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Final Award

LIST OF MAIN ABBREVIATIONS

Albpetrol Albpetrol Sh.A
Albpetrol Agreement Agreement between the Ministry of Industry, Natural Resources and Energy and Albpetrol, oil and gas corporation dated 26 July 1993
AKBN National Agency of Natural Resources of the Republic of Albania
Amending Agreements First Amending Agreement between Albpetrol Sh.A and TransAtlantic Albania Ltd. in relation to the Petroleum Agreements, signed on 26 May 2015
ASP Albpetrol's percentage share of Available Petroleum
Available Petroleum After deduction of PEP, remaining petroleum not used in Petroleum Operations
Ballsh License Agreement License Agreement for the Development and Production of Petroleum in Ballsh-Hekal Oilfield dated 4 July 2017 between the Ministry of Economy, Trade and Energy as represented by the National Agency of Natural Resources and Albpetrol Sh.A
Ballsh Oilfield Ballsh-Hekal Oilfield
Ballsh Petroleum Agreement Petroleum Agreement for the Development and Production of Petroleum in Ballsh-Hekal Field between Albpetrol Sh.A and Stream Oil & Gas Limited
BPAL Bankers Petroleum Albania Ltd
Cakran License Agreement License Agreement for the Development and Production of Petroleum in Cakran-Mollaj Oilfield dated 4 July 2017 between the Ministry of Economy, Trade and Energy as represented by the National Agency of Natural Resources and Albpetrol Sh.A
Cakran Oilfield Cakran-Mollaj Oilfield
Cakran Petroleum Agreement Petroleum Agreement for the Development and Production of Petroleum in Cakran-Mollaj Field between Albpetrol Sh.A and Stream Oil & Gas Limited
Continental Continental Oil & Gas Ltd.
Cost Recovery Petroleum Licensee's / Contractor's percentage share of Available Petroleum
Gorisht License Agreement License Agreement for the Development and Production of Petroleum in Gorisht-Kocul Oilfield dated 4 July 2017 between the Ministry of Economy, Trade and Energy as represented by the National Agency of Natural Resources and Albpetrol Sh.A
Gorisht Oilfield Gorisht-Kocul Oilfield
Gorisht Petroleum Agreement Petroleum Agreement for the Development and Production of Petroleum in Gorisht-Kocul Field between Albpetrol Sh.A and Stream Oil & Gas Limited
Haywood Haywood Securities (UK) Limited
Instrument of Transfer Annex E to the Petroleum Agreements
January 2017 Cash Payment Agreements or Conversion Agreements Agreement on rules and procedures for obtaining in cash the corresponding value of the amount of deemed production (PEP) for the calendaric year 2015 on Gorisht-Kocul Oilfield between TransAtlantic Albania Ltd. and Albpetrol Sh.A. dated 19 January 2017 Agreement on rules and procedures for obtaining in cash the corresponding value of the amount of deemed production (PEP) for the calendaric year 2014 on Cakran-Mollaj Oilfield between TransAtlantic Albania Ltd. and Albpetrol Sh.A. dated 20 January 2017
March 2016 Breach Notice Letter from Albpetrol to TranAtlantic Albania Ltd. dated 7 March 2016
May Meeting Meeting held on 5 May 2016 between the MEI, GBC and Albpetrol
MEI Ministry of Energy and Industry of the Republic of Albania
METE Ministry of Economy, Trade and Energy of the Republic of Albania
MIE Ministry of Infrastructure and Energy of the Republic of Albania
Ministry of Economic Development Ministry of Economic Development, Tourism, Trade and Entrepreneurship
PEP Albpetrol's share of deemed production of petroleum
PEP&ASP Liability Claimant's liabilities for delivery of PEP&ASP obligations in respect of the Cakran and Gorisht Oilfields
Petroleum Costs Costs and expenses incurred in operating each Oilfield
Petroleum Fiscal Law Law on the Fiscal System in the Hydrocarbons Sector (Exploration – Production) No. 7811 dated 12 April 1994
Petroleum Law Albania's Petroleum Law (Exploration and Production) No. 7746 of 28 July 1993
Petroleum Law Amendment Amendment to the Petroleum Law dated 29 July 1994 incorporating the Albpetrol Agreement to the Petroleum Law
Pre-2014 Liabilities Cash Conversion Agreement or Agreement for the payment of the crude oil obligation for the non-delivered deemed production (PEP) and Albpetrol share of production (ASP) from the effective date until December 31, 2013 for Cakran-Mollaj, Gorisht-Kocul and Delvina Fields dated 28 February 2014, between Stream Oil and Gas Ltd and Albpetrol (translation submitted by Claimant)
28 February 2014 Conversion Agreement Agreement for the liquidation of the obligation in crude oil for the undelivered share of estimated production (EPP) and Albpetrol production share(APS) for the oil fields of Cakran-Mollaj, Gorisht-Kocul and Delvine, from the effective date until 31.12.2013 (translation submitted by Respondents)
SCO Swiss Code of obligations
Settlement Agreement Agreement for settlement of the mutual obligations between Albpetrol Sh.A, Transatlantic Albania Ltd. (formerly known as Stream Oil & Gas Ltd.), the Ministry of Finance and the Ministry of Economic Development, Tourism, Trade and Entrepreneurship
SOG Stream Oil and Gas Ltd
SPILA Swiss Private International Law Act
Stream Stream Oil & Gas Ltd
TAT TransAtlantic Holdings B.C. Ltd
TransAtlantic TransAtlantic Albania Ltd
Termination Notices Termination letter from Albpetrol to TransAtlantic Albania Ltd. regarding the Cakran-Mollaj Oilfield dated 19 September 2016 and Termination letter from Albpetrol to TransAtlantic Albania Ltd regarding the Gorisht-Kocul Oilfield dated 19 September 2016

1. THE PARTIES, THE ARBITRAL TRIBUNAL AND THE ARBITRATION AGREEMENTS

1.1. Claimant

1.
GBC Oil Company Ltd. (hereafter, "GBC" or "Claimant"), which was previously successively named Stream Oil & Gas Ltd (hereafter, "Stream") and TransAtlantic Albania Ltd (hereafter, "TransAtlantic"), is a company registered and incorporated under the laws of the Cayman Islands1 under number GC-188194,2 with the following address:

GBC Oil Company Ltd.
PO Box 448, George Town
Grand Cayman, KY1 1106
CAYMAN ISLANDS3

2.
Claimant indicates that it "carries on business in Albania as a producer of oil and gas, having a branch registration in Albania under the name TransAtlantic Albania".4
3.
GBC is owned by Stream Oil and Gas Ltd. (hereafter, "SOG"), a company incorporated under the laws of British Columbia, Canada.
4.
On 18 November 2014, SOG was acquired by TransAtlantic Holdings B.C. Ltd. (hereafter, "TAT") a company incorporated under the laws of British Columbia, Canada.5
5.
Since 29 February 2016, SOG has itself been owned by GBC Oil Company Ltd., a company incorporated under the laws of the British Virgin Islands (hereafter, "GBC BVI").6 GBC BVI is owned by Continental Oil & Gas Ltd (hereafter, "Continental"), a company incorporated under the laws of Delaware, United Stated of America. In its Request for Arbitration, Claimant stated that Continental was the parent company that owned and controlled Claimant at 100%, via GBC BVI and SOG.7
6.
Claimant submitted the following chart to illustrate the organization of its corporate group:8
7.
In their Statement of Defence, Respondents argued that Claimant had not provided any documentary evidence for its legal existence. Respondents did not accept Exhibit C-1 as a Certificate of Incorporation and Name Change, but as a "mere uncertified copy of an alleged "Certificate of Incorporation on Change of Name"", which was insufficient to prove Claimant's existence.9
8.
Claimant responded to that allegation in its Reply, by arguing that it was validly incorporated pursuant to the laws of the Cayman Islands and filing Exhibit C-163, a Certificate of Good Standing of GBC Oil Company Ltd. dated 28 March 2018.10 Claimant added that up to the end of 2016, it had offices, staff, technical and financial support in different locations. According to Claimant, the issues of (i) who its shareholders were in 2007 and today and (ii) the fact that it did not have its branch registration name updated from Transatlantic Albania Ltd. to GBC Oil Company Ltd are irrelevant to the arbitration.11
9.
Claimant is represented in this arbitration by the following counsel, to whom all notices and communications relating to this arbitration shall be delivered:

Mr. Geoffrey Holub
Mr. Trent Mercier
Mr. David M. Price
STIKEMAN ELLIOTT LLP
888 3rd St SW
Calgary AB T2P 5C5
CANADA
gholub@stikeman.com
tmercier@stikeman.com
dprice@stikeman.com

Dr. Philipp Habegger LL.M
HABEGGER ARBITRATION Mühlebachstrasse 173
CH-8001 Zurich
SWITZERLAND
phabegger@habegger-arbitration.net

Mr. Olivier Mosimann
KELLERHALS CARRARD
Hirschgaesslein 11 CH-4010 Basel
SWITZERLAND
olivier.mosimann@kellerhals-carrard.ch

1.2. Respondents

A. The determination of the Ministry acting as First Respondent in these proceedings

10.
A question arose at a late stage of the proceedings concerning whether the first Respondent in these proceedings is the Ministry of Energy and Industry of the Republic of Albania (hereinafter, "MEI") or the Ministry of Infrastructure and Energy (hereinafter, "MIE"). The Tribunal will briefly review the sequencing of events and set out the Parties' main arguments before making a decision on this issue.
11.
As a preliminary point, and as will be detailed in section 1.4 below, Claimant bases its claims upon the arbitration agreements contained in the License Agreements entered into between the Ministry of Economy, Trade and Energy (hereinafter, "METE"), as represented by the National Agency of Natural Resources and Albpetrol Sh.A on 4 July 2007.
12.
On 17 March 2017, Claimant filed its Request for Arbitration with the ICC Court against the MEI, the National Agency of Natural Resources and Albpetrol Sh.A.
13.
On 5 May 2017, these three entities submitted an Answer to the Request for Arbitration.
14.
The MEI, the National Agency of Natural Resources and Albpetrol Sh.A then signed the Terms of Reference dated 26 October 2017.
15.
On 14 November 2017, Claimant submitted its Statement of Claim, naming the MEI as the first Respondent.
16.
On 9 April 2018, Respondents submitted their Statement of Defence, naming the MIE as the first Respondent.
17.
On 1 August 2018, Claimant submitted its Reply, naming the MEI as the first Respondent and, on 7 November 2018, Respondents submitted their Rejoinder Brief, naming the MIE as the first Respondent.
18.
On 12 November 2019, the Tribunal informed the Parties that it noticed that counsel for Respondents now filed submissions on behalf of the MIE instead of the MEI, as was the case at the beginning of the proceedings. Given that the change was not officially notified, the Tribunal requested counsel for Respondents to confirm that it was simply a name change and to indicate when the change took place.

1. Parties' arguments on the determination of the Ministry acting as First Respondent

19.
The Parties exchanged several emails and letters on this issue between 20 November 2019 and 28 January 2020, which are summarized as follows.
20.
In response to the Tribunal's question, on 20 November 2019, Respondents stated that no legal act expressly stipulated a change of name concerning the MIE, but that the Albanian Council of Ministers' Decision no. 504 dated 13 September 2017 (submitted at exhibit RL-50) conferred to the MIE the responsibility for the energy sector and the exploitation of energy and mining resources, for which the MEI was previously responsible since 2013. Decision No. 833 dated 18 September 2013, which determined the area of responsibility of the MEI, was repealed by Decision no. 504 dated 13 September 2017.
21.
On 22 November 2019, the Tribunal asked Respondents to confirm that the MIE was now a party to the arbitration instead of the MEI, in which case counsel for Respondents should notify this change to the ICC Court.
22.
On 29 November 2019, Respondents stated that following Decision no. 504, the MIE had the responsibility for the energy sector and the exploitation of energy and mining resources "and [was] therefore the party to this arbitration instead of the Ministry of Energy and Industry (MEI) as referred to in the Request for Arbitration. A Ministry called Ministry of Energy and Industry does no longer exist in the Republic of Albania".
23.
Invited by the Tribunal to comment, Claimant stated that it did not object to the correction of the Respondent party based on the understanding that the MIE assumed the rights and obligations of the MEI and on the condition that the change of this party would not have any negative effect on the enforceability of the final award.
24.
On 20 December 2019, the Tribunal requested Respondents to confirm that the MIE assumed the rights and obligations of the MEI and to provide supporting evidence in that respect.
25.
On 6 January 2020, Respondents responded that, in their understanding, the content of Decision no. 504 included the assumption of the related rights and obligations from the MEI. A reading of the Petroleum Law supports this conclusion. Respondents also argued that Claimant: (i) had ample opportunity to comment on Decision no. 504 and on the stipulations of the Petroleum Law, but did not present evidence indicating that the MEI continued to be responsible for the hydrocarbon sector and related contracts; (ii) never objected to the correction of the Respondent party from MEI to MIE throughout the arbitration, so that the legal situation as presented by Respondents was unchallenged; and (iii) filed its Statement of Claim against the MEI although it based its claims on the License Agreements signed by the METE and assumed that the Ministry liable under certain agreements may change.
26.
On 7 January 2020, the Tribunal invited Claimant to provide its potential comments and emphasized that no new facts or further legal arguments should be introduced by the Parties at this late stage of the proceedings.
27.
On 20 January 2020, Claimant pointed out that Respondents never informed the Tribunal or Claimant of any change of parties or legal succession from the MEI to the MIE. In fact, on 5 October 2017, the State Advocate's Office of the Republic of Albania signed the Terms of Reference on behalf of the MEI, almost a month after the MEI supposedly ceased to be a party to the License Agreements and/or no longer existed, pursuant to Decision no. 504 of 13 September 2017. Moreover, although the change of party from the MEI to the MIE was reflected in the document notifying Clifford Chance's appointment as counsel for Respondents communicated on 5 January 2018, as well in Respondents' submissions, the change was never officially notified.
28.
Claimant accepted, as offered by the MIE on 29 November 2019, to add the MIE to the arbitration and to have it treated as a party which has assumed all obligations of the MEI under the License Agreements. However, Respondents have not met their burden of proving that the MEI has ceased to exist and has been released from its obligations under the License Agreements, which does not necessarily follow from Decision no. 504 dated 13 September 2017. According to Claimant, the MIE should be added as a fourth Respondent on the basis of the Swiss law doctrine of cumulative assumption of debt leading to an extension of the arbitration agreement.
29.
In conclusion, Claimant requested the Tribunal to rule that: (a) the MIE shall be added as a fourth Respondent and that all of Claimant's claims against the MEI shall be deemed claims against the MEI and the MIE; or (b) in the alternative, the designation of the first Respondent shall be changed to the MIE "as the legal successor" of the MEI and all of Claimant's claims against the MEI shall be deemed claims against the MIE (as the legal successor of the MIE); or (c) in the further alternative, the designation of the first Respondent shall be changed to the MIE and that all of Claimant's claims against the MEI shall be deemed claims against the MIE.
30.
On 27 January 2020, Respondents argued that the First Respondent is the MIE and that the Tribunal should consequently change the designation of the First Respondent to the "Ministry of Infrastructure and Energy (Republic of Albania)". Respondents' main argument is that the MEI does not exist anymore given that Decision no. 504 of the Council of Ministers put an end to its existence and repealed Decision no. 833 of 18 September 2013 which formerly attributed responsibility (and liability) to the MEI. Respondents therefore dismissed Claimant's argument that there could be a cumulative assumption of debt between the MEI and the MIE.
31.
According to Respondents, Claimant never objected to the correction of the Respondent party from the MEI to the MIE in Respondents' Statement of Defence and throughout the arbitration. Moreoever, Claimant accepted the mechanism argued by Respondents because, although the License Agreements on which Claimant based its claims were concluded with the METE and not with the MEI, Claimant chose to raise claims against the MEI. By referring to the "responsibility for the oil sector", Claimant itself has taken the position that the attribution of responsibility in the Albanian state-organisation triggers the liability under the License Agreements, in line with Decision no. 833 dated 18 September 2013 and Decision no. 504 dated 13 September 2017.
32.
On Claimant's motion to change the designation of the First Respondent to the MIE "as the legal successor" of the MEI, Respondents indicate that the available Albanian laws and decrees do not suggest that the MIE is the full legal successor of the MEI, as, for instance, the competence for industry matters is not covered by Decision no. 504. Moreover, Claimant has not presented any Albanian laws or decrees that would support this motion.
33.
On 28 January 2020, Claimant reiterated that, given that Respondents did not prove that the MEI was released from its obligations and liabilities under the License Agreements, the MEI should not be released as Respondent from this arbitration. Claimant points out that the MEI's capacity as a party under the License agreements at the time when Claimant initiated the arbitration is undisputed and that the MEI signed the Terms of Reference. Claimant also argues that its submissions are not contradictory given that it did not allege that the METE was released from its obligations and existing liabilities under the License Agreements.

2. Tribunal's decision on the determination of the Ministry acting as First Respondent

34.
The Tribunal first notes that Claimant filed its Request for Arbitration with the ICC Court against the MEI as First Respondent and not against the Albanian State.
35.
The Tribunal also notes that counsel for Respondents did not sponteanously notify the Tribunal, Claimant and the ICC Court that the MEI was no longer in existence and was replaced as a party to this arbitration by the MIE pursuant to Decision no. 504 of the Council of Ministers dated 13 September 2017. In fact, Respondents did not submit Decision no. 504 as an exhibit in this arbitration until 20 November 2019, when it was asked by the Tribunal to explain the change of denomination of the first Respondent. Contrary to what Respondents argue, it was not the responsibility of Claimant to object to the mention of the MIE in lieu of the MEI in Respondents' Statement of Defence and their following submissions.
36.
That being said, it is uncontested by the Parties that Decision no. 833 of the Council of Ministers dated 18 September 2013, which gave the responsibility for the oil sector to the MEI instead of the METE, constituted a basis for the MEI to be a party to these proceedings based on the License Agreements signed by the METE.
37.
The Tribunal is convinced that, similarly, section II of Decision no. 504 which gave the MIE responsibility for the energy sector and the exploitation of energy and mining resources, made the MIE the legal successor of the MEI's rights and obligations under the License Agreements.
38.
The MIE should therefore be a party to the present proceedings instead of the MEI, and Claimant's claims against the MEI should be considered as claims against the MIE.
39.
This conclusion is supported by the fact that, as argued by Respondents, Claimant did agree to the mechanism described above when it initiated the present proceedings against the MEI and not the METE despite the fact that the signatory to the License Agreements was the METE.
40.
Therefore, the Tribunal concludes that Respondents in this arbitration are:

1. The Ministry of Infrastructure and Energy (as the legal successor of the MEI under the License Agreements)

Rr. "Abdi Toptani", Nr.1, 1001,
Tiranë
ALBANIA

(hereafter, "MIE", "First Respondent" or "the Ministry"). First Respondent is a primary organ of the Albanian Government responsible for the regulation of Albania's oil and gas industry.12

Given that the First Respondent has been designated as the MEI by Claimant and as the MIE by Respondents throughout most of the proceedings, the Tribunal will leave the term "MEI" when referring to and quoting Claimant's submissions.

2. The National Agency of Natural Resources

Bulevardi Bajram Curri, Blloku Vasil Shanto,
Tiranë
ALBANIA

(hereafter, "AKBN" or "Second Respondent"). Second Respondent is a primary organ of the Albanian Government that oversees the oil and has activities in Albania.13

3. Albpetrol Sh.A.

Rruga Fier-Patos Km. 7, Patos,
Fier
ALBANIA

(hereafter, "Albpetrol" or "Third Respondent"). Third Respondent is 100% held by the Albanian State.14

B. Representation of Respondents in these proceedings

41.
Respondents are represented in this arbitration by the following counsel, to whom all notices and communications relating to this arbitration shall be delivered:

Ms. Enkelejda Mucaj
Ms. Boriana Nikolla
Mr. Helidon Jacellari
The State Advocate's Office of the Republic of Albania
Ministry of Justice
6th floor, Bulevardi "Zogu I" Tirana
ALBANIA
Tel: +355 4 2253600
Enkelejda.Mucaj@avokaturashtetit.gov.al
boriana.nikolla@avokaturashtetit.gov.al
helidon.jacellari@avokaturashtetit.gov.al

Mr. Audley Sheppard, QC
Clifford Chance
10 Upper Bank Street
London, E14 5JJ
UNITED KINGDOM
audley.sheppard@cliffordchance.com

Mr. Tim Schreiber, LL.M and
Mr. Olivier Seyd
Clifford Chance
Lenbachplatz 1
80333 Munich
GERMANY
tim.schreiber@cliffordchance.com
olivier.seyd@cliffordchance.com

42.
MEI, AKBN and Albpetrol are hereafter referred to collectively as "Respondents".
43.
Claimant and Respondents are hereafter referred to individually as a "Party" and collectively as the "Parties".

1.3. The Arbitral Tribunal

44.
The Arbitral Tribunal consists of three arbitrators (hereinafter the "Tribunal"), one arbitrator appointed by each of the Parties and one Chairman of the Tribunal appointed by the Parties (hereinafter the "Chairman"):

Chairman of the Tribunal

Professor Christophe Seraglini
FRESHFIELDS BRUCKHAUS DERINGER LLP
2 rue Paul Cézanne
75008 Paris
FRANCE
T: +33 1 44 56 27 44
christophe.seraglini@freshfields.com

Ms. Loretta Malintoppi
39 ESSEX CHAMBERS
32 Maxwell Road #02-16
069115 Singapore
SINGAPORE
T: +6566341336
loretta.malintoppi@39essex.com

Dr. Sabine Konrad
MORGAN, LEWIS & BOCKIUS LLP
OpernTurm
Bockenheimer Landstr. 4
60306 Frankfurt am Main
GERMANY
T: +49 69 714 00 777
sabine.konrad@morganlewis.com

Dr. Sabine Konrad was appointed by the ICC Court in November 2017 following the resignation of Ms. Maxi Scherer as Co-Arbitrator.

45.
After consulting the Parties and with their approval, the Tribunal has appointed as Administrative Secretary:

Ms. Camille Teynier
FRESHFIELDS BRUCKHAUS DERINGER LLP
2 rue Paul Cézanne
75008 Paris
FRANCE
T: +33 1 44 56 27 44
camille.teynier@freshfields.com

Ms. Teynier was the third administrative secretary to be appointed by the Tribunal, as will be developed in the procedural background below.

1.4. The arbitration agreements and applicable law

46.
The present arbitration proceedings relate to the Parties' dispute with respect to Claimant's right to conduct petroleum operations in three onshore oilfields in the Republic of Albania, namely the Cakran-Mollaj Oilfield (hereafter, the "Cakran Oilfield"), the Gorisht-Kocul Oilfield (hereafter, the "Gorisht Oilfield") and the Ballsh-Hekal Oilfield (hereafter, the "Ballsh Oilfield", together the "Oilfields").
47.
In particular, on 4 July 2007, the following agreements were entered into:

(i). The License Agreement for the Development and Production of Petroleum in Cakran-Mollaj Oilfield dated 4 July 2007 between the Ministry of Economy, Trade and Energy as represented by the National Agency of Natural Resources and Albpetrol Sh.A (hereafter, the "Cakran License Agreement");

(ii). The License Agreement for the Development and Production of Petroleum in Gorisht-Kocul Oilfield dated 4 July 2007 between the Ministry of Economy, Trade and Energy as represented by the National Agency of Natural Resources and Albpetrol Sh.A (hereafter, the "Gorisht License Agreement");

(iii). The License Agreement for the Development and Production of Petroleum in Ballsh-Hekal Oilfield dated 4 July 2007 between the Ministry of Economy, Trade and Energy as represented by the National Agency of Natural Resources and Albpetrol Sh.A (hereafter, the "Ballsh License Agreement", together the "License Agreements", sometimes referred to by the Parties as "LAs".).

48.
The following agreements were then entered into:

(i). The Petroleum Agreement for the Development and Production of Petroleum in Cakran-Mollaj Field between Albpetrol Sh.A and Stream Oil & Gas Limited (hereafter, the "Cakran Petroleum Agreement");

(ii). The Petroleum Agreement for the Development and Production of Petroleum in Gorisht-Kocul Field between Albpetrol Sh.A and Stream Oil & Gas Limited (hereafter, the "Gorisht Petroleum Agreement");

(iii). The Petroleum Agreement for the Development and Production of Petroleum in Ballsh-Hekal Field between Albpetrol Sh.A and Stream Oil & Gas Limited (hereafter, the "Ballsh Petroleum Agreement", together the "Petroleum Agreements", sometimes referred to by the Parties as "PAs").

49.
The date of the Petroleum Agreements is disputed between the Parties. Indeed, Claimant submitted versions of the Petroleum Agreements bearing the date of 8 August 2007 on their first page,15 whereas Respondents submitted versions bearing the date of 19 July 2007 on their first page.16 The Parties agree that there appears to be no difference between the two versions of the Petroleum Agreements, except for the different dates.17
50.
Claimant relies upon the arbitration agreements contained in Articles 25.3 of the License Agreements, which are drafted in identical terms and read as follows:

"25.3 Arbitration between AKBN, Albpetrol and Foreign Partner(s).

(a) All disputes arising in connection with this License Agreement between AKBN, Albpetrol and foreign partner(s) shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce ("ICC"). Said arbitration shall be carried out by, in the case of mere technical matters, one (1) arbitrator and, in the case of all other disputes, three (3) arbitrators, appointed by the ICC Court of Arbitration in accordance with said Rules and their interpretation by said Court. In that regard, the Parties hereto waive the right each to nominate an arbitrator and as of now accept the appointment made by the ICC Court as it deems best. Consistent with the Parties desire to have an expedited arbitration proceeding the appointment of the arbitrator(s) shall occur within ten (10) days from the date in which a Party hereof delivers to the other a written notice requesting that the dispute be submitted to arbitration, which written notice shall clearly state the issue in dispute, and any other relevant fact. Notwithstanding the foregoing, no arbitrator shall be Albanian or a national of the country of LICENSEE, nor shall any arbitrator be related to, employed by or have (or had) a substantial or ongoing business relationship with any Party hereto or any of their respective Affiliates. Shortened time limits for the procedural aspects of the proceeding, including but not limited to discovery and submission of prehearing briefs, shall be imposed, in consultation with the Parties, by the arbitrator(s).

(b) The arbitration proceeding shall take place in Zurich, Switzerland and shall be conducted in the English language. All documents submitted therein and the award of the arbitral panel shall also be in English.

(c) Clauses of this License Agreement related to arbitration will continue to be in force despite the termination of this License Agreement.

(d) The Ministry and AKBN irrevocably waive any right of immunity or any right to object to this arbitration agreement, any arbitration award, any judgment regarding the enforcement of an arbitration award of the execution of any arbitration award against or in respect of any of its property whatsoever it now has or may acquire in the future in any jurisdiction.

(e) The Party that loses an arbitration decision shall pay all expenses incurred in connection with such arbitration, including, but not limited to, the fees and expenses of the arbitrator(s). All such costs and expenditures shall not be considered as Petroleum Costs and shall not be recoverable under this License Agreement.

(f) Each Party hereto agrees that any arbitral award rendered against it pursuant to this Section 25.3 may be enforced against assets wherever they may be found and that a judgment upon the arbitral award may be entered in any court having jurisdiction thereof".

51.
The License Agreements contain the following clause concerning the law applicable to the dispute:

"26.1. Governing Law.

(a) Subject to section 26.1(b), the activities of LICENSEE in performing the Petroleum Operations shall be governed by and conducted in accordance with the requirements of the Albanian Law.

(b) All questions with respect to the interpretation or enforcement of, or the rights and obligations of the Parties under, this License Agreement and which are the subject of arbitration in accordance with ARTICLE 25

(i). shall be governed by the laws of the Republic of Albania in the case of a dispute subject to resolution under ARTICLE 25, Section 25.2; or

(ii). shall be governed by the laws of Switzerland in the case of a dispute subject to resolution under ARTICLE 25, Section 25.3".18

2. PROCEDURAL BACKGROUND

52.
On 17 March 2017, Claimant filed its Request for Arbitration with the ICC Court.
53.
On 21 March 2017, the Secretariat of the ICC Court acknowledged receipt of Claimant's Request for Arbitration.
54.
On 4 April 2017, the Secretariat informed Claimant that it was notifying the Request for Arbitration to Respondents and indicated that since the arbitration agreements did not specify the number of arbitrators but provided, in relevant part, that "[s]aid arbitration shall be carried out by, in the case of mere technical matters, one (1) arbitrator and, in the case of all other disputes, three (3) arbitrators, appointed by the ICC Court of Arbitration in accordance with said Rules and their interpretation by said Court (…)", it understood that the matter would be submitted to three arbitrators to be appointed by the Court. The Secretariat requested Claimant to provide an estimate of the monetary value of its claims by 7 April 2017 in order for the ICC Court to fix the advance on costs. Failing receipt of such estimate, it indicated that the Secretary General will fix the advance on costs at his discretion.
55.
On the same day, the Secretariat notified the Request for Arbitration to Respondents, invited Respondents to submit their Answer to the Request for Arbitration (hereafter, the "Answer") within 30 days from the day following receipt of this communication, and provided the same information as to the constitution of the Tribunal.
56.
On 6 April 2017, the Secretariat reminded Claimant that it was expecting the quantification of its claims by 7 April 2017.
57.
On 7 April 2017, Claimant indicated that it currently estimated the damages to be USD 75 million. "In light of the fact that one of the Respondents has not yet been served by the ICC", Claimant also requested that the ICC only require payment of the provisional advance on costs at this stage.
58.
On 10 April 2017, the Court directly appointed Mr. Christophe Seraglini as President of the Tribunal, Ms. Loretta Malintoppi as Co-Arbitrator and Ms. Maxi Scherer as Co-Arbitrator.
59.
In addition, the Court fixed, "in light of the fast track nature of this dispute", an advance on costs at US$ 710 000, "based on the amount in dispute, the expedited nature of the proceedings, and three Arbitrators". The Court invited the Parties to pay their share of the advance on costs by 9 May 2017.
60.
On 25 April 2017, Claimant requested an extension of time for payment of its share of the advance on costs to 31 May 2017.
61.
On 26 April 2017, the Secretariat indicated that, in light of the fact that the Tribunal was already constituted, it granted Claimant until 9 May 2017 to pay its share of the advance on costs.
62.
On 6 May 2017, Respondents filed their Answer dated 5 May 2017.
63.
On 9 May 2017, Claimant requested an extension of time for payment of its share of the advance on costs to 31 May 2017.
64.
On 11 May 2017, the Tribunal informed the Parties that it had received the case file and that it would start preparing the draft Terms of Reference and Procedural Order n°1. The Tribunal invited the Parties to submit the abstracts of their respective claims and positions by 23 May 2017.
65.
In addition, the Tribunal proposed the appointment of Ms. Elsa Nicolet as Administrative Secretary to the proceedings and invited the Parties to confirm that they had no objections to such appointment by 23 May 2017.
66.
On the same day, the Secretariat invited Respondents to provide 1 original copy of its Answer. The Secretariat noted that Respondents raised a plea pursuant to Article 6(3) of the ICC Rules and that such plea would be decided directly by the Tribunal after the advance on costs was paid and after providing the Parties with an opportunity to comment.
67.
The Secretariat noted that the Parties had still not paid the balance of the advance on costs and invited the Parties to proceed with the payment by 26 May 2017.
68.
On 23 May 2017, Claimant submitted its brief abstract for incorporation in the Terms of Reference and indicated that it "may be required to amend the nature of the relief sought in the Request for Arbitration to withdraw its request for specific performance and seek only damages, depending on the circumstances as they exist at the time the Terms of Reference are being finalized".
69.
Claimant also confirmed that it had no objection to the appointment of Ms. Elsa Nicolet as Administrative Secretary.
70.
On the same day, Respondents communicated their brief abstract to be incorporated into the Terms of Reference. Respondents also confirmed that they had no objections to the appointment of Ms. Elsa Nicolet as Administrative Secretary.
71.
On 1 June 2017, the Court extended the time limit for establishing the Terms of Reference until 31 July 2017.
72.
On 2 June 2017, the Secretariat granted the Parties additional time to pay the balance of the advance on costs, i.e. until 19 June 2017.
73.
On 19 June 2017, Claimant indicated that it had transferred US$ 30,000 to the ICC and that the balance of the advance on costs will be transferred immediately.
74.
On 22 June 2017, Claimant confirmed that it had transferred the balance of its share of the advance on costs.
75.
On 26 June 2017, the Secretariat acknowledged receipt of Claimant's share of the advance on costs and granted Respondents additional time to pay their share, i.e. until 11 July 2017.
76.
On 12 July 2017, the Tribunal communicated to the Parties a draft Terms of Reference as per Article 23 of the ICC Rules, inviting them to provide their comments and modifications before the Case Management Conference Call to be scheduled.
77.
On 26 July 2017, the Parties submitted their comments on the draft Terms of Reference.
78.
The Case Management Conference call took place on 27 July 2017, as agreed between the Parties and the Tribunal on 17 July 2017. During the Case Management Conference, Claimant requested that the proceedings be bifurcated into a jurisdictional phase and a merit phase. Respondents indicated that they were also in favour of a bifurcation but that they would not oppose a joinder if the Tribunal were to decide that way. Respondents thus requested that the Tribunal make a determination on the matter of bifurcation.
79.
On 31 July 2017, the Secretariat informed the Tribunal and the Parties that, on 6 July 2017, the ICC Court had extended the time limit for establishing the Terms of Reference until 31 August 2017 as per Article 23(2) of the ICC Rules.
80.
On 3 August 2017, the Tribunal communicated to the Parties an updated version of the draft Terms of Reference, inviting them to provide their comments by 8 August 2017.
81.
On 8 August 2017, Claimant provided its comments on the draft Terms of Reference and Respondents requested the Tribunal to grant them two additional days to provide their comments.
82.
On 8 August 2017, Enea Karakaci from the State Advocate's Office of Albania informed the Tribunal that the State Advocate's Office's representation was exercised without the requirement or need of any authorization, and provided relevant excerpts of Albanian law. Enea Karakaci added that the State Advocate's Office considered that the power of attorneys required were not valid in terms of Albanian law and practice but that, if the Tribunal still considered that power of attorneys were necessary, the State Advocate's Office would comply with such request.
83.
On 9 August 2017, the Tribunal granted to Respondents the two-day extension requested to provide their comments on the draft Terms of Reference.
84.
On 9 August 2017, Claimant provided to the Tribunal a photograph of the power of attorney given to its counsel, the PDF of the original version being sent on 11 August 2017.
85.
On 9 August 2017, the Tribunal communicated to the Parties its decision to join the jurisdictional and the merits phase of the proceedings, after considering (i) the Parties' positions expressed during the Case Management Conference, (ii) the Tribunal's limited knowledge of the case at this early stage of the proceedings, (iii) the fact that the jurisdictional objections raised by Respondents seemed potentially closely related to the merits of the case and (iv) the need to conduct the arbitration proceedings in an expeditious and cost-effective manner pursuant to Article 22(1) of the ICC Rules. The Tribunal therefore invited the Parties to confer and provide it either jointly or separately with a proposed procedural timetable by 18 August 2017.
86.
On the same day, the Tribunal communicated to the Parties a draft Procedural Order no. 1 containing the procedural rules of the arbitration, asking them to (i) provide their potential comments and (ii) confer and provide either jointly or separately a proposed procedural timetable by 18 August 2017. The Tribunal also took note of the Respondents' email concerning Albanian law and practice, and indicated that it would still be grateful if each Respondent could provide the Tribunal with a power of attorney, as agreed during the Case Management Conference.
87.
On 10 August 2017, Respondents provided their comments on the draft Terms of Reference, containing, in particular, the estimate of their counterclaims.
88.
On 11 August 2017, the Tribunal informed the Parties that the following the Parties' last comments on the draft Terms of Reference, the Terms of Reference were considered final.
89.
On 18 August 2017, the Parties separately informed the Tribunal that they had conferred and jointly proposed a procedural timetable and that they did not have further comments on the draft Procedural Order no. 1.
90.
On the same day, the Tribunal took note of the Parties' positions and of the fact that Respondents suggested that the city for the hearing should be Zurich, Switzerland. It invited Claimant to confirm its agreement on this point, which Claimant confirmed later that day.
91.
On 22 August 2017, the Tribunal took note of the Parties' agreement concerning Zurich as the city of the hearing.
92.
On 25 August 2017, Claimant specified that, although it agreed that the hearing take place in Zurich, it would also be prepared to agree that it take place in Paris, if Respondents and the Tribunal be better disposed to this location, considering the availability and cost of hearing rooms.
93.
On 28 August 2018, the Tribunal informed the Parties that it had no objection to the hearing taking place in Paris, as this would limit the costs with regards to the Tribunal's members' accommodations.
94.
On 28 August 2017, Claimant informed the Tribunal that it had signed eight copies of the Terms of Reference, which were couriered to the Ministry of Energy and Industry for their signature.
95.
On 29 August 2017, the Secretariat informed the Tribunal and the Parties that, on 3 August 2017, the ICC Court had extended the time limit for establishing the Terms of Reference until 29 September 2017 as per Article 23(2) of the ICC Rules.
96.
On 29 August 2017, Respondents indicated that they had no objection to Claimant's proposal that the hearing take place in Paris.
97.
On 11 September 2017, the Tribunal issued Procedural Order no. 1 after taking into account the Parties' comments exchanged between 31 August and 5 September 2017, and invited again Respondents to confirm the safe receipt of the copies of the Terms of Reference sent by Claimant and to indicate when they would be able to send the copies to the members of the Tribunal.
98.
On 12 September 2017, Claimant informed the Tribunal that (i) it had been advised that the Ministry of Energy and Industry had received eight signed copies of the Terms of Reference on 5 September 2017 signed by Claimant, and that (ii) Respondents had required the Terms of Reference to be delivered to the address of the state Advocacy Office in order to be signed by the State Advocate General. Claimant specified that, in the interests of efficiency, it had asked Respondents whether the State Advocate Office could arrange for the Ministry of Energy to deliver to it the Terms of Reference for execution, without any response from Respondents.
99.
On 13 September 2017, Respondents confirmed what was explained by Claimant in its email of 12 December 2017 and informed the Tribunal that the Ministry of Energy and Industry had sent the signed Terms of Reference to the State Advocacy Office on 12 September 2017. Respondents added that it had noticed that the Terms of Reference had not been signed by GBC Oil Company Ltd or its representatives in the proceedings, but by the Administrator of TransAtlantic Albania Ltd, Branch in Albania, Mr. Naim Kasa. Claimant further explained that given that the letter sent by Kasa to the Ministry of Energy stated that the Terms of Reference has been "signed by TransAtlantic Albania Ltd, as Claimant", it had asked Claimant's counsel in what capacity the Terms of Reference had been signed by TransAtlantic Albania Ltd and Mr. Kasa whereas the Terms of Reference specify that Claimant in the proceedings is GBC Oil Company Ltd (Cayman Islands), without any response yet from Claimant.
100.
On the same day, Claimant explained that Mr. Kasa was "a Director of the Claimant, GBC Oil Company Ltd" as well as "the registered Administrative Director of GBC in Albania". Claimant also explained that as indicated at paragraph 51 of the Terms of Reference, GBC, a corporation incorporated under the laws of the Cayman Islands, carried business in Albania as a producer of oil and gas under Albanian branch identification number NIUS: K72205016P and the name registration "TransAtlantic Albania Ltd.". Claimant specified that there was no separate legal entity in Albania as the legal entity was Claimant, a Cayman Islands company, with a branch registration in Albania, named TransAtlantic Albania Ltd. Claimant also indicated that Mr. Kasa was authorized to and had bound GBC by signing the Terms of Reference.
101.
On 14 September 2017, the Tribunal acknowledged receipt of Claimant's explanations and invited Respondents to inform the Tribunal if they had any objection in this regard by 15 September 2017.
102.
On 15 September 2017, Claimant advised the Tribunal, by a letter dated 14 September 2017, that it had entered into a litigation funding agreement with a litigation funding entity, Bentham IMF Capital Ltd. on 8 September 2017, for the purpose of pursuing the claims.
103.
In response to Claimant's explanations, on 15 September 2017, Respondents emphasized that TransAtlantic Albania Ltd. had "no legal personality in its own under Albanian law" and was only created "for purposes of Albanian commercial law and to carry out is (sic) day to day business in Albania". Respondent thus reiterated that the branch in Albania was not the claimant in the present proceedings. Respondents indicated that they were awaiting instructions on whether the State Advocacy should sign the Terms of Reference.
104.
On 18 September 2017, the Tribunal took note of the Parties' comments on the issue of the signature of the Terms of Reference by Mr. Naim Kasa. The Tribunal further asked that the Parties send it an electronic copy of the page of the Terms of Reference signed by Mr. Naim Kasa and the letter sent by Claimant to Respondents and referred to in Respondents' email dated 15 September 2017.
105.
On the same day, Respondents provided to the Tribunal the letter of TransAtlantic Albania Ltd. no. 131/17 sent to the Ministry of Energy and Industry on 28 August 2017 and the page of the Terms and Reference signed by Mr. Naim Kasa.
106.
On 19 September 2017, the Tribunal informed the Parties that it found that Mr. Kasa's power to act on behalf of Claimant and to sign the Terms of Reference was not clearly established. The Tribunal thus invited Claimant to either (i) send to Respondents eight new copies of the Terms of Reference signed by Claimant's representatives or counsel, or (ii) provide the Tribunal with a document evidencing Mr. Kasa's power to act on behalf of Claimant, by 20 September 2017.
107.
On 20 September 2017, Claimant provided the Tribunal with the Register of Directors and Officers for GBC Oil Company Ltd. indicating that Mr. Kasa was appointed Director on 10 February 2017 and notified to the Registrar on 1 March 2017.
108.
Following the information provided by Claimant on 15 September 2017, on 21 September 2017, co-arbitrator Ms. Scherer disclosed to the Parties - pursuant to Article 11(3) of the ICC Rules - that partners in her firm Wilmer Cutler Pickering Hale and Dorr LLP ("WilmerHale") were representing another subsidiary of IMF Bentham Ltd. in matters unrelated to the present dispute. Ms. Scherer specified that she had no involvement in, or knowledge of any of these matters and that they were of no nature to affect her independence of impartiality in any way.
109.
On 21 September 2017, the Tribunal acknowledged receipt of the document communicated by Claimant on 20 September 2017 and invited Respondents to provide their comments on this document and on the Terms of Reference signed by Claimant by 22 September 2017.
110.
On 22 September 2017, Respondents provided their comments regarding the documents communicated by Claimant on 20 September 2017. According to Respondents, the document was not satisfactory to prove Mr. Kasa's power to act on behalf of GCB Oil Company Ltd. because the list of the directors (i) was produced by a company named Genesis Trust & Corporate Services Ltd. without any information on this company, its relation to Claimant, or its authority to issue such a list, and (ii) was not accompanied by any other document certifying the existence, nature and the extent of the capacities of the directors to, "legally and binding", act on behalf of Claimant. In the same email, Respondents noted that the power of attorney provided by Claimant was made in Albania and governed by Albanian law whereas Claimant was a company organized under the law of Cayman Islands. In light of these facts, Respondents interrogated the Tribunal on the validity of such a power of attorney.
111.
On 25 September 2017, the Tribunal noted that the document provided by Claimant mentioning Mr. Kasa as a director of GBC Oil Company Ltd. was not an official document clearly establishing his power to act on behalf of the company and invited Claimant to either (i) send to Respondents eight new copies of the Terms of Reference signed by Claimant's representatives or counsel, or (ii) provide the Tribunal with an official document clearly evidencing Mr. Kasa's power to act on behalf of Claimant. In any event, the Tribunal invited Claimant to indicate which decision it would make by 26 September 2017.
112.
On 28 September 2017, the Secretariat informed the Tribunal and the Parties that, on 7 September 2017, the ICC Court had extended the time limit for establishing the Terms of Reference until 31 August 2017 as per Article 23(2) of the ICC Rules.
113.
On 5 October 2017, in response to the Tribunal's email of 9 August 2017 requesting to be provided with powers of attorney, Respondents attached a letter from their counsel dated 4 October 2019 informing the Tribunal that in spite of their best efforts, they could not meet such request. Respondents set out the parts of Albanian law relevant to the issue and enclosed the powers of attorney from the MEI, AKBN and Albpetrol "for purpose of counterclaim submission in these arbitration proceedings".
114.
On 6 October 2017, Respondents sent a letter to the Tribunal in response to Ms. Scherer's letter dated 19 September 2017, and asked to be provided information on (i) the subsidiary which was represented by partners of WilmerHale, including but not limited to, name, ownership percentage of such subsidiary by IMF Bentham Ltd., activity field/s, location, (ii) the matters of such subsidiary which were represented by partners of WilmerHale, (iii) duration (starting from its commencement), commercial nature of such relationship between the partners of WilmerHale and the subsidiary at question, and its financial impact to the business of WilmerHale, and (iv) existence and duration of any relationships between partners of WilmerHale and the Parent Company.
115.
On 10 October 2017, Ms. Scherer, reminding the Parties of her lack of involvement in, or knowledge of, any of the matters described in her Disclosure, indicated that she had requested the relevant information from WilmerHale and would revert to the Parties.
116.
On 11 October 2017, Ms. Scherer submitted the following Additional Information Disclosure: "[s]ince 2015, partners in WilmerHale's Washington office have provided advice on public policy matters in relation to congressional inquiries to Bentham Capital LLC. I understand that Bentham Capital LLC is a wholly-owned subsidiary of IMF Bentham Limited. The advice provided by WilmerHale in this matter is limited: since the beginning of the present arbitration proceedings in April 2017 only a small amount of time has been billed". Please note that WilmerHale is not representing IMF Bentham Limited, or any of its subsidiaries, in litigation, arbitration or other contentious matter". Ms. Scherer added that (i) her current full-time employment was with Queen Mary University of London as Professor of Law, (ii) her position with WilmerHale as special counsel was part-time, and (iii) the firm's income in representing Bentham IMF Capital Ltd. had no bearing on the salary or other financial rewards she received from WilmerHale.
117.
On 12 October 2017, the President of the Tribunal informed the Parties that, for reasons unrelated to this case, Ms. Nicolet was no longer able to perform her role as secretary, and that he thus proposed to appoint Ms. Magali Garin, Associate at BETTO SERAGLINI, as the new Administrative Secretary to the proceedings. The President attached (i) a declaration of independence and impartiality and Undertaking from Ms. Garin to act in accordance with the ICC Note on the Appointment, Duties and Remuneration of Administrative Secretaries dated 1 August 2012, (ii) an undertaking from the Tribunal to ensure the Administrative Secretary's compliance with the ICC Rules, and (iii) Ms. Garin's curriculum vitae. The President requested the Parties to confirm Ms. Garin's appointment as Administrative Secretary by 25 October 2017.
118.
The appointment of Ms. Garin as Administrative Secretary was confirmed by Claimant on 13 October 2017 and by Respondents on 17 October 2017.
119.
On 20 October 2017, Respondents challenged Ms. Scherer as member of the Tribunal on the ground that her law firm represented a subsidiary of IMF Bentham Limited, a litigation funder which was funding the present case.
120.
On 26 October 2017, the Tribunal sent to the Parties and the Secretariat an electronic copy and a hard copy of the signed Terms of Reference.
121.
On 30 October 2017, the Secretariat informed the Tribunal and the Parties that, on 5 October 2017, the ICC Court had extended the time limit for establishing the Terms of Reference until 30 November 2017 as per Article 23(2) of the ICC Rules.
122.
On 31 October 2017, Prof. Seraglini and Ms. Malintoppi provided comments to the Secretariat regarding the challenge of Ms. Scherer.
123.
On 31 October 2017, Claimant provided its comments regarding the challenge filed by Respondents against Ms. Scherer. Claimant stated that although it did not believe that the circumstances suggested that the challenge should be successful, it agreed to the challenge due to risks of annulment of an award on this ground at the likely place of enforcement.
124.
On 31 October 2017, Ms. Scherer notified to the Parties and the Secretariat of the ICC Court her resignation from the Tribunal.
125.
On 1 November 2017, Claimant requested an extension of time for the filing of its Statement of Claim from 2 November 2017 until 14 November 2017, specifying that Respondents agreed to such extension on the condition that the same period of extension would apply for the submission of their Statement of defense.
126.
On 1 November 2017, the Tribunal granted to Claimant the required extension of time and indicated that the same would be granted to Respondents. The Tribunal added that it would revert to the Parties regarding the potential impact of such extensions on the procedural timetable.
127.
On 2 November 2017, the Tribunal reverted to the Parties to propose an amended procedural timetable taking into account the granted extensions, for their comments.
128.
On 6 November 2017, Claimant and Respondents informed the Tribunal of their agreement with the proposed amended procedural timetable.
129.
On 7 November 2017, the Secretariat of the ICC Court sent a letter to the Tribunal and the Parties, noting that the amount in dispute was USD 112,000,000. The Secretariat also reiterated its invitation to Respondents to pay the balance of the advance on costs of USD 355,000 until 21 November 2017.
130.
On 7 November 2017, the Tribunal issued Procedural Order no. 2 containing the amended Procedural Timetable.
131.
On 9 November 2017, the Secretariat informed the Tribunal and the Parties that it had transmitted the Terms of Reference signed by the Parties and the Tribunal on 26 October 2017 to the Court at its session of 9 November 2017, pursuant to Article 23(2) of the ICC Rules. The Secretariat also acknowledged the appointment of Ms. Garin as new Administrative Secretary and the Parties' agreement to such appointment.
132.
On 14 November 2017, Claimant submitted its Statement of Claim, along with the Witness Statements of Mr. Crawford, Mr. Grezda, Witness Statements/Expert Reports and attachments of Mr. Mamer, Mr. Bertram, Legal authorities CL-1 to CL-15 and Exhibits C-1 to C-162.
133.
On 16 November 2017, the Secretariat of the ICC Court informed the Tribunal and the Parties that the Court had accepted Ms. Scherer's resignation acting as co-arbitrator, pursuant to Article 15(1) of the ICC Rules, and appointed Dr. Sabine Konrad as co-arbitrator on behalf of Respondents, pursuant to Articles 13(4) and 15(1) of the ICC Rules.
134.
On the same day, the Secretariat informed Ms. Scherer that the Court had accepted her resignation, asked her to return the file by 23 November 2017 and fixed her fees at USD 32,500.
135.
On 17 November 2017, Claimant sent to the Tribunal, the Secretariat and Respondents hard copies of its Statement of Claim.
136.
On 21 November 2017, the Secretariat sent a letter to the Tribunal and the Parties stating that because it understood that the amount in dispute had increased, the Court would examine whether to readjust the advance on costs.
137.
On 24 November 2017, the Secretariat of the ICC Court noted that it had not received payment of the balance of the advance on costs from Respondents and thus invited Claimant to substitute for Respondents by paying USD 355,000 by 26 December 2017.
138.
On 1 December 2017, the Tribunal consulted the Parties on hearing dates and gave its availabilities, inviting the Parties to confer and agree, before 12 December 2017, on (i) the number of days that would be required in their view, and (ii) proposed hearing dates.
139.
On 12 December 2017, Respondents asked the Tribunal for a ten-day extension in order to address the matter of hearing dates, as they were in the process of finalizing the retention of outside counsel in addition to the State Advocate's Office. Claimant indicated that a five-day hearing would probably be required and indicated its preference for a hearing at the dates suggested between 3 and 20 December 2018.
140.
On the same day, the Tribunal granted Respondents the extension requested until 22 December 2017.
141.
On 15 December 2017, Claimant wrote a letter to the Secretariat of the ICC Court (i) expressing its disappointment that Respondents had failed to pay their shares of the advance on costs, and (ii) asking for an extension of the time within which to substitute payment for Respondents' share of the advance of costs, precisely of fourteen days following the receipt of the Statement of Defence.
142.
On 18 December 2017, the Secretariat informed Claimant that it could not derogate from the obligations to ensure the necessary payments to the arbitrators and of the ICC administrative expenses and thus reminded Claimant that it was expecting to receive the payment requested within the due deadline.
143.
On 22 December 2017, Respondents asked the Tribunal for an additional two-week extension to address the matter of hearing dates, in order to finalise the rentention of outside counsel.
144.
On 22 December 2017, the Tribunal granted Respondents the extension required to provide its availabilities for the hearing date until 5 January 2018.
145.
On 28 December 2017, the Secretariat of the ICC Court granted additional time to Claimant to pay Respondents' share of the advance on costs.
146.
On 5 January 2018, Mr. Audley Sheppard and Mr. Tim Schreiber, from Clifford Chance, informed the Tribunal, Claimant and the Secretariat that they had been appointed as new counsel to the Respondents.
147.
On 8 January 2018, the Tribunal acknowledged receipt of Mr. Sheppard and Mr. Schreiber's notice of appointment as counsel to the Respondents and agreed to grant Respondents one week, until 15 January 2018, to provide their comments on Procedural Order no. 2. The Tribunal also invited Respondents to update their mailing list in order to take into account that on 16 November 2017, the ICC accepted Ms. Scherer's resignation and appointed Dr. Konrad on behalf of Respondents.
148.
On the same day, Claimant wrote to the Tribunal, announcing that it was about to write in response to Respondents' counsel's communication of 5 January 2018 and indicated that it may be requesting the Tribunal to reconsider the extension of time until 15 January 2018, for reasons to be explained.
149.
As announced, Claimant then objected to the granting of an extension until 15 January 2018 for Respondents to provide their availabilities for a hearing, on the ground that the successive extensions granted to Respondents had been putting several members of Claimant's legal team in an "untenable position in several other proceedings". Claimant thus requested that the Tribunal order Respondents to at least state their availability on or before 11 January 2018. Claimant also requested a confirmation of the Tribunal that Procedural Order no. 2, and in particular the time-limits and procedural steps approved by Respondents on 6 November 2017, was not open to a renewed discussion.
150.
On 9 January 2018, the Tribunal clarified that the dates in Procedural Order no. 2 already agreed upon by the Parties were not to be reconsidered. The Tribunal added that, given the difficulties faced by Claimant's counsel, Respondents were invited to provide an approximate estimate of the length of the hearing and confirm their availability on the proposed slots, by 11 January 2018 if possible and, in any event, no later than 15 January COB.
151.
On 12 January 2018, Claimant requested to the Secretariat of the ICC an extension of time to 1 March 2018 in order to assess whether to make a request for separate advances on costs. Claimant specified that the full payment of its share of the advance on costs would at any rate fully cover the Tribunal's fees and expenses and the ICC Administrative Costs up to that point in time, so that it appeared premature to insist on Claimant substituting for Respondents' share at this point.
152.
On 15 January 2018, Respondents sent to the Tribunal a Motion for Extension of Deadline and Response re Hearing Date, along with Exhibits R-2 to R-5, in which they (i) requested to file their Statement of Defence and Counterclaims on 30 April 2018 and (ii) confirmed their availability for a hearing from 14 to 18 January 2019.
153.
On the same day, the Tribunal acknowledged receipt of Respondents' Motion of 15 January 2018 and invited Claimant to provide its comments by 18 January 2018.
154.
On 18 January 2018, the Secretariat of the ICC Court acknowledged receipt of Claimant's letter dated 12 January 2018 and granted Claimant an extension for the payment of Respondents' shares of the advance on costs until 1 March 2018.
155.
On 18 January 2018, Claimant submitted its Response to Respondents' Motion in which it asked that the Tribunal dismiss the Motion in its entirety and, if the Motion were to be granted, to fix a time for the Parties to attempt to negotiate mutually acceptable amendments to the procedural timetable that would not materially alter the current overall duration of the proceedings.
156.
On 19 January 2018, the Tribunal acknowledged receipt of Claimant's submission of 18 January 2018 in response to Respondents' motion dated 15 January 2018 requesting a two-month extension of time for the filing of their Statement of Defence and Counterclaims, and indicated that it would revert shortly regarding the Parties' submissions.
157.
On 24 January 2018, the Tribunal issued Procedural Order no. 3, in which it (i) granted in part the extension sought by Respondents, ordering them to submit their Statement of Defence and Counterclaims, with accompanying documents, by 9 April 2018 and (ii) invited the Parties to consult each other in order to seek mutually acceptable amendments, if any, to the procedural timetable set out in Procedural Order no. 2.
158.
On 5 February 2018, Claimant communicated to the Tribunal an amended procedural timetable on which the Parties had agreed on and informed the Tribunal that both Parties would be available for the hearing from 21 to 25 January 2019.
159.
On 6 February 2018, the Tribunal took note of the Parties' agreement on the amended procedural timetable and indicated that it was available on the hearing dates proposed by the Parties and that it would shortly circulate a new procedural order with a revised procedural timetable.
160.
On 8 February 2018, the Tribunal issued Procedural Order no. 4 containing the revised procedural timetable.
161.
On the same day, Respondents asked for a clarification that the Tribunal gives effect to the Parties' agreement that all deadlines refer to "midnight Zurich time". In an email dated 9 February 2018, the Tribunal asked whether Respondents found paragraph 144 of the Terms of Reference incomplete for the purposes mentioned in Respondents' email, to which Respondents replied that paragraph 144 of the Terms of Reference was "clear and complete".
162.
On 5 March 2018, the Secretariat of the ICC Court requested payment of Respondents' share of the advance on costs from Claimant.
163.
On 26 March 2018, the Secretariat of the ICC Court granted Claimant additional time to pay Respondents' share of the advance on costs and indicated that unless it received the requested payment within the time limit granted, the Secretary General might invite the arbitral tribunal to suspend its work and set a time limit of not less than 15 days on the expiry of which the relevant would be considered withdrawn, pursuant to Article 37(6) of the ICC Rules.
164.
On 9 April 2018, Respondents submitted their Statement of Defence, along with the Witness Statement of Mr. Puka, Expert Reports of Mr. MacGregor and Mr. Rogers, Legal authorities RL-1 and RL-2, and Exhibits R-1 to R-161.
165.
On 12 April 2018, Claimant informed the Secretariat of the ICC Court that it would pay for Respondents' share of the advance on costs. Exchanges on material issues followed.
166.
On 25 April 2018, the Secretariat informed the Tribunal and the Parties that, on 5 April 2018, the ICC Court had extended the time limit for rendering the final award until 30 April 2019 as per Article 31(2) of the ICC Rules.
167.
On 27 April 2018, the President of the Tribunal acknowledged receipt of hard copies of Respondents' submissions submitted electronically on 9 April 2018 and indicated that some files sent in hard copies did not appear to have been submitted in accordance with paragraphs 9-11 of Procedural Order no. 1. The Tribunal also drew to the attention of the Parties the Tribunal's Decision on Bifurcation of 9 August 2017 whereby it held that its decision on jurisdiction would be joined to its decision on the merits.
168.
On 2 May 2018, Respondents responded to the Tribunal's letter of 27 April 2018 by clarifying that the two videos on the flash drive which had not been named in accordance with Procedural Order no. 1 supported the photographic evidence submitted as Exhibits R-3 and R-4. Respondents also explained that the raw data contained in the "monthly and quarterly reports of the Claimants", which shows that Claimant's amount of debt grew month-by-month, was too "immense" to print and therefore stored on USB flash drive only.
169.
On 24 May 2018, pursuant to Procedural Order no. 1 and 4, Claimant communicated to the Tribunal and Respondents its replies to the document request objections of Respondents, answer on Respondents' general objections, and publications and cases cited in the Answer on Respondents' General Objections.
170.
On 12 June 2018, the Tribunal communicated to the Parties its Orders on the Parties' requests for the production of documents and invited the Parties to reach an agreement on mutually acceptable confidentiality arrangements by 18 June 2018. The Tribunal also informed the Parties that, given the slightly delayed issuance of the Orders on document production, they should produce all documents whose production was not subject to the Order on Confidentiality by 25 June 2018 instead of 20 June 2018.
171.
On 21 June 2018, the Tribunal issued Procedural Order no. 5 containing its Order on Confidentiality, specifying that the documents covered by the Order should be produced by 2 July 2018, and reminding the Parties that they had to produce all documents whose production was not subject by the Order on Confidentiality by 25 June 2018.
172.
On 21 June 2018, the Secretariat informed the Tribunal and the Parties that on 21 June 2018, the Court had increased the advance on costs, pursuant to Article 37 of the ICC Rules, and enclosed a Financial Table and Payment Requests.
173.
On 9 July 2018, the Secretariat granted additional time to the Parties to pay the balance of their respective advance on costs until 23 July 2018.
174.
On 1 August 2018, Claimant submitted its Reply, along with the Second Witness Statement of Mr. Grezda, the Deloitte Lost Profits Rebuttal Report of Mr. Mamer and its exhibits, the Deloitte Resource Rebuttal Report of Mr. Bertram, Legal Authorities CL-16 to CL-21 and Exhibits C-163 to C-184.
175.
On 2 August 2018, after Respondents informed Claimant and the Tribunal that the document labeled as "Second Witness Statement of Mr. Grezda" was in fact Mr. Grezda's first witness statement, Claimant sent the second witness statement of Mr. Grezda.
176.
On 13 August 2018, the Secretariat granted additional time to the Parties to pay the balance of their respective advances on costs until 27 August 2018, failing which the Secretary General might invite the Tribunal to suspend its work and set a time limit of not less than fifteen days on the expiry of which the claims would be considered withdrawn, pursuant to Article 37(6) of the ICC Rules.
177.
On 28 August 2018, the Secretariat of the ICC informed the Parties that Respondents had not paid the balance of the advance on costs despite the Secretariat's invitations on 9 July, 24 July and 13 August 2018. The Secretariat thus enclosed a new payment request in which it extended the time limit until 12 September 2018, failing which it may request that Claimant pay the balance of the advance on costs on behalf of the defaulting parties.
178.
On 29 August 2018, the Tribunal invited the Parties to confer and agree on material matters relating to the organization of the hearing scheduled for the week of 21 January 2019, such as the venue and the length of the hearing.
179.
On 13 September 2018, the Secretariat invited Claimant to pay the balance of the advance on costs on behalf of Respondents.
180.
On 17 September 2018, Claimant informed the Tribunal that the Parties were discussing the organization of the Hearing and believed that the full five days scheduled would be required.
181.
On 18 October 2018, the Secretariat informed the Parties that Claimant had not paid the balance of the advance on costs and enclosed a new payment request extending the time limit until 2 November 2018.
182.
On 7 November 2018, Respondents submitted their Rejoinder Brief, along with the Second Witness Statement of Mr. Endri Puka, Exhibits R-162 to R-188, Legal authorities RL-3 to RL-24, Rebuttal Expert Report of Gervase MacGregor (BDO) and Rebuttal Expert Report of Stephen Rogers (Arthur D. Little).
183.
Between 7 and 16 November 2018, the Tribunal and the Parties exchanged emails concerning the organization of the Hearing and of the Pre-Hearing Conference Call.
184.
In a letter to the Tribunal dated 13 November 2018, Claimant argued that Respondents had introduced numerous new factual allegations, submitted new factual exhibits and a 14-page witness statement and raised new issues in their Rejoinder Brief. Claimant notified the Tribunal that it intended to submit a request to strike from the record "what appear[ed] to be new factual allegations and evidence submitted in breach of Procedural Order no. 1 and [its] due process rights" by 19 November 2018 and requested the Tribunal to specify whether it expected this request to be submitted prior to this date.
185.
On 15 November 2018, Respondents required until 3 December 2018 to respond to Claimant's Request of 19 November 2018 and to potentially file a Counter-Request to strike from the record potential new facts that were pleaded by the Claimant in its Reply, and/or the Claimant's Witness-/Expert Statements and/or the Exhibits filed with the Reply.
186.
On 16 November 2018, the Tribunal took note of Respondents' email of 15 November 2018 and indicated that it would make a decision on appropriate delays for Respondents' reply after receiving Claimant's request, on or before 19 November 2018. The Tribunal also requested that the Parties refrain from making unsolicited submission on the matter.
187.
On 19 November 2018, Claimant submitted a Motion to Strike/Reply to new evidence contained in the Witness Statement of Endri Puka dated 7 November 2018 and Respondents' Rejoinder Brief.
188.
On 21 November 2018, Claimant and Respondents provided the Tribunal with their notice of witnesses and experts to be examined at the Hearing, pursuant to Procedural Order no. 1.
189.
On 27 November 2018, the Tribunal took note of the fact that the Parties needed one more day to revert to it regarding the hearing schedule and, on 28 and 29 November 2018, Claimant and Respondents sent to the Tribunal their respective proposals for the hearing schedule, along with explanations on their position.
190.
On 3 December 2018, Respondents submitted their Reply to Claimant's Motion to Strike dated 19 November 2018, in which they requested that such motion be rejected.
191.
The Pre-Hearing Conference Call took place on 5 December 2018, following which, on 11 December 2018, the Tribunal sent a letter to the Parties noting the Parties' points of agreements and deciding the remaining issues on the organization of the Hearing.
192.
On 12 December 2018, Claimant requested clarification on the organization of the Hearing.
193.
On 14 December 2018, the Tribunal issued Procedural Order no. 6 in which it notably dismissed Claimant's request to strike from the record certain paragraphs of the Second Puka Witness Statement and Respondents' Rejoinder Brief, and granted Claimant the opportunity to file short witness statements from Mr. Grezda and/or Mr. Crawford on or before 24 December 2018 that would be strictly limited to responding to the pararagraphs that Claimant had requested to strike. In its email dated 14 December 2018, the Tribunal also confirmed some elements after Claimant sought clarification regarding the organization of the Hearing.
194.
On 24 December 2018, Claimant submitted additional witness statements pursuant to Procedural Order no. 6, namely the Second Witness Statement of Mark Crawford and the Third Witness Statement of Kreshnik Grezda. Hard copies followed on 28 December 2018.
195.
On 2 January 2019, the Tribunal informed the Parties that Ms. Garin would no longer act as Administrative Secretary and proposed to appoint Ms. Camille Teynier, an associate of BETTO SERAGLINI. The Tribunal invited the Parties to communicate their agreement or potential objections to such appointment by 4 January 2019.
196.
On 2 January 2019, the Tribunal acknowledged receipt of the electronic copy and the hard copy of the additional witness statements sent by Claimant on 24 December 2018 and noted that Claimant filed new evidence along with these two witness statements, despite paragraph 17(e) of Procedural Order no. 6. The Tribunal invited Respondents to indicate their views on the issue by 4 January 2019 and to confirm whether they intended to request an authorization to file a Third Puka Witness Statement as per paragraph 17(c) of Procedural Order no. 6 or to make procedural observations on Claimant's submission.
197.
On 2 January 2019, Claimant stated that it did not file any new factual exhibits but only witness statements along with documents the witnesses relied on, in compliance with Procedural Order no. 1, paragraph 19(v). Claimant argued that its mandatory right to be heard in adversarial proceedings granted it the right to respond to Respondents' allegations, to discuss the evidence submitted by Respondents and to rebut the evidence with its own evidence, and Claimant objected to such right being limited by Procedural Order no. 6.
198.
On 4 January 2019, Respondents reverted to the Tribunal on Claimant's additional witness statements. They requested the authorization to file a third Witness Statement by Mr Puka strictly limited to responding to the Claimant's additional witness statements along with supporting documentation, pursuant to paragraph 17(c) of Procedural Order no. 6 and paragraph 41 of the Rules of procedure. Respondents also agreed to allow the Claimant's new documentary evidence on the records "under the proviso that the Tribunal grants the Respondents' request […] to file supporting documentation with the additional Puka Witness Statement". Furthermore, Respondents stated they had no objections against the appointment of Ms. Teynier as Administrative Secretary.
199.
On 4 January 2019, the Tribunal informed the Parties that, considering that Respondents had not objected to the filing of exhibits by Claimant with the two additional witness statements, and the need to ensure the equality of the Parties' procedural rights, the Tribunal decided to grant to Respondents the right to submit a third Witness Statement by Mr Puka , along with supporting documentation. The Tribunal added that such additional witness statement should be "short and strictly limited to responding to the Claimant's Additional Witness Statements" and should be submitted by 11 January 2019.
200.
On 4 January 2019, Claimant informed the Tribunal that it had no objection to the appointment of Ms. Teynier as Secretary to the Tribunal.
201.
On 7 January 2019, both Parties sent their list of participants and attendees to the Hearing.
202.
On 8 January 2019, the Tribunal sent to the Parties Ms. Teynier's signed declaration of independence and impartiality and undertaking to act in accordance with the Secretariat of the ICC's revised Note on the Appointment, Duties and Remuneration of Administrative Secretaries.
203.
On 8 January 2019, Claimant informed the Tribunal that it had concerns about the inclusion by Respondents of eight previously undisclosed individuals as participants and attendees of the Hearing, even though Claimant indicated in its 28 November communication that the venue was booked for twenty-five persons.
204.
On 9 January 2019, Respondents requested that Claimant's "move to limit the attendees for the Respondents in the oral hearing" be rejected. Respondents stated that it would be unrealistic for Claimant to assume the presence of only one party out of the three that it sued. Respondents added that, nevertheless, they indicated in their letter of 7 January 2019 that not all attendees would be present in the Hearing room at all times, and that they would liaise with Claimant's counsel to accommodate a reasonable number of attendees in the hearing room by 11 January 2011.
205.
On 9 January 2019, the Tribunal acknowledged receipt of Claimant's and Respondents' emails regarding the organization of the hearing and indicated that it awaited the Parties' proposals by 11 January 2011, as suggested by Respondents.
206.
On 11 January 2019, Respondents sent an updated list of participants and attendees to the Hearing.
207.
On 11 January 2019, Respondents submitted the Third Witness Statement of Mr. Puka.
208.
On 11 January 2019, Claimant informed the Tribunal of a disagreement between the Parties regarding a protocol suggested by Claimant on 9 January 2019 for the introduction of underlying information from the expert reports during the experts' examinations, further to the Parties' agreement to share native data used in these reports and further to the Tribunal's view that the Parties should make available all basic information on which their experts' statements relied. After Respondents objected to this suggestion to file important amounts of data one week before the hearing, Claimant asked the Tribunal to give direction regarding the proposed protocol.
209.
On 11 January 2019, Respondents informed the Tribunal that, in March 2018, the Parties agreed to exchange native data/primary data to facilitate the work of the experts. According to Respondents, the discussion on such data could have taken place in previous submissons. Respondents then pointed out that Claimant chose to wait one week before the hearing to introduce numerous electronic files, which Respondents considered an "ambush jeopardizing the objective to conduct efficient proceedings and seriously violating the Respondents' right to be heard and to prepare their defence in line with the Procedural Timetable and the Procedural Rule".
210.
Respondents thus asked the Tribunal to reject Claimant's request to introduce new documents in the arbitration because (i) they did not form part of the Expert Reports, (ii) Claimant's request came one week after the cut-of date for submitting new documentary evidence, i.e. 8 November 2018 when Respondents' Rejoinder was filed or – at the latest – Claimant's 24 December 2018 deadline to submit additional evidence, (iii) they did not respect the Parties' agreement to share native data to facilitate the work of experts. Respondents added that the use of electronic data was neither foreseen in Procedural Order no. 1, nor in any other Procedural Order or direction of the Tribunal, and was not a question raised during the Pre-Hearing Conference Call of 5 December 2018. Finally, Respondents argued that Claimant had withheld evidence they intended to submit and that Respondents and their experts had already prepared for the Hearing.
211.
On 12 January 2019, Claimant sent to the Tribunal exchanges of emails between Claimant and Respondents which, according to Claimant, proved that native/primary data sought to be referenced by Claimant had been provided on 28 November 2018. Claimant also contested that the data prepared and relied upon by Respondents' experts in the development and publication of their reports did not form part of those reports. Claimant added it would amount to a violation of its right to be heard and would frustrate the proper adjudication of the case if the Tribunal were to strike Claimant's request.
212.
On 12 January 2019, the Tribunal asked the Parties to clarify (i) the nature of the native/primary data sought to be referenced by the Claimant and the number of documents it would amount to, (ii) the reason for which the matter of the production and/or addition to the record of this material at the Hearing was not addressed earlier, and (iii) whether Respondents' view was that only the pdf versions of the excel sheets or the excels sheets without formulas were part of the record.
213.
On 14 January 2019, Claimant answered to the Tribunal's questions relating to the data exchanged. It notably indicated that a large volume of underlying data had been exchanged but only a small fraction was sought to be referenced and that the issue had been raised with Respondents at the earliest possible time.
214.
On 14 January 2019, Respondents contested Claimant's email but informed the Tribunal that to end the debate on this issue, they would agree on Claimant's motion to be allowed to refer to native data at the hearing under the conditions that (i) the native data was introduced by way of printout only, and (ii) Respondents could also rely on the native data if so advised. Respondents also stated that the formulas and models on which the expert assessments relied could be subject to potential scrutiny by the Tribunal and the Parties.
215.
On 14 January 2019, both Parties sent to the Tribunal their updated list of main factual and legal issues to be determined by the Tribunal and the Parties' joint chronological list of all factual exhibits, as requested in the Tribunal's letter dated 11 December 2018.
216.
On 15 January 2019, Tribunal acknowledged receipt of Parties' respective email and declared (i) that the native data could be introduced by way of printouts only, and (ii) that Respondents could also rely on so-called native data if so advised. The Tribunal also invited the Parties to confirm that all the practical matters related to the hearing had been settled and that there was no unresolved issue in that respect.
217.
The Hearing took place between 21 and 24 January 2019 in Paris, France.
218.
On 28 January 2019, the Tribunal issued Procedural Order no. 7 regarding the transcript and the Parties' Post-Hearing Briefs and Statements of Costs.
219.
On 29 January 2019, Claimant acknowledged receipt of Procedural Order no. 7 and asked the Tribunal to confirm its understanding at the Hearing that (i) new legal exhibits could be submitted not only in reply to the Tribunal's questions but also in response to a pleading prior to the Post-Hearing Brief and (ii) that no new factual exhibits could be submitted.
220.
On 31 January 2019, the Tribunal communicated to the Parties a list of questions to be answered in the Post-Hearing Briefs and a clarification on the points raised in Claimant's email dated 29 January 2019 regarding the submission of new factual and legal exhibits in the Post-Hearing Briefs.
221.
On 1 February 2019, Claimant requested that question no. 2 to be answered by Respondents in their Post-Hearing Brief be struck, on the ground that the cut-off date for producing evidence had passed. Claimant argued that granting Respondents to further expand on the subject would violate Claimant's right to equal treatment and that should question no. 2 not be struck, the Tribunal would be respectfully requested to take note of Claimant's email as a formal protest pursuant to Article 40 ICC Rules and Swiss Supreme Court precedent.
222.
On 1 February 2019, the Tribunal acknowledged receipt of Claimant's email of the same day and invited Respondent to provide their comments on Claimant's position by 6 February 2019.
223.
On 6 February 2019, Respondents requested that Claimant's motion to strike question no. 2 be rejected. Among several reasons, Respondents indicated that (i) the Tribunal had the right and power to establish the facts of the case, and thus to summon any party to provide additional evidence at any time during the proceedings, pursuant to Article 25 of the ICC Rules, and that (ii) Respondents would only elaborate on and clarify the origin of the photographs and videos already on record, and would not introduce factual evidence on new topics.
224.
On 6 February 2019, Respondents communicated to the Tribunal their experts' questions for guidance on question no. 6 to be answered by the Parties in their Post-Hearing Briefs.
225.
On 11 February 2019, the Tribunal acknowledged receipt of Respondents' email and their requests for clarification, and invited Claimant to provide its opinion on such requests by 15 February 2019.
226.
On 15 February 2019, Respondents informed the Tribunal that the Parties were discussing potential corrections to the transcript and would then forward them to the court reporters, in accordance with Procedural Order no. 7.
227.
On 15 February 2019, Claimant addressed its experts' understanding and questions to the Tribunal. In particular, Claimant asked whether the experts should conduct a sensitivity analysis or just a calculation without adjusting the lost-profits analysis. Claimant further offered to convene a telephone conference with the Tribunal, counsel and experts in order to clarify the scope of the experts' tasks efficiently.
228.
On 17 February 2019, the Tribunal issued Procedural Order no. 8 in which it rejected Claimant's request to strike question no. 2 and maintained question no. 2 to be answered by Respondents in their Post-Hearing Brief.
229.
On 21 February 2019, Respondents referred to Claimant's email dated 15 February 2019 regarding clarifications on calculations, and set out some issues that, according to them, would occur with Claimant's suggestion of a "value sensitivity analysis". Claimant also agreed with Claimant on the necessity of a phone call between the Tribunal members, the experts and counsel.
230.
On 22 February 2019, Claimant sent to the Tribunal the party-approved version of the Hearing transcripts.
231.
On 4 March 2019, the Tribunal reverted to the Parties and specified that its question no. 6 aimed at understanding the implications of each of the four experts' testimony. The Tribunal gave further instructions as to how the Parties' experts should make the calculations and indicated that should the Parties consider that they could not perform the exercise in relation to one or several questions, they should provide the reason why.
232.
On 14 March 2019, Respondents informed the Tribunal that the Parties had liaised and were in agreement as to the length of each Party's Post-Hearing Brief. The Tribunal took note of this on 15 March 2019.
233.
On 15 April 2019, the Parties submitted their Post-Hearing Brief along with appendices, of which the Tribunal acknowledged receipt on 16 April 2019.
234.
On 25 April 2019, the Secretariat informed the Tribunal and the Parties that, on 11 April 2019, the ICC Court had extended the time limit for rendering the final award until 31 July 2019 as per Article 31(2) of the ICC Rules.
235.
On 26 April 2019, Dr. Konrad wrote to the Parties to make a disclosure.
236.
On the same day, Claimant thanked Dr. Konrad for her disclosure and stated that it had no concerns regarding her impartiality in the matter. Respondents did not comment on Dr. Konrad's disclosure.
237.
On 7 May 2019, Respondents sent a letter to the Tribunal and to Claimant, complaining of violations of the Tribunal's instructions and the procedural rules in Claimant's Post-Hearing Brief. In essence, Respondents argued that Claimant corrected Respondents' experts' data to provide the calculations requested by the Tribunal.
238.
On 9 May 2019, the Tribunal acknowledged receipt of Respondents' letter dated 7 May 2019 and invited Claimant to provide its comments by 17 May 2019.
239.
In light of the above, on 9 May 2019, Claimant requested an extension of the deadline for the submission of the Statements of Costs until 24 May 2019.
240.
On 10 May 2019, the Tribunal granted to both Claimant and an extension of the deadline to submit their Statement of Costs until 24 May 2019.
241.
On 17 May 2019, Claimant submitted its answer to Respondents' Motion to Strike dated 7 May 2019.
242.
On 24 May 2019, Claimant and Respondents submitted their Statement of Costs.
243.
On 12 June 2019, the Tribunal issued Procedural Order no. 9, in which it granted Respondents' Motion that paragraphs 262-263, 286-290 and 291-295 of Claimant's Post-Hearing Brief be struck from the record, and rejected Respondents' Motion that paragraphs 300(c) of Claimant's Post-Hearing Brief be struck from the record.
244.
On 10 July 2019, the Secretariat informed the Tribunal and the Parties that, on 4 July 2019, the ICC Court had extended the time limit for rendering the final award until 30 August 2019 as per Article 31(2) of the ICC Rules.
245.
On 29 August 2019, the Secretariat informed the Tribunal and the Parties that, on 1 August 2019, the ICC Court had extended the time limit for rendering the final award until 30 September 2019 as per Article 31(2) of the ICC Rules.
246.
On 3 September 2019, Dr. Konrad informed the Parties that she had joined Morgan, Lewis & Bockius LLP as of 1 September 2019 and that there were no conflicts of interests with the present case.
247.
On 19 September 2019, the Secretariat informed the Tribunal and the Parties that, on 19 September 2019, the ICC Court had extended the time limit for rendering the final award until 31 October 2019 as per Article 31(2) of the ICC Rules.
248.
On 16 October 2019, Prof. Seraglini informed the Parties that he had joined Freshfields Bruckhaus Deringer LLP as of 2 October 2019 and, in this context, made a disclosure to the Parties. The Parties did not comment on Prof. Seraglini's disclosure.
249.
On 29 October 2019, the Secretariat informed the Tribunal and the Parties that, on 24 October 2019, the ICC Court had extended the time limit for rendering the final award until 29 November 2019 as per Article 31(2) of the ICC Rules.
250.
On 12 November 2019, the Tribunal requested that Respondents clarify a point regarding the Ministry involved in this case, in light of the change of name from the Ministry of Energy and Industry to the Ministry of Infrastructure and Energy in Respondents' submissions.
251.
As detailed in section 1.2 above, several emails and letters were exchanged on this issue between 20 November 2019 and 28 January 2020.
252.
On 28 November 2019, the Secretariat informed the Tribunal and the Parties that, on 28 November 2019, the ICC Court had extended the time limit for rendering the final award until 31 December 2019 as per Article 31(2) of the ICC Rules.
253.
On 19 December 2019, the Secretariat informed the Tribunal and the Parties that, on 19 December 2019, the ICC Court had extended the time limit for rendering the final award until 31 January 2020 as per Article 31(2) of the ICC Rules.
254.
On 30 January 2020, the Secretariat informed the Tribunal and the Parties that, on 30 January 2020, the ICC Court had extended the time limit for rendering the final award until 31 March 2020 as per Article 31(2) of the ICC Rules.
255.
On 20 March 2020, the Secretariat informed the Parties that, on 18 March 2020, it had received a draft award submitted by the Tribunal.
256.
On 27 March 2020, the Secretariat informed the Tribunal and the Parties that, on 5 March 2020, the ICC Court had extended the time limit for rendering the final award until 30 April 2020 as per Article 31(2) of the ICC Rules, to cover the scrutiny and notification process.
257.
On 30 April 2020, the Secretariat informed the Tribunal and the Parties that, on 2 April 2020, the ICC Court had extended the time limit for rendering the final award until 29 May 2020 as per Article 31(2) of the ICC Rules, to cover the scrutiny and notification process.
258.
On 30 April 2020, the Secretariat informed the Parties that, on that day, the ICC Court had approved the draft award submitted by the Tribunal, which would be notified after being finalized and signed by the Tribunal.
259.
On 5 May 2020, the Tribunal invited the Parties to indicate whether they agreed to the Final Award being (i) signed electronically by the members of the Tribunal and/or (ii) notified to the Parties electronically by the ICC Court, in order to avoid important delays due to the Covid-19 pandemic.
260.
After Claimant's counsel expressed the wish that only receipt of the signed originals of the Final Award would trigger any time limits, on 6 May 2020, the Secretariat informed the Parties that it would follow its usual practice and notify the signed originals of the Final Award upon receipt from the Tribunal, and send a courtesy copy of the Final Award by email.
261.
On 11 May 2020, the Tribunal informed the Parties that after Claimant's counsel provided the ICC and the Tribunal with Claimant's banking information on 1 May 2020, the Tribunal noted that the name of the entity on that document was Omni Bridgeway Limited. The Tribunal thus enquired whether Omni Bridgeway Limited was a new funder or simply the new corporate name of Bentham IMF Capital Ltd, with no change of legal entity. Dr. Konrad also made a disclosure in this context.
262.
On 11 May 2011, Claimant's counsel stated that, in November 2019, Omni Bridgeway Limited merged with IMF Bentham Ltd, the parent company to Bentham IMF Capital Ltd, and that all entities adopted the name Omni Bridgeway in February 2020.
263.
On 15 May 2020, the Tribunal took note of the information provided by Claimant's counsel on 11 May 2020 and invited Respondents to provide their comments on this information and on Dr. Konrad's disclosure by 22 May 2020.
264.
On 20 May 2020, Respondents submitted a further Request for Disclosure.
265.
On 28 May 2020, the Secretariat informed the Tribunal and the Parties that, on 7 May 2020, the ICC Court had extended the time limit for rendering the final award until 30 June 2020 as per Article 31(2) of the ICC Rules, to cover the notification process.
266.
On 29 May 2020, the members of the Tribunal responded to Respondents' Request for Disclosure of 20 May 2020.
267.
On 26 June 2020, the Secretariat informed the Tribunal and the Parties that, on 4 June 2020, the ICC Court had extended the time limit for rendering the final award until 31 July 2020 as per Article 31(2) of the ICC Rules, to cover the notification process.
268.
On 1 July 2020, the Tribunal declared the proceedings closed, as per Article 27 of the ICC Rules.

3. SUMMARY OF RELEVANT FACTS

3.1. The Legislative Context of the Dispute

269.
The present dispute relates to the operation of three State-owned oilfields in southwestern Albania to which Claimant has ownership rights, namely the Cakran Oilfield, the Gorisht Oilfield and the Ballsh Oilfield.19 According to Claimant, the Oilfields have first come into production in the 1960s and 1970s.20
270.
The granting of the Oilfields' ownership rights to Claimant occurred in the following legislative context.
271.
Pursuant to Albania's Petroleum Law (Exploration and Production) No. 7746 of 28 July 1993 (hereafter, the "Petroleum Law"), all petroleum deposits existing in their natural condition within the jurisdiction of Albania are the exclusive property of the Albanian State, as represented by the appropriate Ministry, and are to be used for the benefit of the people of Albania.21
272.
The Petroleum Law designates the Ministry of Industry, Natural Resources and Energy as the responsible authority for supervision of oil and gas activities in Albania and permits the Ministry of Industry, Natural Resources and Energy to "enter into a Petroleum Agreement with any Person authorizing that Person on the terms and conditions set out [in Article 2 of the Petroleum Law] to explore for, develop and produce Petroleum in the Contract Area".22 Article 2 of the Petroleum Law defines as the Petroleum Operations all or any of the operations related to the exploration for development, extraction, production, separation and treatment, storage and transportation and sale or disposal of petroleum up to the point of export, or to the agreed delivery point in Albania or the point of entry into a refinery and includes natural gas processing operations but does not include petroleum refining operations.23 Claimant states that such agreement is subject to approval by Albania's Council of Ministers, and Respondents do not dispute this fact.24
273.
In conjunction with the enactment of the Petroleum Law, the Albanian Government established a national oil and gas company, Albpetrol.25
274.
On 26 July 1993, the Ministry of Industry, Natural Resources and Energy and Albpetrol entered into an agreement (hereafter, the "Albpetrol Agreement") whereby the Ministry of Industry, Natural Resources and Energy authorized Albpetrol to carry out petroleum operations pursuant to a license to be issued by the Ministry of Industry, Natural Resources and Energy in respect of each oil and gas field existing at the time.26 Claimant states that the existing fields included the Cakran Oilfield, the Gorisht Oilfield and the Ballsh Oilfield, and Respondents do not dispute this fact.27
275.
The Albpetrol Agreement was incorporated into the Petroleum Law by an amendment dated 29 July 1994 (hereafter, the "Petroleum Law Amendment").28
276.
Pursuant to the Petroleum Law Amendment, the Ministry of Industry, Natural Resources and Energy granted Albpetrol the right to "cooperate with juridical for[e]ign and native persons and international financial institutions in accordance with the best standar[d]s and practices of international oil industry".29
277.
On 3 September 1993, AKBN was set up as an institution under the control of the Ministry of Industry, Natural Resources and Energy. Its duties, modified by decree in 2006, were inter alia the following:

- Consult, propose and cooperate with relevant government structures for drafting policies in the field of mining, oil and hydropower;

- Implement the government policies in the field of mining, oil and hydropower;

- Promote mineral and oil resources, negotiate oil and mining agreements and pursuing implementation of their development plans;

- Prepare the documentation for issuing licenses and authorizations in compliance with the law;

- Supervise the mining, post-mining, oil and hydropower activities;

- Monitor exploited areas, mining risk and post-mining activity.30

278.
In 1994, a law on the Fiscal System in the Hydrocarbons Sector (Exploration – Production) was adopted (hereafter, the "Petroleum Fiscal Law").31 According to Claimant, it was adopted to give effect to the provision of the Petroleum Law pursuant to which "a Petroleum Agreement to which a Foreign Investor is a party may contain provisions for the purpose of ensuring the stability of the fiscal regime". This is not disputed by Respondents.32

3.2. Contractual mechanisms between the Parties: the License Agreements and Petroleum Agreements

279.
In 2007, GBC (then known as Stream) entered into negotiations with AKBN and Albpetrol regarding the conduct of operations in the Cakran Oilfield, the Gorisht Oilfield and the Ballsh Oilfield.33
280.
On 4 July 2007, pursuant to the Petroleum Law, a License Agreement for each of the Oilfields was thus issued by the METE,34 "as represented by" AKBN, to Albpetrol. The License Agreement was designed to provide for the rights and obligations of the Licensor (the METE at the time of conclusion) and the Licensee (Albetrol at the time of conclusion) regarding the exploration and production of oil.35
281.
The License Agreements defined the term "Licensee" as "Albpetrol and, in conformity with 'Albpetrol Agreement' provisions, any its permitted transferee, successor or assignee".36
282.
Article 6.1 of the License Agreements provides that Albpetrol, as Licensee, is authorized to conduct Petroleum Operations for the Project in the Contract Area (see definitions below) only on the basis of a Petroleum Agreement.37
283.
Albpetrol and Stream then entered into a Petroleum Agreement for each of the Oilfields. As mentioned above, the date of signature of the Petroleum Agreements is 8 August 2007 according to Claimant,38 and 19 July 2007 according to Respondents.39 The Parties agree that there appears to be no difference between the two versions of the Petroleum Agreements, except for the diverging dates.40
284.
The Petroleum Agreements refer to Stream as "Contractor", which is defined as "Contractor and its respective successors or permitted assignees according to Article 16 [of the Petroleum Agreement]".41
285.
Concurrently to the signature of the Petroleum Agreements, Albpetrol, Stream and AKBN entered into instruments of transfer for each Oilfield whereby Albpetrol transferred "all its rights, privileges and obligations under the Licen[s]e Agreement […] to Stream subject to [the] Petroleum Agreement" (hereafter, the "Instrument of Transfer").42 The Instruments of Transfer are part of the Petroleum Agreements, as their Annex E.
286.
On 8 August 2007, the Council of Ministers approved the License Agreements, the Petroleum Agreements and the Instruments of Transfer, to be effective on the date the decision approving the Petroleum Agreements became effective (hereafter, the "Effective Date").43 According to Claimant, the Effective Date is 24 August 2007, which Respondents do not contest.44
287.
The Parties agree that, as a result of entering into the Instruments of Transfer, Stream became a party to the respective License Agreements.45 However, the Parties disagree as to the purpose, the scope and the interplay of the License Agreements and the Petroleum Agreements, and in particular as to which relationships are governed by each agreement.
288.
According to Claimant, the purpose of the signature of the Petroleum Agreements was to implement the License Agreements.46 Claimant considers that the License Agreements are the title documents which grant the rights to and set out the obligations of the Licensee, and that they contemplate the creation of the Petroleum Agreements for the purposes of implementing the License Agreements and providing the operational terms necessary to undertake the Petroleum Operations.47
289.
Claimant thus considers that as a result of the Instrument of Transfer, Stream became a party to each License Agreement and that Albpetrol and Stream each became a Licensee in respect of each of the Oilfields.48
290.
Claimant refers collectively to the License Agreements and the Petroleum Agreements as the Production Sharing Agreements ("PSAs") throughout its submissions,49 a term that Respondents contest by stating that "[t]his 'one-size-fits-all' approach […] disregards the interplay between the License Agreements and the Petroleum Agreements".50 The term "PSAs" will thus only be used by the Tribunal when summarizing Claimant's position on the matter.
291.
For their part, Respondents consider that the License Agreements govern the relationship between the Ministry (the Licensor) and Albpetrol / Claimant (both Licensees), whereas the Petroleum Agreements govern the internal relationship between Albpetrol and Claimant (Licensees).
292.
According to Respondents, the License Agreements are designed to grant licenses from the competent Ministry to Albpetrol to conduct petroleum operations, and to give Albpetrol the power to assign its license rights to third parties.51 Respondents argue that according to Article 5 of the Petroleum Law, the Ministry may enter into such agreements with third parties to authorize them to conduct petroleum operations, and that, according to Recital D of the License Agreements and pursuant to Article 12 of the Petroleum Law, Albpetrol may "transfer and pass all or part of its rights to a legal, local or foreign, financial institution […]".52
293.
In support of their position that the License Agreements govern the relationship between the Ministry as the Licensor and Albpetrol / Claimant as Licensees, Respondents argue that Article 6.1 of the License Agreements "allows the conclusion of a Petroleum Agreement between Albpetrol as the Licensee and the 'Contractor' (Article 1.1 of the License Agreements), if Albpetrol decides to sub-contract a third party like the Claimant GBC". Thus, according to Article 6.1 (c)(iv), the Petroleum Agreement shall regulate the contractual relationship between Albpetrol as the Licensee and the Contractor GBC.53 Respondents further argue that the Preamble of the Petroleum Agreements repeats this purpose by stating that "Contractor and Albpetrol intend this Agreement to record the terms upon which Contractor will join Albpetrol in the conduct of Petroleum Operations […]".54
294.
According to Respondents, the Petroleum Agreements do not grant Claimant the right to conduct petroleum operations, a right that was granted solely to Albpetrol through the License Agreements. Thus, in order to vest Claimant with the right to conduct petroleum obligations, the Parties assigned such rights to Claimant via the Instrument of Transfer.55

A. The main terms of the License Agreements and the Petroleum Agreements

295.
Article 3.2 of the License Agreements provides that "[p]ursuant to and in accordance with the terms and conditions of the Petroleum Law and [the] License Agreement the Ministry authorizes and grants the Licensee the exclusive right to:

a) conduct Petroleum Operations in the Contract Area;

b) treat, store and transport the Petroleum extracted from the Contract Area;

c) to construct and install all facilities and equipment (including storage, treatment, pipelines and other means of transportation) required for the Petroleum Operations; and

d) use for its own account, sell, exchange, export, realize or possess the Petroleum extracted from the Contract Area, and take Profit from and title to such extracted Petroleum […]".56

296.
Under the License Agreements, the Licensee is also entitled to use:

a) "exclusively, free of charge, all the existing facilities and equipment in the Contract Area for the performance of the Petroleum Operations […];

b) free of charge and for the performance of the Petroleum Operations, all other assets, equipment, means and infrastructure under its administration (including roads, electricity power lines and water, oil and gas pipelines) existing on the Effective Date of this License Agreement in the Contract Area or elsewhere as described in Article 12 of the Petroleum Agreement, on an "as is" basis and available for delivery, but (unless otherwise agreed with the supplier) subject to the applicable payments and on a non-discriminatory basis, at reasonable cost for electricity, water, oil and gas used;

c) under commercially reasonable terms and conditions, the pipelines that transport the Petroleum produced in the Contract Area to the ports and refineries in Albania; and

d) all technical data available to AKBN pertaining to the Contract Area provided that LICENSEE shall reimburse AKBN for all reasonable cost incurred for the preparation of such data transfer and the cost of copying such data".57

297.
Under the Petroleum Agreements, the Contractor is entitled to use:

a) "exclusively, free of charge, all the existing facilities and equipment in the Contract Area for the performance of the Petroleum Operations […];

b) free of charge and for the performance of the Petroleum Operations, all other assets, equipment, means and infrastructure (including roads, electricity power lines and water, oil and gas pipelines) existing in the Contract Area or located at the region around or close to the Contract Area on the Effective Date of this Agreement, but (unless otherwise agreed with the supplier) subject to the payment, on a non-discriminatory basis, at reasonable cost for electricity, water, oil and gas used;

c) under commercially reasonable terms and conditions, the pipelines that transport the Petroleum produced in the Contract Area to the ports and refineries in Albania and shall have the right to construct, lay and operate pipelines within Albania subject to the requirement to provide access to excess capacity, if available, to third parties on commercial terms; and

d) all technical data available to AKBN pertaining to the Contract Area provided that Contractor shall reimburse AKBN for all reasonable cost incurred for the preparation of such data transfer and the cost of copying such data".58

298.
Article 6.1 of the License Agreements provides that the Licensee is authorized to conduct Petroleum Operations for the Project in the Contract Area only on the basis of a Petroleum Agreement which: (i) shall be in full accordance with the License Agreement and, pursuant to Article 13(2) of the Petroleum Law, will enter into full force and effect upon the Effective Date; (ii) shall incorporate the exclusive rights to the Contract Area granted in accordance with the License Agreements; and (iii) will contain and/or define some matters concerning certain obligations and schedules.59
299.
As far as the obligations of the Licensee / Contractor are concerned, the License Agreements provide that the Licensee shall inter alia "secure all financial resources and pay one hundred percent (100%) of all costs and expenses associated with the Petroleum Operations in respect to the Contract Area subject to the Cost Recovery Petroleum provisions of [the] License Agreement",60 and the Petroleum Agreements provide that "Contractor shall provide all necessary funds and shall bear all costs and expenses required in carrying out Petroleum Operations under [the Petroleum] Agreement except to the extent as is otherwise provided in [the Petroleum] Agreement".61
300.
As for the duration for which the License Agreements and the Petroleum Agreements are granted, there is an initial eighteen-month evaluation period starting from the Effective Date (the "Evaluation Period"), during which the Licensee / the Contractor shall carry out an Evaluation Program.62 The Evaluation Period can be extended for six months at the request of the Licensee for the License Agreements63 or upon request and approval of AKBN for the Petroleum Agreements.64
301.
The License Agreements and Petroleum Agreements further provide that, if the Evaluation Operations were successful,65 within sixty days following the completion of the Evaluation Period,66 or before the end of the Evaluation Period,67 a plan for the Contract Area is submitted to AKBN (the "Development Plan").68 The Development Plan must contain, inter alia: (i) details and the area extent of the proposed Development and Production Area; (ii) proposals relating to the spacing, drilling and completion of wells, the production and storage installations, and transportation and delivery facilities required for the production, storage and transportation of Petroleum; (iii) proposals relating to necessary infrastructure investments; (iv) a production forecast and an estimate of the investment and expenses involved; (v) an estimate of the time required to complete each phase of the Development Plan; and (vi) the proposed Delivery Point and Measurement Point.69
302.
Upon approval of the Development Plan by AKBN, a twenty-five-year development and production period begins (the "Development and Production Period").70 Pursuant to the License Agreements, the Development and Production Period can be extended for successive five-year periods, upon request of Licensee and approval of AKBN, as long as any portion of the Contract Area continues to produce petroleum in commercial quantities, and so long as the Licensee has not breached any material clause of the License Agreements.71 Pursuant to the Petroleum Agreements, the Development and Production Period can be extended in the same conditions as the ones provided for in the License Agreements.72
303.
Finally, for a period of five years after the Development Plan has been approved, the Licensee / Contractor is allowed to further propose and design new evaluation areas within the Contract Area but outside of any existing Development Area for a new Evaluation Period, which, subject to AKBN's approval, involves a New Evaluation Program and a New Evaluation Area.73
304.
The Petroleum Agreements also provide that, in conducting the Evaluation Program, the Development Plan and any New Evaluation Program, the Contractor shall be entitled to take over any existing wells, assets and leases in the Project Area, in compliance with a procedure set out in the Annex F of each Petroleum Agreement (the "Takeover Procedure").74
305.
Pursuant to Article 2.5 of the Petroleum Agreements, the Contractor is responsible for the execution of Petroleum Operations only in the Project Area, separately from Petroleum Operations concluded by Albpetrol alone in Albpetrol Operations Zone, i.e. parts of the Contract Area that are not part of the Project Area, in which the Contractor retains no right or interest.75
306.
The License Agreements also contain provisions relating to the Licensee's / Contractor's obligation to prepare and submit to AKBN Annual Programs and Budgets (an "ABP") providing the Petroleum Operations to be carried out during the succeeding fiscal year and the related budget.76
307.
Finally, the License Agreements and Petroleum Agreements provide for the necessity to establish an Advisory Committee for the purpose of the proper implementation of the License and Petroleum Agreements.77 The Advisory Committee is composed of representatives of both Albpetrol and the Contractor.78
308.
Pursuant to the Petroleum Agreements, the Advisory Committee has the following functions and responsibilities:

- "to provide the opportunity for and to encourage the exchange of information, views, ideas and suggestions regarding plans, performance and results obtained under the Agreement;"

- "to review principles established by Contractor from time to time governing various aspects or activities of the Petroleum Operations and to propose, for this purpose, procedures and guidelines as it may deem necessary;"

- "to review and approve Annual Programs and Budgets proposed by Contractor for the Development and Production Period, and propose revisions in accordance with Article 8.3;"

- "to review Annual Programs and Budgets proposed by Contractor for the Evaluation Period and any New Evaluation Period;"

- "to review and approve Development and Production Areas and the Development Plan that Contractor, on behalf of the Parties, plans to propose to AKBN for its approval;"

- "to cooperate towards implementation of the Annual Programs and Budgets and Development Plans; and"

- "such other functions as entrusted to it by the Parties."79

309.
However, the Licensee is solely entitled to make decisions as to (i) the location, drilling, testing, completion, take-over of wells for re-completion of any well, either for production or other Petroleum Operations, (ii) Annual Programs and Budgets during the Evaluation Period and (iii) the areas for relinquishment under the Petroleum Agreement.80

B. The fiscal framework of the License Agreements and the Petroleum Agreements

310.
The License Agreements provide for a fiscal organization based on the principle that the Licensee, which bears all the costs and expenses incurred in operating each Oilfield (the "Petroleum Costs"),81 can recover certain costs after some petroleum has been allocated to Albpetrol.
311.
Thus, Albpetrol is allocated a share of deemed production ("PEP") of petroleum, calculated pursuant to a formula contained in the Petroleum Agreements.82 According to Claimant, the deemed production is justified in recognition of the existing production from the Oilfield prior to the grant of each License Agreement.83
312.
After deduction of PEP, the remaining petroleum that was not used in Petroleum Operations, flared or injected (the "Available Petroleum") is allocated between the Licensee / Contractor and Albpetrol, pursuant to a formula in each Petroleum Agreement based on the "R factor".84 Albpetrol's percentage share of the Available Petroleum is called the "Albpetrol Share of Production" ("ASP"), and the Licensee's / Contractor's percentage share is called the "Cost Recovery Petroleum".85
313.
The Petroleum Agreements provide that the "Contractor shall be entitled to the Cost Recovery Petroleum to recover all Petroleum Costs borne by it inside or related to the Project Area ('Cost Recovery') […] To the extent that in a given Calendar Year the outstanding Petroleum Operations Costs recoverable exceed the value of Cost Recovery Petroleum for such Calendar year, the excess shall be carried forward for recovery in the next succeeding Calendar Year and in each succeeding Calendar Year thereafter until fully recovered".86 The License Agreements contain a similar provision.87
314.
Finally, after the Licensee / Contractor has recovered all of its Petroleum Costs from the Cost Recovery Petroleum, the remaining Cost Recovery Petroleum is "Profit Petroleum", which is divided between Albpetrol and the Licensee / Contractor as follows:

- Albpetrol: 1/5 of the corresponding calculated Albpetrol % share based on Calendar Quarter R used to calculate ASP;88

- Contractor: the remaining, subject to a 50% Petroleum Profit Tax due to AKBN.89

315.
In implementing this organization, at the beginning of each calendar quarter, the Licensee is required to prepare and furnish to AKBN a production forecast setting out the total quantity of Available Petroleum estimated to be produced from the Contract Area in the next four quarters.90 Pursuant to the Petroleum Agreements, the Contractor must provide to Albpetrol weekly reports of estimated Petroleum production, monthly reports on the Petroleum production and Petroleum Operations and quarterly reports on Petroleum costs.91
316.
The Licensee must provide Albpetrol with weekly reports on estimated production, monthly reports on production and Petroleum Operations,92 and quarterly reports on Petroleum Costs.93
317.
In addition, the Licensee must prepare the Petroleum Costs in accordance with the accounting procedure annexed to the Petroleum Agreement (the "Accounting Procedure")94 and is required to provide to AKBN copies of its accounting records reflecting the Petroleum Costs every six months, along with copies of main Petroleum Costs incurred.95
318.
Finally, AKBN has the right to audit the Licensee with regard to the Petroleum Operations, no later than three years after the closure of a specific fiscal year,96 and the Licensee must provide AKBN with a declaration of income and losses no later than ninety days following the end of a fiscal year, in order to reveal its net profit or loss with respect to the Petroleum Operations for that fiscal year.97

C. Termination Provisions of the License Agreements and Petroleum Agreements

1. Breach and termination provisions in the License Agreements

319.
Article 24.1 of the License Agreement grants AKBN the right to cancel the agreement in the event of the following:

(a) "if LICENSEE knowingly submitted any false statements to AKBN where such statements were a material consideration for the conclusion and/or execution of this License Agreements;

(b) if LICENSEE transfers any right, privilege, duty or obligation to a Person contrary to the provisions of Article 22 hereof;

(c) if LICENSEE is adjudicated bankrupt by a court of competent jurisdiction;

(d) if LICENSEE does not comply with any final arbitrage decision;

(e) if LICENSEE intentionally extracts ay mineral other than Petroleum or sulfur, in whatever form, produced in association with Natural Gas, not authorized by this License Agreement or without the authority of AKBN except such extractions as may be unavoidable using accepted petroleum industry practices, and which shall be notified to AKBN or its representatives as soon as possible;

(f) if LICENSEE commits and (sic) material breach of this License Agreement; and

(g) if LICENSEE repeatedly employs illegal means of applying pressure upon AKBN in order to hinder it from the regular performance of its duties.

(h) if LICENSEE unreasonably and repeatedly makes an intentional and conscious violation of Albanian Law, AKBN instruction or this License Agreement provisions".98

320.
Article 24.3 of the License Agreements provides that "[i]f AKBN deems that one of the aforesaid clauses (other than ARTICLE 23) exists to cancel this License Agreement, AKBN shall give LICENSEE written notice personally served to LICENSEE informing LICENSEE that LICENSEE is in breach of one or more of the provisions of this License Agreement, and specifying the precise cause and nature of the breach. LICENSEE shall attempt to repair such breach within ninety (90) days. If such breach is not cured within the ninety (90) days, this License Agreement shall be terminated in conformity with terms and provisions herein".99

2. Breach and termination provisions in the Petroleum Agreements

321.
Articles 24.2 and 24.3 of the Petroleum Agreement provide as follows:

"This Agreement may be terminated by Albpetrol by giving no less than one hundred and twenty (120) days written notice to Contractor in the following events:

24.2.1 if Contractor has repeatedly committed a material breach of its fundamental duties and obligations under this Agreement and has been advised by Albpetrol of Albpetrol's intention to terminate this Agreeement. Such notice of termination shall only be given if Contractor upon receiving notice from Albpetrol that it is in material breach and does not rectify or has not commenced to substantially rectify such breach within (6) months; or

24.2.2 if Contractor does not substantially comply with any final decision resulting from an arbitration procedure pursuant to Article 19 hereof;

24.2.3 if Contractor is adjudged bankrupt by a competent court or, if there is more than one entity constituting Contractor, any of them has been declare bankrupt without the other entities or entity taking appropriate action to remedy the situation with regard to this Agreement.

Termination by Albpetrol pursuant to this Article 24.2 shall not relieve Contractor from any unfulfilled commitment or other obligation under this Agreement accrued prior to such termination, including without limitation payment of monetary obligations for unfulfilled work commitments, surface restoration, environmental remediation and abandonment.

24.3 Subject to earlier termination pursuant to Articles 24.1 or 24.2, this Agreement shall automatically terminate in its entirety if all of the Contract Area has been relinquished or the Development and Production Period or any subsequent extension has lapsed pursuant to Articles 3.4 and 3.7".

3.3. Overview of the facts leading to the present dispute

322.
It is undisputed by the Parties that, whereas the only tax borne by Claimant as of the Effective Date was the Petroleum Profit Tax pursuant to the Petroleum Fiscal Law,100 on or about 28 July 2008, the Government introduced the Royalty Tax, a tax on available production payable at the rate of 10% tax of the sale value of crude oil.101
323.
According to Claimant, on or about 21 July 2011, the Government introduced a per liter carbon tax on fuels,102 and in the Government's national budget for 2014, the following exemptions for operators of Albanian oilfields were removed (hereafter, the "EEC Tax Changes"):

- an exemption from the excise tax on imported petroleum products used in Petroleum Operations;

- income tax exemptions provided to subcontractors who provide goods and services related to the Petroleum Operations;

- exemptions from the carbon tax and circulation tax (a per liter tax on fuel products) on petroleum products purchased for Petroleum Operations; and

- an exemption from the VAT on goods and services procured for Petroleum Operations.103

324.
According to Claimant, the Government also increased the circulation tax by 10 Lek/liter in its national budget for 2015.104
325.
As will be developed below, Claimant considers that it has been suffering from negative economic effects due to the above changes and claims that Respondents violated what Claimant refers to as a "Fiscal Stabilization Covenant" contained in Article 3.1(c) of the License Agreements.105
326.
In addition to the dispute over the fiscal changes, the present arbitration proceedings deal with Claimant's liabilities for delivery of PEP&ASP obligations in respect of the Cakran and Gorisht Oilfields (hereinafter the "PEP&ASP Liability") which, according to Claimant, led Respondents to wrongfully confiscate the Gorisht Oilfield on 26 January 2017 and the Cakran Oilfield on 1 February 2017. Claimant refers to such events as the Wrongful Terminations.
327.
Claimant also alleges that Respondents have refused to hand over parts of the Contract Area relating to the Ballsh Oilfield, have interfered with Claimant's rights of access to gathering facilities where Claimant's petroleum was located, and have wrongfully taken Claimant's share of petroleum delivered to the gathering facilities.

4. THE PARTIES' REQUESTS FOR RELIEF

4.1. Claimant

The relief sought by Claimant in its Statement of Claim is the following:

"The Claimant respectfully requests that the Arbitral Tribunal:

a. award monetary damages, sufficient to put the Claimant in the position it would have been in but for the Respondents' various breaches of the Cakran and Gorisht Licence Agreements, in the amount of USD $56,386,000;

b. direct Albpetrol to hand over the balance of the Ballsh Field to the Claimant, and further, or in the alternative, direct the AKBN and the MEI to compel Albpetrol to hand over the balance of the Ballsh Field to the Claimant, and award monetary damages sufficient to put the Claimant in the position it would have been in if the Respondents had timely handed over the Ballsh Field and for the time period until the hand-over is completed, in an amount to be determined in accordance with the Deloitte Report; in the alternative, award monetary damages, sufficient to put the Claimant in the position it would have been in if the Respondents had timely handed over the Ballsh Field and for the time period until the end of the term of the License Agreement, in the amount of $56,986,000;

c. award the Claimant its legal fees, costs and expenses in connection with this arbitration, including but not limited to the fees and expenses of the Arbitral Tribunal; and

d. such further and other relief as the Arbitral Tribunal may deem appropriate."106

The relief sought by Claimant in its Reply is the following:

"The Claimant respectfully requests that the Arbitral Tribunal:

a. award monetary damages, sufficient to put the Claimant in the position it would have been in but for the Respondents' various breaches of the Cakran and Gorisht License Agreements, in the amount of USD $44,698,000;

b. award monetary damages, sufficient to put the Claimant in the position it would have been in if the Respondents had timely handed over the Ballsh Field and for the time period until the hand-over is completed, in an amount to be determined in accordance with the Deloitte Lost Profits Rebuttal Report; in the alternative, award monetary damages, sufficient to put the Claimant in the position it would have been in if the Respondents had timely handed over the Ballsh Field and for the time period until the end of the term of the License Agreement, in the amount of $43,241,000;

c. award the Claimant its legal fees, costs and expenses in connection with this arbitration, including but not limited to the fees and expenses of the Arbitral Tribunal; and

d. such further and other relief as the Arbitral Tribunal may deem appropriate."107

The relief sought by Claimant in its Post-Hearing Brief is the following:

"The Claimant respectfully requests that the Arbitral Tribunal:

a. award monetary damages, sufficient to put the Claimant in the position it would have been in but for the Respondents' various breaches of the Cakran and Gorisht License Agreements, in the amount of USD $44,698,000;

b. award monetary damages sufficient to put the Claimant in the position it would have been in if the Respondents had timely handed over the Ballsh Field and for the time period until the hand-over is completed, in an amount to be determined in accordance with the Deloitte Report; in the alternative, award monetary damages, sufficient to put the Claimant in the position it would have been in if the Respondents had timely handed over the Ballsh Field and for the time period until the end of the term of the License Agreement, in the amount of $43,241,000;

c. award monetary damages for the present value of G&A expenditures incurred since the loss dates in the amount of USD $425,000108;

d. award the Claimant its legal fees, costs and expenses in connection with this arbitration, including but not limited to the fees and expenses of the Arbitral Tribunal; and

e. such further and other relief as the Arbitral Tribunal may deem appropriate".109

4.2. Respondents

The relief sought by Respondents in their Objections to Jurisdiction and Statement of Defence is the following:

"The Respondents respectfully request the Arbitral Tribunal to decide as follows:

1. The Arbitral Tribunal declines jurisdiction to hear all of the Claimant's claims brought against the Ministry of Infrastructure and Energy (Republic of Albania), the National Agency of Natural Resources (Republic of Albania), and against Albpetrol sh.a. (Republic of Albania).

2. The Claimant has to bear the entire costs of the arbitration.

In the event and to the extent the Arbitral Tribunal confirms its jurisdiction:

3. All of the Claimant's claims against the Ministry of Infrastructure and Energy (Republic of Albania) are dismissed.

4. All the Claimant's claims against the National Agency of Natural Resources (Republic of Albania) are dismissed.

5. All of the Claimant's claims against Albpetrol sh.a. (Republic of Albania) are dismissed.

6. The Claimant has to bear the entire costs of the arbitration".110

The relief sought by Respondents in their Rejoinder Brief is the following:

"The Respondents respectfully request the Arbitral Tribunal to decide as follows:

1. The Arbitral Tribunal declines jurisdiction to hear all of the Claimant's claims brought against the Ministry of Infrastructure and Energy (Republic of Albania), the National Agency of Natural Resources (Republic of Albania), and against Albpetrol sh.a. (Republic of Albania).

2. The Claimant has to bear the entire costs of the arbitration.

In the event and to the extent the Arbitral Tribunal confirms its jurisdiction:

3. All of the Claimant's claims against the Ministry of Infrastructure and Energy (Republic of Albania) are dismissed.

4. All of the Claimant's claims against the National Agency of Natural Resources (Republic of Albania) are dismissed.

5. All of the Claimant's claims against Albpetrol sh.a. (Republic of Albania) are dismissed.

6. The Claimant has to bear the entire costs of the arbitration".111

The relief sought by Respondents in their Post-Hearing Brief is the following:

"The Respondents respectfully request the Arbitral Tribunal to decide as follows:

1. The Arbitral Tribunal declines jurisdiction to hear all of the Claimant's claims brought against the Ministry of Infrastructure and Energy (Republic of Albania), the National Agency of Natural Resources (Republic of Albania), and against Albpetrol sh.a. (Republic of Albania).

2. The Claimant has to bear the entire costs of the arbitration.

In the event and to the extent the Arbitral Tribunal confirms its jurisdiction:

3. All of the Claimant's claims against the Ministry of Infrastructure and Energy (Republic of Albania) are dismissed.

4. All of the Claimant's claims against the National Agency of Natural Resources (Republic of Albania) are dismissed.

5. All of the Claimant's claims against Albpetrol sh.a. (Republic of Albania) are dismissed.

6. The Claimant has to bear the entire costs of the arbitration".112

328.
In the sections below, the Tribunal will assess the facts and address the legal arguments of the Parties. Given that the Parties have pleaded this case extensively, the summaries of the Parties' positions do not necessarily contain all arguments submitted by the Parties. However, the Tribunal has carefully examined and considered all the Parties' arguments.

5. RESPONDENTS' CLAIM THAT THE TRIBUNAL HAS NO JURISDICTION OVER THE DISPUTE BROUGHT BY CLAIMANT

329.
The Tribunal will successively analyse its jurisdiction over the dispute in light of Respondents' allegations of illegality in awarding the Agreements (5.1.), its jurisdiction over the Parties and (5.2.) and its jurisdiction over the claims against Respondents (5.3.).

5.1. Jurisdiction of the Tribunal over the dispute in light of allegations of illegality in awarding the License Agreements and Petroleum Agreements

A. Respondents' position

330.
Respondents contend that Claimant "tries to frame this controversy as a normal commercial dispute between a diligent and competent oil company and a mighty State that has not only imposed additional taxes on the oil company's investment, but that has even harmed – for no cause and reason – the foreign investor by expropriating its oil extraction rights".113 According to Respondents, this is not a commercial dispute as "too many indicators point at a case of illegality and abuse of office by the Claimant in collusion with representatives of the State that the Claimant blames today – in 2007, and possibly even in the first years of the contractual period until Summer 2013, when the Democratic Party was still leading the Albanian Government and controlling the heads of the Ministry, AKBN, and Albpetrol".114
331.
Respondents' position is that, given that the License and Petroleum Agreements were illegally awarded to Claimant, these Agreements are invalid, respectively under Swiss law115 and English law.116
332.
In response to Claimant's allegation that the issue of illegality of the License Agreements and the Petroleum Agreements was never mentioned since 2007,117 Respondents argue that this is not an adequate rebuttal given the strong indicators for illegality. According to Respondents, "[i]llegality will normally not be laid down in documents, e-mails or correspondence, as it comes with the nature of illegal acts that they are not put on record, but rather concealed in a way that time is needed to investigate the setting".118 Respondents also argue that Claimant's statement is wrong, as, in 2006, the Albanian Minister of Economy, Trade and Energy did complain about

the negotiation exclusivity that was awarded to Claimant without proper reason and in contradiction to Albanian Law.119

333.
Respondents add that Claimant's argument that other license agreements for other oilfields were awarded in the same way does not make the award to Claimant legal, there is no "equality in illegality".120
334.
To support their claim, Respondents list ten red flags which in their view raise the suspicion of illegal activities (1.), draw the legal consequences of illegality (2.), and provide the Tribunal with "ways of dealing" with suspicions of illegality (3.).

1. The Red Flags alleged by Respondents

a) Claimant had no installed oil extraction capacity

335.
The first red flag alleged by Respondents is that "Claimant had no installed oil extraction capacity", but was nevertheless awarded the licenses and oil exploitation rights for the absolute period of twenty-five years.121 Claimant used Albpetrol's team and equipment to continue the oil extraction activities, but did not drill any wells on the Oilfields, in violation of Article 5(2) of the Petroleum Law which requires the "exploration, development, and production of hydrocarbons".122 Respondents consider this behavior to be "a typical pattern how to channel off profits from state-owned enterprises".123

b) Claimant lacked the financial and technical expertise

336.
The second red flag alleged by Respondents is that "Claimant lacked the financial and technical expertise" to "do better than" Albpetrol, in compliance with Article 5(2) of the Petroleum Law, which requested Claimant to furnish proof for its financial resources and technical competence to carry out the envisaged oil operations.124 Respondents allege that Claimant was an "empty shell without financial and technical capacities",125 and emphasize the "striking disproportion" between the consideration that Claimant "paid" in 2007 for the license rights ("Zero USD") and Claimant's submissions on the alleged "last profit (sic)/value of these extraction rights" (USD 87.9 million) in this arbitration.126
337.
According to Respondents, Claimant has not and could not provide the required proof of its resources because it has neither (i) the financial resources nor (ii) the technical competence and experience to develop the Oilfields, so that the Oilfields were not "'developed', but the existing installations were 'exploited' in the negative sense of the word, from the beginning to the end".127
338.
Respondents dispute the veracity and authenticity of the letter from Haywood Securities (UK) Limited to Stream Oil & Gas Ltd which was submitted by Claimant, which it calls "likely a forgery or at least a financial placebo".128 Respondents contend that the letter (i) does not look like a regular credit support letter by a financial institution,129 (ii) contains "at least eight linguistic flaws that are highly unusual for an English native speaker and CEO like the purported signatory, Mr. Daniel P. Brooks",130 (iii) contains a reference to "other areas licensed" whereas bank attestations usually only refer to known investment opportunities that the bank can evaluate,131 and (iv) does not contain a financing undertaking but only a "vague and entirely intransparent promise to finance under certain unclear conditions".132 The quality of the financing support cannot be evaluated without the "agreement", which had not been produced.133 Respondents also contend that the amounts of the funds allegedly available under unclear conditions do not mirror the funds necessary to invest in the oilfields to be able to conduct international standard oil operations.134