In A11Y LTD. v. Czech Republic (ICSID Case No. UNCT/15/1), a dispute was brought under the 1990 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Czech and Slovak Federal Republic for the Promotion and Protection of Investments. The Claimant, a British enterprise, specialized in the development and distribution of assistive technology and specialized software for visually impaired persons. The dispute primarily concerned a series of regulatory and administrative measures adopted by the Czech Ministry of Labour and Social Affairs between 2011 and 2014, which the Claimant alleged decimated the market for its products. The Claimant contended that the Respondent’s modifications to the subsidy system for assistive devices, coupled with specific administrative interventions, resulted in the total loss of its investment and constituted a breach of several treaty protections.

The procedural history was marked by a significant jurisdictional phase centered on the restrictive language of Article 8 of the BIT. The Respondent raised several jurisdictional objections, most notably that the Tribunal lacked jurisdiction ratione materiae over claims of fair and equitable treatment and national treatment due to the limited scope of the arbitration clause in Article 8(1). In its Decision on Jurisdiction dated 9 February 2017, the Tribunal upheld this objection. It reasoned that Article 8(1) only permitted the submission of disputes concerning the amount or payment of compensation for expropriation under Article 5, or other matters specifically agreed upon. Consequently, the Tribunal held it had jurisdiction over the claims for indirect expropriation and the failure to observe other treaty obligations specifically referenced in Article 2(3), but it lacked the competence to adjudicate claims based on the FET standard in Article 2(2) or the MFN and national treatment provisions in Article 3. The Tribunal also rejected the Respondent’s intra-EU objection and found that the Claimant had satisfied the procedural cooling-off requirements.

On the merits, as detailed in the Final Award dated 29 June 2018, the central issue was whether the Respondent’s regulatory changes reached the threshold of an indirect expropriation. The Claimant argued that the introduction of a new "Price List" for subsidies and the subsequent administrative delays and denials by the Ministry were tantamount to a taking. The Tribunal applied the customary international law test for indirect expropriation, focusing on whether there had been a "substantial deprivation" of the value, use, or enjoyment of the investment. The Tribunal held that while the regulatory environment had undoubtedly become more difficult for the Claimant, the measures did not deprive the Claimant of the control or value of its business in a manner equivalent to expropriation. The Tribunal observed that the changes were general regulatory measures applied across the sector and that the Claimant failed to discharge its burden of proving that the Respondent’s conduct was the sole or primary cause of the investment's failure. Furthermore, the Tribunal found no breach of the obligation to observe other treaty requirements under Article 2(3), as the Claimant could not demonstrate that the Respondent had violated any specific commitment or guarantee that would trigger that provision.

In the final dispositive section of the Award, the Tribunal dismissed all claims on the merits. Regarding the allocation of costs, the Tribunal exercised its discretion under the UNCITRAL Rules to order the Claimant to bear the combined costs of the Tribunal and the ICSID administrative charges, totaling USD 373,932.02, while directing each party to bear its own legal fees. Following the issuance of the Award, the Claimant filed an application for rectification under Article 36 of the UNCITRAL Rules, alleging a mathematical error in the calculation of the costs to be reimbursed to the Respondent. In its Decision on Rectification dated 11 October 2018, the Tribunal rejected the application, holding that there was no clerical or mathematical error in the Award and that the Claimant was attempting to re-litigate a substantive determination on the apportionment of costs. The proceeding was subsequently concluded with the Award remaining final and intact.