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By letter of May 12, , Respondent provided further modifications to Claimant's proposed method. By Claimant's letter of May 16, and Respondent's letter of May 17, , the Parties agreed to constitute the Tribunal in accordance with Article 37 2 a of the ICSID Convention as follows: the Tribunal would consist of three arbitrators, one to be appointed by each Party and the third, presiding arbitrator to be appointed by agreement of the two co-arbitrators in consultation with the Parties.
The Tribunal is composed of Prof. Georg von Segesser, a national of Switzerland, appointed by Claimant; and Prof. Brigitte Stern, a national of France, appointed by Respondent. On July 21, , the Secretary-General, in accordance with Rule 6 1 of the ICSID Rules of Procedure for Arbitration Proceedings [the " Arbitration Rules "], notified the Parties that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date.
By letter of July 28, , Claimant requested that the first session be held outside of the day time period due to counsel's schedule, should Albania agree. By email of the same date, Respondent also requested that the first session be postponed until the end of September as counsel for Respondent was also not available within 60 days of the constitution of the Tribunal. By letter of July 31, , Claimant requested the Tribunal to fix a time and date for the first session during the first half of October By letter of August 14, , the Tribunal asked the Parties to confirm their availability for a first session to be held on either October 16 or 27, By Claimant's letter and Respondent's email of August 18, , the Parties confirmed their availability for October 16, The Parties were provided with Dr.
Procedural Order No. In accordance with Procedural Order No. By email of December 29, , Respondent requested an extension from January 2, to January 16, to file its Request for Bifurcation. By email of January 2, , the Tribunal granted Respondent until January 9, , to file its Request for Bifurcation. On March 8, , the Tribunal issued its Decision on Bifurcation in which it decided to bifurcate the proceedings based on three objections raised by Respondent.
The proceeding on the merits was thereby suspended. On March 9, , one day after issuing its Decision on Bifurcation, the Tribunal informed the Parties that it could make itself available for a jurisdictional hearing in Paris on July 19 and 20, The Parties were invited to confirm, by March 13, , whether they would be available on such dates. On March 13, , Claimant informed the Tribunal that it was available on July 19 but not on July 20 and asked the Tribunal to reschedule the hearing for July 18 and 19, On March 16, , Albania replied that it would provide its availability for July 18, 19 and 20, the following week.
On March 28, , Albania notified the Tribunal that it had engaged new external counsel and provided contact details. On March 29, , Albania's new external counsel submitted it would not be able to prepare Respondent's memorial on jurisdiction within the current calendar and stated its intention to negotiate new deadlines with the opposing counsel. On 2 April , the Tribunal informed the Parties that it would be available for a hearing on jurisdiction in Paris on July 19 or 20 and possibly on July 18 in the afternoon, if required.
The message stated: "[g]iven the difficulties of finding dates where all members are available, the parties [are] kindly invited to schedule the procedure in such a way that these hearing dates can be preserved".
On April 4, , the Parties submitted they had reached no agreement regarding the amendment of the calendar. Respondent's new counsel asked the Tribunal to move the deadline for the memorial on jurisdiction from April 9 to April 30, due to their recent introduction to the case and the need for extra time to familiarize themselves with the file.
Claimant refused to make any amendments to the calendar. On April 5, , the Tribunal invited the Parties to reach an agreement before April 9, on the exact dates for the hearing among those already proposed: July 18 in the afternoon, July 19 and July 20, On April 6, , the Tribunal issued an updated version of the calendar, extending the deadline for the submission of the memorial on jurisdiction from April 9 to April 17, , and extending accordingly Claimant's deadline for submitting its countermemorial.
On April 9, , both Claimant and Respondent confirmed their availability to hold a jurisdictional hearing in Paris on July 17, 18, and 19, On May 17, , Respondent filed a request to submit new evidence into the record. On May 24, , Claimant asked the Tribunal to reject Respondent's request of May 17, to introduce the New Document or, in the alternative, to decide that Claimant is entitled to respond to such submission and submit further evidence proving that Claimant has been a validly incorporated company in the British Virgin Islands and active ever since January 17, CM "] with accompanying documentation.
With respect to Respondent's request to submit new evidence into the record the Tribunal decided as follows: " The Tribunal also decided to dismiss the Application for Security for Costs and "direct[ed] Respondent to resubmit and discuss the merits of its Application at the Jurisdictional Hearing, if it so wishes. Reply "] with accompanying documentation. By email of June 27, , the Centre circulated to the Parties a draft Procedural Order concerning the organization of the hearing and invited them to agree on as many items as possible in advance of the pre-hearing conference.
By letter of June 28, , Respondent stated that it intended to call the following witnesses for cross-examination: Mr. Pirro Kushi, Mr. Declan Ganley, Mr. Gary Hunter, Mr. Don de Marino, and Mr. Patrick Flynn. By letter of the same date, Claimant requested to examine Mr. Daniel Barton and Mr. Conor Given. By email of June 29, , Respondent confirmed that Mr. Barton was available to testify; however, it suggested that there had been a misunderstanding about Mr.
Given's role as he was not an expert in this case. By email of June 29, , Claimant confirmed that it no longer wished to call Mr. Additionally, it noted that Mr. Flynn and Mr. Kushi would not be available to testify in Paris. By letter of June 29, , Claimant requested the Tribunal's permission to enter the witness statement of Mr. Peter Goldscheider into the record. By letter of June 30, , Respondent requested that the Tribunal i do everything in its power to ensure that Mr.
Kushi could be cross-examined, ii strike Mr. Flynn's letters from the record, and iii not allow the submission of Mr. Goldscheider's witness statement. By letter of July 2, , Claimant asked for permission to enter the expert opinion of Mr. William Kanaan into the record, and to examine an additional witness, Mr. Ken Fields. By letter of July 2, , Respondent requested that the Tribunal i order the authentication of the trust deeds submitted as exhibits C through C, and the ongoing funding agreement submitted as exhibit C; ii "order Claimant to confirm that it ha[d] undertaken all reasonable efforts to find any original, signed hard copies of the Objected Exhibits"; and iii order Claimant to produce the hard drives, with a chain of custody, on which the exhibits were stored.
By further letter of July 2, , Respondent responded to Claimant's letter of the same date and requested that the Tribunal deny both of Claimant's requests. By email of July 2, , the Parties submitted their comments on the draft Procedural Order. On July 4, , the President held a pre-hearing organizational meeting with the Parties by telephone conference.
By email of July 5, , the Tribunal asked Claimant to confirm, by close of business that day, i if Mr. Kushi could testify by video conference and ii if Mr. Flynn could testify in person at the hearing. By email of the same date, Claimant informed the Tribunal that Mr.
Kushi would be available to testify in person in Paris; however, that Mr. Flynn was not available to testify and, in lieu of his testimony, Claimant made available the expert opinion of Mr. By email of July 6, , Respondent asked that Mr. Flynn testify by video conference and rejected Claimant's attempt to enter the expert opinion of Mr. Kanaan into the record. Additionally, Respondent requested that the hard drives mentioned in its letter of July 2, , and discussed during the pre-hearing call on July 4, , be sent to the Tribunal Secretary or to the Assistant to the Tribunal in short order.
By email of July 6, , the Tribunal took note of the Parties' emails and asked Claimant to confirm by July 9, if Mr. Flynn would be able to testify by video conference. Kanaan into the record, and allowing the introduction of Mr. Goldscheider's witness statement, with a July 11, deadline for Respondent to state whether it intended to call Mr. Goldscheider as a witness. By email of July 9, , Claimant stated that Mr. Flynn would not be available to testify by video conference.
By letter of July 11, , Respondent confirmed that it would like to call Mr. Goldscheider as a matter of caution and would inform the Tribunal at the start of the hearing if it was able to proceed with a cross-examination of Mr. The following persons were present at the Hearing: Tribunal : Prof. Diana Burden Court Reporter. During the Hearing, the following persons testified: On behalf of Claimant : Mr.
By letters of July 23, , both Parties confirmed that they had no objections to the manner in which the Hearing was conducted. The proceeding was closed on February 7, The following account presents the facts that are relevant to the Tribunal's ruling. After the fall of the Soviet Union, Albania and other countries of Central and Eastern Europe found themselves in a transition from a State-controlled economy to a free-market economy.
During this period, many countries in the region adopted plans to privatize State enterprises, based on the principle that public assets should now be distributed to citizens who had contributed to the State's wealth. Within this context, in the early s the Republic of Albania approved a mass privatization program. The program sought to turn most State-owned companies into private companies rapidly and efficiently, by allowing a great number of buyers to acquire shares.
However, Albania's privatization program faced two serious problems: - due to the lack of purchasing power and financial knowledge, there was no actual demand among the Albanian population to acquire the public assets, and furthermore, - foreign investors had little interest in acquiring State-owned businesses, due to their general state of disrepair and the considerable bureaucracy involved.
Albania took two actions to overcome these problems. The statute, still in force, guarantees foreign investors equality of treatment with local investors, and protection against expropriation and nationalization. Second, in , Albania developed a privatization program based on "privatization vouchers", which was implemented through Law No. In order to create a large pool of buyers for State-owned companies, and to disseminate ownership among nationals, Albania issued and distributed bearer bonds - commonly known as "privatization vouchers" - to its population.
Most Albanian citizens above 18 years of age were entitled to receive privatization vouchers. The vouchers were issued in two instalments through the Albanian Savings Bank, which acted as an agent for the Government. The distribution of the second instalment began in September 5. The nominal value of the privatization vouchers depended on the contribution of the specific person to the development of State-owned companies. Three main categories of recipients were created, reflecting different age groups within the population.
The vouchers were issued to the bearer and freely tradeable. In the absence of a formal market, holders could sell their securities via private agreements. The privatization vouchers authorized their holders to acquire shares or assets of the State-owned companies through three channels: - By personally bidding for shares issued by the privatized companies; - By buying physical assets or entire small companies in public auctions or direct sales; or - By assigning the vouchers to an investment fund, which would pool individual stakes and participate jointly in privatization processes.
Pooling of vouchers held individually by each citizen was a cornerstone of the privatization program as it would have been very inefficient for the State to sell individual shares in State-owned companies to single voucher-holders. The envisaged solution was the incorporation of investment funds of a substantial size, which would in turn be able to acquire significant participations in, or significant assets owned by, State-controlled companies.
On July 26, Albania enacted Law No. The statute laid down the legal rules for the creation and activity of investment funds authorized to hold privatization vouchers 6. Holders of vouchers were granted the possibility to contribute their privatization vouchers to the investment fund in exchange for shares in the fund.
To avoid misuse and to minimize financial risks, the LIFd imposed restrictions on the activities of investment funds; e. Only three investment funds were approved by the Albanian Government and given a license to accumulate privatization vouchers. Only one of them, the AAIF actually started operations. Deshmont e Kombit, Tirana, Albania. The Judicial Registration Order also states that the shares, each having equal value, were owned by the following five people [" Founding shareholders "]: - 80 shares by Mr.
The Judicial Registration Order also notes that Mr. Kushi ; - and that the capital of USD 20, was contributed in cash by each of the founding shareholders the four non-Albanian shareholders paying in USD 10, and the Albanian shareholder the remaining USD 10, The terms of this Judicial Registration Order were confirmed at the Hearing. Three out of the five Founding Shareholders testified at the Hearing Mr.
DeMarino, and Mr. Pirro Kushi and confirmed that they paid in for these shares with their own funds AAG was registered on January 17, , with certain investment and merchant banks and certain individuals acting as founding shareholders. Its purpose was the development of investment opportunities offered by the mass privatization program of Albania and other countries in the Adriatic region.
The founders of the group include inter alia Ganley International Ltd. The issued share capital was , shares of USD 1. Claimant maintains that its principal business purpose was to hold shares in the AAIF. It opened collection centers in branches of the Savings Bank of Albania, in Tirana, Durres, Elbasan, Korce and other cities throughout the country.
In return for the vouchers, the AAIF delivered to the Albanian population "membership certificates", reflecting the shares in the AAIF that the "depositor" would receive once the fund closed. The staff working at the collection centers was employed by the Savings Bank of Albania, which also acted as custodian bank of the privatization vouchers.
Other companies, such as Ganley International Ltd. The AAIF kept collecting privatization vouchers throughout the years , , and By February , the AAIF had accumulated vouchers for a nominal value of ALL 12,,, and had issued membership certificates to more than 45, Albanian citizens. Albania conducted the mass privatization program of State-owned companies in several rounds, which took place between the years and Albania offered shares of the State-owned company it was privatizing to voucher holders - such as the AAIF - in exchange for privatization vouchers.
According to Claimant, negotiations, discussions, meetings, and proposals between the AAIF and the representatives of Albania have been to no avail as Albania has repeatedly refused the AAIF's offers to participate in the privatization programs.
Claimant further states that, with its conduct, Albania indirectly expropriated the AAIF's value: even though the privatization vouchers were still valid and have been -in principle - legally valid until December 31, , Albania rendered them virtually worthless. Claimant adds that, while the Albanian Government has prevented the AAIF from using the vouchers in any privatization process, other foreign investors have acquired large participations in the privatized companies.
Such conduct allegedly was discriminatory against Claimant vis-a-vis other foreign and domestic investors. The Claimant respectfully requests the following relief in the form of an Award on Jurisdiction: a to decide that the dispute is within the jurisdiction of ICSID and the competence of this Tribunal; b to dismiss all of the Respondent's objections on jurisdiction of ICSID and the competence of the Tribunal; c to order that the Respondent has to pay all costs of the proceedings on jurisdiction, including the Tribunal's fees and expenses and the costs of the Claimants' legal representation, subject to interest; and d any such other relief as the Tribunal considers appropriate".
Albania presented its Memorial on Objections to Jurisdiction, requesting the following relief from the Tribunal: " Albania ended its Post-Hearing Brief reiterating the prayer for relief transcribed above Albania raises the following jurisdictional objections: - Claimant has not established that it is a protected investor A.
The following subsections summarize each of Respondent's objections. Albania argues that Claimant is not a protected investor as it did not exist at the time the dispute arose and thus could not have validly consented to this arbitration On June 7, , a BVI court reregistered Claimant and declared that its earlier dissolution was void, had no effect, and that Claimant "is deemed never to have been dissolved or struck off the register in accordance with the BVI Business Companies Act section 3 21 ".
Albania alleges that this fact has two consequences. First, Art. Claimant must have legal personality and be validly incorporated under the law of its place of incorporation on the date the dispute is submitted to arbitration Second, Albanian law provides that only an entity with recognized legal personality is empowered to enter into an arbitration agreement, or accept an outstanding offer to arbitrate.
Claimant has not established that it was a "legal person established in accordance with the law of a foreign country" on the date it submitted the RfA, as required by Arts. Claimant assumingly consented to submit this dispute to arbitration on December 29, , when it filed its RfA. At this time, Claimant was a dissolved company; therefore, its consent to this arbitration is non-existent and ineffective The subsequent revocation of Claimant's dissolution may be effective under BVI law, but not under international law the nationality requirement of Art.
In conclusion, Claimant is not a protected investor and the Tribunal does not have jurisdiction to hear Claimant's claims Albania argues that the Tribunal lacks jurisdiction because Claimant failed to make a protected investment in Albania under Art. Claimant alleges that it made a qualifying investment in Albania under Art.
Albania contends that both investments do not qualify as such under Art. As for the first investment AAIF Shares , there is no protected investment for the following reasons:. First, Albania questions the authenticity of the evidence submitted by Claimant: the Trust Deeds The alleged transfer of beneficial ownership from the Foreign Shareholders to Claimant was never registered or disclosed to the Albanian authorities, which constitutes a relevant breach of the "LiFd" As for the second investment the USD 5.
First, Albania does not accept the authenticity of the evidence provided, a one-page document titled "Ongoing Funding Agreement" C Third, Claimant has not put forward any of its financial records or those of the AAIF , which would have reflected the existence of the alleged payments Fourth, witnesses testified at the Hearing that they did not remember whether Claimant provided any loans to the AAIF Fifth, even assuming that Claimant did provide funding to the AAIF, such funds were used merely to cover development costs Any costs that Claimant may have incurred for creating the AAIF would not qualify as a protected investment Sixth, at any rate, any funding would breach the LIFd 42 , which prohibits funds from borrowing money or taking loans of any kind.
The funding would have thus constituted an illegal and unprotected investment In conclusion, in Respondent's view, the Tribunal has no jurisdiction because Claimant has failed to prove the existence of its two alleged investments. In the alternative, Respondent maintains that both of the alleged investments were illegal and fall outside Albania's consent to arbitrate Albania argues that the Tribunal lacks jurisdiction because Claimant failed to comply with the requirement, under Art.
Second, Claimant has failed to provide any evidence that it satisfied this requirement 48 : - Claimant has not put forward any documentary evidence that it tried to settle this dispute, save for the testimony of Mr. For all these reasons, Claimant has not established that it properly commenced these arbitration proceedings. Albania submits that Claimant has engaged in an abuse of rights by seeking to artificially manufacture jurisdiction in this arbitration According to the leading cases Phoenix Action Ltd.
In light of the evidence submitted, this is what has happened in this case: - Claimant was dissolved at the time this arbitration was initiated In summary, Claimant has violated the spirit of the ICSID Convention and investment law in general by trying to artificially create jurisdiction. Such attempt constitutes an abuse of rights Claimant replies that the Tribunal has jurisdiction over its claims and requests the Tribunal to dismiss all objections raised by Albania 59 for the following reasons: - Claimant is a qualifying investor A.
The following subsections summarize each of Claimant's replies to Respondent's objections. Claimant argues that it legally exists and is validly incorporated under the laws of British Virgin Islands and satisfied all of these requirements on the date the parties consented to submit this dispute to arbitration, i. December 29, Therefore, according to Claimant, it is a qualifying investor that meets the conditions of Art.
According to Claimant, the jurisdictional ratione personae element is based on the legal existence of a company validated according to the laws of the State of its incorporation. The laws of the BVI acknowledge Claimant's continuous legal personality and valid incorporation from January 17, to date. Claimant is deemed to have never been dissolved or struck off the register Claimant contends that Albania is wrong when it asserts that Claimant was not a legal person established in accordance with the law of a foreign country for the purposes of Arts.
Claimant maintains that as of December 29, , it has been in legal existence and good standing In conclusion, in Claimant's view, with its RfA dated December 29, , Claimant confirmed its legal existence and validly consented to this arbitration.
Therefore, the Tribunal has jurisdiction ratione personae to hear Claimant's claims. AAG makes the following arguments:. First, regarding the authenticity of the Trust Deeds, the witnesses confirmed at the Hearing that they had indeed signed the respective Trust Deeds Second, although AAG admits there was a mishap in the drafting of the Trust Deeds, this mistake is legally irrelevant.
The written trust agreements have to be interpreted in accordance with the intention of the parties involved 68 , which was to establish a trust relationship. The Foreign Shareholders had intended to hold their shares in trust for AAG, which was meant to be the beneficiary of the trust Third, Claimant has never violated the principles of legality and good faith 70 : - AAG's ownership via Trust Deeds does not constitute a fact that should be entered in the official registry Claimant made a second qualifying investment in Albania under Art.
From to Claimant provided USD 5. Such funding constitutes a protected investment 76 :. First, AAG made substantial investments in the territory of Albania by funding AAIF's operating expenses, such as: - establishment of the voucher collection centers, - advertisements related to the collection process, - employment of Albanian staff, and - payments to third parties, which provided the premises for the collection centers Second, Claimant has submitted the Ongoing Funding Agreement C and a calculation of current value of Claimant's frustrated operating expenses C Both documents show that operating expenses amounting to USD 5.
In addition, witnesses at the Hearing testified consistently that Claimant contributed operation expenses in the AAIF The fact that Respondent's expert could not find evidence for the actual payment of the operating costs does not mean that they did not exist at the time Third, the operating expenses were paid on the basis of the Ongoing Funding Agreement, but without the obligation of full repayment. Thus, the operating expenses constitute a right arising out of a contract and therefore a protected investment in accordance with Art.
Fourth, in any case, assuming that the operating costs constitute a loan, the law currently in force Law No. For all these reasons, the Tribunal has jurisdiction because AAG made two valid investments under Art.
Claimant submits that this arbitration has been validly commenced, as there is no mandatory precondition under Art. First, nothing in the language of Art. There is no hint of a preliminary duty to carry out settlement negotiations Second, Claimant has in any case proven that it tried to reach an amicable settlement before starting this arbitration 87 : - Claimant was not dissolved at the time of the pre-arbitration negotiations and was therefore able to be represented by agents In conclusion, Claimant validly commenced this arbitration Claimant says that it has not created jurisdiction artificially Nor has Claimant ever performed any act or omission constituting an abuse of rights First, the facts in this arbitration are different from the facts in Phoenix Action Ltd.
The tribunal in Phoenix dismissed the claim because the investment was not made for the purpose of engaging in economic activity but to submit a pre-existing dispute to ICSID. In this arbitration, however, Claimant has shown that the investment was made for the purpose of engaging in economic activities As explained in Libananco , "The Respondent bases its request on the claim that the Claimant [ Finally, Claimant has never breached Albanian law, withheld information about its investment or acted mala fide.
Claimant wishes to enforce its right to obtain damages due to Albania's expropriation of its investment This arbitration is the last option for Claimant to enforce its rightful claim Albania alleges that the Tribunal lacks jurisdiction on the following four grounds: i Claimant has not established that it is a protected investor; ii Claimant has not made a protected investment; iii Claimant has not properly commenced this arbitration; and iv Claimant has committed an abuse of rights by bringing this arbitration.
Claimant alleges that the Tribunal has jurisdiction to hear its claims because: i Claimant is a qualifying investor ii Claimant has made a protected investment; iii Claimant has properly commenced this arbitration; iv Claimant has not committed any abuse of rights.
Albania's position is that Claimant has failed to prove that either of these investments were ever made. In the alternative, Albania maintains that neither constitutes a protected investment, because the investments were not carried out in accordance with Albanian law In the following subsections, the Tribunal first explains the relevant legal rules and the applicable law 1.
After examining the arguments and the evidence submitted, the Tribunal will conclude that under Art. The Tribunal's findings as to the second objection render the remainder of Respondent's objections - valid existence of the investor, commencement of the arbitration and abuse of rights - moot and, as a result, the Tribunal will not address them.
Claimant is a company incorporated and operating under the laws of the British Virgin Islands. Its written consent was explicitly included in para. The consent of the Republic of Albania is formalized in domestic law, and more specifically in the LFI pro memoria : the Law on Foreign Investment, explained in paras.
The relevant provision provides: " Article No. The language of Art. The LIFd used to govern the establishment, activity, and public supervision of investment funds The law also required that the transfer of any shares had to be registered with the Albanian authorities within ten days : "iV. Under Art. The investment fund shall, not later than 60 days from the end of each quarterly period, publish in a nationally known newspaper and submit to the regulatory authority the financial balance, which shall contain : - A list of the investment containing the issue, the number and the type of shares at the end of a quarterly period.
An investment fund is not entitled to perform the following actions: - To invest more than 10 percent of its net assets in the shares of a sole entity. AAG claims to have made a protected investment in Albania under Art. Each Trust Deed presents similar language, provisions and content. In each Trust Deed Claimant appears both as the settlor and the beneficiary.
Only the identity of the trustee changes: each Trust Deed has one Foreign Shareholder as trustee Ganley in trust for AAG ; 20 shares held by Mr. Don De Marino ; 80 shares held by Mr. Beck ; and 20 shares held by Mr. In the next subsections, the Tribunal summarizes Albania's position A. Albania objects to the authenticity, validity, and legal effects of the alleged trust arrangements, on the following grounds. First, Albania questions the authenticity of the Trust Deeds Second, the Trust Deeds, on their face, do not prove AAG's ownership of the AAIF Shares for the following reasons: - Albania admits that under English trust law it is possible for the settlor to also serve as the beneficiary Third, as a matter of Albanian law, the Trust Deeds do not provide Claimant with any ownership over the AAIF Shares , because - the Albanian Civil Code does not provide for the concept of a "trust", a notion that is foreign to Albanian law and because - Albania is not a party to the Convention of July 1, , on the Law Applicable to Trusts and on their Recognition; thus, there is no automatic recognition or enforcement of foreign trusts under Albanian law Fifth, even if the Trust Deeds were correctly made and ownership was transferred to Claimant, the fact remains that Claimant provided no consideration under the Trust Deeds in return for receiving beneficial ownership of shares in the AAIF.
Claimant replies that the Trust Deeds are authentic, enforceable and serve as basis to establish Claimant's beneficial ownership of the AAIF Shares, for the following reasons To the contrary: - at the Hearing, the witnesses confirmed that they had signed the Trust Deeds. Admittedly, there was a mishap in the drafting of the Trust Deeds. Counsel for the Foreign Shareholders at the time misstated the "settlor" in the instruments.
But this mistake is legally irrelevant. The written trust agreements have to be interpreted in accordance with the intention of the parties involved It has always been the clear intention of the parties to establish a trust relationship, in which the Foreign Shareholders hold their shares in trust for the benefit of Claimant At the Hearing, Mr. Gary Hunter and Mr.
Therefore, the Trust Deeds are valid and enforceable Third, Claimant has never violated the principles of legality and good faith : - Claimant's beneficial ownership via the Trust Deeds does not constitute a fact that should be entered in the registry In conclusion, Claimant alleges that it has not violated any principle of legality and good faith.
Its ownership in the shares in the AAIF does constitute a protected investment. AAG claims to have made a qualifying investment in Albania under Art. Albania disagrees. The Tribunal sides with Albania for the following reasons. For the Tribunal to have jurisdiction, Arts. As pointed out in Phoenix , "[I]f jurisdiction rests on the existence of certain facts, they have to be proven at the jurisdictional stage" Albania has also correctly noted that, in any ICSID arbitration, "[a]t the jurisdictional stage, the Claimant must establish […] that the jurisdictional requirements of Article 25 of the ICSID Convention and of the Treaty are met, which includes proving the facts necessary to meet these requirements ".
ICSID Arbitration Rule 34 1 grants the Tribunal wide discretion in assessing the evidence: "The Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value". Thus, after considering the evidence submitted in this case, the Tribunal concludes that AAG has not proved the third requirement: that Claimant is the owner or titleholder of the protected investment.
The following subheadings discuss each of the requirements. The relevant language provides: "b a company, rights that derive from any kind of participation in a company, shares, etc. Kushi, an Albanian national: - 80 shares by Mr. The validity and accuracy of the Judicial Registration Order are not in dispute, and the Tribunal is therefore satisfied that this requirement has been met: a foreign investment exists in accordance with the definition of Art.
The second requirement set out by Art. Pursuant to the definition contained in Art. The evidence in the record shows that Claimant in this case, AAG, is indeed a legal person constituted in accordance with the laws of a foreign country. To this effect, Claimant has presented a Certificate of Good Standing, dated June 9, , showing that AAG is a limited liability company incorporated and operating under the laws of the British Virgin Islands with its legal seat in the British Virgin Islands and was deemed to exist at all relevant times Therefore, the Tribunal is satisfied that Claimant qualifies as a protected investor under Art.
There is a third requirement that must be met: the protected investment must be owned or title must be held , not by any qualifying foreign investor, but by the foreign investor who is acting as claimant in the arbitration.
In the Tribunal's opinion, this third requirement is not satisfied in the present case. But the Foreign Shareholders are not acting as claimants in this procedure. The entity which appears as Claimant is AAG, and in the Tribunal's view AAG has failed to prove that it validly acquired, from the Foreign Shareholders, ownership of or any other title over the protected investment.
In the concise definition of Black's Law Dictionary, a trust is "a property interest held by one person the trustee at the request of another the settlor for the benefit of a third party the beneficiary " A key characteristic of a trust is that it permits the separation of legal ownership and beneficial interest: the trustee becomes the owner of the corpus , and the beneficiary or beneficiaries are entitled to expect that the trustees will manage the trust property for their benefit.
To create an inter vivos trust, the settlor typically has to execute a deed known as "trust deed" , which formalizes the transfer of the property from settlor to trustee and identifies the beneficiary In this case, Claimant has provided as evidence four Trust Deeds , which are all based on the same standard text.
The main difference between the four Trust Deeds is the identity of the trustee: each Trust Deed shows one Foreign Shareholder as the trustee. Flynn, an English solicitor, who states that he - has reviewed each Trust Deed and - confirms that the governing law of the Trust Deeds is that of England and Wales and that under the laws of England and Wales, the Trust Deeds are legally valid and enforceable The Tribunal is not persuaded that this evidence proves quod demonstrandum erat.
To validly create a trust, the settlor, who must be the owner of the property, must transfer ownership to the trustee, who will hold the corpus for the benefit of a third party. In the present case, the owners of the AAIF shares were the Foreign Shareholders, and thus the only persons entitled to act as settlors. But this is not the reality which the Trust Deeds represent.
The fund is in negotiations with the Albanian government in relation to companies to be privatised, and is trying to purchase companies through a combination of vouchers and cash. A percentage of the privatised companies would then belong to the shareholders in the fund.
In relation to the gas field, which is in Delvina, Albania, Canadian-based Grande Portage Resources is in negotiations where it would acquire some of the field, and the rest would be acquired by the fund, according to Mr de Marino.
Mr Ganley has an interest in Grande Portage Resources. In April , Grande Portage announced in Toronto that it and the Anglo Adriatic Fund had been "granted a six-month exclusive period to negotiate" the acquisition of an Albanian fertiliser plant.
The announcement stated that Grande Portage was also in negotiations concerning the Delvina gas field. There has been no announcement to the stock exchange of the negotiations having been concluded. So the company's interests in the gas field as far as the stock exchange is concerned, remain aspirational. Mr Ganley says that as part of his interests in wireless broadband operations in a number of locations around the globe, he has been involved in exploring opportunities in Central America.
His spokesman said he had holdings in six Central American TV stations. However, Nicaraguan businessman Mr Eugenio Lacayo says he was involved in setting up a deal with Mr Ganley involving six TV stations, but it never went ahead. Mr Lacayo says a representative of Mr Ganley's was in Central America looking for suitable "emerging market projects. I created the project and I suggested it to him.
We started working together. I was in Ireland twice, I was in his house. Mr Lacayo says Mr Ganley is "a straight guy and very hard-working but I think he wanted to do too much and he lost focus". Mr Ganley says he looked at a range of Central American options and the one proposed by Mr Lacayo was only one of these. It was one he rejected. He is still pursuing a broadband project for Central America but it is at a "sensitive stage" and he cannot divulge the details or the name of his "potential strategic partner", he says.
Mr Ganley, through an Irish-registered company, GCI Ltd, was a 13 per cent shareholder in Cellstar, an unsuccessful bidder for the Republic's second mobile phone licence. Mr Ganley initiated the formation of the consortium. Mr Manolovici, who could not be contacted, was for several years head of emerging markets investments at Soros Fund Management and has a reputation for investing in difficult situations.
The journal quoted a senior investor commenting on Mr Manolovici: "Gerry's theory is, the most money is made when things go not from bad to good, but from terrible to merely bad. Mr Ganley says Mr Manolovici has invested in projects he was involved in, but is by no means his main investor. He says most of his investors come from the US, where people tend to be more "entrepreneurial". He seems to share some of Mr Manolovici's nerve in relation to business in difficult regions.
The present turmoil in the Balkans is bound to lead to increased stability in Albania, he says, as NATO and the west are now committed to the region. Whatever his business interests are or have been, Mr Ganley seems to have done well. When in Ireland he lives in a large old house on its own lands at Moyne Park, near Tuam, Co Galway, formerly the residence of the folk singer, Donovan, and at another time a seminary.
According to those who have been there, the house has been meticulously restored and lavishly decorated. It has its own oratory. Mr Ganley dresses well, "like a London city banker, pin-stripes, monogrammed shirts, that sort of thing," according to one acquaintance.
He drives big expensive cars and is known as a generous host. During the Galway races he holds major functions and foreign businessmen and senior Fianna Fail figures are known to stay in his home and in the converted stables at the back. Mr Ganley is not tax resident in this State but will not say where he is tax resident. See a sample. Galway-based entrepreneur courts world investors Fri, Apr 16, , Colm Keena. More from The Irish Times Economy.
Irish News. Gaelic Football. Conversion tactics: making the most of unused space in your home.
|Erik stijnen ing investment management||Albania conducted the mass privatization program of State-owned companies in several rounds, which took place between the years and Additionally, AAG has submitted four one-page letters from Mr. To avoid misuse and to minimize financial risks, the LIFd imposed restrictions on the activities of investment funds; e. The tribunal in Phoenix dismissed the claim because the investment was not made for the purpose of engaging in economic activity but to submit a pre-existing dispute to ICSID. Philip Morris Asia Limited v.|
|Anglo adriatic investment fund santa||959|
|Marokha investments with high returns||434|
|Currency trading system forex||On May 17,Respondent filed a request to submit new evidence into the record. The written trust agreements have to be interpreted in accordance with the intention of the parties involved Mr Ganley, through an Irish-registered company, GCI Ltd, was a 13 per cent shareholder in Cellstar, an unsuccessful bidder for the Republic's second mobile phone licence. The Tribunal remains unconvinced. At the Hearing, Mr. Thus, after considering the evidence submitted in this case, the Tribunal concludes that AAG has not proved the third requirement: that Claimant is the owner or titleholder of the protected investment.|
|Forex trading factory||713|
|Investment advisor act rule 205-3 advisers||245|
|Anglo adriatic investment fund santa||Investment management company registration|
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