BIT DP World PLC vs Kingdom of Belgium

BIT DP World PLC vs Kingdom of Belgium

The Antwerp Port Authority has taken note of the interim ruling by the Arbitration Tribunal of the International Centre for Settlement of Investment Disputes (ICSID) on the investment dispute between DP World PLC and the Kingdom of Belgium.

The ruling is nuanced and does not yet definitively settle the investment dispute. On the one hand, the Arbitration Tribunal considers that the decision of the Antwerp Port Authority to repossess an (unused) part of the concession of Antwerp Gateway (subsidiary of DP World PLC) in 2014 constitutes what is known as a partial ‘expropriation’ (‘repossession of an investment’) of this concession agreement within the meaning of the Bilateral Investment Treaty (BIT) between the Belgian Luxembourg Economic Union (BLEU) and the United Arab Emirates (UAE). An ‘expropriation’ is permitted provided that five cumulative conditions are met.

As regards these conditions, the Tribunal finds that (1) the decision by the Antwerp Port Authority to repossess was justified on the grounds of public interest, (2) the procedure followed by the Antwerp Port Authority prior to the decision was legal, (3) the decision by the Antwerp Port Authority was not discriminatory, and (4) the decision did not conflict with the concession granted to Antwerp Gateway because domain concessions in the public domain are precarious in law and can therefore be withdrawn or modified in the public interest. ​ In this sense, the Arbitration Tribunal is confirming the lawfulness of the policy decision taken by the Antwerp Port Authority.

With respect to the fifth legality condition for a partial ‘expropriation’ within the meaning of the BIT, i.e. whether appropriate and realistic compensation was paid as compensation for the land reclaimed, the Tribunal is of the opinion that this should be tested in a subsequent phase of the arbitration process.

In addition to the protection against the repossession of investments, DP World also invoked a number of other safeguards under the BIT. However, these claims were also rejected by the Arbitration Tribunal.

The Antwerp Port Authority itself is not a contracting party under the BIT and is therefore not a party to the arbitration procedure either. However, the Port Authority did co-operate in the formulation and development of Belgium's defence in this matter. The Port Authority is convinced that the 2014 repossession decision safeguarded the port's international traffic and promoted (in)direct employment in and around the port area. Finally, the Port Authority emphasises the optimum collaboration and relations with DP World, one of the most important terminal operators at the port of Antwerp.

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About Port of Antwerp-Bruges

With an overall throughput of 289 million tonnes per year, Port of Antwerp-Bruges is a critical hub in worldwide trade and industry. The port is a crucial link for the handling of containers, breakbulk and for the throughput of vehicles. Port of Antwerp-Bruges is home to 1,400 companies and accommodates the largest integrated chemical cluster in Europe. The port provides, directly and indirectly, a total of around 164,000 jobs and generates an added value of 21 billion euros.
 
The ambition for Port of Antwerp-Bruges is clear - to become the world's first port that reconciles economy, people and climate. As well as growing in a sustainable way, the Port also aims to focus on its unique position as a logistics, maritime and industrial centre and to take the lead in the transition to a circular and low-carbon economy. Together with the port community, customers and other partners, Port of Antwerp-Bruges is actively seeking innovative solutions for a sustainable future. High on the agenda is its responsibility for the environment and the surrounding society. 

The port sites of Antwerp and Zeebrugge are operated by the Antwerp-Bruges Port Authority, a limited liability company of public law with the City of Antwerp and the City of Bruges as its shareholders. The port employs 1,800 people. Vice-Mayor of Antwerp Annick De Ridder is President of the Board of Directors, the Mayor of Bruges Dirk De fauw is the Vice-President. Jacques Vandermeiren is CEO and President of the Executive Committee, which is responsible for the port’s day-to-day management. 

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