The Antwerp Port Authority has taken note of the interim ruling by the Arbitration Tribunal of the International Centre for Settlement of Investment Disputes (ICSID) on the investment dispute between DP World PLC and the Kingdom of Belgium.
The ruling is nuanced and does not yet definitively settle the investment dispute. On the one hand, the Arbitration Tribunal considers that the decision of the Antwerp Port Authority to repossess an (unused) part of the concession of Antwerp Gateway (subsidiary of DP World PLC) in 2014 constitutes what is known as a partial ‘expropriation’ (‘repossession of an investment’) of this concession agreement within the meaning of the Bilateral Investment Treaty (BIT) between the Belgian Luxembourg Economic Union (BLEU) and the United Arab Emirates (UAE). An ‘expropriation’ is permitted provided that five cumulative conditions are met.
As regards these conditions, the Tribunal finds that (1) the decision by the Antwerp Port Authority to repossess was justified on the grounds of public interest, (2) the procedure followed by the Antwerp Port Authority prior to the decision was legal, (3) the decision by the Antwerp Port Authority was not discriminatory, and (4) the decision did not conflict with the concession granted to Antwerp Gateway because domain concessions in the public domain are precarious in law and can therefore be withdrawn or modified in the public interest. In this sense, the Arbitration Tribunal is confirming the lawfulness of the policy decision taken by the Antwerp Port Authority.
With respect to the fifth legality condition for a partial ‘expropriation’ within the meaning of the BIT, i.e. whether appropriate and realistic compensation was paid as compensation for the land reclaimed, the Tribunal is of the opinion that this should be tested in a subsequent phase of the arbitration process.
In addition to the protection against the repossession of investments, DP World also invoked a number of other safeguards under the BIT. However, these claims were also rejected by the Arbitration Tribunal.
The Antwerp Port Authority itself is not a contracting party under the BIT and is therefore not a party to the arbitration procedure either. However, the Port Authority did co-operate in the formulation and development of Belgium’s defence in this matter. The Port Authority is convinced that the 2014 repossession decision safeguarded the port’s international traffic and promoted (in)direct employment in and around the port area. Finally, the Port Authority emphasises the optimum collaboration and relations with DP World, one of the most important terminal operators at the port of Antwerp.
