{"id":10388,"date":"2024-01-29T12:14:08","date_gmt":"2024-01-29T17:14:08","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/ilj\/?p=10388"},"modified":"2024-01-29T12:14:08","modified_gmt":"2024-01-29T17:14:08","slug":"the-butterfly-effect-in-investment-arbitration-how-russias-and-norways-actions-concerning-snow-crab-fishing-may-open-an-avenue-for-foreign-investors-to-bring-an-action-against-spain","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/ilj\/2024\/01\/the-butterfly-effect-in-investment-arbitration-how-russias-and-norways-actions-concerning-snow-crab-fishing-may-open-an-avenue-for-foreign-investors-to-bring-an-action-against-spain\/","title":{"rendered":"The Butterfly Effect in Investment Arbitration: How Russia\u2019s and Norway\u2019s Actions Concerning Snow Crab Fishing May Open an Avenue for Foreign Investors to Bring an Action Against Spain"},"content":{"rendered":"

Danilo Ruggero Di Bella*<\/strong><\/p>\n

Introduction<\/h3>\n

This piece traces the possible ramifications of third-party states\u2019 actions in the context of investment arbitration. It explains how a third state\u2019s action may have a \u201cbutterfly effect\u201d: the third state\u2019s action can prompt foreign investors to initiate investment arbitrations against host states different from the third-party state that carried out the action in the first place. Although to a certain degree, this is not a new phenomenon (multiple investment arbitrations have been triggered by the E.U. Commission<\/a> urging the repeal of various state aids), it is certainly a rarer occurrence outside of an international organization. Within an international organization, it is relatively easier for the institutional governing body to direct its member states to commit a breach of their international obligations. For example, in Micula v. Romania<\/a>, the host state breached its obligations towards foreign investors by repealing incentives that could have constituted illegal state aid<\/a> in the eyes of the E.U. Commission.<\/p>\n

Indeed, sometimes, third-party states\u2019 or international organizations\u2019 actions may prompt foreign investors to initiate arbitrations against their host state for a measure that the host state took in response to the initial third-party\u2019s action. At times, unfortunately for the host state, this measure translates into a breach of an obligation the host state owed towards its foreign investors. Hence, a sort of butterfly effect takes shape.<\/p>\n

The critical actions that will be discussed are Russia\u2019s characterization of snow crabs as a sedentary species and Norway\u2019s conflicting interpretation of a multilateral treaty, the 1920 Svalbard Treaty<\/a><\/span> (originally known as ‘Spitsbergen Treaty’ after the name given by the Dutch explorer Willem Barentsz to the archipelago). These actions may have triggered a chain reaction of events bearing legal implications<\/a> for Spain, due to Spain’s violations of its international obligations towards its foreign investors catching snow crabs around the Svalbard archipelago based on Spanish fishing permits.<\/p>\n

First, this piece will provide a brief overview of the snow crab industry and its origins. Second, it will discuss Russia and Norway\u2019s controversial stance on the snow crabs. Third, it will explain the inconsistency of Norway’s isolated view of the 1920 treaty regulating the status of Svalbard. Finally, it will illustrate the potential investment arbitrations that can be filed against Spain for revoking the snow crab-catching permits for Svalbard from its foreign investors.<\/p>\n

I. The E.U. Snow Crab Fleet<\/h3>\n

In 2012, E.U. trawlers began harvesting snow crabs, a relatively new species in Europe\u2019s waters. This novel activity is a highly profitable business (reportedly, each snow-crab trawler yields one million euros per month on average), and arguably an environmentally friendly practice. Indeed, snow crabs are infesting Europe\u2019s waters, since they are a non-indigenous species<\/a> (p.6) migrating from the Russian coast where they were artificially introduced in the 1960s. Being an alien species prone to overbreeding, they end up harming the ecosystem if they are not regularly caught.<\/p>\n

The European Commission has been authorizing a few member states\u2014specifically, Spain (ANNEX IB p. 99<\/a>), Estonia, Lithuania, Latvia, and Poland (ANNEX III p. 149<\/a>)\u2014to issue permits to catch snow crabs. A trawler flying the Spanish flag\u2014the Adexe Primero<\/em>\u2014pioneered the catch of snow crabs in Europe in 2012. The Spanish vessel focused its activities in the \u201cLoophole\u201d area, a small portion of international waters between Norway and Russia in the Barents Sea, and the waters surrounding the Svalbard archipelago. This vessel carried out its activities on the ground of the fishing permits issued by Spain, specifically, a Northeast Atlantic Fisheries Commission (\u201cNEAFC\u201d) zone permit for the Loophole area and a Svalbard Zone permit for Svalbard waters.<\/p>\n

Vessels of the contracting parties to the NEAFC can get a permit from their flag state to freely catch unregulated stocks\u2014such as snow crabs\u2014in international waters (like in the Loophole area). Similarly, vessels of the signatories to the 1920 Svalbard Treaty can get a permit from their respective flag States to fish around Svalbard on the same footing as Norwegians. Both of Adexe Primero<\/em>\u2019s fishing grounds proved to be so profitable that other E.U. and Norwegian vessels followed suit.<\/p>\n

II. Crimea Sanctions and Russia\u2019s View on Snow Crabs<\/h3>\n

Following EU sanctions<\/a> on Russia for the 2014 annexation of Crimea, Russia<\/a> retaliated by obstructing E.U. vessels fishing in the Barents Sea. For instance, on 16 July 2015<\/a>, the Adexe Primero <\/em>was seized by a Russian patrol boat while fishing in international waters in the Barents Sea (as proved by the satellite-based vessel monitoring system onboard). The seizure was prompted by the detection of fishing pots with foreign signs in Russia\u2019s Exclusive Economic Zone (\u201cEEZ\u201d). The pots belonged to the Adexe Primero<\/em> and to a Norwegian vessel (the Northeastern H-27-AV). It turned out that the pots had drifted on the current into Russia\u2019s EEZ. The Spanish vessel was then released after posting a bond.<\/p>\n

In July 2015, Russia\u2019s retaliations built up to a declaration that defined snow crabs\u2014usually fished by E.U. vessels in the international waters of the Loophole\u2014as a sedentary species living on the continental shelf<\/a> (p. 339). As such, the exploitation of this valuable resource should be up to the coastal states, i.e.<\/em>, Russia and Norway, the latter of which joined Russia\u2019s declaration.<\/p>\n

The Loophole<\/a> in the Barents Sea is located in international waters, as Russia\u2019s and Norway\u2019s EEZ cannot extend further than 200 nautical miles out to the sea (the Loophole is squeezed between the two EEZs).\u00a0 However, the continental shelf can extend up to 350 nautical miles as per Article 76 UNCLOS<\/a>, thus engulfing the seabed underneath the Loophole. Therefore, the continental shelf below the water column in the Loophole can be subject to Russia\u2019s and Norway\u2019s jurisdiction, despite the water column above being on international waters. By defining the snow crab as a resource of the continental shelf (instead of a high-seas fishery resource), the coastal states (Russia and Norway) gain otherwise nonexistent jurisdiction over this precious resource and the right to exploit it exclusively, while simultaneously eroding one of the freedoms of the high seas, the freedom of fishing<\/a> under Articles 87 and 116 UNCLOS<\/a>.<\/p>\n

Interestingly, the characterization of crabs as a sedentary species is not univocal and is rather arbitrary, often driven by national economic interests. Japan (a traditionally distant-water fishing country) considers crabs as a high seas fishery resource<\/a>. Arguably, crabs\u2019 ability to migrate defies their sedentary feature. Other states\u2014mostly, coastal states (such as Canada<\/a> (p.14))\u2014hold that this crustacean is a sedentary species. It remains unclear<\/a> whether crabs are sedentary or high-seas species. For example, Brazil considers lobsters sedentary, whereas the UK does not<\/a> (p. 9). \u00a0Accordingly, the classification of crustaceans is often a contentious issue.<\/p>\n

Following Russia and Norway\u2019s joint declaration, in August 2015, the E.U. recommended<\/span><\/a> that its member states suspend the permits to catch snow crabs in the Loophole. Accordingly, Spain suspended Adexe Primero<\/em>\u2019s permit to fish in the NEAFC zone. According to the accounts of the E.U. shipowners and captains involved, other E.U. member states instead disregarded the E.U.\u2019s recommendation and allowed their trawlers to keep fishing in the Loophole. Finally, in September 2015, Spain followed the example of the other member states and lifted the suspension of Adexe Primero<\/em>\u2019s permit for the NEAFC zone. Spain then renewed Adexe Primero<\/em>\u2019s permit for 2016. However, in March 2016, Spain suspended the permit for the NEAFC zone once again and eventually stopped issuing it altogether, apparently out of deference to Russia\u2019s stance.<\/p>\n

III. Norway\u2019s Breaches of International Legal Obligations<\/h3>\n

The 1920 Svalbard Treaty governs the international status of the Svalbard archipelago. Just a year earlier, in 1919, the geographer and explorer Robert Neal Rudmose-Brown described the archipelago as a no man\u2019s land<\/a> whose natural resources have been explored and exploited by a variety of states since its discovery. In the aftermath of World War I, the need to establish some sort of local authority to administer the international community living on the archipelago and to avoid the archipelago\u2019s militarization<\/a> led to the negotiations<\/a> of the Svalbard Treaty.<\/p>\n

The contracting parties to the Svalbard Treaty gave Norway sovereignty over Svalbard but allowed the joint and peaceful exploitation of the archipelago\u2019s natural resources by a variety of nations. The Treaty accords to the nationals of each contracting state the right of economic activity on an entirely equal footing<\/a> (p. 128) with Norwegian nationals, thus preserving<\/a> (p.2) the terra nullius<\/em> status of the region (specifically based on Articles 2, 3, 6, and 7<\/a>).\u00a0By virtue of this Treaty, Svalbard became the only land state territory of common use<\/a> (p.IV) in modern international law.<\/p>\n

However, over time, Norway has discriminatorily<\/a> restricted the commercial access of the other signatories\u2019 citizens based on nationality requirements. Meanwhile, Norway has disavowed the Svalbard Treaty by depriving its provisions of their original meaning: to constrain Norway\u2019s sovereignty over the archipelago in favor of the international community\u2019s acquired rights. Norway has also relied on the Treaty to extend unrestrained sovereignty on the waters surrounding Svalbard up to 200 nautical miles and, accordingly, to expand its maritime boundaries<\/a> bordering Greenland.<\/p>\n

Thus, Norway inconsistently<\/a> interprets the geographical scope of the Treaty: on the one hand, Norway holds that the Svalbard Treaty applies only up to 12 nautical miles off the archipelago; on the other hand, Norway stretches its maritime boundaries with Greenland up to 200 nautical miles off Svalbard by relying on the same treaty notwithstanding the fact that, according to Norway\u2019s own interpretation of the Treaty, Norway\u2019s sovereignty over Svalbard should be constrained to 12 nautical miles around the archipelago.<\/p>\n

Russia<\/a> and the EU<\/a> object to Norway\u2019s interpretation of the Treaty (as every other contracting party does), since if it was not for the Svalbard Treaty, Norway could not set its border at 200 nautical miles off Svalbard. Hence, either the Svalbard Treaty applies up to 200 nautical miles off Svalbard and Norway retains its current maritime border with Greenland, or the Treaty applies up to 12 nautical miles and Norway\u2019s maritime borders (as well as its territorial jurisdiction) should be downsized accordingly.<\/p>\n

Should the territorial scope of application of the Treaty be up to 12 nautical miles off Svalbard’s baseline, the portion of water between its outer edge and Greenland’s EEZ would be considered high seas. Should Svalbard’s continental shelf stretch further than 12 nautical miles into the high seas, the Svalbard Treaty would apply to that zone anyway, since the continental shelf is a prolongation of Svalbard’s land territory.<\/p>\n

Therefore, regardless of the geographical scope of the Svalbard Treaty (either up to 12 or 200 nautical miles), this instrument should apply to the activity of snow crab fishing around Svalbard, because such activities occur on its continental shelf. Norway indeed considered snow crabs as a resource of the continental shelf in its 2015 joint declaration with Russia. Accordingly, the nationals of all contracting parties to the Svalbard Treaty should be allowed to catch snow crabs on Svalbard\u2019s continental shelf just as Norwegians do.<\/p>\n

Norway\u2019s 2015 joint declaration with Russia concerning the sedentary nature of snow crabs might have seemed beneficial at the time to gain jurisdiction over this natural resource on the continental shelf underneath the Loophole. However, the same declaration backfires with respect to Norway\u2019s interests in Svalbard. Indeed, the declaration indirectly obligates Norway to accord equal commercial rights to foreign snow crab trawlers on Svalbard\u2019s continental shelf which, being a prolongation of Svalbard\u2019s land territory, is covered by the application of the Svalbard Treaty. In other words, under Norway\u2019s own interpretation of the Svalbard Treaty, E.U. trawlers should be able to harvest snow crabs on Svalbard’s continental shelf for the same reason they cannot catch them in the Loophole area. Of course, this is an unintended consequence of Norway’s policies on the two bodies of water (the Loophole and the Svalbard waters). The common denominator of the two policies is that they are both driven by national interest: both seek to let only Norwegians exploit snow crabs.<\/p>\n

In June 2013, the Adexe Primero<\/em> began fishing in Svalbard waters thanks to a permit granted by Spain based on the Svalbard Treaty. However, following Norway\u2019s arrest of a couple of E.U. trawlers, in January 2017, Spain suspended the permit indefinitely, despite the EU\u2019s recommendation to disregard Norway\u2019s prohibition to catch snow crabs around Svalbard. Spain was indeed the only E.U. member state to adopt such a suspension (unlike Estonia, Lithuania, Latvia, and Poland). Initially, Span\u2019s suspension was meant to be only temporally. However, it became a de facto<\/em> revocation of the permit, as the suspension was never lifted.<\/p>\n

Norway\u2019s discriminatory actions have already led to investment arbitrations<\/a> concerning the catching of snow crabs<\/a> in Svalbard waters. Could Norway\u2019s flawed interpretation of the Svalbard Treaty lead to similar repercussions for other states?<\/p>\n

IV. Are Investment Arbitrations Drifting Towards Spain?<\/h3>\n

As noted, the E.U. member states who were granted snow crab catching permits by the E.U. reacted in different ways to Russia and Norway. On one hand, Estonia, Lithuania, Latvia, and Poland stood firm on their position and kept allowing their vessels to catch snow crabs in the Loophole and around Svalbard. On the other hand, Spain had repeatedly suspended Adexe Primero<\/em>\u2019s permits and, eventually, stopped issuing them altogether out of fear of Russia and Norway. Thus, Russia\u2019s erosion of the freedom of fishing in the high seas (by defining snow crabs as a resource of the continental shelf) and Norway\u2019s violation of the Svalbard Treaty may have led Spain to breach in turn its international obligations towards its foreign investors.<\/p>\n

Spain\u2019s repeated suspensions of the snow crab catching permits and their ultimate revocation have disrupted the activity of the Adexe Primero<\/em> and its shipowner, Mariscos Polar SL<\/em>, a company registered in Spain for the purpose of fishing snow crabs in arctic waters and whose shareholders hold Moldovan and Russian nationalities.[1]<\/sup> These Russian and Moldavian investors may invoke respectively the Spain-Russia Bilateral Investment Treaty<\/a> (\u201cBIT\u201d) and the Spain-Moldova BIT<\/a> to bring an expropriation claim against Spain. Spain directly expropriated the snow crab-catching permits and indirectly expropriated the foreign investors\u2019 company operating thanks to those permits. Furthermore, the cumulative effects of the continual suspensions of the permits\u2014culminating with their revocation\u2014may well amount to a creeping expropriation.<\/p>\n

Spain\u2019s consequential expropriation of Mariscos Polar<\/em> is worsened by the fact that the actions leading to this taking were not proportional. First, there was a lack of proportionality since Spain did not provide alternative fishing grounds to avoid the total disruption of Mariscos Polar<\/em>\u2019s business.[2]<\/sup>\u00a0Second, the absence of proportionality is highlighted by the fact that Spain was the only E.U. member state to adopt such a harsh measure. Hence, even if Spain\u2019s drastic actions may have been taken because of Russia and Norway, their lack of proportionality and compensation does not exempt Spain from its international obligations towards its foreign investors. Importantly, Article 6 of the Spain-Russia BIT and Article 5 of the Spain-Moldova BIT cover not only direct expropriations but also \u201c<\/em>any other measures with similar effects.\u201d<\/em> Hence, the applicable BITs allow for indirect and creeping expropriation claims.<\/p>\n

Since fisheries are governed by an E.U. Common Policy<\/a>, the treatment Spain accorded to Mariscos Polar<\/em> should be contrasted against the treatment that other E.U. member states in the same position as Spain accorded to enterprises operating in the same sector as Mariscos Polar<\/em>. If such treatment is more favorable than the one accorded by Spain, then Spain failed to accord Mariscos Polar<\/em> the most favorable treatment it could have possibly accorded. Since the other E.U. Member-States did not suspend their snow crab permits, Spain breached the most favored nation (\u201cMFN\u201d) clause in Article 5(2) of the Spain-Russia BIT and Article 4 of the Spain-Moldova BIT.<\/p>\n

Further, a Russian investor bringing a claim under the Spain-Russia BIT could also rely on the MFN clause to broaden the scope of the dispute resolution clause. This way, the investor may bring fair and equitable treatment (\u201cFET\u201d) and full protection and security (\u201cFPS\u201d) claims. For example, the investor may import the more favorable treatment accorded by the Spain-Lebanon BIT<\/a>, whose dispute resolution clause extends also to violations other than unlawful expropriations. Whereas the Moldovan investor would not need to invoke the MFN clause for this purpose, since the dispute resolution provision of the Spain-Moldova BIT is not limited to expropriation claims.<\/p>\n

Spain breached the FET standard towards its foreign investors insofar as it failed to protect their legitimate expectations concerning their investment, by generating an uncertain legal framework for catching snow crabs. Notably, the investors\u2019 legitimate expectations<\/a> were also backed up by the E.U.\u2019s recommendation to ignore Norway\u2019s prohibition of fishing in Svalbard.<\/p>\n

Moreover, Spain failed to accord adequate legal protection against Norway\u2019s subsequent claims to the fishing rights that Spain granted to its investors in the first place. Spain could have protected such rights by resorting to an international arbitration<\/a> against Norway based on the 1929 Spain-Norway Treaty on Conciliation, Judicial Settlement and Arbitration<\/a>. Not only did Spain fail to accord appropriate legal protection to her foreign investors to ensure the normal ability of their business to function, but it also deprived the investors of the title (viz.<\/em> the fishing permit) to advance a possible investment claim against Norway (by invoking the Russia-Norway BIT).<\/p>\n

Accordingly, the foreign investors may claim from Spain compensation for the damages suffered, the restitutio in integrum<\/em> of the revoked permits, and their adequate legal protection through an international legal proceeding between Spain and Norway.<\/p>\n

Conclusion<\/h3>\n

The snow crab affair illustrates how third-state actions may have a butterfly effect on the host state in international investment law. This is especially likely where the initial actions were ill-grounded and driven purely by national interests and the host state’s response did not take into proper consideration its international obligations towards its foreign investors. Crucially, should Spain disregard the interests of its foreign investors concerning the fishing of snow crabs in Svalbard waters,\u00a0Spain would implicitly waive its international rights stemming from the 1920 Svalbard Treaty. Those rights include all maritime, industrial, mining, and commercial rights over the natural resources of the Svalbard archipelago. Thus, in the future, Norway may validly rely on Spain’s acquiescence<\/a> to relinquish such rights\u2014as per article 31(3)(b) of the VCLT<\/a>\u2014to prevent Spain from benefitting of Svalbard natural resources on an equal footing.<\/p>\n

[hr gap=”1″]<\/p>\n

*Danilo Ruggero Di Bella<\/strong> is an attorney-at-law \u2013 member of the Madrid Bar and the Canadian Institute for International Law Expertise (CIFILE) \u2013 leading the law firm Bottega DI BELLA<\/a> (www.bottegadibella.com). He holds a Master in Lawyering from Alicante University and an LLM in Investment Treaty Arbitration from Uppsala University. Danilo graduated in Law from Florence University with a specialization in public international law from Radboud University Nijmegen. He can be reached at: danilo.dibella@bottegadibella.com.<\/p>\n

[1] Author interview with owners of Mariscos Polar SL<\/em>.<\/p>\n

[2] Author interview with owners of Mariscos Polar SL<\/em>.<\/p>\n

[hr gap=”1″]<\/p>\n

Cover image credit\u00a0<\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Danilo Ruggero Di 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