PART I: INTRODUCTION AND SUMMARY OF DECISION

Introduction

Summary of Decision

PART II: THE PARTIES’ SUBMISSIONS

The Claimants’ Application

The Claimants submitted their Application on 25 March 2016.

The Claimants submit that the Respondent has openly defied the authority of the Tribunal by refusing to comply with the Tribunal’s Order. 4 The Claimants further contend that it is not for the Respondent to decide when, and if, it will comply with the Tribunal’s Order and that “[i]t is indeed beyond dispute that orders of provisional measures issued pursuant to Article 47 of the ICSID Convention create a binding ‘legal obligation’ on the parties”. 5 The Claimants say that the Tribunal’s Order is immediately binding, and that the Respondent cannot purport to reserve its rights because it has no rights to reserve. The Claimants further say that Art 47 does not provide for a vehicle for re-consideration of substantive decisions of the Tribunal on provisional measures. 6

As a consequence of the Tribunal’s Order, the Claimants also contend that the Respondent must return control of the companies that are subject to sequestration orders made by the Albanian prosecutorial authorities and unfreeze those companies’ bank accounts. 7 The Claimants say that the Respondent cannot delay this further on the basis that it is “currently gathering information in relation to the assets ”, as the Respondent stated in its letter of 21 March 2016. 8

Accordingly, the Claimants request a partial award or an order from the Tribunal addressing the Respondent’s refusal to comply with the Tribunal’s Order. The Claimants submit that the Tribunal should impose a penalty against the Respondent of US$250,000.00 for each day of non-compliance, and submits that this Tribunal has the power to impose such a penalty. 9

The Claimants also request further provisional measures be made by the Tribunal regarding the orders made by the Tribunal at paragraph 5.3 of the Order, whereby the Tribunal invited the Parties to confer and agree as to appropriate steps to be taken by Albania to preserve the Assets. The further provisional measures the Claimants now request are as follows:

At this juncture, it should be noted that the Claimants have requested relief in respect of the company “Fuqi Sh.p.k”, however this company was never contemplated by the Tribunal’s (original) Order.

The Respondent’s Application

The Respondent responded to the Claimants’ Application, and submitted its own Application on 5 April 2016.

The Respondent submits that the Tribunal’s Order made “unjustified and disproportionate inroads” upon Albania’s sovereignty. 11 The Respondent says that the original relief sought by the Claimants was “intended to derail” long-running criminal prosecutions brought against individuals charged with very serious offences, and that against this background any ICSID Tribunal that was invited to interfere had to do so with the “utmost care”. 12 The Respondent says it is appropriate for it to request that the Tribunal reconsider its Order.

The Respondent says that the Tribunal “plainly” has the power under Rule 39(3) of the ICSID Arbitration Rules to revoke or modify its recommendations in its order “at any time”. 13 Further, it says that this power is without restriction. 14 The Respondent relies on the dicta of the Tribunal in Victor Pey Casado v Republic of Chile , which said of provisional measures:

The Respondent does not dispute the test adopted by the Tribunal in determining whether or not an interference with the exercise of a State’s sovereign rights is justified. Rather, it takes issue with the Tribunal’s application of that test in the circumstances. 16

The Respondent contends that the Tribunal did not clearly identify the nature of the right to procedural integrity, nor provide sufficient reasons as to why the incarceration of Messrs Becchetti and De Renzis would infringe that right. 17 The Respondent concedes that the right to procedural integrity allows the Tribunal to “police its own process, so as to ensure the proper functioning of the dispute settlement procedure and the orderly unfolding of the arbitration process”, but the ability of Messrs Becchetti and De Renzis to “effectively manag[e] their businesses” (as stated by the Tribunal at paragraph 3.18 of the Order) is “surely irrelevant”. 18

Indeed, the Respondent submits that the Tribunal’s Order left a number of important questions unanswered, such as which businesses the Tribunal considered would be affected by the potential incarceration of Messrs Becchetti and De Renzis and what role they played in those businesses. 19 Similarly, the Respondent submits that the Tribunal’s concerns regarding Messrs Becchetti and De Renzis’ “full participation” in the arbitration were not properly reasoned. 20 The Respondent submits that the Tribunal justified its recommendation to suspend the criminal proceedings against Becchetti and De Renzis on the basis that the recommendation only “merely postpone[d]” the proceedings, not cancelled them entirely. 21 That is, the Tribunal’s approach is to countenance “any ICSID claimant fearing arrest to stop local criminal proceedings … provided he makes sure to ask only for a stay of those proceedings”. 22 The Respondent contends that the Tribunal’s decision in this respect was “out of step” with the “concept of procedural integrity” adopted in the cases of Quiborax 23 and Lao Holdings. 24

Further, the Respondent contends that the Tribunal’s Order did not engage with the question of whether it had jurisdiction to “step-in” and “short-circuit” the investigation which the UK courts were themselves undertaking, namely whether extradition was justified. It followed, so the Respondent contends, that “this Tribunal must have considered that it (rather than the English court) was the appropriate forum for the deliberation and determination of the issues raised by the Claimants”. 25

Further, the Respondent submits that the duration of the recommendations by the Tribunal is “excessive and disproportionate” and there is no reason for the “restraint imposed by the PMO to last until the Award in this matter”. 26

Notwithstanding these complaints the Respondent says that it has nevertheless “actively sought to engage with the Tribunal’s recommendations”. 27 The Respondent says that its Minister of Justice wrote to the UK’s Home Office asking that they make an application to the UK courts that the extradition proceedings against Messrs Becchetti and De Renzis be adjourned sine die. 28 In this regard, the Respondent said that (at that stage) it fully expected that the adjournment would be granted by the UK courts, and that, accordingly, compliance with paragraph 5.1(b) of the Tribunal’s Order would be secured. 29 The Respondent says that even if Messrs Becchetti and De Renzis were to appear before an Albanian Court, Albanian prosecutors would not seek to remand them in custody and would not oppose bail on “reasonable bail conditions”. 30 These assurances, according to the Respondent, amount to a “guarantee” that Messrs Becchetti and De Renzis would not be jailed. 31 This should be sufficient to satisfy the Tribunal’s Order, according to the Respondent, because anything more (namely, suspension of the criminal proceeding) was not permitted by Albanian criminal procedure. 32

Alternatively, in these circumstances, the Respondent contends that it would be open to the Tribunal to find that the steps taken by the Respondent provide a compelling basis for the revocation of the Tribunal’s Order. This is because, the Respondent submits, the perceived risk that either Messrs Becchetti or De Renzis would not be able to participate in the arbitration by virtue of their prospective imprisonment disappears, 33 and there is no “separate basis” on which suspension ought to continue to be recommended by the Tribunal. 34

As to the Claimants’ Application, the Respondent says that, in respect of the criminal proceedings against Messrs Becchetti and De Renzis, if the Tribunal accepts its arguments regarding the revocation or modification of paragraph 5.1 of the Order, then the Claimants’ application for relief in the form of a partial award must (at least partially) fall away. 35 Even if the Tribunal is not minded to revoke or modify paragraph 5.1 of its Order, the Respondent says there is no proper basis to grant the Claimants the relief they seek.

First, the Respondent submits that there is no power for the Tribunal to grant a “partial” award under the ICSID Convention or the Arbitration Rules. 36

Second, the Respondent says that the Claimants’ request for US$250,000.00 per day as a penalty for non-compliance is misconceived. It says that, as a matter of principle, such relief can only be granted when there is loss suffered by the Claimants by virtue of any alleged breach of Art 47 of the ICSID Convention. 37 The Respondent says that the Claimants have provided no evidence of loss and in any event the Tribunal could not make such a finding on an “interim” basis (that is, without a trial). 38 The Respondent submits that the measures it has taken to seek an adjournment of the extradition proceedings sine die means that the monetary relief sought is wholly unnecessary.

As for the relief the subject of paragraph 5.2 of the Order, the Respondent submits that it is continuing to engage with the Claimants on seeking to preserve the Assets. 39 At that time, it was quite apparent from both Parties’ submissions that they disagreed on measures required to be taken by the Respondent under that paragraph of the Order, and that they were thus unable to agree in any substantial respect. Nevertheless, the Respondent submits that the exchanges of correspondence that occurred between the Parties’ practitioners between 10 March 2016 to 21 March 2016 show that the Respondent was prepared to engage in good faith in negotiations with the Claimants as to the best way to preserve the Assets. 40 As the Tribunal had allowed the Parties 60 days to come to an agreement in this respect, a date which (as at the date of both the Claimants’ and the Respondent’s Applications), had not yet elapsed, the Claimants’ Application was, in this regard, premature. 41 Further, the Respondent pointed to the fact that it was continuing to gather information from the Albanian authority in charge of administering the Assets as to whether or not the Claimants’ proposals could be met. 42

The Claimants’ Reply to the Respondent’s Application

On 18 April 2016, the Claimants submitted their Reply to the Respondent’s Application, and its comments on the Respondent’s Response.

The Claimants say that the Respondent’s Application should be denied on a summary basis, because it has not met the requirements that such an application must meet to succeed. 43

First, they say that the Respondent’s Application is a challenge of the Tribunal’s Order, not a “bona fide request for revocation or modification”. 44 The Claimants submit that such a challenge is essentially an appeal against the Tribunal’s Order, where there is no right to appeal or re-consideration under the ICSID Convention. 45 In this regard, the Claimants rely on various decisions, including the recent decision of an ICSID Tribunal in ConocoPhillips v Venezuela on an application for re-consideration. 46 The Claimants submit that the power must be “found to exist” before it can be exercised, which in this case, it cannot. 47 The Claimants submit that Rule 39(3) of the Arbitration Rules does not allow for re-consideration – it only permits revocation or modification when there are changed circumstances that justify amending the relief originally ordered. 48

Second, the Claimants say that the Respondent cannot satisfy the requirement discussed above that there must be “changed circumstances”. 49 The Claimants submit that Albania’s request that the extradition proceedings be adjourned sine die in the UK courts does not form a “changed circumstance”. It says that the mere postponement of the extradition proceedings with similar bail conditions in place for Messrs Becchetti and De Renzis would still mean that they would be subject to a curfew and unable to leave the UK. 50

The Claimants further say that the Respondent’s claim that it is unable to withdraw the extradition (as a matter of Albanian law) is extraordinary, describing it as “no more than a belated attempt to pay lip service to the Order while continuing to ignore it”. 51 The Claimants point to the fact that not once since the Claimants sought orders suspending the Albanian criminal proceedings against Messrs Becchetti and De Renzis did the Respondent indicate that its domestic criminal laws prevented it from doing so, until now. 52

Third, the Claimants say that the promise by the Respondent to impose “reasonable bail conditions” on Messrs Becchetti and De Renzis is of no comfort to the Claimants, contending that “when the Claimants are in Albania the Government can flout the Tribunal’s orders, and by the time measures are taken to restrain Albania, the damage to the Claimants’ rights will have been done”. 53

The Claimants also contend that the Respondent’s Application should be denied because it has not explained why revocation or modification of the Tribunal’s Order is urgent or necessary. The Respondent relies on a passage by the ICSID tribunal in the Lao Holdings where it was stated that a revocation “has to be based on changed circumstances, which make it urgent and necessary to adopt a new decision on provisional measures”. 54 The Claimants instead say that the circumstances show that it is urgent and necessary to keep in place the existing order, because: (i) Albania has indicated that it may reignite the extradition proceedings if the Tribunal’s order is revoked; and (ii) the procedural integrity of the arbitration is still affected by the criminal proceedings and the seizure of the Claimants’ investments. 55

Further, in their Reply, the Claimants press their request for a Partial Award or Order. The Claimants say that the requested relief (which was the subject of the Tribunal’s Order) continues to be urgent and necessary (as does the relief sought in its new Application), especially where a number of months have passed since the making of the Tribunal’s Order with what the Claimants say has been no attempt by the Respondent to comply. 56 The Claimants reject the Respondent’s contentions that it cannot withdraw, suspend or stay the criminal proceedings, arrest warrants or extradition requests under Albanian law, and point to different Albanian statutes which would allow such actions to occur on the part of the Respondent. 57 Furthermore, the Claimants reiterate that their request for relief in the form of a monetary penalty against the Respondent for non-compliance is proportionate, and only this kind of penalty will “seemingly compel compliance with this binding Order”. 58 The Claimants further reject the Respondent’s contention that the Tribunal is unable to render a “Partial Award”, because there is nothing in the ICSID Convention preventing it. 59 Finally, the Claimants say that, if the relief it seeks in its Application with respect to the Assets is granted by the Tribunal, it would provide an undertaking not to sell its shareholding in the relevant companies, to move any physical assets outside of Albania, and they would simply manage the relevant companies “in the ordinary course of business”. 60

The Respondent’s Rejoinder

The Respondent submitted its rejoinder on 10 May 2016. In it, the Respondent reiterates and elaborates on many of the points made in its Application.

At the outset, the Respondent informed the Tribunal that the UK court had refused to adjourn the extradition proceedings of Messrs Becchetti and De Renzis sine die.

Nevertheless, the Respondent submits that, far from the Claimants’ assertion that it had ignored the Tribunal’s Order, it was the Respondent who was seeking to constructively engage with the Claimants. 61 The Respondent submits that it is the Claimants who have ignored the Tribunal’s Order by making an “aggressive, unreasonable and hasty” application for a Partial Award, more than a month before the expiry of the 60-day period prescribed by the Order for the Parties to discuss the protection of the Assets. 62

The primary position taken by the Respondent in its Rejoinder is that there is no need for “changed circumstances” (as suggested is required by the Claimant) in order for the Tribunal to exercise its power to revoke or modify the award pursuant to Rule 39(3) of the Arbitration Rules. 63 The Respondent submits that “the Tribunal remains the master of its own process and is able to modify or revoke the PMO in light of further submissions made by the Parties about the reasoning adopted in it or indeed of its own motion”. 64 The Respondent says that there is no requirement in the text of Rule 39(3) that there be a change of circumstances; 65 the Tribunal’s discretion under Rule 39(3) is “wholly untrammelled” because of the juridical nature of an order for Provisional Measures, which (in contrast to a Final Award) does not carry the force of res judicata . 66

Further, the Respondent challenges the legal authorities cited by the Claimants in their Response.

The Respondent says that the Claimants’ reliance on the Lao Holdings case to import the requirement of “changed circumstances” is flawed because, in that case, the Tribunal proceeded on the basis of an express concession by the respondent State that it had to establish a change of circumstances in order for the provisional measures order to be modified. That is, put another way, neither party disputed that a change of circumstances was actually required. 67

The Respondent also challenges the Claimants’ reliance on the ConocoPhillips case because that case dealt with a request for re-consideration of a final award, not an order for provisional measures. 68 The Respondent submits that there is a clear difference between asking a Tribunal to re-visit a binding and final decision, and a party seeking revocation or modification of an interim order (and the Tribunal must be scrupulous in order not to prejudge the merits of the case itself). 69

Moving beyond the question of whether “changed circumstances” are required, the Respondent submits that there are nevertheless other “legal difficulties” with the Tribunal’s reasoning in the Order.

First, the Respondent submits that it was “difficult to see how” the management of Messrs Becchetti and De Renzis’ businesses (or, more accurately, the inability to manage those businesses) imperilled the procedural integrity of the arbitration, or, even assuming it did, how such inability could do so in a manner sufficient to make it absolutely necessary to grant provisional measures. 70

Second, insofar as the Tribunal’s reasoning for the Order was based on the justification that incarceration of Messrs Becchetti and De Renzis would prevent them from “fully participating” in the arbitration, and imperilling their right to procedural integrity, the Respondent submits that the reasoning was not fully explained in the Order, and therefore cannot be properly justified. 71 Specifically, it points to five criticisms:

While the Claimants stated that Albania cannot “re-argue” the arguments ventilated before the Order, 77 the Respondent says that it is not seeking to “re-argue” them, but rather it “has made submissions in response to the reasoning adopted by the Tribunal in the PMO, which Albania obviously only saw for the first time once the PMO was issued”. 78

The Respondent further says that if, contrary to its primary submissions, the Tribunal is not minded to modify or revoke the Order, then any provisional measure should last only until the end of the final hearing, or, at the latest, the date of post-hearing briefs and not until the date of the Final Award. 79 This submission is premised on the fact that there is nothing about which Messrs Becchetti and De Renzis need to instruct their counsel after the final hearing. Indeed, the post-hearing submissions do not require their input to analyse legal argument and oral and written evidence has already been submitted. 80

Further, the Respondent criticises the Order as being “unprecedented” in nature, and that it carries with it radical and extraordinary implications. 81 For that reason, the Respondent submits that the Tribunal “ought in principle be ready to reflect upon the validity of its reasoning and conclusions”, and “it remains incumbent upon the Tribunal to subject its unprecedented recommendations to close and continuing scrutiny”. 82

The Respondent says that, if the Tribunal is not minded to review the validity of its Order on the basis of the legal difficulties it presented (and which are summarised above), then the Tribunal should modify or revoke the Order owing to changed circumstances. 83

That changed circumstance is the decision of the Westminster Magistrates’ Court in the UK where the Home Office’s application to adjourn the extradition proceedings involving Messrs Becchetti and De Renzis sine die was rejected. The Respondent has submitted that it is “clear that the attitude of the English court is that the only way the English proceedings can be ‘suspended’ is in fact for them to be entirely withdrawn”. 84 In that regard, the Respondent says that the withdrawal of the extradition proceedings is not what the Order required, and Albania had attempted in good faith to comply with the Tribunal’s order to “suspend” the extradition proceedings by requesting the sine die adjournment. 85

In this regard, the Respondent again points to the fact that there is no provision of Albanian law that allows the Minister of Justice to withdraw an extradition request once made, and that, the issuance of arrest warrants gives rise to an obligation on the Albanian authorities to execute that arrest warrant. 86 Art 504 of the Albanian Code of Criminal Procedure provides the power for the Albanian Minister of Justice to request the extradition of a person from a foreign state. But the Respondent submits, contrary to what the Claimants said, this does not give the Minister of Justice a discretion to withdraw an extradition request. 87 In essence, the Respondent says that, in the absence of something that prevents the extradition proceedings to continue, as a matter of Albanian or international law, then there is no unfettered discretion for the Minister of Justice to simply withdraw the request. 88 While the Tribunal’s Order does give rise to an obligation on Albania under international law, the Respondent submits the ICSID Convention does not prescribe any mechanism for the Order to be recognised or enforced in Albanian law. 89 It follows that the Tribunal’s Order cannot affect the validity of the extradition request as a matter of Albanian law, leaving no discretion for the Minister of Justice to withdraw that request.

In all of these circumstances, and in what the Respondent explains is an attempt to address the concerns of the Tribunal, Albania offers a guarantee that if Messrs Becchetti and De Renzis were extradited to Albania, then Albanian prosecutors would not seek that they be remanded in custody, but instead be released on “reasonable bail conditions”. 90 This offer had been made by the Albanian Minister of Justice to the UK Home Office. 91 The effect would be that, upon arriving in Albania, Messrs Becchetti and De Renzis would spend a maximum of three days in custody before being brought before a court, where the prosecutor would ask the Albanian court to impose bail conditions which would allow Messrs Becchetti and De Renzis to be released from custody. 92 The Respondent says that the prosecutor is obliged to follow the guarantee given by the Minister of Justice and “must ask the Court to replace the existing security measures with the reduced security measures of reasonable bail”. 93 It follows that there is no risk that the Albanian court would not release Messrs Becchetti and De Renzis on bail, because Art 244(3) of the Albanian Code of Criminal Procedure provides that “the court cannot assign a remand order more severe than the one applied for by the prosecutor”. 94

In response to the Claimants’ position that the Claimants cannot now rely on the undertaking given by Albania, the Respondent says that when the Claimants originally sought provisional measures, they did not suggest that “Albania could not be trusted to comply with a tribunal’s order or undertaking”. The Respondent asserts that the Claimants have changed their position and that the Tribunal should consider the credibility of the Claimants’ avowed concerns about needing to be able to attend to their businesses in Albania. They add that it is now clear that neither Mr Becchetti nor Mr De Renzis intend to travel to Albania to attend to their investments, so the basis for the provisional order, by the Claimants’ own admission, falls away. 95

As to what it had previously described as an “inability” to comply with the Tribunal’s recommendation to suspend domestic criminal proceedings, 96 the Respondent contends that, under Albanian law, criminal proceedings as a whole cannot be suspended. 97 It points to Art 342 of the Code of Criminal Procedure which provides for uninterrupted criminal trials to be one of the main features for the conduct of criminal trials in Albania. 98 While the Respondent concedes that Art 343 of the Code provides for suspension, it only does so when the criminal case is dependent on the resolution of a civil proceeding or administrative dispute. 99 To the contrary, there is no dependency between this arbitration and the criminal proceedings against Messrs Becchetti and De Renzis. 100 The Respondent further says that any intervention by the Government in court processes is forbidden under the Albanian Constitution, so the Albanian Government, as much as it may wish to comply with the Order, cannot request either the Albanian court, or its prosecutors, to suspend the criminal proceedings. 101

Finally, the Respondent notes that although the domestic arrest warrants against Messrs Becchetti and De Renzis were not recommended to be withdrawn or suspended by the Tribunal’s Order, the Respondent says that it could not do so under Albanian law. 102 The Respondent says that, pursuant to Art 260(2) of the Code of Criminal Procedure , arrest warrants can only be modified or revoked when “security needs are lowered”. 103 The Respondent submits that “security needs” have not lowered because Messrs Becchetti and De Renzis are “actively evading the justice of the Albania courts”. 104

In all of these circumstances, the Respondent says that the “disappearance of any threat of incarceration” justifies the revocation of the Tribunal’s Order, and the fact that the domestic criminal proceedings have not been suspended does not justify the continuation of the Order. Those criminal proceedings do not pose a threat to the liberty of Messrs Becchetti and De Renzis. 105

At the Hearing, the Respondent was invited to make its submissions first, followed by the Claimant. Messrs Toby Landau QC and Siddarth Dhar made submissions on behalf of the Respondent, and Mr Phillipe Pinsolle and Mr Christopher Tahbaz for the Claimants. Messrs Ben Brandon and Julian Knowles QC, respectively counsel for the Respondent and Claimants in the UK extradition proceedings, were also present and assisted the Tribunal on occasion during the hearing.

The Respondent submitted that the Claimants had attempted to paint the Respondent’s Application as acting in bad faith, and “seeking to run away” from the Tribunal’s Order, neither of which were true. 106 Rather, there was no element of bad faith in asking the Tribunal to exercise a power that it has as a matter of the ICSID Rules. 107 The Respondent further submitted that it has in good faith tried to comply with the Tribunal’s order. 108 The Respondent rejected any notion by the Claimants that the request for an adjournment of the extradition proceedings was for a “tactical reason” to prolong the bail conditions of Messrs Becchetti and De Renzis. 109 The Respondent further submitted that Albania has not acted in bad faith in failing to suspend the criminal proceedings against Messrs Becchetti and De Renzis in Albania because there have been great efforts to accommodate what the Respondent says is an “unprecedented” and “extraordinary” order in a domestic legal system. 110 The Respondent further pointed out that, while it has tried to accommodate the Tribunal’s Order, the continuance, or more accurately, existence, of the criminal proceedings in Albania has posed no difficulty to the Claimants whatsoever (i.e. those proceedings have not stopped them in any way from doing anything in this arbitration). 111 The Respondent also pointed to the fact that the Claimants filed an extensive memorial submission on 13 May 2016 as an example of their ability to engage in the arbitral proceeding. 112

The Respondent, at the request of the Tribunal, made submissions regarding the undertaking given by the Albanian Minister for Justice not to seek to remand Messrs Becchetti and De Renzis in custody in Albania, which had been given the UK extradition proceedings. The Respondent confirmed that it was an undertaking given by Albania to the UK, specifically the UK Home Office. 115

The Respondent submitted that if the Tribunal did not agree that it should revoke its Order without changed circumstances, and those changed circumstances concerned an undertaking given by the Albanian Minister for Justice not to incarcerate Messrs Becchetti and De Renzis, then it would be open to the Tribunal to outline what it required to “have confidence and comfort” in revoking or modifying the Order. 116

When asked to deal with the difficulty that might arise with the ability for Messrs Becchetti and De Renzis to properly prosecute this arbitration if they were sitting in a jail cell in Albania, counsel for the Respondent submitted that “the criminal proceedings going ahead in Albania themselves will have no impact on the ability to prosecute this arbitration on any view”. 117 Counsel for the Respondent then pointed out that, despite the pendency and even continuation of those criminal proceedings in Albania, the Claimants had managed to file their Memorial of 13 May without difficulty. 118 In answer to the proposition that Messrs Becchetti and De Renzis are not currently in jail, and thus it is unsurprising that they have been able to properly prosecute their claims in this arbitration to date, 119 counsel submitted that “the criminal proceedings [in Albania] can continue and the extradition proceedings could be stopped. The two may depend on each other, but they are not both necessary”. 120 Counsel for the Respondent further explained that “the Tribunal could have made an order which was simply focused upon the extradition proceedings, not the criminal proceedings”. 121 On that basis, the Respondent submitted that there was “no justification, in terms of procedural integrity, to stop the domestic criminal proceedings in Albania”, 122 and all that was required from the Tribunal was an order suspending the extradition proceedings. 123 In relation to the hypothetical scenario that Messrs Becchetti and De Renzis could go to a third state and Albania could then seek extradition from that third state, 124 counsel explained that “the idea that every extradition process around the world can be suspended on this basis, that there can be an incursion of sovereignty of that extent, is totally unprecedented and takes away all the discretions that are built into the system for each country to consider itself how it proceeds”. 125

The Respondent’s position was that the undertaking Albania was prepared to offer was essentially the same undertaking that was made by the Albanian Minister for Justice in the extradition proceedings. 126 Having been questioned by the Tribunal on this issue, counsel for the Respondent requested an opportunity to provide further written submissions on this particular issue so as to not misconstrue Albanian law. 127

As to the Claimants’ application, the Respondent submitted that the Tribunal should not make the order sought by the Claimants. 128 The Respondent submitted that, amongst other things, there was no need to grant the application where Albania has been making good faith attempts to implement the Tribunal’s Order. 129 The Respondent submitted that the question that had to be asked by the Tribunal when considering whether or not to grant the Claimants’ application was “ha[s Albania] acted in bad faith such that [the Tribunal] should warrant now this extraordinary penal order?”. 130 The Respondent submitted that in circumstances where Albania has been “trying to work with the Tribunal … this is not a situation where it is now appropriate to slap an order or decision on [Albania] to say that [Albania is] in breach, with a day-by-day penalty”. 131

The Respondent also addressed the Tribunal regarding the orders sought by the Claimants in respect of the Assets. In this regard, the Respondent emphasised that the Tribunal had invited Albania to confer with the Claimants and “seek to agree appropriate measures to be taken by the Republic of Albania” to preserve the Assets. 132 The Respondent said the relief sought by the Claimants in this respect should be dismissed for three reasons.

First, the Respondent said that the basis of the Claimants’ application, which was that the Respondent had not engaged with the Claimants’ proposals to “preserve” the Assets, was misconceived. 133 The Respondent referred the Tribunal to correspondence between the Parties which it said demonstrated otherwise. 134 That correspondence, the Respondent submitted, showed that the Respondent’s counsel was still receiving instructions as to how to address the Claimants’ “precise concerns” regarding the preservation of Assets. 135 The Respondent also submitted that the Claimants’ application was premature, because the Tribunal’s Order prescribed a 60-day time limit in which the Parties were to confer and agree, which had not expired by the time the Claimants’ Application was made. 136

Second, the Respondent submitted that Albania had “done everything necessary to comply” with the terms of the Tribunal’s directions at paragraphs 5.2 and 5.3 of its Order. 137 The Respondent submitted that “there is no allegation that shareholdings have been diluted; there is no allegation that bank accounts have been dissipated; there is no allegation that assets have been left in a warehouse to rot”, and thus, when considering the precise terms of paragraph 5.2 of the Order, it could not be said that Albania has breached that order. 138

Third, the Respondent contended that, even if the Tribunal did not accept that the Respondent had complied with paragraphs 5.2 and 5.3 of its Order, then the Claimants have stated in their recently-filed Memorial that those Assets no longer exist, 139 so there could be no urgency supporting the grant of provisional measures to protect them.

The Claimants submitted that the Respondent’s characterisation of the issue before the Tribunal as being a question of whether or not the Respondent had acted in bad faith or good faith was not relevant, and that the question of good faith was not the test to be applied by the Tribunal. 140 Rather, what is required to be examined is compliance with the Tribunal’s Order, which is what the Claimants submitted their Application was predicated upon. 141

The Claimants submitted during their opening that they were now seeking an indemnification for the Assets, some of which had now been expropriated and could not be returned. 142 When asked to clarify their position regarding the relief sought, the Claimants confirmed that they were seeking full compensation in the merits aspect of this arbitration, but also a penalty against the Respondent for non-compliance with the Tribunal’s Order. 143 The Claimants confirmed that the penalty and the award of damages it sought would be “in parallel”, so that the penalty would be deducted from the calculation of damages (presumably, so as not to receive double compensation, or a pecuniary penalty, as the case may be). 144

The Claimants also addressed the Tribunal on the Respondent’s compliance with the suspension of the extradition proceedings. The Claimants submitted that UK Magistrates’ Court had not been inclined to grant the Home Office’s application to adjourn sine die because it did not wish to leave the matter “in limbo”. 145 As at the stage of the oral hearing, the Parties informed the Tribunal that the judgment of Judge Tempia as to the extradition application of Messrs Becchetti and De Renzis was expected to be delivered on 8 July 2016.

Counsel for the Claimants also made submissions regarding two documents relating to the conditions of Albanian prisons that were submitted to the Tribunal, without leave, on 10 June 2016. 146 The Tribunal decided against admitting these documents and, as such, it is unnecessary to dwell on these submissions further.

The Claimants addressed the Respondent’s contention that there was no mechanism under Albanian law by which to suspend the Albanian criminal proceedings, contending that in the extradition proceedings before Judge Tempia, the Claimants had tendered an expert report of an expert in Albanian law which demonstrated that the Albanian Minister for Justice does have a discretion to suspend an extradition request. 147 The Tribunal noted that whilst that report was not in evidence in this arbitration, the question of whether or not the Albanian minister can suspend the extradition request was likely to be a question answered by Judge Tempia. 148 Mr Brandon, Albania’s counsel in the extradition proceedings, agreed that those were the questions that Judge Tempia would decide, but said that they would not necessarily be decided on 8 July 2016, when judgment from that court was expected. 149

The Claimants also made submissions regarding the difficulties they perceived in relation to the undertaking given by the Albanian Minister of Justice to the Home Office (and presumably, any similar undertaking to the Tribunal) not to imprison Messrs Becchetti and De Renzis. In this regard, the Claimants emphasised paragraphs 46 to 48 of the Respondent’s Rejoinder, and specifically on the word “ask” (i.e. that the Albanian authorities would ask the Albanian courts not to imprison Messrs Becchetti and De Renzis). 150 The Claimants further submitted that “reasonable bail conditions” quoted in the Albanian Minister’s undertaking was an “abstract concept”, and that it is not known what an Albanian court might regard as “reasonable bail conditions”. 151 When pressed by the Tribunal as to whether or not the Claimants would ever accept any undertaking given by the Respondent as acceptable, the Claimants submitted that it would not “rule out this possibility”. 152

The Claimants then turned to the Respondent’s Application more generally. They contended that it was nothing more than an interlocutory appeal. 153 An appeal of this nature is not authorised under the ICSID Convention, nor the Arbitration Rules. 154 The Claimants pointed out that “Albania had a full and fair opportunity to participate [in the hearing on provisional measures], where there were hundreds of pages of written submissions, where Albania was represented by its choice of counsel, during a hearing to which it agreed”. 155 The Claimants submitted that Albania’s dissatisfaction with the Tribunal’s reasoning was not a basis to “re-open issues that this Tribunal has fully considered and decided”. 156

The Claimants conceded that the ICSID Convention and the Rules are each silent as to the circumstances under which an application for revocation or modification can be made, but submitted that, contrary to the Respondent’s submission that it is incumbent upon the Tribunal to subject its Order to continuing scrutiny, there must be changed circumstances in order to allow a consideration of revocation or modification. 157

Accepting that changed circumstances are required to allow revocation or modification of the Tribunal’s Order, the Claimants contended that there were no changed circumstances in this case, nor was it necessary or urgent to modify or revoke the Order. 158 The Claimants submitted that the dual requirement (namely that there be both changed circumstances, and that it be urgent and necessary to revoke) was derived from the Lao Holdings case. 159 Without the requirement of changed circumstances (that is, “an objective justification”), the Claimants submitted that one would be left with a system of unlimited appeal. 160

The Claimants further contended that Albania’s assurances of compliance, and in particular, its claim that it had complied with the Tribunal’s Order regarding the suspension of the extradition proceedings (or at least, attempted suspending), did not constitute changed circumstances. 161

The Claimants also focused the Tribunal’s attention to the question of why Albania did not raise its inability to suspend the extradition or criminal proceedings during the earlier Provisional Measures hearing, when it knew it could be faced with such an order. 162 The Claimants submitted that the inference that can be drawn from this is that there is no merit to the argument that Albania is unable to comply with the Order. 163

Finally, the Claimants focused on Albania’s undertaking not to seek that Messrs Becchetti and De Renzis be remanded in custody if they were to be extradited. The Claimants submitted that the Respondent was not being “genuine and honest” in giving this undertaking, because, on the one hand, it had stated that it was committed not to imprison Messrs Becchetti and De Renzis, but, on the other hand, it is “fighting tooth and nail to get rid of” the Order. 164

After the hearing, the Parties were each directed to file post-hearing submissions, to which the Tribunal now turns.

The Respondent submitted its Post Hearing Submission on 29 June 2016, accompanied by

In light of this dispute, the Tribunal had to determine whether to admit this opinion. It determined to do so. The Tribunal turns to consider Professor Rakipi’s opinion (and that of the Claimants’ expert as to Albanian law) at paragraphs 2.95–2.101 below.

The Respondent then makes submissions on the three relevant questions, namely:

The Respondent describes the undertakings as “promises”, rather than undertakings, explaining that, as a matter of Albanian legal language, it was appropriate to do so. 166 In fact, the terms “undertakings” and “promises” seemed to be used interchangeably in both Parties’ submissions, and the Tribunal herein adopts the language used by the Parties depending on the particular submission or point made.

The Respondent relies on promises that have already been made in the form of the 5 April 2016 letter from the Minister of Justice to the Home Office 167 and a letter from the Albanian Prosecution Office dated 14 June 2016. 168 Further, it relies on the letter from the Prosecutor General’s Office dated 29 June 2016, 169 which it submits confirms that (i) the Prosecutor and Albanian Court are obliged to comply with the “promise” made by the Albanian Minister of Justice; (ii) Messrs Becchetti and De Renzis would be held in custody for a maximum of three days from their arrival in Albania before they are brought before an Albanian court for “processing”; (iii) Messrs Becchetti and De Renzis will thereafter be released on “reasonable bail conditions”; and (iv), once they have appeared before the Albanian court, their arrest warrants will be satisfied. 170

The Respondent refers to letters from the State Advocate’s Office that confirm, amongst other things, that the Minister for Justice abides by the undertakings made in the 5 April 2016 letter to the Home Office, which are “legitimated by implementation of Article 504/2 of the Code of Criminal Procedure”. 171 The Respondent further submits that as a matter of international law, those promises remain binding on Albania because:

The Respondent points to the decision of the International Court of Justice in the Nuclear Tests Case , whereby the Court stated:

The Respondent concedes that its previous reliance on Art 504(2) of the Albanian Criminal Procedural Code to suggest that the Minister for Justice’s promise in the letter to the Home Office was binding is now “a matter of some uncertainty under Albanian law”. 174 However the Respondent relies on the opinion of Professor Rakipi, its Albanian law expert, that “the Minister is bound where he has made promises as to how the Defendants will be treated if extradited” despite the situation not being “expressly envisaged in the law”. 175

The Respondent submits that the Minister for Justice considers himself bound by the promises made in the extradition proceedings, but could make those same promises or undertakings to the Tribunal because they do not relate to the “framework of the extradition proceedings” and Albanian law does not provide for any valid undertakings to be made outside the extradition proceedings. 176

As a reason why this Tribunal should be satisfied that the Minister will keep his word, the Respondent submits that by not doing so would have “very severe repercussions” for Albania in these proceedings, and also for its bilateral relationship with the UK. 177

Turning to how the “promises” made by the Minister of Justice are binding on Albanian prosecutors and courts, the Respondent relies on Art 51(2) of Law 10193 178 and Art 504(2) of the Code of Criminal Procedure , 179 which, in combination, mean that the Minister’s confirmation or acceptance of the promises previously made to the Home Office is binding upon both prosecutors and courts. 180

On 8 July 2016, the Claimants submitted their response to the Respondent’s Post Hearing Submission (the “Claimants’ Post-Hearing Submission”). This was submitted on the same day that the Judgment was handed down. The Claimants’ Post-Hearing Submission was accompanied by an opinion by Mr Arben Qeleshi which largely addressed the opinion of Professor Arben Rakipi. That, too, was admitted into evidence. The Tribunal separately summarises Mr Qeleshi’s opinion (together with Professor Rakipi’s opinion) at paragraphs 2.95–2.101 below.

The Claimants emphasise that the Respondent would not (or could not, as the case may

The Claimants submit that the “promises” given by Albania to the UK authorities (given that they cannot be characterised as undertakings and are not described by the Respondent as such) do not bind Albania, Albanian courts, or Albanian prosecutors. 185 The Claimants reject the claim that the promises are binding as a matter of international law, because “Albania’s Minister of Justice evinces no intention to be bound by his April 5 letter”. 186 The Claimants also point to the apparent contradiction between the Respondent maintaining that the promises have a binding effect under Albanian law (by virtue of their binding nature under international law), but that the Tribunal’s Order does not enjoy a similar binding effect under Albanian law. 187

The Claimants submit that the Respondent’s promises do not bind the Albanian courts and its prosecutors. 188 The Claimants point to two matters in support. First, they say that (as the Minister has admitted) Art 504(2) does not provide a legal basis for the binding nature of the undertaking under Albanian law. Second, the Claimants say that Albania’s reliance on Law 10193 189 is equally flawed. In this regard, the Claimants rely on the opinion of Mr Qeleshi (which is summarised below), specifically because neither Law 10193 nor Art 504(2) of the Code on Criminal Procedure provide a basis for the “promises” to be binding under Albanian law. 190

The Claimants further submit that the promises made by the Albanian Minister are not binding before the English courts. The Claimants submit that the issue of bail in Albania (and, presumably, any promises made regarding bail) is irrelevant to the extradition process in the UK. 191 The Claimants submit that under the Extradition Act 2003 (UK), the presiding judge must send an application for extradition to the UK Secretary of State, who is obliged to order extradition unless certain narrow circumstances exist (none of which are applicable in this case). 192 The Claimants contend that neither the Judge nor the Secretary of State will be concerned with the question of bail in Albania after Messrs Becchetti and De Renzis are extradited. 193

The Claimants also contend that Albania’s promise that Messrs Becchetti and De Renzis will be allowed to travel freely to and from Albania once they are released on bail is illusory. The Claimants draw the Tribunal’s attention to the fact that the guarantee of free travel to and from Albania is not covered by any promise or undertaking by the Albanian Minister of Justice – rather, it was only made by way of submission in the Respondent’s submission of 10 May 2016, and the Respondent does not explain why this representation is binding. 194 Further, the Claimants contend that Albania does not explain how it would withdraw international arrest warrants and an Interpol “Red Notice” against Messrs Becchetti and De Renzis. 195 The Claimants pose the question why Albania would continue to seek the extradition of Messrs Becchetti and De Renzis only to release them again, and says that such a position “flies in the face of the very purposes of extradition, which is to force a defendant to return to a State in which he is to be tried in order to stand trial”. 196 The Claimants contend that even if Messrs Becchetti and De Renzis were granted bail, they would be obliged to appear in Albania at “Albania’s volition”, due to the operation of Art 353 of the Code of Criminal Procedure . 197

The Claimants also press the argument that the Respondent has failed to address any of the Tribunal’s queries contained in its letter of 16 June 2016 following the oral hearing in this matter. In particular, the Claimants stress that the Respondent has given no undertaking to the Tribunal (especially given that the Tribunal’s letter of 16 June 2016 specifically asked: “who will make the undertaking(s) and in what form will it be made to the Tribunal”). 198 The Claimants say that the reasons proffered by the Respondent as to why it cannot make the undertakings directly to the Tribunal are flawed. First, the Claimants say that given the Respondent has effectively admitted that the undertaking made by the Minister to the Home Office in his letter of 5 April 2016 was not made pursuant to Art 504(2) of the Code on Criminal Procedure , then it could not bear a relationship to the extradition proceedings. 199 The Claimants ask: given that those undertakings bear no “legal” relationship to the extradition proceedings, why can the Minister of Justice make the undertakings to the Westminster Magistrates’ Court, but not the Tribunal? 200 Second, the Claimants submit that, if the Minister of Justice cannot provide the undertakings to the Tribunal (as the Respondent claims the Minister cannot), then why are Albanian officials other than the Minister of Justice unable to make such an undertaking? 201

The Claimants also point out that the “reasonable bail conditions” promised by the Respondent have not been fully explained to them and remain an “abstract concept”. 202 The Claimants say that the Tribunal should draw “the necessary conclusions” – namely, an adverse inference – from Albania’s silence on this point. 203

Finally, the Claimants contend that Albania has not adequately addressed how the promises made by the Minister to the Home Office would be implemented. The Claimants attack the Respondent’s submission that the promise would be binding on it as a matter of international law because such a contention is “disingenuous in light of Albania’s position that the Tribunal’s Order on Provisional Measures is binding upon it, but that it nevertheless cannot be implemented under its own law”. 204 Specifically, the Claimants submit that the Respondent fails to explain why the Minister’s promises must be implemented immediately by its governmental organs, but not the Tribunal’s Order.

The Opinions of Professor Arben Rakipi and Mr Arben Qeleshi

As already noted, Professor Arben Rakipi has been put forward as an expert on Albanian law by the Respondent, while Mr Arben Qeleshi has been put forward by the Claimants.

Professor Rakipi is a Professor of Criminal Law at the Tirana Magistrates School, and was a former Judge of different courts in Albania. His opinion was sought by counsel for the Respondent for the purposes of this arbitration. His report is structured in such a way as to address various questions posed of him by counsel from the Respondent.

Mr Qeleshi’s experience includes, but is not limited to, working as a Prosecutor for the Attorney General’s office, and serving as a Magistrate for seven years. Mr Qeleshi was asked to address the same questions put to Professor Rakipi, and also to address the answers provided by Professor Rakipi.

Question 1: Professor Rakipi was asked whether or not the Minister for Justice would be obliged to comply with an undertaking given by him to the English extradition courts if the extradition court did not impose on Albania those conditions given in the undertaking. 205

Questions 3 & 4: Professor Rakipi is asked whether an undertaking given by the Minister of Justice is binding on an Albanian Court as a matter of practice in Albanian criminal procedure. Professor Rakipi is separately asked to confirm the authority for his answers.

Conclusions: It is of assistance to set out both Professor Rakipi and Mr Qeleshi’s conclusions out in full:

PART I: INTRODUCTION AND SUMMARY OF DECISION

Introduction

Summary of Decision

PART II: THE PARTIES’ SUBMISSIONS

The Claimants’ Application

The Claimants submitted their Application on 25 March 2016.

The Claimants submit that the Respondent has openly defied the authority of the Tribunal by refusing to comply with the Tribunal’s Order. 4 The Claimants further contend that it is not for the Respondent to decide when, and if, it will comply with the Tribunal’s Order and that “[i]t is indeed beyond dispute that orders of provisional measures issued pursuant to Article 47 of the ICSID Convention create a binding ‘legal obligation’ on the parties”. 5 The Claimants say that the Tribunal’s Order is immediately binding, and that the Respondent cannot purport to reserve its rights because it has no rights to reserve. The Claimants further say that Art 47 does not provide for a vehicle for re-consideration of substantive decisions of the Tribunal on provisional measures. 6

As a consequence of the Tribunal’s Order, the Claimants also contend that the Respondent must return control of the companies that are subject to sequestration orders made by the Albanian prosecutorial authorities and unfreeze those companies’ bank accounts. 7 The Claimants say that the Respondent cannot delay this further on the basis that it is “currently gathering information in relation to the assets ”, as the Respondent stated in its letter of 21 March 2016. 8

Accordingly, the Claimants request a partial award or an order from the Tribunal addressing the Respondent’s refusal to comply with the Tribunal’s Order. The Claimants submit that the Tribunal should impose a penalty against the Respondent of US$250,000.00 for each day of non-compliance, and submits that this Tribunal has the power to impose such a penalty. 9

The Claimants also request further provisional measures be made by the Tribunal regarding the orders made by the Tribunal at paragraph 5.3 of the Order, whereby the Tribunal invited the Parties to confer and agree as to appropriate steps to be taken by Albania to preserve the Assets. The further provisional measures the Claimants now request are as follows:

At this juncture, it should be noted that the Claimants have requested relief in respect of the company “Fuqi Sh.p.k”, however this company was never contemplated by the Tribunal’s (original) Order.

The Respondent’s Application

The Respondent responded to the Claimants’ Application, and submitted its own Application on 5 April 2016.

The Respondent submits that the Tribunal’s Order made “unjustified and disproportionate inroads” upon Albania’s sovereignty. 11 The Respondent says that the original relief sought by the Claimants was “intended to derail” long-running criminal prosecutions brought against individuals charged with very serious offences, and that against this background any ICSID Tribunal that was invited to interfere had to do so with the “utmost care”. 12 The Respondent says it is appropriate for it to request that the Tribunal reconsider its Order.

The Respondent says that the Tribunal “plainly” has the power under Rule 39(3) of the ICSID Arbitration Rules to revoke or modify its recommendations in its order “at any time”. 13 Further, it says that this power is without restriction. 14 The Respondent relies on the dicta of the Tribunal in Victor Pey Casado v Republic of Chile , which said of provisional measures:

The Respondent does not dispute the test adopted by the Tribunal in determining whether or not an interference with the exercise of a State’s sovereign rights is justified. Rather, it takes issue with the Tribunal’s application of that test in the circumstances. 16

The Respondent contends that the Tribunal did not clearly identify the nature of the right to procedural integrity, nor provide sufficient reasons as to why the incarceration of Messrs Becchetti and De Renzis would infringe that right. 17 The Respondent concedes that the right to procedural integrity allows the Tribunal to “police its own process, so as to ensure the proper functioning of the dispute settlement procedure and the orderly unfolding of the arbitration process”, but the ability of Messrs Becchetti and De Renzis to “effectively manag[e] their businesses” (as stated by the Tribunal at paragraph 3.18 of the Order) is “surely irrelevant”. 18

Indeed, the Respondent submits that the Tribunal’s Order left a number of important questions unanswered, such as which businesses the Tribunal considered would be affected by the potential incarceration of Messrs Becchetti and De Renzis and what role they played in those businesses. 19 Similarly, the Respondent submits that the Tribunal’s concerns regarding Messrs Becchetti and De Renzis’ “full participation” in the arbitration were not properly reasoned. 20 The Respondent submits that the Tribunal justified its recommendation to suspend the criminal proceedings against Becchetti and De Renzis on the basis that the recommendation only “merely postpone[d]” the proceedings, not cancelled them entirely. 21 That is, the Tribunal’s approach is to countenance “any ICSID claimant fearing arrest to stop local criminal proceedings … provided he makes sure to ask only for a stay of those proceedings”. 22 The Respondent contends that the Tribunal’s decision in this respect was “out of step” with the “concept of procedural integrity” adopted in the cases of Quiborax 23 and Lao Holdings. 24

Further, the Respondent contends that the Tribunal’s Order did not engage with the question of whether it had jurisdiction to “step-in” and “short-circuit” the investigation which the UK courts were themselves undertaking, namely whether extradition was justified. It followed, so the Respondent contends, that “this Tribunal must have considered that it (rather than the English court) was the appropriate forum for the deliberation and determination of the issues raised by the Claimants”. 25

Further, the Respondent submits that the duration of the recommendations by the Tribunal is “excessive and disproportionate” and there is no reason for the “restraint imposed by the PMO to last until the Award in this matter”. 26

Notwithstanding these complaints the Respondent says that it has nevertheless “actively sought to engage with the Tribunal’s recommendations”. 27 The Respondent says that its Minister of Justice wrote to the UK’s Home Office asking that they make an application to the UK courts that the extradition proceedings against Messrs Becchetti and De Renzis be adjourned sine die. 28 In this regard, the Respondent said that (at that stage) it fully expected that the adjournment would be granted by the UK courts, and that, accordingly, compliance with paragraph 5.1(b) of the Tribunal’s Order would be secured. 29 The Respondent says that even if Messrs Becchetti and De Renzis were to appear before an Albanian Court, Albanian prosecutors would not seek to remand them in custody and would not oppose bail on “reasonable bail conditions”. 30 These assurances, according to the Respondent, amount to a “guarantee” that Messrs Becchetti and De Renzis would not be jailed. 31 This should be sufficient to satisfy the Tribunal’s Order, according to the Respondent, because anything more (namely, suspension of the criminal proceeding) was not permitted by Albanian criminal procedure. 32

Alternatively, in these circumstances, the Respondent contends that it would be open to the Tribunal to find that the steps taken by the Respondent provide a compelling basis for the revocation of the Tribunal’s Order. This is because, the Respondent submits, the perceived risk that either Messrs Becchetti or De Renzis would not be able to participate in the arbitration by virtue of their prospective imprisonment disappears, 33 and there is no “separate basis” on which suspension ought to continue to be recommended by the Tribunal. 34

As to the Claimants’ Application, the Respondent says that, in respect of the criminal proceedings against Messrs Becchetti and De Renzis, if the Tribunal accepts its arguments regarding the revocation or modification of paragraph 5.1 of the Order, then the Claimants’ application for relief in the form of a partial award must (at least partially) fall away. 35 Even if the Tribunal is not minded to revoke or modify paragraph 5.1 of its Order, the Respondent says there is no proper basis to grant the Claimants the relief they seek.

First, the Respondent submits that there is no power for the Tribunal to grant a “partial” award under the ICSID Convention or the Arbitration Rules. 36

Second, the Respondent says that the Claimants’ request for US$250,000.00 per day as a penalty for non-compliance is misconceived. It says that, as a matter of principle, such relief can only be granted when there is loss suffered by the Claimants by virtue of any alleged breach of Art 47 of the ICSID Convention. 37 The Respondent says that the Claimants have provided no evidence of loss and in any event the Tribunal could not make such a finding on an “interim” basis (that is, without a trial). 38 The Respondent submits that the measures it has taken to seek an adjournment of the extradition proceedings sine die means that the monetary relief sought is wholly unnecessary.

As for the relief the subject of paragraph 5.2 of the Order, the Respondent submits that it is continuing to engage with the Claimants on seeking to preserve the Assets. 39 At that time, it was quite apparent from both Parties’ submissions that they disagreed on measures required to be taken by the Respondent under that paragraph of the Order, and that they were thus unable to agree in any substantial respect. Nevertheless, the Respondent submits that the exchanges of correspondence that occurred between the Parties’ practitioners between 10 March 2016 to 21 March 2016 show that the Respondent was prepared to engage in good faith in negotiations with the Claimants as to the best way to preserve the Assets. 40 As the Tribunal had allowed the Parties 60 days to come to an agreement in this respect, a date which (as at the date of both the Claimants’ and the Respondent’s Applications), had not yet elapsed, the Claimants’ Application was, in this regard, premature. 41 Further, the Respondent pointed to the fact that it was continuing to gather information from the Albanian authority in charge of administering the Assets as to whether or not the Claimants’ proposals could be met. 42

The Claimants’ Reply to the Respondent’s Application

On 18 April 2016, the Claimants submitted their Reply to the Respondent’s Application, and its comments on the Respondent’s Response.

The Claimants say that the Respondent’s Application should be denied on a summary basis, because it has not met the requirements that such an application must meet to succeed. 43

First, they say that the Respondent’s Application is a challenge of the Tribunal’s Order, not a “bona fide request for revocation or modification”. 44 The Claimants submit that such a challenge is essentially an appeal against the Tribunal’s Order, where there is no right to appeal or re-consideration under the ICSID Convention. 45 In this regard, the Claimants rely on various decisions, including the recent decision of an ICSID Tribunal in ConocoPhillips v Venezuela on an application for re-consideration. 46 The Claimants submit that the power must be “found to exist” before it can be exercised, which in this case, it cannot. 47 The Claimants submit that Rule 39(3) of the Arbitration Rules does not allow for re-consideration – it only permits revocation or modification when there are changed circumstances that justify amending the relief originally ordered. 48

Second, the Claimants say that the Respondent cannot satisfy the requirement discussed above that there must be “changed circumstances”. 49 The Claimants submit that Albania’s request that the extradition proceedings be adjourned sine die in the UK courts does not form a “changed circumstance”. It says that the mere postponement of the extradition proceedings with similar bail conditions in place for Messrs Becchetti and De Renzis would still mean that they would be subject to a curfew and unable to leave the UK. 50

The Claimants further say that the Respondent’s claim that it is unable to withdraw the extradition (as a matter of Albanian law) is extraordinary, describing it as “no more than a belated attempt to pay lip service to the Order while continuing to ignore it”. 51 The Claimants point to the fact that not once since the Claimants sought orders suspending the Albanian criminal proceedings against Messrs Becchetti and De Renzis did the Respondent indicate that its domestic criminal laws prevented it from doing so, until now. 52

Third, the Claimants say that the promise by the Respondent to impose “reasonable bail conditions” on Messrs Becchetti and De Renzis is of no comfort to the Claimants, contending that “when the Claimants are in Albania the Government can flout the Tribunal’s orders, and by the time measures are taken to restrain Albania, the damage to the Claimants’ rights will have been done”. 53

The Claimants also contend that the Respondent’s Application should be denied because it has not explained why revocation or modification of the Tribunal’s Order is urgent or necessary. The Respondent relies on a passage by the ICSID tribunal in the Lao Holdings where it was stated that a revocation “has to be based on changed circumstances, which make it urgent and necessary to adopt a new decision on provisional measures”. 54 The Claimants instead say that the circumstances show that it is urgent and necessary to keep in place the existing order, because: (i) Albania has indicated that it may reignite the extradition proceedings if the Tribunal’s order is revoked; and (ii) the procedural integrity of the arbitration is still affected by the criminal proceedings and the seizure of the Claimants’ investments. 55

Further, in their Reply, the Claimants press their request for a Partial Award or Order. The Claimants say that the requested relief (which was the subject of the Tribunal’s Order) continues to be urgent and necessary (as does the relief sought in its new Application), especially where a number of months have passed since the making of the Tribunal’s Order with what the Claimants say has been no attempt by the Respondent to comply. 56 The Claimants reject the Respondent’s contentions that it cannot withdraw, suspend or stay the criminal proceedings, arrest warrants or extradition requests under Albanian law, and point to different Albanian statutes which would allow such actions to occur on the part of the Respondent. 57 Furthermore, the Claimants reiterate that their request for relief in the form of a monetary penalty against the Respondent for non-compliance is proportionate, and only this kind of penalty will “seemingly compel compliance with this binding Order”. 58 The Claimants further reject the Respondent’s contention that the Tribunal is unable to render a “Partial Award”, because there is nothing in the ICSID Convention preventing it. 59 Finally, the Claimants say that, if the relief it seeks in its Application with respect to the Assets is granted by the Tribunal, it would provide an undertaking not to sell its shareholding in the relevant companies, to move any physical assets outside of Albania, and they would simply manage the relevant companies “in the ordinary course of business”. 60

The Respondent’s Rejoinder

The Respondent submitted its rejoinder on 10 May 2016. In it, the Respondent reiterates and elaborates on many of the points made in its Application.

At the outset, the Respondent informed the Tribunal that the UK court had refused to adjourn the extradition proceedings of Messrs Becchetti and De Renzis sine die.

Nevertheless, the Respondent submits that, far from the Claimants’ assertion that it had ignored the Tribunal’s Order, it was the Respondent who was seeking to constructively engage with the Claimants. 61 The Respondent submits that it is the Claimants who have ignored the Tribunal’s Order by making an “aggressive, unreasonable and hasty” application for a Partial Award, more than a month before the expiry of the 60-day period prescribed by the Order for the Parties to discuss the protection of the Assets. 62

The primary position taken by the Respondent in its Rejoinder is that there is no need for “changed circumstances” (as suggested is required by the Claimant) in order for the Tribunal to exercise its power to revoke or modify the award pursuant to Rule 39(3) of the Arbitration Rules. 63 The Respondent submits that “the Tribunal remains the master of its own process and is able to modify or revoke the PMO in light of further submissions made by the Parties about the reasoning adopted in it or indeed of its own motion”. 64 The Respondent says that there is no requirement in the text of Rule 39(3) that there be a change of circumstances; 65 the Tribunal’s discretion under Rule 39(3) is “wholly untrammelled” because of the juridical nature of an order for Provisional Measures, which (in contrast to a Final Award) does not carry the force of res judicata . 66

Further, the Respondent challenges the legal authorities cited by the Claimants in their Response.

The Respondent says that the Claimants’ reliance on the Lao Holdings case to import the requirement of “changed circumstances” is flawed because, in that case, the Tribunal proceeded on the basis of an express concession by the respondent State that it had to establish a change of circumstances in order for the provisional measures order to be modified. That is, put another way, neither party disputed that a change of circumstances was actually required. 67

The Respondent also challenges the Claimants’ reliance on the ConocoPhillips case because that case dealt with a request for re-consideration of a final award, not an order for provisional measures. 68 The Respondent submits that there is a clear difference between asking a Tribunal to re-visit a binding and final decision, and a party seeking revocation or modification of an interim order (and the Tribunal must be scrupulous in order not to prejudge the merits of the case itself). 69

Moving beyond the question of whether “changed circumstances” are required, the Respondent submits that there are nevertheless other “legal difficulties” with the Tribunal’s reasoning in the Order.

First, the Respondent submits that it was “difficult to see how” the management of Messrs Becchetti and De Renzis’ businesses (or, more accurately, the inability to manage those businesses) imperilled the procedural integrity of the arbitration, or, even assuming it did, how such inability could do so in a manner sufficient to make it absolutely necessary to grant provisional measures. 70

Second, insofar as the Tribunal’s reasoning for the Order was based on the justification that incarceration of Messrs Becchetti and De Renzis would prevent them from “fully participating” in the arbitration, and imperilling their right to procedural integrity, the Respondent submits that the reasoning was not fully explained in the Order, and therefore cannot be properly justified. 71 Specifically, it points to five criticisms:

While the Claimants stated that Albania cannot “re-argue” the arguments ventilated before the Order, 77 the Respondent says that it is not seeking to “re-argue” them, but rather it “has made submissions in response to the reasoning adopted by the Tribunal in the PMO, which Albania obviously only saw for the first time once the PMO was issued”. 78

The Respondent further says that if, contrary to its primary submissions, the Tribunal is not minded to modify or revoke the Order, then any provisional measure should last only until the end of the final hearing, or, at the latest, the date of post-hearing briefs and not until the date of the Final Award. 79 This submission is premised on the fact that there is nothing about which Messrs Becchetti and De Renzis need to instruct their counsel after the final hearing. Indeed, the post-hearing submissions do not require their input to analyse legal argument and oral and written evidence has already been submitted. 80

Further, the Respondent criticises the Order as being “unprecedented” in nature, and that it carries with it radical and extraordinary implications. 81 For that reason, the Respondent submits that the Tribunal “ought in principle be ready to reflect upon the validity of its reasoning and conclusions”, and “it remains incumbent upon the Tribunal to subject its unprecedented recommendations to close and continuing scrutiny”. 82

The Respondent says that, if the Tribunal is not minded to review the validity of its Order on the basis of the legal difficulties it presented (and which are summarised above), then the Tribunal should modify or revoke the Order owing to changed circumstances. 83

That changed circumstance is the decision of the Westminster Magistrates’ Court in the UK where the Home Office’s application to adjourn the extradition proceedings involving Messrs Becchetti and De Renzis sine die was rejected. The Respondent has submitted that it is “clear that the attitude of the English court is that the only way the English proceedings can be ‘suspended’ is in fact for them to be entirely withdrawn”. 84 In that regard, the Respondent says that the withdrawal of the extradition proceedings is not what the Order required, and Albania had attempted in good faith to comply with the Tribunal’s order to “suspend” the extradition proceedings by requesting the sine die adjournment. 85

In this regard, the Respondent again points to the fact that there is no provision of Albanian law that allows the Minister of Justice to withdraw an extradition request once made, and that, the issuance of arrest warrants gives rise to an obligation on the Albanian authorities to execute that arrest warrant. 86 Art 504 of the Albanian Code of Criminal Procedure provides the power for the Albanian Minister of Justice to request the extradition of a person from a foreign state. But the Respondent submits, contrary to what the Claimants said, this does not give the Minister of Justice a discretion to withdraw an extradition request. 87 In essence, the Respondent says that, in the absence of something that prevents the extradition proceedings to continue, as a matter of Albanian or international law, then there is no unfettered discretion for the Minister of Justice to simply withdraw the request. 88 While the Tribunal’s Order does give rise to an obligation on Albania under international law, the Respondent submits the ICSID Convention does not prescribe any mechanism for the Order to be recognised or enforced in Albanian law. 89 It follows that the Tribunal’s Order cannot affect the validity of the extradition request as a matter of Albanian law, leaving no discretion for the Minister of Justice to withdraw that request.

In all of these circumstances, and in what the Respondent explains is an attempt to address the concerns of the Tribunal, Albania offers a guarantee that if Messrs Becchetti and De Renzis were extradited to Albania, then Albanian prosecutors would not seek that they be remanded in custody, but instead be released on “reasonable bail conditions”. 90 This offer had been made by the Albanian Minister of Justice to the UK Home Office. 91 The effect would be that, upon arriving in Albania, Messrs Becchetti and De Renzis would spend a maximum of three days in custody before being brought before a court, where the prosecutor would ask the Albanian court to impose bail conditions which would allow Messrs Becchetti and De Renzis to be released from custody. 92 The Respondent says that the prosecutor is obliged to follow the guarantee given by the Minister of Justice and “must ask the Court to replace the existing security measures with the reduced security measures of reasonable bail”. 93 It follows that there is no risk that the Albanian court would not release Messrs Becchetti and De Renzis on bail, because Art 244(3) of the Albanian Code of Criminal Procedure provides that “the court cannot assign a remand order more severe than the one applied for by the prosecutor”. 94

In response to the Claimants’ position that the Claimants cannot now rely on the undertaking given by Albania, the Respondent says that when the Claimants originally sought provisional measures, they did not suggest that “Albania could not be trusted to comply with a tribunal’s order or undertaking”. The Respondent asserts that the Claimants have changed their position and that the Tribunal should consider the credibility of the Claimants’ avowed concerns about needing to be able to attend to their businesses in Albania. They add that it is now clear that neither Mr Becchetti nor Mr De Renzis intend to travel to Albania to attend to their investments, so the basis for the provisional order, by the Claimants’ own admission, falls away. 95

As to what it had previously described as an “inability” to comply with the Tribunal’s recommendation to suspend domestic criminal proceedings, 96 the Respondent contends that, under Albanian law, criminal proceedings as a whole cannot be suspended. 97 It points to Art 342 of the Code of Criminal Procedure which provides for uninterrupted criminal trials to be one of the main features for the conduct of criminal trials in Albania. 98 While the Respondent concedes that Art 343 of the Code provides for suspension, it only does so when the criminal case is dependent on the resolution of a civil proceeding or administrative dispute. 99 To the contrary, there is no dependency between this arbitration and the criminal proceedings against Messrs Becchetti and De Renzis. 100 The Respondent further says that any intervention by the Government in court processes is forbidden under the Albanian Constitution, so the Albanian Government, as much as it may wish to comply with the Order, cannot request either the Albanian court, or its prosecutors, to suspend the criminal proceedings. 101

Finally, the Respondent notes that although the domestic arrest warrants against Messrs Becchetti and De Renzis were not recommended to be withdrawn or suspended by the Tribunal’s Order, the Respondent says that it could not do so under Albanian law. 102 The Respondent says that, pursuant to Art 260(2) of the Code of Criminal Procedure , arrest warrants can only be modified or revoked when “security needs are lowered”. 103 The Respondent submits that “security needs” have not lowered because Messrs Becchetti and De Renzis are “actively evading the justice of the Albania courts”. 104

In all of these circumstances, the Respondent says that the “disappearance of any threat of incarceration” justifies the revocation of the Tribunal’s Order, and the fact that the domestic criminal proceedings have not been suspended does not justify the continuation of the Order. Those criminal proceedings do not pose a threat to the liberty of Messrs Becchetti and De Renzis. 105

At the Hearing, the Respondent was invited to make its submissions first, followed by the Claimant. Messrs Toby Landau QC and Siddarth Dhar made submissions on behalf of the Respondent, and Mr Phillipe Pinsolle and Mr Christopher Tahbaz for the Claimants. Messrs Ben Brandon and Julian Knowles QC, respectively counsel for the Respondent and Claimants in the UK extradition proceedings, were also present and assisted the Tribunal on occasion during the hearing.

The Respondent submitted that the Claimants had attempted to paint the Respondent’s Application as acting in bad faith, and “seeking to run away” from the Tribunal’s Order, neither of which were true. 106 Rather, there was no element of bad faith in asking the Tribunal to exercise a power that it has as a matter of the ICSID Rules. 107 The Respondent further submitted that it has in good faith tried to comply with the Tribunal’s order. 108 The Respondent rejected any notion by the Claimants that the request for an adjournment of the extradition proceedings was for a “tactical reason” to prolong the bail conditions of Messrs Becchetti and De Renzis. 109 The Respondent further submitted that Albania has not acted in bad faith in failing to suspend the criminal proceedings against Messrs Becchetti and De Renzis in Albania because there have been great efforts to accommodate what the Respondent says is an “unprecedented” and “extraordinary” order in a domestic legal system. 110 The Respondent further pointed out that, while it has tried to accommodate the Tribunal’s Order, the continuance, or more accurately, existence, of the criminal proceedings in Albania has posed no difficulty to the Claimants whatsoever (i.e. those proceedings have not stopped them in any way from doing anything in this arbitration). 111 The Respondent also pointed to the fact that the Claimants filed an extensive memorial submission on 13 May 2016 as an example of their ability to engage in the arbitral proceeding. 112

The Respondent, at the request of the Tribunal, made submissions regarding the undertaking given by the Albanian Minister for Justice not to seek to remand Messrs Becchetti and De Renzis in custody in Albania, which had been given the UK extradition proceedings. The Respondent confirmed that it was an undertaking given by Albania to the UK, specifically the UK Home Office. 115

The Respondent submitted that if the Tribunal did not agree that it should revoke its Order without changed circumstances, and those changed circumstances concerned an undertaking given by the Albanian Minister for Justice not to incarcerate Messrs Becchetti and De Renzis, then it would be open to the Tribunal to outline what it required to “have confidence and comfort” in revoking or modifying the Order. 116

When asked to deal with the difficulty that might arise with the ability for Messrs Becchetti and De Renzis to properly prosecute this arbitration if they were sitting in a jail cell in Albania, counsel for the Respondent submitted that “the criminal proceedings going ahead in Albania themselves will have no impact on the ability to prosecute this arbitration on any view”. 117 Counsel for the Respondent then pointed out that, despite the pendency and even continuation of those criminal proceedings in Albania, the Claimants had managed to file their Memorial of 13 May without difficulty. 118 In answer to the proposition that Messrs Becchetti and De Renzis are not currently in jail, and thus it is unsurprising that they have been able to properly prosecute their claims in this arbitration to date, 119 counsel submitted that “the criminal proceedings [in Albania] can continue and the extradition proceedings could be stopped. The two may depend on each other, but they are not both necessary”. 120 Counsel for the Respondent further explained that “the Tribunal could have made an order which was simply focused upon the extradition proceedings, not the criminal proceedings”. 121 On that basis, the Respondent submitted that there was “no justification, in terms of procedural integrity, to stop the domestic criminal proceedings in Albania”, 122 and all that was required from the Tribunal was an order suspending the extradition proceedings. 123 In relation to the hypothetical scenario that Messrs Becchetti and De Renzis could go to a third state and Albania could then seek extradition from that third state, 124 counsel explained that “the idea that every extradition process around the world can be suspended on this basis, that there can be an incursion of sovereignty of that extent, is totally unprecedented and takes away all the discretions that are built into the system for each country to consider itself how it proceeds”. 125

The Respondent’s position was that the undertaking Albania was prepared to offer was essentially the same undertaking that was made by the Albanian Minister for Justice in the extradition proceedings. 126 Having been questioned by the Tribunal on this issue, counsel for the Respondent requested an opportunity to provide further written submissions on this particular issue so as to not misconstrue Albanian law. 127

As to the Claimants’ application, the Respondent submitted that the Tribunal should not make the order sought by the Claimants. 128 The Respondent submitted that, amongst other things, there was no need to grant the application where Albania has been making good faith attempts to implement the Tribunal’s Order. 129 The Respondent submitted that the question that had to be asked by the Tribunal when considering whether or not to grant the Claimants’ application was “ha[s Albania] acted in bad faith such that [the Tribunal] should warrant now this extraordinary penal order?”. 130 The Respondent submitted that in circumstances where Albania has been “trying to work with the Tribunal … this is not a situation where it is now appropriate to slap an order or decision on [Albania] to say that [Albania is] in breach, with a day-by-day penalty”. 131

The Respondent also addressed the Tribunal regarding the orders sought by the Claimants in respect of the Assets. In this regard, the Respondent emphasised that the Tribunal had invited Albania to confer with the Claimants and “seek to agree appropriate measures to be taken by the Republic of Albania” to preserve the Assets. 132 The Respondent said the relief sought by the Claimants in this respect should be dismissed for three reasons.

First, the Respondent said that the basis of the Claimants’ application, which was that the Respondent had not engaged with the Claimants’ proposals to “preserve” the Assets, was misconceived. 133 The Respondent referred the Tribunal to correspondence between the Parties which it said demonstrated otherwise. 134 That correspondence, the Respondent submitted, showed that the Respondent’s counsel was still receiving instructions as to how to address the Claimants’ “precise concerns” regarding the preservation of Assets. 135 The Respondent also submitted that the Claimants’ application was premature, because the Tribunal’s Order prescribed a 60-day time limit in which the Parties were to confer and agree, which had not expired by the time the Claimants’ Application was made. 136

Second, the Respondent submitted that Albania had “done everything necessary to comply” with the terms of the Tribunal’s directions at paragraphs 5.2 and 5.3 of its Order. 137 The Respondent submitted that “there is no allegation that shareholdings have been diluted; there is no allegation that bank accounts have been dissipated; there is no allegation that assets have been left in a warehouse to rot”, and thus, when considering the precise terms of paragraph 5.2 of the Order, it could not be said that Albania has breached that order. 138

Third, the Respondent contended that, even if the Tribunal did not accept that the Respondent had complied with paragraphs 5.2 and 5.3 of its Order, then the Claimants have stated in their recently-filed Memorial that those Assets no longer exist, 139 so there could be no urgency supporting the grant of provisional measures to protect them.

The Claimants submitted that the Respondent’s characterisation of the issue before the Tribunal as being a question of whether or not the Respondent had acted in bad faith or good faith was not relevant, and that the question of good faith was not the test to be applied by the Tribunal. 140 Rather, what is required to be examined is compliance with the Tribunal’s Order, which is what the Claimants submitted their Application was predicated upon. 141

The Claimants submitted during their opening that they were now seeking an indemnification for the Assets, some of which had now been expropriated and could not be returned. 142 When asked to clarify their position regarding the relief sought, the Claimants confirmed that they were seeking full compensation in the merits aspect of this arbitration, but also a penalty against the Respondent for non-compliance with the Tribunal’s Order. 143 The Claimants confirmed that the penalty and the award of damages it sought would be “in parallel”, so that the penalty would be deducted from the calculation of damages (presumably, so as not to receive double compensation, or a pecuniary penalty, as the case may be). 144

The Claimants also addressed the Tribunal on the Respondent’s compliance with the suspension of the extradition proceedings. The Claimants submitted that UK Magistrates’ Court had not been inclined to grant the Home Office’s application to adjourn sine die because it did not wish to leave the matter “in limbo”. 145 As at the stage of the oral hearing, the Parties informed the Tribunal that the judgment of Judge Tempia as to the extradition application of Messrs Becchetti and De Renzis was expected to be delivered on 8 July 2016.

Counsel for the Claimants also made submissions regarding two documents relating to the conditions of Albanian prisons that were submitted to the Tribunal, without leave, on 10 June 2016. 146 The Tribunal decided against admitting these documents and, as such, it is unnecessary to dwell on these submissions further.

The Claimants addressed the Respondent’s contention that there was no mechanism under Albanian law by which to suspend the Albanian criminal proceedings, contending that in the extradition proceedings before Judge Tempia, the Claimants had tendered an expert report of an expert in Albanian law which demonstrated that the Albanian Minister for Justice does have a discretion to suspend an extradition request. 147 The Tribunal noted that whilst that report was not in evidence in this arbitration, the question of whether or not the Albanian minister can suspend the extradition request was likely to be a question answered by Judge Tempia. 148 Mr Brandon, Albania’s counsel in the extradition proceedings, agreed that those were the questions that Judge Tempia would decide, but said that they would not necessarily be decided on 8 July 2016, when judgment from that court was expected. 149

The Claimants also made submissions regarding the difficulties they perceived in relation to the undertaking given by the Albanian Minister of Justice to the Home Office (and presumably, any similar undertaking to the Tribunal) not to imprison Messrs Becchetti and De Renzis. In this regard, the Claimants emphasised paragraphs 46 to 48 of the Respondent’s Rejoinder, and specifically on the word “ask” (i.e. that the Albanian authorities would ask the Albanian courts not to imprison Messrs Becchetti and De Renzis). 150 The Claimants further submitted that “reasonable bail conditions” quoted in the Albanian Minister’s undertaking was an “abstract concept”, and that it is not known what an Albanian court might regard as “reasonable bail conditions”. 151 When pressed by the Tribunal as to whether or not the Claimants would ever accept any undertaking given by the Respondent as acceptable, the Claimants submitted that it would not “rule out this possibility”. 152

The Claimants then turned to the Respondent’s Application more generally. They contended that it was nothing more than an interlocutory appeal. 153 An appeal of this nature is not authorised under the ICSID Convention, nor the Arbitration Rules. 154 The Claimants pointed out that “Albania had a full and fair opportunity to participate [in the hearing on provisional measures], where there were hundreds of pages of written submissions, where Albania was represented by its choice of counsel, during a hearing to which it agreed”. 155 The Claimants submitted that Albania’s dissatisfaction with the Tribunal’s reasoning was not a basis to “re-open issues that this Tribunal has fully considered and decided”. 156

The Claimants conceded that the ICSID Convention and the Rules are each silent as to the circumstances under which an application for revocation or modification can be made, but submitted that, contrary to the Respondent’s submission that it is incumbent upon the Tribunal to subject its Order to continuing scrutiny, there must be changed circumstances in order to allow a consideration of revocation or modification. 157

Accepting that changed circumstances are required to allow revocation or modification of the Tribunal’s Order, the Claimants contended that there were no changed circumstances in this case, nor was it necessary or urgent to modify or revoke the Order. 158 The Claimants submitted that the dual requirement (namely that there be both changed circumstances, and that it be urgent and necessary to revoke) was derived from the Lao Holdings case. 159 Without the requirement of changed circumstances (that is, “an objective justification”), the Claimants submitted that one would be left with a system of unlimited appeal. 160

The Claimants further contended that Albania’s assurances of compliance, and in particular, its claim that it had complied with the Tribunal’s Order regarding the suspension of the extradition proceedings (or at least, attempted suspending), did not constitute changed circumstances. 161

The Claimants also focused the Tribunal’s attention to the question of why Albania did not raise its inability to suspend the extradition or criminal proceedings during the earlier Provisional Measures hearing, when it knew it could be faced with such an order. 162 The Claimants submitted that the inference that can be drawn from this is that there is no merit to the argument that Albania is unable to comply with the Order. 163

Finally, the Claimants focused on Albania’s undertaking not to seek that Messrs Becchetti and De Renzis be remanded in custody if they were to be extradited. The Claimants submitted that the Respondent was not being “genuine and honest” in giving this undertaking, because, on the one hand, it had stated that it was committed not to imprison Messrs Becchetti and De Renzis, but, on the other hand, it is “fighting tooth and nail to get rid of” the Order. 164

After the hearing, the Parties were each directed to file post-hearing submissions, to which the Tribunal now turns.

The Respondent submitted its Post Hearing Submission on 29 June 2016, accompanied by

In light of this dispute, the Tribunal had to determine whether to admit this opinion. It determined to do so. The Tribunal turns to consider Professor Rakipi’s opinion (and that of the Claimants’ expert as to Albanian law) at paragraphs 2.95–2.101 below.

The Respondent then makes submissions on the three relevant questions, namely:

The Respondent describes the undertakings as “promises”, rather than undertakings, explaining that, as a matter of Albanian legal language, it was appropriate to do so. 166 In fact, the terms “undertakings” and “promises” seemed to be used interchangeably in both Parties’ submissions, and the Tribunal herein adopts the language used by the Parties depending on the particular submission or point made.

The Respondent relies on promises that have already been made in the form of the 5 April 2016 letter from the Minister of Justice to the Home Office 167 and a letter from the Albanian Prosecution Office dated 14 June 2016. 168 Further, it relies on the letter from the Prosecutor General’s Office dated 29 June 2016, 169 which it submits confirms that (i) the Prosecutor and Albanian Court are obliged to comply with the “promise” made by the Albanian Minister of Justice; (ii) Messrs Becchetti and De Renzis would be held in custody for a maximum of three days from their arrival in Albania before they are brought before an Albanian court for “processing”; (iii) Messrs Becchetti and De Renzis will thereafter be released on “reasonable bail conditions”; and (iv), once they have appeared before the Albanian court, their arrest warrants will be satisfied. 170

The Respondent refers to letters from the State Advocate’s Office that confirm, amongst other things, that the Minister for Justice abides by the undertakings made in the 5 April 2016 letter to the Home Office, which are “legitimated by implementation of Article 504/2 of the Code of Criminal Procedure”. 171 The Respondent further submits that as a matter of international law, those promises remain binding on Albania because:

The Respondent points to the decision of the International Court of Justice in the Nuclear Tests Case , whereby the Court stated:

The Respondent concedes that its previous reliance on Art 504(2) of the Albanian Criminal Procedural Code to suggest that the Minister for Justice’s promise in the letter to the Home Office was binding is now “a matter of some uncertainty under Albanian law”. 174 However the Respondent relies on the opinion of Professor Rakipi, its Albanian law expert, that “the Minister is bound where he has made promises as to how the Defendants will be treated if extradited” despite the situation not being “expressly envisaged in the law”. 175

The Respondent submits that the Minister for Justice considers himself bound by the promises made in the extradition proceedings, but could make those same promises or undertakings to the Tribunal because they do not relate to the “framework of the extradition proceedings” and Albanian law does not provide for any valid undertakings to be made outside the extradition proceedings. 176

As a reason why this Tribunal should be satisfied that the Minister will keep his word, the Respondent submits that by not doing so would have “very severe repercussions” for Albania in these proceedings, and also for its bilateral relationship with the UK. 177

Turning to how the “promises” made by the Minister of Justice are binding on Albanian prosecutors and courts, the Respondent relies on Art 51(2) of Law 10193 178 and Art 504(2) of the Code of Criminal Procedure , 179 which, in combination, mean that the Minister’s confirmation or acceptance of the promises previously made to the Home Office is binding upon both prosecutors and courts. 180

On 8 July 2016, the Claimants submitted their response to the Respondent’s Post Hearing Submission (the “Claimants’ Post-Hearing Submission”). This was submitted on the same day that the Judgment was handed down. The Claimants’ Post-Hearing Submission was accompanied by an opinion by Mr Arben Qeleshi which largely addressed the opinion of Professor Arben Rakipi. That, too, was admitted into evidence. The Tribunal separately summarises Mr Qeleshi’s opinion (together with Professor Rakipi’s opinion) at paragraphs 2.95–2.101 below.

The Claimants emphasise that the Respondent would not (or could not, as the case may

The Claimants submit that the “promises” given by Albania to the UK authorities (given that they cannot be characterised as undertakings and are not described by the Respondent as such) do not bind Albania, Albanian courts, or Albanian prosecutors. 185 The Claimants reject the claim that the promises are binding as a matter of international law, because “Albania’s Minister of Justice evinces no intention to be bound by his April 5 letter”. 186 The Claimants also point to the apparent contradiction between the Respondent maintaining that the promises have a binding effect under Albanian law (by virtue of their binding nature under international law), but that the Tribunal’s Order does not enjoy a similar binding effect under Albanian law. 187

The Claimants submit that the Respondent’s promises do not bind the Albanian courts and its prosecutors. 188 The Claimants point to two matters in support. First, they say that (as the Minister has admitted) Art 504(2) does not provide a legal basis for the binding nature of the undertaking under Albanian law. Second, the Claimants say that Albania’s reliance on Law 10193 189 is equally flawed. In this regard, the Claimants rely on the opinion of Mr Qeleshi (which is summarised below), specifically because neither Law 10193 nor Art 504(2) of the Code on Criminal Procedure provide a basis for the “promises” to be binding under Albanian law. 190

The Claimants further submit that the promises made by the Albanian Minister are not binding before the English courts. The Claimants submit that the issue of bail in Albania (and, presumably, any promises made regarding bail) is irrelevant to the extradition process in the UK. 191 The Claimants submit that under the Extradition Act 2003 (UK), the presiding judge must send an application for extradition to the UK Secretary of State, who is obliged to order extradition unless certain narrow circumstances exist (none of which are applicable in this case). 192 The Claimants contend that neither the Judge nor the Secretary of State will be concerned with the question of bail in Albania after Messrs Becchetti and De Renzis are extradited. 193

The Claimants also contend that Albania’s promise that Messrs Becchetti and De Renzis will be allowed to travel freely to and from Albania once they are released on bail is illusory. The Claimants draw the Tribunal’s attention to the fact that the guarantee of free travel to and from Albania is not covered by any promise or undertaking by the Albanian Minister of Justice – rather, it was only made by way of submission in the Respondent’s submission of 10 May 2016, and the Respondent does not explain why this representation is binding. 194 Further, the Claimants contend that Albania does not explain how it would withdraw international arrest warrants and an Interpol “Red Notice” against Messrs Becchetti and De Renzis. 195 The Claimants pose the question why Albania would continue to seek the extradition of Messrs Becchetti and De Renzis only to release them again, and says that such a position “flies in the face of the very purposes of extradition, which is to force a defendant to return to a State in which he is to be tried in order to stand trial”. 196 The Claimants contend that even if Messrs Becchetti and De Renzis were granted bail, they would be obliged to appear in Albania at “Albania’s volition”, due to the operation of Art 353 of the Code of Criminal Procedure . 197

The Claimants also press the argument that the Respondent has failed to address any of the Tribunal’s queries contained in its letter of 16 June 2016 following the oral hearing in this matter. In particular, the Claimants stress that the Respondent has given no undertaking to the Tribunal (especially given that the Tribunal’s letter of 16 June 2016 specifically asked: “who will make the undertaking(s) and in what form will it be made to the Tribunal”). 198 The Claimants say that the reasons proffered by the Respondent as to why it cannot make the undertakings directly to the Tribunal are flawed. First, the Claimants say that given the Respondent has effectively admitted that the undertaking made by the Minister to the Home Office in his letter of 5 April 2016 was not made pursuant to Art 504(2) of the Code on Criminal Procedure , then it could not bear a relationship to the extradition proceedings. 199 The Claimants ask: given that those undertakings bear no “legal” relationship to the extradition proceedings, why can the Minister of Justice make the undertakings to the Westminster Magistrates’ Court, but not the Tribunal? 200 Second, the Claimants submit that, if the Minister of Justice cannot provide the undertakings to the Tribunal (as the Respondent claims the Minister cannot), then why are Albanian officials other than the Minister of Justice unable to make such an undertaking? 201

The Claimants also point out that the “reasonable bail conditions” promised by the Respondent have not been fully explained to them and remain an “abstract concept”. 202 The Claimants say that the Tribunal should draw “the necessary conclusions” – namely, an adverse inference – from Albania’s silence on this point. 203

Finally, the Claimants contend that Albania has not adequately addressed how the promises made by the Minister to the Home Office would be implemented. The Claimants attack the Respondent’s submission that the promise would be binding on it as a matter of international law because such a contention is “disingenuous in light of Albania’s position that the Tribunal’s Order on Provisional Measures is binding upon it, but that it nevertheless cannot be implemented under its own law”. 204 Specifically, the Claimants submit that the Respondent fails to explain why the Minister’s promises must be implemented immediately by its governmental organs, but not the Tribunal’s Order.

The Opinions of Professor Arben Rakipi and Mr Arben Qeleshi

As already noted, Professor Arben Rakipi has been put forward as an expert on Albanian law by the Respondent, while Mr Arben Qeleshi has been put forward by the Claimants.

Professor Rakipi is a Professor of Criminal Law at the Tirana Magistrates School, and was a former Judge of different courts in Albania. His opinion was sought by counsel for the Respondent for the purposes of this arbitration. His report is structured in such a way as to address various questions posed of him by counsel from the Respondent.

Mr Qeleshi’s experience includes, but is not limited to, working as a Prosecutor for the Attorney General’s office, and serving as a Magistrate for seven years. Mr Qeleshi was asked to address the same questions put to Professor Rakipi, and also to address the answers provided by Professor Rakipi.

Question 1: Professor Rakipi was asked whether or not the Minister for Justice would be obliged to comply with an undertaking given by him to the English extradition courts if the extradition court did not impose on Albania those conditions given in the undertaking. 205

Questions 3 & 4: Professor Rakipi is asked whether an undertaking given by the Minister of Justice is binding on an Albanian Court as a matter of practice in Albanian criminal procedure. Professor Rakipi is separately asked to confirm the authority for his answers.

Conclusions: It is of assistance to set out both Professor Rakipi and Mr Qeleshi’s conclusions out in full:

PART I: INTRODUCTION AND SUMMARY OF DECISION

Introduction

Summary of Decision

PART II: THE PARTIES’ SUBMISSIONS

The Claimants’ Application

The Claimants submitted their Application on 25 March 2016.

The Claimants submit that the Respondent has openly defied the authority of the Tribunal by refusing to comply with the Tribunal’s Order. 4 The Claimants further contend that it is not for the Respondent to decide when, and if, it will comply with the Tribunal’s Order and that “[i]t is indeed beyond dispute that orders of provisional measures issued pursuant to Article 47 of the ICSID Convention create a binding ‘legal obligation’ on the parties”. 5 The Claimants say that the Tribunal’s Order is immediately binding, and that the Respondent cannot purport to reserve its rights because it has no rights to reserve. The Claimants further say that Art 47 does not provide for a vehicle for re-consideration of substantive decisions of the Tribunal on provisional measures. 6

As a consequence of the Tribunal’s Order, the Claimants also contend that the Respondent must return control of the companies that are subject to sequestration orders made by the Albanian prosecutorial authorities and unfreeze those companies’ bank accounts. 7 The Claimants say that the Respondent cannot delay this further on the basis that it is “currently gathering information in relation to the assets ”, as the Respondent stated in its letter of 21 March 2016. 8

Accordingly, the Claimants request a partial award or an order from the Tribunal addressing the Respondent’s refusal to comply with the Tribunal’s Order. The Claimants submit that the Tribunal should impose a penalty against the Respondent of US$250,000.00 for each day of non-compliance, and submits that this Tribunal has the power to impose such a penalty. 9

The Claimants also request further provisional measures be made by the Tribunal regarding the orders made by the Tribunal at paragraph 5.3 of the Order, whereby the Tribunal invited the Parties to confer and agree as to appropriate steps to be taken by Albania to preserve the Assets. The further provisional measures the Claimants now request are as follows:

At this juncture, it should be noted that the Claimants have requested relief in respect of the company “Fuqi Sh.p.k”, however this company was never contemplated by the Tribunal’s (original) Order.

The Respondent’s Application

The Respondent responded to the Claimants’ Application, and submitted its own Application on 5 April 2016.

The Respondent submits that the Tribunal’s Order made “unjustified and disproportionate inroads” upon Albania’s sovereignty. 11 The Respondent says that the original relief sought by the Claimants was “intended to derail” long-running criminal prosecutions brought against individuals charged with very serious offences, and that against this background any ICSID Tribunal that was invited to interfere had to do so with the “utmost care”. 12 The Respondent says it is appropriate for it to request that the Tribunal reconsider its Order.

The Respondent says that the Tribunal “plainly” has the power under Rule 39(3) of the ICSID Arbitration Rules to revoke or modify its recommendations in its order “at any time”. 13 Further, it says that this power is without restriction. 14 The Respondent relies on the dicta of the Tribunal in Victor Pey Casado v Republic of Chile , which said of provisional measures:

The Respondent does not dispute the test adopted by the Tribunal in determining whether or not an interference with the exercise of a State’s sovereign rights is justified. Rather, it takes issue with the Tribunal’s application of that test in the circumstances. 16

The Respondent contends that the Tribunal did not clearly identify the nature of the right to procedural integrity, nor provide sufficient reasons as to why the incarceration of Messrs Becchetti and De Renzis would infringe that right. 17 The Respondent concedes that the right to procedural integrity allows the Tribunal to “police its own process, so as to ensure the proper functioning of the dispute settlement procedure and the orderly unfolding of the arbitration process”, but the ability of Messrs Becchetti and De Renzis to “effectively manag[e] their businesses” (as stated by the Tribunal at paragraph 3.18 of the Order) is “surely irrelevant”. 18

Indeed, the Respondent submits that the Tribunal’s Order left a number of important questions unanswered, such as which businesses the Tribunal considered would be affected by the potential incarceration of Messrs Becchetti and De Renzis and what role they played in those businesses. 19 Similarly, the Respondent submits that the Tribunal’s concerns regarding Messrs Becchetti and De Renzis’ “full participation” in the arbitration were not properly reasoned. 20 The Respondent submits that the Tribunal justified its recommendation to suspend the criminal proceedings against Becchetti and De Renzis on the basis that the recommendation only “merely postpone[d]” the proceedings, not cancelled them entirely. 21 That is, the Tribunal’s approach is to countenance “any ICSID claimant fearing arrest to stop local criminal proceedings … provided he makes sure to ask only for a stay of those proceedings”. 22 The Respondent contends that the Tribunal’s decision in this respect was “out of step” with the “concept of procedural integrity” adopted in the cases of Quiborax 23 and Lao Holdings. 24

Further, the Respondent contends that the Tribunal’s Order did not engage with the question of whether it had jurisdiction to “step-in” and “short-circuit” the investigation which the UK courts were themselves undertaking, namely whether extradition was justified. It followed, so the Respondent contends, that “this Tribunal must have considered that it (rather than the English court) was the appropriate forum for the deliberation and determination of the issues raised by the Claimants”. 25

Further, the Respondent submits that the duration of the recommendations by the Tribunal is “excessive and disproportionate” and there is no reason for the “restraint imposed by the PMO to last until the Award in this matter”. 26

Notwithstanding these complaints the Respondent says that it has nevertheless “actively sought to engage with the Tribunal’s recommendations”. 27 The Respondent says that its Minister of Justice wrote to the UK’s Home Office asking that they make an application to the UK courts that the extradition proceedings against Messrs Becchetti and De Renzis be adjourned sine die. 28 In this regard, the Respondent said that (at that stage) it fully expected that the adjournment would be granted by the UK courts, and that, accordingly, compliance with paragraph 5.1(b) of the Tribunal’s Order would be secured. 29 The Respondent says that even if Messrs Becchetti and De Renzis were to appear before an Albanian Court, Albanian prosecutors would not seek to remand them in custody and would not oppose bail on “reasonable bail conditions”. 30 These assurances, according to the Respondent, amount to a “guarantee” that Messrs Becchetti and De Renzis would not be jailed. 31 This should be sufficient to satisfy the Tribunal’s Order, according to the Respondent, because anything more (namely, suspension of the criminal proceeding) was not permitted by Albanian criminal procedure. 32

Alternatively, in these circumstances, the Respondent contends that it would be open to the Tribunal to find that the steps taken by the Respondent provide a compelling basis for the revocation of the Tribunal’s Order. This is because, the Respondent submits, the perceived risk that either Messrs Becchetti or De Renzis would not be able to participate in the arbitration by virtue of their prospective imprisonment disappears, 33 and there is no “separate basis” on which suspension ought to continue to be recommended by the Tribunal. 34

As to the Claimants’ Application, the Respondent says that, in respect of the criminal proceedings against Messrs Becchetti and De Renzis, if the Tribunal accepts its arguments regarding the revocation or modification of paragraph 5.1 of the Order, then the Claimants’ application for relief in the form of a partial award must (at least partially) fall away. 35 Even if the Tribunal is not minded to revoke or modify paragraph 5.1 of its Order, the Respondent says there is no proper basis to grant the Claimants the relief they seek.

First, the Respondent submits that there is no power for the Tribunal to grant a “partial” award under the ICSID Convention or the Arbitration Rules. 36

Second, the Respondent says that the Claimants’ request for US$250,000.00 per day as a penalty for non-compliance is misconceived. It says that, as a matter of principle, such relief can only be granted when there is loss suffered by the Claimants by virtue of any alleged breach of Art 47 of the ICSID Convention. 37 The Respondent says that the Claimants have provided no evidence of loss and in any event the Tribunal could not make such a finding on an “interim” basis (that is, without a trial). 38 The Respondent submits that the measures it has taken to seek an adjournment of the extradition proceedings sine die means that the monetary relief sought is wholly unnecessary.

As for the relief the subject of paragraph 5.2 of the Order, the Respondent submits that it is continuing to engage with the Claimants on seeking to preserve the Assets. 39 At that time, it was quite apparent from both Parties’ submissions that they disagreed on measures required to be taken by the Respondent under that paragraph of the Order, and that they were thus unable to agree in any substantial respect. Nevertheless, the Respondent submits that the exchanges of correspondence that occurred between the Parties’ practitioners between 10 March 2016 to 21 March 2016 show that the Respondent was prepared to engage in good faith in negotiations with the Claimants as to the best way to preserve the Assets. 40 As the Tribunal had allowed the Parties 60 days to come to an agreement in this respect, a date which (as at the date of both the Claimants’ and the Respondent’s Applications), had not yet elapsed, the Claimants’ Application was, in this regard, premature. 41 Further, the Respondent pointed to the fact that it was continuing to gather information from the Albanian authority in charge of administering the Assets as to whether or not the Claimants’ proposals could be met. 42

The Claimants’ Reply to the Respondent’s Application

On 18 April 2016, the Claimants submitted their Reply to the Respondent’s Application, and its comments on the Respondent’s Response.

The Claimants say that the Respondent’s Application should be denied on a summary basis, because it has not met the requirements that such an application must meet to succeed. 43

First, they say that the Respondent’s Application is a challenge of the Tribunal’s Order, not a “bona fide request for revocation or modification”. 44 The Claimants submit that such a challenge is essentially an appeal against the Tribunal’s Order, where there is no right to appeal or re-consideration under the ICSID Convention. 45 In this regard, the Claimants rely on various decisions, including the recent decision of an ICSID Tribunal in ConocoPhillips v Venezuela on an application for re-consideration. 46 The Claimants submit that the power must be “found to exist” before it can be exercised, which in this case, it cannot. 47 The Claimants submit that Rule 39(3) of the Arbitration Rules does not allow for re-consideration – it only permits revocation or modification when there are changed circumstances that justify amending the relief originally ordered. 48

Second, the Claimants say that the Respondent cannot satisfy the requirement discussed above that there must be “changed circumstances”. 49 The Claimants submit that Albania’s request that the extradition proceedings be adjourned sine die in the UK courts does not form a “changed circumstance”. It says that the mere postponement of the extradition proceedings with similar bail conditions in place for Messrs Becchetti and De Renzis would still mean that they would be subject to a curfew and unable to leave the UK. 50

The Claimants further say that the Respondent’s claim that it is unable to withdraw the extradition (as a matter of Albanian law) is extraordinary, describing it as “no more than a belated attempt to pay lip service to the Order while continuing to ignore it”. 51 The Claimants point to the fact that not once since the Claimants sought orders suspending the Albanian criminal proceedings against Messrs Becchetti and De Renzis did the Respondent indicate that its domestic criminal laws prevented it from doing so, until now. 52

Third, the Claimants say that the promise by the Respondent to impose “reasonable bail conditions” on Messrs Becchetti and De Renzis is of no comfort to the Claimants, contending that “when the Claimants are in Albania the Government can flout the Tribunal’s orders, and by the time measures are taken to restrain Albania, the damage to the Claimants’ rights will have been done”. 53

The Claimants also contend that the Respondent’s Application should be denied because it has not explained why revocation or modification of the Tribunal’s Order is urgent or necessary. The Respondent relies on a passage by the ICSID tribunal in the Lao Holdings where it was stated that a revocation “has to be based on changed circumstances, which make it urgent and necessary to adopt a new decision on provisional measures”. 54 The Claimants instead say that the circumstances show that it is urgent and necessary to keep in place the existing order, because: (i) Albania has indicated that it may reignite the extradition proceedings if the Tribunal’s order is revoked; and (ii) the procedural integrity of the arbitration is still affected by the criminal proceedings and the seizure of the Claimants’ investments. 55

Further, in their Reply, the Claimants press their request for a Partial Award or Order. The Claimants say that the requested relief (which was the subject of the Tribunal’s Order) continues to be urgent and necessary (as does the relief sought in its new Application), especially where a number of months have passed since the making of the Tribunal’s Order with what the Claimants say has been no attempt by the Respondent to comply. 56 The Claimants reject the Respondent’s contentions that it cannot withdraw, suspend or stay the criminal proceedings, arrest warrants or extradition requests under Albanian law, and point to different Albanian statutes which would allow such actions to occur on the part of the Respondent. 57 Furthermore, the Claimants reiterate that their request for relief in the form of a monetary penalty against the Respondent for non-compliance is proportionate, and only this kind of penalty will “seemingly compel compliance with this binding Order”. 58 The Claimants further reject the Respondent’s contention that the Tribunal is unable to render a “Partial Award”, because there is nothing in the ICSID Convention preventing it. 59 Finally, the Claimants say that, if the relief it seeks in its Application with respect to the Assets is granted by the Tribunal, it would provide an undertaking not to sell its shareholding in the relevant companies, to move any physical assets outside of Albania, and they would simply manage the relevant companies “in the ordinary course of business”. 60

The Respondent’s Rejoinder

The Respondent submitted its rejoinder on 10 May 2016. In it, the Respondent reiterates and elaborates on many of the points made in its Application.

At the outset, the Respondent informed the Tribunal that the UK court had refused to adjourn the extradition proceedings of Messrs Becchetti and De Renzis sine die.

Nevertheless, the Respondent submits that, far from the Claimants’ assertion that it had ignored the Tribunal’s Order, it was the Respondent who was seeking to constructively engage with the Claimants. 61 The Respondent submits that it is the Claimants who have ignored the Tribunal’s Order by making an “aggressive, unreasonable and hasty” application for a Partial Award, more than a month before the expiry of the 60-day period prescribed by the Order for the Parties to discuss the protection of the Assets. 62

The primary position taken by the Respondent in its Rejoinder is that there is no need for “changed circumstances” (as suggested is required by the Claimant) in order for the Tribunal to exercise its power to revoke or modify the award pursuant to Rule 39(3) of the Arbitration Rules. 63 The Respondent submits that “the Tribunal remains the master of its own process and is able to modify or revoke the PMO in light of further submissions made by the Parties about the reasoning adopted in it or indeed of its own motion”. 64 The Respondent says that there is no requirement in the text of Rule 39(3) that there be a change of circumstances; 65 the Tribunal’s discretion under Rule 39(3) is “wholly untrammelled” because of the juridical nature of an order for Provisional Measures, which (in contrast to a Final Award) does not carry the force of res judicata . 66

Further, the Respondent challenges the legal authorities cited by the Claimants in their Response.

The Respondent says that the Claimants’ reliance on the Lao Holdings case to import the requirement of “changed circumstances” is flawed because, in that case, the Tribunal proceeded on the basis of an express concession by the respondent State that it had to establish a change of circumstances in order for the provisional measures order to be modified. That is, put another way, neither party disputed that a change of circumstances was actually required. 67

The Respondent also challenges the Claimants’ reliance on the ConocoPhillips case because that case dealt with a request for re-consideration of a final award, not an order for provisional measures. 68 The Respondent submits that there is a clear difference between asking a Tribunal to re-visit a binding and final decision, and a party seeking revocation or modification of an interim order (and the Tribunal must be scrupulous in order not to prejudge the merits of the case itself). 69

Moving beyond the question of whether “changed circumstances” are required, the Respondent submits that there are nevertheless other “legal difficulties” with the Tribunal’s reasoning in the Order.

First, the Respondent submits that it was “difficult to see how” the management of Messrs Becchetti and De Renzis’ businesses (or, more accurately, the inability to manage those businesses) imperilled the procedural integrity of the arbitration, or, even assuming it did, how such inability could do so in a manner sufficient to make it absolutely necessary to grant provisional measures. 70

Second, insofar as the Tribunal’s reasoning for the Order was based on the justification that incarceration of Messrs Becchetti and De Renzis would prevent them from “fully participating” in the arbitration, and imperilling their right to procedural integrity, the Respondent submits that the reasoning was not fully explained in the Order, and therefore cannot be properly justified. 71 Specifically, it points to five criticisms:

While the Claimants stated that Albania cannot “re-argue” the arguments ventilated before the Order, 77 the Respondent says that it is not seeking to “re-argue” them, but rather it “has made submissions in response to the reasoning adopted by the Tribunal in the PMO, which Albania obviously only saw for the first time once the PMO was issued”. 78

The Respondent further says that if, contrary to its primary submissions, the Tribunal is not minded to modify or revoke the Order, then any provisional measure should last only until the end of the final hearing, or, at the latest, the date of post-hearing briefs and not until the date of the Final Award. 79 This submission is premised on the fact that there is nothing about which Messrs Becchetti and De Renzis need to instruct their counsel after the final hearing. Indeed, the post-hearing submissions do not require their input to analyse legal argument and oral and written evidence has already been submitted. 80

Further, the Respondent criticises the Order as being “unprecedented” in nature, and that it carries with it radical and extraordinary implications. 81 For that reason, the Respondent submits that the Tribunal “ought in principle be ready to reflect upon the validity of its reasoning and conclusions”, and “it remains incumbent upon the Tribunal to subject its unprecedented recommendations to close and continuing scrutiny”. 82

The Respondent says that, if the Tribunal is not minded to review the validity of its Order on the basis of the legal difficulties it presented (and which are summarised above), then the Tribunal should modify or revoke the Order owing to changed circumstances. 83

That changed circumstance is the decision of the Westminster Magistrates’ Court in the UK where the Home Office’s application to adjourn the extradition proceedings involving Messrs Becchetti and De Renzis sine die was rejected. The Respondent has submitted that it is “clear that the attitude of the English court is that the only way the English proceedings can be ‘suspended’ is in fact for them to be entirely withdrawn”. 84 In that regard, the Respondent says that the withdrawal of the extradition proceedings is not what the Order required, and Albania had attempted in good faith to comply with the Tribunal’s order to “suspend” the extradition proceedings by requesting the sine die adjournment. 85

In this regard, the Respondent again points to the fact that there is no provision of Albanian law that allows the Minister of Justice to withdraw an extradition request once made, and that, the issuance of arrest warrants gives rise to an obligation on the Albanian authorities to execute that arrest warrant. 86 Art 504 of the Albanian Code of Criminal Procedure provides the power for the Albanian Minister of Justice to request the extradition of a person from a foreign state. But the Respondent submits, contrary to what the Claimants said, this does not give the Minister of Justice a discretion to withdraw an extradition request. 87 In essence, the Respondent says that, in the absence of something that prevents the extradition proceedings to continue, as a matter of Albanian or international law, then there is no unfettered discretion for the Minister of Justice to simply withdraw the request. 88 While the Tribunal’s Order does give rise to an obligation on Albania under international law, the Respondent submits the ICSID Convention does not prescribe any mechanism for the Order to be recognised or enforced in Albanian law. 89 It follows that the Tribunal’s Order cannot affect the validity of the extradition request as a matter of Albanian law, leaving no discretion for the Minister of Justice to withdraw that request.

In all of these circumstances, and in what the Respondent explains is an attempt to address the concerns of the Tribunal, Albania offers a guarantee that if Messrs Becchetti and De Renzis were extradited to Albania, then Albanian prosecutors would not seek that they be remanded in custody, but instead be released on “reasonable bail conditions”. 90 This offer had been made by the Albanian Minister of Justice to the UK Home Office. 91 The effect would be that, upon arriving in Albania, Messrs Becchetti and De Renzis would spend a maximum of three days in custody before being brought before a court, where the prosecutor would ask the Albanian court to impose bail conditions which would allow Messrs Becchetti and De Renzis to be released from custody. 92 The Respondent says that the prosecutor is obliged to follow the guarantee given by the Minister of Justice and “must ask the Court to replace the existing security measures with the reduced security measures of reasonable bail”. 93 It follows that there is no risk that the Albanian court would not release Messrs Becchetti and De Renzis on bail, because Art 244(3) of the Albanian Code of Criminal Procedure provides that “the court cannot assign a remand order more severe than the one applied for by the prosecutor”. 94

In response to the Claimants’ position that the Claimants cannot now rely on the undertaking given by Albania, the Respondent says that when the Claimants originally sought provisional measures, they did not suggest that “Albania could not be trusted to comply with a tribunal’s order or undertaking”. The Respondent asserts that the Claimants have changed their position and that the Tribunal should consider the credibility of the Claimants’ avowed concerns about needing to be able to attend to their businesses in Albania. They add that it is now clear that neither Mr Becchetti nor Mr De Renzis intend to travel to Albania to attend to their investments, so the basis for the provisional order, by the Claimants’ own admission, falls away. 95

As to what it had previously described as an “inability” to comply with the Tribunal’s recommendation to suspend domestic criminal proceedings, 96 the Respondent contends that, under Albanian law, criminal proceedings as a whole cannot be suspended. 97 It points to Art 342 of the Code of Criminal Procedure which provides for uninterrupted criminal trials to be one of the main features for the conduct of criminal trials in Albania. 98 While the Respondent concedes that Art 343 of the Code provides for suspension, it only does so when the criminal case is dependent on the resolution of a civil proceeding or administrative dispute. 99 To the contrary, there is no dependency between this arbitration and the criminal proceedings against Messrs Becchetti and De Renzis. 100 The Respondent further says that any intervention by the Government in court processes is forbidden under the Albanian Constitution, so the Albanian Government, as much as it may wish to comply with the Order, cannot request either the Albanian court, or its prosecutors, to suspend the criminal proceedings. 101

Finally, the Respondent notes that although the domestic arrest warrants against Messrs Becchetti and De Renzis were not recommended to be withdrawn or suspended by the Tribunal’s Order, the Respondent says that it could not do so under Albanian law. 102 The Respondent says that, pursuant to Art 260(2) of the Code of Criminal Procedure , arrest warrants can only be modified or revoked when “security needs are lowered”. 103 The Respondent submits that “security needs” have not lowered because Messrs Becchetti and De Renzis are “actively evading the justice of the Albania courts”. 104

In all of these circumstances, the Respondent says that the “disappearance of any threat of incarceration” justifies the revocation of the Tribunal’s Order, and the fact that the domestic criminal proceedings have not been suspended does not justify the continuation of the Order. Those criminal proceedings do not pose a threat to the liberty of Messrs Becchetti and De Renzis. 105

At the Hearing, the Respondent was invited to make its submissions first, followed by the Claimant. Messrs Toby Landau QC and Siddarth Dhar made submissions on behalf of the Respondent, and Mr Phillipe Pinsolle and Mr Christopher Tahbaz for the Claimants. Messrs Ben Brandon and Julian Knowles QC, respectively counsel for the Respondent and Claimants in the UK extradition proceedings, were also present and assisted the Tribunal on occasion during the hearing.

The Respondent submitted that the Claimants had attempted to paint the Respondent’s Application as acting in bad faith, and “seeking to run away” from the Tribunal’s Order, neither of which were true. 106 Rather, there was no element of bad faith in asking the Tribunal to exercise a power that it has as a matter of the ICSID Rules. 107 The Respondent further submitted that it has in good faith tried to comply with the Tribunal’s order. 108 The Respondent rejected any notion by the Claimants that the request for an adjournment of the extradition proceedings was for a “tactical reason” to prolong the bail conditions of Messrs Becchetti and De Renzis. 109 The Respondent further submitted that Albania has not acted in bad faith in failing to suspend the criminal proceedings against Messrs Becchetti and De Renzis in Albania because there have been great efforts to accommodate what the Respondent says is an “unprecedented” and “extraordinary” order in a domestic legal system. 110 The Respondent further pointed out that, while it has tried to accommodate the Tribunal’s Order, the continuance, or more accurately, existence, of the criminal proceedings in Albania has posed no difficulty to the Claimants whatsoever (i.e. those proceedings have not stopped them in any way from doing anything in this arbitration). 111 The Respondent also pointed to the fact that the Claimants filed an extensive memorial submission on 13 May 2016 as an example of their ability to engage in the arbitral proceeding. 112

The Respondent, at the request of the Tribunal, made submissions regarding the undertaking given by the Albanian Minister for Justice not to seek to remand Messrs Becchetti and De Renzis in custody in Albania, which had been given the UK extradition proceedings. The Respondent confirmed that it was an undertaking given by Albania to the UK, specifically the UK Home Office. 115

The Respondent submitted that if the Tribunal did not agree that it should revoke its Order without changed circumstances, and those changed circumstances concerned an undertaking given by the Albanian Minister for Justice not to incarcerate Messrs Becchetti and De Renzis, then it would be open to the Tribunal to outline what it required to “have confidence and comfort” in revoking or modifying the Order. 116

When asked to deal with the difficulty that might arise with the ability for Messrs Becchetti and De Renzis to properly prosecute this arbitration if they were sitting in a jail cell in Albania, counsel for the Respondent submitted that “the criminal proceedings going ahead in Albania themselves will have no impact on the ability to prosecute this arbitration on any view”. 117 Counsel for the Respondent then pointed out that, despite the pendency and even continuation of those criminal proceedings in Albania, the Claimants had managed to file their Memorial of 13 May without difficulty. 118 In answer to the proposition that Messrs Becchetti and De Renzis are not currently in jail, and thus it is unsurprising that they have been able to properly prosecute their claims in this arbitration to date, 119 counsel submitted that “the criminal proceedings [in Albania] can continue and the extradition proceedings could be stopped. The two may depend on each other, but they are not both necessary”. 120 Counsel for the Respondent further explained that “the Tribunal could have made an order which was simply focused upon the extradition proceedings, not the criminal proceedings”. 121 On that basis, the Respondent submitted that there was “no justification, in terms of procedural integrity, to stop the domestic criminal proceedings in Albania”, 122 and all that was required from the Tribunal was an order suspending the extradition proceedings. 123 In relation to the hypothetical scenario that Messrs Becchetti and De Renzis could go to a third state and Albania could then seek extradition from that third state, 124 counsel explained that “the idea that every extradition process around the world can be suspended on this basis, that there can be an incursion of sovereignty of that extent, is totally unprecedented and takes away all the discretions that are built into the system for each country to consider itself how it proceeds”. 125

The Respondent’s position was that the undertaking Albania was prepared to offer was essentially the same undertaking that was made by the Albanian Minister for Justice in the extradition proceedings. 126 Having been questioned by the Tribunal on this issue, counsel for the Respondent requested an opportunity to provide further written submissions on this particular issue so as to not misconstrue Albanian law. 127

As to the Claimants’ application, the Respondent submitted that the Tribunal should not make the order sought by the Claimants. 128 The Respondent submitted that, amongst other things, there was no need to grant the application where Albania has been making good faith attempts to implement the Tribunal’s Order. 129 The Respondent submitted that the question that had to be asked by the Tribunal when considering whether or not to grant the Claimants’ application was “ha[s Albania] acted in bad faith such that [the Tribunal] should warrant now this extraordinary penal order?”. 130 The Respondent submitted that in circumstances where Albania has been “trying to work with the Tribunal … this is not a situation where it is now appropriate to slap an order or decision on [Albania] to say that [Albania is] in breach, with a day-by-day penalty”. 131

The Respondent also addressed the Tribunal regarding the orders sought by the Claimants in respect of the Assets. In this regard, the Respondent emphasised that the Tribunal had invited Albania to confer with the Claimants and “seek to agree appropriate measures to be taken by the Republic of Albania” to preserve the Assets. 132 The Respondent said the relief sought by the Claimants in this respect should be dismissed for three reasons.

First, the Respondent said that the basis of the Claimants’ application, which was that the Respondent had not engaged with the Claimants’ proposals to “preserve” the Assets, was misconceived. 133 The Respondent referred the Tribunal to correspondence between the Parties which it said demonstrated otherwise. 134 That correspondence, the Respondent submitted, showed that the Respondent’s counsel was still receiving instructions as to how to address the Claimants’ “precise concerns” regarding the preservation of Assets. 135 The Respondent also submitted that the Claimants’ application was premature, because the Tribunal’s Order prescribed a 60-day time limit in which the Parties were to confer and agree, which had not expired by the time the Claimants’ Application was made. 136

Second, the Respondent submitted that Albania had “done everything necessary to comply” with the terms of the Tribunal’s directions at paragraphs 5.2 and 5.3 of its Order. 137 The Respondent submitted that “there is no allegation that shareholdings have been diluted; there is no allegation that bank accounts have been dissipated; there is no allegation that assets have been left in a warehouse to rot”, and thus, when considering the precise terms of paragraph 5.2 of the Order, it could not be said that Albania has breached that order. 138

Third, the Respondent contended that, even if the Tribunal did not accept that the Respondent had complied with paragraphs 5.2 and 5.3 of its Order, then the Claimants have stated in their recently-filed Memorial that those Assets no longer exist, 139 so there could be no urgency supporting the grant of provisional measures to protect them.

The Claimants submitted that the Respondent’s characterisation of the issue before the Tribunal as being a question of whether or not the Respondent had acted in bad faith or good faith was not relevant, and that the question of good faith was not the test to be applied by the Tribunal. 140 Rather, what is required to be examined is compliance with the Tribunal’s Order, which is what the Claimants submitted their Application was predicated upon. 141

The Claimants submitted during their opening that they were now seeking an indemnification for the Assets, some of which had now been expropriated and could not be returned. 142 When asked to clarify their position regarding the relief sought, the Claimants confirmed that they were seeking full compensation in the merits aspect of this arbitration, but also a penalty against the Respondent for non-compliance with the Tribunal’s Order. 143 The Claimants confirmed that the penalty and the award of damages it sought would be “in parallel”, so that the penalty would be deducted from the calculation of damages (presumably, so as not to receive double compensation, or a pecuniary penalty, as the case may be). 144

The Claimants also addressed the Tribunal on the Respondent’s compliance with the suspension of the extradition proceedings. The Claimants submitted that UK Magistrates’ Court had not been inclined to grant the Home Office’s application to adjourn sine die because it did not wish to leave the matter “in limbo”. 145 As at the stage of the oral hearing, the Parties informed the Tribunal that the judgment of Judge Tempia as to the extradition application of Messrs Becchetti and De Renzis was expected to be delivered on 8 July 2016.

Counsel for the Claimants also made submissions regarding two documents relating to the conditions of Albanian prisons that were submitted to the Tribunal, without leave, on 10 June 2016. 146 The Tribunal decided against admitting these documents and, as such, it is unnecessary to dwell on these submissions further.

The Claimants addressed the Respondent’s contention that there was no mechanism under Albanian law by which to suspend the Albanian criminal proceedings, contending that in the extradition proceedings before Judge Tempia, the Claimants had tendered an expert report of an expert in Albanian law which demonstrated that the Albanian Minister for Justice does have a discretion to suspend an extradition request. 147 The Tribunal noted that whilst that report was not in evidence in this arbitration, the question of whether or not the Albanian minister can suspend the extradition request was likely to be a question answered by Judge Tempia. 148 Mr Brandon, Albania’s counsel in the extradition proceedings, agreed that those were the questions that Judge Tempia would decide, but said that they would not necessarily be decided on 8 July 2016, when judgment from that court was expected. 149

The Claimants also made submissions regarding the difficulties they perceived in relation to the undertaking given by the Albanian Minister of Justice to the Home Office (and presumably, any similar undertaking to the Tribunal) not to imprison Messrs Becchetti and De Renzis. In this regard, the Claimants emphasised paragraphs 46 to 48 of the Respondent’s Rejoinder, and specifically on the word “ask” (i.e. that the Albanian authorities would ask the Albanian courts not to imprison Messrs Becchetti and De Renzis). 150 The Claimants further submitted that “reasonable bail conditions” quoted in the Albanian Minister’s undertaking was an “abstract concept”, and that it is not known what an Albanian court might regard as “reasonable bail conditions”. 151 When pressed by the Tribunal as to whether or not the Claimants would ever accept any undertaking given by the Respondent as acceptable, the Claimants submitted that it would not “rule out this possibility”. 152

The Claimants then turned to the Respondent’s Application more generally. They contended that it was nothing more than an interlocutory appeal. 153 An appeal of this nature is not authorised under the ICSID Convention, nor the Arbitration Rules. 154 The Claimants pointed out that “Albania had a full and fair opportunity to participate [in the hearing on provisional measures], where there were hundreds of pages of written submissions, where Albania was represented by its choice of counsel, during a hearing to which it agreed”. 155 The Claimants submitted that Albania’s dissatisfaction with the Tribunal’s reasoning was not a basis to “re-open issues that this Tribunal has fully considered and decided”. 156

The Claimants conceded that the ICSID Convention and the Rules are each silent as to the circumstances under which an application for revocation or modification can be made, but submitted that, contrary to the Respondent’s submission that it is incumbent upon the Tribunal to subject its Order to continuing scrutiny, there must be changed circumstances in order to allow a consideration of revocation or modification. 157

Accepting that changed circumstances are required to allow revocation or modification of the Tribunal’s Order, the Claimants contended that there were no changed circumstances in this case, nor was it necessary or urgent to modify or revoke the Order. 158 The Claimants submitted that the dual requirement (namely that there be both changed circumstances, and that it be urgent and necessary to revoke) was derived from the Lao Holdings case. 159 Without the requirement of changed circumstances (that is, “an objective justification”), the Claimants submitted that one would be left with a system of unlimited appeal. 160

The Claimants further contended that Albania’s assurances of compliance, and in particular, its claim that it had complied with the Tribunal’s Order regarding the suspension of the extradition proceedings (or at least, attempted suspending), did not constitute changed circumstances. 161

The Claimants also focused the Tribunal’s attention to the question of why Albania did not raise its inability to suspend the extradition or criminal proceedings during the earlier Provisional Measures hearing, when it knew it could be faced with such an order. 162 The Claimants submitted that the inference that can be drawn from this is that there is no merit to the argument that Albania is unable to comply with the Order. 163

Finally, the Claimants focused on Albania’s undertaking not to seek that Messrs Becchetti and De Renzis be remanded in custody if they were to be extradited. The Claimants submitted that the Respondent was not being “genuine and honest” in giving this undertaking, because, on the one hand, it had stated that it was committed not to imprison Messrs Becchetti and De Renzis, but, on the other hand, it is “fighting tooth and nail to get rid of” the Order. 164

After the hearing, the Parties were each directed to file post-hearing submissions, to which the Tribunal now turns.

The Respondent submitted its Post Hearing Submission on 29 June 2016, accompanied by

In light of this dispute, the Tribunal had to determine whether to admit this opinion. It determined to do so. The Tribunal turns to consider Professor Rakipi’s opinion (and that of the Claimants’ expert as to Albanian law) at paragraphs 2.95–2.101 below.

The Respondent then makes submissions on the three relevant questions, namely:

The Respondent describes the undertakings as “promises”, rather than undertakings, explaining that, as a matter of Albanian legal language, it was appropriate to do so. 166 In fact, the terms “undertakings” and “promises” seemed to be used interchangeably in both Parties’ submissions, and the Tribunal herein adopts the language used by the Parties depending on the particular submission or point made.

The Respondent relies on promises that have already been made in the form of the 5 April 2016 letter from the Minister of Justice to the Home Office 167 and a letter from the Albanian Prosecution Office dated 14 June 2016. 168 Further, it relies on the letter from the Prosecutor General’s Office dated 29 June 2016, 169 which it submits confirms that (i) the Prosecutor and Albanian Court are obliged to comply with the “promise” made by the Albanian Minister of Justice; (ii) Messrs Becchetti and De Renzis would be held in custody for a maximum of three days from their arrival in Albania before they are brought before an Albanian court for “processing”; (iii) Messrs Becchetti and De Renzis will thereafter be released on “reasonable bail conditions”; and (iv), once they have appeared before the Albanian court, their arrest warrants will be satisfied. 170

The Respondent refers to letters from the State Advocate’s Office that confirm, amongst other things, that the Minister for Justice abides by the undertakings made in the 5 April 2016 letter to the Home Office, which are “legitimated by implementation of Article 504/2 of the Code of Criminal Procedure”. 171 The Respondent further submits that as a matter of international law, those promises remain binding on Albania because:

The Respondent points to the decision of the International Court of Justice in the Nuclear Tests Case , whereby the Court stated:

The Respondent concedes that its previous reliance on Art 504(2) of the Albanian Criminal Procedural Code to suggest that the Minister for Justice’s promise in the letter to the Home Office was binding is now “a matter of some uncertainty under Albanian law”. 174 However the Respondent relies on the opinion of Professor Rakipi, its Albanian law expert, that “the Minister is bound where he has made promises as to how the Defendants will be treated if extradited” despite the situation not being “expressly envisaged in the law”. 175

The Respondent submits that the Minister for Justice considers himself bound by the promises made in the extradition proceedings, but could make those same promises or undertakings to the Tribunal because they do not relate to the “framework of the extradition proceedings” and Albanian law does not provide for any valid undertakings to be made outside the extradition proceedings. 176

As a reason why this Tribunal should be satisfied that the Minister will keep his word, the Respondent submits that by not doing so would have “very severe repercussions” for Albania in these proceedings, and also for its bilateral relationship with the UK. 177

Turning to how the “promises” made by the Minister of Justice are binding on Albanian prosecutors and courts, the Respondent relies on Art 51(2) of Law 10193 178 and Art 504(2) of the Code of Criminal Procedure , 179 which, in combination, mean that the Minister’s confirmation or acceptance of the promises previously made to the Home Office is binding upon both prosecutors and courts. 180

On 8 July 2016, the Claimants submitted their response to the Respondent’s Post Hearing Submission (the “Claimants’ Post-Hearing Submission”). This was submitted on the same day that the Judgment was handed down. The Claimants’ Post-Hearing Submission was accompanied by an opinion by Mr Arben Qeleshi which largely addressed the opinion of Professor Arben Rakipi. That, too, was admitted into evidence. The Tribunal separately summarises Mr Qeleshi’s opinion (together with Professor Rakipi’s opinion) at paragraphs 2.95–2.101 below.

The Claimants emphasise that the Respondent would not (or could not, as the case may

The Claimants submit that the “promises” given by Albania to the UK authorities (given that they cannot be characterised as undertakings and are not described by the Respondent as such) do not bind Albania, Albanian courts, or Albanian prosecutors. 185 The Claimants reject the claim that the promises are binding as a matter of international law, because “Albania’s Minister of Justice evinces no intention to be bound by his April 5 letter”. 186 The Claimants also point to the apparent contradiction between the Respondent maintaining that the promises have a binding effect under Albanian law (by virtue of their binding nature under international law), but that the Tribunal’s Order does not enjoy a similar binding effect under Albanian law. 187

The Claimants submit that the Respondent’s promises do not bind the Albanian courts and its prosecutors. 188 The Claimants point to two matters in support. First, they say that (as the Minister has admitted) Art 504(2) does not provide a legal basis for the binding nature of the undertaking under Albanian law. Second, the Claimants say that Albania’s reliance on Law 10193 189 is equally flawed. In this regard, the Claimants rely on the opinion of Mr Qeleshi (which is summarised below), specifically because neither Law 10193 nor Art 504(2) of the Code on Criminal Procedure provide a basis for the “promises” to be binding under Albanian law. 190

The Claimants further submit that the promises made by the Albanian Minister are not binding before the English courts. The Claimants submit that the issue of bail in Albania (and, presumably, any promises made regarding bail) is irrelevant to the extradition process in the UK. 191 The Claimants submit that under the Extradition Act 2003 (UK), the presiding judge must send an application for extradition to the UK Secretary of State, who is obliged to order extradition unless certain narrow circumstances exist (none of which are applicable in this case). 192 The Claimants contend that neither the Judge nor the Secretary of State will be concerned with the question of bail in Albania after Messrs Becchetti and De Renzis are extradited. 193

The Claimants also contend that Albania’s promise that Messrs Becchetti and De Renzis will be allowed to travel freely to and from Albania once they are released on bail is illusory. The Claimants draw the Tribunal’s attention to the fact that the guarantee of free travel to and from Albania is not covered by any promise or undertaking by the Albanian Minister of Justice – rather, it was only made by way of submission in the Respondent’s submission of 10 May 2016, and the Respondent does not explain why this representation is binding. 194 Further, the Claimants contend that Albania does not explain how it would withdraw international arrest warrants and an Interpol “Red Notice” against Messrs Becchetti and De Renzis. 195 The Claimants pose the question why Albania would continue to seek the extradition of Messrs Becchetti and De Renzis only to release them again, and says that such a position “flies in the face of the very purposes of extradition, which is to force a defendant to return to a State in which he is to be tried in order to stand trial”. 196 The Claimants contend that even if Messrs Becchetti and De Renzis were granted bail, they would be obliged to appear in Albania at “Albania’s volition”, due to the operation of Art 353 of the Code of Criminal Procedure . 197

The Claimants also press the argument that the Respondent has failed to address any of the Tribunal’s queries contained in its letter of 16 June 2016 following the oral hearing in this matter. In particular, the Claimants stress that the Respondent has given no undertaking to the Tribunal (especially given that the Tribunal’s letter of 16 June 2016 specifically asked: “who will make the undertaking(s) and in what form will it be made to the Tribunal”). 198 The Claimants say that the reasons proffered by the Respondent as to why it cannot make the undertakings directly to the Tribunal are flawed. First, the Claimants say that given the Respondent has effectively admitted that the undertaking made by the Minister to the Home Office in his letter of 5 April 2016 was not made pursuant to Art 504(2) of the Code on Criminal Procedure , then it could not bear a relationship to the extradition proceedings. 199 The Claimants ask: given that those undertakings bear no “legal” relationship to the extradition proceedings, why can the Minister of Justice make the undertakings to the Westminster Magistrates’ Court, but not the Tribunal? 200 Second, the Claimants submit that, if the Minister of Justice cannot provide the undertakings to the Tribunal (as the Respondent claims the Minister cannot), then why are Albanian officials other than the Minister of Justice unable to make such an undertaking? 201