Contrary to the majority’s view, acknowledging that "Claimant is not entirely clear or consistent as to the exact nature of the investment it claims to have acquired in respect of the Grand Hotel shares,"16 but still finding that "a claim of entitlement to ownership of the shares"17 constitutes an "investment",18 I have difficulties in concluding that a contractual entitlement to receive shares constitutes an "investment" within the meaning of Article 1 of the BIT or Article 2 of Kosovo’s Foreign Investment Law 200519/201420,21 on the one hand, and in the sense of Article 25 of the ICSID Convention, on the other hand.
"The term 'investment' means every kind of asset established or acquired by an investor of one Contracting Party in the territory of the other Contracting Party that has such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk, including: [...] (b) a company, or shares, parts or any other kind of participation in a company; (c) claims to money or to any performance having an economic value, except claims to money arising solely out of commercial contracts for the sale of goods and services; [...]."24
"[...] any asset owned or otherwise lawfully held by a Foreign Person in the Republic of Kosovo for the purpose of conducting lawful commercial activities, including but not limited to: [...]
1.4.3. cash, securities, commercial paper, guarantees, shares of stock or other types of ownership interests in a (sic!) the Republic of Kosovo or foreign business organization; bonds, debentures, other debt instruments;
1.4.4. claims or rights to money, goods, services, and performance under contract;"38
While the majority criticizes the Respondent offering a possible alternative explanation for the 4 million Euro transfer as "sheer conjecture,"51 it seems to take at face value the statements of Claimant’s witnesses without any documentary evidence that the payment was indeed made for the privatization of the Grand Hotel. In fact, the majority seems to apply a prima facie test to the question whether an investment existed.52
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