Albania was denied reimbursement for costs

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Denial of justice claim failed due to lack of exhaustion of local remedies

FET claim failed due to tribunal’s jurisdictional constraints

FPS claim failed because Albania met its duty of due diligence, considering the country’s circumstances and limited resources

Fork-in-the-road clause prevented claim against Albania for amounts due for losses under the contract

Arbitrator criticized Salini test but found that some “inherent meaning” of the term ‘investment’ may be useful, ultimately concluding that this definition would be met in any event

Background: Claimant filed ICSID arbitration claiming BIT breaches after its construction operations were looted and destroyed during civil unrest

Background: agricultural venture runs aground

Tribunal further scrutinises claimant’s alleged investment

No confusion between disputes with counterparty and dispute with state entity

Foreign Investment law as a basis for jurisdiction – dispute too early for BIT

Law applies to dispute arising before entry into force

Merits decision stresses where the burden of proof lies and see two major elements for expropriation findings

On merits, no proven incident can be attributed to the State

Combined acts do not amount to an expropriation either

Agreed liquidation not an expropriation

No unreasonable or discriminatory conduct found

Tribunal relied on ECT for jurisdiction and merits, despite no initial reference to ECT by claimant in Request for Arbitration

Despite illegality, tribunal upholds jurisdiction and reserves the issue for the merits

In determining the legality of the investment, its different components cannot be viewed in isolation

Investment was not retroactively tainted with illegality as a substantive matter

Tribunal finds procedural illegalities in claimant’s failure to obtain construction and exploitation permits

Dissenter considers that majority confused forfeiture of rights to protection and failure to mitigate

Albania did not deny justice to the claimant

No legitimate expectation of operation without permits or of discharge of tankers

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