On May 6, 2016, an arbitral tribunal constituted under the Rules of Arbitration of the International Chamber of Commerce (ICC) issued a Final Award dismissing all claims against Électricité de France (EDF) in an arbitration commenced by the Federal State of Baden-Württemberg.
Cleary Gottlieb acted as co-counsel defending EDF against the claims in the arbitration. In 2010, the Federal State of Baden-Württemberg, through a special purpose vehicle, acquired EDF’s shareholding in the German energy company Energie Baden-Württemberg AG (EnBW). In the arbitration, the Federal State of Baden-Württemberg alleged that the purchase price it paid for EDF’s stake in EnBW was excessive and involved State aid in violation of EU law and claimed in excess of 800 million euros in damages. In the final award, the arbitral tribunal dismissed all claims against EDF.
The majority of the arbitral tribunal concluded that the purchase price paid to EDF for its interest in EnBW did not involve State aid. The arbitral tribunal unanimously concluded that even if there had been State aid, the claims would have been dismissed because the Federal State of Baden-Württemberg’s attempt to challenge the transaction violated its obligations under German law, including its contractual obligations and its duty to act in good faith in connection with the purchase transaction.