The International Centre for Settlement of Investment Disputes (ICSID), a Washington, DC-based court of arbitration under the World Bank, has issued its final rulings in the dispute between MOL Plc and the Republic of Croatia in a 216-page Award. Thus, an arbitration case that began in 2013 has now been finally decided. The Award finds that MOL is the prevailing party in the arbitration. The arbitration tribunal awarded MOL over US$235 million including interest.
On the central issue in the arbitration regarding Croatia’s allegations that certain agreements that were approved by the Croatian Government in 2009 were obtained by corruption, the Award states clearly and unequivocally that, based on the extensive evidence analyzed by the arbitrators, Croatia’s bribery allegations are rejected. The ruling of the Washington-based court of arbitration means that, once again, an international body comprised of highly accomplished and experienced decisionmakers, has determined that neither MOL nor its Chairman and CEO Zsolt Hernádi engaged in any corrupt activities as Croatia has been alleging since 2011.
Over the course of an 8-year arbitration, the three-member arbitral tribunal reviewed all the key evidence, including evidence that Croatia presented in the recent trial in Zagreb which led to the conviction of MOL’s CEO and Chairman and former Croatian Prime Minister Ivo Sanader. The evidence included the testimony of dozens of witnesses, tens of thousands of documents, and the opinions of internationally-recognized experts. Croatia argued in the arbitration, as it did in the criminal proceedings in Zagreb, that the evidence it presented established bribery and corruption. Like the arbitrators in the earlier UNCITRAL arbitration that ended in December 2016, the ICSID arbitrators unanimously disagreed.
In rejecting Croatia’s bribery charges, the arbitrators examined in detail the testimonies of Croatia’s key witness, Robert Jezic. On every aspect of Jezic’s testimony, the arbitrators found him to be contradictory, evasive and untruthful. The arbitrators expressed strong doubts regarding the reliability and veracity of the witness during the dispute settlement process as well as the criminal process in Zagreb. They endorsed the unanimous opinion of the UNCITRAL arbitrators that Jezic must be considered a thoroughly unreliable witness whose testimony cannot be accepted by any competent court or decisionmaker. The arbitrators also found unreliable the testimony of a Swiss tax adviser, who served as Croatia’s other main witness in the criminal proceedings in Zagreb.
The Award marks the end of a lengthy international legal dispute. Other than in Croatia, all courts and prosecution offices have come to the same conclusion: that no corruption had taken place.
In December 2016, the United Nations Commission on International Trade Law (UNCITRAL) ruled in favour of MOL. According to the court of arbitration, Croatia was unable to provide proof for the corruption charges, while the crown witness was determined as lacking credibility entirely.
The Constitutional Court of Croatia found severe infringements of rights during the Croatian judicial procedures.
As a consequence of the establishment of the fact that no corruption had taken place, the ICSID tribunal also ruled on the claims for damages put forward by MOL. The ruling of ICSID established that the Croatian government failed to take over the gas trading business (PP) of INA despite its contractual obligation to do so, inflicting USD 167.84 million in damages on INA, and thus indirectly to MOL. According to the court, Croatia caused further damages to MOL by forcing the sale of PP’s stored gas, for which MOL was awarded USD 16.1 million. The ruling established that Croatia is to pay interest to MOL and reimburse a significant portion of its arbitration costs. The total amount of damages awarded to MOL is around USD 236 million, including interest. Interest will continue to accrue on this amount until the awarded amounts are paid by Croatia. As MOL was also the victorious party in the arbitration, the tribunal also ruled that Croatia pay most of the costs of the proceedings.
Several additional claims by MOL were denied by the arbitrators for technical reasons.
Croatia is signatory to the international treaty that established ICSID. Under its international law obligations and Croatian law, Croatia is required to respect the arbitrators’ decisions as if they are a decision of Croatia’s highest courts.