which brings in the SCC Rules and their Appendices. The Claimant's claims are prima facie covered by the BIT. Moldova's point that the main tribunal may soon receive the file does not affect this jurisdiction. ¶¶ 63–66
The test for relief is urgency, a prima facie case on the merits and proportionality. In emergency proceedings, urgency means a need for relief before the arbitral tribunal is constituted and can deal with interim measures. ¶¶ 77–78, 84–85
Relief against the special airport tax is denied. The alleged harm is financial and can be remedied in a later award, so there is no urgency. Relief that would interfere with a State's sovereign power to collect taxes also faces a higher bar, and the Claimant did not meet it. ¶¶ 86–92
The requests to prevent termination for lack of a performance guarantee, and to stay the 8 July 2020 Notification of Termination, are granted. Terminating the concession and returning the Airport would alter the status quo and aggravate the dispute. The Claimant showed a prima facie case. The prejudice to the Claimant would be substantial, because Avia Invest exists only to run the Airport, while the burden on Moldova is small given the 180-day period. ¶¶ 95–119
The sixth request, for an order against any steps with a "similar or equal effect", is rejected at the outset as vague and overbroad. ¶¶ 120–123
Because the Claimant succeeded only in part, the costs of the emergency proceedings are split equally and each party bears its own legal fees. ¶ 129; ¶¶ 130.7–130.8

Procedural history

30 August 2013Avia Invest and the PPA conclude the Concession Agreement for Chisinau International Airport.
8 July 2020The PPA issues the Notification of Termination of the Concession Agreement.
24 July 2020The Claimant files its Application for the appointment of an Emergency Arbitrator and for interim measures.
27 July 2020The SCC Board appoints Bernardo M. Cremades as Emergency Arbitrator and fixes the seat in Stockholm. The Application is served on Moldova.
28 July 2020Procedural Order No. 1 sets the procedural calendar.
31 July 2020Moldova files its Response after the deadline. The Emergency Arbitrator fully considers it.
2 August 2020Emergency Award on Interim Measures: termination of the concession stayed; the other requests denied.