From: Vincent W.J. van Gerven Oei
“Confidential” Becchetti Verdict Is Publicly Available – And Damaging

Contrary to recent claims by the Albanian government, both the International Centre for Settlement of Investment Disputes (ICSID) award of claim of Italian businessman Francesco Becchetti against the Albanian state of April 24, 2019 and the decision on its annulment from April 2, 2021 are not confidential but publicly available at a major international legal database.

Screenshot of Award in the arbitration case of Hydro Srl et al. against the Republic of Albania
Screenshot of Award in the arbitration case of Hydro Srl et al. against the Republic of Albania

According to the award, which covers a series of investments made by companies of Becchetti in the fieds of hydropower, waste management, and media, the Albanian state is obligated to pay €46,751,000 to Mauro de Renzis, €11,688,000 to Stefania Grigolon, and €41,048,000 to Francesco Becchetti for the expropriation of their media company Agonset. Agonset was seized and forced to close by the Albanian government in 2015. In the decision on the annulment in 2021, the ICSID again ruled against the Albanian state.

Earlier this month, the Democratic Party (PD) had requested the establishment of a committee of inquiry investigating the responsibility of government officials in relation to the Becchetti arbitration case at the ICSID. In an attempt to muddy the waters, Socialist Party (PS) deputy Taulant Balla claimed that the proceedings in a related case at the European Court for Human Rights were confidential:

The juridical process of Arbitration and the one at the European Court of Human Rights have been confidential from both sides and the publication of documents in the commission could damage Albania.

However, the confidentiality of any ECtHR proceedings does not transfer to the final verdicts in the ICSID arbitration case, as argued by PD deputy Gazmend Bardhi, who produced a partial copy of the verdict in Parliament. The request to set up a committee of inquiry was rejected by the PS.

The holdings of the Becchetti Group
The holdings of the Becchetti Group

How then could the details of the verdict be damaging for Albania? Well, because they show how the Albanian government has mismanaged its political attacks on Becchetti and his businesses in Albania, in particular Agonset, from the beginning. This started with the first allegations of money laundering against De Renzis: “The allegations were based on the investigators’ mistaken belief that Mr. De Renzis was not only the Administrator of various companies in the Becchetti Group of companies, but also the sole investor” (§374). The Albanian state then tried to sue Becchetti for an alleged attack on a security guard at Rinas airport, but issued the warrant in violation of the Albanian Code of Criminal Procedure, and the case was dismissed (§385). Interpol rejected the Red Notices placed on De Renzis and Becchetti, “on the basis of Albania’s failure to respond to the Commission’s multiple requests for a response to its queries” (§409). When the Albanian state seized the properties of the Becchetti Group, they were not served with a seizure decision (§414), which was in any case so “unclearly formulated” it could not be executed (§430). As a result, the Albanian state failed to properly manage the company they had seized, which eventually had to close its doors.

Also the Albanian state’s attempts to remove the case from the jurisdiction of the ICSID by presenting various arguments why it wouldn’t fall under the Italy-Albania Bilateral Investment Treaty (BIT) were rejected by the court, one after the other. For example, the Albanian state claimed that Becchetti and De Renzis’s investments into the Albanian companies were “abusive because their sole or predominant purpose was to provide a person who was not a protected investor with the BIT’s protection in relation to a dispute that was reasonably foreseeable” (§546), while at the same time providing no evidence whatsoever that their investments were, in fact, “abusive” (§547). The court even stated: “The evidence supporting the Claimants’ contention that the transfer to Mr. De Renzis was for a legitimate commercial purpose is similarly strong” (§552).

Perhaps the following assertion symbolizes the unreasonable position of the Rama government most poignantly: “the Claimants must first show that the measures of which they complain are flawed as a matter of Albanian law” (§699). In other words, Becchetti should only be able to file proceedings against Albania at the ICSID if the Albanian state acted against its own laws. The court, obvisously, disagreed: “A state cannot escape liability for measures that breach international law solely on the basis that those measures conform with domestic law” (§700). But the Rama government precisely wants to escape this liability, as it thinks that its limitless, nigh autocratic legislative capabilities in Albania should extend toward the rest of the world. This attitude is precisely the same as the one driving the conservative Polish government to place national law above international EU treaties.

The arbitration court even used the words of Prime Minister Rama himself, declaring of “success” in the “war” against Becchetti, to show that the expropriation wasn’t done in good faith (§704a). Moreover, when inquiring about the investigations against him, Rama’s Secretary General and former Top Channel lawyer Ëngjëll Agaçi referred to Top Channel general manager Enkelejd Joti, advising Becchetti that “It is not a good idea to oppose the State.” All this, in addition to the government’s proximity to Agonset’s main competitors, “provides background support for the inference the Claimants invite the Tribunal to draw” (§709). Finally, the court concludes that the Rama government indeed orchestrated a “political campaign” against Becchetti: “When taken together, all of the matters discussed […] above therefore strongly support an inference that the Seizure Decisions were the culmination of a political campaign against the Claimants” (§724). As a result, the court ordered Becchetti and his co-investors to be compensated for their losses. This award is final and cannot be appealed. The legal costs for the Albanian public were €1,739,597.79 and £232,202.29 (§907).

Screenshot from the Annulment Proceeding verdict between Hydro Srl et al. and Republic of Albania
Screenshot from the Annulment Proceedings verdict between Hydro Srl et al. and Republic of Albania, April 2, 2021

Following this decision in 2019, the Albanian state filed for annulment of the ICSID’s decision, based on art. 52(1)(e) of the ICSID convention, which states that “either party may request annulment of the award” on the ground “that the award has failed to state the reasons on which it is based.” Thus the Albanian state claims that because the ICSID’s verdict was not properly motivated it should be annulled, trying to turn the annulment procedure in place to safeguard the fundamental integrity of the juridical process into a de facto appeal (which otherwise is inadmissable). Nevertheless, all three grounds on which the Albanian state tried to annul the 2019 award were rejected by the ICSID ad hoc committee. These additional proceedings cost the Albanian public $1,480,603.18 (§231) and it was ordered to pay an additional $1,589,634.22 to Becchetti for the legal costs incurred (§243).

So are these public verdicts “damaging” to Albania, as deputy Balla has asserted? Indeed they are. They show not only how the Albanian government, led by Prime Minister Edi Rama, blundered its way through an attempt to silence a critical voice in the Albanian media landscape through a politically motivated campaign, but also how in the arbitration procedure it lost the juridical battle on nearly all fronts. The ECtHR case that apparently is still pending will change nothing about the final nature of the ICSID award, and the money due to Becchetti and his fellow entrepreneurs will at some point have to be paid out, with interest.