* This text was reproduced and reformatted from the text available at the Permanent Court of Arbitration (visited May 11, 2015), http://www.italaw.com/sites/default/files/case-documents/italaw3207.pdf.

1 Achmea, B.V. v. Slovak Republic, PCA Case No. 2013-12, Award on Jurisdiction and Admissibility (May 20, 2014)Google Scholar (Perm. Ct. Arb.), http://www.italaw.com/sites/default/files/case-documents/italaw3207.pdf [hereinafter Achmea].

2 Agreement on the Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Republic, Neth.-Czech Rep., April 29, 1991, 2242 U.N.T.S. 205 (entered into force Oct. 1, 1992), [hereinafter Netherlands-Slovak Republic BIT]. Achmea, supra note 1, ¶ 1, n.1 (“After the dissolution of the Czech and Slovak Federal Republic into the Czech Republic and the Slovak Republic, the Slovak Republic confirmed in an exchange of letters dated 9 December 1994 that the BIT remained in force between the Slovak Republic and the Kingdom of the Netherlands.”).

3 Achmea, supra note 1, ¶ 35–36.

4 Id. ¶¶ 39–40.

5 Eureko, B.V. v. Slovak Republic, PCA Case No. 2008-13, Final Award (Dec. 7, 2012)Google Scholar (Perm. Ct. Arb.), available at http://www.italaw.com/sites/default/files/case-documents/italaw3206.pdf [hereinafter Eureko].

6 Id.

7 Id. ¶ 352. By the time that the Award in the second UNCITRAL arbitration proceeding was rendered in May 2014, Achmea had not yet been successful in its attempts to collect the amounts due while the Slovak Republic was challenging the Eureko Final Award and enforcement proceedings. Achmea, supra note 1, ¶ 44.

8 Achmea, supra note 1, ¶¶ 45–46.

9 Id. ¶¶ 54–69.

10 Id. ¶¶ 70–85.

11 Id. ¶¶ 87–90.

12 Id. ¶¶ 98, 110.

13 Id. ¶ 23.

14 Id. ¶¶ 107, 165.

15 Id. ¶ 122; see also id. ¶¶ 135, 143–49.

16 Id. ¶¶ 123–28, 136–37, 139, 142.

17 Id. ¶ 150.

18 Id. ¶¶ 151–56.

19 Id. ¶ 157.

20 Id. ¶ 159.

21 Id. ¶¶ 167–88.

22 Id. ¶ 180.

23 Id. ¶¶ 189–201.

24 Id. ¶¶ 202–05.

25 Id. ¶¶ 206–17.

26 Id. ¶ 225.

27 Id. ¶¶ 227–51.

28 Id. ¶¶ 251.

29 Id. ¶¶ 252–72.

30 Id. ¶¶ 274–78.

31 Id. ¶¶ 286–88.

1 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic (“Netherlands-Slovak Republic BIT”) ( Exh. C-1 ). The BIT was signed on 29 April 1991 by representatives of the Kingdom of the Netherlands and representatives of the Czech and Slovak Federal Republic, and entered into force on 1 October 1992. After the dissolution of the Czech and Slovak Federal Republic into the Czech Republic and the Slovak Republic, the Slovak Republic confirmed in an exchange of letters dated 9 December 1994 that the BIT remained in force between the Slovak Republic and the Kingdom of the Netherlands.

2 Before a name change on 18 November 2011, Achmea was known as Eureka B.V. This Award uses, in principle, the name Achmea, even when referring to earlier events.

3 Netherlands-Slovak Republic BIT, Article 8(3) ( Exh. C-1 ).

4 Arbitration Rules of the United Nations Commission on International Trade Law, Resolution 31/98 adopted by the General Assembly on 15 December 1976 (“1976 UNCITRAL Rules”), Article 3.

5 Netherlands-Slovak Republic BIT, Article 8 ( Exh. C-1 ).

6 PO1, ¶ 18.1.

7 SoC, ¶¶ 37 and 39. References in notes 7 to 23 are to the Statement of Claim (SoC) and to its factual content, which the Respondent does not appear to have disputed.

8 SoC, ¶ 38.

9 SoC, ¶ 38.

10 SoC, ¶ 38.

11 SoC, ¶ 42.

12 SoC, ¶¶ 24 and 42.

13 SoC, ¶ 42.

14 SoC, ¶ 25.

15 SoC, ¶¶ 34–35.

16 SoC, ¶ 36.

17 SoC, ¶ 44.

18 SoC, ¶¶ 45–51.

19 SoC, ¶¶ 52 and 56.

20 SoC, ¶ 52.

21 SoC, ¶ 56.

22 SoC, ¶ 54.

23 SoC, ¶ 55.

24 Eureka B.V. v. The Slovak Republic (“Eureka v. Slovak Republic” or “Achmea I’), Award on Jurisdiction, Arbitrability and Suspension, PCA Case No. 2008-13, 26 October 2010, ¶¶ 7 and 10 ( Exh. C-2 ). See also, SoC, ¶ 58.

25 Achmea I, Award on Jurisdiction Arbitrability and Suspension, PCA Case No. 2008-13, 26 October 2010, ¶ 293 ( Exh. C-2 ).

26 SoC, ¶ 60.

27 Achmea B.V. (formerly known as “Eureka B.V.”) v. The Slovak Republic (“Achmea v. Slovak Republic” or “Achmea I”), Final Award, PCA Case No. 2008-13, 7 December 2012, ¶ 352 ( Exh. C-32 ).

28 SoC, ¶ 66.

29 SoC, ¶¶ 64 and 67.

30 Decision by the Slovak Constitutional Court in case PL ÚS 3/09-378, 26 January 2011, p. 2 ( Exh. C-3 ).

31 Id., p. 1.

32 SoC, ¶¶ 72–73.

33 SoC, ¶ 74.

34 Interview given by Mr. Fico to SME Monday entitled “I am the same Fico, I just took a lesson”, 12 March 2012, p. 1 ( Exh. C-4 ).

35 Press article by SME entitled “Fico wants to ban profit of health insurers again”, 13 April 2012, p. 1 ( Exh. C-5 ).

36 Transcription of interview by Mr. Fico with Radio Slovensko for the program “Saturday dialogues”, 30 June 2012, p. 1 ( Exh. C-7 ).

37 Id., p. 2.

38 Transcription of televised debate with Mr. Fico on STV1 in the program “O pät’ minút dvanást” (“Five minutes to twelve”) ( Exh. C-10 ).

39 Id., pp. 1–2.

40 Id., p. 2.

41 Id., p. 3.

42 Id., p. 4.

43 Press article by TASR entitled “Zlovenská finalizing her proposal on single health insurer”, 19 July 2012, p. 1 ( Exh. C-11 ).

44 Id.

45 Act No. 185/2012 Coll., 1 July 2012, Article 16 ( Exh. C-9 ).

46 Press release on the website of the Health Care Regulator announcing the resignation of the Health Care Regulator ( Exh. C-6 ).

47 Id. p. 1.

48 Proposal of intention to introduce a unitary system of public health insurance in Slovakia, with accompanying draft Government Resolution, 19 July 2012 ( Exh. C-12 ).

49 Id. p. 1.

50 Id. p. 2.

51 Id., pp. 2–3.

52 Id., p. 4.

53 Id., p. 5.

54 Id., p. 6.

55 Id., p. 6.

56 Id., pp. 6–7.

57 Id., p. 9.

58 Id., p. 10.

59 Id., p. 9.

60 Id., p. 9.

61 Id., pp. 11–12.

62 Id., p.11.

63 Id., pp. 12–16.

64 Letter from Achmea to Mr. Fico, 23 July 2012 ( Exh. C-13 ).

65 Id., p. 2.

66 Id., p. 2.

67 Government Resolution No. 383, approving the Intention Statement, 23 July 2012 ( Exh. C-14 ).

68 Press article by Aktuality.sk entitled “There will be only one health insurer! The government cabinet approved it”, 25 July 2012 ( Exh. C-15 ).

69 Letter by Mr. Fico to Achmea, 31 July 2012 ( Exh. C-16 ).

70 Id., pp. 1–2.

71 Id., p. 2.

72 Id., p. 2.

73 Transcript of interview by Mr. Fico with Rádio Slovensko for the program “Saturday dialogues”, 22 September 2012 ( Exh. C-18 ).

74 Project of Implementation of Unitary Public Health Insurance System in the Slovak Republic ( Exh. C-19 ).

75 Id., pp. 3–7.

76 Id., pp. 8–19.

77 Id., pp. 20–53.

78 Id., p. 8.

79 Id., p. 8.

80 Id., p. 8.

81 Id., pp. 20–42.

82 Id., pp. 32–33.

83 Id., p. 35.

84 Id., pp. 31–32.

85 Id., p. 37.

86 Id., pp. 37–38.

87 Id., p. 38.

88 Id., p. 39.

89 Id., p. 39.

90 Id., p. 39.

91 Id., p. 40.

92 Id., p. 51.

93 Id., p. 38.

94 Id., p. 53.

95 Id., SoC, ¶ 115.

96 Letter from Achmea to Mr. Fico, 8 October 2012 ( Exh. C-22 ); and Letter from Achmea to Ms. Zlovenská, 8 October 2012 ( Exh. C-23 ). These objections were also dispatched to the chairman of the Slovak Parliament, as well as to the leaders of each one of the opposition parties in the Parliament, see SoC, ¶ 116.

97 Letter from Achmea to Mr. Fico, 8 October 2012 ( Exh. C-22 ), ¶ 12, bullet point 3.

98 Id., ¶ 15.

99 Written assessment by the Ministry of Health of objections raised by Achmea in the commenting procedure in respect of the Project Plan, 15 October 2012 ( Exh. C-21 ).

100 “Minutes” of the meeting of 16 October 2012, prepared by the Slovak Ministry of Health, 6 November 2012 ( Exh. C-29 ). Achmea claims that there was an agreement that the meeting would be recorded on tape and that either the audio recording or a transcript would be provided by 19 October 2012. Despite various requests, the Slovak Government only provided these “minutes”. SoC, ¶¶ 123–127. See also, Letter from Achmea to the Ministry of Health, 23 October 2012 ( Exh. C-26 ); Letter form Union to the Ministry of Health, 22 October 2012 ( Exh. C-25 ); Letter from Achmea to Ms. Zvolenská including Appendix A, 22 November 2012 ( Exh. C-44 ); and Letter of the Ministry of Health to Union, 6 December 2012 ( Exh. C-31 ).

101 Government Resolution No. 606, approving the Project Plan, 31 October 2012 ( Exh. C-27 ).

102 Id.

103 On this issue, Achmea explains that “[h]ealth insurance companies in the Slovak Republic are required to deposit a certain percentage of premiums paid by their clients into a common pool, where those premiums are then redistributed to the health insurers based on the characteristics of their client portfolio. These characteristics include age, sex and economic activity, and - from July 2012 - additionally also a classification into one of the Pharmacy Cost Groups, the objective of which is to identify insured with expensive treatments. This mechanism serves to reallocate premiums to those insurers that bear the largest burden in terms of health care cost”. See SoC, ¶ 153, n. 28.

104 Economic analysis of the Financial Policy Institute of the Ministry of Finance of the Slovak Republic, Less health for more money. Analysis of Slovak healthcare sector efficiency, 12 December 2012, p. 38 ( Exh. C-45 ).

105 Article in Hospodárske noviny entitled “The government started the process of creating the one state-owned insurer”, 20 December 2012 ( Exh. C-39 ).

106 Excerpt from the Slovak Business Register regarding the Unitization Company, 29 January 2013 ( Exh. C-46 ).

107 Information on fulfillment of the time schedule for implementation of a unitary system of public health insurance in the Slovak Republic, 6 February 2013 ( Exh. C-47 ); Press article by Pravda entitled “Ziovenská prepared a law on expropriation of insurance companies”, 28 February 2013 ( Exh. C-49 ); Press article in Zdravotnicke Noviny entitled “The works on implementation of the single stateowned insurer are progressing”, 7 March 2013 (Exh. C-50);Press article by Pravda.sk entitled “The project of a single health insurer is delayed, the target dates still apply, according to the Minister”, 20 March 2013 ( Exh. C-52 ); and Transcription of televised debate with Ms. Zvolenská on TA3 in the program “V politike” (“In the politics”), 26 May 2013 ( Exh. C-61 ).

108 Press article by Pravda.sk entitled “Kazimír: The government is not giving up its intention regarding the single health insurer”, 3 April 2013 ( Exh. C-53 ); Press article by SME entitled “The single health insurer might come later”, 4 April 2013 ( Exh. C-54 ); and Press article by SME entitled “The single health insurer is already five months delayed” ( Exh. C-56 ).

109 Press Article by SME entitled “The single health insurer might come later” ( Exh. C-54 ). See also, Press Article by Pravda.sk entitled “Kažimír: The government is not giving up its intention regarding the single health insurer” ( Exh. C-53 ); Transcription of televised debate with Ms. Zvolenská on STV1 in the program “O pät’ minút dvanást” (“Five minutes to twelve”), broadcasted at 11.55 am, 2 June 2013 ( Exh. C-63 ).

110 Information on fulfillment of the time schedule for implementation of a unitary system of public health insurance in the Slovak Republic, 7 May 2013 ( Exh. C-57 ).

111 Id., p. 1.

112 Proposal for the public procurement concerning “Legal and economic consulting on the implementation of the unitary system of public health insurance in Slovak Republic”, 27 May 2013, p. 9 ( Exh. C-62 ).

113 SoC, ¶ 199.

114 Objections, ¶ 89; Reply, ¶ 111.

115 Copy of an offer made by VšZP to a hospital, 17 June 2013, in Annex 2 of the Claimant’s request for the production of documents dated 3 August 2013. It is to be noted that this document was not submitted as an exhibit; it is attached as an annex to the Claimant’s document request. The Respondent objects to the admissibility of the Claimant’s allegations related thereto, but not to the document as such.

116 Annex 2 of the Claimant’s request for the production of documents dated 3 August 2013.

117 Invitation from the Association of State Hospitals in the Slovak Republic to Slovak Minister of Health Ms. Zlovenská to attend the meeting on 26 June 2013, 21 June 2013 ( Exh. C-107 ).

118 Id., and Invitation from the Association of State Hospitals in the Slovak Republic to chairman of the board and general director of VšZP Mr. Marcel Forai to attend the meeting on 26 June 2013, ( Exh. C-108 ).

119 Attendance sheet from the General Meeting of ASN SR (ASH) held on 26 June 2013 in Bratislava ( Exh. C-109 ).

120 The Claimant’s request for the production of documents dated 3 August 2013.

121 Letter from the Ministry of Health to the Ministry of Finance dated 22 August 2013 ( Exh. R-2 ).

122 SoC, ¶ 228.

123 SoC, ¶ 229.

124 Objections, ¶ 196; and Reply, ¶ 217.

125 Response, ¶ 142; and Rejoinder, ¶ 167.

126 PO1, ¶¶ 7.1 and 8.7.

127 Netherlands-Slovak Republic BIT ( Exh. C-1 ).

128 Id., Article 8(5) ( Exh. C-1 ).

129 PO1, ¶ 2.1.

130 PO1, ¶ 2.2.

131 1976 UNCITRAL Rules, Article 33.

132 Netherlands-Slovak Republic BIT, Article 8(6) ( Exh. C-1 ).

133 PO1, ¶ 3.2. Article 187 of the Swiss Code on Private International Law reads as follows: “1. The arbitral tribunal shall rule according to the law chosen by the parties or, in the absence of such choice, according to the law with which the action is most closely connected. 2. The parties may authorize the arbitral tribunal to rule according to equity”.

134 Vienna Convention on the Law of Treaties. Done at Vienna on 23 May 1969, entered into force on 27 January 1980, 1155 U.N.T.S. 331 ( Exh. RLA-32 ). Both State Parties to the BIT are also parties to the Vienna Convention. The Netherlands acceded to the VCLT on 9 April 1985. Czechoslovakia acceded to the VCLT on 29 July 1987, and the Slovak Republic succeeded Czechoslovakia as a State Party on 28 May 1993.

135 Articles 31–32 VCLT.

136 Netherlands-Slovak Republic BIT, Article 8(1) and (2) ( Exh. C-1 ).

137 Article 1(b)(ii) of the BIT provides that, for the purposes of the treaty, the term “investors” comprises “natural persons having the nationality of one of the Contracting Parties in accordance with its law” ( Exh. C-1 ).

138 Article 1(a) of the BIT, for the purposes of the treaty, provides that the term “investments” shall comprise “every kind of asset invested either directly or through an investor of a third State and more particularly, though not exclusively: (i) movable and immovable property and all related property rights; (ii) shares, bonds and other kinds of interests in companies and joint ventures, as well as rights derived therefrom; (iii) title to money and other assets and to any performance having an economic value; (iv) rights in the field of intellectual property, also including technical processes, goodwill and know-how; (v) concessions conferred by law or under contract, including concessions to prospect, explore, extract and win natural resources” ( Exh. C-1 ).

139 Objections, ¶¶ 119–121; Reply, ¶¶ 151–152.

140 Objections, ¶¶ 45–57; Reply, ¶¶ 38–76.

141 Objections, ¶¶ 73–92; Reply, ¶¶ 90–112.

142 Objections, ¶¶ 93–113; Reply, ¶¶ 113–143.

143 Objections, ¶¶ 122–195; Reply, ¶¶ 153–216.

144 Response, ¶¶ 12–14, referring to the Tribunal’s letter of 31 May 2013.

145 Reply, ¶¶ 30.

146 Reply, ¶¶ 31–35. As to the substance, the Respondent submits that (i) the existence of a dispute under Article 8(1), and (ii) the six-month period under Article 8(2) are indeed jurisdictional requirements. In this, regard, it relies on Armed Activities on the Territory of the Congo (New Application: 2002), ¶ 88 ( Exh. RLA-75 ), and Certain Questions of Mutual Assistance in Criminal Matters, ¶ 48 ( Exh. RLA-24 ).

147 Tribunal’s letter to the Parties dated 31 May 2013.

148 Crawford, J., Brownlie’s Principles of Public International Law (OUP, 2012), p. 694 Google Scholar; Fitzmaurice, G., The Law and Procedure of the International Court of Justice (CUP, 1986), pp. 438–439 Google Scholar.

149 Case of the Mavrommatis Palestine Concessions (Greece v. Great Britain) (“Mavrommatis Palestine Concessions”), P.C.I.J., Series A, No. 2, Objection to the Jurisdiction of the Court, 30 August 1924, p. 10 ( Exh. C-64 ); Daimler Financial Services AG v. The Argentine Republic (“Daimler v. Argentina”), ICSID Case No. ARB/05/1, Award, 22 August 2012, ¶ 192 ( Exh. C-83 ).

150 Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, Objection to the Jurisdiction of the Court, 30 August 1924, p. 10 ( Exh. C-64 ); Cases concerning Certain German interests in Polish Upper Silesia (Germany v. Poland) (“Polish Upper Silesia”), P.C.I.J., Series A, No. 6, Preliminary Objections, 25 August 1925, p. 19 ( Exh. C-88 ).

151 See, e.g., CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Decision of the Tribunal on Objections to Jurisdiction, 17 July 2003, ¶ 41; Enron Corporation and Ponderosa Assets, L.P. v. The Argentine Republic, ICSID Case No. ARB/01/3, Decision on Jurisdiction, 14 January 2004, ¶ 33; Bayindir lnsaat Turzim Ticarez Ve Sanayi A.S. v. Islamic Republic of Pakistan (“Bayindir v. Pakistan”), ICSID Case No. ARB/03/29, Decision on Jurisdiction, 14 November 2005, ¶ 87; and Pan American Energy LLC, and BP Argentina Exploration Company v. The Argentine Republic, ICSID Case No. ARB/04/8, Decision on Preliminary Objections, 27 July 2006, 1154, where the relevant tribunals decided to forego a differentiated analysis on jurisdiction and admissibility, although the distinction may have been raised by one of the Parties.

152 See, e.g., LE.S.I. S.p.A. and ASTALDI S.p.A. v. Republique Algérienne Démocratique et Populaire, ICSID Case No. ARB/05/3, Decision, 12 July 2006, ¶ 58.

153 Fitzmaurice, G., The Law and Procedure of the International Court of Justice (CUP, 1986), pp. 438–439 Google Scholar (footnotes omitted). See also, Crawford, J., Brownlie’s Principles of Public International Law (OUP, 2012), p. 694 Google Scholar.

154 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, ¶ 48 ( Exh. RLA-24 ).

155 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2008, ¶ 48 ( Exh. RLA-24 ). Reports 2006, ¶ 88 ( Exh. RLA-75 ).

156 Id.

157 Id.

158 Joan, Micula, Viorel Micula, S.C. European Food S.A., S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania (“Micula v. Romania”), ICSID Case No. ARB/05/20, Decision on Jurisdiction and Admissibility, 24 September 2008, ¶ 64 Google Scholar ( Exh. C-78 ).

159 Daimler v. Argentina, ICSID Case No. ARB/05/1, Award, 22 August 2012, ¶ 193 ( Exh. C-83 ).

160 Micula v. Romania, ICSID Case No. ARB/05/20, Decision on Jurisdiction and Admissibility,

161 Paragraph 7.1 of PO1 provides: “The Parties agreed in principle that the present proceedings shall be bifurcated. Accordingly, a one-day evidentiary hearing on jurisdiction and admissibility [. . .] will be held”; and paragraph 8.7 provides: “The Tribunal will determine the further procedure in consultation with the Parties as necessary, following any Ruling made in respect of the objections to jurisdiction and admissibility raised by the Respondent”.

162 Objections, ¶ 45.

163 Black’s Law Dictionary, 6^th Edition (West Publishing, 1996), p. 472 ( Exh. RLA-7 ).

164 Objections, 46; referring to Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, I.C.J. Reports 2002, ¶ 26 ( Exh. RLA-72 ).

165 Objections, ¶ 47.

166 Objections, ¶ 48; citing Case Concerning the Northern Cameroons (Cameroon v. The United Kingdom), Preliminary Objections, Judgment of 2 December 1963: I.C.J. Reports 1963, pp. 33–34 ( Exh. RLA-8 ). It is to be noted that Exh. RLA-8 only contains the Unofficial Communique No. 63/14 dated 2 December 1963, but not the Court’s ruling.

167 AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April 2005, ¶ 44 ( Exh. RLA-9 ).

168 Mariposa Development Company (Panama/USA), 6 R.I.A.A. 338, 27 June 1933, p. 341 ( Exh. RLA-10 ).

169 AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April 2005, ¶ 44 ( Exh. RLA-9 ).

170 Tr. 20:12–21:5.

171 Objections, ¶ 50, referring to Mariposa Development Company (Panama/USA), 6 R.I.A.A. 338, 27 June 1933, p. 341 ( Exh. RLA-10 ).

172 Objections, ¶¶ 51–52, citing Aminoil v. Kuwait, Final Award, 24 March 1982, 21 I.L.M. 976, p. 1026 ( Exh. RLA-11 ); and Glamis Gold v. United States, UNCITRAL, Award, 8 June 2009, ¶ 328 ( Exh. RLA-12 ).

173 Glamis Gold v. United States, UNCITRAL, Award, 8 June 2009, ¶ 328 ( Exh. RLA-12 ).

174 Objections, ¶¶ 54–55.

175 Objections, ¶ 55.

176 Objections, ¶ 56.

177 Tr. 13:23-14:4.

178 Reply, ¶ 38, citing United Parcel Service of American Inc. v. Government of Canada, UNCITRAL, Award on Jurisdiction, 22 November 2002, ¶ 32 ( Exh. RLA-18 ), and SGS Societe Generale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Order of the Tribunal on Further Proceedings, 17 December 2007, ¶ 19 ( Exh. RLA-76 ).

179 Reply, ¶ 38, citing South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Reports 1962, pp. 319 and 328 ( Exh. C-66 ).

180 Reply, ¶ 40.

181 Reply, ¶ 41.

182 United Nations International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (“ILC Articles on State Responsibility”), Annex to General Assembly Resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I/Corr.4) ( Exh. RLA-13 ).

183 Reply, ¶¶ 43–45, citing Malicorp Limited v. Arab Republic of Egypt, ICSID Case No. ARB/08/18, Award, 7 February 2011, 11 102 (f) ( Exh. RLA-77 ); and SAUR International SA v. Republic of Argentina, ICSID Case No. ARB/04/4, Decision on Objections to Jurisdiction, 27 February 2006, 1174 ( Exh. RLA-78 ).

184 Reply, ¶ 47.

185 Reply, ¶ 50.

186 Reply, ¶ 51.

187 Reply, ¶ 76.

188 Polish Upper Silesia, P.C.I.J., Series A, No. 6, Preliminary Objections, 25 August 1925 ( Exh. C-88 ); Polish Upper Silesia, P.C.I.J., Series A, No.7, Merits, 25 May 1926 ( Exh. C-89 ).

189 Tr. 26:1– 4.

190 Tr. 26:5–10.

191 Tr. 26:18 –25.

192 Objections, ¶ 58–59, referring to AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April2005, ¶ 44 ( Exh. RLA-9 ).

193 Objections, ¶ 60.

194 ILC Articles on State Responsibility, Articles 31 and 34 ( Exh. RLA-13 ).

195 Objections, ¶ 61. See also, Tr. 15:24 –16:9.

196 Objections, ¶ 62, referring to ILC Articles on State Responsibility, Articles 1, 28 and 31 ( Exh. RLA-13 ).

197 Objections, ¶ 64; Reply, ¶ 81.

198 Reply, ¶ 83.

199 SoC, ¶ 228(i).

200 Objections, ¶ 65. See also, Tr. 14:22–15:15.

201 Objections, ¶ 66.

202 Reply, ¶ 84, referring to Schreuer, C., The ICSID Convention: A Commentary (CUP, 2009), pp. 1136–1138 Google Scholar ( Exh. C-80 ); and Schreuer, C., “Non-Pecuniary Remedies in ICSID Arbitration”, 20 Arbitration International (2004), p. 331 CrossRefGoogle Scholar ( Exh. C-74 ).

203 Reply, ¶¶ 78–79, referring to AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April 2005, ¶ 44 ( Exh. RLA-9 ); Continental Casualty Company v. The Argentine Republic, ICSID Case No. ARB/03/9, Decision on Jurisdiction, 22 February 2006, ¶ 60 (Exh. RLA-88); Telef6nica S.A. v. The Argentine Republic, ICSID Case No. ARB/03/20, Decision of the Tribunal on Objections to Jurisdiction, 25 May 2006, ¶ 53 (Exh. RLA-90); and Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/01, Decision on Objections to Jurisdiction, 25 August 2006, ¶ 52 (Exh. RLA-89).

204 Reply, ¶ 80.

205 Reply, ¶ 85.

206 Objections, ¶ 68, citing Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, ¶ 15 (Exh. RLA-15). It is to be noted that Exh. RLA-15 only contains the Unofficial Communiqué No. 96/23 dated 8 July 1996, but not the Court’s ruling.

207 Tr. 17:12–15.

208 Objections, ¶ 69.

209 Objections, ¶ 71, and Reply, ¶ 88.

210 Reply, ¶ 86 (emphasis in the original).

211 Reply, ¶ 89.

212 Tr. 17:19 –18:1.

213 Tr. 18:9 –19:11.

214 Tr. 19:13–18.

215 Objections, ¶¶ 118 and 115. See also, Tr. 12:7–19.

216 Tr. 16:25–17:5.

217 Objections, ¶ 116, referring to Phoenix Action, Ltd. v. The Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, ¶ 107 ( Exh. RLA-29 ); and Mobil Corporation and Others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Decision on Jurisdiction, 10 June 2010, ¶¶ 169 et seq. (Exh. RLA-28).

218 Objections, ¶ 116, citing Lauterpacht, H., Development of International Law by the International Court (Stevens, 1958) p. 164 Google Scholar.

219 Objections, ¶ 114.

220 Objections, ¶ 118.

221 Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, Objection to the Jurisdiction of the Court, 30 August 1924, p. 11 (Exh. C-64).

222 Response, ¶¶ 78–79, citing South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Reports 1962, p. 328 ( Exh. C-66 ).

223 Response, ¶ 80.

224 Response, ¶ 83.

225 Response, ¶ 83, referring to AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April2005, ¶ 43 (Exh. RLA-9).

226 Response, ¶ 84, citing C. Schreuer, “What is a legal dispute?”, in Buffard, I., Crawford, J., Pellet, A., Wittich, S. (eds.), International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner (Koninklijke Brill NV, 2008), p. 970 CrossRefGoogle Scholar ( Exh. C-79 ).

227 Response, 1f 85, citing Applicability of the Obligation toArbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, ¶¶ 42–43 (Exh. C-68).

228 Response, ¶ 87, referring to Glamis Gold v. United States, UNCITRAL, Award, 8 June 2009, ¶¶ 52 and 309 et seq. ( Exh. RLA-12 ); and Aminoil v. Kuwait, Final Award, 24 March 1982, 21 I.L.M. 976, p. 1026 ( Exh. RLA-11 ).

229 Response, ¶¶ 88–89.

230 Response, ¶ 19.

231 Response, ¶ 132.

232 Response, ¶ 133.

233 Response, ¶ 135.

234 Response, ¶ 136.

235 Response, ¶ 135, citing C. Schreuer, “Non-Pecuniary Remedies in ICSID Arbitration”, 20 Arbitration International (2004), p. 331 (Exh. C-74).

236 Response, ¶ 135, citing C. Schreuer, The ICSID Convention: A Commentary (CUP, 2009), pp. 1136–1138 (Exh. C-80).

237 Response, ¶¶ 140–141.

238 Netherlands-Slovak Republic BIT, Article 8(1) and (2) ( Exh. C-1 ).

239 Reply, ¶ 39.

240 Black’s Law Dictionary, 6^th Edition (West Publishing, 1996), p. 472 (Exh. RLA-7).

241 Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, Objection to the Jurisdiction of the Court, 30 August 1924, p. 11 (Exh. C-64).

242 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, ICJ, Advisory Opinion, 30 March 1950, p. 74 Google Scholar; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 Google Scholar, ¶ 138. In the context of investment arbitration, see: United Parcel Service of American Inc. v. Government of Canada, UNCITRAL, Award on Jurisdiction, 22 November 2002, ¶ 34 Google Scholar (Exh. RLA-18) ; SGS Societe Generate de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Order of the Tribunal on Further Proceedings, 17 December 2007, ¶ 19 Google Scholar (Exh. RLA-76) .

243 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962 Google Scholar: I.C.J. Reports 1962, p. 328 Google Scholar (Exh. C-66).

244 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 30 March 1950, I.C.J. Reports 1950, p. 74 ( Exh. C-65 ).

245 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962 Google Scholar: I.C.J. Reports 1962, p. 328 Google Scholar ( Exh. C-66 ).

246 Land, Island and Maritime Frontier Dispute (EI Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, ¶ 329 Google Scholar.

247 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, ¶ 22 Google Scholar.

248 Land, Island and Maritime Frontier Dispute (EI Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, ¶ 326 Google Scholar.

249 SoC, ¶¶ 213–217; Response, ¶ 80.

250 Letter of Achmea to His Excellency Mr. Robert Fico, 23 July 2012, p. 1 (Exh. C-13).

251 Id., p. 2.

252 Id.

253 Letter from the Prime Minister of the Slovak Republic, His Excellency Mr. Robert Fico, to Achmea, 31 July 2012, p. 2 (Exh. C-16).

254 Letter of Achmea to His Excellency Mr. Robert Fico, 17 December 2012, ¶ 5 ( Exh. C-38 ).

255 Notice, ¶¶ 150–151.

256 Tr. 106:10 –19.

257 Tr. 107:25–108:12.

258 Tr. 180:4 –16.

259 Reply, ¶¶ 39, 43.

260 Reply, ¶ 50.

261 Malicorp Limited v. Arab Republic of Egypt, ICSID Case No. ARB/08/18, Award, 7 February 2011, ¶ 102(f) (Exh. RLA-77).

262 SAUR International SA v. Republic of Argentina, ICSID Case No. ARB/04/4, Decision on Objections to Jurisdiction, 27 February 2006, 1174 (Exh. RLA-78)(“if laws of a general nature and their concrete application by the Argentine authorities constitute a breach of rights conferred to a foreign investor by the Bilateral Treaty, then a dispute of a legal nature effectively comes into existence between the investor and the host State”, unofficial translation).

263 See, in particular, Reply, ¶ 45.

264 Malicorp Limited v. Arab Republic of Egypt, ICSID Case No. ARB/08/18, Award, 7 February 2011, ¶ 102(d) and (f) (Exh. RLA-77)(“[T]he jurisdiction of an arbitral tribunal [is] subject to a certain number of conditions[. . .]: d) A legal dispute.[. . .] f) An alleged violation of the Treaty”).

265 SAUR International SA v. Republic of Argentina, ICSID Case No. ARB/04/4, Decision on Objections to Jurisdiction, 27 February 2006, ¶ 74 ( Exh. RLA-78 ).

266 Case Concerning the Northern Cameroons (Cameroon v. The United Kingdom), Preliminary Objections, Judgment of 2 December 1963: I.C.J. Reports 1963, pp. 33–34 Google Scholar (Exh. RLA-8).It is to be noted that Exh. RLA-8 only contains the Unofficial Communique No. 63/14 dated 2 December 1963, but not the Court’s ruling.

267 Id., p. 27.

268 Id., p. 37 (“Even if[. . .] the Court finds that it has jurisdiction, it is not obliged to exercise it in all cases”). See, id., p. 38.

269 Id., p. 37. See, id., p. 38 (“The Court must discharge the duty to which it has already called attention- the duty to safeguard the judicial function. Whether or not at the moment the Application was filed there was jurisdiction in the Court to adjudicate upon the dispute submitted to it, circumstances that have since arisen render any adjudication devoid of purpose. Under these conditions, for the Court to proceed further in the case would not, in its opinion, be a proper discharge of its duties”).

270 Response, ¶ 49.

271 AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April 2005, 1f 44 (Exh. RLA-9).

272 Id., ¶ 43.

273 Id., ¶ 43, citing Schreuer, C., The ICSID Convention: A Commentary (CUP, 2001), p. 102, ¶ 36 Google Scholar.

274 Id., ¶ 45.

275 Objections, ¶¶ 73–77; Reply, ¶¶ 91–95, referring to United Parcel Service of America Inc. v. Government of Canada, UNCITRAL, Award on Jurisdiction, 22 November 2002, ¶ 33 (Exh. RLA-18); Telenor Mobile Communications A.S. v. Republic of Hungary, ICSID Case No. ARB/04/15, Award, 15 September 2006, ¶ 102 (Exh. RLA-19); lmpregilo S.p.A. v. Islamic Republic of Pakistan (“lmpregilo v. Pakistan”), ICSID Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005, ¶ 254 (Exh. RLA-16); Saipem S.p.A. v. The People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007, ¶ 86 (Exh. RLA-20); Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, ¶ 303 (Exh. RLA-94).

276 Objections, ¶ 75, referring to Telenor Mobile Communications A.S. v. Republic of Hungary, ICSID Case No. ARB/04/15, Award, 15 September 2006, ¶ 102 ( Exh. RLA-19 ).

277 Objections, ¶ 73, citing Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Report 1996, Separate Opinion of Judge Higgins, p. 226, ¶ 32 ( Exh. RLA-17 ).

278 Reply, ¶ 94, referring to lmpregilo v. Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005, ¶¶ 109, 237–254 ( Exh. RLA-16 ); Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/01, Decision on Objections to Jurisdiction, 25 August 2006, ¶ 28, n. 12 and ¶ 52 ( Exh. RLA-89 ); and SGS Societe Generale de Surveillance S.A. v. The Republic of Paraguay, ICSID Case No. ARB/07/29, Decision on Jurisdiction, 12 February 2010, ¶¶ 37 and 47 ( Exh. RLA-95 ).

279 Objections, ¶ 76.

280 Tr. 45:11–16, referring lmpregilo v. Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005, ¶ 254 ( Exh. RLA-16 ).

281 Objections, ¶ 79.

282 Objections, ¶ 80.

283 Objections, ¶ 81.

284 Objections, ¶ 82.

285 Objections, ¶ 83, referring to Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, ¶ 79 ( Exh RLA-21 ). See also, Tr. 47:4 –12.

286 Reply, ¶ 91.

287 Continental Casualty Company v. The Argentine Republic, ICSID Case No. ARB/03/9, Decision on Jurisdiction, 22 February 2006, 1160 ( Exh. RLA-88 ) (emphasis added by the Respondent).

288 Reply, ¶¶ 97–98, citing Continental Casualty Company v. The Argentine Republic, ICSID Case No. ARB/03/9, Decision on Jurisdiction, 22 February 2006, ¶ 92 (Exh. RLA-88),and Railroad Development Corporation (ROC) v. Republic of Guatemala, ICSID Case No. ARB/07/23, Second Decision on Objections to Jurisdiction, 18 May 2010, ¶ 136 (Exh. RLA-96).

289 Reply, ¶ 99.

290 Reply, ¶ 100.

291 Reply, ¶ 101.

292 Reply, ¶ 103.

293 Reply, ¶ 104.

294 Objections, ¶¶ 85–86.

295 Reply, ¶ 106; Tr. 49:4 –50:1.

296 Tr. 50:1–51:5.

297 Reply, ¶ 107.

298 Reply, ¶¶ 107–108, citing Malicorp Limited v. Arab Republic of Egypt, ICSID Case No. ARB/08/18, Award, 7 February 2011, ¶ 124 (Exh. RLA-77).

299 Objections, ¶ 87.

300 Objections, ¶ 88; Reply, ¶ 107.

301 Tr. 46:18 –22.

302 Reply, ¶ 110.

303 Objections, ¶ 90.

304 Objections, ¶ 90.

305 Objections, ¶ 91.

306 Reply, ¶ 109.

307 Objections, ¶ 89, referring to Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. The Republic of Paraguay, ICSID Case No. ARB/07/9, Decision on Jurisdiction, 29 May 2009, ¶ 125 ( Exh. RLA-22 ). See also, Reply, ¶ 111; Tr. 57:8 –15.

308 Tr. 56:14 –19.

309 Tr. 53:21–55:14.

310 Letter from the Ministry of Health to the Ministry of Finance dated 22 August 2013 ( Exh. R-2 ). See also, Tr. 53:24– 54:19.

311 Reply, ¶ 105.

312 Response, ¶ 22.

313 Response, ¶ 23.

314 Response, ¶ 23.

315 Response, ¶ 24.

316 Response, ¶ 25.

317 Response, ¶ 138.

318 Response, ¶ 139.

319 Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, Objection to the Jurisdiction of the Court, 30 August 1924, p. 16 Google Scholar ( Exh. C-64 ).

320 Ambatielos case (merits: obligation to arbitrate), Judgment, 19 May 1953, I.C.J. Reports 1953, p. 18.

321 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Report 1996, Separate Opinion of Judge Higgins, p. 226, ¶ 32 Google Scholar (Exh. RLA-17).

322 lmpregilo v. Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005, ¶ 254 ( Exh. RLA-16 ).

323 United Parcel Service of America Inc. v. Government of Canada, UNCITRAL, Award on Jurisdiction, 22 November 2002, ¶ 33 Google Scholar ( Exh. RLA-18 ).

324 Telenor Mobile Communications A.S. v. Republic of Hungary, ICSID Case No. ARB/04/15, Award, 15 September 2006, ¶ 68 Google Scholar ( Exh. RLA-19 ).

325 See also, Micula v. Romania, ICSID Case No. ARB/05/20, Decision on Jurisdiction and Admissibility, 24 September 2008, ¶ 67 ( Exh. C-78 ).

326 Saipem S.p.A. v. The People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007, ¶ 91 (Exh. RLA-20). See further, Pan American Energy LLC, and BP Argentina Exploration Company v. The Argentine Republic, ICSID Case No. ARB/03/13, Decision on Preliminary Objections, 27 July 2006, ¶ 51 (“the claims made in the present case must be taken as they are by the Tribunal at this stage of the proceedings, whose only task it is, in the present phase of the proceedings, to determine whether, as formulated, they fit into the jurisdictional parameters set out by the relevant treaty instrument or instruments”).

327 Chevron Corp., Texaco Petroleum Co. v. The Republic of Ecuador, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, ¶¶ 4.7– 4.8. The tribunal added that “the Tribunal’s general approach in deciding the Respondent’s jurisdictional objections under the prima facie standard here requires an assumption of the truth of the relevant facts alleged by the Claimants in the Notice of Arbitration (subject to the qualifications described above), excluding however a disputed fact uniquely relevant to the existence or exercise of the Tribunal’s jurisdiction. As to such disputed fact, the Tribunal is required either [to] finally decide the factual issue here (if it can) or address it later pursuant to Article 21.4 (second sentence) of the UNCITRAL Arbitration Rules”, ¶ 4.11.

328 Response, ¶ 24.

329 For instance, the ICJ held that “[i]n the present phase it concerns the competence of the Court to hear and pronounce upon this dispute. This issue being thus limited, the Court will avoid not only all expression of opinion on matters of substance, but also any pronouncement which might prejudge or appear to prejudge any eventual decision on the merits”. Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Judgment, Jurisdiction of the Court, 2 February 1973, I.C.J. Report 1973, ¶ 12. See also: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, ¶ 11.

330 It is to be noted that the Respondent agreed that for jurisdictional purposes it was willing to accept that the Tribunal regard the facts as alleged by the Claimant to be true pro tem, thus defusing any controversy over facts for the present exercise. See Objections, 1111 13, 73, citing the separate opinion of Judge Higgins in: Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Report 1996, Separate Opinion of Judge Higgins, p. 226, ¶ 32 Google Scholar ( Exh. RLA-17 ).

331 Salini Costruttori S.p.A. and ltalstrade S.p.A. v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, Decision on Jurisdiction, 9 November 2004, ¶ 136.

332 Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction, 3 August 2004, ¶ 180.

333 AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April 2005, ¶ 44 ( Exh. RLA-9 ).

334 See, e.g., FT 121 III 495.

335 SoC, ¶ 228(i).

336 Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, Order of 30 June 1938, p. 56; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, ¶ 39.

337 Tradex Hellas S.A. v. Republic of Albania, ICSID Case No. ARB/94/2, Decision on Jurisdiction, 24 December 1996, in: 14 ICS/0 Review—Foreign Investment Law Journal (1999), p. 185.

338 Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, ¶ 18(c).

339 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, ¶ 59.

340 Polish Upper Silesia, P.C.I.J., Series A, No.6, Preliminary Objections, 25 August 1925, pp. 15–16 ( Exh. C-88 ).

341 Netherlands-Slovak Republic BIT, Article 5 ( Exh. C-1 ).

342 Mariposa Development Company (Panama/USA), 6 R.I.A.A. 338, 27 June 1933, p. 341 ( Exh. RLA-10 ).

343 Aminoil v. Kuwait, Final Award, 24 March 1982, 21 I.L.M. 976, p. 1026 (Exh. RLA-11).

344 Glamis Gold v. United States, UNCITRAL, Award, 8 June 2009, ¶ 328 (Exh. RLA-12).

345 The Respondent indicated the following on the current status of the Project Plan: “Project Plan is at the earliest stage of the legislative process. It may or may not approximate the terms of a future draft bill, which may or may not be enacted into a law by the Slovak Parliament through a standard democratic process. It is not known whether and, if so, how an administrative authority authorized by such a law would carry it out”. See, Objections, ¶ 42; Reply, ¶¶ 1–8.

346 Rejoinder, ¶ 43.

347 Rejoinder, ¶ 45.

348 Polish Upper Silesia, P.C.I.J., Series A, No. 6, Preliminary Objections, 25 August 1925 (Exh. C-88).See also: Polish Upper Silesia, P.C.I.J., Series A, No. 7, Merits, 25 May 1926 (Exh. C-89).

349 Rejoinder, ¶ 38 (footnote omitted).

350 Tr. 106:14 –107:5.

351 General Assembly Resolution 1803(XVII) on Permanent Sovereignty Over Natural Resources, 14 December 1962, ¶ 4.

352 Polish Upper Silesia, P.C.I.J., Series A, No. 6, Preliminary Objections, 25 August 1925, p. 11 ( Exh. C-88 ). See also: Polish Upper Silesia, P.C.I.J., Series A, No. 7, Merits, 25 May 1926, p. 24 ( Exh. C-89 ).

353 Polish Upper Silesia, P.C.I.J., Series A, No. 6, Preliminary Objections, 25 August 1925, p. 22 ( Exh. C-88 ).

354 Id., pp. 25–26.

355 Project of Implementation of Unitary Public Health Insurance System in the Slovak Republic, p. 39 ( Exh. C-19 ).

356 SoC, ¶ 228(ii)–(iii).

357 Objections, ¶ 78.

358 SoC, ¶ 190.

359 SoC, ¶ 195.

360 SoC, ¶ 201.

361 Netherlands-Slovak Republic BIT, Article 3(1) (Exh. C-1).

362 SoC, ¶ 190. The Claimant entitled the section relating to this particular claim: “Violations in respect of the contemplated ‘voluntary sale’ process”; but then immediately argues that if carried out, the voluntary sale process “violates Article 3(1) of the BIT”.

363 SoC, ¶ 192.

364 SoC, ¶ 195.

365 Government Resolution No. 383, 25 July 2012 (Exh. C-14) ; and Governement Resolution No. 606, 31 October 2012 ( Exh. C-27 ).

366 SoC, ¶ 87.

367 Press article by Sme entitled “There will be only one health insurer! The government cabinet approved it”, 25 July 2012 (Exh. C-15).

368 That said, the Respondent understands that the factual basis for the Article 5 and Article 3 claims are fundamentally different: “I ask the tribunal to remember what Achmea has said about its claims. Their claim under article 3 of the treat[y], the fair and equitable claim, is based on events that have purportedly already occurred. In contrast, their article 5 claim, expropriation, is based on events that have not occurred”. Tr. 10:23-11:4.

369 Proposal of intention to introduce a unitary system of public health insurance in Slovakia (“Intention Statement”), 19 July 2012 ( Exh. C-12 ).

370 Id., point 2.2.

371 Project of implementation of a unitary system of public health insurance in the Slovak Republic (“Project Plan”), 25 September 2012 ( Exh. C-19 ).

372 Id., point 3.6.

373 Government Resolution No. 383, 25 July 2012 ( Exh. C-14 ).

374 Governement Resolution No. 606, 31 October 2012 (Exh. C-27) .

375 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, I.C.J. Reports 2002, ¶ 26 ( Exh. RLA-72 ). See further. Nottebohm case, Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 122 (“Once the Court has been regularly seised, the Court must exercise its powers, as theses are defined in the Statute. After that, the expiry of the period fixed for one of the Declarations on which the Application was founded is an event which is unrelated to the exercise of the powers conferred on the Court by the Statute, which the Court must exercise whenever it has been regularly seised and whenever it has not been shown, on some other ground, that it lacks jurisdiction or that the claim is inadmissible”); Case concerning the right of passage over Indian Territory, Preliminary Objections, Judgment, 26 November 1957 Google Scholar, I.C.J. Reports 1957, p. 142 Google Scholar (“It is a rule of law generally accepted, as well as one acted upon in the past by the Court, that, once the Court has been validly seised of a dispute, unilateral action by the respondent State in terminating its Declaration, in whole or in part, cannot divest the Court of jurisdiction”); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, 27 February 1998 Google Scholar, I.C.J. Reports 1998, ¶ 38 Google Scholar (“In accordance with its established jurisprudence, if the Court had jurisdiction on that date [filing of the Application], it continues to do so; the subsequent coming into existence of the above-mentioned resolutions cannot affect its jurisdiction once established”).

376 Antoine Goetz and Others v. Republic of Burundi, ICSID Case No. ARB/95/3, Award, 10 February 1999, ¶ 72 (“As to the competence of the Tribunal and the admissibility of the request, they are analysed, according to the principle recently recalled by the International Court of Justice, at the date of the filing of the request”, unofficial translation). See also: Bayindir v. Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction, 14 November 2005, ¶ 178 (“the tribunal’s jurisdiction which, according to the long-established jurisprudence of international tribunals of all kinds, is fixed as of the time the proceedings are commenced, and is not subject to ex post facto alteration”).

377 SoC, ¶¶ 199–200.

378 Claimant’s Costs Submission of 11 October 2013; Respondent’s Costs Submission of 11 October 2013.

379 SoC, ¶ 228, point (v).

380 Claimant’s Costs Submission of 11 October 2013, p. 2.

381 Respondent’s Costs Submission of 11 October 2013, p. 2.