NEWSLETTER-2017

193 ARBITRATION LAW moral damages in addition to these would be excessive 16 . Like others, in this award, the tribunal examined the existence of the exceptional circumstances stated in the Lemire award and concluded that they did not exist. Cementownia v. the Republic of Turkey The dispute between a Polish company Cementownia Nowa Huta SA (“Cementownia”) and the Republic of Turkey which was very similar to the Europe Cement v. the Republic of Turkey dispute, had occurred due to the damages claim of the Claimant Cementownia based on the confiscation of the property and annulment of the conces- sion contracts of CEAS and Kepez by the Republic of Turkey. The Claimant who alleged to own shares of CEAS and Kepez commenced arbitral proceedings before the ICSID by claiming that it faced dam- ages due to the illegal actions of the Republic of Turkey 17 . Parallel to the Europe Cement award, the arbitral tribunal con- cluded that the Claimant abused the process as the evidence provided was counterfeit, which had shown that the Claimant had never been an investor, hence the arbitral tribunal had no capacity to solve the dispute 18 . Although the tribunal explicitly expressed that it is possible to award for the compensation of moral damages under the ICSID Con- vention, it did not award so by reasoning that the Republic of Turkey did not face exceptional circumstances as the ones faced in the Desert Line dispute and the abuse of process which was stated as the basis of the moral damages claim was too wide to rule for such compensation of moral damages. 16 Dumberry, p. 27. 17 Cementownia Nowa Huta S.A. v. the Republic of Turkey, ICSID Case No ARB (AF)/06/2, Award: September 17th, 2009, available at: https://icsid.worldbank . org/en/Pages/cases/casedetail.aspx?CaseNo=ARB(AF)/06/2. 18 Ehle / Dawidowicz, p. 310.