Anti-enforcement Actions and the Assignment of Intra-EU Awards

The assignment of intra-EU arbitral awards has become a strategy used by investors to mitigate the risk of EU Member States refusing to comply with the awards against them. In the recent case PV Investors v. Spain case, the original Dutch claimants sought to enforce an intra-EU award rendered under the ECT in the District Court for the District of Columbia. In response, Spain petitioned the District Court of Amsterdam for an injunction to bar the investors from pursuing enforcement, arguing that the payment of the award would violate EU state aid rules. The original claimants then assigned the award to the United States company Blasket and asked the District Court for the District of Columbia to substitute Blasket as a petitioner in the enforcement proceeding. By assigning the award to Blasket, the Dutch companies attempted to change the nationality of the party enforcing the award before domestic courts so that Blasket could continue with the enforcement. This paper examines the practice of monetization of awards, with a focus on the legal issues that may be encountered by the assignees when trying to enforce the assigned awards. It then draws a comparative analysis between the strategy employed by the Dutch investors and corporate restructuring practices employed by legal entities that seek to access investment treaty protection that would otherwise be unavailable. This analysis shows the impact of nationality planning not only in the context of an investment arbitration proceeding but also when it comes to the enforcement of the award.