United States: Yes, We Can (Order A Country To Suspend Criminal Prosecution And Extradition): Hydro v. Albania Redux

An update, if not an epilogue, to the Hydro v. Albania saga. As described in our prior post, the ICSID arbitration tribunal in that case had imposed interim measures directing the Albanian government to suspend its prosecution of two of the individual claimants and its efforts to extradite them to Albania. A UK judge then enforced the tribunal's order, ruling that it was binding under international law and that the extradition could not proceed. In light of that ruling, the arbitration tribunal has modified its order slightly, dropping its demand that the Albanian criminal proceedings themselves be stopped, but maintaining that, indeed, it had the authority to require the suspension of those proceedings and associated extradition efforts, and was right to do so.

The scenario seems dramatic and exotic. But it may not prove entirely rare: As we have noted, another tribunal recently issued a similar order. As foreign investors facing what they believe are abusive or politically motivated criminal charges by host states increasingly turn to investment treaties and arbitration to push back, and as some states launch investigations or prosecutions after arbitrations have begun, investor-state arbitral tribunals may increasingly face such requests for interim measures. Courts, too, will have to decide how to respond.

To recap: Hydro involved a claim by Italian investors in a hydroelectric plant and two television stations in Albania, based on allegations of regulatory harassment and discrimination. While the arbitration was underway, the Albanian government froze the investors' assets in the country and pursued criminal forgery and money laundering proceedings against three of the claimants, including the owner of a London football club and his mother. These proceedings resulted in the issuance of arrest warrants and the initiation of extradition proceedings in the United Kingdom.

The claimants filed a request for interim measures with the arbitral tribunal, asking it to order the suspension of the criminal and extradition proceedings, and the unfreezing of their assets. Albania objected, arguing that the tribunal should not interfere with the state's sovereign right to enforce its criminal laws. On March 3, 2016, the tribunal largely sided with the claimants, finding that were the individual claimants extradited to Albania and jailed, they would be prevented from participating in the arbitration as witnesses or otherwise, thus undermining the integrity of the proceedings. It thus instructed Albania to suspend both the prosecution and the extradition until the arbitration was completed. It declined to order the return of the assets, instead instructing the parties to attempt a negotiated resolution on that issue.

Albania did not immediately comply with the order, and the criminal and extradition proceedings continued. The claimants thus asked the tribunal for a "partial award" allowing enforcement of its ruling; Albania responded by asking the tribunal to revoke its order as wrongly issued. While the matter was pending, a UK magistrate judge issued an order finding that, in light of the arbitral tribunal's March 2016 interim measures decision, the UK extradition proceedings could not go forward. Albania then dropped its extradition request, at least for the time being.

On September 1, 2016, the tribunal issued a new decision modifying its prior order. It found that, given the UK judge's decision, it was unnecessary to require the suspension of the Albanian criminal proceedings themselves or Albania's extradition efforts. However, it rebuffed Albania's argument that the original interim measures order was improper, thus reaffirming its core holding that maintaining the integrity of the arbitral process trumped the sanctity of the Albanian domestic criminal process, at least for the time being – a decision that the UK judge had essentially endorsed. And the tribunal continued to direct Albania not to resume efforts to extradite the claimants until after the arbitration.

In itself, the new decision is not a dramatic development. But the tribunal's commitment to its original holding once again highlights the potential tension between international treaty arbitration proceedings and domestic law enforcement action, a subject we (and several tribunals) have considered before. Investors may launch arbitration claims based on purportedly unfair criminal prosecutions; criminal prosecutions may interfere with arbitration proceedings; arbitrators may seek to intervene in such cases. Domestic judges in various jurisdictions may face real dilemmas: Do comity and extradition treaties require respect for foreign criminal proceedings? Do arbitration treaties require deference to tribunals' rulings? And what should a domestic court do outside the extradition context when it is asked to enforce an arbitral order to suspend a criminal case pending in that court?

In a U.S. court, the issues could certainly prove knotty. The scenario is in some ways reminiscent of the Medellin v. Texas case, in which the U.S. Supreme Court, in another criminal case, held that decisions of the International Court of Justice regarding application of a different treaty were not binding or enforceable under U.S. domestic law. But decisions by arbitration tribunals – particularly in ICSID cases – could be different. The ICSID and New York Conventions have been implemented directly in U.S. law through the ICSID Convention's implementing legislation and the Federal Arbitration Act, respectively, and thus arbitral awards are directly enforceable. In fact, ICSID decisions (unless annulled through the ICSID process) are enforceable in the same manner as a final judgment of a U.S. state court, without the usual grounds for challenge under the FAA and the New York Convention.

Another wrinkle: U.S. courts have divided as to whether an arbitral tribunal's interim measures order is enforceable. Some courts have found that they are not, as they cannot be considered "final" under the New York Convention and the FAA. Other courts have found the opposite. The situation is even murkier in the ICSID arbitration context; under the U.S. ICSID implementing statute, the FAA does not apply, and neither the statute nor the ICSID Convention addresses the issue. U.S. courts have apparently not yet reached it.

So what will happen when a U.S. court faces a foreign government's request to extradite an individual who is a party to an investor-state arbitration, in the face of an arbitral tribunal's order barring extradition? Or when a court considers a foreign government's request under a mutual legal assistance treaty to help collect testimony or evidence in the U.S. for use in a foreign criminal proceeding that is subject to a tribunal's interim measures order? Perhaps less likely, but more daunting: What if the U.S. government prosecutes a foreign national or company (e.g., under the Foreign Corrupt Practices Act), the foreign national brings an investment treaty claim against the United States, and the tribunal orders the U.S. government to suspend the prosecution? What would a U.S. district judge do then?

It may only be a matter of time before we find out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.