The International Court of Arbitration of the International Chamber of Commerce (ICC) denied Anaklia Development Consortium’s claim against the Government of Georgia. The plaintiff tried to “recover the value of the investment of ADC and its investors following the Georgian Government’s January 2020 termination of the investment agreement with ADC to develop the Anaklia Deep Water Port,” the Supervisory Board of the Anaklia Development Consortium (ADC) says in a statement on July 30. The compensation sum demanded by the plaintiff was USD 1.5 billion. Details about the decision and the arbitration proceedings are confidential.
"As we indicated in our 29 July statement, Anaklia Development Consortium (ADC) and its investors were disappointed in the ruling from the International Court of Arbitration of the International Chamber of Commerce (ICC). Since Georgian government officials have chosen to mischaracterize this ruling. It is
important to put proper context to this matter.
As we previously noted, the government’s long-standing campaign against the original Anaklia project (after having initially endorsed it) and its investors is a matter of public record. This arbitration ruling has not hasn’t found that this campaign caused the project to fail.
Regardless of the outcome for ADC, what is really disappointing is that this government’s actions have caused years of delays in developing this project, costing the opportunity for tens of thousands of jobs, and millions in lost taxes and revenues that would have benefited the people of Georgia. This arbitration ruling changes none of this. While the government sees this arbitration ruling as a victory, it is nothing of the sort. It doesn't change the fact that this government has failed to fulfill the many promises it has made. It gets Georgia no closer to the Anaklia port and all the economic benefits that would come with it. And the entire fault for this rests solely on the shoulders of this government.
Unfortunately, Georgian government officials have given a misleading picture that flatters Georgia. This has to be corrected. In reality, this was a close-fought dispute (decided on a 2-1 basis) and the Tribunal found that ADC’s claims raised serious issues and valid questions about the government’s conduct in respect of the Anaklia project. To set the record straight:
● First, one of the three arbitrators issued a dissenting opinion in favor of ADC. It was not the case that the Tribunal unanimously decided in favor of the
government.
● Second, Minister Bregvadze incorrectly stated that ADC’s claim was for USD 1.5 billion. In reality, it was less than a third of that amount.
● Third, claims that the government brought against ADC were unanimously dismissed in full.
● Fourth, no damages were awarded to the government. Although ADC was ordered to pay the costs of the Tribunal and ICC Court, Georgia was not successful in recovering its substantial legal and other costs from ADC.
What is very clear from the arbitration decision, is that none of what the government did helped ADC to make the Anaklia project a reality.
The real basis of the majority decision was that regardless of the government’s conduct, ADC assumed the risk that the government would undermine the project. The contract gave ADC no security against that. And the decision does not deny that the government took actions which were unhelpful to the project. It simply concludes that ADC took the risk that the government would not be loyal to the Anaklia project, and could promote Poti instead. Of course the dissent disagrees strongly with that position and says the government breached its duty of good faith. Unfortunately, according to the majority opinion’s interpretation of the investment agreement, the government was not obligated to support it, as counterintuitive as that might seem.
Under this narrow legal view, ADC did not prevail. However, The real victims are the people of Georgia, because the government would not commit to the project as it had originally promised. That has cost Georgians tens of thousands of lost jobs, lost economic opportunity and lost stature in the regional and global economy. And the government still has not come through with a port at Anaklia, despite its many promises – four and a half years after the announcement of the supposed retender, there is still no project.
There is an open question as to whether the government’s conduct in relation to Anaklia breached its obligations under international law. That question will be determined in the separate ICSID arbitration proceedings commenced by one of the Dutch investors in ADC under the Dutch – Georgian Bilateral Investment Treaty, which are still ongoing.
