US developer Invenergy has filed its lawsuit against the Polish government with a UN commercial law body in its ongoing dispute over cancelled power purchase agreements.
The move comes six months after Invenergy formally notified the Polish government of its intention to seek international arbitration if the dispute was not resolved in an amicable way.
Since then, Invenergy said it had received continued denials from the Polish government. “The Polish government’s lack of willingness to cooperate and denials of established facts are a major threat to the bedrocks of foreign investment and international law,” Invenergy chief legal officer Michael Blazer said.
Invenergy has now issued a notice of arbitration to the United Nations Commission on International Trade Law under the US-Poland bilateral investment treaty.
The US firm cited “violations of Invenergy’s rights as a foreign investor and clear breaches of Poland’s obligations” under the treaty.
“We of course first turned to the Polish courts for relief from these actions. But in those cases, multiple Polish state-controlled entities have openly disregarded final and binding decisions by the Polish courts, including the supreme court, leaving Invenergy helpless to enforce its rights within the Polish system,” said Blazer.
“Given the disregard of fair and equitable treatment of a foreign investor in Poland, Invenergy has no choice but to seek relief through international arbitration under the bilateral investment treaty.”
Invenergy claims a subsidiary of majority-state-owned utility Tauron Polska Energie “destroyed the financial viability” of Invenergy’s investments in four wind projects, with damages amounting to around $700 million (€592.17 million).
Tauron began proceedings to liquidate the subsidiary, thereby annulling any power deals, in July 2014, but this liquidation was never formally completed.
The Polish utility insisted the liquidation process was “in line with Polish law, foreign investment protection, contract loyalty principles and good trading habits”.
However, Invenergy said the state firm “initiated a series of coordinated actions intended to terminate or avoid obliagations under the Invenergy contracts”.