Mr Serge Gravel
Ms Anne Granger
FASKEN MARTINEAU SELAS
32, avenue de 1’Opéra
75002 Paris
France
Tel: +33(0)44 94 96 98
Fax: +33 (0) 44 94 96 98
Email: sgravel@fasken.com
agranger@fasken.com

(hereinafter referred to as the “Claimant’s First Counsel").

Ms Caline Mouawad
KING & SPALDING LLP
1185 Avenue of the Americas
New York, New York 10036
United States
Tel: +1 212 556 2172
Fax: +1 212 556 2222
Email: cmouawad@kslaw.com

Mr Ken Fleuriet
Mr Rami Chahine
KING & SPALDING LLP
12, cours Albert ler
75008 Paris
France
Tel: +33(1)73 00 39 00
Fax: +33 (1) 73 00 39 59
Email: kfleuriet@kslaw.com
rchahine@kslaw.com

(hereinafter referred to as the "Claimant's Second Counsel").

State of Libya
Ministry of Justice
Swani Road
Alaflah area
Tripoli
Libya
State of Libya
Libyan Embassy in Cyprus
7, Stassinos Avenue
1522 Nicosia
Cyprus

Dr Abdurrazek Ballow
Avocat au Barreau de Paris
72, boulevard de Courcelles
75017 Paris
France
Tel: +33 (0) 1 47 66 11 00
Fax: +33 (0) 1 47 66 08 88
Emails: balavocats@gmail.com
balow.avocats@gmail.com

Assisted by

Ms Valérie Contri
Lake Geneva Business Park
7, route de Crassier
1262 Eysins
Switzerland
Tel: +41 (0)22 595 13 15
Emails: valeriecontri@aol.com

Mrs Nayla Comair-Obeid, a Lebanese and French national, was appointed by the ICC International Court of Arbitration on 26 March 2015, as President of the Arbitral Tribunal pursuant to Article 13(4)(a) of the 2012 International Chamber of Commerce Rules of Arbitration (the “ICC Rules”). Mrs Comair-Obeid’s address and contact details are:

OBEID LAW FIRM
Stratum Office Building
Omar Daouk Street, Mina El Hosn Area
Beirut Central District, Beirut
Lebanon
Tel:+961 1 36 37 90 Ext.101
Fax:+961 1 36 37 91
Email: info@obeidlawfirm.com
nayla@obeidlawfirm.com

LINKLATERS LLP
25, rue Marignan
75008 Paris
France
Tel:+ 33 (0) 1 56 43 56 43
Email: roland.ziade@linklaters.com

61, rue de la Boétie
75008 Paris
France
Tel:+33 (0) 1 40 76 00 40
Fax: +33 (0) 1 40 76 02 50
Email: ibrahim.fadlallah@wanadoo.fr

Article 9 of the BIT states:

"Settlement of Disputes between one of the Contracting Parties and Investors of the Other Party

1. Disputes that may arise between one of the Contracting Parties and an investor of the other Contracting Party with regard to an investment in the sense of the present Agreement, shall be notified in writing, including a detailed information, by the investor to the former Contracting Party. As far as possible, the parties concerned shall endeavour to settle these disputes amicably.

2. If it is not possible to settle the dispute in this way within six months from the date of the written notification, it shall be submitted, at the choice of the investor concerned to:

(a) the competent court of the Contracting Party in whose territory the investment was made; or

(b) the Arbitral Tribunal of the International Chamber of Commerce in Paris; or

(c) the International Centre for the Settlement of Investment Disputes (ICSID) established by the Convention of 18 March 1965 on the Settlement of Investment Disputes between States and Nationals of Other States; or

(d) the Arbitration Institute of the Arbitral Tribunal of the Chamber of Commerce in Stockholm,

3. During arbitration proceedings or the enforcement of the award, a Contracting Party involved in the dispute shall not raise the objection that the investor of the other Contracting Party has received compensation under an insurance contract in respect of all or part of the damage.

4. The arbitral tribunal shall issue its decision in accordance with the provisions of this Agreement, other relevant agreements in force between the Contracting Parties, the applicable rules and principles of international law and domestic law of the contracting party provided that it does not conflict with the rules of international law.

5. The awards of arbitration shall be final and binding on both Parties to the Dispute. The Contracting Party shall carry out without delay any such award and such award shall be enforced in accordance with domestic law.”²

a) English shall be the language used by the Arbitral Tribunal in the correspondence to the Parties, TOR, Procedural Orders, Award(s) and other official documents;

b) The Parties’ written submissions shall be in English and the exhibits appended thereto, if originally in Arabic or French, shall be submitted in their original version together with English translations of the relevant excerpts;

c) Witness Statements and Expert Reports shall be submitted in their original language together with English translation;

d) Oral debates and examinations/cross-examinations of factual or expert witnesses shall take place in English, with simultaneous interpretation if necessary; and

e) The cost of translation and simultaneous interpretation shall be included in the costs of arbitration.

“4. The arbitral tribunal shall issue its decision in accordance with the provisions of this Agreement, other relevant agreements in force between the Contracting Parties, the applicable rules and principles of international law and domestic law of the contracting party provided that it does not conflict with the rules of international law.'’

a) The ICC Rules;

b) The Procedural Rules adopted by the Parties;⁴ and, where such rules are silent,

c) Any other rules as agreed in writing by the Parties or, failing such agreement, as may be determined by the Tribunal in its discretion.

a) Sought the sum of US$ 147,882,000.00 as compensation for the damages it incurred as a result of alleged breaches of the BIT and Libyan foreign investment law by the Respondent; and

b) Nominated Mr. Roland Ziadé as Co-Arbitrator.

a) File its Answer to the Claimant’s RFA within thirty (30) days of the receipt of the Claimant’s RFA; and

b) Confirm whether it agreed to have an Arbitral Tribunal composed of three (3) arbitrators and, if so, to nominate its Co-Arbitrator.

a) Asserted that it could not file its Answer within the time-limit prescribed by Article 5(1) of the ICC Rules due to the armed conflict and political instability in Libya;

b) Confirmed that it agreed to the Arbitral Tribunal being composed of three (3) arbitrators; and

c) Submitted a copy of the original Arabic version of its Counsel’s PoA.

a) Advised the Parties that Messrs Ziade and Fadlallah had been confirmed as CoArbitrators;

b) Requested the Respondent to comment on the Claimant’s suggestion of 26 November 2014; and

c) As the case may be, invited the Parties to indicate the deadline by which such nomination should occur.

a) Invited the Claimant to confirm the representative(s) who would be attending the PM on its behalf;

b) Circulated draft versions of the TOR and Procedural Rules for the Parties comments and/or approval; and

c) Invited the Parties to liaise with a view to proposing an agreed Provisional Timetable or, failing which, for each Party to make a proposal for the Provisional Timetable.

“1/ The Respondent asks the Arbitral Tribunal to decline its jurisdiction:

1- because of Investor’s and investment’s nationality

• Find that Olin Holdings Ltd is a “nut shell” and is a screen,

• Find that SATA Enterprises Ltd belongs to M. Akram Said Mohammed ABUGHAMJA, a Libyan citizen,

• Find that PROLAC is the only company with a technical competence in the field of activity of dairy products,

• Find that the SOUFFLET GROUP is the only company which controls and manages the project.

In consequence,

• Rule that Olin Holdings Ltd is not the investor, and that the investment is controlled by a French company,

• Rule that neither the investor nor the investment are Cypriot,

● Rule that Olin Holdings Ltd could not file the request for Arbitration on the basis of the BIT of June 2014. [sic]

● Rule that the Request for arbitration filed by Olin Holdings Ltd is obusive and fauduent as typical of "Treaty shopping". [sic]

● Decline its competence [sic]

2- Response of the competence given by Olin Holdings Ltd to the libyan counts

● Find that Olin Holdings Ltd not comply with the provisions of Article 24 of the Law no 5/1997.

● Find that Olin Holdings Ltd decided knowingly to submit the dispute to the Libyan judges.

● Find that according to the provisions of article 9 of the BIT Olin Holdings Ltd made a definitive and irrevocable choice.

● Find that Olin Holdings Ltd could not modify this procedural option.

● Find that Olin Holdings Ltd had to filed [sic] an appeal against the judgment rendered by the south Tripoli Court of first Instance instead of filed [sic] a request for Arbitration on the basis of the BIT.

● Find that Olin Holdings Ltd took advantage of the political situation in Libya in 2014 to try to obtain abusively the condemnation of the state of Libya.

In consequences,

● Rule that Olin Holdings Ltd gave in 2010, 2012 and 2014, jurisdiction to the Libyan judges to settle the dispute.

● Rule that Olin Holdings Ltd could not modify its irrevocable choice.

● Decline its competence.

34. II/The Respondent asks the Arbitral tribunal to allow the following counter claims.

1-Concerning the condemnation of the Claimant to pay US $10.000.000.

• Find that the Request for arbitration is abusive and fraudulent

• Find that the request for arbitration constitutes an attack against the Libyan State

In consequence.

• Condemn the Claimant to pay USS 10.000.000 damages

2-Concerning the condemnation of the Claimant to support all the costs and fees of the proceedings

• Find that the Claimant’s behaviour is unacceptable

• Rule that the Respondent is well-founded to claim the condemnation of the Claimant to pay all the costs and fees relating to the proceedings.

In consequence.

• Condemn the Claimant to pay all the costs and fees."

“On the basis of its full argumentation based on its two Submissions, Respondent respectfully asks the Arbitral Tribunal to:

- Reject Claimant's assertions relating to the tribunal, jurisdiction over dispute. [sic]

- Condemn Claimant’s [sic] to pay the amount of USD 10,000 damages [sic] because of its behaviour,

- Note that according to the ICC Rules Respondent has no compulsory obligation to pay its share of advances on costs [sic],

- State that the issue of payment of Respondent’s share of the advance on costs can be settled within the Award on Jurisdiction.

- Condemn the Claimant to pay all the costs and fees in relation with this arbitration".

"For the foregoing reasons, Olin respectfully requests the following relief in the jurisdictional phase of the arbitration, namely that the Tribunal:

a. Reject Libya’s jurisdictional objections in their entirety and confirm its jurisdiction over the dispute;

b. Dismiss Libya's counterclaim in its entirety;

c. Order Libya to pay all costs and expenses of the jurisdictional phase of this arbitration, including the fees and expenses of Olin's legal representatives in respect of this phase and any other costs;

d. Find that Libya failed to pay its share of the advance on costs fixed by the ICC Court in breach of the arbitration agreement set forth at Article 9 of the Treaty, and issue a Partial or Interim Award ordering Libya to pay Claimant USD 325,000, plus compound interest at a commercial rate until Libya makes the payment; and,

e. Order any further relief that the Tribunal deems just and appropriate.

Olin reserves the right to seek other or additional relief to which it may be entitled.”

"For the foregoing reasons. Olin respectfully requests the following relief in the jurisdictional phase of the arbitration, namely that the Tribunal:

a. Reject Libya’s jurisdictional objections in their entirety and confirm the Tribunal's jurisdiction over the dispute;

b. Dismiss Libya’s counterclaim in its entirety;

c. Order Libya to pay all costs and expenses of the jurisdictional phase of this arbitration, including the fees and expenses of Olin's legal representatives in respect of this phase and any other costs;

d. Find that Libya failed to pay its share of the advance on costs fixed by the ICC Court in breach of the arbitration agreement set forth at Article 9 of the Treaty, and issue a Partial or Interim Award ordering Libya to pay Claimant USD 325,000, plus compound interest at a commercial rate until Libya makes the payment, in respect of the payment made by Claimant on Libya’s behalf; and,

e. Order any further relief that the Tribunal deems just and appropriate.

Olin reserves the right to seek other or additional relief to which it may be entitled.”

a) Investment:

“[E]very kind of assets invested, in connection with economic activities by an investor of one Contracting Party in the territory of another Contracting Party in accordance with the laws and regulations of the latter and in particular, although not exclusively, the following:

(a) Movable and immovable property and any other property rights such as mortgages, liens, pledges, leases and similar rights.

(b) Shares in companies, stocks and debentures of a company or any other form of participation in a company or business enterprise.

(c) Claims to money or to any performance under contract having economic value and associated with an investment.

(d) Intellectual property rights, technical processes, know-how and goodwill including copyrights, patents and rights of inventions, signs, secrets and business names, designs and manufacturing procedures and technical knowledge.

(e) Any rights conferred by law or by virtue of a contract, including concessions to sear for, cultivate, extract or exploit natural resources.

Investments made in the territory of one Contracting Party by any legal entity of that same Contracting Party which is actually owned or controlled by investors of the other Contracting Party shall likewise be considered as investments of investors of the latter Contracting Party if they have been made in accordance with the laws and regulations of the former Contracting Party.

Any change in the form of the assets that are invested or reinvested does not affect their character as investments.”

b) Investor:

“[...] with regard to either Contracting Party:

- Any natural person having the citizenship of that Contracting party [sic] in accordance with its law;

- Any legal person constituted or incorporated in compliance with the law of that Contracting Party and having their seat in the territory of the same Contracting Party;

who in compliance with this Agreement, are making investments in the territory of the other Contracting Party.”

“The arbitral tribunal shall issue its decision in accordance with the provisions of this Agreement, other relevant agreements in force between the Contracting Parties, the applicable rules and principles of international law and the domestic law of the contracting party provided that it does not conflict with the rules of international law."

a) Issue No. 1: "Can the Claimant be considered as an "Investor” under the BIT?''

b) Issue No. 2: "Is the Claimant precluded from bringing forth these arbitral proceedings due to the fact that it has already pursued court proceedings In Libya, and that it doesn’t meet the requirements of Article 9 of the BIT?”

c) Issue No. 3: "Is the Respondent entitled to USD 10,000,000.00 in damages?

d) Issue No. 4: "Who should bear, and in what proportion, the costs of the jurisdictional phase in these arbitral proceedings?”

a) The Claimant was incorporated in Cyprus on 28 February 1994 and its two current shareholders are: SATA Enterprises, “a Cyprus company with Libyan shareholders” (“SATA”) and the French company PROLAC (“PROLAC");⁷

b) From 1994 to 2001 “the shares of [the Claimant] were owned equally by two nominees” both located in Cyprus;

c) On 15 January 2001, those two nominees transferred their respective shares (500 each) to Mr Akram Said Mohammed Abughamja (“Mr Abughamja”), a Libyan citizen, who then became the “sole owner of the [Claimant’s] 1000 shares";⁸

d) On 1 July 2008, Mr Abughamja transferred 975 shares to SATA and 25 shares to PROLAC;⁹

e) On 11 February 2014, the Claimant’s share capital was increased to 10,975 shares held by SATA and 25 shares held by PROLAC;¹⁰

f) Mr Abughamja was the Claimant’s Director from 2 January 2001 to 30 March 2011 and again from 10 April 2013 to 5 October 2015.¹¹

a) The Claimant’s Memorandum of Association “shows that it has no specific activity, especially in the field of dairy products and of fruit juice products”;¹⁴

b) PROLAC is a French company which was created on 24 May 1995 and its main sector of activity is the “wholesale deal[ing] (Business to Business) of dairy products, eggs, oil and fat foodstuffs ...”;¹⁵

c) PROLAC’s President is Mr Jean-Francois Lepy, who concurrently holds the position of President of SOUFFLET NEGOCE and Corporate Manager of ETABLISSEMENTS J. SOUFFLET ET CIE (SOCOMAC), two French companies with the same registered office in Nogent Sur Seine;¹⁶

d) Exhibits C-25,¹⁷ C-39,¹⁸ C-40¹⁹ and C-41²⁰ to the Claimant’s RFA indicate that the Claimant is actually a member of SOUFFLET (Id., para. 15); and

e) SOUFFLET “is an agro-industrial group with more than 4.000 employees, with a revenue of 4’7 billions €, with 42 plants around the worlds [sic]” and “a significant actor in the field of international trade of cereal, of oilseeds and of dairy products [...]”.²¹

a) “[T]here is no link with Cyprus either through the main shareholder [SATA] or through the minority one [PROLAC]”;²³

b) "[B]ehind the legal entity incorporated in Cyprus [the Claimant], the effective investor is a Libyan citizen [Mr Abughamja] who cannot take advantage of the BIT because of his nationality;²⁴ and

c) “[T]he investment made by the Libyan citizen [Mr Abughamja] is not owned or controlled by a company registered in Cyprus but a company registered in France [i.e. PROLAC]”.²⁵

a) The Claimant is "Treaty shopping” in that it "abusively and wrongfully” pursues this arbitration based on the BIT; and

b) The RFA "results from a purely artificial and subtle scheme” where the Claimant acts as a "nut shell company [...] designed to hide reality” that neither Mr Abughamja nor SOUFLLET have the required "true link of nationality with the home Contracting State”, i.e. Cyprus, and thus cannot benefit from the provisions of the BIT.

a) Its nationality under the BIT should be “determined solely by reference to its place of incorporation”;

b) The criteria invoked by the Respondent of “ultimate ownership, ultimate control, and the extent of the Claimant’s economic activities with Cyprus are irrelevant for purposes of establishing jurisdiction under the [BIT]”;

c) It has rightfully invoked the BIT without “engag[ing] in any kind of treaty shopping or any other fraudulent scheme”.

a) Pursuant to Articles 31 to 33 of the Vienna Convention on the Law of Treaties, the interpretation of treaties should be made ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”;²⁷ and

b) Pursuant to Article 1.2 of the BIT,²⁸ the only two criteria which should be considered for determination of the Claimant’s nationality are (1) its place of incorporation and (2) its seat.²⁹

a) It was incorporated in Cyprus, as it appears from its Memorandum and Articles of Association and its Certificate of Incorporation;³⁰

b) Its seat is located in Cyprus,³¹ as evidenced by its Certificate of Registered Office,³² its certificate from the Nicosia Chamber of Commerce and its auditors.³³

The Claimant also highlighted that, in cases where “the ultimate ownership or control of the Claimant lie [lay] with a national of a [...] third State”, tribunals also adopted a similar approach in determining the claimant’s nationality. In this respect, the Claimant referred to the following cases: Saluka v. Czech Republic,³⁸ ADC v. Hungary,³⁹ Gold Reserve Inc. v. Bolivarian Republic of Venezuela and Aguas del Tunari v. Bolivia.⁴⁰

a) “[a]bsent a finding of fraud or abuse, there is no basis to disregard the corporate form of an entity [i.e. pierce the corporate veil] and instead look above the entity in the corporate chain”;⁴²

b) Arbitral precedents indicate that the corporate veil should not be pierced, except in cases of "very serious and blatant misconduct such as a claimant concealing its corporate nationality in its interactions with the host State, or creating a legal entity for purposes of gaining access to arbitration under a treaty”;⁴³

c) Its incorporation in 1994, the acquisition of shares by Mr Abughamja in 2001, its decision to invest in Libya in 2002 and the authorization and licence it received from Libyan authorities in 2002 and 2003 (pursuant to the Libyan Law No. 5 of 1997 for the Promotion of Investment of Foreign Capital (“Law No. 5”) all predate the signature of the BIT in 2004;

d) Its incorporation and Mr Abughamja’s acquisition of its shares predate the signature of the BIT and, therefore, it “cannot be said that Claimant was incorporated in Cyprus for the sole purpose of availing itself of the protections under the [BIT] and gaining supposed fraudulent access to the present arbitral forum”; and

e) It had always been transparent with Libyan authorities as to its Cypriot nationality and it was recognized as such in various documents issued throughout the course of the investment by the Libyan Ministry of Economy and Trade and the Libyan Foreign Investment Board.⁴⁴

a) Throughout the whole duration of the project, the “foreign capital” was owned by Mr Abughamja, a Libyan citizen residing in Tripoli, either directly or through SATA;⁴⁶

b) Mr Abughamja owned the piece of land on which the dairy products factory (subject of the investment) was built;⁴⁷ and

c) The “law of 21/10/2013” lifted restrictions on the ownership of land by foreigners in Libya but the Claimant still entered into the lease contract (2005), usufruct contract (2006) and property sale contract (2007) (all in relation to the dairy products factory).⁴⁸

a) The Respondent had acknowledged that it is incorporated and seated in Cyprus, the only two requirements set out at Article 1.2 of the BIT to be considered as a protected investor;⁴⁹

b) The Respondent had failed to address the arbitral case law presented by the Claimant in its Answer;⁵⁰ and

c) The Respondent attempted to circumvent the clear terms of the BIT by importing criteria for the definition of ‘investor’ that are absent therefrom (e.g. original of capital, corporate control, effective seat).⁵¹

a) The Registrar of the Libya Foreign Investment Board (“LFIB”) indicates the Claimant’s participation in the project amounted to USD 8 million in ‘foreign’ capital;⁵⁴

b) Its dairy and juice production factory was built with materials procured abroad and the materials it used for the project were also imported;⁵⁵ and

c) The Libyan Ministry of Economy and Trade and the LFIB both acknowledged and accepted the Claimant’s Cypriot nationality on multiple occasions.⁵⁶

a) The General People’s Committee (“GPC’) for Economy and Commerce’s Resolution No. 365 of 12 November 2002 ("Resolution No. 365”) entitled “Of permission for an investor to execute the investment activity in the Great Jamahiriya” which notably:

(i) Referred to, inter alia, “law No. (5) year 1997 regarding investment furtherance the foreign capitals [sic] “Law No. 5”] and its executive regulation";

(ii) Authorized under its Article 1 “Olin Holdings Limited Company / Cyprus nationality with sharing percentage 100% to execute a factory for producing the dairy products and its derivatives”;⁵⁷ and

(iii) Provided in its Article 2 that “the investment furtherance body [i.e. the LFIB] will give the licenses and approvals necessary to establish the investment project in accordance with the provisions o/[Law No. 5] and its executive regulation”;

b) The notification, on 18 November 2002, of GPC Resolution No. 365 by the LFIB to the Claimant was addressed to “Messrs. OLIN HOLDINGS Ltd. - CYPRIOT" and notably requested the Claimant “[...] to proceed to implement [its] project, and complete the required legal procedures, in order to enable us to issue the necessary license in this regard, under the terms and conditions stipulated in [Law No. 5] and its Executive Regulation”;⁵⁸

c) The LFIB Licence No. 044 dated 3 March 2003 (“License No. 44”) which was entitled “Investment project license to establish investment project [sic]” and was issued to “Investor: Olin Holdings, Ltd. /Cyprus” for the establishment of its dairy products factory in Tripoli, in accordance with Law No. 5 and Resolution No. 365;⁵⁹

d) The letter from the LFIB to the “Secretary of People's Committee of Tripoli Shabiat” dated 29 September 2003 which refers to “the investor Olin Holdings Company Ltd. Nationality Cyprus”;⁶⁰

e) The Registration Confirmation Certificate issued by the Tripoli Chamber of Commerce, Industry and Agriculture on 7 June 2004, which attests to the registration of the “Branch of Olin Holdings Limited Company, Cyprus” as a “Foreign Company Branch”, with Mr. Abughamja as “General Director” and “Licensee”;⁶¹

f) The General People’s Committee for Economy and Trade’s Resolution No. 697 of 30 October 2005 (“Resolution No.697”), which amended Article 1 of Resolution No. 365 by:

(i) Expanding the scope of the Claimant’s investment project from the production of dairy products only (see 114.a)(ii) above) to “the production of dairy products and juices of all kinds” (emphasis added);

(ii) Specifying that the Claimant’s investment would be implement through a “branch of a foreign company” named “Olin Holdings, Ltd.”;⁶²

g) The LFIB License No. 093 of 21 November 2005 (renewal) which was issued in favour of: “The Investor: Olin Holdings, Ltd./ Country of Origin: Cyprus”, noting that the legal form of the investment was a “branch of a foreign company”;⁶³

h) The extract from the Investment Projects Register of the LFIB which provides that “Olin Holdings, Ltd”, of nationality “Cyprus”, contributed USD 8,000,000.00 in “foreign capital” to the investment project and the attached “Certificate of Fees Paid" dated 3 July 2006 which was made in the name of “Branch of Olin Holdings, Ltd./Cyprus”;⁶⁴

i) The GPC Resolution No. 241 of 19 October 2006 ("Resolution No. 241”) which ordered the expropriation for public interest of the plot of land on which the Claimant’s factory was built to make way for the establishment of a housing project;⁶⁵

j) The letter from the LFIB to the GPC for Housing and Infrastructure dated 14 November 2006 which referred to “the notice to vacate the property used by Olin Holdings, Ltd./Cyprus [...]”, stating notably that “we [the LFIB] hope that you [the GPC for Housing and Infrastructure] would not take any measures to harm the project and the investor which would reflect on the climate for foreign investments in our country and damage the reputation of the Great Jamahiriya before the world, especially as our country has become a preferred destination for investors and businessmen in view of its state of security and stability”;⁶⁶

k) The letter from the LFIB to the People’s Committee for Economy, Trade and Investment dated 16 November 2006 in which the Claimant is referred to as “Olin Holdings Ltd./Cyprus”;⁶⁷

l) The LFIB License No. 20/2006 dated 26 November 2006 (renewal) which was issued in favour of “Branch of Olin Holdings, Ltd./Cyprus” notwithstanding the expropriation measures taken through Resolution No. 241;⁶⁸

m) The expert report submitted by Messrs Murad Salim Al-Ghunaymi and Omar Ahmad Abdul-Hadi to the South Tripoli Court of First Instance on 30 November 2006, which was filed “[a]s per the request of Mr. the legal representative of the Cypriot company Olin Holdings Limited/Jamahiriya branch Against The People General Committee Secretary (In his capacity) and others”;⁶⁹

n) The letters from the LFIB to the GPC of the Public Properties Authority and the GPC for Housing and Infrastructure respectively dated 7 and 10 December 2006 which mentioned “the notice to vacate the property used by Olin Holdings, Ltd. Cyprus [...]", reiterating the content of the LFIB’s letter of 14 November 2006 referred to in paragraph 114.j) above;⁷⁰

o) The letter from the LFIB to the Manager of the Sahara Bank dated 11 March 2007 which mentions the “factory owned by the investor: Olin Holdings. Ltd./Cyprus”;⁷¹

p) The letter from the LFIB to the Director of the Public Property Authority Office (Tripoli) dated 12 March 2007 which referred to the “project owned by the investor. Olin Holding Ltd/Cyprus" and to the "property utilized by Olin Holding Ltd/Cyprus", requesting that the Claimant be exempted from the expropriation measures order under Resolution No. 241 in accordance with "the law issued by the Primary People's Congresses protecting the legal obligations of foreign investors and avoiding the negative consequences that would reflect on attracting foreign and local investments in the Great Jamahiriya";⁷²

q) The letter from the GPC for Economy, Trade and Investments to the Secretary of the GPC dated 19 June 2007 which notably states that:

The executive body in Jamahiriya [sic], at its various levels, is now before a real test towards respect of the legislations governing the economic activity and its credibility through the case currently on hand of Olin Holdings of Cypriot [sic] which has constructed a Milk, Dairy Products and Juice Factory under [Law No. 5] following completion of all the administrative and legal procedures.

Non-literally implementation [sic] of the investment law towards this case shall result in a negative and bad effect on foreign investors currently operating in the country, what would alienate any new investor thinking of investing in Jamahiriya [sic] and would make international investment guarantee agencies reconsider their classification of Jamahiriya [sic] by rising the risks levels and their consequences on increasing the insurance premiums and thus resulting in reduction of investors to come to Jamahiriya, particularly at this time during which Jamahiriya [sic] seeks to develop such activity by all ways and means as confirmed by the letter of the [GPC] NO. (4770) dated 01/05/2007 regarding entry and existence of the foreign investor in various economic, production, servicing and tourism activities";⁷³

r) The LFIB License No. 20 of 18 November 2008 (renewal) which mentions “branch of Olin Holdings, Ltd./Cyprus" as the “Legal Form";⁷⁴ and

s) The letter from the GPC for Justice to the “Committee for the Management of the Real Estate & State Property Department” dated 24 October 2010 which refers to the administrative appeal brought forth by “the legal representative of the Olin Holdings Company Ltd of Cyprus [...]”.⁷⁵

“[...] with regard to either Contracting Party:

- Any natural person having the citizenship of that Contracting party [sic] in accordance with its law;

- Any legal person constituted or incorporated in compliance with the law of that Contracting Party and having their seat in the territory of the same Contracting Party;

who in compliance with this Agreement, are making investments in the territory of the other Contracting Party.”

a) On the one hand, the Respondent argued that Claimant should not be considered as a Cypriot investor pursuant to the BIT due to the fact that its ultimate shareholders, i.e. Mr Abughamja and the Soufflet Group, both lacked the required “true link of nationality with the home Contracting State";⁷⁶ and

b) On the other hand, the Claimant maintained that only the criteria explicitly listed at Article 1.2 of the BIT should be considered to determine its nationality, i.e. the place of incorporation and the seat.

a) The legal person must have been constituted or incorporated in accordance with the laws of a Contracting Party, i.e. the Republic of Cyprus or the State of Libya; and

b) The seat of the legal person must be located within the territory of the same Contracting Party.

a) Article 1(b)(2) of the 2001 Libya-Algeria BIT which defines ‘investor’ notably as “the companies of a contracting party, any legal entity, organisation, firm, association incorporated or constituted in accordance with the laws of that contracting party";

b) Article 1(l)(b) of the 2002 Libya-Austria BIT which defines an ‘investor’ as “an enterprise constituted or organised under the applicable law of a Contracting Party making or having made an investment in the other Contracting Party's territory";⁷⁷ and

c) Article 1(2)(b) of the 2004 Libya-France BIT which provides the following definition of ‘investor’: “any legal entity constituted in the territory of one of the Contracting Parties in accordance with its legislation and having its seat in such territory”.⁷⁸

a) Article 1(2)(b) of the 2002 Libya-Croatia BIT notably defines ‘investor’ as a "legal entity incorporated, constituted or otherwise duly organized in accordance with the laws and regulations of one Contracting Party, having its headquarters and performing real business activity in the territory of that Contracting Party" (emphasis added);⁷⁹

b) Article 1(2)(b) of the 2004 Libya-Ethiopia BIT states that the term ‘investor’ comprises notably “[a] legal entity including companies, corporation, business associations, enterprises, which are constituted or otherwise duly organized under the laws of that Contracting Party and have their seat, together with their economic activities, in the territory of that same Contracting Party” (emphasis added);⁸⁰

c) Article 1 (2)(b) of the 2009 Libya-Slovakia BIT sets out the following definition of ‘investor’: “[...] any entity, which is incorporated or constituted in accordance with the laws and regulations of one of the Contracting Parties and which has its registered office, central administration or principal place of business in the territory of one of the Contracting Parties. However, should such a legal person have only its registered office in the territory of one of the Contracting Parties, its operations must possess a real and continuous link with the economy of one of the Contracting Parties.” (emphasis added).⁸¹

This position finds support in several precedents in the field of investment arbitration where tribunals have refused to go beyond the clear terms of a bilateral investment treaty. Multiple arbitral awards submitted on the record of this arbitration, mentioned in paragraphs 102 and 103 above, also go in the same direction: Tokios Tokeles v. Ukraine, Rompetrol v. Romania, KT Asia v. Kazakhstan, Longreef v. Venezuela,⁸² Yukos v. Russia, Saluka v. Czech Republic, ADC v. Hungary, Gold Reserve Inc. v. Bolivarian Republic of Venezuela and Aguas del Tunuri v. Bolivia.

a) The country in which the Claimant was incorporated; and

b) The location of the Claimant’s seat.

a) The Claimant’s Certificate of Incorporation and its Articles of Association indicate that it was duly incorporated on 28 February 1994 as a Limited Liability Company in accordance with the Cypriot “Companies Law, Cap. 113”;⁸³ and

b) The Claimant’s Memorandum of Association, Certificate of Registered Office (issued by the Nicosia Registrar of Companies) and Membership Certificate for the Nicosia Chamber of Commerce and Industry show that its seat is located in Nicosia, Cyprus.⁸⁴

a) The Claimant engaged in any fraudulent behaviour or serious and blatant misconduct in initiating this arbitration;

b) The Claimant was created for the sole purpose of gaining access to this arbitration or benefiting from the BIT, having been incorporated ca. ten (10) years prior to the signature of the BIT; and

c) Mr Abughamja acquired his shares in the Claimant for the sole purpose of gaining access to this arbitration or benefiting from the BIT via the Claimant, such acquisition having taken place ca. three (3) years prior to the signature of the BIT.

“This law shall be applicable to investment of foreign capital owned by Libyan Arab citizens and nationals of Arab and Foreign states in investment projects.

The national capital may participate with the foreign capital in investment. The executive regulation for this law shall specify the basics and rules for such participation.”

a) ‘Foreign Capital’ under its Article 3(6) as the “[t]otal financial value entered into the Great Jamahiriya in whether owned by Libyans or foreigners for performing investment activities”; and

b) ‘Investor’ under its Article 3(9) as “[a]ny national or foreign natural or juridical person investing under the provision of this law”.

a) Explicitly includes both national and foreign individuals or entities in its scope of application; and

b) Focuses instead on the origins of the funds to be invested in a project in order to determine whether or not such funds constitute ‘foreign capital’.

a) After the issuance of Resolution No. 365 by the GPC for Economy, Trade and Investment on 12 November 2002, it proceeded with its investment project, built its factory and entered into a manufacturing and distribution agreement with French supplier Candia;⁸⁸

b) On 12 November 2006, it was notified of the issuance of GPC Resolution No. 241 dated 19 October 2006 which ordered the expropriation of the plot of land on which it had built its factory for public purposes;

c) On 25 November 2006. GPC Resolution No. 266 was issued, replacing Resolution No. 241 and confirming the expropriation of a larger land area;

d) Following the issuance of Resolution No. 266, the Claimant decided to challenge this decision it considered as "wonderful under applicable Libyan laws and /or the BIT provisions";⁸⁹

e) It adopted a two fold strategy to challenge the expropriation measures:

(i) "it took actions vis-a-vis the Libyan authorities, in particular the [LFIB]"

(ii) "it instituted judicial proceedings to protect [its] rights";

f) "In addition, one should recall the political surroundings and the fear atmosphere which was prevailing during the days of the Great Socialist People's Libyan Arab Jamahiriya.

Olin knew that it had no other alternative but to oppose the demolition of its plant since, in these days. it was almost impossible to sue the Libyan state to obtain compensation; otherwise, the Libyan shareholders of Olin would have been under an obligation to leave Libya if they had sued the State. It would have been impossible to initiate ICC arbitration proceedings against Libya during these Libya during these days".⁹⁰

g) On 13 November 2006, the President of the South Tripoli Court of First instance nominated nominated two experts to evaluate the value of the Claimant's plants and materials. The two experts rendered their report on 30 November 2006, evaluating the value of the Claimant's factory and assets respectively at LYD 4,844,018,018 and LYD 8,609,130,285;⁹¹

h) "Immediately after the issuance of the expert reports [the Claimant] initiated judical proceedings before the Tripoli Appeal Court seeking annulment of the two successive unlawful administrative decisions of dispossession issued by the [GPC] in breach [GPC] in breach of Law";⁹²

i) "Having no illusion vis-a-vis the Libyan judicial process, [the Claimant] tried through numerous combats and meetings, to obtain the repeal of the dispossession decision or, at least, an exemption from the dispossession decision like other plants which had been specifically exempted[.,,]";⁹³

j) On 13 April 2010, the Tripoli Court of Appeal issued its judgement in the case brought forth by the Claimant, finding that Resolution No.266 was null and void. This decision was notified to the Claimant on 12 August 2010;⁹⁴

k) On 31 August 2010, it received a letter from the Social Land Registry and Authentication Authentication Department, requesting the evacuation of its property within a week and referring to Resolution No. 266, despite the judgment issued by the No. 266, despite the judgment issued by the Tripoli Court of Appeal;⁹⁵

l) Faced with the Respondent's failure to acknowledge and comply with the judgment of the Tripoli Court of Appeal, the Claimant “had to continue to fight on two levels at the same time" by:

(i) "protect[ing] its investment against expropriation and from destruction even though the decision of the [GPC] had been declared unlawful, null and void"; and

(ii) "obtain[ing] compensation and indemnification, on the basis of Law(5), for the damages suffered by Olin because its plant could not be operated in the normal course of business";

m) On 7 December 2010, it filed to obtain for compensation based on domestic Libyan laws laws before the South Tripoli Court of First Instance, seeking LYD 76,900,971.642 for losses of revenues and lost opportunities, LYD 10,000,000.00 for material damages resulting from the dispossession and LYD 7,000,000.00 for moral damages;

n) “No hearings, and only one exchange of briefs ever took place in these proceedings [before the South Tripoli Court of First Instance]”;

o) In January 2014, the Claimant filed a motion to submit additional evidence at a hearing scheduled to take place on 4 February 2014;

p) On 4 February 2014, the South Tripoli Court of First Instance disregarded the Claimant’s motion and issued its ruling immediately, dismissing the Claimant’s claims and ignoring Article 23 of Laws No. 5 and 7 regarding protections against expropriations, as well as the judgment of the Tripoli Court of Appeal in the administrative case;

q) The judgment issued by the South Tripoli Court of First Instance is tantamount to a denial of justice since it ignored:

(i) the Claimant’s entitlement to compensation under Article 173 of the Libyan Civil Code for the unlawful expropriation measures suffered as a result of Resolution No. 266;

(ii) the judgment of the Tripoli Court of Appeal in the Claimant's administrative case; and

(iii) Article 23 of Law No. 5 and Law No. 9 regarding the protection against expropriation for foreign investments;

r) “Faced with such denial of justice after more than 7 years of legal battles, Olin decided to initiate proceedings to obtain the acknowledgement of the international wrongful acts which are attributable to Libya on the basis of international law and of the provisions of the BIT";

s) The Respondent is being sued in this arbitration for the acts and/or omissions of several Libyan state organs, attributable to the Respondent, in relation to the dispossession measures it suffered;⁹⁶

t) On 13 March 2014, the Claimant issued a notice to the Respondent pursuant to Article 9.1 of the BIT, inviting the latter to endeavour to settle the dispute amicably and attaching a draft copy of the RFA;

u) On 14 April 2014, the Privatization and Investment Board (PIB) (i.e. not the Respondent) replied to the Claimant’s letter of 13 March 2013, advising that it was ready to hold a meeting with the Claimant’s representatives in order to settle the dispute;

v) On 22 April 2014, the Claimant replied to the PIB’s letter of 14 April 2014, acknowledging the Respondent’s offer to negotiate within the framework of the BIT and setting out conditions for holding such meeting;

w) On 12 May 2014, the PIB replied to the Claimant’s letter of 22 April 2014, advising that it had “contacted the Ministry of Economy in order to form a delegation to discuss and negotiate with the [Claimant]”;

x) On 13 May 2014, the Claimant advised the Respondent, stating notably that it had yet to receive a confirmation that the PIB was authorized to negotiate on behalf of the Respondent and, by separate letter of the same day, provided the PIB with a copy of its letter to the Respondent;

y) Having received no firm answer from the Respondent regarding the settlement negotiations, the Claimant considered that the involvement of the PIB was a dilatory technique, and that the Respondent had failed to engage in good faith settlement negotiations.

a) Articles 1 and 2 of Law No. 5, as amended in 2003, which set out its objectives and general scope of application;

b) Article 20 of Law No. 5, as amended in 2003; which provides a mechanism for an investor to file a complaint or appeal decisions taken by the LFIB;⁹⁸

c) Article 24 of Law No. 5, as amended in 2003, which defines the mechanism for the resolution of disputes between a foreign investor and the Respondent;⁹⁹ and

d) Article 9 of the BIT, reproduced at paragraph 12 above.

a) “Libyan law is much more favorable to the foreign investor and investment since, when a Bilateral Agreement has been signed by Libya with a foreign Stale to whom they belong, the dispute has to be directly presented to the competent court in accordance with the provisions of the BIT. It must be noted that in such a case, no choice is given to the foreign investor, it is excluded that the national Libyan courts can settle this kind of disputes [sic]”;¹⁰⁰

b) Article 9 of the BIT provides an investor with two procedural options for the settlement of dispute, i.e. court proceedings or arbitration, a “mechanism of irrevocable choice which is alternative and not cumulative or successive” and pursuant to which “[t]he investor has to make a definitive choice between national and international tribunal and to comply with its choice”, underlining the use of the word “or” in this Article.¹⁰¹

a) It had been dispossessed of its investment by the Libyan authorities, in contravention of Article 23 of Law No. 5 regarding expropriation;¹⁰² and

b) It adopted a two-fold strategy whereby it “took actions vis-a-vis the Libyan authorities” (notably the LFIB) and initiated court proceedings in Libya.¹⁰³

a) “[...] in contravention to the provisions of Article 24 of [Law No. 5] which governs the investment, deliberately and knowingly, [the Claimant] decided not to take advantage of the BIT but to submit the dispute to Libyan Courts”;¹⁰⁴

b) When it filed its submission before Libyan courts, the Claimant was aware of the existence of the BIT and the dispute resolution mechanism to which it could resort pursuant thereto;¹⁰⁵

c) From 2010 until January 2014, the Claimant consistently exercised its option to pursue court proceedings and “[i]n front of the choice to submit the dispute before the international judge or before the national judge ('fork-in-the-road') the Claimant had to make a final and irrevocable choice. It had to choose a way (‘Electa una via')";¹⁰⁶

d) "[...] [T]he ‘triple test of identity' shows the same identity of the parties, of the cause and of the object”;¹⁰⁷

e) After the issuance of the judgment of the South Tripoli Court of First Instance on 4 February 2014 and due to the political situation in Libya at that point in time, the Claimant changed its strategy and decided to submit this dispute to an arbitral tribunal;¹⁰⁸

f) When it initiated its court proceedings, the Claimant “knew perfectly the Libyan legal system” and nonetheless decided to pursue its claim in such forum;¹⁰⁹

g) The Claimant was aware that it did not meet the conditions set out in the BIT and therefore decided to pursue court proceedings.¹¹⁰

a) The language of Article 9.2 of the BIT does not indicate that the choice offered therein is final, definitive and preclusive of other choices, arguing that such indication is usually spelt out in typical “fork-in-the-road” clauses;¹¹⁵

b) “Fork-in-the-road” clauses found in other bilateral investment treaties “use specific and unambiguous language to that effect”;¹¹⁶

c) It "must be presumed” that Cyprus and the Respondent deliberately chose not to include the words “ "definitive’’ or "irrevocable", or “any other words suggesting that the choice of one forum would preclude the use of another” in Article 9.2 of the BIT;¹¹⁷

d) The word “or” is used in Article 9.2 of the BIT as a “disjunctive word'’ in order to “enumerate a list of four options for dispute resolution, all of which are available to a qualifying “investor"";¹¹⁸

e) In the Murphy II v. Ecuador case, Ecuador similarly argued that the dispute resolution provision of the US-Ecuador BIT was a “fork-in-the-road” clause and that the use of the word “or” indicated a final choice. This argument was rejected by the arbitral tribunal which opined “that ‘or’ could plausibly have an inclusive meaning, and that Ecuador carried the burden of proving otherwise";¹¹⁹

f) The word “or” is absent from the Arabic version of Article 9.2 of the BIT, indicating that this Article “is nothing more than a simple list of different fora that are all available to the investor in case of a dispute with the host State".¹²⁰ and

g) In view of Article 7.4 of the BIT which provides investors with the right to pursue court proceedings in specific circumstance, “reading Article 9(2) of the [BIT] as an alleged “fork-in-the-road” provision [...] would yield the absurd result that an investor would forfeit its [BIT]-guaranteed right to international arbitration by exercising another [BIT]-guaranteed right to resort to local courts".¹²¹

a) Case 1786 was filed against several Libyan public officials in their personal capacity while this arbitration is brought against the Respondent in its quality as a sovereign state;¹²⁵ and

b) Case 1786 was initiated to remedy violations of Libyan municipal law by Libyan public officials while this arbitration was commenced for breaches of the BIT by the Respondent.¹²⁶

The Claimant further pointed out that “[a]rbitral tribunals has [sic] held consistently that claims based on breaches of domestic statutory law are not identical to claims grounded in the provisions of investment treaties”. The Claimant cited a number of arbitral precedents in which arbitral tribunals distinguished between court proceedings initiated concerning the validity of an action taken by the host nation based on municipal law and the obligations of the host nation under the relevant investment treaty.¹²⁷

a) The Claimant’s contention that it was impossible to sue the Respondent when the dispute arose is baseless in view of the court proceedings initiated and pursued by the Claimant;¹²⁸

b) The decisions reached by Libyan courts demonstrate “the independence of the Libyan judicial power, the well-functioning of the Libyan jurisdictions, and the possibility for a Libyan lawyer to sue in 2006 the higher Libyan body before domestic courts”;¹²⁹

c) From the beginning of the dispute in 2006 until the filing of the RFA in 2014, the Claimant deliberately, permanently and continuously chose to pursue its claim for compensation on the basis of a breach of Law No. 5 (unlawful dispossession of its investment) before Libyan domestic courts, suing several Ministers “in their capacity”;¹³⁰ and

d) The Claimant renounced its right to submit the dispute before an arbitral tribunal, as provided for in Article 24 of Law No. 5 “which clearly refers to Clause 9 of the [BIT]”¹³¹.

a) ‘State Responsibility’ arising out of acts committed by State organs and persons or entities exercising elements of governmental authority is governed by the Draft Articles on the Responsibility of States for Internationally Wrongful Acts prepared by the International Law Commission (the Draft Articles”) ;¹³⁴

b) In the Toto v. Lebanon case, the tribunal held that it had 'jurisdiction ratione personae pursuant to Article 7 of the Treaty for acts committed by the CEGP and the CDR”;¹³⁵

c) Pursuant to both Libyan domestic law and Articles 4.1 and 4.2 of the Draft Articles referred to above, the GPC should be considered as a State organ which exercises executive functions and whose Ministers operate under its control (and that of the Prime Minister);¹³⁶

d) Resolution 241 “was issued by the GPC and was implemented by various Ministers and public organs exercising their power within the control of the Council of Ministers. Therefore the acts of 'the Prime Minister, the Minister of Housing, the Minister of Planning and the Minister of Finance’, are acts of the State of Libya as confirmed by Article 5 of the [Draft Articles]”;¹³⁷ and

e) States are liable for acts committed by the legislative and executive powers within the scope of their respective mission and “[p]ursuant to Article 7 of the [Draft Articles], the State‘s organ (an individual or an institution) which acts under its official status, open [sic] the door to the State‘s liability”.¹³⁸

a) It "had no obligation to forego litigation and resort to arbitration”;

b) It "did not waive its right to arbitrate its treaty claims by pursuing purely domestic claims in the Libyan Courts”; and

c) Its treaty claims in this arbitration are not identical to its claims before Libyan Courts and do not meet the “Triple Identity Test”.

a) Are not supported by any legal authorities;¹⁴⁴ and

b) Would render Article 7.4 of the BIT (which guarantees a right for investor to initiate court litigation in specific circumstances) meaningless.¹⁴⁵

a) The Respondent failed to address the case law presented by the Claimant in its Answer in relation to the triggering of “fork-in-the-road” clauses, discussed in paragraph 154 above;¹⁴⁶ and

b) The criteria of “contentious measure” or “substance of the applicable rule” proposed by the Respondent to assess the “identity of causes of action” are baseless.¹⁴⁷

a) It qualifies as protected “investor” pursuant to the BIT;

b) It made substantial investments in Libya through the construction of its dairy and juice production factory and the purchase of the plot of land on which such factory was built; and

c) It notified the Respondent of the dispute in writing on 16 March 2014 and attempted to engage in settlement negotiations,¹⁴⁸ ultimately initiating this arbitration on 3 July 2014.¹⁴⁹

a) “only the legislative or the judicial powers, to the exclusion of the political one, can decide a measure of expropriation or equivalent to an expropriation” as per article 23 of Law No. 5 as amended in 2003; and

b) Such decision should "determine whether or not the expropriation has been decided for public interest and if the compensation is in conformity with the provisions of article 7 (2 and 3)''.¹⁵²

a) Article 24 of Law No. 5 "operates an immediate and compulsory reference to the Bilateral Treaty when a dispute arises between the host State and the investor”;¹⁵³ and

b) Article 5 of BIT sets out two condition precedents in that it requires the investor to notify the dispute in writing and to engage in amicable settlement for at least six months, regardless of whether the investor intends to pursue court proceedings or arbitration.¹⁵⁴

a) Such position is baseless and contrary to the "most basic principles of investment arbitration'';¹⁵⁶

b) The Tribunal’s jurisdiction should be determined solely upon the basis of the "instrument expressing the parties' consent to [...] arbitration”;¹⁵⁷ and

c) It was pursuing this arbitration on the basis of the violations of the BIT and the remedies set out therein and not through Libyan domestic investment law.¹⁵⁸

a) It made substantial investments in Libya, as defined in Article 1.1 of the BIT, through the construction of its factory, the purchase of the land plot on which such factory was built and the signature of franchise agreement with Candia;¹⁵⁹

b) It notified the Respondent of the present dispute in writing on 16 March 2014 and attempted in vain to negotiate a solution with the Libyan Privatization and Investment Board prior to initiating this arbitration on 3 July 2014;¹⁶⁰ and

c) “More than six months have passed since Claimant’s notice of the present dispute”.¹⁶¹

a) Referred to the issuance of Resolution No. 365 and the steps it undertook thereafter for the implementation of its investment;

b) Referred to the Resolution No. 241 and the Evacuation Notice;

c) Argued that Resolution No. 241 and the Evacuation Notice were issued in contravention of Article 23 of Law No. 5 on expropriation and of “Law No. 116 of the year 1972 concerning urban planning”; and

d) Requested the appointment of an engineering expert and an accounting expert to inspect and evaluate its property before the enforcement of the expropriation measures.

a) The said resolutions were made in violation of Article 23 of Law No. 5 on expropriation; and

b) The GPC, as an administrative body, lacked the required competence to issue a decision of expropriation for public interest, which can only be made through a law or a judicial ruling.¹⁶⁹

a) Found that such Resolution was issued in violation of Article 23 of Law No. 5, pursuant to which an expropriation measure for public interest can only be implemented through a law or a judicial decision;¹⁷¹ and

b) Noted that “the [BIT] relays in Article 7 the same meaning as in Article 23 of [Law No. 5]".¹⁷²

a) Noted that the claims brought forth were based on Article 166 of the LCC;

b) Determined that the plaintiff had failed to provide supporting evidence to corroborate the damages it claimed, relying only on Resolution No. 266 and the judgment issued by the Tripoli Court of Appeal (Administrative Chamber);

c) Found the certain documents, including the renewal of its LFIB license on 18 November 2008, contradicted its claim that it had halted production at its factory; and

d) Concluded that the plaintiff had not satisfactorily demonstrated that the Libyan public administration had abused its authority.¹⁷⁷

On 13 March 2014, the Claimant issued its Notice of Dispute in relation to the present arbitration.

"....

2. If it is not possible to settle the dispute in this way within six months from the date of the written notification, it shall be submitted, at the choice of the investor concerned to:

(a) the competent court of the Contracting Party in whose territory the investment was made; or

(b) the Arbitral Tribunal of the International Chamber of Commerce in Paris; or

(c) the International Centre for the Settlement of Investment Disputes (ICSID) established by the Convention of 18 March 1965 on the Settlement of Investment Disputes between States and Nationals of Other States; or

(d) the Arbitration Institute of the Arbitral Tribunal of the Chamber of Commerce in Stockholm.

"1) ...

2) ...

3) ...

4) The investor affected shall have the right, under the law of the Contracting Party making the expropriation, to prompt review, by a judicial authority or other competent and independent authority of that Contracting Party, of its case, including the valuation of its investment and the payment of compensation, in accordance with the principles set out in this Article.

5) ... ”.

Article 7(2) of the Libya-Algeria BIT expressly states that:¹⁷⁸

“If the dispute is not amicably resolved within six (6) months after written notice of the dispute has been given, it may be submitted, by the investor, either to a competent judicial authority of the State party to the dispute or to international arbitration. The choice of one of these two procedures is definitive.”

Articles 9.2 and 9.3 of the Libya-Ethiopia BIT also expressly provide that: ¹⁷⁹

“9.2 If the dispute cannot be settled through negotiations within six months, either party to the dispute shall be entitled to submit the dispute to competent court of the Contracting Party accepting the investment”.

“9.3 If a dispute involving the amount of compensation for expropriations cannot be settled within six months after resort to negotiations as specified in Paragraph 1 of this Article, it may be submitted at the request of either party to an ad hoc Arbitral Tribunal. The provisions of this paragraph shall not apply if the investor concerned has resorted to the procedure specified in the Paragraph 2 of this Article.”

“Once an investor has submitted the dispute either to the jurisdictions of the Contracting Party involved or to international arbitration, the choice of one or the other of these procedures shall be final.”

"Once the investor has submitted the dispute to the competent tribunal of the Contracting Party in whose territory the investment was made or to international arbitration, that election shall be final.”

a) The investor must qualify as a protected investor, as defined under Article 1(2) of the BIT;

b) The investor must have made an ‘investment’, as defined under Article 1(1) of the BIT; and

c) The investor must notify (in writing) the Contracting Party of the dispute and attempt to reach an amicable settlement within a period of six (6) months, as set out in Article 9 (1) and (2) of the BIT.

(a) Movable and immovable property and any other property rights such as mortgages, liens, pledges, leases and similar rights.

(b) Shares in companies, stocks and debentures of a company or any other form of participation in a company or business enterprise.

(c) Claims to money or to any performance under contract having economic value and associated with an investment.

(d) Intellectual property rights, technical processes, know-how and goodwill, including copyrights, patents and rights of inventions, signs, secrets and business names, designs and manufacturing procedures and technical knowledge.

(e) Any rights conferred by law or by virtue of a contract, including concessions to sear for, cultivate, extract or exploit natural resources.

Investments made in the territory of one Contracting Party by any legal entity of that same Contracting Party which is actually owned or controlled by investors of the other Contracting Party shall likewise be considered as investments of investors of the latter Contracting Party if they have been made in accordance with the laws and regulations of the former Contracting Party.

Any change in the form of the assets that are invested or reinvested does not affect their character as investments.”

a) The Claimant issued its Notice of Dispute on 13 March 2014 and submitted its RFA on 7 July 2014;¹⁸⁵ and

b) At paragraphs 40 and 41 of the Terms of Reference, the Respondent argued that the Claimant had failed to comply with the six (6) months ‘cooling-off period provided for under Article 9(2) of the BIT, stating that the RFA “was prematurely registered and therefore has to be declared inadmissible”.

a) In its RFA, the Claimant stated that its attempts at amicable negotiations appeared futile in view of (i) the political situation in Libya and (ii) the Respondent’s apparent disregard or inability to enter into good faith settlement negotiations following the issuance of its notice of arbitration on 13 March 2014;¹⁹⁰ and

b) In its Reply, the Respondent confirmed that, around the time of the amicable settlement negotiations, the Respondent was confronted with a political crisis due to a conflict between two rival authorities and that decision-making was therefore paralyzed.¹⁹¹

a) Its allegations of fraud and abusive behaviour are unsubstantiated, for the same reasons discussed in Section 7,b) above in that it had never concealed its Cypriot nationality;¹⁹⁵ and

b) There is “no legal basis in the [BIT] or in international law for Respondent's counterclaim”.¹⁹⁶

“There is nothing “fraudulent" or “abusive” in an investor resorting first to national courts to advance purely domestic claims, and then turning to treaty arbitration to engage the host State’s international responsibility. This is even more the case when the local courts’ behaviour has been patently unfair toward the investor and thus form an integral part of the investor’s treaty claims.”¹⁹⁸

a) The Claimant is considered an “Investor” under the BIT.

b) Clause 9.2 of the BIT does not constitute a ‘fork-in-the-road’ clause.

c) The Claimant meets the requirements of Article 9 of the BIT.

d) Any further objection by the Respondent to the Claimant’s claims in relation to the decisions handed down by Libyan courts is joined to the merits.

e) The Respondent’s claim for damages resulting from the alleged fraudulent and abusive nature of this arbitration is dismissed.

f) The Apportionment of Costs is deferred until the Final Award.