RWE AG and RWE Eemshaven Holding II BV v Kingdom of the Netherlands - ICSID Case No. ARB/21/4 - Procedural Order No 2 - Decision on Bifurcation - 25 February 2022
Reproduced from www.worldbank.org/icsid with permission of ICSID.
This Order addresses the Application for Bifurcation submitted by RWE AG and RWE Eemshaven Holding II BV (together, the Claimants or RWE) on 28 January 2022, in which the Claimants ask the Tribunal to resolve two issues on a preliminary and accelerated basis (the Application). The Respondent, the Kingdom of the Netherlands (the Respondent or the Netherlands), opposes the Application.
57. To conclude, the Tribunal determines that, in the unusual circumstances of this case, separate preliminary resolution of the Netherlands' intra-EU objection and RWE's ancillary claim would not serve the overall interests of justice, the interests of the Parties, or the integrity of the proceedings. The Claimants' Application is therefore denied. The case will move forward on the schedule for non-bifurcated proceedings in the Procedural Timetable.
58. Again, the Tribunal underscores that its decision is taken in light of the Netherlands' assurances that it will not take any steps to interfere with the Tribunal's kompetenz- kompetenz.
59. For the reasons stated above, the Tribunal DECIDES and ORDERS as follows:
(A) The Claimants' Application is denied.
(B) The arbitration is to proceed in accordance with the schedule for non-bifurcated proceedings set out in Scenario A of the Procedural Timetable at Annex B of Procedural Order No 1, unless subsequently modified by the Tribunal.
(C) The issue of costs is reserved to a later stage of the arbitration.