FIRST SECTION
DECISION
Application no. 19630/07
SOCIETE ANDRE & CIE
against Albania
The European Court of Human Rights (First Section), sitting on 13 September 2016 as a Committee composed of:
Kristina Pardalos, President,
Aleš Pejchal,
Robert Spano, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 26 April 2007,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant company Societe Andre & Cie S.A is a company incorporated under Swiss law in Lausanne. It is represented by Mr F. Beaumont, a lawyer practicing in Italy. On 30 May 2002 an insolvency procedure (liquidation concordataire) was opened in respect of the applicant company by a decision of the Lausanne (Switzerland) District Court (le Président du Tribunal de l’arrondissement de Lausanne).
2. The Albanian Government (“the Government”) were represented by their Agent, Ms A. Hicka of the State Advocate’s Office.
3. On 22 September 2014 the application was communicated to the Government.
4. The Government objected to the examination of the application under the well-established case-law. After having considered the Government’s objection, the Court rejects it.
A. The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings before international arbitration bodies
6. In 1991 the applicant company concluded two contracts for the supply of food with a State-owned company, Agro-export. The Grain and Feed Trade Association (GAFTA) in London and the High Court of Justice in London were designated as arbitration bodies in case of dispute. After delivery of the food, the applicant company was not paid in accordance with the contracts.
7. On 20 February 1992 the Bank of Albania, the authority which undertook to guarantee the contracts, informed the applicant company that Agro-export’s debt was considered public debt.
8. On 18 January 1993, following the institution of arbitration proceedings by the applicant company on account of the State’s failure to pay Agro-export’s debt, the High Court of Justice ordered Agro-export to pay the applicant company 3,389,806.80 United States Dollars (“USD”) and an annual interest rate of fifteen per cent.
9. On 14 October 1993, following an action by the applicant company, the GAFTA ordered Agro-export to pay the applicant company the value of the goods amounting to USD 1,638,260.33 and an annual interest rate of six per cent.
2. Proceedings concerning the recognition of the arbitration decisions by the domestic courts
10. On 21 January 2005 the applicant company lodged two requests with the domestic courts for the recognition of the GAFTA’s decision of 14 October 1993 and the High Court of Justice’s decision of 18 January 1993.
11. On 21 December 2006 the Supreme Court finally dismissed the applicant company’s request for the recognition of the decision of 14 October 1993 on the ground that the execution of the final arbitration decision had been prescribed.
12. It appears that the applicant company withdrew the request for the recognition of the decision of 18 January 1993 on the ground that the applicant company was due to enter into negotiation with the authorities for the liquidation of the outstanding debt.
3. Proceedings concerning the enforcement of the arbitration decisions
13. On 28 February 1994 the Ministry of Industry and Commerce requested Agro-export not to enforce the arbitration decisions, because the debt would be addressed in the strategy for the liquidation of foreign debt.
14. On 29 May 2003 the Parliament enacted a law about the criteria and conditions concerning the liquidation of Albania’s foreign debt. Under Article 1 the authorities would enter into agreements with foreign creditors until 31 December 2007.
15. On 4 April 2005 the Minister of Finance informed the applicant company that the Committee for the Negotiation of External Debt (“the Committee”), which was established to settle Albania’s foreign debt, had acknowledged that the Republic of Albania owed it USD 5,014,436.
16. On 1 July 2006 the Minister of Finance informed the applicant company that the accrued interests would not be recognised or paid.
17. On 27 December 2006 and 14 November 2007 the Committee confirmed the debts it owed to several Swiss companies, including the applicant company.
18. On 7 December 2007 the respondent Government and the Swiss companies’ representative entered into an agreement concerning the rescheduling of outstanding debt payable to the Swiss companies (“the 2008 agreement”). Under Article 1 of the agreement, the Government agreed to pay the applicant company the sum of USD 5,463,957.08 (USD 5,014,435.21, being the principal amount and USD 449,521.87, being the accrued interest and penalties).
19. On 16 April 2008 the respondent Government adopted in principle (miratim në parim) a decision (no. 507) as regards the debt owed to Swiss companies, including the applicant company.
4. Subsequent developments after the communication of the case
20. The applicant company submitted that on 30 June 2008 the Government and the Swiss companies’ representative had signed the 2008 agreement. On 21 July 2008 the Albanian Parliament enacted a law for the ratification of the 2008 agreement. On 1 August 2008 the law was published into the Official Journal.
21. On 16 August 2008 the outstanding debt in favour of the applicant company was fully settled.
B. Relevant domestic law and practice
22. The relevant domestic law and practice has been described in the cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 21-26, 18 November 2004), and Gjyli v. Albania (no. 32907/07, §§ 19-28, 29 September 2009).
23. In addition, the Code of Civil Procedure in Articles 393 and 399 provides that an international arbitration decision is recognised and executed in the Republic of Albania in accordance with the provisions of this Code or specific laws. Under Articles 397 and 398 the Court of Appeal is competent to adopt a decision for the recognition of an international arbitration decision. The arbitration decision takes binding effect in the Albanian authority through the Court of Appeal’s decision.
COMPLAINTS
24. The applicant company complained that the authorities’ failure to pay the due sums was in breach of its rights under Article 6 § 1 of the Convention and Article 1 of Protocol no. 1 to the Convention.
THE LAW
25. The Court notes that the Government raised several objections as regards the admissibility of the case. However, it considers that there is no need to examine them separately, since in any event it finds that the case should be struck out of the list for the reasons explained below.
26. It is to be noted that the authorities’ obligation was initially acknowledged in 1993 by way of two international arbitration decisions, which were not recognised by the domestic courts (see paragraphs 8-12 above). However, in 2003 the authorities adopted a law for the recognition of Albania’s general foreign debt. Following negotiations among the Government and the Swiss companies between 2006 and 2008, the initial outstanding debt was finally rescheduled in June 2008. The Court further notes that as soon as the outstanding debt was rescheduled, the authorities settled it in full on 16 August 2008. It included the principal amount as well as the accrued interest and penalties (see paragraphs 14-21 above).
27. In these circumstances, the Court finds that the matter giving rise to the applicant company’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention must be considered to have been resolved within the meaning of Article 37 § 1 (b) of the Convention (see mutatis mutandis, E.G. v. Poland and 175 other Bug River applications (dec.), no. 50425/99, §§ 22-24, ECHR 2008 (extracts)). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which would require the examination of the application.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 6 October 2016.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy