Lawyer Pierre-Olivier Savoie, who represents the company SIA North Star and its owner Peteris Pildegovics in an investor-state arbitration against Norway, presents a number of speculations and untrue allegations in an article published on delfi.lv 12 January, commenting on the termination of the Norway-Latvia bilateral investment treaty. The fact that Mr Savoie is a lawyer who makes a living of investor-state disputes and the fact that he represents Claimants in an ongoing dispute against Norway may explain his defense of bilateral investment treaties. However, it does not excuse his inaccurate representation of the facts or his serious false accusations against Norway.
Latvia and Norway entered into a bilateral investment treaty in 1992, at a time when Norway negotiated and concluded a number of such agreements, including with newly independent States after the dissolution of the Soviet Union, such as Latvia, Lithuania and Estonia. Norway expected investments in the newly independent Baltic States to grow rapidly and Latvia were interested in attracting investments. A bilateral investment treaty seemed like a good idea.
Lots of water has passed under the bridge since then. Both Latvia and Norway have become parties to the European Economic Area, both are governed by rule of law principles and both have well functioning national court systems. This provides security and predictability for private investors.
Investor-state arbitration under investment treaties has proven to be far more costly and offer far less predictability than disputes for the national courts, more often than not to the detriement of national tax payers. Even if the respondent state wins the case, the costs of lawyers and experts are simply enormous. For the same reasons, it has proven to be a goldmine for lawyers engaged in these processes.
In 2018 the European Court of Justice, in Achmea v. Slovak Republic (C-284/16), ruled that the investor-state arbitration clause in the Netherlands-Slovakia bilateral investment treaty was incompatible with EU law. As a consequence, most EU Member States entered into an agreement to terminate their intra-EU BITs. As part of the internal market and a close associate with the EU Member States through the EEA Agreement, Norway has followed suit and taken steps to terminate all its intra-EEA bilateral investment treaties. Several of the treaties have already been terminated, including the treaties with Lithuania and Estonia where the Termination Agreements entered into force on 22 December 2022 and 11 January 2023, accordingly. Contrary to the narrative that Mr Savoie seeks to create, the spesific dispute, in which he is a lawyer for the Claimants, had no bearing on the decision to terminate the Norwegian intra-EEA bilateral investment treaties.
Regarding that spesific dispute Mr Savoie presents in his article a number of false and tendentious allegations regarding Norway’s actions, its management decisions and its alleged cooperation with Russia. It could be tempting to rebut these by reference to the actual facts of the case, but that would lead way too far. Those interested in the details could read Norway’s well documented written pleadings in the arbitration case, which are available here.