Current Development on State Attribution in International Investment Arbitration: Flemingo v Republic of Poland

In an award dated 12 August 2016, the Tribunal in Flemingo v Republic of Poland granted the claims of Flemingo Duty Free and ordered the Republic of Poland to pay compensation and costs amounted to over €17 million. This case features two novel discussions in state attribution concept in investor-state arbitration. First, one of the parties involved is a State-owned entity. State-owned entity (SoE) is rarely found in investment dispute, and it bears difficulties in identifying the status of it, especially if the status of the State-owned entity under review is regulated under domestic law and it poses different standard vis-a-vis with international law. To cope with this challenge, the Claimant promulgated a new approach called de facto approach to detect the status of the SoE, arguably setting a new record as the first-ever investment dispute to be arbitrated with the given approach. Second, the centre of gravity in this case also captures a contestation of State attribution concept. Within the theoretical domain, the State attribution idea recognises the degree of importance for weighing the role of each attribution assessment, primarily the interplay between structural and functional assessments. This case, although not explicit, depicts how the Tribunal tries to weigh the role of each assessment.