Leszek Czarnecki did not give up in the case of Getin Noble Bank and Idea Bank. During the PiS rule, both institutions were subjected to the process of forced restructuring (Resolution), because they were in danger of falling. By decision of the Bank Guarantee Fund (BFG), the idea was absorbed by Bank Pekao. Getin was transformed into Velobank and its new owner became the American investment fund Cerberus.
Although both banks had powerful and for years of problems and negative capital, Leszek Czarnecki believes that he was expropriated as part of revenge for disclosing a corruption proposal from the former chairman of the Polish Financial Supervision Authority Marek Ch. (a criminal trial is pending in this matter).
That is why he decided to fight for compensation from the state both in Poland and abroad and for a considerable amount. To this end, he decided to sue Poland to the Arbitration Court in London. In such institutions, investors often demand compensation calculated in billions of zlotys.
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Arbitration covered with a secret
There is silence around the matter, because both parties have committed themselves to confidentiality. LC Corp, or Leszek Czarnecki's investment company, initiated arbitration proceedings against Poland at the end of 2020. From the official information contained in response to the interpellation of PiS MP Michał Moskal, one can only find out that the case concerns the “alleged expropriation of the investor as the owner of two banks as a result of the actions of the Ministry of Finance, KNF and BFG”.
This information provided by the parliamentarist by the General Prosecutor's Office, i.e. an institution that acts like a law firm of the state and in many cases represents him in courts, including arbitration.
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President of the General Prosecutor's Office Mariusz Haładyj can boast of another success. This time he won with Leszek Czarnecki
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Kacper Loch / East News / East News
For now, it is not known what compensation Leszek Czarnecki intended to demand. In a lawsuit filed in Poland and regarding forced restructuring only Getin, a businessman wants to fight for PLN 1.5 billion.
In the first step, the arbitration proceedings were to decide whether the banks of the “any grounds for responsibility” of Poland were taking place. In the opinion of the prosecutor's office, no.
“Rzeczpospolita Polska (RP) recognizes the claims of LC Corp as completely unfounded” – we read in response to the Vice President of the General Prosecutor's Office Artur Woźnicki to the parliamentary interpellation. The potential amount of compensation is determined at a later stage of arbitration.
This week, interrogations of witnesses were to be launched at the Arbitration Court in London. Among them were representatives of, among others Ministry of Finance, BFG, KNF. According to Business Insider Polska, the matter will not move, and maybe it will land in the basket.
Poland versus Leszek Czarnecki 1: 0
Why can't Leszek Czarnecki fight for compensation in international arbitration? All thanks to the fortress of the General Prosecutor's Office, which, before the case began to be examined in London, began a court battle in Amsterdam.
LC Corp, or Leszek Czarnecki's financial vehicle, is registered in the Netherlands. This, in the opinion of the banker, allowed him to fight for compensation on the basis of the Polish-Dutch investment agreement (bit. That's why it is in the local court Lawyers representing the State Treasury filed the lawsuit for an order to suspend arbitration and an order to withdraw an arbitration application And the end of the dispute in London. Poland and the Netherlands terminated the investment protection agreement in force since 1992 six years ago.
At first, nothing announced the success of the state in the Netherlands. Amsterdam court of first and second instance was on the side of LC Corp, i.e. rejected the Polish application for an arbitration order.
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The State Treasury also died in the first instance in the case for an order to withdraw an application for arbitration from London. According to Business Insider Polska sources, however, the key decision took place on April 22 this year. in the Appeal Court in Amsterdam. He stood on the side of the Treasury and decided that the Dutch investor, i.e. LC Corp, could not sue Poland, use the investment protection agreement with the Netherlands. The decision of the Dutch court is final and has an order to withdraw an arbitration application against Poland.
Our information is confirmed by the General Prosecutor's Office.
“The Court of Appeal in Amsterdam issued a judgment in accordance with the request of the Republic of Poland and obliged LC Corp to cooperate with the Republic of Poland to discontinue the arbitration proceedings. The court added that the arbitration clauses and prolonged validity have lost their power, concluded in the Polish-Dutch agreement on the support and mutual protection of the investment, “said Business Insider Polska Director Director of Department of Delicit Law at the Prosecutor General Prosecutor's Office Wojciech Murawski.
According to our findings, the matter of fighting for the responsibility of state institutions in arbitration proceedings is currently only frozen. Why? Because Leszek Czarnecki had a cassation appeal to the Supreme Court in the Netherlands.
– It can be estimated that the Supreme Court would decide this issue during the year, maybe two years – says our interlocutor who knows the details of the case.
The EU does not recognize arbitration
To understand why the general prosecutor's office is the mountain today, and the possibility of fighting for compensation in London arbitration may be impossible for the Dutch company Leszek Czarnecki, you have to return to double -sided BIT investment agreements.
BIT is international agreements between two countries regarding the conditions of private foreign investment. Poland, together with the construction of a free market economy, concluded many such agreements with Western countries after 1989. The purpose of the treaties was to encourage foreign capital to invest in our country, and the agreements were to give them a guarantee of respect for their rights.
In recent years, however, there have been revolutionary changes in the approach to bit contracts. It is the aftermath of the dispute between Slovakia and the Dutch company Achmea, which in March 2018 led to the judgment of the Court of Justice of the European Union (CJEU) regarding contracts for supporting and mutual protection of investments in the Union countries. The consequence of this judgment The termination of contracts for support and mutual protection of investment currently existing between EU countries. Their resolving was also supported by the European Commission, which called for all member states.
“The Court of Appeal in Amsterdam said in the justification that the arbitration clause and the arbitration procedure initiated by LC Corp are not in line with EU,” informs Wojciech Murawski from the General Prosecutor's Office.
And he reminds that this is the aftermath of the sentence in the case of Achmei.
“According to the Court, LC Corp initiated arbitration proceedings and applied for the establishment of the Arbitration Court outside the EU, knowing that this is contrary to EU law And that in this way he removes his claims from the EU legal protection system applying for intra -EU investments and arbitration. The company also ignored the legitimate interest of Poland, forcing it to participate in arbitration proceedings contrary to EU law and applying for compensation, which in the event that it was granted would constitute an illegal public aid ” – he explains.
Czarnecki is punishable by a penalty
A representative of the General Prosecutor's Office also emphasizes that, according to the Dutch court, “LC Corp activities were an unauthorized act (Delict) in the light of the Dutch Civil Code.”
“The company has been obliged from refraining from continuing these contrary to EU law, under pain of charge, immediately enforceable. The Court of Appeal did not only take into account the amount of the daily penalty requested by the Republic of Poland, which it limited to 100,000. euro, additionally establishing a limit of a total amount of penalties per 10 million euros” – informs.
Poland rubs the trails
The General Prosecutor's Office emphasizes that the decision of the Court of Appeal in Amsterdam is a precedent, because it is the first case when the initiation of arbitration proceedings on the basis of an intra -EU bit has been recognized as an illegal act.
“However, it remains consistent with previous trends. In this context, the judgment of the Court of Justice of the EU in another” Polish “case, PL Holdings, in which the CJEU emphasized that Member States are obliged to actively counteract the issuing of arbitration judgments contrary to EU law,” notes Wojciech Murawski.
Pl Holidings is a company controlled by the Investment Fund Abris, which entered the arbitration dispute with Poland, after the KNF was forced to sell the bank. The case was pending before the Arbitration Tribunal in Stockholm, who even awarded the investor, calculated in hundreds of millions of euros compensation, but ultimately the general prosecutor's office managed to win the case of the High School of State Budget, no compensation was paid.
Wojciech Murawski admit that Poland's actions regarding international arbitration are consistent with those undertaken by other Member States, such as Spain or the Netherlands, which also decided to initiate proceedings against EU investors before the courts of their countries of origin.
“Long -term, a judgment of the Court of Appeal in Amsterdam may stop investors to start further arbitration proceedings of this type” – emphasizes the director from the General Prosecutor's Office.
Author: Bartek Godusławski, journalist Business Insider Polska
