TDM IACL Case Report Mabco Constructions SA v. Republic of Kosovo (ICSID Case No. ARB/17/25) - Award on Jurisdiction - 30 October 2020
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Case Report by Edoardo Mazzoli, Editor Ignacio Torterola
Mabco - a Swiss company brought a claim for relief against Kosovo over a dispute arising out of the privatization and ownership of the Grand Hotel, a major hotel in Pristina (Kosovo) and relating to the unlawful expropriation of Mabco's property, denial of fair and equitable treatment and denial of justice. The claim - concerning the compensation for the investment and the ensuing loss of profit - has been brought before an ICSID Tribunal under (i) the agreement between the Swiss Confederation and the Republic of Kosovo entered into force on 13 June 2012 ("BIT") and the (ii) Kosovo's Laws on Foreign Investment. Following Kosovo's objections to jurisdiction, the Tribunal decided that one phase of the proceedings would deal with the determination of whether the Claimant's investment in Kosovo qualified it for protection as a "foreign investor". The outcome was a decision on jurisdiction, whereby a majority found that Claimant had indeed an investment in the form of a claim to shares in the privatized hotel, and that such investment was owned by that legal entity Mabco, to the exclusion of its owner, a Kosovar businessman.
For the purposes of establishing ICSID jurisdiction, (i) qualification as "investment" with respect to the Claimant's purchase of shares of the Grand Hotel asset in Kosovo, (ii) qualification of the Claimant as both an "investor" and a "foreign investor" under the relevant BIT applicable and the Foreign Investment Law(s) of Kosovo, and the relevant ICSID Rules.
TDM IACL Case Report Mabco Constructions SA v. Republic of Kosovo (ICSID Case No. ARB/17/25) - Award on jurisdiction - 30 October 2020
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