Investment Treaty Arbitration: Greece

Albania
(4 January 1995)

No

Yes

Yes

Yes

No

6 months

Yes

Yes

Algeria
(21 September 2007)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Argentina
(not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Armenia
(28 April 1995)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Azerbaijan
(3 September 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Bosnia and Herzegovina
(14 June 2007)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Bulgaria
(29 April 1995) (terminated)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Chile
(27 December 2002)

Yes

Yes

Yes

Yes

Yes

3 months^[ii]

Yes

Yes

China
(21 December 1993)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Croatia
(21 October 1998) (terminated) 

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Cuba
(17 October 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Cyprus
(26 February 1993) (terminated)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Czechia
(31 December 1992) (terminated)

No

Yes

Yes

Yes

No

6 months

Yes

Yes

Democratic Republic of the Congo (formerly Zaire) (not in force)

Yes

Yes

Yes

Yes

No

6 months^[iii]

Yes

Yes

Egypt
(6 April 1995)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Energy Charter Treaty
(16 April 1998)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Estonia
(1 August 1998) (terminated) 

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Georgia
(3 August 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Germany
(15 July 1963) (terminated) 

No

Yes

Yes

Yes

No

None

No

No

Hungary
(1 February 1992) (terminated) 

Yes

Yes

Yes

Yes

No

6 months

No

Yes

India
(12 April 2008) (terminated)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Iran
(9 January 2009)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Jordan
(8 February 2007)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Kazakhstan
(not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Korea
(5 November 1995)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Kuwait
(not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Latvia
(8 February 1998) (terminated) 

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Lebanon
(17 July 1999)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Lithuania
(10 July 1997) (terminated)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Mexico
(26 September 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Moldova
(27 February 2000)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Montenegro (formerly the Federal Republic of Yugoslavia)
(8 May 1998)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Morocco
(17 June 2000)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Poland
(20 February 1995) (terminated)

No

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Romania
(12 June 1998) (terminated)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Russia
(23 February 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Serbia (formerly the Federal Republic of Yugoslavia)
(8 May 1998)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Slovakia
(31 December 1992) (terminated)

No

Yes

Yes

Yes

No

6 months

Yes

Yes

Slovenia
(10 February 2000) (terminated)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

South Africa
(5 September 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Syria
(27 February 2004)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Tunisia
(21 April 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Turkey
(24 November 2001)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Ukraine
(4 January 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

United Arab Emirates
(6 March 2016)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Uzbekistan
(8 May 1998)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Vietnam
(8 December 2011)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Natural persons

Nearly all Greek international investment agreements (IIAs) protect as investors natural persons who are nationals of a contracting party under that contracting party’s law.

Some Greek IIAs include variations to this general approach:

• the Argentina BIT excludes from its protection investments made in Argentina by Greek nationals who, at the time of investing, had been domiciled in Argentina for more than two years, ‘unless it is proved that the investment was admitted from abroad’;
• the Bosnia and Herzegovina BIT requires, with respect to Bosnian nationals, that they also have ‘permanent residence’ or ‘main place of business’ in Bosnia and Herzegovina to qualify for protection;
• the Lithuania BIT provides that ‘persons without nationality’ but with ‘permanent residence’ in Lithuania may also qualify as Lithuanian investors in Greece for purposes of the BIT; and
• the ECT extends the scope of investor protections to natural persons ‘permanently residing’ in a contracting party ‘in accordance with its applicable law’.

None of the Greek IIAs contains express provisions concerning dual nationals.

Legal entities

Another category of investors covered by the Greek IIAs are legal entities (in the various Greek IIAs, these are also referred to as ‘economic entities’, ‘other entities’, or ‘other organisations’). All Greek BITs require that, in order to qualify as an investor, such entities must be ‘constituted’, ‘organised’ or ‘incorporated’ under the law of a contracting party.

Most Greek IIAs also require that, in addition to incorporation, such entities must be active, or at least present, in a contracting party. The required activity or presence is described in the following terms:

• effective economic activities (eg, Algeria, Bosnia and Herzegovina, Chile, Jordan, Kazakhstan, Romania, Slovenia, South Africa, Syria, Turkey, UAE and Vietnam BITs);
• seat or siège social (eg, Albania, Argentina, Azerbaijan, China, Cyprus, Germany, Morocco, Russia and Tunisia BITs);
• principal (place of) business (eg Armenia, Korea and Mexico BITs);
• substantive business activities (eg, India BIT) or real economic activities (eg, Iran BIT);
• headquarters (eg, Montenegro and Serbia BITs); and
• registered seat, central management or main place of business (eg, Bosnia and Herzegovina BITs).

Exceptionally, the Lithuania BIT extends protection to entities and organisations established under the law of any third state, but that are directly or indirectly controlled by Lithuanian nationals or entities having their seat in Lithuania, as long as the control is manifested by a substantial part in the ownership.

Covered assets

Greek IIAs generally define ‘investment’ broadly (such as ‘every kind of asset’) and provide a non-exhaustive list of assets that may qualify as an ‘investment’, eg:

• movable and immovable property;
• shares in companies;
• claims having economic value;
• intellectual property rights; and
• concessions.

The Hungary BIT adopts a slightly different approach, defining  ‘investment’ as ‘every kind of asset connected with the participation in companies and joint ventures’.

In addition, most Greek IIAs provide expressly that returns are considered investments as well or are protected as such. Other Greek IIAs that do not contain a general statement achieve a similar result by extending specific protections to ‘investments and returns’ or ‘investments, including returns’.

Excluded assets

Most Greek IIAs do not expressly exclude specific assets from their protection. Exceptions include:

• the Argentina BIT, which excludes investments made in Argentina by Greek nationals who have, at the time of investing, been domiciled in Argentina for more than two years, ‘unless it is proved that the investment was admitted from abroad’;
• the Mexico BIT, which excludes payment obligations from, or the granting of credit to, a contracting party or state enterprise; 
• the UAE BIT, which excludes rights concerning natural resources unless an individual Emirate allows by decree the BIT to apply to rights concerning natural resources granted through an agreement between a Greek investor and the respective Emirate; and
• the ECT, which requires that investments be associated with an economic activity in the energy sector or be designated and notified as ‘charter efficiency projects’.

Change in form

Nearly all Greek IIAs specify that a possible change in the form in which an investment has been made does not affect its character as investment. Some of these IIAs (eg, the Bulgaria and Egypt BITs) contain a qualification that such change may not contradict the law of the host state.

The Greek IIAs that do not include an express change-in-form provision include those with the Democratic Republic of the Congo, Hungary, Iran and Turkey.

Indirect control

Most Greek IIAs do not refer in their definition of ‘investment’ to indirect control of assets. Exceptions include:

• the ECT, which refers to ‘every kind of asset, owned or controlled directly or indirectly by an Investor’;
• the Kuwait BIT, which provides that ‘investment’ means every kind of asset ‘owned or controlled directly or indirectly by an investor’; and
• the Morocco BIT, which includes in its definition of ‘investment’ any ‘direct or indirect contribution in any company or business’.

Admission by host state

Greek IIAs arguably make the substantive protections they offer conditional on the investment having been formally admitted by the host state, eg:

• the China BIT qualifies the definition of a protected ‘investment’ with a requirement that it be ‘admitted’ by the host state; and
• the Iran BIT stipulates that it applies to investments ‘provided that they have been approved […] by the competent authorities’ of the host state.

Legality

Most Greek IIAs define ‘investment’ as an asset invested in accordance with the host state law (eg, the Bulgaria and Syria BITs). Those Greek IIAs that do not define ‘investment’ in this way contain similar language in the provision on the application of the respective IIA to investments made prior to its entry into force (eg, the Albania and Uzbekistan BITs that provide that the BIT ‘shall also apply to investments made prior to its entry into force by investors of either Contracting Party in the territory of the other Contracting Party, consistent with the latter’s legislation’).

Commencement of protection

Temporally, Greek IIAs provide protection as follows:

• about half of Greek IIAs protect investments made after their entry into force as well as investments made before (eg, the Egypt and Slovenia BITs);
• a narrow subset of this first category of Greek IIAs protects investments made after their entry into force as well as those made before, as long as the latter were made after a specific date (eg, the Hungary and Poland BITs); and
• the other half of Greek IIAs protect investments made before and after their entry into force but exclude specified matters concerning such investments (eg, ‘disputes’, ‘claims’, ‘differences’, ‘events’ or ‘situations’) that predate the IIA’s entry into force (eg, Algeria and Lithuania BITs).

Covered assets

Greek IIAs generally define ‘investment’ broadly (such as ‘every kind of asset’) and provide a non-exhaustive list of assets that may qualify as an ‘investment’, eg:

• movable and immovable property;
• shares in companies;
• claims having economic value;
• intellectual property rights; and
• concessions.

The Hungary BIT adopts a slightly different approach, defining  ‘investment’ as ‘every kind of asset connected with the participation in companies and joint ventures’.

In addition, most Greek IIAs provide expressly that returns are considered investments as well or are protected as such. Other Greek IIAs that do not contain a general statement achieve a similar result by extending specific protections to ‘investments and returns’ or ‘investments, including returns’.

Excluded assets

Most Greek IIAs do not expressly exclude specific assets from their protection. Exceptions include:

• the Argentina BIT, which excludes investments made in Argentina by Greek nationals who have, at the time of investing, been domiciled in Argentina for more than two years, ‘unless it is proved that the investment was admitted from abroad’;
• the Mexico BIT, which excludes payment obligations from, or the granting of credit to, a contracting party or state enterprise; 
• the UAE BIT, which excludes rights concerning natural resources unless an individual Emirate allows by decree the BIT to apply to rights concerning natural resources granted through an agreement between a Greek investor and the respective Emirate; and
• the ECT, which requires that investments be associated with an economic activity in the energy sector or be designated and notified as ‘charter efficiency projects’.

Change in form

Nearly all Greek IIAs specify that a possible change in the form in which an investment has been made does not affect its character as investment. Some of these IIAs (eg, the Bulgaria and Egypt BITs) contain a qualification that such change may not contradict the law of the host state.

The Greek IIAs that do not include an express change-in-form provision include those with the Democratic Republic of the Congo, Hungary, Iran and Turkey.

Indirect control

Most Greek IIAs do not refer in their definition of ‘investment’ to indirect control of assets. Exceptions include:

• the ECT, which refers to ‘every kind of asset, owned or controlled directly or indirectly by an Investor’;
• the Kuwait BIT, which provides that ‘investment’ means every kind of asset ‘owned or controlled directly or indirectly by an investor’; and
• the Morocco BIT, which includes in its definition of ‘investment’ any ‘direct or indirect contribution in any company or business’.

Admission by host state

Greek IIAs arguably make the substantive protections they offer conditional on the investment having been formally admitted by the host state, eg:

• the China BIT qualifies the definition of a protected ‘investment’ with a requirement that it be ‘admitted’ by the host state; and
• the Iran BIT stipulates that it applies to investments ‘provided that they have been approved […] by the competent authorities’ of the host state.

Legality

Most Greek IIAs define ‘investment’ as an asset invested in accordance with the host state law (eg, the Bulgaria and Syria BITs). Those Greek IIAs that do not define ‘investment’ in this way contain similar language in the provision on the application of the respective IIA to investments made prior to its entry into force (eg, the Albania and Uzbekistan BITs that provide that the BIT ‘shall also apply to investments made prior to its entry into force by investors of either Contracting Party in the territory of the other Contracting Party, consistent with the latter’s legislation’).

Commencement of protection

Temporally, Greek IIAs provide protection as follows:

• about half of Greek IIAs protect investments made after their entry into force as well as investments made before (eg, the Egypt and Slovenia BITs);
• a narrow subset of this first category of Greek IIAs protects investments made after their entry into force as well as those made before, as long as the latter were made after a specific date (eg, the Hungary and Poland BITs); and
• the other half of Greek IIAs protect investments made before and after their entry into force but exclude specified matters concerning such investments (eg, ‘disputes’, ‘claims’, ‘differences’, ‘events’ or ‘situations’) that predate the IIA’s entry into force (eg, Algeria and Lithuania BITs).

Scope of protection

The protection relating to expropriation in Greek IIAs is generally afforded to investments and returns. However, about half of the Greek IIAs clarify that their provisions regarding expropriation also apply where the host state expropriates the assets of a company incorporated there if investors own shares in the company (eg, the Croatia BIT and ECT).

Conditions for lawful expropriation

Consistent with the Greek 2001 Model BIT, most Greek IIAs provide that investments and returns may not be expropriated except in the public interest, under due process of law, on a non-discriminatory basis, and against prompt, adequate and effective compensation.

Some Greek IIAs, however, differ in this respect, eg:

• instead of referring to ‘due process of law’, the Korea BIT requires that the expropriatory measures be ‘in accordance with legal procedures’;
• the Albania BIT refers only to the ‘public benefit’ and ‘compensation’ requirements for lawful expropriation, without referring to the requirements of ‘due process of law’ and ‘non-discrimination’;
• the Morocco BIT does not mention ‘due process of law’; and
• some BITs require that the expropriatory measures also be ‘clear’ (eg, the Egypt and Romania BITs).

Review by local courts

About one-third of Greek IIAs include a right to seek review by local judicial or administrative authorities of matters concerning expropriation, including review of the investor’s case, legality of the expropriation, its process, valuation and/or the amount of compensation. This includes the BITs with Albania, Bosnia and Herzegovina, Chile, Cyprus, Czechia, Germany, Korea, Kuwait, Lebanon, Lithuania, Montenegro, Poland, Romania, Serbia, Slovakia, UAE, Ukraine and the ECT. Some of these IIAs specify that the review should be ‘prompt’ (eg, the Korea and Lithuania BITs).

Compensation

If an investor’s investment is expropriated, most Greek IIAs entitle the investor to a ‘prompt, adequate and effective’ compensation that should amount to the ‘market value’ of the affected investment immediately before the expropriatory measure was taken or became public knowledge, whichever is the earlier. While generally referring to a broadly similar valuation date, some Greek IIAs contain different formulations as to the measure of compensation payable in the event of expropriation, eg:

• the China BIT refers to a ‘fair compensation’ and ‘value of the investments’;
• the Democratic Republic of the Congo BIT refers to ‘real value’;
• the ECT refers to ‘fair market value’;
• the Hungary BIT refers to ‘just compensation’ and, exceptionally, does not specify the valuation date; and
• the Kuwait BIT refers to ‘actual value’.

In addition, Greek IIAs generally provide that the investor is entitled to interest, typically from the date of expropriation until the date of payment at a ‘commercial rate’. Exceptions include the following IIAs:

• the Albania BIT (providing for ‘current bank interest’);
• the Bulgaria BIT (referring to ‘six months LIBOR quoted for the currency in which the initial investment was made’);
• the Cyprus BIT (referring to ‘6-month [LIBOR] for the relevant currency’);
• the Democratic Republic of the Congo BIT (referring to LIBOR); and
• the Poland BIT (providing for the ‘appropriate commercial rate as determined by the Central Bank of the Contracting Party’).

Indirect expropriation

Most Greek IIAs do not expressly refer to indirect expropriation. Exceptions include the BITs with Chile, the Democratic Republic of the Congo, Hungary, Kuwait, Mexico and Turkey, which expressly address indirect as well as direct expropriation.

Scope of protection

Generally, most Greek IIAs require that the host state treat investments and returns of investors of the other contracting party no less favourably than investments of its own investors or of investors of a third state. In addition, Greek IIAs typically require that similar treatment be provided to investors (ie, that the host state treats investors of the other contracting party as favourably as its own investors or those of any third state). Such treatment must generally be provided regarding either the investors’ ‘activity in connection with investments’ (in the case of most Greek IIAs) or ‘the management, maintenance, use, enjoyment or disposal of their investments’ (in the case of fewer than 10 Greek IIAs).

Common limitations

Apart from its BITs with Germany and the Democratic Republic of the Congo, all of Greece’s IIAs provide that the national treatment (NT) and/or most-favoured-nation treatment (MFN) do not extend to any privileges or advantages resulting from:

• the participation of the host state in any existing or future free trade area, customs union, economic union, regional economic integration agreement or similar arrangement; or
• arrangements relating to taxation.

Other limitations

Other limitations to the MFN and NT standards in Greek IIAs include the following:

• the Argentina BIT excludes from the scope of the MFN treatment the benefits resulting from certain financing agreements concluded by Argentina with Italy and Spain in 1987 and 1988;
• the Bulgaria, Cyprus, Russia, and Vietnam BITs reserve the right of contracting states to make or maintain exceptions from the NT standard in accordance with their laws;
• the China BIT does not refer to an NT standard;
• the Cuba BIT states that ‘the treatment of Cuban State companies or other Cuban national entities may only be used as a comparative basis to the extent such entities operate as investors, i.e., under the law at present applicable, as a party to a joint venture or an international economic association’;
• the Democratic Republic of the Congo BIT accords NT and MFN treatment only to investments and not investors;
• the Hungary BIT has no NT standard and accords MFN treatment only in the context of ‘full security and protection’ and the protection of investments in the case of armed conflict;
• the Lebanon BIT excludes from the scope of MFN and NT the acquisition of real estate and related rights;
• the South Africa BIT excludes from the scope of MFN advantages accorded to non-profit international development finance institutions;
• the UAE BIT excludes from the scope of MFN and NT investor-state dispute settlement procedures and article 12 concerning the right to regulate.

Scope of obligation

All Greek IIAs include some form of ‘protection and security’ standard. Specifically, and consistent with the Greek 2001 Model BIT, most Greek IIAs provide that investments and/or returns ‘shall enjoy full protection and security’ in the host state (eg, the Azerbaijan and Mexico BITs). Greek IIAs that depart from this language include:

• the Chile BIT, which requires the contracting states to ‘protect and accord full security’ to investments;
• the Czechia, Poland and Slovakia BITs, which refer to ‘full security’ only;
• the Kuwait BIT, which requires that full protection and security be accorded ‘in a manner consistent with international law’ and the provisions of the BIT; and
• the ECT, which guarantees ‘most constant protection and security’.

Limitations

Most Greek IIAs do not specifically limit the application of the full protection and security standard. An exception is the Morocco BIT, which provides full protection and security ‘subject to the measures strictly necessary for the maintenance of public order’.

Scope of protection

Most Greek IIAs have an umbrella clause, either towards the end of the treaty (in most Greek IIAs) or among the first articles of the treaty (in some Greek IIAs). These clauses are broadly consistent with the umbrella clause in the Greek 2001 Model BIT, which provides that the host state ‘shall observe any other obligation it may have entered into with regard to a specific investment’.

Some Greek IIAs have no umbrella clause. These include the BITs with Albania, Algeria, Bulgaria, Cyprus, Czechia, the Democratic Republic of the Congo, Germany, Hungary, India, Iran, Slovakia, Tunisia and Ukraine.

Limitations

Some Greek IIAs provide for disputes arising from the obligations referred to in the umbrella clause to be settled a particular way, usually excluding one or more of the dispute resolution mechanisms under the relevant IIA. These IIAs include the Mexico and UAE BITs, as well as the ECT in respect of Australia, Canada, Hungary and Norway. For example, the Mexico BIT provides that ‘disputes arising from such obligations shall be settled only under the terms and conditions of the respective contract’.

In addition, the Mexico BIT restricts the application of the umbrella clause to obligations ‘entered into in writing’, while the UAE BIT provides that the umbrella clause covers ‘contractual obligations’.

Non-impairment

Consistent with the Greek 2001 Model BIT, most Greek IIAs expressly provide that investments may not be impaired by unjustifiable or discriminatory measures. However, some Greek IIAs have no such clause, including the BITs with Albania, Algeria, Armenia, China, Czechia, the Democratic Republic of the Congo, Germany, Poland and Slovakia.

Free transfer of payments

All Greek IIAs provide that the contracting states shall permit unrestricted transfers of the investment, returns, and/‌or related payments in a freely convertible currency at the market rate of exchange. There are variations in the language of these provisions in the Greek IIAs, as shown in the following examples:

• some BITs prescribe a different exchange rate (eg, ‘bank rate’, ‘spot market rate’ prevailing in the host state, ‘rates approved by the Central Bank’ and ‘prevailing rate’) (eg, the Egypt, Kuwait, Montenegro, Serbia and Ukraine BITs);
• some BITs permit transfers after the fulfilment of fiscal and/‌or other financial obligations (eg, the Algeria, Bulgaria, Cuba, Estonia, Iran, Kazakhstan, Montenegro, Romania, Russia, Serbia and Slovenia BITs);
• some BITs permit transfers in accordance with the laws and/‌or procedures of the host state (eg, the China, the Democratic Republic of the Congo, Romania, South Africa, Tunisia and Vietnam BITs);
• some IIAs qualify the host state obligation to permit transfers by reserving exceptions to it for the purpose of ensuring the protection of creditors, compliance with certain laws, and/‌or satisfaction of judgments (eg, the Iran, Mexico, Uzbekistan and Vietnam BITs, and the ECT);
• the Mexico and Vietnam BITs permit temporary restriction of transfers in the event of serious balance of payment difficulties or a threat of such difficulties; and
• the Uzbekistan BIT entitles the contracting states to require reports of transfers.

Armed conflict/‌civil unrest

All Greek IIAs provide protection regarding losses suffered due to armed conflicts, states of national emergency, civil disturbances and/‌or similar events:

• most Greek IIAs provide that in such situations investors must be accorded NT and/or MFN treatment regarding restitution, indemnification, compensation and/or other settlement (exceptions include the Bulgaria BIT, which guarantees only non-discriminatory treatment as to the measures adopted regarding the resulting losses);
• most Greek IIAs also provide that investors be accorded restitution or compensation if the host state requisitions or unnecessarily destroys their investment (exceptions include the Armenia BIT, which does not contain such provision).

Employees, permits, and transport

Some Greek IIAs provide that the contracting states shall, subject to their laws:

• permit engaging any key person of the investor’s or investment’s choice (typically regardless of nationality) and/or facilitate the obtaining of the necessary permits in that connection (eg, the China, India Kuwait, Lebanon, Poland, Turkey and Uzbekistan BITs, and the ECT);
• grant the necessary permits to admitted investments (or facilitate such granting) (eg, the Kuwait, Lebanon and Uzbekistan BITs); and
• permit the operation of transport carrying goods or persons connected with the investment by enterprises of the other contracting state (eg, the Kuwait BIT).

Subrogation

Nearly all Greek IIAs state that if an insurer or a home state or its agency has provided a guarantee against non-commercial risks pertaining to an investment, then the host state shall recognise the guarantor’s or insurer’s rights arising by way of subrogation (eg, the Cuba and Egypt BITs). Greek IIAs with no such clause include the BITs with Cyprus, the Democratic Republic of the Congo and Russia.

General exceptions

None of the Greek IIAs includes a general exceptions provision, except the ECT. Among other things, the ECT provides that contracting states are not precluded from adopting, taking or enforcing measures:

• necessary to protect human, animal or plant life or health (this exception does not apply to Part III of the ECT on investment promotion and protection);
• essential to the acquisition or distribution of energy materials and products in conditions of short supply arising from causes outside the contracting state control;
• designed to benefit investors who are aboriginal people, or socially or economically disadvantaged individuals or groups, or their investments, and are notified as such to the ECT Secretariat;
• considered necessary by a contracting state:
  • for the protection of its essential security interests;
  • in relation to certain matters concerning the non-proliferation of nuclear weapons; or
  • for the maintenance of public order.

The operation of these exceptions is generally subject to various conditions, and the exceptions do not apply to the ECT provisions on expropriation, compensation for losses and interim provisions on trade-related matters.

In addition, the UAE BIT, in a provision titled ‘right to regulate’, provides that each contacting state ‘retains the right to adopt, maintain and enforce measures necessary to pursue legitimate policy objectives to protect society, the environment, public health and safety’.

Denial of benefits

None of the Greek BITs contains a denial of benefits clause. However, such clause is included in the ECT, whereby legal entities and investments may in certain circumstances be denied advantages of Part III of the ECT concerning investment protection, such as where a legal entity is owned or controlled by nationals of a state not party to the ECT and the entity has no substantial business activities in the contracting state in which it is organised.

Essential security/‌extreme emergency

Two Greek IIAs include an essential security and/or extreme emergency exception:

• the India BIT states that the host state is not precluded ‘from taking action for the protection of its essential security interests or in circumstances of extreme emergency in accordance with its laws applied on a non-discriminatory basis’; and
• the ECT provides that it shall not be construed to prevent any contracting state from taking any measure which it considers necessary for the protection of its essential security interests (this exception does not apply to the ECT provisions concerning expropriation, compensation for losses and interim provisions on trade-related matters).

Taxation

The ECT provides that nothing in it shall create rights or impose obligations regarding taxation measures of the contracting states. The precise protection that the ECT offers in relation to taxation measures of contracting states is subject to detailed exceptions and qualifications set out in the treaty.

Available forums

Greek IIAs generally provide that an investor and the host state should first seek to resolve their dispute amicably. If the dispute cannot be settled within, for example, six months (as is the case for most Greek IIAs), the investor is then entitled to submit the dispute to the host state courts, or to one or more types of international arbitration. The most frequently provided options for international arbitration are ICSID or UNCITRAL arbitration. Less frequently encountered options are ICC, SCC or ICSID Additional Facility arbitration. Exceptionally, the Germany BIT has no investor-state dispute resolution provision at all (its dispute resolution clause refers only to arbitration between the contracting states).

Fork-in-the-road

Most Greek IIAs do not have fork-in-the-road clauses providing that the investor’s election to submit its dispute with the host state to a specific forum is final and irreversible. The Greek IIAs that do have such clauses include the BITs with Algeria, Argentina, Chile, Iran, Mexico, Tunisia and Vietnam, as well as the ECT, Annex D of which lists states that do not allow an investor to resubmit the same dispute to international arbitration at a later stage.

Scope of arbitration clause

Most Greek IIAs provide that disputes that may be submitted to arbitration include ‘disputes’ or ‘any dispute’ concerning an investment and/or obligations of the host state under the respective IIA. Exceptions include:

• the BIT with Bulgaria, which limits the entitlement to refer disputes to arbitration to disputes concerning expropriation and transfer of payments;
• the BIT with China, which limits the entitlement to refer disputes to arbitration to disputes concerning the amount of compensation for expropriation; and
• the BIT with Hungary, which limits the entitlement to refer disputes to arbitration to disputes concerning expropriation or nationalisation.

The ISDS mechanism provided for by Article 26(2)(c) of the ECT, including investor–state arbitration, has been held to be inapplicable to intra-EU disputes by the European Court of Justice's 2021 judgment in the Komstroy case (C-741/19 Moldova v Komstroy, 2 September 2021).

Limitation periods

Greek IIAs generally do not refer to limitation periods. An exception includes the BIT with Mexico, which states that an investor-state dispute may not be submitted to arbitration ‘if more than 3 years have elapsed from the date the investor first acquired or should have acquired knowledge of the events that gave rise to the dispute’.

Applicable law

More than half of Greek IIAs include applicable law provisions:

• most IIAs provide that disputes shall be decided in accordance with the respective IIA and international law (eg, the Chile, Estonia and Syria BITs, as well as the ECT); and
• other IIAs envisage the application of one or more of the following sources of law – the respective IIA, the law of the host state, including its rules on conflict of laws, any specific agreement between the investor and the host state, and/or international law (eg, the Argentina, Bosnia, Kuwait, Morocco and Vietnam BITs).

Greek IIAs that have no applicable law clauses include the BITs with Albania, Algeria, Armenia, Cyprus, Czechia, the Democratic Republic of the Congo, Egypt, Hungary, Iran, Korea, Poland, Romania, Russia, Slovakia, Tunisia, Turkey, Ukraine and the UAE.

Applicability of MFN to procedural rights

The only Greek IIA that addresses the applicability of the MFN treatment to procedural rights is the UAE BIT. It provides that the MFN treatment does not include investor-state dispute settlement procedures.

Transparency

The only Greek IIA addressing transparency in arbitration is the UAE BIT, which contemplates that investor-state arbitration shall be subject to the UNCITRAL rules on transparency.

A notice of dispute should be addressed to the Minister of Finance, otherwise the notification does not produce any legal effect towards the Greek State (Public Sector Procedure Code - Codifying Decree 26.6/10.7.1944 (article 5)).

Investment treaty arbitrations are managed by the Ministry of Finance, which is assisted by the Legal Council of the State.

In investment treaty arbitrations, Greece is represented by the Legal Council of the State and typically by external legal counsel. In such cases, and depending on their importance and complexity, the Legal Council of the State may issue an informal invitation to offer addressed to both Greek and international law firms with relevant expertise and experience. Although said invitation (and the relevant selection process) sets forth specific criteria and time limits for the submission of the offers, it does not qualify as a formal public procurement invitation or process and therefore is not subject to most requirements of public procurement legislation.

Greece has signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (the Washington Convention) with Mandatory Law 608/1968, which entered into force on 21 May 1969.

Greece has signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention) with Legislative Decree 4220/1961, which entered into force on 14 October 1962.

Reservations have been made with respect to reciprocity and non-commercial disputes. The first reservation allows the Greek state to apply the Convention only to awards issued in the territory of another contracting state. The second reservation provides for the Convention to apply only to those arbitral awards that have ruled on disputes arising out of legal relationships, whether contractual or not, which are considered as commercial under Greek law.

Greece does not have legislation governing non-ICSID investment arbitrations seated within its territory. However, Greece does have legislation governing international commercial arbitration seated within its territory (Law 2735/1999).

Based on publicly available information and to the best of our knowledge, investment treaty awards have been rendered against Greece in the following two cases:

• Iskandar Safa and Akram Safa v Hellenic Republic (ICSID Case No. ARB/16/20); and
• Cyprus Popular Bank v Hellenic Republic (ICSID Case No. ARB/14/16) (pending annulment proceedings).

The relevant awards are not publicly available (we also understand that the case Iskandar Safa and Akram Safa v Hellenic Republic is still pending in the quantum phase).

We are not aware of cases of non-compliance or cases where additional proceedings have been necessary to enforce such awards.

Historically, Greece’s attitude towards investment treaty arbitration has been positive.

Nonetheless, on 5 May 2020, Greece along with 22 other EU member states signed the Agreement for the Termination of Bilateral Investment Treaties between the member states of the European Union, which implements the European Court of Justice’s 2018 judgment in the Achmea case (C-284/16 Slowakische Republik v Achmea BV, 6 March 2018). That Agreement also terminates any sunset clauses that would extend the life of the affected BITs for a certain period after termination.

Based on available information, we are unaware of any instance in which Greek courts have been called upon to enforce an investment treaty award against Greece.

It is worth noting that there are very limited grounds on which an international award may be set aside under Legislative Decree 4220/1961.

These grounds, including the public policy ground, have been restrictively interpreted and applied by the Greek courts.

Yes (Art 10)

Yes (Art 11)

Yes

No

Yes (Art 12)

Law 1831/1989

Ratification of the Convention of the Establishment of the Multilateral Investment Guarantee Agency (MIGA)

Greece is a member of the MIGA, having ratified the relevant Convention on 6 February 1989.

MIGA provides political risk insurance (guarantees) for projects in a broad range of sectors in developing member countries, covering all regions of the world.

Law 4918/2022

Transformation of the Export Credit Insurance Organisation (ECIO) into a societe anonyme under distinctive title Export Credit Greece

Export Credit Greece SA (ECG) is a societe anonyme established in Athens and supervised by the Minister of Foreign Affairs, aiming to support the export and investment activity of Greek entrepreneurs.

The purpose of the ECG entails:

• the insurance and the provision of guarantees against political, economic and commercial risks, as well as any other risk relating to the export, investment and general international activity of Greek companies;
• insurance, guarantee and financing of export credits and any operations linked to the export activity and the globalisation of Greek companies;
• export credits, insurance cover and guarantees to foreign companies operating in projects of strategic importance for the Greek economy; and
• the access of export companies to sources of financing, advising and providing professional training to export companies and the public sector and promoting the country's export policy.

The state guarantee capital amounts to €1.47 billion pursuant to presidential decree 138/2000, until the issuance of the new ministerial decision as per article 3(6) of Law 4918/2022.

Tradex Hellas SA v Republic of Albania (ICSID Case No. ARB/94/2), Award, 29 April 1999

Middle East Cement Shipping and Handling Co v Arab Republic of Egypt (ICSID Case No. ARB/99/6), Award, 12 April 2002

Pantechniki SA Contractors & Engineers v Republic of Albania (ICSID Case No. ARB/07/21), Award, 30 July 2009

Mytilineos Holdings v The State Union of Serbia & Montenegro and Republic of Serbia (I) (UNCITRAL), Award, 23 September 2009 (not publicly available)

Ioannis Kardassopoulos v Georgia (ICSID Case No. ARB/05/18), Award, 3 March 2010

Spyridon Roussalis v Romania (ICSID Case No. ARB/06/1), Award, 7 December 2011

Mamidoil Jetoil Greek Petroleum Products Societe Anonyme SA v Republic of Albania (ICSID Case No. ARB/11/24), Award, 30 March 2015

Poštová banka, as and Istrokapital SE v Hellenic Republic (ICSID Case No. ARB/13/8), Award, 9 April 2015

Mytilineos Holdings v Republic of Serbia (II) (UNCITRAL), Award, August 2017 (not publicly available)

Marfin Investment Group Holdings SA, Alexandros Bakatselos and others v Republic of Cyprus (ICSID Case No. ARB/13/27), Award, 26 July 2018

Cyprus Popular Bank Public Co Ltd v Hellenic Republic (ICSID Case No. ARB/14/16), Award, 15 April 2021 (not publicly available)

Theodoros Adamakopoulos, Ilektra Adamantidou, Vasileios Adamopoulos and others v Republic of Cyprus (ICSID Case No. ARB/15/49)

Artashes Rafikovich Amalyan v Russian Federation (UNCITRAL)

J&P-AVAX SA v Lebanese Republic (ICSID Case No. ARB/16/29)

Fin Doc Srl and others v Romania (ICSID Case No. ARB/20/35)

Iskandar Safa and Akram Safa v Hellenic Republic (ICSID Case No. ARB/16/20), Decision on Jurisdiction and Liability, 24 July 2020 (currently pending at the quantum phase)

Cyprus Popular Bank Public Co Ltd v Hellenic Republic (ICSID Case No. ARB/14/16) (currently pending annulment proceedings)

Leaf Tobacco A Michaelides SA and Greek-Albanian Leaf Tobacco & Co SA v Republic of Albania (ICSID Case No. ARB/95/1) (Following a settlement agreed by the parties, the proceeding discontinued at the request of the claimants)

Laskaridis Shipping Co LTD, Lavinia Corporation, A K Laskaridis and P K Laskaridis v Ukraine (UNCITRAL) (The case has been settled)

Club Hotel Loutraki SA and Casinos Austria International Holding GMBH v Republic of Serbia (ICSID Case No. ARB/11/4) (The Tribunal issued a procedural order taking note of the discontinuance of the proceedings)

Bank of Cyprus Public Company Limited v Hellenic Republic (ICSID Case No. ARB/17/4) (The Tribunal issued a procedural order taking note of the discontinuance of the proceedings)

Jetion Solar Co Ltd and Wuxi T-Hertz Co Ltd v Hellenic Republic (UNCITRAL) (The Tribunal issued a procedural order taking note of the discontinuance of the proceedings)

Stelios N Kousoulis, Arbitration Law-Handbook-Analysis and Interpretation of the Articles of the Law (Sakkoulas Publications 2004).

Anna P Mantakou, The Arbitration Agreement Convention on International Transactions (Sakkoulas Publications, 1998).

G. Petrocheilos, Arbitration in International Disputes in International Trade Law of Ch. Pamboukis (Nomiki Bibliothiki, 2009).

I. Thoma, The State in International Transactions in “International Trade Law” of Ch. Pamboukis (Nomiki Bibliothiki, 2009).

K. Kalavros, Arbitration Law I, , Vol. A’ (Introduction) (Sakkoulas Publications, 2011).