The Polish Parliament has just passed a new law restricting investment in certain strategic Polish companies. The law, when it comes into effect, raises the risk of potential Bilateral Investment Treaty claims against Poland for violation of the principle of non-impairment.
The new law provides that companies (regardless of whether state owned or privately owned) may be placed on a restrictive list by decision of the Council of Ministers (Polish Cabinet). This list would not be subject to any appeal (inclusion of companies would be entirely up to the government). The acquisition and disposal (whether direct or indirect) of more than 20% of the shares in companies on the list will be subject to the Minister of State Treasury not objecting to the transaction. No compensation is contemplated – the law is presented as an ordinary regulatory measure designed to protect the national economy (a number of other countries’ regulations, including the United States, Germany and France, are used as references in the justification). The law applies to purchases/acquisitions by both foreign and Polish buyers/transferees – in order to avoid claims of discrimination.