Procedural Context and Key Applications

This document is a decision by an ICSID Revision Tribunal constituted to hear the Republic of Albania's application for revision of the Award of April 24, 2019. The decision addresses four primary applications: (i) the Claimants' request to dismiss Albania's Revision Application as manifestly without legal merit under ICSID Arbitration Rule 41(5); (ii) the Claimants' request for an order allocating all advance payments to Albania; (iii) the Claimants' requests for security for the amounts due under the Award and for the costs of the revision proceedings; and (iv) Albania's proposal to establish an escrow mechanism for advance payments.

Tribunal's Analysis on the Revision Application

The central issue was whether Albania's Revision Application met the stringent requirements of Article 51 of the ICSID Convention. Albania's application was predicated on a February 2022 judgment by the Tirana Judicial District Court, which convicted certain Claimants of criminal offenses. Albania argued that this judgment constituted the "discovery" of a new, pre-award fact—namely, the Claimants' "Illegal Activities"—which was of such a nature as to decisively affect the original Award, particularly on jurisdiction and the State's police powers defense.

The Tribunal rejected this argument, finding that the application was manifestly without legal merit. The Tribunal's reasoning centered on the distinction between a pre-award fact and a post-award legal characterization of that fact. It determined that the underlying factual allegations of criminal conduct were not new; they were known to both Albania and the Original Tribunal and were extensively argued and considered during the original arbitration, leading to the rejection of Albania's police powers defense. The Tribunal held that the Tirana Judgment, being a post-award event, could not constitute a pre-award "fact" under Article 51. Rather, it represented a domestic court's legal conclusion about facts that were already on the record. The Tribunal concluded that since both the Respondent and the Original Tribunal had knowledge of the underlying allegations prior to the Award, Albania had failed to demonstrate the discovery of a new fact, a fundamental prerequisite for revision.

Decision and Costs

Based on its finding that Albania failed to meet the threshold requirement of discovering a new pre-award fact, the Tribunal dismissed the Revision Application under Rule 41(5) as manifestly without legal merit. Consequently, the Tribunal denied as moot the Claimants' ancillary requests for allocation of advance payments and for security, as well as the Respondent's proposal for an escrow mechanism. In light of the dismissal, the Tribunal ordered Albania to bear the full costs of the arbitration proceedings, including the fees and expenses of the Tribunal and ICSID's administrative fees. Each party was ordered to bear its own legal fees and expenses.