|1st ICC Arbitration||Deutsche Bank AG v. BEG S.p.A, ICC Case No.17496/JHN/GFG commenced by a Request for Arbitration dated 27 October 2010|
|1st ICC Award||Award rendered in the 1st ICC Arbitration, dated 18 April 2013 (R-033)|
|2nd ICC Arbitration||Hydro S.R.L. (Italy) v. The Republic of Albania, ICC Case No. 20564/EMT/GR commenced by a Request for Arbitration dated 16 October 2014 (R-042)|
|2nd ICC Award||Partial award rendered in the 2nd ICC Arbitration dated 8 January 2018 (Document attached to the Claimants’ letter dated 16 January 2018)|
|1st Rome Arbitration||Hydro S.r.L v. Deutsche Bank AG commenced by application dated 15 July 2010|
|1st Rome Award||Award rendered in the 1st Rome Arbitration dated 17 November 2011 (R-032)|
|2nd Rome Arbitration||Hydro S.r.L v. Deutsche Bank AG commenced by petition dated 10 October 2010|
|2nd Rome Award||Award rendered in the 2nd Rome Arbitration dated 7 August 2013 (R-035)|
|1998 Broadcasting Law||Law No. 8410 on the Public and Private Radio and Television in the Republic of the Albania, 30 September 1998 (CL-033)|
|2007 Broadcasting Law||Law No. 9742 on Digital Broadcasting in the Republic of Albania, 28 May 2007, Article 15 (CL-057)|
|2013 Media Law||Law No. 97/2013 on Audiovisual Media in the Republic of Albania, 4 March 2013 (CL-084)|
|400 KV||400 KV Sh.p.k.|
|AKBN||National Agency of Natural Resources|
|Albania / Respondent||Republic of Albania|
|Albaniabeg||Albaniabeg Ambient Sh.p.k.|
|ASB||Authorised State Body|
|Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings in effect from 10 April 2006|
|BEG||Becchetti Energy Group Spa|
|BIT||Agreement between the Government of the Republic of Italy and the Government of the Republic of Albania on the Promotion and Protection of Investment, which was signed on 12 September 1991, and entered into force on 29 January 1996|
|CL-[#]||Claimants’ Legal Authority|
|Cable System||Cable System Sh.p.k.|
|Claimants||Hydro, Costruzioni, Mr. Becchetti, Mr. De Renzis, Ms. Grigolon and Ms. Condomitti|
|Concession Agreement||Original Concession Agreement between BEG S.p.A and Ministry of Public Works, Land Planning, Tourism and Ministry of Mining and Energy Resources dated 24 May 1997 (C-014) Including the First Addendum to the Concession Agreement dated 2 November 2000 (C-191) Including the Second Addendum to the Concession Agreement dated 8 May 2007 (C-015) As of 8 May 2007, the Consolidated Concession Agreement (C-199)|
|Costruzioni / Second Claimant||Costruzioni S.r.l.|
|Counter-Memorial||Respondent’s Counter-Memorial dated 23 January 2017|
|Deutsche Bank||Deutsche Bank AG|
|GE06 Agreement||ITU International Symposium on the Digital Switchover Regional Agreement GE06 of 16 June 2006 (CL-051)|
|Hearing 1||Hearing on Jurisdiction held on 28 to 30 March 2017|
|Hearing||Hearing on Jurisdiction and the Merits on 4 to 14 September 2017|
|Hearing Transcript, Day [#], [page:line]||Transcript of the Hearing|
|Hydro / First Claimant||Hydro S.r.l.|
|ICC||International Chamber of Commerce|
|ICSID||International Centre for Settlement of Investment Disputes|
|ICSID Convention||Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18 March 1965|
|ILA||International Law Association|
|Investime||Investime te Rinovueshme Sh.p.k.|
|JVA||Joint Venture Agreement between BEG and Deutsche Bank dated 16 January 2007 (R-0101)|
|Kalivaç Project / Project||The construction and operation of the Kalivaç hydroelectric power plant|
|KESH||Korporata Elektroenergjitike Shqiptare|
|KGE||Kalivaç Green Energy Sh.p.k.|
|Memorial on the Merits||Claimants’ Memorial on the Merits dated 13 May 2016|
|METE||Ministry of Economy, Trade and Energy|
|Mr. Becchetti / Third Claimant||Mr. Francesco Becchetti|
|Mr. de Renzis / Fourth Claimant||Mr. Mauro De Renzis|
|Ms. Condomitti / Sixth Claimant||Ms. Liliana Condomitti|
|Ms. Grigolon / Fifth Claimant||Ms. Stefania Grigolon|
|NCRT||The National Council of Radio and Television created by the 1998 Broadcasting Law.|
|RL-[#]||Respondent’s Legal Authority|
|Rejoinder||Claimants’ Rejoinder on Jurisdiction dated 20 February 2017|
|Reply||Respondent’s Reply on Jurisdiction dated 20 January 2017|
|Switchover Strategy||Decision of the Council of Ministers No. 292 on a Strategy of Switchover from Analogue to Digital Broadcasting, 2 May 2012 (CL-080)|
|Top Channel||Top Channel Sh.a.|
|Tribunal||Arbitral tribunal constituted on 19 November 2015|
|Tring||Tring TV Sh.a.|
|Waste Management Concession||Waste management concession agreement between Albaniabeg and Albania dated 26 May 2005|
On 29 June 2015, the Secretary-General of ICSID registered the Request in accordance with Article 36(3) of the ICSID Convention and notified the parties of the registration. In the Notice of Registration, the Secretary-General invited the parties to proceed to constitute an arbitral tribunal as soon as possible in accordance with Articles 37 to 40 of the ICSID Convention.
On 23 November 2015, the Acting Secretary-General, in accordance with Rule 6(1) of the ICSID Rules of Procedure for Arbitration Proceedings (the "Arbitration Rules"), notified the parties that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date. Ms. Aurélia Antonietti, ICSID Senior Legal Adviser, was designated to serve as Secretary of the Tribunal. On 7 December 2015, the Secretary-General informed the parties that Mr. Francisco Abriani, ICSID Legal Counsel, would replace Ms. Antonietti as Secretary of the Tribunal.
a. suspend the proceedings identified as Criminal Proceeding No. 1564 until the issuance of a Final Award in this proceeding; and
b. take all actions necessary to suspend the extradition proceedings currently pending as Case Numbers 1502751601 (for Mr. Becchetti) and 1502752144 (for Mr. De Renzis), until the issuance of a Final Award in this proceeding, and
invited the Respondent to confer with the Claimants and seek to agree appropriate measures to be taken by the Republic of Albania to preserve:
c. the seized assets and the contents of the frozen bank accounts of Energji, KGE, 400 KV, Cable System, and Agonset;
d. the current shareholdings in those companies.
The Order also provided that, should the Respondent fail to comply within 60 days, the Claimants could apply to the Tribunal for further provisional measures.
a. First Expert Report of Paul Rathbone dated 13 May 2016; and
b. Expert Report of Brent Kaczmarek and Kiran Sequeira dated 13 May 2016.
Dr. Michael Pryles President (By Video Conference)
Dr. Charles Poncet, M.C.L. Co-Arbitrator
Mr. Ian Glick, Q.C. Co-Arbitrator
Mr. Francisco Abriani Secretary of the Tribunal
Assistant to the Tribunal:
Dr. Albert Dinelli Assistant to the Tribunal (By Video Conference)
For the Claimants :
Mr. Philippe Pinsolle Quinn Emanuel Urquhart & Sullivan UK LLP
Dr. Tai-Heng Cheng Quinn Emanuel Urquhart & Sullivan LLP
Mr. Alexander Leventhal Quinn Emanuel Urquhart & Sullivan UK LLP
Mr. Marco Garofalo Quinn Emanuel Urquhart & Sullivan UK LLP
Mr. Christopher J. Tahbaz Debevoise & Plimpton LLP
Mr. Shaun Palmer Debevoise & Plimpton LLP
Mr. Karel Daele Mishcon de Reya LLP
Mr. Julian B. Knowles, QC Matrix Chambers
Mr. Francesco Becchetti Claimant
For the Respondent :
Mr. Toby Landau, QC Essex Court Chambers
Mr. Siddharth Dhar Essex Court Chambers
Mr. Peter Webster Essex Court Chambers
Mr. Ben Brandon Three Raymond Buildings
Mr. David Breslin Gowling WLG (UK) LLP
Ms. Karen O'Connell Gowling WLG (UK) LLP
State Advocate General, State Advocacy Office
Ms. Alma Hicka (Albania)
Ms. Brunilda Lilo State Advocate, State Advocacy Office (Albania)
Court Reporter :
Ms. Claire Hill English-Language Court Reporter
a. First Expert Report of Gervase MacGregor dated 20 January 2017; and
b. First Expert Report of Petrit Malaj dated 20 January 2017.
a. Second Expert Report of Paul Rathbone dated 2 June 2017;
b. Third Expert Report of Paul Rathbone dated 2 June 2017;
c. Second Expert Report of Brent Kaczmarek and Kiran Sequeira dated 2 June 2017;
d. Consultant’s Report of Enyal Shuke dated 2 June 2017;
e. Expert Report of Alberto Pasquale dated 2 June 2017;
f. Expert Report of Arben Qeleshi dated 2 June 2017; and
g. Expert Report of Sergio Garribba dated 2 June 2017.
a. Second Expert Report of Gervase MacGregor dated 4 August 2017;
b. Second Expert Report of Petrit Malaj dated 4 August 2017;
c. Expert Report of Paolo Marino dated 4 August 2017; and
d. Expert Report of Luis Borrell dated 4 August 2017.
Dr. Michael Pryles, AO PBM President
Dr. Charles Poncet Arbitrator
Mr. Ian Glick, QC Arbitrator
Mr. Francisco Abriani Secretary of the Tribunal
Assistant of the Tribunal
Mr. Tim Maxwell Assistant of the Tribunal
For the Claimants :
Mr. Philippe Pinsolle Quinn Emanuel Urquhart & Sullivan LLP
Dr. Tai-Heng Cheng Quinn Emanuel Urquhart & Sullivan LLP
Mr. Alexander Leventhal Quinn Emanuel Urquhart & Sullivan LLP
Mr. Marc Reifsnyder Quinn Emanuel Urquhart & Sullivan LLP
Mr. Marco Garofalo Quinn Emanuel Urquhart & Sullivan LLP
Mr. David W. Rivkin Debevoise & Plimpton LLP
Ms. Catherine Amirfar Debevoise & Plimpton LLP
Mr. Romain Zamour Debevoise & Plimpton LLP
Mr. Shaun A. Palmer Debevoise & Plimpton LLP
Mr. Alexandre de Fontmichel
Prof. Andrea Saccucci Saccucci & Partners
Ms. Mali Torres Debevoise & Plimpton LLP
Mr. Francesco Becchetti Claimant 3
Mr. Tim Fritz Costruzioni S.r.l.
Ms. Marzia Amiconi Costruzioni S.r.l.
For the Respondent:
Mr. David Breslin Gowling WLG (UK) LLP
Mr. Michael Darowski Gowling WLG (UK) LLP
Ms. Karen O'Connell Gowling WLG (uk) LLP
Ms. Anna Packwood Gowling WLG (UK) LLP
Mr. Bertie Rooke Gowling WLG (UK) LLP
Mr. Myles Wallbank Gowling WLG (UK) LLP
Mr. Jonathan Zane Gowling WLG (uk) LLP
Ms. Ellie Ismaili Gowling WLG (UK) LLP
Mr. Siddarth Dhar Essex Court Chambers
Mr. Felix Wardle Essex Court Chambers
Mr. Peter Webster Essex Court Chambers
Mr. Artan Hajdari Haxhia & Hajdari Attorneys at Law
Ms. Alma Hicka State Advocates Office, Republic of Albania
Ms. Brunilda Lilo State Advocates Office, Republic of Albania
Court Reporter :
Mr. Trevor McGowan English-language court reporter
Mr. Genc Lemani English-Albanian interpretation
Mr. Ragip Luta English-Albanian interpretation
Ms. Elvana Moore English-Albanian interpretation
Ms. Delfina Genchi English-Italian interpretation
Ms. Daniela Ascoli English-Italian interpretation
Ms. Monica Robiglio English-Italian interpretation
Ms. Caitlin Moustaka Michael Pryles Law Firm
On behalf of the Claimants:
Mr. Shpetim Arbana
Mr. Francesco Becchetti
Ms. Endire Bushati
Ms. Sonila Mego
Prof. Sergio Garribba
Mr. Brent C. Kaczmarek Navigant
Mr. Alberto Pasquale
Mr. Arben Qeleshi
Mr. Paul Rathbone CEG
Mr. Kiran P. Sequeira
Ms. Enyal Shuke Shuke Law
On behalf of the Respondent :
Mr. Lluís Borrell Analysys Mason Limited
Mr. Paolo Marino Poyry Management Consulting
Mr. Gervase MacGregor BDO LLP
Mr. Petrit Malaj BDO LLP
Mr. Andrew Maclay BDO LLP
Mr. Matthew McDevitt BDO LLP
Mr. Jason Macdoombe BDO LLP
Prof. Arben Rapiki Albanian School of Magistrates, Tirana, Albania
a. BEG warranted that it had the necessary technical, financial and managerial capabilities to perform the contract to international standards.52
b. BEG undertook to arrange all necessary financing and do everything necessary to build and manage the plant according to the specifications set out in the Concession Agreement53 and to manage the plant when completed.54
c. BEG undertook to begin the works within 10 months of Parliamentary ratification; to complete design within 12 months of the yard opening; and to complete the plant within 48 months of the beginning of the works55 (subject to extensions for delay in the ASB performing its obligations and duties under the Concession Agreement where the ASB is at fault56 and force majeure, discussed further below).
a. seek a "penalty equal to 80% of the Plant turnkey investment ready for the start up," fixed at USD 100,000,000, if Albanian authorities were to expropriate or confiscate the plant;57
b. seek to have privately held land necessary for the construction of the plant expropriated under the Albanian law on expropriation in force as at the signing of the Concession Agreement with the ASB’s assistance and at BEG’s expense;58
c. export all of the energy to which it was entitled under the Concession Agreement;59 and
d. transfer its profits freely.60
a. Exemption from customs duties on BEG’s import and export of goods, a provision which would remain in force even if Albanian law changed.
b. Exemption from tax on profits for the first two years of operation (subject to extension for delay in the ASB performing its obligations and duties under the Concession Agreement where the ASB is at fault62), following which the tax rate would be frozen at 15%.
c. Exemption from VAT.
d. A guarantee that VAT would be refunded within 30 days of BEG’s request for the refund.
a. granted "stabilisation", i.e. that subsequent laws "will not modify, in any way, the duties accepted by the parties, as well as the content of the present Concession Agreement";63
b. agreed to provide any necessary assistance with any organisation and Albanian authority to allow BEG to undertake the project;64 and
c. agreed to declare the plant a priority structure, letting it take precedence in the utilisation of infrastructure and retrieving materials necessary for works.65
To make an example, not limitative, are considered as Force Majeure events as natural catastrophes such as floods and earthquakes, exceptional political events such as wars and revolutions, and third Parties' interventions having a law force.
In case that during the realization of the duties Force Majeure events occur, the Parties will have no right to ask each other refunds for possible delays or non-fulfilment in due time.
As far as the scheduled time is concerned according to previ[ou]s art. 12, will be consequently modified in accordance to the needs deriving from the stop due to the Force Majeure event.
The stop period and the postponing of the foreseen dates for mutual duties' fulfilment will have to be confirmed by integrative minute books to the present Concession Agreement agreed by the Parties.
The Authorized State Organ, according to art. 31, will have the right to start an annulment procedure of the Concession - through a previous warning to remove, by an adequate time, the irregularities that came out and in case the Concessionaire do not conform -beside a serious non-fulfilment of the duties established by the present Concession Agreement, also when the Concessionaire, due to neglicence [sic] and inexperience, compromises - in any phase -the running, the execution and the good results of the works themselves.
Should the situations mentioned in the previous comma occur, the Authorized State Organ will previously ask the Concessionaire to show within 30 days its justifications, and, in case it decides not to accept them, it will be entitled to start the procedure for the rescission, informing the Concessionaire. If for any reason imputable to the Concessionaire, after 15 months from the signing of the present concession Agreement, the Concessionaire do not begin the works, the Authorized State Organ can declare annulled the Concession.
Should the Authorized State Organ be late in the fulfilment of its duties, the Concessionaire may ask to annul the contract by adequate petition, and should it be accepted, the Concessionaire has right to the refund of the expenses supported; should the petition not be accepted, but being the Authorized State Organ still late, the Concessionaire is allowed to ask according to art. 31, for the annulment of the contract and the damage refund, by a previous petition containing the act of the Authorized State Organ being put in arrears.
Should the Authorized State Organ behave in a deeply non-fulfilling way, the Concessionaire has the right to ask for the annulment of the contract and for the damage refund, by a previous petition containing the act of the Authorized State Organ being put in arrears.
4. To authorize B.E.G. SpA to study, at its own expense, the possibility of building hydropower plants on the lower part of the River Vjosa, after the Kalivaç hydropower plant.
If the study supports the construction of another hydropower plant with BOT concession, and if the Government grants its approval, B.E.G. SpA has the right to become the first negotiator.
a. make a capital contribution to Hydro and to provide a shareholders' loan; and
b. use its best efforts to find in the market project finance lenders and also use its commercial best efforts to find a suitable purchaser of energy produced by the Project, if that was a requirement of finance.
In the event that the Concessionaire does not complete the construction works by the date falling 36 months from the date of obtainment of the construction license:
(i) if the delay is attributable to the Concessionaire, the latter shall pay to the Authorised State Body penalties, both in cash and in kind, up to a maximum amount equal to 10% of the Estimated Project Costs; or
(ii) if the delay is attributable to the Authorised State Body, the latter shall pay to the Concessionaire penalties, both in cash and in kind, up to a maximum amount equal to 10% of the Estimated Project Costs.
a. the left and right embankments were prepared to install the dam;
b. excavations were completed, totalling 2,500,000 cubic metres;
c. the aprons were prepared, narrowing the river passage to install the dam; and
d. materials to construct the dam were selected and transported on site.126
In response to that claim, Deutsche Bank brought an ICC claim against BEG ("1st ICC Arbitration"). Deutsche Bank’s claim "expressed concern that BEG and Mr. Becchetti prevented the successful completion of the required activities to bring the Project to Financial Close".150 Deutsche Bank alleged that "the relationship with SACE had become very difficult and asserted that this was in part due to Mr. Becchetti’s interactions with SACE’s representatives".151 Deutsche Bank sought declarations that:
a. Deutsche Bank’s obligation was limited to using its best efforts to find project finance lenders;
b. Deutsche Bank had complied with certain obligations under the JVA and a Shareholders’ Agreement; and
c. BEG had breached its general duty under Italian law to act in good faith in the performance of its obligations under the Shareholders’ Agreement.
the plant would already be in operation or operating within a few months. Had Deutsche Bank procured financing, the Project would have, without any doubt, progressed to the stage of revenue generation. Furthermore, the plant would have been connected to the grid by 31 December 2012.152
That is right but there was no reason to say so because it is not Albania that is responsible, it is the financial crisis and especially the financial crisis that Albania was living through and in the international context of the crisis.
a. €329,292,000 plus interest for "income flows" that Hydro would otherwise have enjoyed relating to the Green Certificates, "calculated until the end of 2008 and then carried forward to 31 December 2012", by reference to the Project’s business plan.
b. €15,992,000 in respect of "an additional cash flow" and damage from lost profits calculated by reference to the business plan, and with additional compensation for delay in receipt. The sum awarded was after having given credit for the €28.9 million awarded in respect of this in the First Rome Award.
c. €10,753,000 in respect of the loss of "an additional profit flow that is no longer attainable". This was compensation for delay in the generation of remaining cash flows in respect of the Project.
d. €40,000,000 for damage to Hydro’s reputation.162
Following to our letter dated 20th of March, 2009, and our last inspections too, we hereby confirm that, no breach of the concession of any sort was carried out by the Concessionaire also with respect to any construction permits, environmental, financing process of the project and EPC Contractor.
The Company has not submitted the document that proves that the Contract is fully financially covered, the disbursement of funds according to the obligation foreseen by Deut[s]che Bank AG, referring to the letter dated 17.01.2007.
the Authorized State Body has not verified the reasons for the delay in expropriation procedures which are exclusively due to the fault of the Authorized State Body itself, which make for us impossible to begin cementing the curtain under the quota of 87m, for which we were and are prepared an in waiting with all the damage that this situation has caused us and will cause us, and we will be forced to seek immediate restitution.183
It should be noted that the time advantage in connection to the schedule has been performed during the excavations in an extreme season for excavations extremely regarding meteorological phenomena, which have provoked at least 18 floods, which under Article 28 of the Contract of the concession entitle us for the significant extension period, which we have the right to document and do not relate to significant delays, as you are claiming.
[...] if seasonal events are encountered, the work schedule will be modified. In the last two years there have been many of these events, which were not verified in the last 20 years, and yet, even to this day, we are not granted postponement. This is another flaw in cooperation on the part of the Concession Granter and it is continuing to cause great damage to the project, and consequently to us.
a. a commission be established to take on consignment the assets on the project's site;
b. the commission prepare an inventory of those assets, the works carried out on the site and a report for the Chairman of the Ministry;
c. the inventory and documentation be transferred for custody and administration to KESH "until the conclusion of the new procedures for granting in concession"; and
d. KESH undertake measures for the custody and security of these assets.
a. failing to fulfil its obligations to finance and complete the project by the deadlines provided in the Concession Agreement;
b. abandoning the project; and
c. failing to fulfil its obligation to provide a financial guarantee, as required by Article 15.3 of the Concession Agreement.
a. First, during the transitional period (which was to end on 17 June 2015), licenses could be awarded by way of a closed "beauty contest" in which "national historic private operators" and "existing operators experienced in digital broadcasting" would be invited to participate.255 This closed "beauty contest" was to be announced within three months and completed within six months of the Law’s coming into force, that is by 5 October 2013.256
b. Later licenses would be awarded by way of an "open competition, thus guaranteeing equal, objective and non-discriminatory treatment."257 The AMA was empowered to decide which operator would be granted the digital license, taking into account eight factors including "the nature, expertise and experience of the applicant" and the applicants’ "financial means".258
I see Agon's camera crew in Gjirokaster. I don't understand why are you doing this to me, I thought you stopped this silly thing the last time!
I don't want this! I'm absolute about that! You are forcing me to be your enemy! Tell [Francesco Becchetti] that the entire government is going to be his enemy for no reason! It's private damn it, respect it, I'm sick of this discussion with all of you!
a. Super Sport should not receive a license because it did not comply with the 2013 Media Law’s requirements regarding cross-media ownership in Article 62.
b. TV Klan and Top Channel complied with the requirements necessary to be awarded a license. In the case of Top Channel, it explicitly assessed its ownership with regard to Article 61 of the 2013 Media Law and considered those requirements were not breached.
Concerning the VAT reimbursement issue, the Ministry of Economy, Trade and Energy (METE), under the authority of the State Authorized Body (OSHA) has addressed, the Ministry of Finance with note no. 10098/2 dated 13.01.2008 to solve this concern (Attached the letter). Being aware of the ongoing delays, we want to inform you that METE will continue its effort to find a quick solution to the reimbursement of VAT issue.354
a. Inspection relating to the applicability of law no. 7928 of 27.04.1995 as amended, and the Directives of the Ministry of Finance "On Value Added Tax".
b. Inspection relating to the application of law no. 9920 of 19.05.2008 "On Tax Procedures in the Republic of Albania and directives pursuant to this law."
c. Inspection relating to the application of the requirements of law no. 8438 of 28.12.1998 "On Income Tax" and Directives of the Ministry of Finance "On Income Tax".
d. Inspection relating to the application of the requirements of law no. 9136 of 11.02.2003 and Directives of the Ministry of Finance "On collecting mandatory social security and health contributions".
e. Inspection relating to the application of law no. 8977 of 12.12.2002 "On the Tax System in the Republic of Albania".
f. Inspection relating to the application of the requirements of law no. 9228 of 29.04.2004 as amended by law no. 9477 of 09.02.2006 "On accounting and financial reports" and Directives of the Ministry of Finance pursuant to them.
g. Specification of the amount of reimbursable VAT, pursuant to the requirements [of law] no. 7928 of 27.04.1995 "On VAT" as amended, and of the Directives of the Ministry of Finance pursuant to it, as regards the confirmation of the Revenue Processing and Management Directorate's letter prot. no. 2148/1 of 16.02.2012, relating to the company's letter no. 04/12 of 07.02.2012, filed by us as no. 2148 no. 07.02.2012
a. invoice No. 36 of 20 October 2010 relates in fact to a work certificate No. 15 dated 24 April 2009 (allegedly outside the permissible period for a claim);
b. invoice No. 37 of 29 October 2010 relates in fact to a works certificate No. 14 of 27 February 2009 (again allegedly outside the permissible period);
c. both invoice No. 43 of 28 March 2011 and invoice No. 47 of 6 December 2011 actually pertain to works carried out in 2009 according to five situation reports (allegedly more than 12 tax periods before the invoice) and Audit No. 8159 concluded that the date had been removed from invoice No. 47 and that relevant situation reports had been "corrected".
a. June 2012 to November 2013 for VAT.
b. The year 2012 for income tax.
c. May 2012 to November 2013 for Social Insurance and others.
2. Importing machinery and equipment performed by the taxpayers specified in point 1 of this decision is exempted from VAT only in cases when such machinery and equipment are imported in order to carry out investment contracts and importation is carried out by taxpayers themselves without subcontracting. The list of machinery and equipment that are directly related to the investment is set forth in the annex 1, which is attached to this decision.
5. [...] The [exemption] procedure is valid only for the goods listed in the Annex 1 attached to this decision.422
a. On 21 April 2014, the Prosecution issued a sequestration order over the building plans and other technical documents relating to the Kalivaç Project held by KGE.443 The order recited that "According to the files administered during the investigation on this case, it appears that [Enerji and KGE] have performed among them financial transactions that create doubts in relation to the source of these transactions" and was apparently based in particular on the fact that "in 1997 the investment value was foreseen to be equal to 100.000.000 US dollars, and in the Addendum to the contract approved in 2007, the works value was foreseen to 129.000.000 Euro."444 The sequestration order was not sent to KGE until 12 September 2014.
b. On 23 June 2014, the Prosecution ordered the seizure of 69 invoices issued on the Kalivaç Project from KGE and Energji.445 This was the first time that any of the Claimants had been informed of the existence of Criminal Proceeding No. 1564. Again, the basis for the sequestration order was said to be an allegation of money laundering: "[...] it appears that the commercial companies ‘Kalivaç Green Energy’, ‘Cable System’ sh.p.k., ‘400 KV’, ‘Energji’ Sh.p.k., ‘Agonset’, carried out suspicious financial transactions between them, which create doubts about the source of funding."446
c. On 26 June 2014, the Prosecution seized "all fiscal buying and selling invoices, that are related to the construction of the Hydropower Plant of Kalivaç, as well as the contracts stipulated between this company and the contractor and its subcontractors" for KGE and Energji.447
d. Also on 26 June 2014, the Prosecution sent a seizure notice to Cable System for identical reasons and for the same Project, except that this time the allegation was with respect to Cable System, 400 KV, and Energji.448
e. On 26 August 2014, the Prosecution seized "all the fiscal acquisition invoices (accompanied with the works progress situations), from all the subcontractors that have carried out works at the Hydropower Plant of Kalivaç" from 400 KV, Cable System, Fuqi, and Investime te Rinovueshme. This time, however, the charge was that only Cable System, 400 KV, Energji and Fuqi had performed suspicious financial transactions.449
f. On 19 December 2014, Albanian authorities seized "all the original situation reports generated during the construction of the Kalivaç Hydroelectric Plant" from KGE. The basis for this seizure was stated to be "suspicious financial transactions" between KGE and Energji.450
g. On 19 January 2015, the Prosecution confiscated "all the certificates of the taking delivery of works and the contract(s) concluded between Energji sh.p.k. and Kalivaç Green Energy sh.p.k." from KGE on the suspicion that "suspicious financial transactions" were carried out between KGE and Energji.451
h. On 27 April 2015, the Prosecutor issued an order to examine documents relating to certain of KGE’s revenues, on the basis of "suspicious financial transactions" between KGE, Cable System, 400 KV, and Energji.452