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Final Award

1. LIST OF MAIN DEFINITIONS, ABBREVIATIONS & ACRONYMS

Applicable Law and Procedural Rules
Law No. 5 of 1426 PB (1997) for the Promotion of Investment of Foreign Capital ("Law No. 5"): The Law No. 5 passed by Libya’s General People Congress on 9 March 1997.
Law No. 7 of 1371 PB (2003) ("Law NO. 7"): The Law No. 7 passed by Libya’s General People Congress in 2003, amending Law No. 5.
Agreement on the Promotion and the Reciprocal Protection of Investments between the Government of the Republic of Cyprus and the Great Socialist Libyan Arab Jamahirya (The "BIT" or the "Cyprus-Libya BIT"): The BIT signed by the Republic of Cyprus and the Respondent on 30 June 2004.
Law No. 9 of 1378 PD (2010) on Investment Promotion ("Law No. 9"): The Law No. 9 passed by Libya’s General People Congress in 2010, replacing Law No. 5.
French Code of Civil Procedure ("CPC"): The French Code of Civil Procedure adopted by Decree No. 75-112 of 5 December 1975 with its subsequent amendments.
2012 International Chamber of Commerce Rules of Arbitration ("ICC Rules"): The ICC Rules of Arbitration in force as of 1 January 2012.
Procedural Rules: The Procedural Rules issued by the Arbitral Tribunal on 3 July 2015 as Appendix No. 1 to Procedural Order No. 2.
Procedural Timetable: The Procedural Timetable issued by the Arbitral Tribunal on 3 July 2015 as Appendix No. 2 to Procedural Order No. 2 and corrected on 29 July 2015.
Parties, Counsel, Experts, ICC and Arbitral Tribunal
Claimant: Olin Holdings Limited (Cyprus).
Respondent: State of Libya (Libya).
Claimant’s First Counsel: Fasken Martineau SELAS represented by Mr Serge Gravel and Mrs Anne Granger.
Claimant’s Second Counsel: King & Spalding LLP represented by Ms Caline Mouawad, Mr Ken Fleuriet and Mr Rami Chahine.
Respondents’ Counsel: Dr Aburrazek Ballow assisted by Mrs Valérie Contri.
Arbitral Tribunal (or the "Tribunal"): The Arbitral Tribunal formed of Mrs Nayla Comair-Obeid (President), Mr Ibrahim
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Fadlallah (Co-Arbitrator) and Mr Roland Ziadé (Co-Arbitrator).
Partial Award on Jurisdiction ("Partial Award"): The Partial Arbitral Award rendered by the Arbitral Tribunal.
International Court of Arbitration of the International Chamber of Commerce ("ICC Court"): The ICC Court located in Paris, France.
Secretariat of the International Court of Arbitration of the International Chamber of Commerce ("Secretariat"): The Secretariat of the ICC Court located in Paris, France.
General: Relevant entities and individuals
Entities
General People’s Committee ("GPCO"): The executive branch of the Libyan government (the equivalent of a cabinet) during the era of the Libyan Arab Jamahariya. A number of People’s Committees focusing on specific fields (the equivalent of ministries) were also under the authority of the GPCO (e.g. the GPC for Housing and Infrastructure; the GPC for Economy and Commerce; etc.).
Libyan Foreign Investment Board ("LFIB"): The governmental body established pursuant to Article 5 of Law No. 5 for the encouragement of foreign capital investment in Libya and the promotion of investment projects.
Libyan Investment and Development Company ("LIDCO") Formerly known as the Libyan-Arab Domestic Investment Company, the LIDCO is a State-owned investment and development company.
Olin Holdings Limited ("Olin"): Olin is a company registered in Cyprus and the Claimant in this Arbitration.
Individuals Mr Akram Said Mohammad Abughamja ("Mr Akram Abughamja"): Mr Said Abughamja: A Libyan citizen who is/was the sole shareholder of the Olin from 15 January 2001 until 1 July 2008; the sole owner of SATA Entreprises, the Claimant’s majority shareholder since 1 July 2008; and the Claimant’s Director from 2 January 2001 to 30 March 2011 and again from 10 April 2013 until 5 October 2015.
Mr Jean-Luc Deher (Mr Deher): A Libyan citizen and the father of Mr Akram Abughamja.
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Mrs Afafa A. Abughofa (Mrs Abughofa): A French citizen, principal of Deher Entreprise, a company that he founded in 2015, and that provides consulting services in the field of international strategy and development. In the mid-1990s, he was appointed as director of the international division of Candía and supervised the creation and development of the Candía franchise network in this capacity, until 2015 when he decided to retire.
Mr James Nicholson: A Libyan citizen and an attorney with A1 Mashoura Office for Law and Legal Consultations. Her firm was retained by Olin Holdings Ltd to file an action against each of the Prime Minister, the Minister of Housing, the Minister of Planning, and the Ministry of Finance, seeking compensation for the damages resulting from the expropriation of the land on which Olin was built.
Mr Matthias Cazier-Darmois: Mr Nicholson is a Chartered Financial Analyst and head of the Paris disputes team of FTI Consulting Inc. ("FTI"), a global expert services firm specialising among other things in litigation and arbitration support, and valuation.
Parties’ Submissions Mr Cazier-Darmois is a Senior Director in the Paris office of FTI Consulting. Mr Cazier-Darmois has 12 years of experience in providing expert evidence and valuation advice in the context of complex commercial disputes and commercial and treaty arbitrations.
Request for Arbitration ("RFA"): The Request for Arbitration submitted by the Claimant on 3 July 2014.
Answer to the Request for Arbitration ("Answer to RFA"): The Answer to the Request for Arbitration submitted by the Respondent on 10 November 2014.
Preliminary Meeting ("PM"): The Preliminary Meeting which took place in Paris on 29 June 2015.
Terms of Reference ("TOR"): The Terms of Reference signed by the Parties and the Tribunal on 29 June 2015.
Respondent’s Submission on Jurisdiction: The Submission filed by the Respondent on 7 August 2015.
Claimant’s Answer on Jurisdiction: The Answer submitted by the Claimant on 11 September 2015.
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Respondent’s Reply on Jurisdiction: The Reply submitted by the Respondent on 30 September 2015.
Claimant’s Rejoinder on Jurisdiction: The Rejoinder submitted by the Claimant on 16 October 2015.
Claimant’s Statement of Claim ("SoC"): The Statement of Claim submitted by the Claimant on 7 October 2016.
First Witness Statement of Mr Akram Abughamja: The Witness Statement of Mr Akram Abughamja, submitted by the Claimant on 7 October 2016.
Witness Statement of Mr Deher: The Witness Statement of Mr Deher, submitted by the Claimant on 7 October 2016.
Witness Statement of Mrs Abughofa: The Witness Statement of Mrs Abughofa, submitted by the Claimant on 7 October 2016.
First Expert Report of James Nicholson and Matthias Cazier-Darmois from FT1 Consulting ("First Expert Report"): The Expert report of James Nicholson and Matthias Cazier-Darmois submitted by the Claimant on 7 October 2016.
Respondent’s Statement of Defense and Counterclaims ("SoD"): The Statement of Defense and counterclaims submitted by the Respondent on 7 December 2016.
Claimant’s Statement of Reply and Defense to Counterclaims ("Reply"): The Reply and Defense to counterclaims submitted by the Claimant on 2 March 2017.
Second Witness Statement of Mr Akram Abughamja: The Witness Statement of Mr Akram Abughamja, submitted by the Claimant on 2 March 2017
Second Expert Report of James Nicholson and Matthias Cazier-Darmois from FTI Consulting ("Second Expert Report"): The Expert report of James Nicholson and Matthias Cazier-Darmois submitted by the Claimant on 2 March 2017.
Respondent’s Statement of Rejoinder and Reply to Counterclaims ("Rejoinder"): The Rejoinder and Reply to counterclaims submitted by the Respondent on 2 May 2017.
Claimant’s Statement of Rejoinder to Counterclaims ("Rejoinder toCounterclaims"): The Rejoinder to counterclaims submitted by the Claimant on 2 June 2017.
Evidentiary Hearing: The Evidentiary Hearing which took place at the ICC Hearing Centre in Paris, France, from 3 July 2017 until 5 July 2017.
Claimant’s Post-Hearing Brief: The Claimant’s answers to the Tribunal’s PostHearing Questions submitted on 15 September
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2017.
Respondent’s Post-Hearing Brief: The Respondent’s Post-Hearing Brief submitted on 15 September 2017.
Respondent’s Reply to Post-Hearing Brief: The Respondent’s Reply to. Claimant’s answers to the Tribunal’s questions, submitted on 13 October 2017.
Claimant’s Reply to Post-Hearing Brief: The Claimant’s Reply to Respondent’s PostHearing Brief, dated 14 October 2017.
Respondent’s Submissions on costs: The Respondent’s Submission on costs, dated 14 October 2017.
Claimant’s Submission on costs: The Claimant submitted its Submission on costs on 23 October 2017.
Other Abbreviated terms
Most Favoured Nation ("MFN") Fair and Equitable Treatment ("FET") Full Protection and Security ("FPS") Weighted Average Costs of Capital ("WACC") -8-

2. PREAMBLE

A) The Parties and their legal representatives

i. The Claimant

1.
Olin Holdings Limited, a Limited Liability Company organized and existing under the laws of the Republic of Cyprus, with its registered office at 9 Perikleous Street, Egkomi, 2413 Nicosia, Cyprus, hereinafter referred to as the "Claimant".
2.
Pursuant to a Power of Attorney dated 7 May 2015, the Claimant was, until 20 August 2015, represented by:

Mr Serge Gravel Ms Anne Granger

FASKEN MARTINEAU SELAS 32, avenue de l’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").

3.
On 24 August 2015, the Tribunal was informed that King & Spalding LLP had been appointed as the Claimant’s legal representative in this arbitration, pursuant to a Power of Attorney dated 21 August 2015, empowering the following lawyers to act on the Claimant’s behalf:

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

+33 (0) 1 73 00 39 16

Fax: +33 (1) 73 00 39 59 +33 (0) 1 73 00 39 59

Email: kfleuriet@kslaw.com rchahine@kslaw.com

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

ii. The Respondent

4.
The State of Libya, a sovereign state hereinafter referred to as the "Respondent", with its contact details as follows:

State of Libya State of Libya

Ministry of Justice Libyan Embassy in Cyprus

Swani Road 7, Stassinos Avenue

Alaflah area 1522 Nicosia

Tripoli Cyprus

Libya

5.
Pursuant to a Power of Attorney dated 27 October 2014, the Respondent is represented by:

Dr Abdurrazek Ballow

Avocat au Barreau de Paris 72, boulevard de Cource lles 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

Ms Valérie Contri-Marchand Contri-Marchand Avocats

9, Rue Juste-Olivier CP 2567 1260 Nyon

Switzerland

Tel: +41 (0)43 399 95 44 Emails: valeriecontri@aol.com

B) The Arbitral Tribunal

i. The Number of Arbitrators

6.
The arbitration clause referred to in paragraph 111 below is silent as to the number of arbitrators. As further discussed in paragraph 17 et seq. below, the Parties agreed that the Arbitral Tribunal should consist of a panel of three arbitrators.1

ii. The President

7.
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

Lebanon

Tel: +961 (0) 1 36 37 90 Ext.101 Fax: +961 (0) 1 36 37 91 Email: info@obeidlawfirm.com

nayla@obeidlawfirm.com

iii. The Co-Arbitrators

8.
Mr Roland Ziadé, a Lebanese, French and Ecuadorian national, was nominated by the Claimant and confirmed as Co-Arbitrator by the Secretary General of the ICC on 1 December 2014. Mr Ziadé’s address and contact details are:

LINKLATERS LLP 25, rue Marignan 75008 Paris France

Tel:+ 33 (0) 1 56 43 56 43 Email: roland.ziade@linklaters.com

9.
Mr Ibrahim Fadlallah, a Lebanese and French national, was nominated by the Respondent and confirmed as Co-Arbitrator by the Secretary General of the ICC on 1 December 2014. Mr Fadlallah’s address and contact details are:

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

C) The BIT and Agreement to Arbitrate

i. The BIT

10.
These arbitration proceedings were initiated pursuant to Article 9 of the Agreement on the Promotion and the Reciprocal Protection of Investments between the Government of the Republic of Cyprus and the Great Socialist Libyan Arab Jamahiriya dated 30 June 2004 (the "BIT" or the "Cyprus-Libya BIT").2
11.
Article 9 of the BIT, which the Claimant invoked as a basis for the Tribunal’s jurisdiction in its Request for Arbitration dated 3 July 2014 (the "RFA") 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."3

D) Place of Arbitration, Language and Law

i. Place of Arbitration

12.
Paris, France, is the legal seat of this arbitration in accordance with the Parties’ agreement4 and Article 9.2(b) of the BIT, as reflected in paragraph 63 et seq. of the Terms of Reference ("TOR").

ii. Language of the Proceedings

13.
In Procedural Order No. 1 dated 29 May 2015, the Arbitral Tribunal reviewed the relevant principles and criteria applicable to the determination of the language of the proceedings, and determined that the language of these proceedings shall be English and, in particular, that:

a) English shall be the language used by the Arbitral Tribunal in its correspondence with the Parties and for the 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 an 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.

iii. Applicable Substantive Law and Procedural Rules

14.
Article 9.4 of the BIT, reproduced at paragraph 69 of the TOR, provides that:

"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."

15.
The Parties confirmed in paragraph 70 of the TOR that, subject to any mandatory rules of law of the place of arbitration, most notably the French Code of Civil Procedure, these arbitration proceedings be governed by:

a) The ICC Rules;

b) The Procedural Rules adopted by the Parties;5 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.

3. PROCEDURAL HISTORY

16.
The procedural history of this arbitration is summarised below. This summary is not intended to cover every step of the proceedings but rather should be read in conjunction with the Arbitral Tribunal’s Procedural Orders which contain further details of many of the issues outlined below.

A) Events leading to the appointment of the Arbitral Tribunal

17.
On 3 July 2014, the Claimant filed its RFA in which it inter alia:

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

b) Nominated Mr Roland Ziadé as Co-Arbitrator.

18.
On 17 July 2014, the Secretariat attempted to notify the Claimant’s RFA to the Respondent (at the Ministry of Justice in Tripoli, Libya), inviting it to inter alia:

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 designate its Co-Arbitrator.

19.
On 10 November 2014, the Respondent filed its Answer to the RFA (the "Answer") in which it inter alia:

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 power of attorney.

20.
On 14 November 2014, the Respondent advised the Secretariat of Mr Ibrahim Fadlallah’s nomination as Co-Arbitrator.
21.
On 11 December 2014, the Secretariat advised the Parties that the ICC Court had fixed the advance on costs at USD 650,000.00, subject to potential readjustments depending on the evolution of the arbitration.
22.
On 26 March 2015, the ICC Court appointed Mrs Nayla Comair-Obeid as President of the Arbitral Tribunal, which was fully constituted as of that date.

B) Events preceding the conclusion of the Terms of Reference meeting

23.
On 7 April 2015, the case file was transmitted by the Secretariat to the Arbitral Tribunal.
24.
On 29 May 2015, the Arbitral Tribunal issued Procedural Order No. 1 and invited both Parties to submit, by 5 June 2015, a short summary of their respective claims and relief sought in this arbitration, with an indication of the amounts claimed or counterclaimed, for integration in the TOR.
25.
On 5 June 2015, the Parties submitted the summaries of their respective claims and relief sought for incorporation in the TOR.
26.
On 15 June 2015, the Respondent’s Counsel informed the Arbitral Tribunal that he would be assisted by Mrs Valérie Contri and that they would both attend the Preliminary Meeting ("PM").6
27.
On 27 June 2015, the Arbitral Tribunal circulated an Agenda for the PM, and advised the Parties that the changes to the TOR suggested by the Claimant had been integrated where appropriate.

C) The Preliminary Meeting

28.
The PM was held on 29 June 2015, in the presence of the Parties and the Arbitral Tribunal at the offices of Fasken Martineau in Paris, France. There appeared for the Claimant: Mrs Anne Granger, Mr Serge Gravel and Mrs Liria Martinez; and for the Respondents: Dr Abdurrazek Ballow and Mrs Valérie Contri.
29.
At this PM, the Arbitral Tribunal and the Parties discussed the TOR, the Procedural Rules and. the Provisional Timetable. The TOR was executed at the PM, sent to the Secretariat on 1 July 2015 and transmitted to the ICC Court at its session of 9 July 2015.

D) Events Following the Preliminary Meeting and leading to the Partial Award on Jurisdiction and the Partial Award on the Advance on Costs

30.
On 3 July 2015, the Arbitral Tribunal circulated the Procedural Rules and Provisional Timetable to the Parties (as Appendix 1 and 2 respectively of Procedural Order No. 2) together with the Minutes of the PM.
31.
On 7 August 2015, the Respondent filed its Submission on Jurisdiction together with Exhibits R-1 to R-10.
32.
On 20 August 2015, the Claimant’s First Counsel advised the Arbitral Tribunal that it was no longer representing the Claimant in this arbitration.
33.
On 24 August 2015, the Claimant informed the Arbitral Tribunal that it had engaged its Second Counsel (Mrs Caline Mouawad, Mr Ken Fleuriet and Mr Rami Chahine of King & Spalding LLP), submitting a copy of the power of attorney empowering the aforementioned individuals to represent the Claimant in this arbitration.
34.
On 11 September 2015, the Claimant filed its Answer to the Respondent’s Submission on Jurisdiction together with a Consolidated Index of Exhibits, an Index of Legal Authorities, Exhibits C-75 to C-95 and Legal Exhibits CL-1 to CL-36. At paragraphs 104 to 111 of its Answer, the Claimant requested the issuance of a Partial Award on Costs.
35.
On 30 September 2015, the Respondent submitted its Reply to the Claimant’s Answer on Jurisdiction together with a List of Exhibits and Exhibits R-11 to R-15.
36.
On 16 October 2015, the Claimant submitted its Statement of Rejoinder on Jurisdiction together with a Consolidated Index of Legal Authorities, a Consolidated Index of Exhibits, Exhibits C-96 to C-98 and Legal Exhibits CL-37 to CL-47.
37.
On 20 April 2016, the Arbitral Tribunal issued Procedural Order No. 3 declaring the proceedings closed in relation to the jurisdictional phase in accordance with Article 27 of the ICC Rules.

E) Partial Award on Jurisdiction and Partial Award on the Advance on Costs

38.
On 28 June 2016, the Arbitral Tribunal issued a Partial Award on Jurisdiction, in which it made the following determinations:

a) The Claimant is considered an "Investor"7 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 ultimate Apportionment of Costs is deferred until the Final Award.

39.
The Arbitral Tribunal reserved its determination regarding any other claims made by the Parties until the issuance of the present Final Award.
40.
On 28 June 2016, the Arbitral Tribunal issued a Partial Award on the Advance on Costs,8 deciding and ruling as follows:

a) The Respondent is ordered to pay the sum of USD 325,000.00 to the Claimant.

b) The Respondent is ordered to pay simple interest on the amount of USD 325,000.00 and the said-interest shall be calculated at the 12-month USD LIBOR benchmark rate and shall start accruing from 4 September 2015 until full and final payment by the Respondent to the Claimant.

c) The Arbitral Tribunal’s determination of any other claims made by the Parties. is hereby reserved until the issuance of the Final Award..

F) Events following the Partial Awards on Jurisdiction and on the Advance on Costs leading to the Evidentiary Hearing

41.
On 22 July 2016, the Parties advised the Arbitral Tribunal that they had agreed on a Procedural Timetable for the second phase of this arbitration, culminating in a three-day Evidentiary Hearing. They however emphasized a point of contention between them regarding Respondent’s entitlement to bring a counterclaim at this stage of the proceedings.
42.
After two rounds of comments on the matter of the counterclaim, on 29 August 2016, the Arbitral Tribunal issued Procedural Order No. 4, whereby, on the basis of Article 23 (4) of the ICC Rules and the TOR, it ruled as follows:

a) The Respondent is allowed to submit its counterclaim for "ill-grounded proceedings" during the second phase of this arbitration; and,

b) The Parties shall liaise in order to include a further step allowing the Claimant to submit a Rejoinder limited to the Respondent’s counterclaim.

43.
On 20 September 2016, the Parties confirmed their agreement on a deadline for the Claimant’s submission of a Rejoinder limited to the Respondent’s counterclaim, as directed in Procedural Order No. 4. They further agreed on a one-week extension for filing their Statements of Claim ("SoC") and Statement of Defense and Counterclaims ("SoD").
44.
On 7 October 2016, the Claimant submitted its SoC together with a Consolidated List of Exhibits, Exhibits C-99 to C-162, CL-37, the expert report of FTI Consulting (with its eight annexes and exhibits FTI-1 to FTI-38), the witness statements of Mr Akram Abughamja, Afafa Abdurrazak Abughofa and Jean-Luc Deher (CWS-1 to CWS-3).
45.
On 7 December 2016, the Respondent submitted its SoD together with Exhibits R-16 to R-37.
46.
On 17 February 2017, the Claimant sent a letter together with Exhibits C-163 and C-164 regarding the new court proceedings initiated by the Respondent against the Claimant before the Libyan Supreme Court.
47.
On 3 March 2017, the Claimant submitted its Reply together with Exhibits C-165 to C-187, Cl-31 and CL-91 to CL-106, FTI’s Second Expert Report, CER-2, with exhibits FTI-39 to FTI-43, and CWS-4, the second Witness Statement of Mr Akram Abughamja.
48.
On 2 May 2017, the Respondent submitted its Rejoinder together with Exhibits R-38 to R-59.
49.
On 15 May 2017, the Arbitral Tribunal circulated an Agenda for the Pre-Hearing Conference Call to be held on 27 May 2017. Subsequently, the Parties confirmed that they had liaised and conferred regarding the points on the Agenda.
50.
On 26 May 2017, the Arbitral Tribunal acknowledged the Parties’ agreement and confirmed that no Pre-Hearing Conference Call would be held.
51.
On 2 June 2017, the Claimant submitted its Rejoinder on Respondent’s Counterclaim together with Exhibits C-188 to C-195.
52.
On 24 June 2017, the Respondent submitted a document titled "written pleadings". After reviewing the same, the Arbitral Tribunal considered such document can be considered as a written opening submission, a step which was not contemplated in the Procedural Timetable agreed by the Parties. After receiving Claimant’s comments on the issue, the Arbitral Tribunal decided not to admit the Respondent’s aforementioned document on the record.

G) The Evidentiary Hearing

53.
Between 3 and 5 July 2017, the Parties and the Arbitral Tribunal attended a 3-day Evidentiary Hearing at the ICC Hearing Centre in Paris. There appeared for the Claimant: Mrs Mouawad, Mr Fleuriet and Mr Chahine (counsel), Mr Akram Abughamja and Mr Deher (witnesses), Mr Nicholson and Mr Cazier-Darmois (experts); for the Respondent: Ms Contri and Mr Ballow (counsel).
54.
On 5 July 2017, the Claimant submitted with the agreement of Respondent the Official Notification of the Decision of the Tripoli Court of Appeal of 13 April 2010, dated 30 May 2010 as Exhibit C-196. The English translation of the decision was subsequently submitted on 10 July 2017.

H) Events Following the Evidentiary Hearing

55.
On 14 July 2017, the Arbitral Tribunal sent a list of questions addressed to the experts and the Parties about asking, inter alia, the submission of feasibility study from Candia as well as a number of factual clarifications and questions.
56.
On 11 August 2017, the Claimant’s experts transmitted their response to the Arbitral Tribunal’s questions.
57.
On 19 August 2017, the Claimant’s witness, Mr Deher, submitted his answer to the Tribunal’s questions on the basis of Olin’s business plan prepared by Candia in early 2007.
58.
On 15 September 2017, the Respondent submitted its Post-Hearing Brief together with Exhibits R-60 to R-63 in which it provided further responses to the questions raised by the Arbitral Tribunal after the Evidentiary Hearing. On the same day, the Claimant submitted its response to the Tribunal’s Post-Hearing questions.
59.
On 5 October 2017, the Claimant provided its comments on the Respondent’s PostHearing Brief dated 15 September 2017, claiming it had raised new arguments and submitted new documents, disregarding the Procedural Rules. On the same day, the Respondent rejected such allegations and sought the Tribunal’s permission to submit new documents - in the limited number of 7 - to provide a substantiated answer to the Tribunal’s questions.
60.
On 10 October 2017, the Tribunal rejected the Respondent’s request to submit additional documents.
61.
On 13 October 2017, the Respondent submitted its Reply Post-Hearing Brief together with its submission on costs. On the next day, the Claimant submitted its Reply PostHearing Brief together with an updated Index of Exhibits, Exhibits C-197 to C-204 and Legal Authorities CL-107 to CL-109.
62.
On 23 October 2017, the Claimant submitted its Submission on costs.

I) Time Limits for Rendering the Final Award

63.
The deadline for the issuance of this Final Award by the Arbitral Tribunal was initially set as 29 December 2015, i.e. six (6) months after the signature of the TOR on 29 June 2015. This deadline for rendering the Final Award was subsequently extended to 29 February 2016 (ICC Court decision of 10 December 2015); 30 March 2016 (ICC Court decision of 11 February 2016); 29 April 2016 (ICC Court decision of 10 March 2016); 31 May 2016 (ICC Court decision of 14 April 2016); 30 June 2016 (ICC Court decision of 12 May 2016); 29 July 2016 (ICC Court decision of 9 June 2016); 30 June 2017 (ICC Court decision of 21 July 2016); 31 October 2017 (ICC Court decision of 8 June 2017); 29 December 2017 (ICC Court decision of 12 October 2017); 31 January 2018 (ICC Court decision of 14 December 2017); 28 February 2018 (ICC Court decision of 11 January 2018); 30 April 2018 (ICC Court decision of 8 February 2018); 31 May 2018 (ICC Court decision of 19 April 2018) and 29 June 2018 (ICC Court decision of 24 May 2018).

J) Procedural Orders

64.
The Arbitral Tribunal issued four (4) Procedural Orders in the course of this arbitration. A chronology of these procedural orders is set out below.
65.
On 29 May 2015, the Arbitral Tribunal issued Procedural Order No. 1 in which it set out its determination on the language of arbitration, as discussed in paragraph 13 above.
66.
On 3 July 2015, the Arbitral Tribunal issued Procedural Order No. 2, enclosing as Appendices No. 1 and No. 2 the mutually agreed Procedural Rules and Provisional Timetable.
67.
On 20 April 2016, the Arbitral Tribunal issued Procedural Order No. 3 declaring the proceedings closed in relation to the jurisdictional phase as per Article 27 of the ICC Rules, as discussed in paragraph 37 above.
68.
On 29 August 2016, the Arbitral Tribunal issued Procedural Order No. 4 which dealt with the Respondent’s ability to submit a counterclaim, as discussed in paragraph 42 above.
69.
On 15 March 2018, the Arbitral Tribunal issued Procedural Order No. 5 which declared the closure of the arbitral proceedings.

4. PARTIES’ SUBMISSIONS ON THE MERITS

A) The Claimant

70.
During the course of the merits phase of these proceedings, the Claimant filed its SoC on 7 October 2016 and its Reply on 2 March 2017..

B) The Respondent

71.
During the course of the merits phase of these proceedings, the Respondent filed its SoD on 7 December 2016 and its Rejoinder on 2 May 2017.

5. PARTIES’ RELIEF SOUGHT

A) The Claimant

72.
Olin requests sought the following relief in this arbitration:9

(A) A declaration that Libya has breached the Cyprus-Libya BIT, and more specifically: (1) Libya’s obligations under Article 2(2) not to impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, expansion, or sale of Olin’s investments; to extend fair and equitable treatment to Olin’s investments; and to extend full protection and security to Olin’s investments; (2) Libya’s obligation under Article 3 to treat Olin’s investments no less favourably than it treats the investments of Libyan nationals; and (3) Libya’s obligation under Article 7 not to expropriate Olin’s investments, directly or indirectly, except for a public interest, in accordance with due process of law, on a non-discriminatory basis, and against payment of prompt, adequate, and effective compensation;

(B) EUR 104.9 million as compensation for the losses suffered by Olin as a result of Libya’s breaches of the Cyprus-Libya BIT;

(C) An award to Olin for all costs associated with this proceeding, including attorneys’ fees and the fees of the ICC, Tribunal, and experts;

(D) Post-award interest on all of the foregoing amounts at the commercial rate of interest applicable in Cyprus, compounded quarterly, until Libya pays the award in full; and

(E) Any further relief that the Tribunal deems just and appropriate..

73.
With regard to the Respondent’s counterclaim, the Claimant requested that the Tribunal to:

(A) Confirm that the Respondent’s "counterclaim" has been withdrawn, with prejudice;

(B) Reject the Respondent’s claim for payment of an amount of USD 2 million;

(C) Award Olin all of its costs associated with defending against the Respondent’s spurious counterclaim, including attorneys’ fees; and

(D) Award Olin any further relief that the Tribunal deems just and appropriate.

B) The Respondent

74.
Libya asks the Arbitral Tribunal to:

(A) State that:

- the Expropriation Order is lawful;

- the investor and its investment have never been dispossessed because of the Expropriation Order of 2006;

- the investor and its investment have not undergone an unequal treatment;

- the investor and its investment did not suffer because of the host State’s misconduct and mistreatment;

- the host State did not violate the Cyprus-Libya Treaty neither in 2006 nor after and even less in 2017;

- the investor did not suffer losses because of the host State actions or inactions.

(B) Dismiss all Claimant’s Claims.

(C) Condemn the Claimant to pay damages amounting to EUR 2million as a result of the Claimant’s behaviour.

(D) Condemn the Claimant to bear all the costs and fees related to these arbitral proceedings.10

6. RELEVANT PROVISIONS OF THE BIT AND THE APPLICABLE LAW

75.
The following paragraphs reproduce the main provisions of the BIT that are relevant to the present dispute.
76.
Article 2.2 of the BIT contains three different standards of protection, namely the "Fair and Equitable Treatment" ("FET") standard, the "Full Protection and Security" ("FPS") standard as well as a non-impairment clause, which are together defined as follows:

Investments made by investors of one Contracting Party in the territory of the other Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security according to the law. Neither Contracting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, expansion or disposal of such investments.

77.
Articles 3.1 and 3.2 of the BIT define the "Most Favourable Nation" and "National Treatment" standards as follows:

1. Once a Contracting Party has admitted an investment in its territory in accordance with its laws and regulations, it shall accord to such investment made by investors of the other Contracting Party treatment not less favourable than that accorded to investments of its own investors or of investors of any third State, whichever is more favourable to the investor concerned.

2. Each Contracting Party shall in its territory accord to investors of the other Contracting Party, as regards to their management, maintenance, use, enjoyment, expansion or disposal of their investment, treatment not less favourable than that accorded to its own investors or to investors of any third State, whichever is more favourable to the investors concerned.

78.
Article 7 of the BIT sets out the conditions for a legal nationalization or expropriation in the following terms:

1. Investments of investors of either Contracting Party in the territory of the other Contracting Party shall not be nationalized, expropriated or subjected to measures having equivalent effect to nationalization or expropriation, except for public interest, in accordance with due process of law, on a nondiscriminatory basis and against the payment of prompt, adequate and effective compensation.

2. Such compensation shall amount to the fair market value of the investment expropriated immediately before the expropriation or impending expropriation became publicly known, whichever is the earlier (hereinafter referred to as the. ''valuation date").

3. Such market value shall be calculated in a freely convertible currency at the market rate of exchange prevailing for that currency on the valuation date. Compensation shall include interest calculated on the basis of the 6-month LIBOR rate applicable on the date of expropriation, from the date of expropriation until the date of payment. Compensation shall be paid without delay, be effectively realizable and freely transferable.

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. Where a Contracting Party expropriates the assets of a company which is incorporated or constituted under the law in force in any part of its own territory, and in which investors of the other Contracting Party own shares, it shall ensure that the provisions of this Article are applied so as to guarantee prompt, adequate and effective compensation in respect of their investment to such investors of the other Contracting Party who are owners of those shares.

7. FACTUAL BACKGROUND

79.
The Arbitral Tribunal provides below a factual background concerning the Parties’ dispute in this arbitration. This overview is not intended to be a comprehensive account of all the issues debated during the course of the proceedings, but rather an outline containing some significant events and undisputed facts. As such, it should be read in conjunction with the other sections of this Final Award, which contain further details in relation to the disputed matters (as well as the Arbitral Tribunal’s findings in relation thereto).
80.
In the 1990s, Libya initiated a series of legislative and economic reforms and stabilization measures designed to attract foreign investment. In addition to changing the international legal landscape through the conclusion of BITs, Libya also modified its domestic legislation to foster foreign investments.
81.
On 9 March 1997, the Libyan Government enacted Law No. 5 for the Promotion of Investment of Foreign Capital, (subsequently amended with Law No. 7 in 2003) (the "Libyan Investment Law").11
82.
In this context, Olin decided to invest in a dairy and juice factory in Libya and sought to obtain governmental approvals to build and operate its factory in the vicinity of Tripoli. Olin subsequently obtained all necessary licenses and authorizations from the relevant governmental authorities, in accordance with local laws.
83.
On 12 November 2002, the Ministry of Economy and Trade issued Decision No 365 for 2002, authorising Olin to establish a local branch and to proceed with its investment in Libya.12
84.
On 3 March 2003, the LFIB issued its Investment Project License No 44 (for 2003), granting Olin an "investment project license" that allowed it to proceed with the implementation of a dairy products factory project in Tripoli.13
85.
On this basis, Olin selected in 2005 a site (Plot No. 11) for its factory in Tripoli’s industrial area, Al-Fallah.14 In this arbitration, while the Claimant asserts that Mr Said Abughamja (father of Mr Akram Abughamja) purchased this land,15 Libya for its part considers that Mr Said Abughamja had in fact obtained this land through a donation on 24 April 2005.16 It is not contested, however, that the land on which Olin’s factory has been erected belonged to Mr Said Abughamja and not to Olin at the time.17
86.
On 16 May 2005, Mr Said Abughamja leased Plot No. 11 to Olin,18 and later entered into a contract of usufruct with Olin on 10 May 2006 in respect of the same plot.19
87.
On 25 June 2005, Olin received a building permit from the Tripoli People’s Committee, giving it the green light to commence the construction of its factory on Plot No. 11 in the industrial zone of A1 Fallah.20 At that time, Olin had partnered with PROLAC, a major French milk powder producer and exporter and a subsidiary of the French conglomerate SOUFFLET GROUP,21 as well as with ACTINI, a French manufacturer of sterilizing equipment, to assist Olin in designing and building the factory and purchasing the necessary machines.22
88.
On 21 November 2005, the LFIB issued a new investment license adding the production of juices to the scope of Olin’s investment project.23 From that point onwards, the license was regularly renewed by decisions of the LFIB, until April 2017 (see paragraph 128 below).24
89.
In late 2005, Olin actively prepared for the launch of its products and hired an advertising company called"Memac-Ogilvy" to plan a USD 1 million launch marketing campaign.25
90.
During the construction of the factory, Olin was introduced to Candia which was looking at the time to establish a franchise in Libya, and on 30 January 2006, Olin and Candia entered into a Manufacturing and Distribution Franchise Agreement (the "Candia Franchise Agreement").26
91.
By the end of 2006, Olin had completed the construction of its factory and was ready to start production.
92.
On 12 November 2006, Olin received an eviction order from the Tripoli’s People Committee for Housing & Utilities informing it that its factory had been "dispossessed" and requesting it to vacate the premises within 3 days.27
93.
According to the Claimant, it is only then that Olin became aware of Decision No. 241 of 20 06,28 issued by the General People’s Committee ("GPCO") on 19 October 2006 (the "Expropriation Order"), which expropriated a parcel of land along the Tripoli Airport Road, including Olin’s factory (the "Expropriated Area").29 In its Article 1, the Expropriation Order stipulates that:

The property on aerial map No. 13-52 located between the employee housing project and [Al-Sawani] Road, People’s Congress of Bab [Akkara] Municipality, Tripoli district, shall be expropriated for the public interest to establish a housing project pursuant to the Secretary of the Public Property Authority Management Committee letter and the design plan attached to this resolution.

94.
Within three days of Olin’s receipt of the eviction notice, the Libyan army had destroyed several buildings around Olin’s factory and expelled thousands of occupants in the process.30
95.
On 25 November 2006, the GPCO issued Decision No. 266 of 2006.(the "RevisedExpropriation Order"), expanding the Expropriated Area to cover a surface of 340 hectares, "for the public interest" and "for the execution of the urban development in the area located to the west and east of the airport road in Tripoli".31
96.
The next day, on 26 November 2006, the LFIB issued a renewal of Olin’s license to operate.32
97.
Within three months of receipt of the Expropriation Order in November 2006, Libya had demolished the quasi totality of the Expropriated Area, leaving Olin’s factory as one of the few buildings standing.33
98.
Between November 2006 and June 2009, Olin sent several letters to the LFIB and to the Minister of Economy, Trade and Investment in Libya, seeking a formal exemption from the Expropriation Order.34
99.
The LFIB supported Olin’s request for an exemption through a series of letters in 2006, addressed to different Libyan public authorities, namely the People’s Committee for Housing and Infrastructure;35 the Tripoli Authority for Public Property;36 the Ministry of Housing;37 the Public Electricity Company;38 and to the Minister of Economy, Trade and Investment.39
100.
Between 2006 and 2009, the Minister of Economy, Trade and Investment and the General Organization for Housing & Utilities also supported Olin’s request for an exemption from the Expropriation Order by addressing letters to the Secretary of the GPCO.40
101.
On 9 December 2006, Olin initiated judicial proceedings before the Tripoli Court of Appeal, First Administrative Circuit (the "Tripoli Court of Appeal") challenging the legality of the Expropriation Order.41
102.
On 13 May 2007, the Secretary of the Administration Committee of the LFIB wrote to Olin, referring to a letter dated 28 April 2007, sent to the assistant secretary of the Public Establishment of Housing and Utilities, granting Olin "a deadline of at least six months to move the equipment, machines on another site, with the obligation to provide [Olin] with a suitable alternative".42
103.
On 30 May 2007, the Administrative Committee for Public Property, in application of the 2006 Expropriation Order, formally transferred the property title of Plot No.11, on which Olin’s factory was built, to the LIDCO.43
104.
On 31 October 2007, Mr Said Abughamja signed a contract for the sale of the same Plot to Olin.44
105.
On 8 November 2007 and 10 December 2007, Olin wrote to the LFIB, stating that the uncertainty as to the future of its factory as well as the lack of a suitable alternative site and the lack of compensation, caused Olin to incur financial losses on a daily basis.45
106.
On 10 January 2008, Olin sent a similar letter to the General Organization for Housing. & Utilities.46
107.
On 15 February 2008, the GPCO decided to create a committee, "for the purpose of discussing with Olin the terms of its eviction", including the identification of a replacement location and the payment of adequate compensation.47
108.
While the Parties disagree as to whether the GPCO ultimately exempted Olin from expropriation, they do agree that the Libyan authorities accepted to expressly exempt two of Olin’s competitors from any destruction or relocation: Al-Aseel Juice Plant, a privately-owned Libyan company,48 as well as the State-owned OKBA Dairy Factory in 2008.49
109.
On 13 April 2010, the Tripoli Court of Appeal cancelled the 2006 Expropriation Order on the ground that it was unlawful under Libyan law, since it did not adopt the appropriate process for the expropriation of foreign investors under the Libyan Investment Law.50
110.
On 31 August 2010, notwithstanding the decision of the Tripoli Court of Appeal, the General Authority for Public Property sent Olin a letter, asking it to "evacuate the site on top urgent basis and deliver it free of all obstacles and people within a week of today to the Libyan Company for Development and Investment",51 When Olin notified the LFIB on the same day that the Expropriation Order had been cancelled,52 the LFIB nevertheless asked Olin to contact the LFIB’s real estate department affirming that it had found a replacement location for Olin.53
111.
As from October 2010, a number of Libyan governmental departments endorsed the Tripoli Court of Appeal’s decision.54.
112.
On 7 December 2010, Olin initiated judicial proceedings before the South Tripoli Court of First Instance (the "South Tripoli Court") against the President of the Transitional Government, the Minister of Housing and Infrastructure, the Minister of Planning, and the Minister of Finance, seeking compensation for the harm it had suffered as a result of the Expropriation Order.55
113.
A first hearing was held on 11 January 2011, rescheduled for 1 March 2011, and then to 26 April 2011, at which point the South Tripoli Court decided to close the proceedings and informed Olin that it would render its decision on 20 September 2011.56
114.
On 17 February 2011, the period of revolution and civil unrest started in Libya.57
115.
On 15 June 2011, the Libyan authorities transferred back to Mr Said Abughamja the property title of Plot No.11 on which the Olin factory was erected.58
116.
On 20 September 2011, the South Tripoli Court decided to reopen the proceedings on the basis that the judges responsible for the case had changed after the 2011 revolution.59
117.
A hearing was subsequently held on 17 January 2012, when Olin was told that it had to re-file its case as the respondents’ official titles had changed since the revolution. Olin complied and resubmitted its case on 13 March 2012, which prompted the respondents to request another extension to present their defense.60
118.
A new court hearing scheduled for 19 June 2012 was further rescheduled in the absence of the respondents, a scenario which according to the Claimant, repeated itself in July, September, October, December 2012 and in January, February, March and April 2013.61
119.
The court proceedings continued to be postponed until a hearing was finally held on 4 February 2014.62
120.
Following this last court hearing, in a judgment dated 14 February 2014, the South Tripoli Court ruled that Olin had failed to prove the harm it suffered as a result of the cancelled Expropriation Order, and consequently, that no indemnification was due.63
121.
In October 2015, Olin ceased all operations in its factory.64
122.
On 13 July 2016, the LFIB informed Olin that it would renew its operational license for four months.65
123.
On 26 July 2016, the LFIB sent a separate letter to Olin informing it that its project had to be liquidated in accordance with the Libyan Investment Law because Olin’s cumulative losses since 2007 had been greater than 84% of its capital.66
124.
On 26 October 2016, the LFIB renewed Olin’s operational license for a short period of time until April 2017, contingent on Olin’s participation in the specific committee tasked with inspecting Olin’s records.67
125.
In November 2016, the LFIB refused to renew Olin’s operational license past April 2017 unless Olin could provide evidence that it injected additional capital into its investment to cover the financial losses it sustained68
126.
On 5 December 2016, Libya appealed before the Libyan Supreme Court the appellate judgment that had cancelled the Expropriation Order on 13 April 2010, and requested the Supreme Court to issue an immediate and urgent stay of execution of the Tripoli Court of Appeal’s decision cancelling the Expropriation Order.69 However, the Tribunal has not been informed of the outcome of the appeal to the Libyan Supreme Court, if any.70
127.
On 6 February 2017, Olin’s shareholders adopted a special resolution approving the increase in capital of its Libyan branch by LYD 9,179,386,142 to avoid liquidation.71
128.
Olin’s license has not been renewed past April 2017 and Olin does not plan to resume operations in the future.72

8. ISSUES TO BE DECIDED IN THIS FINAL AWARD

129.
The Arbitral Tribunal, having considered all the written submissions filed by the Parties, in addition to the Parties’ respective reliefs sought, sets out hereunder the Issues to be determined in this Final Award, as follows:

a) Has Libya breached Article 7 of the BIT relating to expropriation as a result of the unlawful and discriminatory interim legal and economic dispossession of Olin’s foreign investment from November 2006 through June 2011 without due process of law and without prompt, adequate and effective compensation?

b) Has Libya failed to grant Olin’s investment the national treatment that was afforded to Libyan investors as well as the MFN treatment under Article 3 of the Cyprus-Libya BIT?

c) Has Libya breached Article 2.2 of the Cyprus-Libya BIT, by failing to accord FET, FPS and/or by impairing the management, maintenance, use, enjoyment, and expansion of the Olin investment in Libya with unreasonable and discriminatory measures?

d) How should the Tribunal compensate Olin for its losses, if any?

e) Did Olin breach any of its obligations under the Cyprus-Libya BIT or during this arbitration? Should the Tribunal compensate Libya for any losses as a result of Olin’s behavior?

f) Should the Tribunal order the payment of pre-award and post-award interest on the amount of compensation granted to Olin, if any?

g) How should the Tribunal allocate the legal and arbitration costs incurred in these proceedings?

130.
In discussing in this Final Award the Parties’ respective contentions and the issues arising therefrom, the Arbitral Tribunal will refer to various parts of the submissions of the Parties. However, the fact that the Arbitral Tribunal has not reflected a specific part of such submissions does not mean that it has not considered such part in rendering its conclusions in this final award. Indeed, the Arbitral Tribunal has carefully considered all of the Parties’ oral and written submissions as well as all of the evidence both oral and documentary, in its consideration of the issues to be determined and the Parties’ requests for relief, including those which are not expressly referred to below.

9. ISSUE NO. 1: HAS LIBYA BREACHED ARTICLE 7 OF THE BIT RELATING TO EXPROPRIATION?

A) Summary of the Parties’ Positions

i. The Claimant

131.
The Claimant asserts that the issuance of the Expropriation Order in 2006 violates Article 7 of the Cyprus-Libya BIT, which prohibits the expropriation of investments "except for public interest, in accordance with due process of law, on a nondiscriminatory basis and against the payment of prompt, adequate and effective compensation."73
132.
The Claimant contends first that the Expropriation Order was not for public interest. The Claimant cites the decision in ADC v. Hungary74 according to which "a treaty requirement for ‘public interest’ requires some genuine interest of the public. If mere reference to ‘public interest’ can magically put such interest into existence and therefore satisfy this requirement, then this requirement would be rendered meaningless since the Tribunal can imagine no situation where this requirement would not have been met."75 According to the Claimant, the State’s alleged justification for the Expropriation Order, i.e. the construction of a housing project for public interest, "was only a pretext to conceal Libya's true motive to give the land to LIDCO to develop high-yield luxury apartments".
133.
Second, the Claimant argues that the Expropriation Order was not in accordance with due process of law, as Olin was neither provided with a "notice nor an opportunity to be heard before its investment was declared dispossessed". Moreover, according to the Claimant, "Libya flouted the ‘due process’ safeguards contained in its Libyan Investment Law when it issued the Expropriation Order in the form of an order from the GPCO, rather than a law or judicial decision".76
134.
Third, the Claimant asserts that Olin’s treatment stands in contrast to the permanent exemptions granted by Libya to the government-owned OKBA factory and the privately-owned, Libyan Al-Aseel factory which were located in the vicinities of Olin’s factory.77
135.
Finally, the Claimant considers that Libya’s expropriation was not taken against prompt, adequate, and effective compensation, which renders any expropriation unlawful and gives rise to international liability.78
136.
Based on the. above assertions, the Claimant concludes that Libya’s expropriation of Olin’s investment was an unlawful act under the Cyprus-Libya BIT and the Libyan Investment Law.79

ii. The Respondent

137.
In its submissions, the Respondent refers to both the Expropriation Order of October 2006 and the Revised Expropriation Order of November 2006 expanding the Expropriation Area, as the 2006 Expropriation Orders.80 The Respondent advances first that the 2006 Expropriation Orders did not affect the Claimant, since Olin was not the owner of the plot on which the plant was erected. Instead, according to the Respondent, the land belongs to Said Abughamja, as shown by the Lease contract of May 2005 between Said Abughamja and Olin, which was followed by the usufruct contract between the same parties in May 2006 (see paragraph 86 of the Factual Background).81
138.
The Respondent further argues that "the transfer of the land owned by Mr Said Abughamja to the Libyan State had no effect for the investor and its investment" since:

- The plot has never been occupied by anyone except from Olin’s staff;

- The buildings have not been demolished;

- The materials and equipment have never been requisitioned;

- The investor has never been formally deprived of its investment;

- The investor kept all its rights on its investment.82

139.
The Respondent also contests the Claimant’s allegations as to the purported illegality of the 2006 Expropriation Orders.
140.
The Respondent argues in this regard that the urban project of the Al-Fallah zone was driven by public interest with the urban development of the zone and the modernization of the associated utilities (water, electricity, sewage).83 The Respondent explains that Tripoli has been affected by a quick urbanization especially between 1969 and 2005 and that "the Government decided to modernize different sectors in favor of the population." Thus, "the object of these great projects was to solve the problems of unhealthy housing environment, to boost the economy and create jobs, and to reduce social tensions. Such projects are decided by the Government in favor of the general and public interest, in view to develop: the condition of life of the population, the employment, public utilities."84 The Respondent adds that "the Claimant cannot allege that the decision of expropriation had not been issued for public interest and was illicit because it does not bring any evidence that the urban plan constituted an obvious misuse of private and foreign interests to the only personal interest of governmental authorities and in breach of the law".85
141.
The Respondent further maintains that "the [Expropriation Orders] comply with the requirement of due process of law" since they were motivated, published, and that the possibility of a legal action was likewise offered.86
142.
The Respondent also denies that there was a discrimination to Olin’s detriment. According to the Respondent, "the [Expropriation Orders] concerned the whole Al Fallah zone", and "all the people and plants located in this area were concerned by the urban planning". The Respondent adds that if discrimination had existed, "it would have been positive and in favor of Olin’s interest and its two direct Libyan competitors", since "Olin, thanks to its Cyprus nationality and its capacity as foreign investor, has been protected and exempted from any kind of expropriation",87
143.
With regard to the absence of financial compensation, the Respondent considers that "since Olin has never been forced to move and since it has never interrupted its activity there was no room for any financial compensation." The Respondent adds that in case Olin had not been exempted from expropriation and had been forced to move, the competent authorities in Libya have considered an alternative site to locate Olin’s plant and "have mentioned their intention to compensate [Olin] of all the costs linked to such a transfer from Al Fallah to another industrial zone".88
144.
On this basis, the Respondent concluded in its SoD that there was no unlawful expropriation in breach of Article 7 of the BIT.

iii. The Parties’ Rebuttal Arguments

145.
In reply to Respondent’s argument that the plot did not belong to Olin, the Claimant maintains that it has lawfully acquired the land but that the Libyan authorities had delayed the registration process until June 2011. Prior to this date, Olin was not allowed to start the process of registering its property title over the land on which the factory was built.89
146.
In reply to Respondent’s argument that Olin was not the addressee of the Expropriation Order, but instead Mr Said Abughamja who is a Libyan national and the land’s owner, the Claimant contended that "both Article 23 of the Libyan Investment Law and Article 7 of the Treaty protected Olin from any measure having the same effect as or tantamount to an expropriation, subject to certain specific requirements". The Claimant concluded that "[e]ven if Olin was not the addressee, the Expropriation Order was clearly tantamount to an expropriation of Olin, as multiple Libyan agencies immediately recognized".90
147.
Finally, in reply to Respondent’s argument that there was no expropriation at all, since Olin’s factory was not destroyed, did not have to relocate and therefore that Mr Said Abughamja’s land was in fact exempted from the Expropriation Order, the Claimant reiterated that despite the support of several Libyan governmental agencies, the GPCO never formally exempted Olin from the Expropriation Order91 but maintained Olin in a state of uncertainty as to its expropriation,92 and failed to provide Olin with any suitable alternative location.93 The Claimant further contended that the impact of Libya’s illegal expropriation of Olin was at least threefold: (a) it resulted in the demolition of the area immediately surrounding Olin’s factory, which led to in electricity and water cuts as well as in a loss of access to the sewage system; (b) it had an immediate chilling effect, placing Olin in a state of paralysis and forcing it to downscale its operations dramatically; and (c) it significantly impacted Olin’s relationships with both its commercial partners and competitors.94
148.
In its Rejoinder, the Respondent reiterated its arguments in relation to the absence of a direct expropriation, stressing that the Libyan authorities intended to expropriate the land on which Olin was built, belonging to Mr Said Abughamja, and not Olin itself, underlying the fact that such land was not a component of Olin’s investment.95
149.
The Respondent further developed its view that the transfer of the land owned by Mr Said Abughamja to the Libyan State between 2007 and 2011 had no effect on Olin and its investment, and therefore could not amount to an indirect expropriation. According to the Respondent, when an investor has "free choice of the economic strategy", pursues its "daily management of the operations", has "access to the benefits generated by the operations" and is granted "freedom of movement for the managers and the employees in the absence of occupation, requisition, eviction from the site", it cannot avail itself from an indirect expropriation. In particular, Libya argued that the Claimant failed to prove that it had suffered a "substantial", "serious" and "severe" infringement, and failed to prove that it had lost the entire control over its investment, concluding that there can be no indirect expropriation in the circumstances.96
150.
The Respondent finally reiterated its position that the Expropriation Order was not illegal since it had a public purpose,97 was not discriminatory,98 and was in compliance with due process of law.99 The Respondent confirmed that Olin was neither forced to cease its activities, nor was it obliged to destroy its factory, to remove its materials and equipment, or ultimately to reorganise its activity on another site, and therefore that no compensation had to be paid by the host State in the circumstances.100

B) The Arbitral Tribunal’s Analysis and Decision

151.
As a starting point for its analysis, the Tribunal sets out below Article 7.1 of the Cyprus-Libya BIT:

Investments of investors of either Contracting Party in the territory of the other Contracting Party shall not be nationalized, expropriated or subjected to measures having equivalent effect to nationalization or expropriation, except for public interest, in accordance with due process of law, on a non-discriminatory basis and against the payment of prompt, adequate and effective compensation (emphasis added).

152.
The Tribunal further refers to Article 23 of the Libyan Investment Law:

The project may not be nationalized, dispossessed, seized, expropriated, received, reserved, frozen, or subjected to actions of the same impact except by force of law or court decision against an immediate and just compensation, provided that such actions are taken indiscriminately: the compensation will be calculated on the basis of the fair market value of the project in the time of action taken. The value of the compensation in convertible currencies may be transferred within a period not exceeding one year and according to the rate of exchange prevailing at the time of transfer (emphasis added).

153.
In the following paragraphs, the Tribunal will first proceed to determine whether Libya has expropriated Olin’s foreign investment, or imposed on Olin’s foreign investment measures having an effect equivalent to expropriation.
154.
The Tribunal refers to Article 1 of the Expropriation Order, issued by the GPCO in October 2006 that defined the expropriated land on which Olin’s factory was built as "the property on aerial map No. 13-52 located between the employee housing project and [Al-Sawani] Road, People's Congress of Bab [Akkara] Municipality, Tripoli district".101 This Order was notified to Olin by way of an evacuation order dated 12 November 2006 (see paragraph 157 below).
155.
The evidence on record shows that steps were in fact taken to formally execute the 2006 Expropriation Order when the property title of the land on which Olin’s factory was built was transferred to the LIDCO on 30 May 2007102 and Libya took active measures to expel Olin from the premises, as further discussed below.103
156.
At the time, the land which was chosen for the location of the factory belonged to Mr Said Abughamja and not to Olin, a fact admitted both by the Claimant and the Respondent.104 However, in fine, the Tribunal considers that the Expropriation Order necessarily entailed an expropriation of all buildings on the land in question. In particular, the Tribunal notes the operative part of the Expropriation Order which provided that the land was being expropriated "for the public interest to establish a housing project ".105
157.
As such, the legal consequence of the 2006 Expropriation Order followed by the transfer of the land to the LIDCO, necessarily implied the ultimate demolition and relocation of Olin’s factory, as demonstrated by a number of eviction notices and letters addressed to Olin directly between 2006 and 2011, and not to Mr Said Abughamja. In particular, the Tribunal refers to the following exhibits:

- Exhibit C-15, Evacuation Order dated 12 November 2006, addressed to Olin, ordering its eviction as follows:

"[Y]ou are requested to evacuate the property and deliver it free of any obstacles. or people to the. concerned committee within a period not exceeding 3 days from the date of the notification."

- Exhibit C-120, Letter from the Libyan Foreign Investment Board to Olin dated 13 May 2007, in which the LFIB informed Olin that it had six months to dismantle its factory and move to another location.

- Exhibit C-58, Eviction Notice from the General Authority for Public Property to Olin dated 6 April 2010, stating the following:

"We hope that you would vacate the site as soon as possible and turn it over free of persons within one week of this date and thereafter consult the Libyan Corporation for Development and Investment to settle your financial status".

- Exhibit C-31, Eviction Notice from the General Authority for Public Property to Olin dated 31 August 2010, reading as follows:

"We do hope from you that you evacuate the site on top urgent basis and deliver it free of all obstacles and people within a week of today to the Libya Company for Development and Investment with the financial settlement to your affairs with them in case there is a compensation to be paid."

- Exhibit C-127, Letter from the LFIB to Olin dated 2 September 2010, asking Olin to contact the LFIB’s real estate department, stating that it had found a replacement location for Olin, despite Olin’s notification on 31 August 2010 that the Expropriation Order had been cancelled by a decision of the Tripoli Court of Appeal dated 13 April 2010.106

158.
During the period which followed the issuance of the 2006 Expropriation Order, and the successive eviction notices sent to Olin as outlined above, Olin was effectively deprived of the guarantee of an unfettered ownership of its investment. Olin further substantially lost control of its ability to properly conduct and plan its business.
159.
Olin’s ability to conduct its business under normal conditions was impeded by Libya in multiple aspects, as further outlined in the Tribunal’s analysis on FET in Section 11 below. The Tribunal specifically refers to the following evidence from November 2006 and onwards:

- Evidence showing the demolitions around Olin’s factory and the impact that such demolitions had on Olin’s operations, notably in terms of electricity and water cuts and temporary loss of access to the sewage system (as documented in Olin’s letter to the LFIB dated 6 December 2006;107 LFIB’s letter to the Tripoli Branch of the Libyan General Electric Corporation dated 10 December 2006;108 and the compilation of Olin's Internal Destruction Reports for 2008 due to Electricity Cuts).109

- Decision of the Libyan authorities in mid-February 2008 to create a committee (composed of the Ministry of Industry and Mines, the Ministry of Economy and Trade and the General Authority For Housing & Utilities), "for the purpose of discussing with [Olin] the terms of [its] eviction", including the identification of a replacement location and the payment of adequate compensation, neither of which ultimately led to any concrete result.110

160.
Thus, while Olin managed to avoid the destruction of its factory and did not totally interrupt its activities, it is undeniable that the repeated requests for relocation and demolition, combined with other Libyan measures listed at paragraph 159, significantly impacted Olin’s business, undermined its ability to plan for the future and paralysed its activities.111
161.
The Tribunal therefore considers that the issuance of the Expropriation Order combined with the events that followed severely impaired the use and enjoyment of Olin’s investment.
162.
The Tripoli Court of Appeal in its decision of 13 April 2010 recognized that Olin, as a foreign investor, was directly concerned by the 2006 Expropriation Order and proceeded to invalidate it on the basis that it violated the Libyan Investment Law, in the following terms:112

Since the Appellant project falls within the area included in the appealed resolution No. 266 of 2006, the body that expropriated the property should have conducted an onsite survey to determine the facts of the property where structures were established, including the appellant’s project. Also, this body should have referred to the provisions of Law No. 5 of 1426 on promoting foreign capital investments, particularly Article 23 which stipulates specific restrictions for a specific case. Therefore, it becomes clear that the two appealed resolutions are in violation of the law, rendering it imperative to, first, halt their execution and, second, cancel their content. (emphasis added)

163.
Notwithstanding that the Tripoli Court of Appeal decision had cancelled the 2006 Expropriation Order, the Tribunal notes that the Claimant continued to receive eviction notices after the decision was rendered. The Tribunal refers to the eviction notice of 31 August 2010 (Exhibit C-31) and the LFIB’s letter of 2 September 2010 requesting Olin to relocate its factory (Exhibit C-127) despite Olin’s prior notification to the LFIB on 31 August 2010 that the Expropriation Order had been cancelled (Exhibit C-126). The Tribunal therefore concludes that the Tripoli Court of Appeal’s decision issued in April 2010 cannot be deemed to have put an immediate end to the effects of the 2006 Expropriation Order.113
164.
The Tribunal instead considers that the legal, effects of the Expropriation Order ceased on 15 June 2011, when the Libyan authorities transferred back title to the land to Said Abughamja, thus enabling Olin to give effect to the Land Sales Contract concluded earlier on 31 October 2007 between Mr Said Abughamja and Olin (see paragraph 104 in the Factual Background).114 Accordingly, Libya’s measures that followed the registration of the land on 15 June 2011 are analysed in more detail under Section 11 below.
166.
Indeed, the Tribunal is convinced that owing to the delays in the launch of Olin’s products and its inability to realise the benefits of its investment during the four years and a half of uncertainty that followed the application of the 2006 Expropriation Order, Olin was overtaken by its competitors on the Libyan market and had lost the advantage of being one of the first entrants as a local private producer.116 Therefore, Olin bore the economic consequences of Libyan’s expropriation measures beyond 2011.
167.
Based on the foregoing, the Tribunal concludes that the issuance of the 2006 Expropriation Order combined with Libya’s measures that followed had an effect equivalent to an expropriation of Olin’s foreign investment. Following this determination, the second step is for the Tribunal to determine whether the Respondent complied with the conditions for a lawful expropriation, imposed by the Cyprus-Libya BIT and the Libyan Investment Law.

• Claimant’s contention that the 2006 Expropriation Order was not for the public interest

168.
The Tribunal has noted the Respondent’s contention that the 2006 Expropriation Order was issued for the purpose of proceeding with the urban development of the Al Fallah zone and the modernization of its public utilities, including water supply, electric power, sewage and roads.117 The Tribunal has further reviewed the evidence submitted by the Claimant in support of its allegation that the 2006 Expropriation Order was not driven by a public purpose and that Libya’s true motive was "to give the land to LIDCO to develop high-yield luxury apartments", "designed for Tripoli’s wealthiest residents".118
169.
The Tribunal considers, however, that the Parties failed to adduce sufficiently compelling evidence allowing it to make a conclusive finding regarding the public purpose nature of Libya’s project in the Al Fallah zone. The Tribunal will accordingly determine whether Libya’s expropriatory measures were illegal by reference to the remaining criteria provided for under Article 7 of the BIT.

• Claimant’s contention that the expropriation was not in accordance with due process of law

170.
Evidence shows that on 12 November 2006, Mr Akram Abughamja received an eviction order from the Tripoli’s People Committee for Housing & Utilities informing him that his factory had been "dispossessed" and requesting Olin to vacate the premises within 3 days.119 The Claimant argues that it is only then that Olin became aware of the Expropriation Order,120 issued by the GPCO on 19 October 2006, which expropriated a parcel of land along the Tripoli Airport Road, including Olin’s factory.121 The Respondent did not challenge these facts nor submit evidence to the contrary.
171.
The Tribunal refers in this regard to Article 23 of the Libyan Investment Law (cited at paragraph 152),122 which provides that a foreign investment cannot be expropriated without a law or judicial decision. The Tribunal, having examined the 2006 Expropriation Order, concurs with the Tripoli Court of Appeal’s observations in its 2010 decision that:

"The resolution under appeal [i.e. the Expropriation Order] is neither a law nor a judicial ruling. Rather, it is an administrative resolution issued by the General People’s Committee and does not have jurisdiction in the matter according to Article 23 of Law No. 5 of 1426 regarding the promotion of foreign capital investments. The appealed resolution is therefore not valid for lack of jurisdiction: the function of legislative power to issue a law as stated in Article 23 mentioned above, which is the function of the General People’s Congress; and the function of judicial power to issue judicial ruling as stated in Article 23 mentioned above, which is the function of the courts. The entity that issued the resolution under appeal did not only usurp one power, but also usurped the functions of two powers through just one administrative resolution. It is a given ' according to jurisprudence and justice that the lack of jurisdiction in the form of usurpation of power is a virtual attack of one authority against another" (emphasis added).123

172.
The Tribunal concludes that by failing to comply with the provisions of its Investment Law with regard to the procedural requirements in Article 23 of the Libyan Investment Law, Libya did not comply with its obligation to ensure that the 2006 Expropriation Order was issued in accordance with due process of law.

• Claimant’s contention that the expropriation was discriminatory

173.
The Tribunal notes that both the Cyprus-Libya BIT and the Libyan Investment Law of 1997 provide that an expropriation decision should not discriminate against the foreign investor.
174.
For reasons developed in more detail in Section 10 below, the Tribunal considers that the Expropriation Order is discriminatory.

• Claimant’s contention that the expropriation was not taken against prompt, adequate, and effective compensation

175.
The Tribunal refers to Article 7.2 of the Cyprus-Libya BIT according to which the amount of compensation for expropriation "shall amount to the fair market value of the investment expropriated immediately before the expropriation or impending expropriation became publicly known, whichever is the earlier (hereinafter referred to as the ‘valuation date
176.
The Tribunal has noted the Claimant’s contention that the Libyan authorities did not find an alternative location nor compensate Olin for expropriatory measures, evidenced notably by a series of letters sent by Olin to the LFIB and the General Organization for Housing and Utilities.124
177.
The Tribunal has also noted the judgment of the South Tripoli Court dated 14 February 2014, ruling that Olin failed to prove the harm it had suffered as a result of the cancelled Expropriation Order, and consequently, that no indemnification was due.125
178.
The Tribunal considers that by allowing Olin to register title over the land on which it was built in 2011, Libya has put an end to the legal effects of the Expropriation Order, which obviates the need to compensate Olin for the fair market value of the land expropriated as per Article 7.2 of the Cyprus-Libya BIT.
179.
It remains however that there was no prompt nor effective compensation in compliance with Article 7 of the BIT, since the Claimant’s investment was affected by measures equivalent to expropriation without any compensation for more than four years. Furthermore, the Expropriation Order was issued in breach of due process126 and on a discriminatory basis,127 as underlined above, thereby causing harm to the Claimant’s investment that has not been compensated.
180.
Based on the foregoing, the Tribunal therefore finds that Libya’s expropriatory measures were not in compliance with the conditions for a lawful expropriation listed in Article 7 of the Cyprus-Libya BIT.
181.
The Tribunal accordingly concludes that the expropriatory measures implemented by Libya between November 2006 and June 2011 were in breach of Article 7 of the Cyprus-Libya BIT.

10. ISSUE NO. 2: HAS LIBYA FAILED TO GRANT OLIN’S INVESTMENT THE NATIONAL TREATMENT THAT WAS AFFORDED TO LIBYAN INVESTORS UNDER ARTICLE 3 OF THE CYPRUS-LIBYA BIT?

A) Summary of the Parties’ Positions

i. The Claimant

182.
The Claimant relies on Article 3 of the Cyprus-Libya BIT to "National Treatment and Most Favoured Nation Treatment" and maintains that Libya was required to accord Olin and its investment a "treatment no less favourable than that which Libya accords to domestic investors and investments in accordance with its bilateral investment treaties with third States."128
183.
The Claimant supports its position by referring to Libya’s alleged discriminatory expropriatory measures when compared with the treatment accorded to Olin’s local competitors. It argues that discrimination is generally understood by tribunals to mean "not based on justifiable distinctions or arbitrary",129 and that "tribunals generally analyze whether a claimant is "similarly situated" to its comparators."130
184.
In the present case, the Claimant asserts that "there can be no doubt that Olin was similarly situated to OKBA and Al-Aseel such that Libya’s differential treatment of Olin had no rational justification whatsoever".131 The Claimant explains that "OKBA and Al-Aseel are competitors operating in the same business and economic sector as Olin, namely the dairy and juice market in Libya." The Claimant adds that "not only OKBA and Al-Aseel are in the same business sector as Olin, but also they are physically located in the same Fallah industrial area—the OKBA factory adjoins Olin’s own, while the Al-Aseel factory is only a few hundred meters away".132
185.
Having argued that the Claimant, OKBA and Al-Aseel are all similarly situated, the Claimant goes on to say that Libya treated Olin less favourably than OKBA and Al-Aseel by exempting the local factories from the Expropriation Order but refusing to extend the same treatment to Olin.133 The Claimant states that Libya’s own factual exhibits show that the GPCO granted OKBA and Al-Aseel factories "unequivocal, permanent exemptions from the Expropriation Order")134 In response to Libya’s argument that Olin’s factory was not demolished and remains onsite today, the Claimant stresses that Olin remained in a state of uncertainty regarding its fate and that "[t]here is no factual basis for Libya’s assertion that Olin was either officially or de facto exempted from the expropriation."135 The Claimant adds that "Libya’s inability to submit such evidence stands in stark contrast to the exhibits that Libya in fact submitted in this arbitration, namely unequivocal, permanent exemptions granted by Libya to the government-owned OKBA factory and the privately-owned, Libyan Al-Aseel factory"136
186.
The Claimant finally sates that "Libya cannot show that it had legitimate reasons that justified the difference in treatment or that the disparate treatment of exempting OKBA and Al-Aseel but not Olin from the Expropriation Order bears a reasonable relationship to rational policies not motivated by preference of domestic over foreign owned investments137
187.
For these reasons, the Claimant considers that Libya’s treatment of Olin violated Article 3 of the BIT, entitled "National Treatment and Most Favoured Nation Treatment".138

ii. The Respondent

188.
The Respondent contests the Claimant’s assertion that it was treated differently from Al-Aseel or OKBA. The Respondent maintains that the Claimant was exempted from the Expropriation Order, and that it was accorded a treatment which is, on the contrary, more favourable than that which Libya accorded to its domestic investors.
189.
The Respondent quotes the Claimant which admitted that "[w]ithin three days of Olin’s receipt of the eviction notice, the Libyan army had destroyed several buildings and homes next to the Olin factory and expelled thousands of occupants in the process, and that [w]ithin three months, Libya had demolished the quasi totality of the Expropriated area, leaving Olin’s factory as one of the few buildings standing."139 The Respondent relies on this statement to reaffirm that Olin’s factory was not demolished contrary to most buildings in the expropriated area, which shows (according to the Respondent) that the Olin was accorded a favourable treatment.
190.
The Respondent further refers to several correspondence showing that the Libyan public authorities officially supported Olin’s exemption from the Expropriation Order.140
191.
The Respondent also refers to a letter sent by Olin on 16 June 2009 to prove that the factory was still on site. It argues that Olin "speaks only about future and hypothetic damages in case it should move on another industrial zone ", quoting the following passage from the aforementioned letter:

"As the expropriation of the company will cause us great material and moral damages... the investor will support huge amounts for the implementation of the project and its future extension... and the losses in terms of profits and costs of creation will amount to the sum of LYD 23 million in case of evacuation and demolition.

The GPC agreed to exempt similar companies; we hope to benefit from an identical treatment..."141

192.
The Respondent adds that Olin itself admits in its SoC that it remained on the site, that no reference is made to any transfer of its activity to another industrial site, that Olin was not forced to stop its activity, nor dismantle its materials and equipment, nor reinstall such materials and equipment somewhere else.142
193.
The Respondent thus considers that Olin’s plant has been exempted de facto from expropriation contrary to most other plants that were demolished, and therefore that it received FET similarly to OKBA and Al- Aseel.143

iii. The Parties’ Rebuttal Arguments

194.
The Claimant considers that there is no factual basis for Libya’s assertion that it was either officially or de facto exempted from the expropriation.
195.
Regarding the existence of an official exemption, the Claimant states that Libya cannot point to "an exemption that would have reassured Olin that its investment was safe from expropriation and demolition, because none was ever issued."144
196.
The Claimant further rejected Libya’s argument regarding a de facto exemption, underlining that "Libya’s argument implies that a State may expropriate the title to the property upon which an investment sits, openly and repeatedly threaten a foreign investor with dismantling and dislocation, paralyze its production, cause it to sustain significant losses, and yet remain shielded from liability under the guise that it ‘de facto’ exempted the investor from ultimate dispossession or permitted it to carry on a minimum level of operations to simply survive."
197.
The Claimant finally referred to the decision of the Tripoli Court of Appeal decision of 2010, cancelling the Expropriation Order, which acknowledged that the GPCO took "no action at all" to exempt Olin from the illegal Expropriation Order.145 The Claimant further refer to Libya’s initiation of legal proceedings before the Libyan Supreme Court to appeal the Tripoli Court of Appeal’s judgment that had cancelled the Expropriation Order in 2010, more than six years after its issuance.146 This in itself, according to the Claimant, clearly belies the Respondent’s exemption claims.147
198.
The Claimant concluded in its Reply that the GPCO’s implementation of the expropriation was patently discriminatory.148
199.
In its Rejoinder, the Respondent reiterated its position as set out in its SoD, stating that Olin had never been forced to relocate and therefore that it was protected by the Libyan authorities, similarly to Al Aseel and OKBA factories.149

B) The Arbitral Tribunal’s Analysis and Decision

200.
The Tribunal cites, for ease of reference, Articles 3.1 and 3.2 of the Cyprus-Libya BIT:

1. Once a Contracting Party has admitted an investment in its territory in accordance with its laws and regulations, it shall accord to such investment made by investors of the other Contracting Party treatment not less favourable than that accorded to investments of its own investors or of investors of any third State, whichever is more ' favourable to the investor concerned.

2. Each Contracting Party shall in its territory accord to investors of the other Contracting Party, as resards to their management, maintenance, use, enjoyment, expansion or disposal of their investment, treatment not less favourable than that accorded to its own investors or to investors of any third State, whichever is more favourable to the investors concerned (emphasis added).

201.
In its analysis of whether Libya has breached Article 3 of the Cyprus-Libya BIT, the Tribunal will thus address the issue of whether Libya accorded to Olin a treatment less favourable than that which it accorded to its domestic investors, namely OKBA and Al-Aseel.
202.
In Total S.A. v. Argentine Republic, the tribunal considered that a discriminatory treatment can be demonstrated if the investor proves that the State has been treating differently persons who are similarly situated. In essence, the tribunal found that:

"In order to determine whether treatment is discriminatory, it is necessary to compare the treatment challenged with the treatment of persons or things in a comparable situation. In economic matters the criterion of "like situation" or "similarly-situated" is widely followed because it requires the existence of some competitive relation between those situations compared that should not be distorted by the State’s intervention against the protected foreigner. This is inherent in the very definition of the term "discrimination" under general international law that: "Mere differences of treatment do not necessarily constitute discrimination... discrimination may in general be said to arise where those who are in all material respects the same are treated differently, or where those who are in material respects different are treated in the same way."[R. Jennings, A. Watts (eds.), Oppenheim’s International Law, 9th ed. (Longman, 1992), Vol. I, p. 378]. (emphasis added). The elements that are at the basis of likeness vary depending on the legal context in which the notion has to be applied and the specific circumstances of any individual case."150

203.
Accordingly, if the Claimant can prove that it was treated less favourably than a person similarly situated, then there would be discriminatory treatment, unless the Respondent can prove that such different treatment was justified.151
204.
In its assessment of the alleged breach of Article 3 of the Cyprus-Libya BIT in the present case, the Tribunal has therefore to answer three questions:

(1) Has the Claimant proved that Olin, OKBA and Al-Aseel are similarly situated?

(2) Has the Claimant proved that Libya treated Olin less favourably than OKBA and Al-Aseel?

(3) If the answer to these two questions is yes, has the Respondent proved that the difference in treatment is justified?

• Has the Claimant proved that Olin, OKBA and Al-Aseel are similarly situated?

208.
In response to the first question identified at paragraph 204 above, the Tribunal therefore determines that Olin, OKBA and Al-Aseel are similarly situated.

• Has the Claimant proved that Libya treated Olin less favourably than OKBA and Al-Aseel?

209.
The Claimant considers that Olin was never formally exempted from expropriation, contrary to OKBA and Al-Aseel, and therefore that Olin was treated differently and less favourably than its national competitors.
210.
It is uncontested by both Parties that OKBA and Al-Aseel were formally exempted from any demolition and were allowed to remain on-site permanently.156 The Parties however differ on whether Olin’s factory was likewise exempted from expropriation.157
211.
As explained above, the Tribunal finds that Olin did not receive a formal and official expropriation exemption from the GPCO, similar to the ones accorded to its two national competitors. Such exemption would have given Olin the assurance that the land on which its factory was erected would not be expropriated, nor would its building risk destruction. In the Tribunal’s assessment, the fact that Olin’s factory was not ultimately demolished or relocated does not justify a departure from the treatment accorded to OKBA and Al-Aseel.
212.
Notwithstanding that Olin’s operational license was continuously renewed until April 2017, and that some evidence on record suggests that the Libyan authorities did support Olin’s requests for a formal exemption, the fact remains that such actions co-existed with other State measures which clearly demonstrated that Libya was adamant to execute the 2006 Expropriation Order until June 2011. The Tribunal notably refers to the various eviction notices and letters addressed to Olin by the Libyan authorities as quoted in Section 9 above,158 together with the uncontested evidence that title to the land on which Olin’s factory was built was transferred to the LIDCO from May 2007 to June 2011.
213.
The Tribunal further acknowledges that the Libyan courts ultimately cancelled the Expropriation Order in April 2010, and that the Claimant was able to register the land. on which Olin was erected under its name in June 2011. However, this was following four years and half of uncertainty, during which a number of correspondence with the Libyan authorities were exchanged, notices of evacuation were received, and court proceedings had to be engaged. The evidence on record further shows that Libya revived the threat of the Expropriation Order, by opening court proceedings against Olin on 5 December 2016 to challenge the Libyan Court’s decision cancelling the Expropriation Order.159
214.
Against this background, the Tribunal finds that Olin was clearly operating in less favourable circumstances than its competitor Al-Aseel, which received a formal and definitive expropriation exemption from the Libyan Government as early as July 2008.
215.
As regards OKBA, although the precise date on which the company was formally exempted from expropriation is unknown to this Tribunal, both the Claimant and the Respondent agree that the Libyan government exempted Al-Aseel and OKBA in similar circumstances. The Tribunal, noting that Olin did not receive a formal and definitive exemption from demolition and interference, similar to the ones accorded to OKBA and to Al-Aseel, concludes that the Claimant was treated less favourably than its two national competitors.

• Did the Respondent prove that the difference in treatment was justified?

216.
In relation to this question, the Tribunal notes that the Respondent simply denied that Olin was treated less favourably than the national investors OKBA and Al-Aseel. It did not address, on an alternative basis, the issue of whether the different treatment accorded to Olin was justified. Likewise, the Respondent did not submit any evidence in this regard.
217.
The Tribunal therefore considers that the Respondent has failed to prove that the difference between the treatment accorded to Olin and the treatment accorded to its national competitors was justified. The Respondent has accordingly failed to discharge its burden of proof in this regard.

• Conclusion

218.
In light of the above, the Tribunal determines that Libya accorded to Olin’s investment a treatment less favourable than that accorded to the investments of its own investors, namely OKBA and Al-Aseel, and therefore breached Article 3 of the Cyprus-Libya BIT.

11. ISSUE NO. 3: HAS LIBYA BREACHED ARTICLE 2.2 OF THE CYPRUS-LIBYA BIT, BY FAILING TO ACCORD FET, FPS AND/OR BY IMPAIRING THE MANAGEMENT, MAINTENANCE, USE, ENJOYMENT, AND EXPANSION OF OLIN’S INVESTMENT IN LIBYA WITH UNREASONABLE AND DISCRIMINATORY MEASURES?

219.
In this section the Tribunal will contemplate the alleged breaches addressed by the Claimant under Article 2.2 of the Cyprus-Libya BIT, namely: (1) Libya’s failure to accord Olin FET, (2) Libya’s failure to accord Olin FPS and (3) Libya’s impairment of the management, maintenance, use, enjoyment and expansion of Olin’s investment in Libya with unreasonable and discriminatory measures.

(1) Has Libya failed to accord Olin FET?

A) Summary of the Parties’ Positions

i. The Claimant

220.
The Claimant argues that Libya’s conduct, through the issuance of the Expropriation Order in October 2006 and the events which followed, breached its obligation to accord Olin FET by (1) frustrating Olin’s legitimate expectations, (2) inflicting a constant climate of uncertainty upon Olin, (3) failing to act in a transparent manner, (4) harassing Olin, (5) failing to treat Olin in accordance with due process and denying justice to Olin, and (6) discriminating against Olin.

1. Frustration of Olin’s legitimate expectations

221.
The Claimant argues that the Expropriation Order issued in 2006 by the Libyan authorities in and of itself constituted a breach of the FET standard.
222.
The Claimant contends that since the Tecmed v. Mexico decision which was "the first decision to spell out that FET treatment encompasses protections of expectations",160 tribunals have consistently found that protection of an investor’s legitimate expectations is part of the FET standard.161
223.
The Claimant further relied on the Thunderbird v. Mexico award, arguing that the following questions are relevant for determining whether a host State breached the FET standard by frustrating an investor’s legitimate expectations:

(i) Did the host State’s conduct create legitimate expectations on the part of the investor?

(ii) Did the investor rely on the State’s conduct at the time it invested?

(iii) Did the host State subsequently fail to honor the expectations it created?162

224.
In the present case, the Claimant contends that Libya frustrated its legitimate expectations by issuing an expropriation order despite the enactment of Investment Law of 1997, which gives sufficient assurances to foreign investors that reliable investments can be made in Libya. The Claimant accordingly argues that:

(i) By liberalizing its economy, enacting the Libyan Investment Law in 1997 and making numerous public statements in subsequent years, Libya created a legitimate expectation on Olin’s part that it would not be expropriated without a valid cause and without a law or judicial decision.

(ii) The legal rights granted under the investment framework and various assurances made by top governmental officials in Libya regarding the treatment of foreign investments were fundamental to Olin’s decision to invest in Libya.

(iii) Libya failed to honor the expectations it created by enacting an Expropriation Order which did not comply with the provisions of the Libyan Investment Law.163

225.
Overall, the Claimant therefore considers that Libya’s issuance of the Expropriation Order frustrated Olin’s legitimate expectation and thus breached the FET standard.164

2. Infliction of a climate of uncertainty

226.
According to the Claimant, it is well established that the stability of an investment and its business framework are important components of the FET standard, as they are "directly linked to the investor’s legitimate expectations".165
227.
The Claimant argues that before the 2006 Expropriation Order, Olin invested over LYD 12 million (over USD 9 million at the historical exchange rate) to build its production plant in Libya. It also hired qualified personnel, to help with the finalization of the factory’s construction and then with its operation. Several employees were thereafter sent by Olin to train with Candía in France,166 and contacted various distributors with the goal of creating an exclusive distributor network throughout the country.167
228.
The Claimant alleges that after the issuance of the Expropriation Order in November 2006, "the legal uncertainty that plagued Olin’s investment for years severely affected its relationship with all of its commercial partners or competitors".168 It states that the Expropriation Order "ushered a five-year era of doubt, anxiety, confusion, and paralysis for Olin and its management, which was largely due to the Libyan authorities’ erratic and inconsistent behavior".169 Notably, the Claimant contends that while some Libyan authorities supported Olin’s request for an expropriation exemption,170 and regularly renewed Olin’s operational license until April 2017,171 Libya dragged Olin into protracted and fruitless discussions of a possible relocation and compensation;172 transferred legal title to the land to the LIDCO in 2007;173 and repeatedly attempted to evict Olin from the land in question even after the cancellation of the Expropriation Order by the Tripoli Court of Appeal.174
229.
The Claimant further argues that the demolitions around the plant had a significant impact on the Claimant’s activities because they resulted in power cuts as well as loss of access to water and sewage leading to several production stoppages during 2007 and 2008.175
230.
As examples of impaired management, Olin puts forward the following:

- Olin was unable to secure exclusive distribution agreements with capable partners, who were deterred from doing business with Olin due to a lack of assurance regarding Olin’s stability and the abundance of its supply.176

- Because Olin did not know from one day to the next whether it would survive the Expropriation Order, it could not extend a credit line to its customers which frustrated them and made them less inclined to purchase Olin’s products.177 Olin’s ability to secure payment instruments from its bank was also affected.178

- Olin lost access to preferential terms from its suppliers, which felt that Olin’s longterm survival was uncertain due to the illegal expropriation and its aftermath.179

- Olin’s competitors took advantage of the situation. Olin’s direct competitors in Libya perpetuated the belief in the marketplace that Olin was going to be out of business soon. As of late, Candia’s Tunisian franchisee even commenced importing Candía UHT milk illegally to meet the demand that Olin was forced to leave unfulfilled.180

- In addition to these difficulties, Olin also struggled to retain its best-qualified employees, including employees that Olin had sent to train with Candía, because of the doubts as to Olin’s fate.181 The Expropriation Order also made it very difficult for Olin to convince new employees to join.182

231.
Consequently, the Claimant maintains that Libya breached the FET standard through the infliction of a climate of uncertainty on Olin.183

3. Lack of transparency

232.
The Claimant asserts that transparency requires that investors are informed of decisions before they are imposed on investors.184 The Claimant relied on a number of arbitral decisions demonstrating that the obligation to act in a transparent manner towards foreign investors is part of the FET standard.185
233.
The crux of the Claimant’s argument regarding lack of transparency is that the GPCO never notified Olin of its decision to issue an Expropriation Order on 19 October 2006.186
234.
The Claimant contends that Olin’s general manager, Mr Akram Abughamja, first discovered military officers painting the word "removal"187 on the walls of Olin’s factory and all adjacent buildings in early November 2006.
235.
The Claimant contents that it only became aware of the Expropriation Order on 12 November 2006, a month after its issuance, when the Tripoli’s People Committee for Housing and Utilities informed Olin that its factory had already been "dispossessed" and that Olin had three days to vacate the premises.188
236.
Likewise, the Claimant’s asserts that the GPCO revised the Expropriation Order in November 2006, without informing Olin of the changes in complete disregard of due process of law.189
237.
The Claimant concludes that this conduct, combined with other acts of mistreatment of Olin,190 together constitute a breach of Libya’s obligation to act in a transparent manner and therefore of its obligation to afford it FET.

4. Harassment

238.
According to the Claimant, "the LFIB appears to have embarked on a personal crusade against Olin since 2013",191 and in a "harassment campaign against Olin in retaliation for the commencement of this arbitration".192

(i) The LFIB refused to allow Olin to import a new production line

239.
According to the Claimant, the LFIB first refused to issue a customs clearance that would have allowed Olin to import a new production line that it had purchased from Combibloc. Olin contends that such production line would have enabled it to "maximize and develop the productivity of the company The LFIB, however, failed to formally authorize the importation of this new production line193 and Olin was ultimately left with no choice but to cancel its contract with Combibloc in early 2015.194
240.
The Claimant contends that as a consequence, the equipment never cleared customs, and Olin was ultimately forced to return the Combibloc equipment to the seller.195

(ii) The LFIB persistently refused to allow Olin to repatriate profits

241.
The Claimant alleges that the LFIB consistently prevented Olin from managing its investment by "repeatedly refusing to allow Olin to repatriate its profits to Cyprus".196
242.
Olin asserts that it wrote to the LFIB several times asking it to communicate with Sahara bank, so that Olin could repatriate the profits it generated in 2010, 2012, and 2013, but. the LFIB failed to do so,197 although it used to cooperate with Olin for the repatriation of its profits in the previous years.198
243.
The Claimant further explains that following its adoption of a resolution to repatriate a total of LYD 1.38 million on 18 September 2014,199 Olin asked the LFIB to write to Sahara Bank (BNP Paribas’s Libyan correspondent) on 11 January 2015, and then again on 29 June 2015, so that Olin could repatriate its profits.200 According to the Claimant, however, Olin has not received any response from the LFIB to date.201

(iii) The LFIB refused to assist Olin in accessing foreign currency

244.
The Claimant further contends that for more than a year, the LFIB "prevented Olin from accessing foreign currency, an essential element of its operation since it allows it to import raw materials and/or machines and equipment",202
245.
The Claimant argues in this regard that it needed in 2015 a letter from the LFIB certifying that Olin’s project was subject to the Libyan Investment Law and that Olin was accordingly to be treated like a national company for the purpose of banking transactions. Olin argues that this letter was necessary for it to obtain foreign currency to import raw materials, machines and equipment, and the LFIB failed to issue such certificate and did not coordinate with Olin’s bank.203

(iv) The LFIB sought Olin’s liquidation

246.
According to the Claimant, Libya undertook several actions which were aimed towards Olin’s liquidation:

(i) On 13 July 2016, the LFIB informed Olin that it would renew its operational license for only four months;204

(ii) The LFIB sent a separate letter to Olin informing it that its project had to be liquidated in accordance with the Libyan Investment Law because Olin’s cumulative losses since 2007 had been greater than 84% of its capital;205

(iii) The LFIB then agreed to a short-time renewal of Olin’s license to operate until April 2017, contingent on Olin’s participation in the specific committee tasked with inspecting Olin’s records. The LFIB thereafter refused to renew Olin’s operational license in the absence of evidence of additional capital injected;206

(iv) Libya’s authorities’ determination to destroy Olin’s investment is confirmed by recent proceedings which Libya has commenced against Olin before the Libyan Supreme Court.207

247.
The Claimant therefore concludes that "Libya’s continued mistreatment of Olin without any explanation constitutes a clear case of harassment which the FET standard prohibits."208

5. Lack of due process and denial of justice

248.
The Claimant has also raised the issue of denial of justice and lack of due process before the Libyan national courts, a protection which it contends falls within the scope of the FET standard set out at Article 2(2) of the Cyprus-Libya BIT.209
249.
In advancing such argument, the Claimant relied on the definition of denial of justice as an "improper administration of civil and criminal justice as regards an alien, including denial of access to courts, inadequate procedures, and unjust decisions".210 The Claimant further refers to Professor Alwyn Freeman, the author of the first comprehensive study on denial of justice, who considers that denial of justice occurs "whenever proceedings are permeated with judicial fraud, venality, and corruption",211
250.
The Claimant argues that the South Tripoli Court (before which the Claimant has sought compensation for the harm it had suffered as a result of the Expropriation Order previously cancelled by the Tripoli Court of Appeal) conducted its proceedings without any regard to due process of law and denied Olin justice, for a number of reasons.
251.
First, the Claimant contends that it suffered undue delays before the South Tripoli Court which systematically granted postponements, a situation which repeated itself at least a dozen times over a period of nearly three years.212
252.
Second, according to the Claimant, during the last hearing before the Court held on 4 February 2014, the judge asked Olin’s legal representative "what good it would do him to award Olin the substantial compensation that it had requested", thus making a "barely-veiled solicitation of a bribe" to which Olin refused to answer.213
253.
Third, the Claimant contends that the content of the South Tripoli Court decision of 14 February 2014, which followed the hearing of 4 February 2014, constitutes an abusive refusal to indemnify Olin for the harm it suffered because of the cancelled Expropriation Order.214 According to the Claimant, the South Tripoli Court "wholly and unjustifiably ignored the impact of Libya’s actions on Olin’s ability to operate its plant" and "based its shocking conclusion on the mere fact that Olin had obtained an operational license from the LFIB in 2008 and allegedly was operating during the time that the Expropriation Order was in place".215 Mr Akram Abughamja stated that it was clear that "the judge issued this decision because [Olin] had refused his request for a bribe".216
254.
According to the Claimant, contrary to Libya’s assertions:

- Free access to the courts is necessary but not sufficient to defend against a denial of justice claim;

- Olin is not asking the Tribunal to sit as a court of appeal, but rather to consider the procedural irregularities which led to an unfair decision; and.

- The changes in political regime had no impact on the court’s functioning.217

255.
The Claimant concludes that the aforementioned conduct constitutes a clear violation of due process and therefore of the FET standard under the BIT.

6. Discrimination

256.
The Claimant also considers that the FET standard encompasses an obligation not to discriminate against a foreign investor, which it also alleges has been breached by the Respondent.218 The issue of the discriminatory treatment of Olin is developed in more detail in Section 8.D. below.

ii. The Respondent

257.
The Respondent considers that it fulfilled its obligation to accord FET to Olin and denies all the allegations advanced by the Claimant.

1. The alleged frustration of Olin’s legitimate expectations

258.
The Respondent relies on the fact that Mr Abughamja is a Libyan national who engaged in commercial activities in Libya prior to the period of nationalizations. For this reason, the Respondent contends that Mr Abughamja must have had full knowledge of the situation in Libya including the functioning of the Libyan institutions and the provisions governing the sector of urbanization.219 On this basis, the Respondent argues that Mr Abughamja could not ignore the enactment of Law No. 3/2001 relating to the urbanization and the conditions for obtaining parcels of lands for the implementation of an industrial activity.220
259.
Further, as stated earlier, the Respondent maintains that the Libyan authorities exempted Olin from the Expropriation Order,221 thereby defeating the Claimant’s argument according to which Libya’s issuance of the Expropriation Order frustrated Olin’s legitimate expectation and thus further breached the FET standard.

2. The alleged infliction of a climate of uncertainty and ambiguity

260.
The Respondent denies that it inflicted a climate of uncertainty and ambiguity upon Olin. It maintains that the Claimant’s operational licenses were continuously renewed and that the map reproducing the demolitions in the Al-Fallah zone shows that Olin is one of the few factories still standing to date. In summary, the Respondent raised the following points in support of its position.
261.
First, the Respondent argues that the fact that Olin was unable to secure exclusive distribution agreements with capable partners is grounded on the Witness Statement of Mr Abughamja and on a letter from Mr Al Majd (Olin’s distributor).222 The Respondent doubts the validity of Mr Al Majd’s letter and contends that, in any case, such letter does not show that the Expropriation Order had an impact on the Contract of Distribution.223
262.
Second, the Respondent contests the Claimant’s affirmation that "Olin’s ability to secure credit lines and payment instruments from its bank also was affected". According to the Respondent, this assertion is based on the same witness statement mentioned above and on a letter from Sahara Bank BNP Paribas Group which "does not underline any link with the Expropriation Order". The document, as the Respondent views it, simply requests Olin to provide a number of explanations regarding certain sums that it had lost and other documents for a loan, including Olin’s financial projections. All requests which the Respondent considers "quite normal'.224
263.
Third, the Respondent contests the fact that Olin lost access to preferential terms from suppliers because of the Libyan government’s actions. Libya argues that the Witness Statement of Mr Deher confirms the lack of experience of Olin in the field of dairy and fruit juice products through strategic errors, notably the purchase of inadequate equipment. The Respondent refers to paragraphs 16 and 17 of Mr Deher’s Witness Statement, where he explains that the Candia team told Olin that it would have to upgrade its equipment to Tetra Pak machines, and that "while Olin was not pleased to learn it had to replace machines it had just purchased", Olin agreed to "purchase a demonstration model".225
264.
Fourth, regarding Olin’s allegation that it "did not know from one day to the next whether it would survive the Expropriation Order" and "could not extend a credit line to its customers which upset them and made them less willing to purchase from Olin", the Respondent considers that the Claimant provides no evidence of this apart from the Witness Statement of Mr Akram Abughamja.226
265.
Fifth, regarding Olin’s allegation that "Olin’s competitors took advantage of the situation" and that "Candia’s Tunisian franchisee has been importing Candia UHT milk illegally to meet demand that Olin has been forced to leave unfulfilled", the Respondent argues that the Claimant attempts to integrate events which occurred between April 2011 and April 2013 and which could potentially be the result of the 2011 Libyan Revolution rather than the result of an Expropriation Order of 2006, many years before the facts.227
266.
Finally, regarding the adverse effect on Olin’s employees, the Respondent considers that "the Claimant refrain[ed] from producing the personnel register including all details about the number of employees, their nationality, their professional qualification, the salary, and the period of employment",228 Furthermore, the Respondent considers that the Claimant’s assertion that it hired qualified personnel and sent several employees to train with Candía in France is not supported by accounting documents, airplane tickets, or by the required declaration to the competent Libyan services, thereby rendering such assertions untrustworthy.229

3. The alleged lack of transparency

267.
The Respondent, citing the decision in Middle East Cement Shipping & Handling Co S.A (Greece) v. Egypt,230 admits that administrative decisions have to be notified to the investor in order to be considered valid by an arbitral tribunal.231
268.
The Respondent however contends that, in the present case, and contrary to the Claimant’s assertions, the competent authorities notified Mr Abughamja of the Expropriation Order "immediately after the issuance of the decision",232 therefore upholding their obligations towards Olin.233

4. The alleged harassment

269.
In its defense, Libya draws a line between the pre-Revolution period (i.e. pre-February 2011) and the post-Revolution period (i.e. post-February 2011), underlying the fact that a number of actions or omissions imputed to Libya by the Claimant, are not the result of Libya’s fault but rather from the chaos and trouble which was prevailing in the country at the time.234
270.
Moreover, Libya considers that it did not interfere with the management of Olin, highlighting that Olin’s managers have kept their positions, have not been deprived of the the company’s full management and have not been replaced by local managers.235
271.
The Respondent quotes Mr Akram Abughamja who states in his witness statement, after describing his decision to purchase a new production line from Combibloc in 2012, that "[t]his line which costs EUR 1.5 million (with a down payment of 300,000 and the remainder payable over three years), was intended to expand our production capacity...".236 According to the Respondent, this declaration shows first that "six years, after alleged great difficulties, harassment and pressure, the investor was still running its investment and was able to decide to make new investment It accordingly demonstrates that "[o]bviously, the investor was free to manage its investment, to make decision and that he was confident"237
272.
Regarding the alleged refusal to allow Olin to import a new production line (i), the alleged refusal to allow Olin to repatriate profits (ii), the alleged refusal to assist Olin with accessing foreign currency (iii) and the alleged wilful provocation of Olin’s liquidation (iv), the Respondent raises the following arguments which are summarised below.

(i) The alleged refusal to allow Olin to import a new production line

273.
In its SoD, Libya questions the veracity of the Claimant’s assertion that it was forced to return the equipment and to cancel the contract with Combibloc in 2015.
274.
The Respondent mainly argues that the cancellation agreement concluded between Olin and Combibloc in January 2015 mentions that "Combibloc shall de-install the line and retrieve all delivered equipment According to Libya, this sentence shows that the Combibloc equipment was not retained by customs but in fact installed in Olin’s factory and subsequently "de-installed".238

(ii) The alleged refusal to allow Olin to repatriate profits

275.
The Respondent accepts that it refused to allow Olin to repatriate profits but contends that this was because such repatriation would have been illegal under Libyan law.
276.
According to Libya, foreign investors may repatriate profits and capital invested in a project only in the following cases:

(a) If the project comes to its end, or is under liquidation or assignment, or,

(b) If within the six months after the date of the investment, the investor has not ' carried out the project because of external reasons not imputable to it.239

277.
As none of these conditions were satisfied, the Respondent argues that Olin could not have been authorized to repatriate its profits and capital invested.240

(iii) The alleged refusal to assist Olin with accessing foreign currency

278.
While the Respondent did not answer the Claimant’s argument with regard to access to foreign currency in its SoD or in its Rejoinder, it ultimately addressed this issue in its Answers to the Tribunal’s Post-Hearing Questions.
279.
In essence, Libya advanced that Olin had all of the necessary documentation and did not need any additional documents from the LFIB. Libya further argued that "[t]he Claimant does not refer to documents and letters which would have previously been delivered by the LFIB for similar requests."241
280.
Libya finally argued that Olin could have accessed foreign currency through its Cyprus headquarters.242

(iv) Olin’s liquidation

281.
The Respondent considers that "nothing allows the Claimant to conclude, as it does, that the LFIB is seeking Olin’s liquidation.", and that "such an allegation is groundless".243
282.
According to the Respondent, such declaration is fully contradicted by the facts and if Libya intended to "intimidate" or "punish" Olin, it could have done it earlier.
283.
The Respondent adds that "the non-interrupted renewal of the license n° 020/2006 since November 2006" is the better proof that the Libyan authorities have provided FET to Olin’s investment.244
284.
In these circumstances, the Respondent considers that Olin’s liquidation was rather caused by "Olin’s lack of diligence and prudence in the management of its project". The Claimant would have "incurred costs related to its business judgement irrespective of an alleged breach of the fair and equitable treatment under the Cyprus-Libya BIT", and as such, Olin has "made decisions that increased the situation for which it bears responsibility regardless of the treat given by the Libyan authorities to the investment".245

5. The alleged lack of due process and denial of justice

285.
Regarding judicial due process, the Respondent finds surprising that the Claimant did not directly initiate arbitral proceedings to obtain an immediate and efficient decision.246 According to the Respondent, the investor, by bringing a claim before Libyan courts, "decided to act as a Libyan national", and in doing so, the Claimant have renounced to the benefits deriving from its status of foreign investor. As any Libyan investor, the Claimant had to go through the Libyan court system which implies long proceedings.247 In light of the fact that neither Olin’s managers nor its French partners could have ignored the relief provided under the BIT, the Respondent concludes that the Claimant should not take advantage of its own errors and/or deliberate choices to claim now that it was mistreated by the Libyan courts and especially by the judgment rendered in 2014.248
286.
The Respondent further notes that the Claimant never initiated emergency proceedings to put an end to the alleged harm and never claimed any compensation before the administrative authorities, neither prior to the decision of the Tripoli Court of Appeal of April 2010, nor after it.249
287.