Yet another appeal in the Micula v. Romania saga was rejected by the D.C. Court earlier today. After the confirmation of the arbitration award in 2019, Romania appealed the District Court for the District of Columbia's decision, arguing that the Court did not have subject matter jurisdiction over the matter, arguing that the arbitration provision in the Sweden-Romania BIT was void as of Romania’s 2007 accession because EU law prohibits intra-EU agreements to arbitrate EU law disputes between a member state and the citizens of another member state. The D.C. Circuit affirmed the confirmation of the award in 2020, agreeing with the lower court's ruling thatEU law was inapplicable because the parties’ dispute predated Romania’s EU membership and the award did not “relate to the interpretation or application of EU law." The parties found themselves before the D.C. Circuit court twice more in relation to discovery sanctions and accrued sanctions. The D.C. Circuit ruled in favor of the Micula brothers both times.
In 2022, Romania filed a motion under Rule 60(b) seeking relief from the 2019 confirmation of the award and the ensuing sanctions, arguing that two decisions of the EU’s highest court in 2022 held, “[i]n unequivocal terms,” that “the agreement to arbitrate in the [Sweden-Romania] BIT was void the moment that Romania entered the EU.” The district court denied the Rule 60(b) motion, concluding that the CJEU Decisions did not hold Romania’s accession retroactively voided its pre-EU consent to arbitrate and “the jurisdictional fact . . . that there was a valid agreement to arbitrate before Romania acceded to the EU — remains undisturbed.” This appeal ensued.
The D.C. Circuit denied Romania's fourth appeal. As to Romania's arguments under Rule 60(b)(4)--requiring relief when the judgment is void--the Court found that Romania did not make a showing, as required, that the district court lacked even an arguable basis for jurisdiction in confirming the award. Romania maintained that even so there is no arguable basis for jurisdiction because the “sole basis” for the district court’s determination that jurisdiction existed under the FSIA was an erroneous “interpretation and application of EU law." The appellate court rejected that, explaining that the district court’s jurisdictional analysis in 2019 was not premised on the “interpretation and application of EU law,” but that the district court independently found the requisite “jurisdictional fact[]” under the arbitration exception of an agreement to arbitrate with the Miculas, through the 2002 Sweden- Romania BIT and the Miculas’ 2005 request for arbitration. Further, the Court explained that the 2022 CJEU decisions on which Romania relies do not support the interpretation that its 2007 accession to the EU retroactively rendered the preexisting agreement to arbitrate with Swedish investors “void ab initio.”
As to Romania's arguments under Rule 60(b)(5)--which provides relief from certain judgments, including a judgment “based on an earlier judgment that has been reversed or vacated” or where “applying it prospectively is no longer equitable"--the Court rejected the notion that the district court judgments are based on a judgment of the General Court that the CJEU reversed or vacated. The Court explained that the district court’s subject matter jurisdiction, contrary to Romania’s view, did not “depend” on the 2019 General Court decision, but simply on the fact that the dispute pre-dated Romania's ascension to the EU. In fact, the district court's decision to confirm the award never even referred to the 2019 General Court decision.
Lastly, as to Romania's arguments under Rule 60(b)(6)--which provides relief from a judgment for “any other reason that justifies relief"--the D.C. Circuit found it to be barred because it simply repackaged the same arguments under Rules 60(b)(4) and (5).
The appeal is captioned Micula et al. v. Gov't of Romania, No. 23-7008.