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International Centre for Settlement of Investment Disputes ______ INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES _________________________________________________________________________ United Utilities (Tallinn) B.V. and Aktsiaselts Tallinna Vesi Claimants v. Republic of Estonia Respondent ICSID Case No. ARB/14/24 _________________________________________________________________________ AWARD _________________________________________________________________________ The Tribunal Mr Stephen L. Drymer, President Prof. Brigitte Stern, Arbitrator Sir David A. R. Williams QC, Arbitrator Secretary of the Tribunal Mr Paul-Jean Le Cannu Assistant to the Tribunal Ms Laurence Ste-Marie Date of dispatch to the Parties: 21 June 2019 REPRESENTATION OF THE PARTIES Representing United Utilities (Tallinn) B.V. and Representing the Republic of Estonia: Aktsiaselts Tallinna Vesi: Mr Iain Maxwell H.E. Minister Raivo Aeg Ms Louise Barber Ms Marleen Kippar Ms Elizabeth Reeves Ministry of Justice of the Republic of Estonia Herbert Smith Freehills LLP Suur-Ameerika 1 10121 Tallinn Exchange House Estonia Primrose Street London EC2A 2EG and United Kingdom Mr Horst Daniel and Ms Ariane Sproedt Squire Patton Boggs LLP Mr Matthew Weiniger QC Rechtsanwalte, Steuerberater Linklaters LLP Taunusanlage 17 1 Silk Street 60325 Frankfurt am Main London EC2Y 8HQ Germany United Kingdom Mr Rostislav Pekař and Ms Maria Polakova Squire Patton Boggs, v.o.s., Mr Kaupo Lepasepp advokátní kancelář Ms Piibe Lehtsaar Václavské náměstí 57/813 Advokaadibüroo Sorainen AS 11000 Prague 1 Kawe plaza, Pärnu mnt 15 Czech Republic 10141 Tallinn Estonia and Mr Stephen P. Anway Mr Luka S. Misetic Squire Patton Boggs LLP 30 Rockefeller Plaza 23rd Floor New York, NY 10112 U.S.A. and Ms Eveli Lume Squire Patton Boggs LLP Unter den Linden 14 10117 Berlin Germany and i Mr Anton Sigal Mr Chirag Mody Ellex Raidla Kaarli pst 1 / Roosikrantsi 2 10119 Tallinn Estonia ii TABLE OF CONTENTS I. INTRODUCTION ...................................................................................................................................... 1 II. PARTIES.................................................................................................................................................... 1 III. PROCEDURAL HISTORY ....................................................................................................................... 1 IV. FACTUAL BACKGROUND .................................................................................................................... 20 A) The Creation of ASTV and its Operation prior to the Privatisation ............................................. 20 B) The Privatisation of ASTV .............................................................................................................. 22 1) The Privatisation Process Established by the City of Tallinn .............................................. 22 2) The “Derogation” concerning the Term of ASTV’s License, and the 2000 EBRD Loan .. 26 3) UUTBV’s Participation in the Tender Process ..................................................................... 26 a) Creation of UUTBV ........................................................................................................ 26 b) Discussions between UUTBV and the City of Tallinn prior to UUTBV’s Bid ............ 27 4) Appointment of ASTV as Tallinn’s Exclusive Water Supplier and Operator of Sewerage Facility ..................................................................................................................................... 29 5) UUTBV’s Bid ........................................................................................................................... 29 a) Share Price .................................................................................................................... 29 b) K-coefficients (Tariffs) .................................................................................................... 29 C) The Entry of UUTBV into ASTV and the Signature of the Privatisation Agreements ............... 31 1) The Share Sale and Subscription Agreement ..................................................................... 31 2) The Services Agreement ....................................................................................................... 31 a) The Body of the Services Agreement .......................................................................... 31 b) Schedule E of the Services Agreement ....................................................................... 34 3) The Shareholders’ Agreement .............................................................................................. 35 4) The Closing of the Share Sale and Subscription Agreement ............................................. 36 D) The First Year of Operation after ASTV’s Privatisation ............................................................... 36 E) The 2002 Amendment to the Services Agreement ..................................................................... 36 F) The 2002 EBRD Loan .................................................................................................................... 38 G) The Entry of the EBRD into UUTBV (and Indirectly ASTV) in 2003 ........................................... 38 H) The ASTV’s IPO and the 2005 Amendments to the Services Agreement ................................ 38 I) 2005-2008: Reforms Proposals for the Water Tariff Regulation under the 1999 PWSSA ....... 39 1) Reform Proposal of the Ministry of Environment ................................................................. 39 2) Reform Proposal of the State Audit Office ........................................................................... 39 3) Reform Proposal of the Chancellor of Justice ..................................................................... 40 4) October-November 2007: the Government Cabinet Supports the Ministry of Environment’s Reform Proposal .................................................................................................................... 40 iii 5) June 2008: the First Draft Amendment to the 1999 PWSSA by the Ministry of Environment ....................................................................................................... 41 J) The 2007 Amendment to the Services Agreement ..................................................................... 42 K) The Ministry of Environment’s Draft Amendment to the 1999 PWSSA ..................................... 43 L) The Statements by the EOKL in 2009 .......................................................................................... 43 M) End of 2008 and 2009: the ECA’s Investigation and Analysis of ASTV’s Tariff ........................ 44 N) The Investigation by the Chancellor of Justice ............................................................................. 47 O) The 2009 Amendment to the Services Agreement ..................................................................... 49 P) The Anti-Monopoly Bill (AMB) and the ECA Methodology .......................................................... 49 Q) The ECA Methodology ................................................................................................................... 51 1) The Discussion regarding the Methodology ........................................................................ 51 2) The Methodology Adopted by the ECA ................................................................................ 53 R) ASTV’s Tariff Application to the ECA ............................................................................................ 54 1) ASTV’s 2011 Tariff Application ............................................................................................. 54 2) The ECA’s Rejection of the 2011 Tariff Application, and the ECA Prescription ............... 56 S) The Estonian Proceedings ............................................................................................................. 58 T) ASTV’s Complaint before the European Commission ................................................................ 62 V. SUMMARY OF THE PARTIES’ CLAIMS AND REQUESTS FOR RELIEF ...................................... 63 A) Claimants’ Position ......................................................................................................................... 63 1) The Breach of Claimants’ Legitimate Expectations Arising Out of the Privatisation......... 63 2) The Other Alleged FET Breaches, and Unreasonable and Discriminatory Measures ..... 65 3) The Breach of the Umbrella Clause ..................................................................................... 66 4) The Claimants’ Prayer for Relief ........................................................................................... 66 B) Respondent’s Position ................................................................................................................... 67 1) Respondent’s Objections to Jurisdiction .............................................................................. 67 2) Respondent Denies Having Breached any of its International Obligations ....................... 68 a) Claimants cannot Claim any Legitimate Expectations regarding Water Tariffs beyond 2005 ................................................................................................................................ 68 b) The AMB’s Regulatory Reform and the ECA’s Measures Do Not Violate FET ....... 69 c) Estonia’s Conduct did not Breach its International Obligations in any other Manner ......................................................................................................
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